SZOZT v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 411

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOZT v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 411

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming particular social group persecution in India – no arguable case of jurisdictional error – observations on the interpretation of ss.424AA and 91R(3) of the Migration Act 1958 (Cth).

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.91R, 424A, 424AA

Minister for Immigration v SZJGV (2009) 238 CLR 642
SZBYR v Minister for Immigration (2007) 235 ALR 609

Applicant: SZOZT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 266 of 2011

Judgment of: Driver FM

Hearing date: 1 June 2011

Delivered at: Sydney

Delivered on: 1 June 2011

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms M Stone
DLA Piper Australia

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 266 of 2011

SZOZT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was made on 25 January 2011.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from India and arrived in Australia on 6 April 2010.  On 19 May 2010, he applied to the Minister’s Department for a protection visa.  That application was refused by a delegate of the Minister on 28 September 2010.  The delegate’s decision was notified to the applicant on the same day. 

2. On 22 October 2010, the applicant applied to the Tribunal for review of the delegate’s decision.  The applicant claimed to fear persecution in India by reason of his membership of a particular social group of homosexuals.  He provided some written details with his protection visa application and was also interviewed by an officer of the Minister’s Department on 21 September 2010.  Subsequent to that interview, he provided three photographs of himself together with the man who he says was his lover. 

3. On review, the applicant was notified by the Tribunal that it was unable to make a favourable decision on the papers and invited the applicant to a hearing.  The applicant attended that hearing on 12 January 2011.  The applicant was asked to explain details of his claims and was pressed on apparent confusion and inconsistencies between his written and oral claims.  A critical issue of confusion was the applicant’s contradictory statements concerning when he first began his homosexual relationship with his lover. 

4. The Tribunal reasoned that this was something that the applicant (if truthful) could not be confused about. The Tribunal purported to go through a process of oral disclosure pursuant to s.424AA of the Migration Act 1958 (Cth) (“the Migration Act”) in relation to apparent inconsistencies between his evidence given at the departmental interview and the evidence provided to the Tribunal. The applicant was also asked about his conduct in Australia and the effect of s.91R(3) of the Migration Act was discussed with the applicant.

5. The Tribunal’s reasons are primarily contained at [72]-[80] of its decision at pages 133-135 of the court book, which I received as evidence:

   Beyond this issue, however, the Tribunal does not believe that the applicant has provided a truthful account of his past experiences in that country, his claimed sexuality or his fears of harm should he return to that country. In the Tribunal’s view the available evidence only supports a conclusion that the applicant has fabricated a claim to being homosexual in the hope of pursuing a successful application to remain in Australia. The Tribunal does not believe that the applicant is homosexual, has had the claimed relationship with [N], nor with any other male person, or fears any harm on this basis should he return to India.

   The Tribunal believes that the enormous differences between the applicant’s claims during the hearing before it and the written statement provided to the Department support the conclusion that neither can be relied upon as an accurate account of the applicant’s situation. There are differences as to the timing of the commencement of the claimed sexual relationship between the applicant and [N], the reasons why [N] was alone at his home when this occurred, when the applicant was made an outcast by a religious committee, the reasons why he and [N] chose to live in Ernakulam and the structure of [N’s] family which are so severe as to completely undermine the claims made. These matters span from the commencement of their relationship to the last period it is claimed the couple spent together in India and are so fundamental they cannot be ignored.

   The applicant claims in his written statement to have commenced a sexual relationship with [N] when [N’s] sister was in hospital for ‘delivery’. His oral evidence was that in fact this referred to treatment she was receiving in respect of pregnancy and … this occurred after her marriage. The applicant’s oral evidence was that [N’s] sister was one year younger than [N], contrasting with claims in his written statement, and that she had married when 18 years of age in 1994, a marriage which he attended. This means that the claim that the applicant commenced a sexual relationship with [N], when 16 or 17 years, at or shortly after his study of the 10^th standard, cannot be true. The only explanation offered by the applicant was that he could not be sure of the dates because they occurred some time ago. The Tribunal does not accept however, that he could be so confused about these matters that he could not accurately recall whether his first sexual relationship with [N] was when he was 16 to 17 years of age or 22 to 23 years of age. He claims this is an inseparable homosexual relationship which was the genesis of the difficulties he now fears and in the Tribunal’s view he would have been able to offer a more consistent account of the development of this relationship over time were the claims true.

