SZODT v Minister for Immigration
[2010] FMCA 371
•3 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZODT v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 371 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – credibility findings – s.424(1) of the Migration Act 1958 does not oblige the Tribunal to make enquiries – no failure to conduct review demonstrated by reason that the Tribunal did not make enquiries. |
| Migration Act 1958, ss.424A, 427, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Re Minister for Immigration & Multicultural Affairs; Ex part Durairajasingham (2000) 168 ALR 407 Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 |
| Applicant: | SZODT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 269 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 19 May 2010 |
| Date of Last Submission: | 19 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 3 June 2010 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 269 of 2010
| SZODT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India. He claims that, while in India, he was harassed and assaulted because of his homosexuality. He claims that he cannot live a normal life in India as homosexuality is prohibited by Indian society and in the Hindu religion.
The applicant claims to fear persecution in India by reason of his religion and his membership of a particular social group.
After his arrival in Australia on 4 April 2009, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 12 August 2009. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 12 of the Tribunal’s decision (Relevant Documents (“RD”) pages 99 – 107). Relevant factual allegations are summarised below.
The applicant made the following claims in a statement attached to his protection visa application:
a)he and “Mr P” were both students in the same school when they began a sexual relationship;
b)
many students found their relationship very offensive. On
10 April 2002 some of the students raised the matter with the school principal after they caught him and Mr P in an “unpleasant situation”. Mr P and he were severely beaten by the principal and expelled from the school;
c)his father took the matter very seriously and advised him to cease “this kind of activities” because it was not permitted by their religion and would bring disrepute upon the family. The applicant promised that he would keep away from these activities in the future;
d)he stopped his studies and remained at home. A few months later, while his father was away, Mr P came to his home. They went to an isolated place where Mr P “convinced” him to engage in sexual activities. They were seen by one of the locals who then told his father. His father beat him severely and threw him out of the family home;
e)he subsequently moved to Gurgaon where he stayed with a relative. He later rented shared accommodation;
f)he continued his relationship with Mr P. However, when the applicant’s flatmate learned of the relationship, the applicant moved to Faridabad because he felt that it was not safe to live there anymore;
g)Mr P moved in with him after a year and they lived a good life together;
h)in February 2004 they came to the attention of the locals. Mr P felt that it was no longer safe so he decided to leave India. He went to the United Kingdom in May 2005. The applicant tried to follow but was denied a visa;
i)his family have broken ties with him completely. He is not accepted by society and has been assaulted “by them” and will get no support from the government as homosexuality is not legally accepted; and
j)homosexuality is prohibited in Indian society as well as in the Hindu religion. Homosexuals in India have no rights and cannot live in freedom. He will be the victim of persecution and discrimination if he returns to India.
In an interview with the Minister’s delegate on 5 August 2009, the applicant made the following additional claims:
a)he lived in Gurgaon from 2002 to 2004 and then moved to Faridabad where he lived until his departure from India in 2009;
b)he and Mr P were living together in Gurgaon, not in Faridabad, when they came to the attention of the locals;
c)he and Mr P were caught by the applicant’s flatmate having sex in February 2003. They were concerned that the flatmate would disclose the matter to others so left three days later;
d)after Mr P went to the United Kingdom, people came to know of the applicant’s homosexuality because he tried to initiate a relationship with another person;
e)about two and a half months after Mr P left for the United Kingdom, some locals came to the applicant’s home and threatened him, telling him to leave. After that incident, he began living at the restaurant where he worked; and
f)he had not been physically assaulted.
