SZOTG v Minister for Immigration
[2011] FMCA 148
•3 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOTG v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 148 |
| MIGRATION – RRT decision – Indian claiming persecution for homosexuality – claims disbelieved by Tribunal – dubious and unpersuasive reasoning by Tribunal – Wednesbury unreasonableness not established – bias not established – no other jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.420, 424, 424AA, 424A, 424A(1), 425, 426, 430 |
| Minister for Immigration & Citizenship v SZGUR [2011] HCA 1, (2011) 273 ALR 22 Minister for Immigration & Citizenship v SZIAI [2009] HCA 39, (2009) 259 ALR 429 Minister for Immigration & Citizenship v SZJSS [2010] HCA 48, (2010) 273 ALR 122 Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51, (2010) 115 ALD 303 Minister for Immigration & Citizenship v SZOCT [2010] FCAFC 159 NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328, (2004) 214 ALR 264 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, (2001) 179 ALR 425 |
| Applicant: | SZOTG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2394 of 2010 |
| Judgment of: | Smith FM |
| Hearing date: | 3 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 3 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr R Baird |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2394 of 2010
| SZOTG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant arrived in Australia in February 2010, on a transit visa after a visit to New Zealand. During his transit he was permitted to lodge a protection visa application on 16 February 2010. The application referred to incidents in the applicant’s life in his country of nationality, India, showing that he had in the past suffered harm as a homosexual person, and why he feared future persecution if he continued to live in India. His claimed history was subsequently detailed in a closely typed 10 page narration which was given to the Tribunal, and it was also provided orally in interviews with the delegate and Tribunal. The Tribunal’s reasons contain a short summary of his claims, which is sufficient for present purposes:
76.The Applicant’s claimed fear of harm in India rests entirely on his claim that his sexual orientation is exclusively toward other men. He claims to have had four homosexual relationships in India, the latest with a person named [his partner’s name] whom he met in [a town] in mid‑2001 and who remains his partner. He claims he and [his partner] suffered beatings and other forms of harm from members of the public on a number of occasions when the nature of their relationship was discovered. He claims to have sought the protection of the police including through a meeting with the Deputy Commissioner of Police in Kolkata. He claims these approaches were fruitless and that, instead of protecting him and [his partner], the police verbally abused them and treated them as less than human beings.
I do not propose to repeat the details of the applicant’s life which he presented to the Tribunal.
The delegate made a decision refusing the protection visa application on 2 June 2010. The delegate accepted the truth of the history that was put forward, and that the applicant had a homosexual partner in India, and concluded that he “has suffered in the past, abuse, discrimination and some low level violence, as a result of his sexuality”. However, the delegate concluded that “while the applicant may face a degree of discrimination upon return, he will not face harm amounting to persecution …”. The delegate also thought that he could live in cities such as New Delhi, Kolkata, Chennai and Bangalore, and thereby avoid being persecuted by his own family and by individuals or organisations opposed to homosexuality.
On appeal, the applicant presented his detailed history, which included encountering adverse incidents while living with his partner in New Delhi, and he also explained why living in Mumbai was an unattractive prospect. The applicant explained how he had travelled to New Zealand, where his nephew lived, in the expectation that his nephew would sponsor his stay in New Zealand, and that he would apply for protection there. However, a hostile response by his nephew’s wife had the result that he “abandoned my decision to stay there and also decided to go to Australia and seek protection there”. The applicant’s detailed written statement and the Tribunal’s description of his oral evidence to the delegate and to the Tribunal appears to provide a prima facie convincing history which was consistently presented.
The applicant’s written statement concluded:
I am sure my life would be endangered if I go back to India now. My beloved boyfriend [his name] and I will face the same treatment as before and definitely I will have to face the following miseries:
1.[My boyfriend] and I will not be able to live together under the same roof without fear of harm. If we stay separately, there could be no problem. [The way we were suggested by the Deputy Police Commissioner of Kolkata]. As I am in Sydney now [my boyfriend] is in Kolkata. I guess people in Kolkata would take any interest on him or may not recognize him as a homosexual or they would not bother him.
2.My future in my country will be totally devastated if my name is publicized in the media as a homosexual or an activist of this particular social group. [My boyfriend] and my family’s dignity and honor will also be destroyed. I do not want any of our family members should suffer due to our acts.
3.I will not get a house to rent in anywhere of India. Initially the house owners may not understand our relationship, but they will ask us to vacate, as it happened in the past, whenever they will know and discover our relationship. They will throw our belongings out of our house and will insult us in public. Wherever of India we go, we face the repeat of same consequences. Hence internal relocation is not a viable option for us.
4.Hindu fundamentalists of India would attack us anywhere and will make our life terrible. We will not get any justice if [my boyfriend] and I suffer any attack or be insulted physically and psychologically. Because, we are regarded as enemies of Hinduism and many people had to leave the country like us as they spoke in favour of homosexuals although India is a so‑called big democratic country.
5.I will not be able to get an employment or can not run any independent business in any place of India and nobody would like to deal with my business if my sexual orientation is disclosed to them. I will be subjected to intimidation, harassment and discrimination on a regular basis and I will not be able to run even a corner shop unharmed anywhere in India.
