SZQTJ v Minister for Immigration
[2012] FMCA 774
•6 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQTJ v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 774 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it relied on certain country information, failed to consider aspects of the applicant’s claims, failed to make inquiries, made an incorrect finding of fact, made findings for which there was no evidence, made findings which were irrational or illogical, failed to ask the right questions, failed to make a proper, genuine and realistic assessment of his applicant’s claims, failed to deal with the applicant’s claims in good faith and was biased. |
| Migration Act 1958, ss.65, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992 Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164 Swift v SAS Trustee Corporation [2010] NSWCA 182 |
| Applicant: | SZQTJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2364 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 29 August 2012 |
| Date of Last Submission: | 29 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 6 September 2012 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr H.P.T Bevan |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2364 of 2011
| SZQTJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Nepal who arrived in Australia most recently on 16 February 2010. On 14 January 2011 he lodged an application for a protection visa with the Department of Immigration and Citizenship, alleging that he feared persecution in Nepal because of his sexuality. On 13 April 2011 the applicant’s protection visa application was refused by a delegate of the first respondent (“Minister”). He then applied to the second respondent (“Tribunal”) for a review of that decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-11 of the Tribunal’s decision. Relevant factual allegations are summarised below.
The applicant made the following claims in a statement to the department dated 21 February 2011 and at his interview before the delegate on 23 February 2011:
a)he was homosexual;
b)his parents expected him to marry but he did not wish to comply because he was not attracted to women;
c)his parents, relatives and neighbours were conservative Hindus and it would be impossible for him to tell them that he was gay;
d)although he would be able to live independently of his family in Nepal, and thereby avoid the difficulties in his village, he would still face difficulties in society in general for being gay;
e)he lived in Kathmandu from 2005 to 2008 and during that period he went to a gay club. There was an incident at the club and he ran away when the police arrived. He otherwise pretended not to be gay;
f)he came to Australia in 2008 to study. He returned to Nepal for visits in 2009 and 2010 but returned to Australia to avoid marriage; and
g)he was seeking protection from harassment, discrimination and persecution due to his homosexuality. He feared harm from the Maoists, the authorities, people who hated homosexuals, religious communities, conservative elements in society and society in general.
The applicant appeared before the Tribunal on 13 September 2011 at which point he made the following additional claims:
a)he was aware that changes had taken place in Nepal “since the 2008 court case”, however, those changes were only superficial and gay men were still mistreated by the authorities and society;
b)the gay club he went to while he lived in Kathmandu was raided by the authorities. The club was targeted because its patrons were gay;
c)he told his parents that he was gay four months before the Tribunal hearing. They told him that he was dead to them;
d)he would not be able to face his family and relatives now that they knew that he was gay; and
e)positive reports regarding improved conditions for gay men in Nepal were exaggerated or fabricated to attract tourists. He would not be safe in Nepal.
During the course of the hearing the Tribunal put to the applicant information from various sources relating to the treatment of homosexuals in Nepal. Amongst others, these included:
a)a 2008 Supreme Court decision which decriminalised homosexuality in Nepal and prohibited discrimination on the basis of sexual orientation;
b)information from the United Nations Development Program indicating that a new civil code incorporating the findings of the Supreme Court ruling was to be implemented;
c)information that a prominent gay activist in Nepal, Mr Sunil Baba Pant, had been elected to parliament as an openly gay man. Mr Pant had also established the Blue Diamond Society whose work included “the improvement of human rights for all ‘sexual minorities’ in Nepal”;
d)information from the Blue Diamond Society indicating that:
i)although gay men continued to experience difficulties in some private situations, Nepal “in general has always been tolerant” and changes were “easily embraced”;
ii)the situation for homosexuals was improving and community acceptance was growing;
iii)there were reported cases of homosexuals being expelled from their (rural) families and villages because of their sexuality. Individuals who found themselves in such situations were moving to the cities;
iv)following the Supreme Court ruling, the reported incidence of violence and discrimination against homosexuals had diminished; and
v)conservative views persisted amongst orthodox Hindus but attitudes were slowly changing. The Maoists also seemed to be changing their policy regarding gays and lesbians; and
e)information that in 2010 the Nepali tourist industry was promoting Kathmandu as a destination comparable to Amsterdam or San Francisco as a supportive and friendly place for lesbian, gay and transgender travellers.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).