The applicant appeared before the Tribunal on 13 November 2009 where he made the following additional claims:
a)he realised he was gay at around the age of 14. Mr P had approached him and told him that it would be fun if they had sex. He was young at the time and did not think of the consequences. Afterwards, sex with Mr P became a habit and he was addicted;
b)he has not had any sexual partners other than Mr P and did not try to meet anyone after Mr P went to the United Kingdom. He did not know any other gay men in India nor was he aware of any gay communities or organisations in Delhi;
c)after the principal became aware that he and Mr P were having sex, the applicant left school voluntarily because he was humiliated. He did not go to another school because he was depressed and did not want to continue his studies;
d)when he was thrown out of his parents’ house he went to Gurgaon where he stayed with a relative. This relative saw him and Mr P having sex. Although the applicant’s relative did not say anything, “it was obvious that he was not happy” so the applicant left;
e)he went to Faridabad because his job in Gurgaon had ended. Mr P joined him a year later;
f)his neighbours in Faridabad saw him and Mr P kissing and told them that what they were doing was wrong. Mr P felt that it was no longer safe for them to live India so they tried to make arrangements to leave the country. Mr P had money and was able to arrange a visa to the United Kingdom;
g)he has not been to any gay clubs or establishments in Sydney because he was not aware of any and, because of language problems, he is not currently in a relationship;
h)he has not told anyone in Australia that he is gay, including his flatmates, as they would kick him out of the house if they knew; and
i)he once went to a church in Australia because he had heard that many of the attendants were gay, however, there were no Indians there.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the applicant’s evidence regarding his movements, circumstances and the consequences of his sexual activities with Mr P was inconsistent:
i)in his statement to the department he claimed that he was severely beaten by the principal after which he was expelled from the school. However, at the hearing he said that he had left school voluntarily and made no claims of having been physically punished by anyone other than his father;
ii)he claimed at the hearing that he moved to Gurgaon in September 2002 where he initially lived with a distant relative. He claimed that during this period he was caught by the relative having sex with Mr P and, as a consequence, moved out and rented a room. He claimed that he later moved to Faridabad as a result of his job coming to an end. However, these claims were distinctly different from the account which he had put forward to the department which, in effect, was that he had been discovered having sex with Mr P by his flatmate whilst living in shared accommodation in Gurgaon and that this had caused him to move to Faridabad. At no point in this account did the applicant make reference to his relative;
iii)at the hearing the applicant claimed that he and Mr P did not live together in Gurgaon and that, after he moved to Faridabad, Mr P joined him a year later. However, in his interview with the delegate the applicant gave evidence that he and Mr P had lived together in Gurgaon and had moved to Faridabad at the same time;
iv)at the hearing the applicant claimed that he came to the attention of the locals in Faridabad after they saw him and Mr P kissing. He also stated that he had never tried to initiate a relationship or meet anyone else after Mr P’s departure from India. In contrast, in the interview with the delegate the applicant claimed that he and Mr P did not come to the attention of the locals or anyone else when they lived together. The applicant also said that his sexual orientation became known when he tried to initiate a relationship with someone else after Mr P’s departure; and
v)in his written statement to the department the applicant claimed that he was assaulted by society. However, he did not pursue this claim at the departmental interview or the Tribunal hearing and made no mention of having been assaulted by anyone other than his father;
b)in the Tribunal’s view, the applicant did not provide any satisfactory explanations for these inconsistencies and this seriously undermined the credibility of his key claims;
c)in addition, the applicant’s responses concerning how he had come to realise that he was gay and how he felt when he learned that he was gay were unconvincing. In this respect the Tribunal noted that the applicant’s evidence did not contain any credible or meaningful references to any thought processes which might have occupied his mind while coming to terms with significant issues of identity in a community apparently hostile to homosexuality;
d)given the impression which the Tribunal formed of the applicant’s credibility, combined with his unsatisfactory responses to the questions which were put to him at the hearing, the Tribunal did not accept that the applicant had visited a gay church in Australia. Further, it did not accept that he had engaged in any activity in Australia which could be characterised as homosexual activity;
e)for these reasons, the Tribunal found that the applicant was not a credible, truthful and reliable witness. It also found that his evidence showed a propensity to shift and tailor evidence in a manner which achieved his own purpose; and
f)in light of its findings, the Tribunal did not accept that the applicant was a homosexual or that he practised homosexuality or was involved in a homosexual relationship and/or activity in India. The Tribunal therefore did not accept that he was harmed in India as he claimed.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
(1)The Tribunal did not consider me a credible witness. The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction for its failure to take into consideration the harm amounting to persecutions I experienced in India for my relationship as homosexual. The Tribunal failed to accord procedural fairness at the time of decision as I was not given adequate opportunity to provide documents as proof of persecution I experienced in India.
(2)The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction or denied procedural fairness in that the Tribunal failed to consider the documents I have provided to substantiate my claims for a protection visa. The Tribunal failed to exercise the power conferred on the Tribunal under s.427(1)(d) of the Migration Act.
(3)The Tribunal failed to perform the duty imposed on it by the Migration Act (section 424(1)).
At the hearing in these proceedings the applicant additionally alleged that the interpreter services provided to him at the Tribunal hearing were deficient.
Ground 1
The first ground of the application contains three elements, namely:
a)the Tribunal did not consider the applicant to be a credible witness;
b)the Tribunal failed to take into account the applicant’s allegations of previous harm in India; and
c)the applicant was denied procedural fairness.