This is it and this was my life back in India. Please note I am not here to make my fortune or for a ‘better life’ rather I am here for a ‘safer life’ where a homosexual can live without fear and does not have to look over his shoulder every time he walks in the street. I simply want freedom and peace of mind like any homosexuals enjoys in this country. Thank you.
The applicant attempted to corroborate his claimed history by submitting four postcards from his partner showing scenes in Kolkata and affectionate messages in English, which he said he had received while living in Australia. He also submitted evidence of a remittance of money back to his partner. Attached to a second submission, he submitted a statutory declaration by an Indian resident of Australia. This person, Mr B, deposed to having some personal acquaintance with the applicant and his partner, and to have additional knowledge from his father who lived in Kolkata. He confirmed a belief that the applicant was homosexual, and that they “had many problems back in India”. The deponent did not claim to have any direct knowledge of this.
The applicant was questioned about his claims by the Tribunal at a hearing he attended on 2 September 2010. In the course of the hearing the Tribunal put various matters to him, which ultimately provided its reasons for not being satisfied as to the applicant’s claims in their totality, starting with his sexual identity as a homosexual.
The Tribunal made a decision affirming the delegate’s decision on 5 October 2010. In its statement of reasons, the Tribunal gave eight reasons for its adverse conclusion. It said (numbering its dot points):
78.However, even giving full weight to these considerations I am not satisfied that the Applicant’s evidence at the Tribunal hearing supports his claims that he is homosexual in his orientation or that he fears harm in India for such a reason. For the following reasons I am not satisfied as to the credibility of this basic aspect of his account:
1.The Applicant’s evidence at the hearing about his first claimed homosexual relationship was inconsistent and confused. This encounter is said to have involved his second cousin, a boy named H, whom he met during extended wedding celebrations at the home of an uncle. He and H engaged in a range of erotic activities, including sexual intercourse when they spent the nights together. He claims that adults at the wedding were aware that this relationship was not normal and, in fact, became angry and swore at him for this reason. He was not able to offer any satisfactory explanation as to why, at the age of fifteen, he would have been allowed by his parents or other adults to continue with this conduct over a period of some days if it was so obviously suspect. This is the more difficult to understand given his claim that his family was of a fundamentalist Hindu persuasion and abhored homosexuality as sinful. I am not satisfied that his claims about this aspect of the relationship are plausible and I find this casts strong doubt over his account of the relationship as a whole.
2.Given the importance which [his partner] is said to have for the Applicant, as the person to whom he is committed to the exclusion of all others and with whom he wishes to spend the rest of his life, it could reasonably be expected that he would have a clear recollection as to how it was that the relationship began. It would also be reasonable to expect him to be able to explain their first meetings in some circumstantial detail. This was not the case at the hearing. His evidence when asked about these matters was vague and hesitant and gave some impression of evasiveness. He could not remember when it was that they first met and could not state with any certainty why it was that [his partner] had been present in the cyber café where the first meeting is said to have occurred. Asked about the first time they had gone out together he offered only the information that they had gone to a park. These responses gave no impression of first‑hand experience and I am not satisfied that they are consistent with his claim to have had a relationship with such a person.
3.In this context I note the Applicant’s reluctance to provide the telephone number of [his partner] in India. He claimed that he did not wish to do so because [his partner] was a shy person and (by inference) that he would be embarrassed by having to discuss his sexuality with the Tribunal over the telephone. I accept that, in theory at least, a person in the position claimed by the Applicant might be motivated to protect his partner in this way. This is, however, difficult to understand in the particular case of [his partner]. [His partner] is said to be deeply in love with the Applicant and fully committed to him, to have been prepared to risk death or other serious harm in India by living with him in a homosexual relationship and to wish to live the rest of his life with him. It is hard to understand why such a person would need to be protected from simple questions over the telephone about the nature of the claimed relationship as part of process which was so important that it could lead to him and his partner gaining freedom from persecution. The refusal is even harder to understand given the Applicant’s further claim that [his partner] is, in fact, in the process of attempting to travel to Italy or Canada for the purpose of seeking protection in those countries. Such a plan suggests, at the least, that [his partner] is not a person who would be abashed at the prospect of explaining his sexual orientation and his relationship with the Applicant if this was necessary to obtain protection. Further, according to the Applicant’s claims, [his partner] was prepared to involve himself in just these revelations when he and the Applicant appeared before the Minister for Railways and, subsequently, the Deputy Police Commissioner in Kolkata. The information before the Tribunal does not demonstrate that the Applicant’s reluctance was caused by apprehension that [his partner’s] responses to questions put to him by the Tribunal might undermine his own claims. However, I regard his explanations for his refusal to provide the telephone number as implausible and I find that this casts further doubt over the credibility of his claim to be in a homosexual relationship with this person.
