SZOXI v Minister for Immigration
[2011] FMCA 301
•5 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOXI v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 301 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) Visa – no reviewable error – application dismissed. The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and was given the pseudonym SZOXI. |
| Migration Act 1958 (Cth), ss.91X, 424 |
| Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 SZATV v Minister for Immigration, Multicultural and Indigenous Affairs (2007) 237 ALR 634 |
| Applicant: | SZOXI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 14 of 2011 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 19 April 2011 |
| Delivered at: | Sydney |
| Delivered on: | 5 May 2011 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of a Nepali interpreter. |
| Counsel for the Respondents: | Ms L.Clegg |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Application filed on 6 January 2011 is dismissed.
The Applicant is to pay the First Respondent’s costs and disbursements, of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 14 of 2011
| SZOXI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In accordance with the Court orders made on 8 February 2011, the solicitors for the First Respondent were required to file a folder which was to be indexed, labelled and paginated containing all the documents which may be relevant to the hearing. This Order was complied with and the volume of material provided is identified as the Court Book (“CB”). On the date of the hearing, the Court Book was marked Exhibit “A”.
At the First Court Date directions hearing, the Applicant expressed a desire to participate in the Pilot RRT Legal Advice Scheme (NSW) and the Scheme Co-ordinator had been advised of that request. In the Court file, a certificate lodged by the panel advisor indicated that he had not provided advice to the Applicant as the Applicant was not contactable on the phone number provided by the Registry. The Court file also contains correspondence addressed to the Applicant which provides contact details of the panel advisor allocated. At the directions hearing, the Applicant was advised that he would receive such a letter and that it would be in English and the Applicant would be required to seek advice from someone who could interpret the contents of the letter and assist the Applicant in making initial contact with the panel advisor. The Applicant was also told that an interpreter service would be available during the conference with the advisor.
At the commencement of the hearing the Applicant confirmed that he had received a letter from the Court Registry regarding the legal advice scheme, but that he had elected not to take any steps to contact the advisor. Also contained within the orders made at the directions hearing on 8 February 2011, the Applicant was requested to file and serve in the Registry a short written outline of submissions and a list of authorities 14 days before the hearing. The Applicant indicated that he had also failed to satisfy this requirement.
The proceedings
The Applicant, who claims to be a citizen of Nepal, arrived in Australia on 14 January 2009 and applied to the Department of Immigration and Citizenship for a Protection (Class XA) Visa on 12 April 2010.
A delegate of the Minister decided to refuse to grant the visa on
2 September 2010 and notified the Applicant of his review rights by letter dated the same date. The delegate refused the visa application on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugee Convention. The Applicant applied to the Refugee Review Tribunal (“Tribunal”) on 29 September 2010 for a review of the delegate’s decision (CB 89).The Applicant claims that he was born in Jhin, Myagdi in Nepal in September 1979. He claims that he has qualified and worked as a primary school teacher in his rural village from May 2002 to July 2008. The Applicant states that as he was identified as a homosexual he feared persecution in Nepal because of his sexuality. He claims that when he was suspected of being a homosexual, his employment was terminated on the spot. He states that he was told by the school principle that he could return to work if he married a woman. He states that he will be expelled by his family, relatives and society if he reveals his sexuality. He claims that as a gay man he had no access to support groups or government services to assist him. He claims he would experience social pressures if he lived “an openly homosexual life in Nepal”.
After the termination of his employment he states that he felt that the only options available to him were to commit suicide or disappear. The Applicant states that he left his village because he anticipated social stigma and he decided to leave the country. He claimed that he hid his homosexuality from his family and community. He indicated that he lived in a conservative and traditional environment where men were expected to marry women who were chosen for them by their parents. He states that he gave false promises to his family that he would abide by his wishes. He claims that he feared harm and discrimination in Nepal because of his homosexuality (CB 91). The Applicant claims that he was concerned that he would face deportation if he came to Australia seeking protection, so he came on a dependant student visa, claiming to be married to a travelling companion, when in fact he was not. The Applicant claimed that he had arranged a student visa with the assistance of an agent in Kathmandu, Nepal to whom he paid money to obtain a false marriage certificate. The Applicant claims that he had no option but to come to Australia with the assistance of the agent.