The Tribunal accepted that the applicant was homosexual and that homosexual men in Nepal continued to face discrimination and ostracism by society because of their sexuality. However, it was not satisfied that homosexual men in Nepal were subjected to discrimination or other forms of harm which amounted to persecution for the purposes of the Convention. The Tribunal formed the view, having regard to the information from external sources referred to during the course of its hearing, that the human rights conditions of homosexuals in Nepal had improved considerably since the end of the civil war in 2006 and the Supreme Court decision in 2008. The Tribunal also accepted the comments of the spokesperson for the Office of the United Nations High Commissioner for Human Rights in Nepal who stated that, despite concerns regarding the treatment of persons who identified as the “third gender”, Nepal was “to be commended as the only South Asian country to extend equal rights to the LGBTI [lesbian, gay, bisexual, transgender and intersex] members” through its Supreme Court ruling.
The Tribunal accepted that negative and conservative attitudes persisted in rural and remote communities, including in the applicant’s village and family, and that the applicant might be shunned by his family and other villagers for being gay. However, the Tribunal found that this would not amount to harm of such a nature or extent as to constitute persecution under the Convention. The Tribunal noted in any event that the applicant would be able to express his sexuality more freely in an urban environment where attitudes to sexuality were more liberal. In particular, the Tribunal found that the applicant would be able to live in Kathmandu, as he had done previously, and thereby avoid the conservative attitudes of his village, have greater access to services and support groups for gay men and have more opportunities to meet and socialise with other gay men.
In relation to the applicant’s broader claims that he feared harm from the authorities, the government, Maoists, religious figures, other relatives and conservative elements of society in Nepal because of his sexuality, the Tribunal was not satisfied that the applicant’s fear was well-founded. The Tribunal noted in this regard that it had formed the view that there had been significant improvements in the human rights conditions for homosexuals in Nepal since the end of the civil war and the Supreme Court ruling. The Tribunal found that despite continuing difficulties faced by gay men in Nepal, they were not commonly subjected to discrimination or other forms of harm which amounted to persecution for a Convention reason.
Proceedings in this Court
In the application commencing these proceedings the applicant alleged:
1.I believe the Tribunal Member failed to give me natural justice as it ignored my claims heavily relying on politically motivated country information on homosexuality as to my fear on return to Nepal. The Tribunal Member did not take into account of all aspects of my claim in relation to my fear of being harmed by the Maoists, conservative people, police and homophobic people in Nepal.
2.I argue that the Tribunal Member ignored or failed to use all the means to produce the substantial evidence in terms of my fear on return to Nepal. The Tribunal Member failed to consider whether I would succumb to pressure to marry and thereby suffer persecution. The Tribunal Member incorrectly found no Convention nexus to pressure to marry and these are jurisdictional errors.
3.I believe that the Tribunal committed a jurisdictional error in that there was no pure evidence to support certain factual findings made by the Tribunal in relation to country information on leading a normal life as a gay and that its findings were irrational or illogical and not effective in terms of leading a meaningful normal life in my country as a gay and I noticed the Tribunal Member was clearly influenced by the reports or comments on human rights conditions of gay men in Nepal advanced by the high profile gay politician, Mr Sunil Babu Pant and internets reports on homosexuals in Nepal which are specifically and purely politically motivated.
4.The Tribunal accepted that I am homosexual whereas there was the evidence that the Maoists attack on homosexual and I am opposed to them the fact is that Maoist is very influential in Nepal and they persecute their opponents. The Tribunal failed itself the right question and failed to deal with my claims because the Tribunal Member ignored by claims.
5.The Tribunal Member fell into error by overlooking an element of my claims that I face serious risk of harm not simply from the pressure upon me to marry but the consequences for me of a heterosexual marriage.
6.The Tribunal Member failed to consider the differential impact of pressure to marry upon homosexuals, as compared to heterosexuals.
7.It is contended that jurisdictional error is evident in the way in which the Tribunal ignored or failed to make a proper genuine and realistic assessment of the real risk of serious harm that I fear. I believe that the Tribunal Member has deprived me of natural justice, fairness and good faith in my case.
