SZQZS v Minister for Immigration and Citizenship

[2012] FCA 903

FEDERAL COURT OF AUSTRALIA

SZQZS v Minister for Immigration and Citizenship [2012] FCA 903

Citation:		SZQZS v Minister for Immigration and Citizenship [2012] FCA 903
Appeal from:		SZQZS v Minister for Immigration and Citizenship [2012] FMCA 382
Parties:		SZQZS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 733 of 2012
Judge:		FOSTER J
Date of judgment:		21 August 2012
Legislation:		Migration Act 1958 (Cth), s 91R(3)
Cases cited:		SZQZS v Minister for Immigration and Citizenship [2012] FMCA 382 related Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 cited Randhawar v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 cited Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 applied
Date of hearing:	21 August 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	30
Solicitor for the Appellant:	The Appellant appeared in person with the aid of an interpreter
Solicitor for the Respondents:	Ms L Weston of Minter Ellison

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 733 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQZS
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FOSTER J
DATE OF ORDER:	21 AUGUST 2012
WHERE MADE:	SYDNEY

THE COURT:

1.GRANTS LEAVE to the first respondent to file in Court the affidavit of Laura Frances Weston affirmed on 21 August 2012.

2.GRANTS LEAVE to the first respondent to read and to rely upon the said affidavit of Laura Frances Weston.  

3.NOTES that, in light of the fact that the appellant has now appeared at the hearing, the affidavit of Laura Frances Weston referred to in pars 1 and 2 above is no longer relied upon.

4.ORDERS that the appeal be dismissed. 

5.ORDERS that the appellant pay the first respondent’s costs of and incidental to the appeal, as taxed or agreed.   

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.  

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 733 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQZS
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FOSTER J
DATE:	21 AUGUST 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate delivered on 4 May 2012 (SZQZS v Minister for Immigration and Citizenship [2012] FMCA 382). By that decision, the Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) given on 24 November 2011. 

2. The appellant is a citizen of Nepal, who was born on 17 August 1985.  He first arrived in Australia in 2007 as the holder of a Class TU Student (Subclass 572) visa.  He was subsequently granted a Student (Subclass 573) Further Stay visa in August 2008. 

3. On 14 March 2011, the appellant applied for a protection (Class XA) visa.  A delegate of the first respondent (the Minister) made a decision to refuse the appellant’s application for a protection visa on 9 June 2011. 

   THE TRIBUNAL PROCEEDINGS

4. The appellant claimed to be homosexual.  He claimed that he faced a well-founded fear of harm in Nepal by reason of his homosexuality.  In the materials which supported his claim for a protection visa, the appellant raised the following specific matters:

   (1)He had started a homosexual relationship with another student in Nepal in October 2005.  When the founder of the college which he was then attending discovered what he had done, he was asked to leave and was unable to complete his degree. 

   (2)The father of the appellant’s partner (who was a police officer) discovered their relationship and warned the appellant to leave the area where the college was located.  He was branded as gay and singled out for harassment. 

   (3)The appellant’s parents initially did not know that he was homosexual or what had happened at the college.  The appellant told them that he wanted to study overseas and they arranged for him to come to Australia.  After he arrived in Australia the appellant had a number of casual homosexual encounters but was not in any stable or permanent relationship. 

   (4)When the appellant returned to Nepal for a visit in 2008, his family pressured him to enter into an arranged marriage with a woman.  He pretended that he would do so and returned to Australia to study.  At a later point in time, his father ceased supporting him after he became aware of the appellant’s sexual orientation. 

   (5)The appellant claimed that he would be harassed, discriminated against, isolated and forcibly married to a woman if he returned to Nepal.  He claimed that his parents, the police, other homophobic persons, and Maoists, would harm and mistreat him were he to return to Nepal to live. 

5. The appellant was interviewed by a delegate of the Minister on 11 May 2011, with the assistance of a Nepali interpreter.  The delegate accepted that the appellant was homosexual but did not accept that he faced a well-founded fear of harm in Nepal for that reason. 

6. On 30 June 2011, the appellant lodged an Application for Review with the Tribunal.  In connection with that application, he authorised a representative to act for him. 