   Furthermore, the applicant has presented additional documentary evidence in support of his claims which undermines his claims. The letter from the Islahul Islam Sangham presented by the applicant to the Department is clearly dated 25 November 1994. This date fits neither the apparent claims in the written statement and the Departmental interview that difficulties developed after the applicant’s marriage in 1996, nor his claims to the Tribunal that in fact he was dismissed by the committee in 1989 or shortly thereafter. It appears to the Tribunal that the applicant has simply had a letter fabricated to try to support his claims that he experienced difficulties with any religious group in India. It was evident during the hearing before the Tribunal that the applicant had very little regard to the content of the letter but did claim in evidence that it was given to him in India between the ages of 16 and 18 years. This could not be the case if it was written in 1994, when the applicant was 22 years of age. Again, the Tribunal does not accept that where the claims true, the applicant would have so little recall of the events causing his current concern about returning to India or that he would have so little recall or apparent interest in the actual content of the letter.

   The substantial difficulties with the evidence extend to the period when it was claimed that the couple established themselves in Ernakulam. In his oral evidence the applicant was asked why the couple returned to India and established themselves in Ernakulam but made no reference to any contact with an organisation assisting homosexuals. He claimed to have talked with taxi drivers and others in India, but did not recall with any specificity that any approach was made to any relevant organisation. Only after being asked about the claims made in the written statement regarding approaching an organisation, did the applicant refer to this, indicating that he had not done so earlier because [N] had made the approach. In the Tribunal’s view, the issue was so broadly discussed at the hearing that it is not possible that were the claims of approaching an organisation assisting homosexuals true the applicant would have failed to mention or recall this. In the Tribunal’s view, this indicates that the claims made are not true and that an entire story from the development of the claimed relationship to the last period of cohabitation in India has in fact been fabricated.   

   Furthermore, the applicant did not, prior to the hearing before the Tribunal, indicate that he was made an outcast by any religious committee before his marriage. In the Tribunal’s view, the applicant has only recently fabricated a claim to have been made an outcast at an earlier time in order to try to explain why any letter was written before his marriage. In the hearing before the Tribunal he initially made no reference to difficulties created by his wife’s family, indicating while they had threatened action in court and through another religious committee none had been taken. He linked the claimed publication of a notice in a daily newspaper as related to being made an outcast by Islahul Islam Sangham but could provide no explanation then for why the written statement makes no reference to that action by Islahul Islam Sangham before his marriage. The written statement clearly links the claimed publication of the relationship to actions of his wife’s family in filing a case against him, an action he claimed before the Tribunal they did not take. His only explanation for failing to mention the decision by Islahul Islam Sangham in his written statement was that it may have been missed. The Tribunal finds it completely implausible that the written statement would have failed to mention the very first action taken by a religious committee against the applicant were the claims true. This claimed action occurred either five to seven years before his marriage, on the applicant’s oral evidence, or two years before his marriage, taking the date of the letter. The failure to mention it prior to the hearing before the Tribunal suggests it is a recent invention. Nor does the Tribunal believe that were claims of publication of details of the relationship in media true, this would not have been correctly linked in the applicant’s written statement with much earlier actions by Islahul Islam Sangham rather than actions of his wife’s family, which his initial oral evidence to the Tribunal suggested did not occur.

   The Tribunal considered whether it was simply the case that a very inaccurate written statement had been prepared by a person assisting the applicant and that in fact his oral claims were sufficiently consistent to be relied upon. In the Tribunal’s view, this is not the case because the applicant’s oral evidence to the Tribunal was inconsistent within itself and he also demonstrated that he would alter his oral evidence to fit the claims made in the written statement, indicating that the applicant’s oral evidence was itself inaccurate. The issue as to the commencement of the claimed sexual relationship in the hearing was not consistent with evidence as to the treatment of [N’s] sister and her marriage also given in oral evidence at the hearing. There was no plausible explanation for this given by the applicant. He also persisted in his oral evidence as to the letter which had been presented having been given to him between 1988 and 1991, despite it clearly being dated 1994. He also made no reference to contact with an organisation assisting homosexuals in India in his oral evidence, but then indicated that this had occurred when asked about claims in the written statement, rather than indicating the written statement was inaccurate.

