SZOVN v Minister for Immigration and Citizenship

[2012] FCA 1238

FEDERAL COURT OF AUSTRALIA

SZOVN v Minister for Immigration and Citizenship [2012] FCA 1238

Citation:		SZOVN v Minister for Immigration and Citizenship [2012] FCA 1238
Appeal from:		SZOVN v Minister for Immigration and Anor [2012] FMCA 550
Parties:		SZOVN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1049 of 2012
Judge:		ROBERTSON J
Date of judgment:		8 November 2012
Date of hearing:	8 November 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	35
Counsel for the Appellant:	The Appellant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Ms K Hooper of DLA Piper Australia
Counsel for the Second Respondent:	The Second Respondent submitted save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1049 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZOVN
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	ROBERTSON J
DATE OF ORDER:	8 NOVEMBER 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1049 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZOVN
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	ROBERTSON J
DATE:	8 NOVEMBER 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By his notice of appeal filed on 25 July 2012, the appellant appeals from the judgment of the Federal Magistrates Court given on 4 July 2012 at Sydney. By that judgment the Federal Magistrates Court ordered that the application to it be dismissed and that the applicant, to whom I will refer as the appellant, pay the first respondent’s costs. That application was for judicial review of a decision of the Refugee Review Tribunal (Tribunal).

2. The decision of the Tribunal, given on 21 October 2011, affirmed the decision of a delegate of the first respondent not to grant the appellant a Protection (Class XA) visa.

3. As the Federal Magistrate noted in the introduction to his Honour’s reasons:

   [1]The applicant is a citizen of Fiji who arrived in Australia on a tourist visa on 2 April 2010. On 3 May 2010 he lodged an application for a protection visa alleging that he feared persecution in Fiji because of his political opinion, religion and membership of the particular social group of homosexual men in Fiji. On 29 July 2010 his application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the second respondent (“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.

   [2] The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. A previous Tribunal decision dated 11 November 2010 was quashed by consent on 20 May 2011.

4. The Tribunal accepted that the appellant was being truthful in claiming that that he was gay, but concluded that gay men did not face a real chance of serious harm in Fiji. The Tribunal then took into account the appellant's evidence, claims and country information and concluded that a real chance of serious harm on this ground was remote. The Tribunal expressed itself on this point as follows:

   [133]The Tribunal thus finds that the applicant does not face a real chance of serious harm from the general population of Fiji either now or in the reasonably foreseeable future. The Tribunal notes that the applicant did not specifically claim any fear of serious harm from the interim Government, police or military for being gay. There is no independent country information before the Tribunal to support such a basis for harm and it finds accordingly.

5. The Tribunal then turned to the question of whether the appellant would be forced to live discreetly in Fiji in order to avoid a real chance of serious harm but said it was satisfied that the appellant had lived openly and safely as a gay man in the past and could again live openly as a gay man, and live safely, in the larger places such as Suva, where he had lived in the past, either now or in the reasonably foreseeable future.

6. The Tribunal then turned to the appellant’s claims of persecution because of his Methodist religion. The Tribunal accepted that the appellant was a genuine Christian and Methodist who attended church. From his evidence, the Tribunal said, the appellant was not a leader in the church nor had he been involved in the religious/political activities of the church leaders. The Tribunal said:

   [140]Based on the applicant’s evidence and claims, and after considering the independent country information, the Tribunal is not satisfied that the applicant faces a real chance of serious harm based on his religion from the interim Government, police and military, now or in the reasonably foreseeable future.

7. The Tribunal then turned to consider the issue of political opinion. The Tribunal accepted that if the appellant returned to Fiji he would not be involved in political activity or a party in the future. The Tribunal said that this was not because he was afraid to express his political opinion in the future because of the coup and the military’s response but because it was not part of his nature to do that sort of thing, he not having been involved in any political activity or with political parties in the past. The Tribunal also noted that the appellant’s behaviour did not appear to have changed after the coup.

8. The Tribunal said that, after considering the appellant’s evidence and the independent country information, the Tribunal was not satisfied that he would face a real chance of serious harm on the basis of political opinion now or in the reasonably foreseeable future because of anything political that he did, or has been imputed to him, in Fiji in the past.

9. The Tribunal then went on to consider “the applicant’s conduct in Australia in regards to political opinion and whether this would cause him to face a real chance of serious harm in the future.” That conduct was the lodging of a protection visa application, joining the Fiji Democracy and Freedom Movement (FDFM) and attending a rally on 2 October 2010 and checking the FDFM website now and then.

10. The Tribunal was of the view that the main reason the appellant joined the FDFM was to strengthen his claim to be a refugee but the Tribunal was also satisfied by the appellant that he joined the FDFM because he also had a genuine concern as to the political and economic future of Fiji. It followed that the Tribunal was required to take the appellant’s conduct in Australia into account.