7. The appellant and his representative attended a hearing before the Tribunal on 25 October 2011. The Tribunal did not accept that the appellant was homosexual and found that he had fabricated his entire story. The Tribunal took the view that, although the appellant had made a number of friends in the gay community in Australia since his arrival here, his involvement in the gay scene had been orchestrated solely for the purpose of strengthening his refugee claims. For this reason, the Tribunal disregarded the evidence of those activities pursuant to s 91R(3) of the Migration Act 1958 (Cth).

8. The Tribunal recorded in its Reasons that it had had regard to a statutory declaration provided to the Tribunal by the appellant’s housemate but took the view that that declaration did not overcome the highly problematic nature of the evidence which the appellant had tendered in the proceeding before the Tribunal.  At [71]–[77] of its Reasons, the Tribunal set out a number of matters which formed the foundation of its rejection of the appellant’s story. 

9. At [79] of the Tribunal’s Reasons, the Tribunal said:

   79.The Tribunal does not, therefore, accept that the applicant is homosexual. Nor does the Tribunal accept that the applicant was in a homosexual relationship in Nepal. The Tribunal does not accept that the applicant left Nepal for this reason or that he was expelled or required to leave his college in Nepal due to his homosexuality or homosexual relationship or that he came to Australia to study for that reason. Nor does the Tribunal accept that the applicant’s father has refused to have any contact with him because he has discovered that the applicant is homosexual or that the applicant told him when his father put pressure on him to marry. The Tribunal does not accept that the applicant ceased his studies in Australia because his father refused to support him as a result of the applicant’s homosexuality. The Tribunal considers that there are many reasons why the applicant may not have had the financial means to continue his studies in Australia. The Tribunal does not accept that the applicant will have any involvement in homosexual practises upon his return to Nepal or that he genuinely fears harm for that reason. The Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm upon his return to Nepal for reasons of his membership of a particular social group of homosexuals, imputed membership of a particular social group of homosexuals or for any other Convention reason. The Tribunal is not, therefore, satisfied that the applicant has a well founded fear of persecution in Nepal if he returns to Nepal now or in the reasonably foreseeable future. 

10. For these reasons, the Tribunal affirmed the delegate’s decision to refuse to grant a protection visa to the appellant. 

    THE PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT

11. On 23 December 2011, the appellant lodged an Application for judicial review of the Tribunal’s decision in the Federal Magistrates Court.  The grounds which he specified in that application were as follows: 

    1. I strongly argue that the Tribunal has failed to exercise good faith, and to make a bona fide attempt to exercise its power to consider the evidence of my claims in relation to my homosexuality. I believe that the Tribunal Member has deprived me of natural justice, fairness and good faith in my case. I am confident that the Tribunal Member did not treat my evidence of being gay fairly as the Tribunal Member suffered from her unqualified view and analysis on homosexuality.

    2. I argue that the Tribunal Member did not accept me as gay while the delegate confirmed me as gay. It is completely wrong analysis of the Tribunal member that I am not homosexual so it surely required a more thorough analysis of homosexuality. 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 Member in relation to my homosexuality.

    3. It is contended that jurisdictional error is evident in the way the Tribunal failed to make a proper genuine and realistic assessment of homosexuality as I believe the Tribunal member did not act in good faith in my case. I believe the Tribunal Member failed to give me natural justice as the Tribunal Member ignored my claim of being homosexual and heavily relying on her pervasive view towards my claims of being homosexual.

    4. The Tribunal Member does not accept me as homosexual whereas the delegate accepts that I am homosexual without a doubt. The fact is that I am homosexual but my evidence of being homosexual was ignored by the Tribunal Member’s incompetent and pervasive view as the Tribunal Member failed itself the right question and failed to deal with my claims.

    5. It is argued that the Tribunal member’s decision in my case has been vitiated by an error of law as the evidence that the Tribunal member failed to satisfy all of its statutory requirements in dealing with my case. My evidence before the Tribunal was inferentially adversely construed against my claims. This is injustice.