The Applicant was interviewed by a delegate of the Minister on
30 August 2010. The Tribunal has subsequently listened to that interview. The Applicant advised the delegate that he did not want to return to Nepal because he was homosexual and he was treated like an “animal” by society. The Applicant stated that he was sexually attracted to men rather than women, but he indicated that he had not had sex with either a man or a woman. He stated that he had no sexual experiences in Nepal or Australia. The delegate asked the Applicant if he had led a ‘homosexual lifestyle’ in Australia. The Applicant indicated that he lived alone and he had no contact with gay men in Australia because he had language difficulties.
He stated that he had not told anyone in Nepal or Australia that he was homosexual. The Applicant stated that he was ‘not ill-treated by anyone’ because no one knew he was a homosexual. The delegate commented that he was claiming in his written submissions that he was dismissed by his employer for being a homosexual. The Applicant stated that his employment was suspended by the headmaster on the suspicion that he was homosexual and was told that he could return to his position when he was married. The Applicant stated that he was sexually attracted to males but he never acted on those feelings. He stated that if he returned to Nepal he may be abused, beaten and mistreated by society, because he is homosexual (CB 92).
Tribunal hearing and decision
In setting out the following material, I have relied upon the written submissions prepared by Ms Clegg, counsel for the First Respondent.
I have made no further direct attribution as this would make the summary unwieldy. This information is provided to assist in the understanding of the nature of the application and not to establish any evidentiary point.
The Tribunal conducted a hearing on 7 December 2010. The Tribunal’s statement of decision and reasons reveals that the Tribunal and Applicant engaged in a thorough and comprehensive dialogue when exploring the Applicant’s claims. Importantly, it is clear that the Tribunal put all aspects of its thinking, including the difficulties it was having with the Applicant’s underlying claims and case, to the Applicant during the course of the hearing. At the hearing, the Applicant submitted copies of media reports that he claims supported his case that homosexuals suffered discrimination and persecutory harm in Nepal (CB 97 at [52]; CB 71 – 86).
The Tribunal’s findings and reasons reveal that the Tribunal had some doubts about whether the Applicant was a homosexual at all, however nevertheless decided to give the Applicant the benefit of the doubt (CB 97 at [57]). The Tribunal accepted the Applicant’s claim that he may be shunned by his family and the persons in his village for being gay. The Tribunal found that the social ostracism that the Applicant would suffer would not amount to harm of such a nature that it could constitute persecution for Convention purposes (CB 98 at [52] – [55]).
On the basis that the Tribunal accepted that a remote rural village might not be a suitable environment for a gay man to live, the Tribunal also found that the Applicant could move to an urban environment and avoid the conservative attitudes of his remote village (CB 98 at [63]). The Tribunal found that the Applicant had the resources, ability and opportunity to move in Nepal as he had in the past. In making this finding, the Tribunal approach is consistent with the principles outlined by the High Court in SZATV v Minister for Immigration, Multicultural and Indigenous Affairs (2007) 237 ALR 634; SZKDY v Minister for Immigration and Citizenship [2007] FCA 1667. In so finding, the Tribunal noted that he had considered and relied upon recent independent country information which pointed to the conclusion that gay men in Nepal are no longer discriminated against and are not subjected to the forms of harm that amounted to persecution (CB 98 at [63] – [64]). The Tribunal concluded that the Applicant did not face a real chance of persecution in Nepal for the reasons claimed.
Grounds of review
The grounds of review contained in the original Application, filed on
6 January 2011 are as follows:
1. I argue that the Tribunal member’s decision in my case has be vitiated by an error of law as the evidence that the Tribunal member relied upon is so unreasonable or so inadequate the only inference is that the Tribunal member failed to satisfy all its statutory requirements in dealing with my case. The country information on homosexuals sighted by the Tribunal member is not true and not yet implemented in the Nepalese society.
2. I contend that the Tribunal committed a jurisdictional error in that there was no evidence to support certain factual findings made by the Tribunal about the country information and that its findings were irrational or illogical in the context of my circumstances. The Tribunal did not consider the nature of the Nepalese society and the failed state. It is not true that I can avoid the harm as I will not be a person of interest to either the authorities or the Maoists or homophobic people in Nepal because of the improved conditions after the demolition of the Monarchy. Things have not been implemented yet in my country. When I look at the Tribunal’s reasons, what we have in relation to the country information is essentially recitation of information with little analysis in the first instance and then an extremely truncated analysis. I consider the analysis of the country information in the circumstances to be inadequate and wrong.