Arguably, the first element of the first allegation is a complaint that, by reason of the other matters particularised in the allegation, the Tribunal erroneously concluded that he was not a credible witness. Those separate bases for the allegation will be dealt with shortly. However, on its own, the fact that the Tribunal did not consider the applicant to be a credible witness is not a reason to set aside the Tribunal’s decision. The making of credibility findings is a function of the Tribunal par excellence: Re Minister for Immigration & Multicultural Affairs; Ex part Durairajasingham (2000) 168 ALR 407 at 423 [67], and is not, in circumstances of this case, a matter which the Court can review. It is for the Tribunal to make findings of fact of this sort whereas it is the Court’s role to ensure that the Tribunal properly applies the law. For these reasons, the first aspect of the first allegation does not disclose jurisdictional error on the Tribunal’s part.
The allegation that the Tribunal failed to consider the harm which the applicant alleged he had experienced in India by reason of his alleged sexuality must fail on the facts. The applicant’s claims were, apparently comprehensively, summarised by the Tribunal in paras.20-68 of its decision record. Subject to the applicant’s allegation concerning translation inadequacies at the Tribunal hearing which will be considered later in these reasons, he has not suggested that this summary was incorrect or incomplete. Further, under the heading “Findings and Reasons” the Tribunal referred to the beating which the applicant claimed to have suffered at the hands of his school principal, the treatment he said he received from his father, the attention he had allegedly received from the locals in Faridabad, including threats and being told to leave, his failure to be accepted by people in society and his claim that he was assaulted. In all, the Tribunal’s reasoning discloses that it did take into account the mistreatment and ostracism the applicant claimed to have suffered in India but was unpersuaded by those allegations. For this reason, the second element of the first allegation made in the application does not suggest jurisdictional error.
The third element of the first allegation is that the Tribunal denied the applicant procedural fairness by not giving him an adequate opportunity to provide documents as proof of the persecution he claimed he suffered in India. At the hearing in these proceedings, the applicant’s evidence was that after receiving the Tribunal’s post-hearing s.424A notice, he telephoned it saying that he had received the Tribunal’s letter. His evidence was that he asked for more time in order that he could provide a statement substantiating his story. He asked if he could give his statement in Hindi but was told that he had to provide it in English. He told the Court that as his migration agent was away he needed more time because he had to wait for the latter’s return. The applicant said that the person he was speaking to at the Tribunal could not understand his English and, although that person said the Tribunal would call back, it never did.
On the applicant’s version of events, he said to the Tribunal officer who took his call:
… And I said to him on the phone that I don’t understand English that well, so, please, provide me with an interpreter and also about the letter, please, I have received your letter, please give me some more time …
In cross-examination he said:
I was talking to them. They couldn’t understand my English and I couldn’t understand their English, and they said they would call back, but they didn’t.
The documentary evidence contained in the bundle of relevant documents tends to contradict the version of events given in the applicant’s evidence. At RD 94 a file note of the applicant’s telephone call to the Tribunal on 9 December 2009 is reproduced. That file note records the conversation in terms of the following summary:
The Review applicant rang to advise that he was not coming to the Tribunal today as he had a fever. I noted that a 424A response was due today. I asked the applicant if he had received the Tribunal’s letter. He said yes. I asked him if he had read it and responded to the letter. He said that his English was not good. I asked if he needed an interpreter. He said yes he needed a Hindi interpreter. I advised that the Tribunal would get an interpreter and return his call.
Significantly, the applicant agreed in cross-examination that he had said to the Tribunal in the telephone call that he was sick with fever and he recalled his belief that he had been meant to attend the Tribunal that day.
It is to be observed that the file note says nothing about the applicant wanting to submit a statement and seeking further time on that account. Rather, it records his misunderstanding that the Tribunal had, by the s.424A notice, required his attendance at the Tribunal on 9 December 2009. Further, although a migration agent is referred to in the applicant’s protection visa application, that person was not referred to in the application to the Tribunal and no reference is made to this person in the file note of the conversation on 9 December 2009. Moreover, although the applicant says that the Tribunal never returned his call, its file note reproduced at RD 93 records that in the hours after the applicant’s call to the Tribunal, the Tribunal endeavoured to telephone him twice but on both occasions the call went to voicemail. That file note records:
Phoned review applicant twice re the previous case note & the applicants mobile number went straight to message bank.
I left my number which will be sent to the applicant via an SMS.
The parties agree that there was no second conversation between the applicant and the Tribunal relevant to his call on 9 December 2009. Importantly, the applicant’s evidence was that he did not telephone the Tribunal a second time. Other than saying that he was waiting for the Tribunal to call he gave no reason for not having pursued the matter. It is difficult to accept that a person who feared persecution, and faced the risk of being returned to the country where that persecution would occur, would take no further action in the circumstances described by the applicant.
