SZQCI v Minister for IMMGRATION - [2012] FMCA 734

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQCI v MINISTER FOR IMMGRATION & ANOR

[2012] FMCA 734

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether applicant given meaningful opportunity to participate in hearing before Refugee Review Tribunal in light of a mental disorder.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 424A, 424AA, 425, 474, Pt.8

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312
SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138
Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 35

Applicant:

SZQCI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 505 of 2012

Judgment of:

Emmett FM

Hearing date:

21 August 2012

Date of Last Submission:

21 August 2012

Delivered at:

Sydney

Delivered on:

21 August 2012

REPRESENTATION

The applicant appeared in person and was assisted by an interpreter in the Malayalam language via telephone.

Counsel for the Respondents:

Mr P Knowles

Solicitors for the Respondents:

Clayton Utz

ORDERS

The proceeding before this Court, commenced by way of application filed on 6 March 2012, is dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $6,240.

NOTE A: The application for costs is in accordance with the relevant schedule in the Federal Magistrates Court Rules 2001 (Cth).

NOTE B: The bundle of relevant documents identified as ‘Court Book’ and filed on 9 May 2012 was tendered by the first respondent and marked Exhibit 1R.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 505 of 2012

SZQCI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 14 February 2012 and handed down on 15 February 2012.
The applicant claims to be a citizen of India and of Muslim faith and Islamic ethnicity.

Background

On 19 June 2010, the applicant arrived in Australia having departed legally from India on a passport issued in his own name and a subclass 676 Tourist visa issued on 1 June 2010.
On 30 July 2010, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship under the Act.
On 9 November 2010, a delegate of the Department refused the applicant’s application for a protection visa.
On 2 December 2010, the applicant lodged an application for review of the delegate’s decision by the Refugee Review Tribunal.
On 7 March 2011, the Refugee Review Tribunal affirmed the decision of the delegate not to grant a protection visa.
On 24 August 2011, by consent, the decision of the Refugee Review Tribunal was set aside by the Federal Magistrate’s Court and the matter was remitted to the Refugee Review Tribunal for determination according to law.
On 15 February 2012, the Refugee Review Tribunal, differently constituted (“the Tribunal”) affirmed the decision of the Delegate not to grant a protection visa.
On 6 March 2012, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision dated 15 February 2012.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
Pursuant to s.91R(1) of the Act, a Convention related reason must be the essential and significant reason for the persecution, must involve serious harm to the person and involve systematic and discriminatory conduct. Section 91R(2) of the Act expands on the notion of persecution and serious harm when considering Art.1A(2) of the Convention.

The Applicant’s application for a protection visa

In his protection visa application, in response to questions in the section titled “Your reasons for claiming protection”, the applicant stated:
a)He is homosexual.
b)He has been in a genuine homosexual relationship for the past three years and lives with his partner.
c)Homosexual marriage is not allowed in Qatar.
d)He and his partner want to marry and live in Australia.
e)In February 2010, he was threatened and beaten by Popular Front of India members and required hospitalisation.
f)He and his partner fear they will be killed by the Popular Front of India or other Muslim fundamentalists.
g)Qatari authorities will not help because the government supports Popular Front of India because of their “vote bank”.
The applicant expanded on his claims during his interview with the delegate. He claimed that he had met his partner in Qatar where they both worked for the Qatari Royal Family. The applicant claimed that in March 2010 he was threatened by members of the Popular Front of India because of his homosexuality. The applicant claimed that he and his partner travelled to Australia with the Royal Family in 2010 and that during their stay the applicant’s manager discovered the applicant’s homosexual relationship. The applicant claimed that, as a result, he feared harm if returned to Qatar.

The Delegate’s decision

On 3 September 2010, the applicant attended an interview with the delegate.
On 9 November 2010, the delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention.
The Delegate did not accept that the applicant was a homosexual. The dlegate found the claims to be vague and scant in detail. The delegate did not accept the applicant’s claims of past persecution in India by reason of his homosexuality, found much of his evidence to be inconsistent and found that he was not a witness of truth.

