SZOZV v Minister for Immigration
[2011] FMCA 483
•15 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOZV v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 483 |
| MIGRATION – RRT decision – Indian claiming fear of persecution for homosexuality – disbelieved by Tribunal – findings open on the evidence before the Tribunal – no procedural unfairness established – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 424AA |
| Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51 Re RRT & Anor; Ex Parte H [2001] HCA 28; (2001) 179 ALR 425 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 |
| Applicant: | SZOZV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 275 of 2011 |
| Judgment of: | Smith FM |
| Hearing date: | 15 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 15 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondents: | Ms M Stone |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,100.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 275 of 2011
| SZOZV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant arrived in Australia on a student visa in July 2008, at the age of 19. He enrolled in studies, but these came to an end in late 2009 without completion of his course. On 14 May 2010 he applied for a Protection Visa. In the application form and a short attached statement, he explained why he claimed to fear return to his country of nationality, India.
The applicant said that he came from a Sikh family which was “very strict with religion”. Prior to coming to Australia he thought he had been attracted to boys rather than girls. After he came to Australia, he visited Oxford Street, Sydney, “where I saw lots of homosexual people on the street…I started to go Oxford Street and looking for friend”. He cut his hair and beard, and ceased to wear a turban. This incurred displeasure from an elder brother who was also in Sydney, and his family were told and expressed their disapproval. He claimed to have met a person called “Smith” in an “Oxford Street gay club” and started sexual activities with this person. He was found doing this by his brother in November 2009, and the brother “threw all my stuff out of house. He called my parents about this incident. My father get really angry. My father said, ‘Don’t come to India. Now you are dead for us. We don’t want any relationship with you.”
The applicant said that his relationship with ‘Smith’ ceased, but he had new friends “Andrew and Matt”. He said: “I want to live my whole life as a homosexual. I can't go back to my country because my parent won’t accept me. My local community people, they won’t let me live there. They not accept me also. May they kill me if I go back India.” He claimed that the Indian authorities would not protect him.
The applicant did not attend an interview, to which he was invited by the Department of Immigration.
The delegate made a decision on 15 September 2010, which refused the visa application. The delegate was not satisfied that the applicant had established that he was a homosexual. Nor that, if he were, he would be persecuted in all parts of India.
The applicant appealed to the Tribunal, and attended a hearing on 8 December 2010. The hearing appears to have lasted for about three hours with a break. Neither party has tendered a transcript of what was said, and I accept the summary given by the Tribunal in its statement of reasons.
According to the Tribunal, it questioned the applicant about his claimed history and homosexual activities. It raised a number of concerns, including that he was unable to name any of the clubs which he claimed to have attended regularly, nor could he give any personal information about Smith - including his first name.
The Tribunal raised with the applicant the circumstances in which he had stopped attending his college in Sydney. The Tribunal put to the applicant records from the PRISMS Education database, which suggested that the last day of his study in a cooking course at Holmes Institutes was 25 September 2009, and that his enrolment was cancelled for failure to pay fees on 25 January 2010. The Tribunal put to the applicant that, if he had already ceased to attend college, then the claimed incident in November 2009 would appear unrelated, and his reasons for seeking to stay in Australia might be different. The applicant maintained that, although he had not paid fees due in September 2009, he did actually attend until the first week in December.
The Tribunal allowed the applicant further time to present documents and comments in relation to the matters put to him. The applicant then submitted to the Tribunal a letter from Holmes Institute which said:
This is to certify that (the applicant)…was enrolled in a Diploma of Hospitality Management course at Holmes Institute Pty Ltd ABN 44 112 115 643… having commenced 21/07/2008 and concluded 29/05/2009. (The applicant) has completed 87% of this course.
Following this was a Certificate IV in Hospitality (Commercial Cookery) course commenced 20/07/2009 and concluded 11/12/2009. (The applicant) has completed 25% of this course.
(The applicant) was a full time student for the duration of the course.
