SZOBR v Minister for Immigration and Citizenship

[2010] FCA 888

FEDERAL COURT OF AUSTRALIA

SZOBR v Minister for Immigration and Citizenship [2010] FCA 888

Citation:		SZOBR v Minister for Immigration and Citizenship [2010] FCA 888
Appeal from:		SZOBR v Minister for Immigration & Anor [2010] FMCA 333
Parties:		SZOBR v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 645 of 2010
Judge:		GORDON J
Date of judgment:		18 August 2010
Legislation:		Migration Act 1958 (Cth)
Cases Cited:		Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 Kevin v Attorney-General (Commonwealth) (2001) 165 FLR 404 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2)(2004) 144 FCR 1
Date of hearing:	18 August 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	24
Counsel for the Appellant:	L J Karp
Solicitor for the Appellant:	Michael Jones, Solicitor
Counsel for the First Respondent:	A Mitchelmore
Solicitor for the First Respondent:	DLA Phillips Fox

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 645 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOBR
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GORDON J
DATE OF ORDER:	18 AUGUST 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Appeal is dismissed.

2.The Appellant pay the First Respondent’s costs of and incidental to the Appeal, to be taxed in default of agreement.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 645 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOBR
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GORDON J
DATE:	18 AUGUST 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against an Order of Federal Magistrate Nicholls of 18 May 2010 dismissing an application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal) of 13 November 2009.  The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship (the First Respondent), to refuse to grant the Appellant a protection visa under the Migration Act 1958 (Cth) (the Act). 

   PROCEDURAL HISTORY

2. The Appellant is a citizen of Lebanese ethnicity from Lebanon who entered Australia on 20 October 2008 as a holder of a Short Stay Sponsored (Visitor) Class UL visa.  On 3 February 2009, the Appellant applied for a protection visa (Class XA) with the Department of Immigration and Citizenship.  On 17 June 2009, a delegate of the First Respondent refused to grant the application for a protection visa.  On 3 July 2009, the Appellant applied to review that decision. 

3. On 13 November 2009, the Tribunal affirmed the decision of a delegate of the First Respondent to refuse the Appellant’s application for a protection visa.  The Appellant then sought review of the Tribunal’s decision and, on 18 May 2010, the Federal Magistrates Court dismissed that application for review. 

   THE TRIBUNAL DECISION

4. The Tribunal was not satisfied that the Appellant was a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees (the Convention) and the 1967 Protocol Relating to the Status of Refugees.  The Tribunal considered the Appellant’s claims to fear persecution on two separate but related bases (i) homosexuality and (ii) transgender issues.  The Tribunal was not satisfied that the Appellant was homosexual or a person of transgender status. 

5. Concerning the Appellant’s alleged homosexuality, the Tribunal referred to the cumulative effect of the Appellant’s inconsistent information he gave to three psychologists (whose reports were submitted to the Tribunal) as to his previous homosexual relationships, his ignorance of s 534 of the Lebanese Penal Code, and the delay between the time the Appellant arrived in Australia (20 October 2008) and the date of application for a protection visa (3 February 2009). 

6. Article 534 of the Lebanese Penal Code makes homosexual intercourse an offence.  The Tribunal found:

   … it implausible that a person who claims to be fleeing persecution as a homosexual would not be aware of the law that perpetuates much of that persecution and repression … the Tribunal considers that a person who claims to be fleeing persecution as a homosexual would at least be aware, if not of the actual paragraph in the Penal Code at least of the fact that acts of homosexuality are against the law. 

7. In relation to the delay, the Tribunal concluded that raised an inference that the delay was due to an absence of any genuine fear of persecution. 

8. As a result, the Tribunal concluded that the Appellant’s claims lacked substance, had inconsistencies and lacked plausibility and that the Appellant did not fear persecution by reason of his claim to be homosexual.  The Tribunal stated:

   The cumulative effect of these concerns has left the Tribunal unsatisfied of the truth of the [Appellant’s] claims including his claim to be a homosexual.  In light of the combined effect of the inconsistencies, ignorance of the prohibition and delay the Tribunal is not satisfied that the [Appellant] is homosexual and finds that he has contrived his homosexual orientation for migration purposes.

9. In dealing with the Appellant’s claimed transgender status, the Tribunal referred to the cumulative effect of its concerns about his homosexuality and concluded that those concerns had diminished the Appellant’s credibility to the extent that it was not satisfied of the truth of any of his claims that he is transgender. 

10. The Tribunal concluded that it was not satisfied that the Appellant had a well founded fear of persecution for a Convention reason, and affirmed the decision not to grant the Appellant a protection visa.

    THE COURT BELOW

11. The Appellant filed an application for review in the Federal Magistrates Court on 18 December 2009.  The grounds of review before the Federal Magistrate were:

    The Tribunal misunderstood or confused, or it did not properly apply to the facts before it, the concepts of “homosexuality”, “transgender” and “transvestism”;

    The Tribunal’s finding that the [Appellant] does not have a well-found fear of persecution for a Convention reason arising from his sexual orientation is based on a treatment of the evidence before it that may give rise to an apprehension of bias.

