SZQEX v Minister for Immigration
[2011] FMCA 737
•27 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQEX v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 737 |
| MIGRATION – VISA – Protection (Class XA) visa – review of Refugee Review Tribunal decision – citizen of Egypt claiming fear of persecution because of sexuality and because of religion – natural justice – procedural fairness – whether applicant was denied natural justice or procedural fairness – whether applicant had opportunity to give evidence or make submissions about determinative issue – evidence – relevant evidence – whether Tribunal took into account relevant evidence – proper, genuine and realistic consideration – whether Tribunal gave proper, genuine and realistic consideration to the Applicant’s claims. |
| Migration Act 1958 (Cth), ss.414, 422B, 424A, 425, 476 |
| Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; 231 ALR 592; 81 ALJR 515 SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486 |
| Applicant: | SZQEX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 851 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 13 September 2011 |
| Date of Last Submission: | 13 September 2011 |
| Delivered at: | Sydney |
| Delivered on: | 27 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Nair |
| Solicitors for the Applicant: | No solicitor - direct brief |
| Counsel for the Respondents: | Ms Weston |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The Amended Application filed on 9 September 2011 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 851 of 2011
| SZQEX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an Application for review of a decision of the Refugee Review Tribunal. On 8th April 2011 the Tribunal affirmed the decision of a delegate of the Minister for Immigration and Citizenship not to grant the Applicant a Protection (Class XA) visa.
By his Amended Application filed on 9th September 2011, the Applicant seeks an order setting aside the Tribunal decision and a writ of mandamus directed to the Tribunal requiring the Tribunal to determine the Application according to law.
The Applicant relies on the following grounds:
a)The Tribunal did not accord the Applicant natural justice and procedural fairness. The Tribunal did not give the Applicant a sufficient opportunity to give evidence, or make submissions, about a determinative issue in relation to the decision under review.
b)The Tribunal did not take into account relevant evidence.
The Minister has filed a Response opposing the orders sought.
Background
The Applicant is a citizen of Egypt. He arrived in Australia on
16th February 2010. On 11th June 2010 he filed an Application for a Protection visa, claiming to have suffered persecution because of his membership of a particular group, homosexual men.
In his Application for a visa, the Applicant claimed:
The Egyptian police arrested me with other group of Gay when we engaged on public conference in Cairo when I visit my friends in Egypt on January 2010.
I been engaged with Gay’s clubs in Australia and I established a strong relationship friends in Australia and Egypt.
The reasons of my studies in Australia because I need to escape from my family, relatives and Islamic peoples. They discriminated us because of homosexuality.
I been gay since I was 16 years old. My first friend when I was at school.
I had been persecuted from my family, relative, police, Church and Islamic groups.
On many occasions the Egyptian police arrested me, assaulted me physically and I had been abused because I am gay.[1]
[1] Court Book at page 7
On 27th July 2010 the Department of Immigration and Citizenship wrote to the Applicant’s then migration agent, Mr Mercurius, inviting the Applicant to attend an interview with an officer of the Department on 18th August 2010.[2] The Applicant attended the interview.
[2] Court Book at 47
On 7th September 2010 the Applicant’s application for a protection visa was refused. In the Protection (Class XA) Visa Decision Record, the Minister’s delegate noted that the interview did not proceed. The delegate stated:
The applicant was offered and attended an interview in relation to this application on 18 August 2010. An Arabic interpreter was provided, but she was refused because she was a female. After an initial attempt to conduct the interview in English, he chose to terminate the interview rather than wait for a telephone interpreter.
At interview, the applicant was offered a second interview and requested to provide a full Statement of Claims. A two week deadline was given until 2 September 2010. As at today’s date, 7 September 2010, no further information has been provided and no further request for an interview has been received from his agent.[3]
[3] Court Book at 56
The delegate proceeded to make a decision, after having considered the material on the Department’s file.
The delegate referred to country information, including a report from Amnesty International from 2010, The State of the World’s Human Rights, and stated:
Available country information indicates that homosexual men in Egypt may be at risk of serious harm (CX238961, CX227125). This information, however, is not evidence of the risk of persecution of this applicant. Country information also indicates that many men who have sex with men are able to live safely in Egypt.
