SZOLR v Minister for Immigration

[2010] FMCA 698

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOLR v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 698

MIGRATION – Review of RRT decision – applicant a Buddhist of Chinese extraction and a citizen of Indonesia – where Tribunal did not accept that the applicant faced a real chance of persecution on account of his homosexuality, ethnicity or religion – whether Tribunal misunderstood an aspect of the applicant’s claim or made incorrect findings of fact and whether errors within jurisdiction – whether Tribunal obliged to make further enquiries of advice provided to it by DFAT.

Migration Act 1958 (Cth) s.424

Minister for Immigration v SZIAI (2009) 259 ALR 429

Applicant: SZOLR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 1275 of 2010

Judgment of: Raphael FM

Hearing date: 6 September 2010

Date of last submission: 6 September 2010

Delivered at: Sydney

Delivered on: 6 September 2010

REPRESENTATION

For the Applicant: In person

Counsel for the Respondents: Mr H Bevan

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1275 of 2010

SZOLR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant, who is a Buddhist of Chinese extraction and a citizen of Indonesia, arrived in Australia as a student in November 2007.  On 19 August 2009 he applied for a protection (Class XA) visa.  On 19 January 2010 a delegate of the Minister refused to grant him a protection visa and he sought review of that decision from the Refugee Review Tribunal.  He attended a hearing before the Tribunal which, on 18 May 2010, determined to affirm the decision under review.

2. The ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was that he belonged to one of severally defined social groups which arose out of his claimed homosexuality, ethnic and philosophical make up.  The Tribunal accepted that the applicant was homosexual, that he was of Chinese ethnicity, and that he was a Buddhist.  Whilst the applicant indicated to the Tribunal that prior to his leaving Indonesia he had difficulties with his family, which had come to the realisation that he was a practicing homosexual, in particular, his father had reacted badly to this knowledge and had told the son that he did not wish to see him again, he was not making claims of detailed past persecution. His concern was with what would happen should he return to Indonesia and continue as an active and open homosexual man.  He believed that this would cause him serious disadvantage.

3. He said that he knew that if he lived openly and freely as a homosexual, this would place his safety and liberty in great danger.  He said that Indonesian culture and society did not accept homosexuals.  He repeated that he risked being harmed by the police and he said that there was a lot of corruption within the Indonesian police, and they would not respect him or treat him like a human being because of his sexual orientation.  The applicant said he would face discrimination in Indonesia because he was homosexual and that he would have difficulty in finding employment for that reason.  He said that he would have to hide his homosexuality from employers [17] [CB 282]. The applicant also argued that the fact that he was of Chinese ethnicity would heighten the risks set out above.

4. The applicant produced to the Tribunal a considerable body of independent country information and the Tribunal produced its own documentation. This information is found in the court book and supplementary court book that have been provided.  There are approximately 100 pages of information in the court book and 239 pages in the supplementary court book.  The Tribunal deals in its findings and reasons and in the claims and evidence section of its decision record with the discussions between itself and the applicant and the applicant’s advisors concerning this independent country information.  In the findings and reason, the Tribunal explains why it prefers certain information and, upon the basis of that preferred information, comes to the conclusion that:

   “…I do not accept that, if the applicant returns to Jakarta now or in the reasonably foreseeable future, there is a real chance that he will be killed, arrested, harassed or otherwise persecuted by the police or other government agents, or that he will be attacked by vigilantes or extremist Muslim groups, or harmed by his own family, or that he will be otherwise harassed, bullied or discriminated against in a way or to an extent amounting to persecution involving “serious harm” as required by paragraph 91R(1)(b) of the Migration Act, for reasons of his sexual orientation, his Chinese ethnicity, or his religion (non-Muslim) or any combination of those reasons.” [115] [CB 305] 

5. On 10 June 2010, the applicant filed an application with this Court seeking review of the Tribunal’s decision.  An amended application was filed on 6 August.  In the amended application the applicant claimed that:

   “The RRT has fallen into jurisdictional error failing to comply in particular with section 412, 414 and 424 of the Migration Act.

   Particulars:  “I noted that the US State Department had said that the anti-pornography law passed in 2008 banned gay and lesbian sex.” (number 43 on RRT decision).”