The Tribunal’s review and decision

On 9 December 2011, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 1 February 2012 to give oral evidence and present arguments.
On 1 February 2012, the applicant attended the Tribunal hearing and gave evidence.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:
“12. The Tribunal reach a ‘firm conclusion’ that the Applicant was not a credible witness. It did not accept that the applicant was a homosexual, or that he was in a relationship with SZQCJ, or that he had been threatened by the PFI (CB 115-116 at[67]). There were a number of matters which led to this conclusion.
13. First, during his interview with the Tribunal the Applicant claimed that he was first threatened by the PFI in May 2010. However, this was inconsistent with the Applicant’s evidence to the Delegate and the earlier Tribunal (CB 113 at[163] – first dot point).
14. Secondly, the Delegate noted that the Applicant claimed in his protection visa application that he had been beaten by the PFI and required hospitalisation. However, this claim was not mentioned by the Applicant before the Delegate or the Tribunal (CB 113-114 at [163] – second dot point).
15. Thirdly, the Applicant told the earlier Tribunal that SZQCJ had been threatened by the PFI during a visit to India in 2009 and that his attackers mentioned the Applicant by name. Notwithstanding this threat, the Applicant returned to India in 2010 (CB 114 at [63] – third dot point).
16. Fourthly, the Applicant had given inconsistent accounts of:
(a) what consequences would flow from the Royal Family learning of his homosexuality (CB 114 at [163] – fourth dot point); and
(b) what he said when he met a person in Australia who later assisted him to apply for a protection visa (CB 115 at [163] – sixth dot point);
17. Fifthly, the Tribunal found that the Applicant had no adequate explanation for why he was able to visit gay venues in Australia when he hadn’t visited similar venues in other countries to which he had travelled with the Royal Family (CB 115 at [163] – fifth dot point).
18. Sixthly, the Tribunal held that photographs that the Applicant submitted in support of his claim demonstrated only that he socialised with SZQCJ. The photographs did not demonstrate that he and SZQCJ were in a homosexual relationship (CB 115 at [164]). ”