Notwithstanding the possibility arising out of the applicant’s evidence that in the telephone conversation on 9 December 2009 he made a request for further time to respond to the s.424A notice which was not understood, I am satisfied that the Tribunal officer to whom he spoke did understand what he said. Notwithstanding the applicant’s request for an interpreter, the note of that relatively simple conversation contains no suggestion of any difficulties in mutual comprehension, at least as far as that conversation went, and there is no reason to think that any such difficulty would not have been recorded. Although the applicant may very well have wished to submit a statement to the Tribunal responsive to its s.424A notice, the first file note of 9 December 2009, which I accept is accurate, reveals that he never raised that matter with the Tribunal when he telephoned it. I do not accept that the applicant said to the Tribunal on 9 December 2009 that he wanted more time, presumably to respond to the s.424A notice. Further, he never pursued the issue by following up his call of 9 December 2009. As I find that a request for more time was never made to the Tribunal, whether in the applicant’s telephone call of 9 December 2009 or subsequently, no error is disclosed by reason that the Tribunal did not afford him such additional time.
Ground 2
The second ground of the application also contains more than one element. The first of these is that the Tribunal failed to consider documents which the applicant submitted; the second is that the Tribunal failed to require, pursuant to s.427(1)(d) of the Act, the secretary of the Minister’s department to undertake an investigation or medical examination and to report to the Tribunal.
The documents which the applicant submitted in support of his claim for a protection visa were a completed application form submitted to the department, a statutory declaration, copies of pages from his passport and copies of various identity cards. The written statement attached to the applicant’s application was quoted in the Tribunal’s decision record. Other than these documents, the evidence does not suggest that the applicant submitted anything in writing to the Tribunal other than the handwritten notes he gave to the Tribunal at its request identifying his addresses in Gurgaon and Faridabad. The applicant did not adduce any evidence in these proceedings which would suggest that he did, in fact, submit additional documents to the Tribunal which, in the words of the application in these proceedings, “substantiate [his] claims for a protection visa”. Thus this element of the allegation fails on the facts.
As to the second element of the allegation, the evidence before the Court does not suggest that the applicant requested the Tribunal to exercise its s.427(1)(d) discretion to require the secretary of the Minister’s department to arrange for the making of any investigations or medical examinations. Nor does the evidence suggest that there was any other reason why the Tribunal should have considered exercising that discretion on its own motion. Importantly, there is no reason to conclude that by not exercising the discretion, the Tribunal had in some way failed to conduct a proper review and to have constructively failed to exercise its jurisdiction as a result. In such circumstances, the second element of the second allegation made in the application discloses no jurisdictional error.
Ground 3
Section 424(1) provides:
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
Section 424(1) gives the Tribunal power to make enquiries but imposes no obligation on the Tribunal to exercise that power. While it may be that a failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome of the review to constitute a failure to review and thus amount to jurisdictional error: Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at 1129 [25], such circumstances do not exist in this case. Nothing advanced by the applicant suggests that anything he put to the Tribunal, or anything arising out of the claims he made during the course of the visa application process and its subsequent review, indicated an obvious area of necessary inquiry which it was necessary for the Tribunal to pursue. For these reasons, and also for the reasons given earlier in relation to the second element of the second ground of the application, this ground discloses no jurisdictional error on the part of the Tribunal.
Interpreter services at Tribunal hearing
The applicant’s evidence was that the interpreter at the Tribunal hearing failed to translate everything that he said. He said his English language skills were sufficient for him to be able to tell that the interpreter had failed to translate everything he had said. He said that he challenged the interpreter on one occasion, in Hindi, telling him to “tell them the whole thing”. Importantly, the only aspect of his evidence to the Tribunal which the applicant was able to identify to the Court as having been poorly interpreted concerned the events in Gurgaon. At para.43 of its decision record the Tribunal sets out a reasonably detailed summary of the evidence which the applicant gave concerning those events. However, the applicant has not identified in what way that summary is deficient or inaccurate. In particular, given the applicant’s evidence that the interpreter had failed to interpret everything he had said, it is significant that the applicant gave no evidence of what was omitted from the translation or from the Tribunal’s summary of his evidence.
Although the applicant might believe that everything he said at the Tribunal hearing was not translated, he has not demonstrated that this belief is well-founded. This is particularly so given that no transcript of the Tribunal hearing, or any evidence from an expert interpreter concerning the accuracy and completeness of the translations at the Tribunal hearing, have been placed before the Court by the applicant. This is notwithstanding that on 1 March 2010 the parties were directed that any further evidence to be relied upon in these proceedings was to be presented by way of affidavit and that any evidence of a Tribunal hearing was to be presented as a transcript verified by affidavit. Had the applicant observed that direction then his evidence might have been strengthened sufficiently that he could have made out his allegation. However, for the reasons given above at [29], he has failed to discharge his burden of proof on this issue.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 3 June 2010