3. I contend that the decision of the Tribunal was unreasonable or if the country information on which the Tribunal relied was so inadequate that the only inference was that the Tribunal applied the wrong test or was not in reality satisfied in respect of the correct test so I believe the decision has been affected by a jurisdictional error.
At the First Court Date directions hearing the Applicant was also granted leave to file an Amended Application and was advised that he should do this after he had received legal advice from the panel advisor. The Applicant has not availed himself of any of these opportunities and has elected to proceed with the original application.
Consideration
The Applicant confirmed that he had not prepared or filed any written submissions but indicated that he did wish to make oral submissions. The Applicant stated that he was not satisfied with the Tribunal’s decision and that he believed it was not made within the law. The Applicant’s complaint was that the country information referred to by the Tribunal member was inappropriate and inaccurate. The Applicant referred to the documentation that he supplied to the Tribunal during the hearing in December, which amounted to 17 pages and is reproduced in the Court Book at CB 71 – 86. The Applicant was asked whether he had received the written submissions prepared by Ms Clegg on behalf of the Respondents and whether these had been interpreted for him. He confirmed that he had received the documents and these had been read and interpreted for his benefit, however he had no comments or submissions to make in response.
I agree with Ms Clegg’s written submissions that although the Application pleads three grounds of review, in effect it is really a continuous narrative of a single complaint, namely that the Tribunal’s findings in connection with reliance on independent country information were ‘unreasonable’ or ‘irrational’ and/or that independent country information was ‘inadequate’ or ‘wrong’. The Tribunal referred to 23 separate reports containing independent country information. A substantial number of these articles were published in 2010. After reviewing all of this material, the Tribunal made the following statement:
49. The Tribunal commented that despite the difficulties which gay men face in Nepal, the above information did not indicate that gay men were commonly subjected to circumstances amounting to persecution by their families, society, the authorities, or the government. (CB 96)
The Applicant provided the Tribunal, at the hearing on 7 December 2010, with seven articles which had been downloaded from the internet. The majority bear dates in 2007 (CB 72, 73-75, 77, 78-81) with one article from 2004 (CB 76) and one article from December 2010 (CB 71). Without undertaking a more in-depth analysis for the reasons set out below, the independent country information upon which the Tribunal relied was, generally, significantly more up to date than the independent country information provided by the Applicant.
Many of the reports refer to a 2008 Nepalese Supreme Court decision of Sunil Baba Pant & Ors v Nepal Government which effectively prohibited discrimination against homosexuals in Nepal. The Tribunal also referred to independent country information that indicated that there were plans to introduce a clause in a proposed new constitution that enshrined same sex marriage in Nepal. The Tribunal also referred to independent country information which revealed that there was a prominent gay man,
Sunil Baba Pant who established the Blue Diamond Society (BDS) which was an interest group advocating gay rights and Mr Pant has subsequently been elected to the Nepalese Parliament.More importantly, in respect to the issue of review of the Tribunal’s decision, the choice and assessment of independent country information was a factual matter for the Tribunal. It was for the Tribunal to determine what weight it gave to what information. Even if the independent country information relied upon by the Tribunal was wrong, it would amount to a mere error of fact and would not constitute jurisdictional error. Ms Clegg referred the Court to provisions in NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 per Young J (with Gyles and Stone JJ agreeing) his Honour stated: [81]
[81] I find no error in her Honour’s conclusions. It is not for this court to reconsider the tribunal’s factual findings as to the Applicant’s involvement in the Christian faith and what country information was relevant in determining whether a well-founded fear of persecution arose. As the Federal Magistrate rightly found, the tribunal gave proper consideration to the particular circumstances of the Applicant on the limited evidence she had advanced about her practice of Christianity. Moreover, as the Federal Magistrate noted, even if it could be said that there was other information available to the tribunal which was contrary to that relied on by it, it was a matter for the tribunal to decide what weight should be given to particular items of country information as part of its fact-finding function: NABDat [8] per Gleeson CJ; SZANK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1478 at [16] per Hely J.
