SZOXJ v Minister for Immigration
[2011] FMCA 355
•11 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOXJ v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 355 |
| MIGRATION – RRT decision – Nepali claiming fear of persecution as homosexual – Tribunal found his fears not well-founded – no jurisdictional error identified – application dismissed. |
| Migration Act 1958 (Cth), ss.36(2)(a), 91R(1) |
| Minister for Immigration & Multicultural & Indigenous Affairs v SZANS (2005) 141 FCR 586, [2005] FCAFC 41 Minister for Immigration & Citizenship v SZJSS [2010] HCA 48, (2010) 273 ALR 122 |
| Applicant: | SZOXJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 16 of 2011 |
| Judgment of: | Smith FM |
| Hearing date: | 11 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 11 May 2011 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 16 of 2011
| SZOXJ |
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, entering on a Nepali passport which had been falsified by the insertion of his photograph. It contained a valid Australian student visa. On 25 March 2010, he lodged an application for a protection visa in another name, which he said was his true name.
In his visa application, he said that “I left Nepal to avoid being seriously harmed or killed by homophobic people and authorities including my relatives”. The history he gave in an attached statutory declaration, which was repeated at interviews by a delegate in the Department and at a hearing by the Tribunal, was that he had lived in a remote village in Nepal and had one homosexual relationship which had ended when the applicant was 22. He was about 34 at the time of coming to Australia. He said he had never disclosed his sexuality in his community nor to his family, and was under pressure from his parents to marry. He said that he was “really afraid of what will happen when people discover I am homosexual”. He said:
11.I will be the victim of oppressive behaviour and serious harassment at the hands of police and civilian authorities. There is very much a shame culture in Nepal, such that there is strong pressure to marry. I will certainly experience the anxiety and emotional abuse from my family and relatives.
He also claimed at the hearing before the Tribunal:
33.The applicant stated that he will be expelled from his family if they discover that he is gay. He stated that they want him to marry and if he refuses to marry his family will be shamed. He claimed that he and his parents will have to commit suicide.
He did not present any corroborative evidence of his claims.
The delegate made a decision refusing the visa application on 2 September 2010. The delegate did not accept his history as being credible, based on opinions about the applicant’s “demeanour at interview” and that it was “implausible that having now been in Australia for six months he has not made any effort to pursue his desire to live a homosexual lifestyle, for which he claims to have had to flee Nepal”.
The Tribunal interviewed the applicant at a hearing on 3 December 2010, and made a decision on 8 December 2010 which affirmed the delegate’s decision.
The Tribunal formed an opinion as to the credibility of the applicant which differed from that of the delegate. The Tribunal accepted his claim that his sexual inclinations were homosexual, and that he had a genuine fear of harm if he returned to Nepal, and to his family and village in particular.
However, the Tribunal relied on country information which it discussed with the applicant extensively in the course of the hearing, suggesting that the treatment of homosexuals in Nepal had improved substantially, at least in urban communities, following a 2008 Supreme Court decision and other developments.
The Tribunal accepted that the applicant “may be ostracised by his family and relatives”, but said that “it finds that this treatment will not amount to harm of such nature or extent to constitute persecution”. It accepted that the applicant had a broader fear of harm amounting to persecution by the authorities, government and society in general, but concluded that that fear was not well-founded by reason of the country information it had discussed with the applicant.
The Tribunal said:
61.The Tribunal accepts the applicant’s claim that his remote village is not a suitable environment for a gay man such as him to express his sexuality. The Tribunal has formed the view that the applicant may have to move to an urban environment if he wishes to express his sexuality in Nepal. It is satisfied that by doing so he can avoid the conservative attitudes of his remote village; have greater access to services and support groups for gay men; and he will have more opportunities to meet and associate with other gay men. The Tribunal is satisfied that the applicant has the resources, ability, and opportunity, to move within Nepal as he has done previously.
The Tribunal referred to a claim, which the applicant appears to have made at the hearing, that “Maoists may target him for being homosexual”. However, it concluded that this fear also was not well-founded, based on information suggesting that the Maoists had been influential in implementing the Supreme Court decision.