   For these reasons, the Tribunal does not believe the applicant has presented a truthful account of his sexuality, his past experiences in India or his fears of return there. The Tribunal does not believe the applicant is homosexual or has ever had a homosexual relationship or experienced difficulties in India as a result. The Tribunal does not believe any person in India believes that the applicant is homosexual nor that there has been any publication of such a belief in any form. In the Tribunal’s view, being aware that those who are homosexual may experience difficulties in India he has simply fabricated a claim in this regard to try to obtain a visa to remain in Australia.

   The applicant has presented six photographs of himself and [N] as well as a copy of [N’s] passport showing some travel to the Middle East as claimed. In the Tribunal’s view, however, these things do not overcome the nature of the applicant’s evidence identified above and merely establish that the applicant knows and has holidayed with [N] in the past. While there are two photographs at some sort of celebration, the applicant’s evidence as to this at the hearing was so vague and inconsistent with the claimed fears and past treatment in India that the Tribunal does not accept that he has been truthful about how or where it was produced. In the Tribunal’s view, the material which has been presented in this respect establishes nothing more than that the applicant has a personal friend from India who has also worked in the Middle East.

6. These proceedings began with a show cause application filed on 17 February 2011.  The applicant continues to rely upon that application.  The grounds in that application are:

   1. The decision made by [Tribunal] is Jurisdictional error

   2.Breach of Natural Justice

7. No particulars were provided. 

8. Ground 3 in the application was a promise for further material to be filed later.  I gave directions in this matter on 31 March 2011.  Those directions included providing the applicant with the opportunity to file and serve an amended application giving particulars of the grounds for review relied upon and additional evidence by 4 May 2011.  The applicant has not taken up that opportunity.  At the hearing of the matter today, he requested more time but I refused that request on the basis that it would not serve a useful purpose. 

9. In addition to the court book, I have before me as evidence a short affidavit filed with the show cause application on 17 February 2011.  I received paragraphs 1 to 4 of that affidavit as evidence and paragraph 5 as a submission.  The applicant also tendered exhibit A1, a letter dated 19 April 2011 from Mr Terence Ower of counsel which contains legal advice provided to the applicant pursuant to the Minister’s panel advice scheme.  I informed the applicant that the advice was privileged and he elected to waive his privilege in it for the purpose of tendering it to the Court.  Relevantly, Mr Ower’s advice was that he could not see any jurisdictional error in the decision of the Tribunal and that the applicant’s present application was likely to be dismissed with costs. 

10. The applicant was not able to advance any legal arguments in support of his application.  He stated that he was unable to return to India.  The applicant is understandably concerned that he was not believed by the Tribunal.  However, he has not advanced any coherent argument pointing to any arguable case of jurisdictional error by the Tribunal. 

11. Because the applicant is self-represented, I have myself considered whether there may be an argument of jurisdictional error available to him. Two possible arguments, in particular, occurred to me. The first relates to the Tribunal’s process of purported disclosure pursuant to s.424AA of the Migration Act, set out at [51] of the Tribunal’s reasons, (court book, page 128). The Tribunal incorrectly identified s.424A of the Migration Act instead of s.424AA.

12. The discussion of what occurred at the hearing in relation to that disclosure is brief and, in particular, it is not clear whether the Tribunal clearly explained to the applicant his entitlement to respond after the hearing. The Tribunal simply states that the applicant did not request an adjournment of the review. The Minister submits that neither s.424A nor s.424AA were engaged. This is because the information discussed with the applicant was information he provided at the oral interview before the Department which did not itself undermine, in any way, his protection visa application.

13. The issue for the Tribunal was apparent inconsistencies between that information and the later information provided to the Tribunal. I agree that inconsistencies between oral information provided to the Department and other information provided later to the Tribunal are not information for the purposes of s.424A(1)[1].  The prudent approach taken by the Tribunal in purporting to go through a process of oral disclosure does not point to any arguable case of jurisdictional error. 