The Tribunal made a decision on 20 January 2011, which affirmed the delegate’s decision. In its statement of reasons, the Tribunal identified the claims made by the applicant and recounted what had happened at the hearing. It referred to the post hearing letter received from Holmes College. It then explained its findings and reasons.
The Tribunal said that the applicant’s evidence was “highly problematic” in a number of respects. It identified concerns about the vagueness of the applicant’s evidence about his homosexual conduct in Australia and his relationship with Smith. It said that the applicant’s evidence about that relationship “lacks credibility in the context of the evidence about the duration of the relationship”. The applicant had claimed to have a close relationship with Smith for five to six months, during which they saw each other at Smith’s house or at the applicant’s house on a weekly basis.
The Tribunal also considered the applicant’s delay in applying for protection in Australia. It discussed the entry on PRISMS, and also the applicant’s evidence including his letter from Holmes Institute. The Tribunal was unsure whether that letter indicated that the applicant had actually attended a course after September 2009, and found obscure its reference to his having “completed 25 per cent” of the second course. However, the Tribunal gave the applicant the benefit of doubts, and said that it accepted that the applicant may have actually attended college until early December, but it said: “on his own evidence he had already faced problems with the payment of course fees in September 2009”. The Tribunal said it was not satisfied that any problems relating to his payment of fees arose from the claimed discovery by his family of his homosexuality in November 2009, and from the family’s subsequent disowning of the applicant.
The Tribunal said that, even examining the delay only after February 2010, there were still three months which was not explained. It found “the delay of even three months after the realisation that he no longer had realistic prospects to gain residence on the basis of studies in Australia is significant”. The Tribunal concluded:
65. For the reasons above, the Tribunal finds that the applicant is not a credible witness, and has not given a credible account of his claimed homosexuality, the resulting problems from his family and the reasons he fears returning to India. The Tribunal finds that the applicant has contrived his evidence of his claimed homosexuality and the resulting problems this caused with his family, for the purposes of establishing a claim for refugee status. The Tribunal does not accept that the applicant is or ever has been a homosexual. The Tribunal does not accept that the applicant fears harm if he returns to India for this reason. The Tribunal does not accept that the applicant has had any homosexual relationships or encounters since his arrival in Australia, and that his family has discovered his homosexuality in Australia and that as a result his family has disowned him and his father had threatened to kill him or have him killed if he returns to India.
66. The Tribunal does not accept that the applicant cut his hair and shaved his beard after his arrival in Australia for any reason related to his claimed homosexuality or attempt to attract the interest of homosexual men. The Tribunal has considered the claims that because the applicant is from a strict Sikh family, his general actions in cutting his hair and shaving his beard angered his family and resulted in threats by his father. The Tribunal is prepared to accept that the applicant’s family may disapprove of the applicant taking action to adopt a more secular or Western lifestyle in cutting his hair and ceasing to wear a turban, and in shaving his beard. However, given the adverse findings about in relation to the applicant’s credibility, the Tribunal does not accept that the evidence establishes the applicant faces any real chance of serious harm from his family if he returns to India on account of his decision in Australia to cut his hair and not wear a turban, and to shave his beard.
67. The Tribunal is not satisfied by the available evidence that the applicant holds a well-founded fear of being persecuted for a Convention reason if he returns to India now or in the reasonably foreseeable future.
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 makes 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 should have been believed, nor whether he should be given any permission to stay in Australia.