4.The Applicant gave confused and vague explanations as to why there had been no attempt by [his partner] to join him in Australia, even on the basis of a brief visit using a tourist visa. He claimed variously that [his partner] did not have an Indian passport or that there had been delays in his obtaining one, that [his partner] had been trying to go to Canada or Italy, and that he was not settled in Australia and could not ask [his partner] to stay with him. He suggested as well that [his partner] had mistaken ideas about Australia and regarded it as a racist country. Having considered these responses I am not satisfied they are plausible or that there is any reason why [his partner], said to be the committed partner of the Applicant, would not have made any attempt to come with him to Australia or to join him once he had arrived here. I find that this casts strong doubt over the Applicant’s claims to be in such a homosexual relationship.
5.Further doubts about the Applicant’s claims are raised by the four post cards said to have been sent to him by [his partner]. As discussed with him at the hearing, I find it anomalous that such a person would write to him in English, a language of which he knows very little and which they did not use for personal communication when they were allegedly together in India. Although it is not entirely implausible that [his partner] would choose to send picture postcards showing scenes of Kolkata to someone who was a native of that city, or that he would confine himself to four or five words of text each time, I find that these aspects add to an impression that the post cards have been prepared for the purpose of supporting the Applicant’s case. Having considered these aspects I am not satisfied that any weight can be placed on them as evidence of a homosexual relationship between [his partner] and the Applicant. In this context I note that the Applicant has also submitted email messages said to have been sent to him by [his partner]. However, as no English translations have been provided I am unable to place any weight on these documents.
6.The Applicant claims to have sent the sum of A$1000 to [his partner] in June 2010 and, on the basis of the Western Union documents he has submitted to the Tribunal, I accept that he did so. When he was asked about this at the hearing he explained that the money was required to allow [his partner] to apply for visas to Italy and Canada where he intended to apply for protection. He went on to suggest that he and [his partner] had an arrangement under which they would seek protection in a range of countries, so that one would join the other if he was successful. Such a scheme has not previously been mentioned by him. Having considered the claim I am not satisfied it is plausible or consistent with the Applicant’s earlier claim that he intended to settle down in Australia with [his partner]. Nor am I satisfied that his action in remitting money to [his partner] is reliable evidence of a homosexual relationship between them.
7.The Applicant claims that he did not seek protection in New Zealand, as he had planned to do, because this precipitated a domestic crisis in his cousin’s household with the threat of divorce by his wife. For the sake of his cousin’s marriage, and their young child, he decided to follow the fall‑back option of seeking protection in Australia using his transit visa to do so. An application for an Australian tourist visa, lodged while he was in Auckland, was unsuccessful. Having considered this claim I am not satisfied it is plausible. If he had, in fact, left India for New Zealand with the intention to seek protection there, this could reasonably be expected to have been a matter of primary importance for him. Adverse reactions by his cousin’s wife cannot reasonably be seen as something which would have deterred him from pursuing his aims in these circumstances. Moreover, I am not satisfied there is any plausible reason why his cousin’s wife would adopt such an extreme position; even if his cousin had sponsored his travel to New Zealand, an application for protection cannot plausibly have placed his job in jeopardy. Nor is there any obvious reason why the Applicant could not have removed himself entirely from his cousin’s family in New Zealand so that his cousin’s wife would never need to see him again. As to his claim that a fall‑back option was open to him by travelling to Australia, he was already in a place where he was safe and he could have had no reason for confidence that he would be successful in seeking protection in Australia. Indeed, he claims to have been told while he was in New Zealand that it was not possible to claim protection in Australia as the holder of a transit visa. I am not satisfied that the Applicant has provided a convincing explanation for his failure to seek protection in New Zealand in the month he was there and I find that this casts further doubt on his claim to fear harm in India as a homosexual.
8.Finally, the Applicant’s responses at the hearing revealed an almost complete lack of interest in conditions for homosexuals in Australia. This is not simply a case of not visiting homosexual venues or refraining from homosexual contacts. If he was, as he claims, a homosexual who was completely faithful to his partner in India in conformity with what he asserts to be the elevated standards of Indian culture, these things might be understandable. However, he has been in Australia since February 2010 and, beyond a vague suggestion that Australia is good to gays, he remains in ignorance of the details of the practical conditions under which homosexuals live their lives here. Despite his claimed acute concerns about discriminatory aspects of Indian law he knows nothing about the law as it might affect homosexuals in Australia, including on the issue of gay marriage. He has never sought to inform himself about these things. He has not discussed them with members of the gay and lesbian community in Australia despite the prime importance which they would reasonably be expected to have for him and his alleged partner if he were to remain in Australia. I am not satisfied that such a lack of interest is at all consistent with the situation of a person who has fled his country in fear of persecution because of its intolerance and prejudice against his sexual orientation and who wants only to be able to settle down in an openly homosexual relationship with his partner.
I have not found the Tribunal’s reasoning in these points to be compelling, for the reasons which follow. The persuasiveness overall of the Tribunal’s statement of reasons is not assisted by the absence of any discussion of the elements in the evidence before the Tribunal which pointed in favour of acceptance of the applicant’s claimed history. However, I accept that s.430 of the Migration Act 1958 (Cth) required the Tribunal to provide the reasons for finding adversely against the applicant, and not the reasons by which it might have found favourably on the applicant’s claims. The Tribunal’s adverse reasoning must be assessed for jurisdictional error, and it is irrelevant that other persons might have accepted the applicant’s evidence.