    [1] SZBYR v Minister for Immigration (2007) 235 ALR 609 at [18]-[19]

14. The other possible issue concerned the Tribunal’s examination of s.91R(3) of the Migration Act. There are many difficult and unhelpful provisions in the Migration Act with which the Tribunal is required to grapple. Section 91R(3) is, in my view, the most difficult and unhelpful. It is so difficult and unhelpful that Tribunal members prudently attempt to avoid dealing with it at all. In the present case, the Tribunal grappled with the application of that provision at [81] and [82] of its reasons (court book, pages 135-136):

    The Tribunal also believes that the applicant’s conduct in Australia supports the view that he is fabricating his claims to being homosexual. He has presented a membership card from the Columbian Hotel and has claimed to have attended those premises on three occasions since December 2010. The Tribunal accepts that he has done so, however does not believe that this evidences that he is homosexual or that he engaged in this conduct for any purpose other than strengthening his application to be a refugee. He only commenced his involvement with the Columbian Hotel after the interview with the Department when he had indicated that he had heard information about gay organisations and lifestyle in Australia. This was a substantial time after his arrival in Australia and he has not taken any further action. He claimed during the hearing before the Tribunal that despite knowing of areas of gay culture he did not go out alone and had difficulty locating it which is not plausible in the Tribunal’s view. The applicant is well travelled in a range of countries and the Tribunal does not accept he would be so unwilling to engage to a greater extent with gay culture in Sydney were he homosexual. Having indicated during his interview with the Department that he had information about such matters, he has engaged to the most limited extent with the gay community in Sydney.

    In the Tribunal’s view, the available evidence supports the conclusion that the applicant has become a member of and attended on limited occasions the Columbian Hotel only for the purpose of presenting this information to strengthen his claim to be a refugee. Where he genuinely interested in engaging with gay culture in Sydney, one could have expected that he would have taken greater steps to do so. For these reasons, the Tribunal must disregard the applicant’s conduct in Australia in determining whether he holds well-founded fear in accordance with the requirements of s.91R(3) of the Act.

15. The Minister submits that the Tribunal was required to disregard the identified conduct of the applicant in Australia once the Tribunal had determined that the applicant had engaged in that conduct for the purposes of strengthening his application to be a refugee.  The Minister submits that on the authority of the decision of the High Court in Minister for Immigration v SZJGV (2009) 238 CLR 642, the Tribunal was, nevertheless, entitled to take the conduct into account in reaching its credibility conclusions.

1. In my view, that analysis, which is apparently the analysis followed by the Tribunal in this case, reflects a misunderstanding of the High Court’s decision.  The High Court in SZJGV stated that the application of s.91R(3) requires three tasks. The first task is to identify the relevant conduct in Australia and to determine whether the conduct, in fact, occurred. The second task if the conduct, in fact, occurred is to determine the applicant’s motivation for that conduct. The third task, if the Tribunal determines that the sole motivation for that conduct was to strengthen his protection visa claims, is to determine whether the applicant was successful in achieving his or her objective[2].

   [2] See SZJGV at [64]

2. In my view, it is only if the answer to the last question is “yes” that the Tribunal is required to disregard the conduct. In the present case, it is apparent from a fair reading of the Tribunal’s decision that the Tribunal did not consider that the applicant’s objective had been successful. On the contrary, the Tribunal stated that the applicant’s conduct in Australia supported the view that he was fabricating his claims. Accordingly, in my view, the Tribunal was not required to disregard the applicant’s conduct pursuant to s.91R(3). To that extent, the conduct was taken into account.

3. In any event, there was ample material before the Tribunal to support the Tribunal’s conclusion that the applicant’s essential claims for protection had been fabricated. Even if an arguable case of jurisdictional error in the application of s.91R(3) of the Migration Act were identified, the decision of the Tribunal was independently supported by its other credibility conclusions. In those circumstances, I would have refused relief in the exercise of the Court’s discretion even if I had identified clear error in relation to the application of s.91R(3).

4. I conclude that the applicant has failed to identify an arguable case of jurisdictional error by the Tribunal. Accordingly, I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

5. Costs should follow the event in this case.  The Minister seeks an order for costs fixed in the amount of $2,500.  That is below the amount prescribed under the Court’s Rules.  The applicant stated that he was not working at present.  However, I am satisfied that costs of not less than $2,500 have been reasonably and properly incurred when assessed on a party/party basis.  I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, which I fix in the sum of $2,500.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Driver FM

Date:  7 June 2011