In his supporting affidavit, the applicant also claimed:
I argue that the Tribunal Member failed to properly determine my case as I believe the Tribunal Member had a predetermined conclusion about my case and I noticed during the course of hearing that the Tribunal Member did not show any genuine interest in my claims as to my fear of being forced to marry a woman by my parents and relatives if I were returned to Nepal instead the Tribunal Member spent most of the scheduled hearing time advising me of superficial and politically motivated reports on homosexuals and the societal attitude towards homosexual in Nepal after 2006 and ignoring my comments on them. This is unfair and I need justice in my case.
Ground 1
The first allegation made in the application contains two elements:
a)the Tribunal relied “heavily” on certain country information to reach its conclusion; and
b)the Tribunal ignored either the entirety or aspects of the applicant’s claims.
As to the first element of the first allegation, the choice of country information, and the weight to be attached to it, is a matter for the Tribunal as part of its fact-finding function: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]. It is not for the Court to substitute its views on such matters for those of the Tribunal.
As to the second of these elements, the summary of the Tribunal’s decision record set out above at [5]-[11] indicates that the applicant’s claim to fear persecution on the grounds of his sexuality had, indeed, been considered by the Tribunal. The applicant did not take the Court to any particular aspects or features of his claim which, on his allegation, had not been considered. The applicant’s claim was a comparatively uncomplicated one and I am not of the view, having considered the Tribunal’s decision record, that it did fail to consider the matters which the applicant advanced to it.
For these reasons, the first ground of the application is not made out.
Ground 2
The second ground of the application contains three elements:
a)the Tribunal failed to make inquiries;
b)the Tribunal failed to consider an aspect of the applicant’s claims, namely that he would succumb to pressure to marry; and
c)the Tribunal made an incorrect finding of fact.
As to the first of these elements, the Tribunal has no duty to make inquiries: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992 at 999 [43] per Gummow and Hayne JJ; Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 at 1129 [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. In the latter case, the High Court spoke of the possibility that a failure to make an obvious inquiry about a critical fact, the existence of which was easily ascertained, could, in some circumstances, supply a sufficient link to the outcome of the review to constitute a failure to review, which is the duty which the Act imposes on the Tribunal. It was said that if that was the case, such a failure could give rise to jurisdictional error in the form of a constructive failure to exercise jurisdiction. However, the applicant has not submitted, and the evidence does not suggest, that circumstances such as those discussed in SZIAI existed in this case. Consequently, the fact that the Tribunal did not initiate its own inquiries did not amount to jurisdictional error.
In relation to the second aspect of the allegation, at para.29 of its decision the Tribunal recorded that the applicant stated that when he returned to Nepal in 2009 and 2010 his family had pressured him to marry and that he had returned to Australia to avoid that situation. However, in para.63 of its reasons the Tribunal stated that it was satisfied by information from external sources that gay men living in Nepali cities could avoid the severe conservative attitudes which it stated persisted in rural and remote communities. The Tribunal went on to find, in substance, that it was reasonable and practicable to expect the applicant to avoid persecution by relocating to Kathmandu where he had already lived between 2005 and 2008. Although the Tribunal did not deal in express terms with the applicant’s claim to fear persecution in the form of succumbing to his family’s pressure to marry, it implicitly did so when it found that he could avoid the conservative attitudes persisting in rural areas and in his village in particular by relocating to the capital: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at 641 [47]. If its reasons are understood in this way, it can be seen that the Tribunal did not err in the manner suggested by the applicant.
The third aspect of this allegation invites the Court to review the Tribunal’s factual conclusions, which it cannot do. As noted earlier in these reasons, the Court’s role is restricted to determining whether the Tribunal’s decision is affected by jurisdictional error. The fact that the Tribunal reached a factual conclusion which might not have been reached by the Court does not amount to error of that sort.
For these reasons, the second ground of the application is not made out.
Ground 3
The third ground of the application contains the following elements:
a)there was no evidence to support the Tribunal’s findings based on country information concerning gay life in Nepal;
b)the Tribunal’s findings were irrational and illogical; and
c)the Tribunal should not have relied on certain country information.
The first element of this allegation appears to be that the Tribunal’s findings that it would be possible, and why it would be possible, to live as a gay man in Kathmandu without fear of persecution were entirely unsubstantiated by the country information to which it had access. As the summary of the evidence appearing above at [7] makes clear, this is not correct. Consequently, this assertion is not made out.