12. At [20]–[23] of his Reasons, the Federal Magistrate set out the issues which he had to decide. 

13. At [24], the Federal Magistrate recorded the appellant’s principal concern—namely, that the Tribunal had not believed that he was homosexual.  The appellant argued before the Federal Magistrate that he could not understand how the Tribunal could have arrived at that conclusion, especially when the delegate had accepted his claim to being homosexual.

14. At [26]–[27] of his Reasons, the Federal Magistrate dealt with the allegation of bad faith.  The Federal Magistrate observed (at [27]) that the Tribunal was not bound to accept the delegate’s findings to the effect that the appellant was homosexual and had been ostracised by his family. 

15. I pause to observe that it is clear from the Decision Record of the proceedings before the Tribunal that the Tribunal had made very clear to the appellant that it was not bound to accept the delegate’s findings on these matters. 

16. At [28]–[32] of his Reasons, the Federal Magistrate said:

    28.The applicant is understandably concerned that his sexual orientation was not accepted. It is not for me to determine whether or not the applicant is homosexual as he claims. If he is homosexual, it is understandable that he is distressed by a Tribunal finding that he is not. There is no evidence before me, however, sufficient to persuade me that the Tribunal’s decision on that critical issue was made otherwise than in good faith.

    29.The issues bearing on the applicant’s credibility were discussed with the applicant at the Tribunal hearing. He asserts that he was not given sufficient opportunity to answer the accusation that there may have been reasons other than disclosure of the applicant’s homosexuality that led his father to cease sending money to him to support him in his studies in Australia. The only record of what occurred at the hearing before me is that set out in the Tribunal’s reasons. That does not support the applicant’s contention that he was prevented from answering any Tribunal questions or that he was not given the opportunity to address any issues of significance bearing upon the outcome of the Tribunal’s review.

    30.The particular issue of the cessation of the applicant’s father’s funding of him appears to me to be a relatively incidental issue. The Tribunal simply declined to speculate what may have been the reasons for the applicant’s father ceasing to fund his study. The Tribunal was not satisfied with the applicant’s explanation for that. Its lack of satisfaction was informed by more significant adverse credibility findings discussed in the Tribunal’s reasons particularly at [74].

    31.In his written submissions, the applicant asserts a failure by the Tribunal to apply the UNHCR Guidelines on assessing sexual orientation cases and credibility and the Refugee Review Tribunal Principal Member Guidance Policy on credibility cases. When I questioned the applicant about those assertions he was not, however, able to particularise them. Assuming that there are guidelines available either from the UNHCR or the principal member or both bearing upon the assessment of credibility and the assessment of sexual orientation cases, those guidelines are just that; guidelines, and in my view, a failure to follow such guidelines would not in itself establish jurisdictional error.

    32.In other respects, I agree with the Minister’s written submissions.

17. The Federal Magistrate then moved to consider the substance of the appellant’s claims.  His Honour concluded that there was no support for the appellant’s contention that the Tribunal had been actually biased against him or had been guilty of apprehended bias. 

18. Furthermore, the Federal Magistrate concluded that the Tribunal had given proper consideration to the appellant’s claims, in particular, to his claims to being homosexual.  The Federal Magistrate observed that findings of fact, including findings of credibility, are quintessentially the province of the Tribunal and that the findings made by the Tribunal in relation to the appellant’s claims were reasonably open on the material before it.  The Federal Magistrate said that, to the extent that the appellant sought to challenge the merits of the Tribunal’s findings, he was advancing a ground of review which was not a permissible ground of judicial review (see especially [41] of the Federal Magistrate’s Reasons). 

19. The Federal Magistrate went on to hold that the appellant had not been denied procedural fairness and that the findings made by the Tribunal had been reasonably open to it.  He also held that the Tribunal had understood and correctly applied the relevant legal principles to the appellant’s claims. 

20. For those reasons, the Federal Magistrate dismissed the appellant’s application in the Federal Magistrates Court. 

    THE APPEAL IN THIS COURT

21. On 25 May 2012, the appellant filed a Notice of Appeal in this Court against the whole of the judgment of the Federal Magistrate.  The Notice of Appeal raises three grounds of appeal.  Those grounds are:

    1.The learned Federal Magistrate erred by failing to find a jurisdictional error on the part of the second respondent as it expressed reluctances to find that the member applied the wrong test to assess credibility.