I am not, however, satisfied that the applicant is homosexual. In making this assessment I have considered the applicant’s statement and find he has provided insufficient information about his alleged homosexual lifestyle and relationships. I also consider that his behaviour in Australia is not consistent with someone who possesses and imminent fear of return, or is indeed homosexual.[4]
[4] Court Book 61-62
The delegate went on to state that:
The cumulative voids and inconsistencies in the applicant’s claims lead me to doubt his claims of homosexuality and I therefore find that his claims of fear of harm on the basis of being of being a homosexual are not well-founded.
I have considered the applicant’s claims individually and cumulatively. I am not satisfied that the applicant faces a real chance of serious harm if he returns to Egypt for a Convention reason.[5]
[5] Court Book 63
After the Applicant was refused a protection visa, he applied to the Refugee Review Tribunal for review of the delegate’s decision.
Application to the Refugee Review Tribunal
On 4th November 2010 the Tribunal wrote to the Applicant, care of his then lawyers, on 4th November 2010, inviting him to attend a hearing of the Tribunal on Monday 6th December 2010. The Applicant forwarded a Response to hearing Invitation, indicating that he wished to attend and required the services of an interpreter in the Arabic language. Whilst he indicated that he had no preference for either a male or female interpreter, the Applicant stipulated that “The interpreter must be Christian”.[6]
[6] Court book 91
The Tribunal rescheduled the hearing to Tuesday 7th December and advised that an Arabic “Non Muslim” interpreter would be provided.[7]
[7] Court Book 94
The Applicant attended the Tribunal hearing on 7th December 2010 and gave evidence. A copy of the transcript of the hearing can be found in the Court Book at pages 127 to 155.
That same day the Tribunal wrote to the Applicant via his migration agent, inviting him to comment on certain information, namely:
…At the hearing you gave evidence that you frequent the ‘Mars in Chinatown’ once or twice a week and that you go there on Friday afternoons. The website states the club is only open from 9pm in the evenings.[8]
[8] Court Book 102
The letter was clearly intended to comply with the provisions of section 424A of the Migration Act. The letter requested the Applicant’s written comments or response by 30th December 2010.
On 29th December 2010 Mr Mercurius wrote to the Tribunal requesting an extension of one week to provide a reply.[9] The Applicant himself wrote to the Tribunal on 3rd January 2011 saying that he had been unable to contact Mr Mercurius since 15th December and seeking a further extension of time. He stated that he had given some documents to Mr Mercurius to forward to the Tribunal.[10]
[9] Court Book 104
[10] Court Book 105
The Tribunal refused the request for an extension of time but advised Mr Mercurius that the Member would not be making a decision until after 7th January 2011 and would accept any response or further information up until the time the decision was made.[11]
[11] Court Book 109
The Tribunal wrote to Mr Mercurius on 7th January 2011, asking him about the documents referred to in the Applicant’s letter.[12]
[12] Court Book 111
The Tribunal wrote to the Applicant by email on 14th January 2011, saying:
The Tribunal is aware that you have been unable to contact your representative despite numerous attempts. Although the date respond has passed, the Member has decided that in the circumstances a decision will not be made on your case until after 28 January 2011. Any information that you wish to provide must be received by the Tribunal by 28 January 2011.
Also can you please advise the Tribunal in writing if Mr Mercurius is still your Authorised Representative.[13]
[13] Court Book 113
On 25th January 2011 Mr Christopher Levingston wrote to the Tribunal advising that he acted for the Applicant and requesting copies of the RRT application, the RRT file and a copy of the hearing disc.
Mr Levingston also sought an extension of time to reply to the Tribunal’s letter.[14]
[14] Court Book 117
The Tribunal replied on 11th February 2011 advising that the Member would defer making a decision until after 4th March.[15]
[15] Court Book 124
On 16th March 2011 Mr Levingston made a submission to the Tribunal in reply to the Tribunal’s s.424A letter. He referred to the transcript of the hearing where the Tribunal asked the Applicant about attending the Mars Bar and stated:
This answer and the question were not properly translated by the interpreter. Confusion arose through the use of Lebanese Arabic as opposed to Egyptian Arabic. The lack of precision in the interpreter about the time of day in the question led to the incorrect answer. The earlier answers on the same page were infected with the same error.[16]
[16] Court Book 162
On 11th April 2011 the Tribunal notified the Applicant that the Tribunal had decided to affirm the decision under review.[17]
[17] Court Book 171
The Refugee Review Tribunal Decision
In its Decision Record, the Tribunal found that the Applicant was a citizen of Egypt. The Tribunal noted that the Applicant claimed to fear persecution as a homosexual and that he claimed to fear harm based on his religion in combination with his sexuality.