As to the allegation that the Tribunal’s findings were irrational and illogical, such an allegation is inappropriate to a finding of this sort. Questions of illogicality and irrationality are not relevant to intermediate findings of fact, such as the Tribunal’s conclusions concerning the ability of the applicant to live without persecution in Kathmandu, but to decisions in relation to the state of satisfaction required under s.65 of the Act: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611; SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1. In any event, for the reasons already given, the findings in question were adequately supported by the evidence.
As to the remainder of the second part of the allegation, in the context of the state of satisfaction required under s.65, illogicality and irrationality concern decisions for which there is no evidence or at which no rational or logical decision-maker could arrive: SZMDS; SZOOR. In this matter, the Tribunal’s lack of satisfaction that the applicant had a well-founded fear of persecution in Nepal for a Convention reason was adequately supported by intermediate findings of fact, such as the finding that the applicant could reasonably be expected to relocate to Kathmandu.
For the reasons given above in relation to the first element of the first ground of the application, the applicant’s challenge to the country information on which the Tribunal relied, and thus by implication to the findings based on that information, does not disclose legal error.
For these reasons, the third allegation in the application is not made out.
Ground 4
The fourth ground of the application alleges that:
a)the Tribunal failed to ask itself the right question; and
b)the Tribunal failed to deal with the applicant’s claims.
In relation to the first aspect of the allegation, the applicant has not identified what questions the Tribunal did not ask but should have asked. In this case, the question was whether the applicant had a well-founded fear of persecution in Nepal by reason of his sexual orientation. Related to that question was whether the consequences to the applicant in Nepal of being homosexual met the test of persecution as modified by the Act and, relevantly, whether he could relocate within Nepal such that there was no longer a real chance of such persecution occurring. All these questions were asked and answered by the Tribunal. In the circumstances, I am not satisfied that the Tribunal failed to ask questions which in the circumstances it was required to ask.
As to the second element of this allegation, for the reasons already given above in relation to the second aspect of the first ground of the application, it is not made out.
Ground 5
This allegation has already been dealt with in connection with the second ground of the application.
Ground 6
This allegation has also already been dealt with in connection with the second ground of the application.
Ground 7
The seventh ground of the application alleges that:
a)the Tribunal failed to make a proper, genuine and realistic assessment of the applicant’s claim to fear harm; and
b)the Tribunal failed to deal with his claim in good faith.
The allegation that the Tribunal failed to make a proper, genuine and realistic assessment of the applicant’s claim to fear harm is really no more than a complaint that it did not consider his claims in the way that he would have liked, rather than that it did not consider them at all. The requirement for the Tribunal to give “proper, genuine and realistic” consideration to matters is a reference to its obligation to consider an applicant’s claims, not a description of how that consideration is to be undertaken: Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164; Swift v SAS Trustee Corporation [2010] NSWCA 182 per Basten JA at [45], Allsop P agreeing. In this case, for the reasons already given, I am satisfied that the Tribunal did consider the applicant’s claims with the result that this aspect of the seventh allegation is not made out.
The implicit allegation that the Tribunal failed to deal with the applicant’s claims in good faith was not supported by any particulars or oral argument at the hearing of this application. The only evidence touching on that issue is the Tribunal’s decision record which is found in the Court Book which was exhibit A. The Tribunal’s account of its hearing with the applicant and its exposition of its reasons for decision do not evidence a want of good faith but, rather, a conscientious application to the review task with which the Tribunal was entrusted. Consequently, I am not satisfied that this allegation has been proved.
Ground 8 (affidavit)
In his affidavit the applicant has alleged bias, both actual and apprehended, on the part of the Tribunal. As to the allegation of actual bias, for the reasons given in relation to the second aspect of the seventh ground of the application I do not conclude that the Tribunal embarked on a review with a state of mind so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments might have been presented to it. As to the allegation of apprehended bias, no evidence of the conduct of the Tribunal hearing has been put before the Court other than what is contained in the Tribunal’s decision record. For the reasons given in relation to the second aspect of the seventh ground of the application, I am not satisfied that a fair-minded lay person properly informed as to the nature of the proceeding, the matters in issue and the conduct of the review hearing might reasonably have apprehended that the Tribunal might not bring an impartial mind to the resolution of the questions to be decided. In my view, there is no basis for the Court to make findings of bias, whether actual or apprehended, in this matter.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 6 September 2012
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