The applicant was unrepresented before me, and I explored with the Minister’s representatives various difficulties with the Tribunal’s reasoning in each of its eight points, in the course of considering whether separately or cumulatively they revealed defects of logic, the absence of a foundation in evidence, or such unreasonableness, which might provide jurisdictional error under principles recently considered by the High Court in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 and Minister for Immigration & Citizenship v SZJSS [2010] HCA 48, (2010) 273 ALR 122 at [32]‑[37], and by the Full Court in Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362 and Minister for Immigration & Citizenship v SZOCT [2010] FCAFC 159. It is appropriate for this purpose to examine each of the Tribunal’s points closely, and to refer to the evidence upon which its reasoning was based.
The Tribunal’s first point. The applicant’s evidence about events at a wedding at which, at the age of 15, he met a cousin with whom he had homosexual experiences, did not claim that the two had been caught in flagrante delicto by anyone. He told the Tribunal:
36.The Applicant confirmed his claim that his sexual orientation was exclusively toward other men. His first homosexual encounter was when he was in Year 9. This was with a person named H and occurred during an extended wedding ceremony in the home of an uncle. He confirmed his claim that in some way members of the family knew what was happening. He and H tried to keep their activity discreet but unusual attitudes were easily detected by older people. Asked how these things were detected he said that when he was with H older people knew when things were normal and when they were different. There were many people at the ceremony but he had been staying with H and they noticed something over the two or three days of the ceremony.
37.I asked the Applicant why, if adults had noticed something abnormal about his relationship with H, they would not have separated them. He said he and H went their different ways after the wedding. Since then there had been no contact. I asked why, during the course of the wedding, family members would have allowed them to continue in what appeared to be an abnormal relationship. He said they were ‘doing it’ in secret and not in front of the adults. Everyone was busy with the wedding and they tried their best. Whenever he had the opportunity he would kiss H and they would have sex at night. Noting that there were inconsistencies in what he was claiming I asked, again, why adults would have allowed him to continue to associate with H over the course of the wedding if they had believed the relationship to be abnormal. He repeated that he and H tried their best to act secretly but they were somehow noticed. The adults were unable to find what was going on. They did not know what was happening but thought there was something ‘fishy’ because they were continually together. I asked why, if this were the case, they would not have been forbidden to go near each other. He said everyone was busy and they could not monitor all his activities. Asked if the adults had done nothing to stop it he said they swore at him but, as this was his first experience, he was ‘really crazy’ to get at H.
Although the Tribunal referred to the applicant giving ‘inconsistent evidence’, it is difficult to discern what the Tribunal might have regarded as inconsistent, in the sense of internally inconsistent. Rather, the Tribunal appears to have concluded that there was inconsistency between the applicant’s evidence that adults did not intervene, and the Tribunal’s opinion that this was unlikely in the circumstances described by the applicant. Its reasoning was that the applicant’s evidence that adults did not intervene was not “plausible”. It then concluded that the implausibility “casts strong doubt over his account of the relationship as a whole”.
The Tribunal’s assumptions about how adults at an Indian wedding would have responded to provocative behaviour by a pair of 15 year old boys does not appear to be based on any external evidence, but based on the Tribunal’s use of its own experience of human behaviour. Decision‑makers on facts are entitled to draw upon their own experiences of human behaviour when assessing evidence, but need to do so cautiously, particularly where the evidence concerns behaviour of persons in a foreign cultural environment.
I have doubts whether the evidence before the Tribunal allowed it to regard the applicant’s evidence as to the adults’ responses to observing him kissing his cousin in the course of a protracted Indian wedding as containing implausibility. However, ultimately I am not persuaded that this might not be a matter upon which reasonable minds might differ.
The Tribunal’s second point. I was concerned that the Tribunal seemed to expect a degree of detailed memory of a first encounter between persons who later formed a long‑lasting personal relationship, which general human experience does not support. The Tribunal’s questioning of the applicant about this was:
40.Asked about his relationship with [his partner] the Applicant said he first met him in [a town] in 2001 when he was employed by the firm [the firm’s name]. He could not remember exactly when the first meeting took place. Asked where they met he said he had been chatting in a cyber café where people dropped off faulty computers for repair. He met [his partner] when he came there to repair them. Asked if [his partner] worked in the cyber café he said he did not – he did hardware maintenance on a contract basis when he received a phone call. Asked why [his partner] would have been in the cyber café he said there were many computers there and ‘maybe’ he was there to fix one of them. At that time he had not known why [his partner] was there. I asked if [his partner] was perhaps seated in front of a dismantled computer. He said he did not know; perhaps there was a computer which had something wrong inside. He did not know what was going on but he met [his partner] when he was waiting there.
41.Asked about the occasion on which they first went out together the Applicant said he liked [his partner] very much and telephoned him after work to chat. After this they met sometimes. Asked again about the first occasion, apart from the meeting in the cyber café, he said they met on the weekend. Asked where this was he said it was in [the town]. Asked where in [the town] it was he said it was in [a park] – he could remember this. Asked what sort of things [his partner] liked to do he said he liked to play games on the internet and write stories. This was only a hobby and the stories were not published. Asked what he had given [his partner] for his last birthday he said he took him to a restaurant. There was no present. Asked what [his partner] had given him for his last birthday he said he took him to a hotel. Indian culture did not focus on exchanging gifts.