The applicant’s grounds of his application are set out in his original application, and he has not filed an amended application or written submission. His application has the following grounds:
1.The Tribunal failed to accord procedural fairness:
Particulars
a)The Tribunal erred in law amounting to jurisdictional error in finding that I shall not be a subject of adverse treatment in my country of origin for my homosexuality. The Tribunal failed to consider that I was involved in homosexual activities in Australia and I shall face harm by my family and community on my return back to India. The Tribunal failed to consider my situation appropriately and did not consider the persecutions I will experience if I return to India. The Tribunal made errors of jurisdiction disregarding my conduct and my homosexual engagement in Australia and concluded that I am not a homosexual and I have a real chance that I shall be harmed for the reason of my sexual orientation or any other Convention reason;
b)The Tribunal failed to take into account the relevant consideration at the time of decision for refusing my case. The Tribunal made errors of law for its failure to consider me as a credible witness for my claims. The Tribunal emphasised that the reasons of my application for a protection visa was the change of government regulation for student to apply for permanent residence in Australia, not my homosexual relationship and related problems. The Tribunal was biased to take the decision on my application;
c)The Tribunal failed to perform the duty imposed on it by the Migration Act (section 424(1));
2.The Tribunal failed to take into consideration of the threat to my life and/or liberty and the significant discrimination that I will face if I return to India because of homosexual relationship;
The Tribunal did not give me opportunity to submit my explanations and materials in reply to the alleged adverse materials the Tribunal considered at the time of decision and the Tribunal failed its duty;
The Tribunal failed to correctly recognise that I could be singled out and targeted because of my homosexuality;
3.The Tribunal made an erroneous approach to my claims and failed to address my mind to the materials questions arising out of my claims for Protection Visa and made errors;
…I state for the reasons stated above there are errors of jurisdiction of the Tribunal at the time of the decision. I was not also provided natural justice and the Tribunal did not pursue procedural fairness to make the decision of refusing my application.
Essentially, in my opinion, these grounds contend that the Tribunal made an incorrect decision on the evidence before it. However, they do not identify any conclusions reached by the Tribunal which could be characterised as unreasonable, illogical, or not rationally founded upon the evidence before it. The applicant’s arguments, essentially, only invite the Court to make a decision for itself about the applicant’s qualifications for the visa, but this is not its function.
I am unable to detect any relevant evidence or considerations which were not considered by the Tribunal. In particular, in my opinion, the Tribunal’s reasoning in relation to the applicant’s delay in making a protection visa application was open to it as a matter of law.
I am unable to draw any inference from the Tribunal’s reasoning that it might have approached the matter with a closed mind prior to decision. (cf. Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51 at [18], which cites SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [44]). I can find nothing elsewhere in the evidence before me to give substance to the assertion of bias under principles examined by the High Court in Re RRT & Anor; Ex Parte H [2001] HCA 28; (2001) 179 ALR 425.
I am also unable to detect any failure by the Tribunal to afford procedural fairness, insofar as those obligations are regulated by the Migration Act, and the reference to s.424(1) in Particular (c) of ground 1 is completely obscure to me.
In relation to ground 2, the second paragraph appears to complain about the Tribunal’s compliance with procedures required under ss.424A or 424AA in relation to information coming within s.424A(1) of the Migration Act. No particular deficiency is identified.
It is clear from the Tribunal’s description of the hearing that, at that time, it did consider information on the PRISMS data base which it thought required compliance with those procedures. However, I accept the submissions made on behalf of the Minister that the Tribunal appears to have adequately followed procedures required by 424AA in relation to that information. Certainly, in the absence of a transcript, I am not prepared to conclude that it did not sufficiently comply with those procedures. The Tribunal did allow the applicant further time to submit material in response, after the hearing. The jurisdictional error asserted in ground 2 is therefore not made out.
As I have noted above, the other parts of ground 2 and ground 3 appear only to challenge the merits of the Tribunal’s decision.
The applicant’s submissions to me today repeated his refugee claims but, in my opinion, did not raise any arguable ground of jurisdictional error.
The applicant suggested that, if the matter were sent back to the Tribunal, he could produce financial records which would corroborate his claim in relation to still hoping to be able to continue studies in January 2010. However, I do not have power to order the Tribunal to conduct a further hearing in the absence of jurisdictional error affecting its decision. Moreover, as I have noted, the Tribunal appears to have given the applicant the benefit of the doubt in relation to his claims about that matter.
Taking into account all that the applicant has said to me, I am not satisfied that the Tribunal’s decision was affected by any jurisdictional error. I must therefore dismiss the application.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 29 June 2011
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