The proceeding before this Court

The applicant was unrepresented before this Court, although had the telephone assistance of a Malayalam interpreter.
On 8 May 2012, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court. The applicant confirmed that he wished to continue with the application. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.
At the directions hearing, the applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The applicant has participated in the Court’s Legal Advice Scheme and received free legal advice. The applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
At the commencement of the hearing, the Applicant confirmed that he had not filed any amended application, evidence or submissions in support of his application and that he had no further documents to present to the Court this morning in support of his application.
The applicant confirmed that he relied on the grounds contained in an application filed on 6 March 2012 as follows:
“1. The decision made by RRT is Jurisdictional error.
2. Breach of Natural Justice.
3. Will be filed later”
The grounds were interpreted for the assistance of the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
The applicant responded that neither the Delegate nor the Tribunal had accepted his claims and that the Tribunal’s final decision was against him. I confirmed with the applicant whether there was anything further he wished to say by way of explanation of the grounds of his explanation or his complaint about the Tribunal’s decision. The applicant had nothing further to say.
In the circumstances, none of the grounds are supported by particulars, evidence or relevant submissions. The applicant’s complaint appears to be entirely based on his disagreement with the Tribunal’s findings and conclusions. Such a complaint invites merits review which this Court cannot undertake, in the event that the Court is satisfied that the Tribunal’s findings were open to it on the evidence and material before it (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
The Tribunal commenced its decision record by correctly identifying the law relevant to its determination of whether or not the applicant has a well-founded fear of persecution in India for a Convention related reason.
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 per Beaumont J at 451; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 per Heerey J at 348).
The Tribunal recounted in some detail the applicant’s claims and subsequent correspondence with the Department about his claims. The Tribunal noted that correspondence included a letter from a psychologist stating that the applicant had described symptoms of adjustment disorder with mixed anxiety and depressed mood.
The Tribunal then noted various aspects of the delegate’s decision.
The Tribunal noted that the applicant had been invited to come to a hearing before the Tribunal on 1 February 2012 to give evidence and present arguments. The Tribunal noted that it told the applicant that it had examined the Department’s file, including the separate protection visa application submitted by his friend. The Tribunal also told the applicant that it had listened to the interview with the delegate of both the applicant and his friend.
The Tribunal noted that it explained to the applicant that all his claims for protection were in issue and that the hearing was his opportunity “to present his application”. In particular, the Tribunal told the applicant that the delegate had raised the issues of his general credibility, his alleged homosexual relationship and his claims in respect of the Popular Front of India.
The Tribunal then put to the applicant in great detail, in accordance with s.424AA of the Act, various information that caused it concern about the applicant’s claims, including inconsistencies in the applicant’s evidence and inconsistencies in the applicant’s evidence with that of his friend.
Whilst I accept the first respondent’s submission that the matters put to the applicant pursuant to s.424AA of the Act did not necessarily amount to a “rejection, denial or undermining of the applicant’s claims” (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at 17 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) there is nothing before me to indicate that the Tribunal did not fully comply with the requirements of s.424AA of the Act. For example, the applicant did not tender a transcript of the Tribunal hearing.
At the directions before me on 8 May 2012 the applicant was given an opportunity to file a transcript of a Tribunal hearing or to give notice if wished to rely on recordings of the Tribunal hearing. However, no step was taken by the Applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing (see NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).
Further, in the absence of any evidence to support a contention that the Tribunal did not comply with its obligations, the Court should infer that the Tribunal complied with its obligations in respect of s.424AA of the Act, to the extent that s.424A of the Act would have been otherwise enlivened (see SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312 at [19] per McKerracher J and SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138 at [38] per Rares J).
The Tribunal also noted the letter dated 7 October 2010 from the applicant’s psychologist and accepted that the applicant is anxious about his review application with the Tribunal. The Tribunal noted that it had listened to the recording of the first Refugee Review Tribunal hearing and was satisfied that the applicant “presented as able to fully discuss his claims and respond relevantly to the questions.”
The Tribunal noted the applicant’s claim that any inconsistencies or weaknesses in his application came from him being depressed or frustrated. The Tribunal noted it considered this explanation but was not persuaded by it. The Tribunal found that the inconsistencies in the applicant’s evidence which caused it to find that the applicant was not a credible witness came from conflicting statements made by the applicant during the opportunities he had for presenting his case.
Further, there was no evidence before the Tribunal, and nor is there before this Court, to suggest that the applicant’s mental state deprived him of a meaningful opportunity to participate in the hearing as required by s.425 of the Act (see Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at 20, 34-35 per Keane J, 48-49 per Emmett J).
The Tribunal also noted the applicant’s further explanation for his inconsistencies being the presence of a female interpreter in the interview with the delegate who made him embarrassed and suppressed. The Tribunal accepted that the applicant may have felt some embarrassment but did not accept that explanation as an excuse for the inconsistent responses and concerns identified by the Tribunal in its decision record.
Ultimately, the Tribunal comprehensively rejected the applicant’s claims, including his claim to have engaged in homosexual conduct in Australia, based on the Tribunal’s adverse credibility findings. The Tribunal did accept that the applicant may have visited a bar in Oxford Street, Sydney on one occasion, but found that he did so “only with a view to supporting his claim for protection.”

The Tribunal’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Further, a fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
Moreover, the Tribunal made clear to the applicant at the outset of the hearing that all his claims to protection were in issue, including his credibility. The Tribunal also made clear to the applicant that the hearing before it was his opportunity “to present his application”. As stated above, the Tribunal identified with particularity the concerns raised by the delegate. In the circumstances, the Tribunal has complied with its obligation pursuant to s.425 of the Act to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 35 and 37 per the Court).

Conclusion

A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 21 August 2012