Reading the evidence given by the applicant, it appears to me that he has shown no more than that he could not remember the exact date of meeting his friend in the cyber café for the first time, that he could not state the reasons why the friend had attended the café on that occasion, that he had no perfect memory of seeing his friend seated in front of a computer, and that he could not recall precisely where they were on their next meeting.
In my opinion it borders on unreasonable for a decision‑maker to expect a person to have memories of these things as ‘clear recollections’, and then to conclude that the claimed relationship was not based on “first‑hand experience”. If general knowledge is consulted, it might tend to suggest that some members of long‑term relationships remember precise details of first encounters, but that others do not.
However, I am not persuaded that the Tribunal’s reliance on this point rises to the level of capriciousness or manifest unreasonableness, which the above authorities require before jurisdictional error can be located in a tribunal’s assessment of evidence.
The Tribunal’s third point. I reach a similar assessment in relation to this reasoning. The applicant had explained his reluctance to give the Tribunal his friend’s telephone number as follows:
43.Asked on which number he would call [his partner] the Applicant said it was his personal mobile telephone number. Asked for this number he said [his partner] was very shy about these issues. His phone number was a personal thing. Asked why it was personal for him to provide [his partner’s] telephone number he asked if anyone would expel him for doing so. I assured him nobody would do so. He asked if the number would ‘leak’ from the hearing room. I assured him that everything he said was treated in confidence. He began an account of [his partner’s] perception that Australia was a racist country, based on stories he had seen on the internet. He had tried to correct these mistaken views by saying that Australians were very friendly and cooperative but [his partner] remained very scared. I noted that the postcards from [his partner] which he had submitted contained such phrases as ‘Take me away with you [SZOTG] please’ and ‘[SZOTG] when will we meet again?’ I put to him that these did not sound like the things a man would say if he was afraid of coming to Australia. He said [his partner] was timid and had a wrong perception.
It may have been open to the Tribunal to infer that, in part, the applicant was suggesting that his friend might be embarrassed by discussing his sexuality on the telephone with a stranger ringing from Australia. However, such a concern does not to me appear unreasonable or suggestive of falsity of the applicant’s entire claim to be a homosexual. The Tribunal appears also to have overlooked that his friend had a poor perception of Australia, for reasons that may have been understandable in the context of recent events in Australia. I had difficulty seeing why the Tribunal found it “hard to understand” why the applicant was reluctant to give his friend’s telephone number to the Tribunal.
However, on balance, I have concluded that the minds of Tribunal members might reasonably differ on whether this part of the applicant’s evidence to the Tribunal revealed ‘implausibility’ casting “further doubt over the credibility of his claim to be in a homosexual relationship with this person”.
The Tribunal’s fourth point is that it was not satisfied that the applicant provided ‘plausible reason’ for his partner not having joined him in Australia during the pendency of the protection visa proceedings.
The Tribunal appears to assume that it would have been possible for the friend to obtain a tourist visa in India for that purpose. It does not refer to information upon which it could make that assumption, and it is not an assumption which I would have made. Nor would I have found obviously unsatisfactory or implausible, the explanation of the applicant that his friend wished to wait until the outcome of the protection visa application was known before travelling to Australia. Particularly, where the friend was exploring alternative countries of refuge.
However, I do not have the responsibility of making findings of fact in relation to this issue, and I am not persuaded that reasonable minds sitting as Tribunal members might not have differed from my own assessment of this evidence.
The Tribunal’s fifth point. The Tribunal did not expressly say that its concern that the four postcards had English messages cast doubt on the truth of the applicant’s claims. However, the presence of this point in its list of points leading to the ultimate adverse conclusion, suggests that it was treated by the Tribunal as probative of the falseness of the claims.
I consider that it was open to the Tribunal to conclude that the sending of postcards with English messages on them during the pendency of the matter suggested that they had been “prepared for the purpose of supporting the Applicant’s case”. However, the fact that such support for his case had been posted from India did not necessarily allow a conclusion that the case itself was false. The Tribunal appears to have appreciated that, but yet kept this point in its list of eight reasons for disbelieving the applicant’s claimed sexuality.
The Tribunal’s sixth point is very difficult to understand. In effect, the applicant said his friend intended to explore avenues for seeking protection in Italy and Canada, simultaneously with the applicant’s attempts to gain protection in Australia. For myself, I can see no implausibility in partners faced with the situation in India which was described in the evidence making such simultaneous efforts. Nor can I understand how the Tribunal regarded it not as being “plausible or consistent” with the applicant’s own claim to have an intention to settle in Australia with his partner. Manifestly, that intention was highly conditional at the time that it was explained to the Tribunal, since its fulfilment depended upon acceptance of the applicant’s protection visa application.