See also Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 at 552 and 559; SZNNK v Minister for Immigration and Citizenship [2009] FCA 1386 at [20]; Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at 580; VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104; Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2005] HCA 29; (2005) 84 ALD 545 at [8]; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 per Gray, Tamberlin and Lander JJ where their Honours stated:
[11] The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
[12] The appellants’ submissions asserted that the Tribunal rejected all of the appellants’ claims on the basis of ‘country information’. The Tribunal’s reasons for decision do not substantiate this assertion. It is plain that the Tribunal relied to a substantial extent on the inherent improbability of some aspects of the first appellant’s story, inconsistencies between different parts of his story, and the fact of his frequent returns to Sri Lanka and the length of his sojourns there, to form its views about his credibility. In turn, it relied on its assessment of the first appellant’s credibility in determining whether it accepted some of the ‘country information’. Its treatment of the DFAT advice about Tamil males from Batticaloa, to which we have referred in [4], is an example. The very function of the Tribunal was to assess the appellants’ claims, both as to their inherent credibility and as to their consistency with other information known to the Tribunal about circumstances in the appellants’ country of origin.
[13] In performing its function, the Tribunal was obliged to make an assessment of the circumstances in Sri Lanka in the reasonably foreseeable future. See Mok v Minister for Immigration, Local Government & Ethnic Affairs (No 1) (1993) 47 FCR 1 at 66. It had to assess whether there was a real chance of persecution of the appellants for a Convention reason if they were to return to Sri Lanka. The appellants complained in their written submissions that the Tribunal engaged in this exercise at all. In his oral submissions, the first appellant said that it was a legal error to base a conclusion on a hypothesis about what might happen in the future. These submissions cannot be accepted. The appellants also complained that the Tribunal made an incorrect assessment of the foreseeable future, by making a ‘mere guess’ and by relying on ‘country information’ that did not present a true picture. It is clear from its reasons for decision that the Tribunal did rely on ‘country information’ in making its assessment of the future, and that the conclusion that it reached was open to the Tribunal on the basis of the material it used. Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.
I agree with Ms Clegg’s submission that it cannot be said that the Tribunal’s reliance on independent country information, or a reasoning or conclusions in relation to the independent country information was so unreasonable that no reasonable person could have come to it: Minister for Immigration and Citizenship v SZMDS (2010) 266 ALR 367, Crennan and Bell JJ (with Heydon J agreeing) their Honours stated:
[130] In the context of the tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Also in Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108 per Kenny J at [41]- [42]:
[41] Where the Tribunal’s determination regarding the state of satisfaction turns on its evaluation of an Applicant’s knowledge of a religion, and that evaluation is irrational in the relevant sense, the jurisdictional foundation for the Tribunal’s decision will be absent. As Gummow ACJ and Kiefel J observed in SZMDS (266 ALR at 327 [40]), the conclusion that a Tribunal’s decision was irrational in the requisite sense should not be reached lightly. “Irrational” and “illogical” in this context “are analogues of arbitrary or perverse” and “are not used with a lesser colloquial meaning that may be applied where the words are introduced in debate to emphasise the degree of dissent from a disputed conclusion or point of view”: see WAHP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 87 at [7] per Lee J (dissenting in the result), citing (amongst others) Eshetu 197 CLR at 626 [40] per Gleeson CJ and McHugh J; and see also SZMDS 266 ALR at 396 [130] per Crennan and Bell JJ. At the same time, however, apprehension of merits review must not operate to shield decisions which have been reached without the necessary jurisdictional foundation: see SZMDS 266 ALR at 377 [42] per Gummow ACJ and Kiefel J.
[42] I would interpolate here that the conditions discussed above at para [39] will not always, and need not necessarily, be expressly articulated in the Tribunal’s reasons. Often they will be apparent from the nature of the material relied on by the Tribunal. I would also interpolate that the “material” may be the knowledge the Tribunal has acquired through exposure to previous claims based on the same religion (see, eg, SBCC [2006] FCA 270 at [27]), though there is nothing to suggest that such was the case here. When the Tribunal relies on its accumulated personal knowledge, however, s 430(1)(d) of the Migration Act requires that it refer to that fact in its reasons (see below).
I agree with Ms Clegg’s conclusion that the Tribunal’s approach to the question before it was entirely rational. The conclusion that the Applicant could live comfortably in Nepal in light of his factual claims and as applied to him entirely consistent independent country information before it, it was open to the Tribunal. Consequently, the Application filed in this Court on 6 January 2011 is dismissed and the Applicant is to pay the First Respondent’s costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 5 May 2011
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