    2.The Member failed to consider the RRT Principal Member guidance policy for credibility cases or the UNHCR policy on assessing sexual orientation cases and credibility.

    3.The Member failed to afford me the opportunity to comment on why my father may have stopped sending money to me whereas the member says there are many reasons why father stopped sending money. Therefore the second respondent’s decision was affected by jurisdictional error.

22. When the matter was called on for hearing this morning, I asked the appellant whether he wished to say anything in support of his appeal.  He informed me that everything that he wished to say was in the Court documents.  In other words, he did not wish to support by submissions the grounds of appeal which are in his Notice of Appeal.  I note that the Written Submissions filed and served on behalf of the Minister were interpreted for the appellant by the official Court interpreter prior to the commencement of the hearing and that the appellant did not wish to address any additional matters arising from those Submissions. 

    Ground 1

23. As submitted by the Minister, there is no fixed test by which the Tribunal must make an assessment of a person’s credibility.  Credibility is a factual matter to be assessed by the Tribunal in each case having regard to the evidence given in that case.  The assessment of credit involves a process of fact finding, which is, par excellence, a matter for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]). The Tribunal is not required to accept uncritically any of the allegations made by applicants in cases such as the present (see Randhawar v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451).

24. The Federal Magistrate considered the appellant’s challenges to the Tribunal’s adverse findings in relation to his credibility and correctly concluded that the assessment of credibility was a matter for the Tribunal. 

25. The appellant has failed to make out ground 1 or, indeed, to demonstrate that ground 1, even if made out, was capable of constituting an appropriate ground of appeal. 

    Ground 2

26. The gravamen of this ground seems to be that the Tribunal failed to apply and adhere to certain guidelines developed by the Tribunal as well as other guidelines promulgated by UNHCR. . 

27. This ground of appeal would only be of significance if the Tribunal was bound to apply those guidelines (see Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24). However, it is quite clear that the Tribunal is not bound to do so. This ground of appeal cannot succeed. In any event, the appellant has failed to demonstrate just how it was that the Tribunal failed to comply with the guidelines upon which he relies.

    Ground 3

28. This ground seems to raise denial of procedural fairness on the part of the Tribunal as a ground of review.  The subject matter of the complaint is that the Tribunal failed to afford to the appellant a fair opportunity to comment on why his father stopped sending money to him.  However, this matter was canvassed at some length at the Tribunal hearing (see especially [55] of the Tribunal’s Decision Record).  The matter was specifically adverted to by the Federal Magistrate at [29]–[30] of his Reasons as follows:

    29.The issues bearing on the applicant’s credibility were discussed with the applicant at the Tribunal hearing. He asserts that he was not given sufficient opportunity to answer the accusation that there may have been reasons other than disclosure of the applicant’s homosexuality that led his father to cease sending money to him to support him in his studies in Australia. The only record of what occurred at the hearing before me is that set out in the Tribunal’s reasons. That does not support the applicant’s contention that he was prevented from answering any Tribunal questions or that he was not given the opportunity to address any issues of significance bearing upon the outcome of the Tribunal’s review.

    30.The particular issue of the cessation of the applicant’s father’s funding of him appears to me to be a relatively incidental issue. The Tribunal simply declined to speculate what may have been the reasons for the applicant’s father ceasing to fund his study. The Tribunal was not satisfied with the applicant’s explanation for that. Its lack of satisfaction was informed by more significant adverse credibility findings discussed in the Tribunal’s reasons particularly at [74].

1. The appellant has failed to make out ground 3 in his Notice of Appeal. 

   CONCLUSION

2. The appellant has, therefore, failed to make out any of the grounds upon which he relies in his Notice of Appeal.  For this reason, I propose to dismiss the appeal.  I will order that the appellant pay the first respondent’s costs of and incidental to the appeal, as taxed or agreed. 

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate:

Dated:       23 August 2012