The Tribunal found the applicant’s claims to be homosexual “unpersuasive and not supported by detail or corroborative evidence”.[18] The Tribunal stated that:
The applicant claimed he frequented a particular gay club in Adelaide on Friday afternoons and evenings. Enquiries by the Tribunal revealed the club does not open until 9pm. The applicant claimed in a response to an invitation pursuant to s.424A on this issue that the interpreter did not interpret the question or his response correctly. The Tribunal accepts this is a plausible explanation. However, the Tribunal also found the applicant’s description of the club in question and his responses to questions about gay venues he frequented in both Sydney and Adelaide to be vague and undetailed. The Tribunal is not satisfied on the evidence that the applicant has frequented the Mars Bar in Adelaide or other gay bars or clubs.[19]
[18] Court book 183 at paragraph [66]
[19] Court Book 183 at [67]
The Tribunal also referred to the Applicant’s claim that he would face serious harm amounting persecution for being a Coptic Christian.
The Tribunal stated:
The Tribunal accepts the applicant is Coptic Christian, based on his living in Coptic Christian accommodation. The applicant gave evidence that while he lives in Coptic Christian housing, he does not attend the church. There is no evidence before the Tribunal or claim that the applicant faced serious harm amounting to persecution prior to his leaving Egypt because of his religion. The Tribunal does not accept the applicant has a genuine and well-fou7nded fear of persecution for reason of his religion, given the delay in applying for a protection visa and his return trip to Egypt.[20]
[20] Court Book 185 at [75]
The Tribunal was not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention and, therefore, he did not satisfy the criterion set out in s.36(2) of the Act for the issue of a protection visa.
Application for Judicial Review
The Applicant, in the first ground of his Application, claims that the Tribunal did not accord him natural justice and procedural fairness in that it did not give him a sufficient opportunity to give evidence or make submissions about a determinative issue in relation to the decision under review.
The particulars of that ground are that the Tribunal had found that the Applicant’s responses to questions about gay venues that he had frequented in Sydney and Adelaide was vague and undetailed.
The Applicant claims that he was not on notice that a detailed knowledge of gay bars or clubs that he attended in Sydney was an issue in the decision under review. He claims that the Tribunal did not give him an opportunity to demonstrate this knowledge.
In his submissions, counsel for the Applicant, Mr Nair, referred the Court to the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[21] at, where their Honours said at [32]:
In Alphaone[22] the Full Court rightly said at (27):
‘It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.’[23]
[21] [2006] HCA 63; (2006) 228 CLR 152; 231 ALR 592; 81 ALJR 515
[22] Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
[23] (2006) 228 CLR 152 at [32]
It was submitted that the issue of the Applicant’s knowledge of the gay bars or clubs he claimed to have frequented in Sydney was a material and determinative issue in the decision under review. The only questions asked were the names of these gay clubs and bars.
The Applicant provided the names of two such clubs or bars. He could not be said to have been on notice that other details of the gay clubs and bars he attended in Sydney were a relevant issue.
Counsel for the Applicant submitted that it was never put to the Applicant that other details of the gay clubs and bars he attended in Sydney were a relevant issue. Thus, it is submitted that the Tribunal denied the Applicant procedural fairness in not putting this determinative issue to him.
The Applicant’s second ground is that the Tribunal did not take into account relevant evidence. Particulars of that ground are that the Applicant claimed a well-founded fear of persecution because he was a member of a particular social group, being Coptic Christian, homosexual and a citizen of Egypt. The Tribunal found that there was no evidence before the Tribunal or a claim that the Applicant faced serious harm amounting to persecution before leaving Europe because of his religion.