11. Having done so, the Tribunal said on this point:

    [171]Thus the Tribunal is not satisfied that the applicant’s conduct in Australia, being his lodging a protection visa application, his joining the FDFM and checking their website now and then, may, either on their own or in combination with the introduction of the Crimes Decree, lead him to face a real chance of serious harm based on political opinion, either imputed or otherwise, either now or in the reasonably foreseeable future.

12. The Tribunal then turned to other concerns it had concerning the appellant’s claims based on his political opinion. The Tribunal said it did not accept that curfews amounted to serious harm or that the economic hardship the appellant faced was on the basis of political opinion or any other Convention reason. The Tribunal also explored with the appellant why he delayed leaving Fiji for Australia until April 2010 if he had developed a fear of serious harm based on his political opinion shortly after returning to Fiji after March 2009. The Tribunal said the appellant’s failure to explore any way of leaving Fiji prior to April 2010 raised doubts as to the strength of his claim to fear harm based on political opinion at that time.

13. The Tribunal then considered what the appellant might do in the future should he return to Fiji, in terms of expressing a political opinion or being imputed with one. The Tribunal concluded that the appellant would not openly or publicly express his political opinion in the reasonably foreseeable future because it was not in his nature to be politically involved or to openly express his political opinion. The Tribunal noted that the appellant’s evidence of his political involvement in Fiji in the past was minimal. The Tribunal noted that while the appellant had been in the safety of Australia he had not publicly expressed his political opinion: all he had done was to join the FDFM, after some delay, and check their website occasionally. The Tribunal did not accept that he attended the FDFM October 2010 public rally nor had he been involved in any other public activities of the FDFM. He had not taken the opportunity to express his political opinion publicly and openly in Australia, in circumstances where he did not face harm from the military.

14. The Tribunal also considered whether the appellant would be forced to live discreetly in Fiji, in terms of his political opinion, in order to avoid a real chance of serious harm. The Tribunal held that the appellant would not be forced to live discreetly should he return to Fiji because it was not in his nature to be politically involved or to openly express his political opinion.

15. Returning to the topic of economic harm, the Tribunal said that on the appellant’s evidence it was not satisfied that the economic situation he would face in Fiji was anything more than the widespread economic hardship faced by most other Fijians because of Fiji’s suffering economy. The appellant had not claimed that his fear of significant economic hardship was connected with his race, religion, nationality, membership of a particular social group or political opinion and there was no information before the Tribunal to suggest any such connection.

16. The Tribunal’s summarised its reasons for affirming the decision as follows:

    [195]To conclude, based on the totality of the evidence before it and the independent country information, the Tribunal is not satisfied that the applicant faces a real chance of serious harm if he were to return to Fiji from either members of the public, the interim military Government, the military or the police for the reasons of his being gay, as a member of a particular social group, or a Methodist, on the basis of religion, or because of his political opinion, imputed or otherwise, or for any other Convention reason, either now or in the reasonably foreseeable future. The Tribunal has come to this view after considering the applicant’s claims individually and also cumulatively.

17. I also note that the Tribunal gave the appellant an opportunity to make further written submissions, if he wished, and to provide any independent country information in support of his claims following the hearing before the Tribunal and the Tribunal gave him three weeks for this purpose. The present appellant provided additional material and the Tribunal noted that material in its reasons: see [87]-[88]

18. In the Court below the Federal Magistrate considered the application under 14 grounds as follows: Ground 1: change in circumstances; Ground 2: breach of s 425 of the Act; Ground 3: failure to consider evidence; Ground 4: Tribunal hearing not conducted in good faith; Ground 5: breach of s 425; Ground 6: Tribunal did not question the appellant properly; Ground 7: procedural unfairness; Ground 8: constructive failure to exercise jurisdiction; Ground 9: procedural unfairness – Convention reasons not pursued; Ground 10: unreasonableness; Ground 11: social class; Ground 12: relocation; Ground 13: well-founded fear of persecution consideration; and Ground 14 allegations at hearing, which were that the Tribunal had repeated the error in its original decision and that the appellant was confused or unable in some way to answer the Tribunal’s questions or to present his case.