6. The applicant provided the Court with a statement of his submissions, of which there were 10 paragraphs.  The first two paragraphs relate to a claimed error on the part of the Tribunal in what the applicant said about attacks upon him.  In the Tribunal’s claims and evidence section at [39] [CB 287], the Tribunal reports on a statement by the applicant concerning some behaviour of what reads as if it came from persons of Indonesian ethnicity within Australia.  The applicant says that what he in fact said to the Tribunal was that this behaviour came from people in Indonesia and also from similar people within Australia.  Accepting for the purposes of this hearing that the applicant is correct that a mistake was made, it is not a matter upon which the Tribunal commented in its findings and reasons and, therefore, does not appear to have any relevance to the decision.  It seems to me that if a mistake was made, then it was one that the Tribunal was entitled to make within jurisdiction.

7. Paragraphs 3and 4 of the submissions refers to some evidence cited by the Tribunal at [43] [CB 288] concerning the US State Department report.  The applicant claims that the Tribunal rejected that evidence, but that the Tribunal should not have done so without seeking advice in writing from the Department of Foreign Affairs and Trade.  The applicant was suggesting that the Tribunal was required to make inquiries or obtain further information.  But the High Court has now made it clear that to the extent that any obligation to make inquires still exists, it is only a requirement to obtain information about a critical fact where that information is easily ascertainable:  Minister for Immigration v SZIAI (2009) 259 ALR 429.

8. In s.424 of the Migration Act 1958, the Tribunal is given a discretion to obtain further information and, if it does do so, it must use it, but that is not a requirement.  I am unable to see that the Tribunal fell into jurisdictional error in the manner in which it treated this piece of information.

9. Paragraphs 5 and 6 of the applicant’s submission refers again to a discussion between the applicant and the Tribunal.  It relates to what is described as an ILGA conference in Surabaya.  There was a small dispute between the Tribunal and the applicant as to whether the conference was an ILGA conference or some other conference.  The Tribunal actively deals with the cancellation of this conference at [113-114] [CB 305].  It addresses the existence of the conference and its cancellation. Once again, I am of the view that if any small error was made in relation to this piece of evidence, it was an error made within jurisdiction.

10. Paragraphs 7and 8 of the submissions makes reference to evidence put before the Tribunal at [44] [CB 288] that Aceh was the only province in Indonesia that was allowed to adopt Sharia law.  The applicant points out that, in fact, Sharia law is utilised in the city of Palembang in South Sumatra, which has introduced jail time and hefty fines for same sex relationships.  Again, the applicant’s criticism of the Tribunal would, if it had been made by a legal representative on his behalf, have been considered to be looking at the decision with an eye attuned to error, whereas the duty of a Court in considering whether or not a particular decision has been infected with jurisdictional error is to look at the document as a whole and to consider the effect of any minor discrepancy upon the decision rather than in isolation.

11. The final two paragraphs, 9 and 10, make reference to the fact that a nightclub which the Tribunal referred to at [111] [CB 304] as being one of a number of factors that indicated a picture of increasing openness concerning Indonesia’s attitude towards homosexuality had in fact been closed in January 2010.  The Tribunal, in making its statement about the nightclub relied on independent country information that was before it at the time. I note that the applicant and his advisors, who were very well informed about the status of gay rights within Indonesia, did not at the time refute the existence of this nightclub.  It was, after all, their responsibility to satisfy the Tribunal.

12. To my mind, the use of the nightclub was just one example among many of areas in which the Tribunal considered that the Indonesian attitude towards gay rights had improved.  This general finding was one that was available to the Tribunal from the evidence that it had produced and which had been produced by the applicant.  And so the mistake was once again within jurisdiction.  The applicant has not suggested what the reason was for the nightclub closing down. There are many which could be thought of that have nothing to do with the clientele to which the nightclub is directed.

13. A reading of the Tribunal’s decision record will reveal that this is a decision made on the basis of independent country information that the Tribunal has properly compared and which it has quite adequately demonstrated, leads to the conclusions that it has made.  The fact that the independent country information might lead another Tribunal to come to a different conclusion is not to the point.  In these circumstances, I am unable to say that the Tribunal fell into jurisdictional error in the manner in which it reached its conclusions, and the application must be dismissed.  The applicant shall pay the first respondent’s costs which I assess in the sum of $5,000.00.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate: 

Date:  10 September 2010