However, the Applicant submits that he had given evidence that some of his persecutors were “fanatic Muslims”[24] and that he had been called an “infidel Christian and gay”.[25] This evidence is set out in the transcript of the proceedings. The Applicant submits that the Tribunal failed to give proper, genuine and realistic consideration to his claims and evidence. Thus, the Tribunal failed to carry out the review mandated by s.414 of the Act.
[24] Court Book 140-141
[25] Court Book 151
Counsel for the Applicant referred to the decision of NAJT v Minister for Immigration & Multicultural & Indigenous Affairs[26], where Madgwick J, with whom Conti J agreed, said at [212]:
…A decision-maker cannot be said to ‘have regard’ to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration…’a decision-maker may be aware of information without paying any attention to it or giving it any consideration’.[27]
[26] [2005] FCAFC 134; (2005) 147 FCR 51
[27] [2005] FCAFC 134 at [212]
Mr Nair also referred the Court to the decision of the Full Court of the Federal Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2)[28], where their Honours said at [63]:
It is plain enough, in light of Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error.[29]
[28] [2004] FCAFC 263; (2004) 144 FCR 1
[29] [2004] FCAFC 263 at [63]
It was submitted that the Court should find that the Tribunal failed to give proper, genuine and realistic consideration to the Applicant’s evidence.
The solicitor for the Minister, Ms Weston, submitted that the Applicant’s first ground of review had not been made out. It is not the role of the Court to reconsider the merits of the Applicant’s case.
The ground is essentially a claim of a breach of s.425 of the Act, being a failure to put a determinative issue to the Applicant. Such a claim misconstrues and overstates the Tribunal’s obligations under s.425.
The Tribunal is obliged to inform the Applicant of the determinative issue but not of each fact that relates to it (SZJUB v Minister for Immigration and Citizenship[30] at [25]).
[30] [2007] FCA 1486
It was also submitted that the Applicant was on notice that the entirety of his claims was in issue (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[31] at [47[).
[31] supra
As to the Applicant’s second ground, Ms Weston submitted that the Applicant was focusing only on paragraph [75] of the Tribunal’s decision and was reading the decision selectively rather than broadly. The Tribunal did consider the Applicant’s claim to be a Coptic Christian and it did consider his claim of a fear of harm because of his religion.
Conclusions
The Applicant had claimed a fear of persecution in Egypt because of his homosexuality. He was always on notice that the question of homosexuality was in issue. This was apparent from the delegate’s decision:
I am not, however, satisfied that the applicant is homosexual. In making this assessment I have considered the applicant’s statement and find he has provided insufficient information about his alleged homosexual lifestyle and relationships. I also consider that his behaviour in Australia is not consistent with someone who possesses an imminent fear of return, or is indeed homosexual.[32]
[32] Court Book at 62
Thus, it should have come as no surprise to the Applicant that the central question of his claimed homosexuality was in issue when he attended the Tribunal hearing. The Tribunal asked him for details about the gay bars that he attended and, eventually, was not satisfied that he had provided sufficient detail of those establishments to establish that he was a homosexual who attended those premises.
It is always for an Applicant to satisfy the Tribunal that he is entitled to a visa. The Tribunal does not have to provide contradictory evidence.
Details of the particular gay bars that the Applicant attended do not constitute a particular issue. They are no more than part of the evidence that the Applicant needed to provide to satisfy the Tribunal about his homosexual lifestyle.
The Tribunal complied with s.425 of the Act by inviting the Applicant to attend a hearing. An interpreter was provided and the Tribunal met the Applicant’s wish about the person who was to be the interpreter. The Applicant had asked for an interpreter who was a Christian[33] and the Tribunal’s notice of the rescheduled hearing stated that the interpreter was to be “Arabic (non Muslim)[34].
[33] Court Book 91
[34] Court Book 94
Further, the Tribunal sought the Applicant’s comments about its information that, whilst the Applicant said that he had attended the Mars Bar in Chinatown once or twice a week on Friday afternoons, the bar’s website showed that it did not open until 9:00pm.[35] This was clearly a compliance with s.424A of the Act.
[35] Court Book 102
The Tribunal went to some trouble to give the Applicant the opportunity to provide his comments or response to that information. Whilst it originally set a deadline of 30th December 2010 to provide that information, the Tribunal wrote to the Applicant seeking his comments on 5th January, 14th January and 11th February 2011.