19. The notice of appeal contained submissions as well as grounds and not all of the material seemed to be related to the case at hand. As I read the notice of appeal it involved the following: (1) an allegation that the Tribunal had a perceived bias against the appellant; (2) no opportunity was given to the appellant to be heard and/or produce more evidence or documentation in relation to fear of persecution; (3) the interpreter did not interpret the right reasoning and the decision made by the Federal Magistrates Court was not on the correct interpretation; (4) the person who helped the appellant prepare his Tribunal application was guilty of fraudulent or negligent behaviour or poor knowledge; (5) with reference to s 425 of the Act, the Tribunal did not have a mind prepared to allow the appellant the opportunity to give evidence and present arguments relating to the issues and generally to maintain its detachment of judgment until that opportunity was fully afforded; (6) there was a breach of s 424A the Act; (7) the Tribunal failed to consider the appellant’s claims or misapprehended his claim and was fixated with predetermined conclusions about his case or possibly became engrossed by the details of his sad life and his involvement in homosexuality that it failed to address specific issues about the Convention definitions and did not address the appellant’s specific claims under race, religion and membership of a particular religion; (8) the Tribunal failed to address and ask questions as to future harm; (9) the decision was affected by Wednesbury unreasonableness in light of the fact that the Tribunal had failed to address the appellant’s claim and in light of the findings the conclusions reached by the Tribunal and its decision were manifestly unreasonable; (10) a well-founded fear of persecution should be found to exist because the appellant's life would be endangered; and (11) the Tribunal did not address the particular social group and all aspects of harassment and risk for this social group had not been considered by the Tribunal. It appears that the social group in question is a family member of a high-profile individual or someone who provided shelter to the militants during the height of the insurgency.

    Consideration

20. No other written submissions were made by the appellant to this Court. At the hearing of the appeal, however, the appellant made the following oral submissions, through an interpreter of the Fijian language.

21. The appellant said he did not wish to return to Fiji and he wished to apply for Australian citizenship. He found fault in the government of Fiji due to his status. It was very difficult with the Fijian government not accepting his way of life and the type of status he was in. So he wished to stay in Australia to continue his education here.

22. In terms of the hearing before the Tribunal or the hearing before the Federal Magistrates Court the appellant said the interpreter in the Federal Magistrates Court had misinterpreted his case the wrong way: there was a question from the Federal Magistrate and it was interpreted in a very wrong way. The appellant could not presently recall the question.

23. The first respondent submitted that the appellant’s submissions which I have summarised at [21] above went to the merits and not to any question of appealable error on the part of the Federal Magistrate. I agree: such matters are for the Tribunal and not for the Federal Magistrates Court or for this Court on appeal from the Federal Magistrates Court.

24. The first respondent submitted that the appellant’s submissions which I have summarised at [22] above were not particularised and were not supported by any evidence. It was submitted that it was not clear how the appellant would know of the alleged misinterpretation. There was nothing in the judgment of the Federal Magistrate referring to any complaint of misinterpretation and it was evident from [39]-[40] of the judgment below that the appellant’s submissions made to that Court were considered. I agree with these submissions.

25. In his oral submissions in reply, the appellant said that he feared for his life if he returned to Fiji and he did not know what would happen to him if he was sent back to Fiji and he wished to stay in Australia. In my view this submission takes the matter no further than the submission I have summarised at [21] above and, similarly, goes only to the merits which are not a matter for the Federal Magistrates Court or for this Court.

26. It will be noted, and this is no criticism of the appellant, that the oral submissions the appellant made on appeal to this Court did not identify any error on the part of the Federal Magistrate.

27. I turn now to consider the appellant’s notice of appeal and the grounds there raised.

28. The grounds of appeal are put at a level of generality which makes it difficult to relate them to the particular decision of the Tribunal and to the facts in relation to the appellant.

29. As to grounds (1) to (5) inclusive and (7) in my view there is no factual basis for them and, to the extent that they were raised before the Federal Magistrate, I see no error in the way in which his Honour dealt with those grounds, including that the Tribunal complied with its obligations under s 425. Ground (2) is directly contradicted by what I have set out at [17] above. It does not appear that Grounds (3) and (4) were raised before the Federal Magistrates Court and I am not persuaded that leave should be granted to allow those grounds to be raised for the first time in this Court. I am not persuaded that it is expedient and in the interests of justice to allow these grounds now to be raised. The grounds lack merit. I refuse that leave.

30. As to ground (6), I see no basis for finding that s 424A obligations were engaged in this case. Further, it appears that this ground also was not raised before the Federal Magistrate and I am not persuaded that it is expedient and in the interests of justice to allow this ground to be raised. I refuse that leave.

31. As to ground (8), in my view, in light of the Tribunal’s reasons, the ground that the Tribunal did not address future harm is unsustainable. As to the alleged failure to ask questions, this part of this ground fails as a matter of fact. It also fails as a matter of law for the reasons given by the Federal Magistrate at [27]-[28].

32. As to ground (9), in my view this ground is unsustainable for the reasons given by the Federal Magistrate at [33]-[34].

33. As to ground (10), in my view there is no factual basis for this proposition and it fails.

34. As to ground (11), similarly, in my view, there is no factual basis for this proposition and it also fails.

    Conclusion and orders

35. For these reasons the appeal fails. I order that the appeal be dismissed and the appellant pay the first respondent’s costs.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

Associate:

Dated:        8 November 2012