Although having a rational element to it, this point – as with the other points made by the Tribunal – appears to me able to be given very little weight by a reasonable decision‑maker. However, I am on balance not persuaded that it provides such irrationality as to undermine the whole of the Tribunal’s reasoning.
The Tribunal’s seventh point challenged the applicant’s claims to have been discouraged from seeking protection in New Zealand, by reason of the domestic upheavals to his nephew’s household which would have resulted from being associated with a homosexual Indian relative.
The Tribunal’s statement that “adverse reactions by his cousin’s wife cannot reasonably be seen as something which would have deterred him from pursuing his aims in these circumstances”, discloses a response to the applicant’s evidence which I would not share. However, on balance I consider that some reasonable minds sitting on the Tribunal might have regarded the applicant’s explanations for not pursuing protection in New Zealand as not providing a “convincing explanation”.
The Tribunal’s eighth point compared the applicant’s behaviour in Australia with the Tribunal’s expectations as to how a person with his history of homosexual experience in India might behave. The Tribunal did not explain what were the “practical conditions under which homosexuals live their lives here” which it expected the applicant to have inquired into.
It is not apparent to me that homosexual partners seeking a better life in Australia should be expected to inquire into anything more than the general conditions of life in the Australian community. They, like the rest of the Australian community, are entitled to anticipate conditions of relative freedom from interference in personal lives.
I am also concerned that there are suggestions of stereotyping in the questioning of the applicant by the Tribunal, which seems to underlie its reasoning:
52.The Applicant said he had some occasional work in Australia. Asked whether he had been involved in any homosexual relationship since his arrival he said he had absolutely not done so. There was a great difference between the culture of Australia and the culture of India. In Indian culture if one submitted one’s mind to another person one stuck with them and did not go around with other people. Asked if he had had any form of contact with the gay and lesbian community in Australia he said he had not. Asked if he had spoken to anybody about conditions in Australia for gays he said he could not think of anyone else apart from [his partner] and was not interested in anyone else. What he knew was that the conditions for gays in Australia were good and they were not at risk. Asked if he knew anything about the laws relating to homosexuality in Australia he said he did not have a clear idea about it although he understood there were no problems. Asked if he knew about the laws relating to homosexual marriage he said he did not. Asked if he had ever discussed with a doctor or other qualified person the health aspects of homosexual sexual activity he said he had not – he was shy about discussing his sexual orientation with others.
53.The Applicant said he had never visited gay venues such as bars or night clubs. This was out of the question. He wanted to spend his life with [his partner] and have a family with him. If he did go to such venues it would be with [his partner] when he came to Australia. Asked if he knew about any gay festivals in Sydney he said he had ‘heard but did not partake.’ Asked what he had heard he said it was ‘like a fair’ for gay people. He did not know when it was held or where it was held. I noted that it was well known as the Sydney Mardi Gras, said to be the largest gay and lesbian festival in the world, and that it had taken place the week after he arrived in Australia. He said he had heard but had not participated. I asked whether he had not thought to join the many spectators to this event. He said he was not interested because he wanted to focus on [his partner] all the time.
54.I put to the Applicant that it seemed hard to understand this lack of interest by a person whose claimed sexual identity was exclusively homosexual, who had only had sexual relationships with men, who had been forced to flee his own country because of persecution and intolerance of homosexuality and who had come to Australia in the hope that he could take advantage of the freedoms it offered to homosexuals to live life freely with his lover. While it might be understandable that such a person would avoid another sexual relationship here because he was exclusively committed to his lover, it seemed hard to understand why he would not display any interest in conditions for homosexuals in the country he had chosen, even as to the law relating to homosexual marriage. He repeated that in Indian culture a commitment to another person meant fidelity for life. It did not mean having relationships with a string of other people. If he did so in Australia he would be betraying [his partner]. This was the cultural difference: in India it was fidelity to one person while in Australia people moved from partner to partner. I put to him that this was beside the point; the question was not whether or not he formed a homosexual relationship with another person in Australia but, instead, why it was that he would not have shown any interest in ascertaining for himself the conditions for homosexuals in Australia or what sort of surroundings he and his partner would experience here. He said he had to settle down first – he was not yet established in Australia.
For myself, I find nothing strange in the applicant not having inquired into the laws governing homosexual marriage in Australia or, indeed, the laws governing homosexuality generally, whatever they might be.
However, the matters which were put to the applicant cannot be said to be irrelevant when testing claims of sexual orientation, and ultimately as with all the other points made by the Tribunal, I am not persuaded that they are matters upon which a person responsible for deciding matters of fact could not have given weight to, even if mistaken weight to, as a matter of law.
In its statement of reasons, after explaining its general conclusion from its eight points, the Tribunal referred to the statutory declaration of Mr B. It detected from a grammatical error which was made in the statutory declaration, and which was also found in one of the documents presented by the applicant, that the two documents may have been “prepared by the same person”.
Such an inference may well have been open to the Tribunal. The applicant did not disclaim seeking assistance in relation to the preparation of documents to submit to the Tribunal, and said that he had been assisted in making his protection visa application “by a final year law student” whom he named, who had typed documents on a computer, and that his statement had been “prepared by him with another student who helped him with the translation”.