12. Both grounds of review were dismissed by the Federal Magistrate.  In relation to the first ground, the Federal Magistrate found that the Tribunal did not ignore or fail to consider the Appellant’s claimed behaviour (in particular, the behaviour of wanting to and in fact dressing in women’s clothing) as that behaviour was put as part of, and in support of, a manifestation of the Appellant’s homosexuality.

13. Under the second ground, the particulars asserted that a reasonable observer could have concluded that the Tribunal’s treatment of cogent professional evidence supporting the Appellant’s claims in the absence of any evidence to the contrary indicated an unwillingness or inability on the part of the Tribunal to properly assess the evidence before it.  That submission was rejected by the Federal Magistrate on a number of bases. 

    APPLICATION TO THIS COURT

14. The Notice of Appeal filed in this Court on 8 June 2010 is substantially a reproduction of the application filed in the Federal Magistrates Court (see [11] above).  The grounds of appeal in this Court were:

    1.His Honour erred in not finding that the [Tribunal] misunderstood or confused, or did not properly apply to the facts before it, the concepts of “homosexuality”, “transgender” and “transvestism”.

    2.His Honour erred in not finding that the Tribunal did not consider the full extent of the Appellant’s claim to fear persecution for a Convention reason.

    3.His Honour erred in not finding that the decision of the [Tribunal] was affected by the error of apprehended bias. 

15. On appeal, the Appellant did not press Ground Three.

    Ground One

16. The Federal Magistrate dealt with this complaint in the following terms (at [37] of the Federal Magistrate’s reasons for decision):

    The [Appellant’s] ground, as ultimately explained and put in oral submissions before the Court, does not succeed.  I agree with Ms Clegg that any plain reading of the material before the Court reveals that the entirety of the [Appellant’s] claim to fear persecutory harm if he were to return to Lebanon was that he was a homosexual.  [The Appellant’s] behaviour of wearing women’s clothes, and even his feelings of being a woman, were all presented as part of, integral to, and behavioural examples of his homosexual orientation. 

17. The Appellant submitted that he made three claims – (1) he liked dressing in women’s clothes (transvestism), (2) he was homosexual and (3) he wished he was born as a girl (a transgender issue): see Kevin v Attorney-General (Commonwealth) (2001) 165 FLR 404 at [13] – [15]. The Appellant submitted those claims were interrelated but not necessarily coterminous.

18. The Appellant’s principal complaint was that the Tribunal did not separately consider the claim of transvestism.  In support of this complaint, the Appellant referred the Court to a number facts and matters:

    1.there was no finding by the Tribunal that the Appellant’s cross-dressing was subsumed within his claimed homosexuality;

    2.aspects of the Appellant’s evidence;

    3.the evidence of Mr Hamburger, a psychologist, who said that there was a question whether the Appellant’s cross-dressing was a gender identity disorder or a fetish; and

    4.the Tribunal itself drew a distinction between homosexuality and transgender.

19. The Appellant’s complaint was that the Tribunal did not properly apply the facts to these three different concepts and that error was of the type discussed in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42] and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [60] – [66].

20. In Htun 194 ALR 244 at [42], Allsop J (as he then was) explained the error in the following terms:

    … It is not a failure to find a “relevant” fact. The tribunal failed to address and deal with how the claim was put to it, at least in part. The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs vPeko Wallsend (1986) 162 CLR 24;… and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 …. See also Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287…at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act, for example ss 54, 57, 65, 414, 415, 423, 424, 425, 427 and 428 and the express reference in reg 866 to the “claims” of the applicant for example 866.211, make it clear that the Tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant. … It is true that when called on at the hearing to articulate orally his fears he did not expressly identify his friendships as distinct from his activities in Australia. However, given the clarity of the expression of this fear in his application for review and the existence of objective material put forward by him to support it, I do not see this basis for the claim as having been abandoned. Conceptually, and in a common sense way, it was quite distinct from his claim based on his activities of the kind referred to earlier.

21. As explained extensively by the Federal Magistrate, although the material adduced by the Appellant contained a number of references to the Appellant dressing like his sisters and the behaviour of dressing in women’s clothes, each reference was raised in the context of his alleged homosexual orientation or behaviour:  see [38] – [42] of the Federal Magistrate’s reasons for decision in relation to the Appellant’s initial statement attached to his application for a protection visa; [43] – [47] of the Federal Magistrate’s reasons for decision in relation to the submissions made to the Tribunal by the Appellant’s migration adviser; [48] – [53] of the Federal Magistrate’s reasons for decision in relation to the reports of the three psychologists and [54] – [61] the Federal Magistrate’s reasons for decision in relation to the transcript of the hearing before the Tribunal. 

22. Unlike the position in Htun 194 ALR 244, the Tribunal here considered the Appellant’s claims and component integers of those claims. The Tribunal did not fail to deal with any aspect of the Appellant’s claims: cf NABE 144 FCR 1 at [68]. I can identify no appellable error. This appeal ground should be dismissed.

    Ground Two

23. Ground Two must fail.  It stands or falls with Ground One. 

    CONCLUSION

24. I would dismiss the appeal.  The Appellant will be ordered to pay the First Respondent’s costs of the appeal to be taxed in default of agreement. 

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.

Associate:

Dated:       18 August 2010