The time for making the decision was repeatedly put back, from early January until April. The Applicant’s new solicitor, Mr Levingston, in his letter to the Tribunal of 16th March 2011, provided the Applicant’s response, saying that the interpreter had wrongly translated the question and the answer.[36]
[36] Court book 162
I am not satisfied that the Tribunal failed to comply with s.425 of the Act by not according him natural justice or procedural fairness. Section 422B of the Act provides that Division 4 of Part 7 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Thus, if the Tribunal complies with the requirements of s.424A and 425, as it did in this case, there is no denial of natural justice.
The Applicant was on notice that the whole of his claim was in issue, including whether or not he was a homosexual. The Tribunal provided the Applicant with sufficient opportunity to give evidence or make submissions about that issue. The Applicant did not provide the Tribunal with sufficient detail to satisfy the Tribunal of his claim to be a homosexual.
The Applicant’s first ground of review has not been made out.
The Applicant’s second ground of review claims that the Tribunal did not take relevant evidence into account. The Applicant had claimed that the reasons for his persecution were his religion and his homosexuality. His solicitor wrote to the Tribunal on 16th March 2011, saying:
The case sought to be articulated on behalf of the Applicant is embraced by three elements making up the whole. First he is a citizen of Egypt, second he is a Coptic Christian, third, he is a homosexual.
The particular “convention head” is an amalgam member of a particular social group (homosexual) and religion (Coptic Christian).[37]
[37] Court Book 161
The Applicant claims that the Tribunal failed to give proper, genuine and realistic consideration to his evidence going towards his claim of persecution by reason of his religion.
The Tribunal was aware of the Applicant’s claim to be a citizen of Egypt and found that he was.[38]
[38] Court Book 183 at [63]
Similarly, the Tribunal was aware of the Applicant’s claim to be a homosexual and did not accept that he was:
The Tribunal find’s the applicant’s claims to be homosexual to be unpersuasive and not supported by detail or corroborative evidence.[39]
[39] Court Book 183 at [66]
The Tribunal also considered the Applicant’s claim to face serious harm amounting to persecution for being Coptic Christian. The Tribunal accepted that the Applicant is a Coptic Christian but found that:
There is no evidence before the Tribunal or claim that the applicant faced serious harm amounting to persecution prior to his leaving Egypt because of his religion. The Tribunal does not accept the applicant has a genuine and well-founded fear of persecution for reason of his religion, given the delay in applying for a protection visa and his return trip to Egypt.[40]
[40] Court Book 185 at [75]
The Transcript shows that the Applicant claimed that he faced persecution from someone who was from the “fanatic Muslims”[41] and people said he was “an infidel Christian and gay”.[42]
[41] Court Book 140
[42] Court Book 151
The Tribunal referred in its summary of the Applicant’s evidence to the fact that he claimed that his neighbours, who were “fanatic Muslims” spat on him and abused him and his friends:
They said they would kill them if they saw them again.[43]
[43] Court book 176 at [32]
The Tribunal did ask the Applicant about his claim to have been persecuted by Islamic groups[44] and noted his claim that:
He is scared to return to Egypt because his family will kill him or the Islamic groups will kill him for being an infidel Christian and gay, or he will be imprisoned for three years.[45]
[44] Court Book 178 at [40]
[45] Ibid at [43]
The Tribunal considered country information about religious freedom and discrimination against Christians in Egypt.[46]
[46] Court Book 180-181 at [62]
When the Tribunal considered the Applicant’s claim to fear persecution for being Coptic Christian and rejected that claim, it appears clear that the Tribunal’s statement that “There is no evidence before the Tribunal or claim that the Applicant faced serious harm amounting to persecution prior to his leaving Egypt because of his religion” amounts to no more than a rejection of the Applicant’s evidence about his claim.
It is apparent that the Tribunal did consider the Applicant’s evidence about persecution by Muslims. It was more than just aware of the evidence. However, it did not accept the evidence.
The Applicant’s second ground of review has not been made out.
There is no jurisdictional error. The Application will be dismissed.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 23 September 2011
0