The Tribunal described its questioning on this point with the applicant:
62.I noted that there was a further unusual aspect of the Statutory Declaration, involving the phrase ‘I assured him not to worry as I am not a homophobia or religiously a fanatic.’ This, the only grammatical error in the document, was very similar to the phrase which appeared in his protection visa application: ‘Any moment I could be killed by a homophobia or a religious fanatic in India.’ I put to the Applicant that the appearance of this similarly unusual and incorrect phrasing in both documents could suggest quite strongly that they were written by the same person. He said he could not comment on this. At his request Mr B had given him the document. Whether Mr B wrote it himself or had someone else do it he did not know.
I am satisfied that it was open to the Tribunal to have a concern about the possible co‑authorship, although in the circumstances explained by the applicant, the provenance of the two documents did not necessarily cast doubt upon the truth of the history being presented in the two documents. I am satisfied that minds could differ in the assessment of what weight to give to Mr B’s declaration. I can find no jurisdictional error evidenced by the Tribunal’s conclusion that the circumstances of the authorship of the two documents “casts doubt on the reliability of the Statutory Declaration itself”.
The Tribunal thought that doubts were also cast by implausibility in the applicant’s explanations as to how Mr B and his father knew of the circumstances of the applicant and his partner in Kolkata. The Tribunal regarded his explanation as pointing to “unusual” coincidences. Here again, I would not share the Tribunal’s doubts, but I am not prepared to say that minds could not differ in relation to the Tribunal’s assessment.
The Tribunal’s conclusion that it was “not satisfied that the Applicant is homosexual in his sexual orientation”, led inevitably to the total rejection by the Tribunal of his claimed history of a life of homosexual relationships in India, and harm suffered as a result, and harm feared in the future. The Tribunal therefore was not satisfied that the applicant had a well‑founded fear of persecution for Convention reasons.
I have above identified and addressed possible concerns as to the reasoning of the Tribunal, notwithstanding that jurisdictional error relating to that reasoning was not clearly raised in the grounds of application which have been presented to the Court.
His grounds are adopted from unhelpful precedents and are largely devoid of particulars:
Grounds of Application
The Grounds of the Application are:
1.The Refugee Review Tribunal (RRT) made error of law and failed to exercise the proper procedure in relation to make decision on the review of the applicant’s protection visa application.
2.The manner in which the tribunal dealt with the application and the applicant was such that it is possible to fairly apprehend that the tribunal did not bring an impartial mind to the resolution of the matter before it.
3.The Tribunal denied the applicant natural justice and procedural fairness pursuant to s.420 and s.425 of the Migration Act 1958.
4.Following the hearing, pursuant to s.424A of the Migration Act, the Tribunal did not put some important information to the applicant to comment on which were the reasons or part of the reason of the decision.
5.The applicant was deprived of the natural justice and procedural fairness. Because the decision maker did not afford the applicant whose interest has adversely affected by the decision as it did not given the opportunity to present his case. The Tribunal did not follow the hearing rule as based on Maxim which is clearly recognized as a denial of procedural fairness.
Particulars
The applicant was offered a hearing and accordingly the applicant has responded and attended the hearing. The applicant was asked, by the tribunal, to put forward his evidence what he did accordingly. In the tribunal’s decision it is noted that the Tribunal is in breach of s.424 of the Migration Act.
6.The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction by asking itself some wrong question in deciding the review application. The tribunal failed to maintain their procedural fairness.
7.The tribunal was biased as it did not consider the claim with the neutral point of view as such the applicant was deprived of the natural justice.
8.The tribunal in its decision made on 6 [sic: 5] October 2010 relied upon country information and some inconsistencies in the appellant’s claims set out in the protection visa application and the claims made before the Tribunal as part of the reason for affirming the decision under review.
9.The tribunal is bound to follow procedural fairness in reaching its decision, and a failure to accord procedural fairness will lead to jurisdictional error, which is not protected from review by the privative clause (S157/2002 v Commonwealth of Australia [(2003) ALR 24]: Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah ([2001 206 CLR 1]).
Similar problems of generalisation or lack of particulars are found in the applicant’s written “Outline of Submissions”, although it does raise some discreet points which deserve to be addressed.
In relation to Ground 1 of the application, I have not identified any “error of law” vitiating the Tribunal’s decision, and none was pointed to by the applicant.
The general allegations of a failure to follow “proper procedure” or “natural justice and procedural fairness” have not been explained, and I have not for myself identified substance in these contentions. I can find no departure by the Tribunal from procedures required to be followed under the Migration Act, whether designed to afford procedural fairness or otherwise.
In relation to the un‑particularised allegation of bias in Ground 2, I have given careful consideration to the elements of unreasonableness and illogicality which I have discussed above. In only exceptional cases does unreasonableness of reasoning provide evidence of a closed mind by the Tribunal prior to reaching its decision, and this is usually accompanied by earlier conduct supporting an apprehension of bias (cf. NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328, (2004) 214 ALR 264). It has recently been pointed out that defects in the expression or reasoning of a Tribunal in its statement of reasons do not themselves generally point to a closed mind prior to the arriving at a decision (cf. Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51, (2010) 115 ALD 303 at [18], and Minister for Immigration & Citizenship v SZJSS [2010] HCA 48, (2010) 273 ALR 122 at [44]).