The Tribunal concluded with an observation:
63.The Tribunal has noted the applicant’s fear of revealing his sexuality to his family and relatives in Nepal. The Tribunal sympathises with the applicant’s predicament but finds that this is personal problem for the applicant which is beyond the scope of the Refugees Convention.
The Tribunal said that in view of its findings, it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention, and that he therefore did not satisfy the criteria set out in s.36(2)(a) of the Migration Act 1958 (Cth).
The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter for further consideration. I have power to make these orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s fears are well-founded, nor to decide if he qualifies for a protection visa or any other permission to stay in Australia.
The applicant’s grounds are set out in his application:
1.I believe that the Tribunal member committed a jurisdictional error by heavily relying on the country information which is 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 demolition of the Monarchy and the advent of the republic.
2.I believe the Tribunal member’s analysis of the country information in the circumstances to be inadequate and wrong. I am a true victim of the purported decision made by the Tribunal.
3.I argue that the decision of the Tribunal in my case is wrongful and unreasonable as the only inference was that the Tribunal applied the wrong test or was not in reality satisfied in respect of the correct test as to my circumstances. It is unfair and I need justice.
These grounds were not able to be explained to me or amplified by the applicant today, and he has not filed any written submissions.
I am not persuaded that the Tribunal’s reasoning which relied upon country information shows any ‘irrationality or illogicality’. It appears to me to be clearly rational, and the Tribunal’s conclusions appear to me to be open to it on the information which it referred to. I am therefore not satisfied that any of the grounds of jurisdictional error based on unreasonableness are established under principles recently considered in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, SZMWQ v Minister for Immigration & Citizenship (2010) 187 FCR 109, [2010] FCAFC 97, MZXSA v Minister for Immigration & Citizenship [2010] FCAFC 123, and Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362, [2010] FCAFC 108. For the same reasons, I would also reject a suggestion which might appear in Ground 3 that the Tribunal did not give the merits of the matter “proper, genuine and realistic consideration” (see Minister for Immigration & Citizenship v SZJSS [2010] HCA 48, (2010) 273 ALR 122 at [32]‑[37]).
Once I reject the jurisdictional ground of unreasonableness, the second and third sentences of Ground 1, and Ground 2, appear only to invite the Court to reconsider the merits of the Tribunal’s conclusion. However, the Court does not have power to do that, in circumstances where it concludes that the Tribunal’s factual conclusion was reasonably open to it on the material before it.
The suggestion in Ground 3 that the Tribunal applied a “wrong test” is not explained, and I have not been able to identify any suggestion of legal error in the Tribunal’s reasoning. This includes its assessment of whether harms feared by the applicant amount to ‘persecution’ under the Convention as read with s.91R(1), and the principles in relation to internal relocation (see SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18, and SZFDV v Minister for Immigration & Citizenship (2007) 233 CLR 51).
Counsel for the Minister invited me to consider the Tribunal’s observation in paragraph 63. He submitted that it was consistent with the opinions of Madgwick J in MMM v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 324, and that “familial pressure to marry has been held not to be persecution for a Convention reason” (citing also Minister for Immigration & Multicultural & Indigenous Affairs v SZANS (2005) 141 FCR 586).
It is not clear to me that this point was being adverted to by the Tribunal in paragraph 63. Rather, that paragraph appears to be no more than an observation expressing sympathy with the applicant’s estrangement and difficulties in relation to his family at a personal level. The Tribunal had already sufficiently explained why the applicant’s fears did not come within the Convention definition, because his feared ‘ostracism’ would not be persecution, and because his fears of harm were not well-founded, at least, if he relocated to urban areas of Nepal. Those conclusions sufficiently supported its ultimate conclusion. I am therefore not satisfied that paragraph 63 could reveal any material legal error which could have affected its decision.
Having considered the submissions of counsel for the Minister and of the applicant, I am not persuaded that the Tribunal’s decision is affected by any jurisdictional error. I must therefore dismiss the application.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate:
Date: 18 May 2011
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