In the present case, I do not consider that any defects in the Tribunal’s reasoning process provide such evidence. I am not persuaded that arguable unreasonableness in the Tribunal’s reasoning which I have discussed above, and which I have concluded falls short of itself providing grounds of jurisdictional error based on unreasonableness, allows a conclusion that the Tribunal’s decision might have been the product of a closed mind.
The applicant has not tendered a transcript of the hearing before the Tribunal, nor pointed to anything in particular said at the hearing, or otherwise occurring in the course of the proceedings prior to the Tribunal making its decision, as raising matters from which an observer might apprehend that the Tribunal might not have brought an open mind to the proceedings (see Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, (2001) 179 ALR 425).
I am therefore not satisfied that a ground of apprehended or actual bias is established.
The applicant’s contentions concerning a failure to follow s.424A have no basis on the evidence and reasoning of the Tribunal. The Tribunal’s reasoning is based entirely upon an assessment of the oral and documentary evidence presented by the applicant to the Department and to the Tribunal. In my opinion, there was no ‘information’ falling within s.424A(1), which gave rise to obligations to follow procedures under that section or under s.424AA.
The reference in the ‘particulars’ to “s.424 of the Migration Act” is not explained, and I can discern no argument which might help the applicant by reference to that section.
In my opinion, the Tribunal did not ask itself “some wrong question” in a jurisdictional sense when deciding the review application. It identified the claims made by the applicant, and addressed them with its adverse finding.
The contention in paragraph 7 touches upon the concerns, which I have discussed above when considering the Tribunal’s reasoning, that it “did not consider the claim with the neutral point of view”, if this is understood as a criticism of the Tribunal’s reasoning on grounds of unreasonableness or illogicality.
As I have explained above, there are grounds for disagreement with the merits of much of the Tribunal’s reasoning. However, applying the authorities I cited above, I am not persuaded that any defects in the Tribunal’s reasoning constitute separately or cumulatively such a deficiency in reasoning as to undermine the jurisdictional validity of its decision. Rather, the present Tribunal’s reasoning has the character of the reasoning of the Tribunal in SZJSS as characterised by the High Court. Once I have concluded that all or some of the adverse points made by the Tribunal involve questions “upon which reasonable minds might come to different conclusions” (see SZJSS at [35]), a concern that the reasoning might not be described as “a proper, genuine or realistic evaluation” amounts to no more than to a doubt about the merits of the Tribunal’s reasoning, and such a doubt cannot provide grounds for remitting the matter, in circumstances where the tests identified by the High Court and Full Court are not satisfied.
The contention in paragraph 8 that the Tribunal wrongly “relied upon country information” has no foundation whatsoever in the present Tribunal’s reasoning.
The applicant’s written outline of submissions, as well as touching on matters which I have addressed above, contains a specific criticism of the Tribunal’s reasoning concerning Mr B’s declaration:
ii)The Tribunal did not, pursuant to section 424A give the applicant particulars of this information, or ensure, as far as was reasonably practicable, that the applicant understood why this information was relevant to the review, or invite the witness (Mr. B) to appear before the tribunal and comment on this information. The Tribunal should have asked whether the applicant wants Mr. B to appear and verify the document with the Tribunal. Accordingly the applicant would have been able to exercise his rights sec.426 of the Act. At that point of time the Tribunal should have remind the applicant about his rights about the witness whose written evidence became a subject of credibility.
In effect, it is contended that the Tribunal should not have had doubts about the weight to be given to Mr B’s statutory declaration, without having contacted him or obtained his attendance as a witness.
However, it is established that the Tribunal is not obliged to exercise its power to call witnesses who have provided written statements, whether expressly requested by an applicant or not. In the present circumstances, in my opinion the general proposition made by the High Court in Minister for Immigration & Citizenship v SZIAI [2009] HCA 39, (2009) 259 ALR 429, at [1], and Minister for Immigration & Citizenship v SZGUR [2011] HCA 1, (2011) 273 ALR 22 at [1], [20], [86] applies.
The applicant’s written submission concludes with an unreasonableness argument as follows:
a.there was no evidence to support the finding that the applicant, as a homosexual minority, will not be harmed in the future by the religious mongers and homophobic.
b.the finding was unreasonable in the Wednesbury sense.
However, particular (a) misstates the reasoning of the Tribunal and wrongly assumes that the Tribunal must find for an applicant, unless positively persuaded otherwise by the evidence. As the High Court has held, the Migration Act requires the Tribunal to be positively satisfied as to the factual basis upon which an applicant qualifies for a protection visa, and the present Tribunal did not arrive at that satisfaction. As I have held above, its reasoning leading to that conclusion might reveal flaws, but it does not, in my opinion, disclose jurisdictional error within principles of ‘Wednesbury unreasonableness’.
The applicant today largely relied upon his written documentation, as well as making the point concerning the witness and statutory declaration which I have addressed above.
Taking into account all his submissions, I have concluded that I must dismiss the present application.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 15 March 2011
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