SZRBB v Minister for Immigration - [2012] FMCA 995

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRBB v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 995

MIGRATION – Review of decision of the Refugee Review Tribunal – whether the Tribunal failed to deal with a distinct claim – whether the Tribunal failed to make a critical finding – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, 91R, 425, 425A, 426, 426A, 430, 441A, 441C, 476
Migration Regulations 1994 (Cth), reg.4.35D

SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702
SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 41
Minister for Immigration & Multicultural & Indigenous Affairs v SZFML and Anor [2006] FCAFC 152
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389
S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 824; (2001) 194 ALR 244
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510
Harjit Singh Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441
Hong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1308
Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1

Applicant:

SZRBB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 65 of 2012

Judgment of:

Nicholls FM

Hearing date:

24 September 2012 and 18 October 2012

Date of Last Submission:

18 October 2012

Delivered at:

Sydney

Delivered on:

2 November 2012

REPRESENTATION

Counsel for the Applicant:

Mr T Ower (direct access)

Appearing for the Respondents:

Mr O Jones

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application made on 12 January 2012, and amended on 6 March 2012, and further amended on 15 October 2012, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,471.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 65 of 2012

SZRBB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 12 January 2012, under s.476 of the Migration Act 1958 (Cth), amended on 8 March 2012, and further amended on 15 October 2012, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal) made on 19 December 2011, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

The applicant is a citizen of India. He arrived in Australia on 12 September 2007 (Court Book – “CB” – CB 1 – CB 31). He applied for a protection visa on 14 December 2010. His claims to fear persecutory harm were set out in an attached statement (CB 25 – CB 30).

Claims for Protection

The applicant claimed to fear persecutory harm in India on the basis of his homosexual orientation. His fear of harm was said to emanate from members of his family, as well as Sikh religious leaders.

The Delegate

The applicant was interviewed by the delegate on 10 February 2011 (CB 32). On 3 May 2011, the delegate refused the application due to concerns about the applicant’s credibility (CB 55 – CB 56). Elements in support of the delegate’s conclusion included the lengthy delay in the applicant applying for a protection visa after arrival in Australia, the lack of corroboration of “the most basic facts of the applicant’s claims” (CB 55.9), the applicant’s contradictory statements made at the interview (CB 53.2), and, further, his earlier intention of his willingness to return to India.

The Tribunal

The applicant applied for review to the Tribunal on 24 May 2011 (CB 57 – CB 60). On 25 August 2011, the Tribunal invited by letter the applicant to a hearing on 9 November 2011 (CB 72 – CB 73). In its letter the Tribunal told the applicant that on the “material before it” it was unable to make a favourable decision on his case (CB 72.3). The Tribunal invited the applicant to the hearing for the purpose of giving evidence and presenting his argument (CB 72.4).
The Tribunal’s letter, dated 25 August 2011, notified the applicant that if he failed to attend the scheduled hearing it would proceed to a decision without taking further action. The hearing was scheduled for 9 November 2011 (CB 72). The applicant was asked to complete an enclosed “Response to Hearing Invitation” form to confirm his intention to attend.
The applicant did not immediately respond to the Tribunal’s invitation. Instead, on 8 November 2011 (the day before the hearing), the Tribunal received a letter from the applicant, dated 7 November 2011, in which he said that he was unable to attend the hearing due to a “medical condition”. The applicant sought another hearing date (CB 79). Attached to that letter was a medical certificate in which a doctor certified that the applicant was “… unable to attend “work/school from 7/11/11 to 10/11/11” (CB 80).
The Tribunal agreed to the applicant’s request and rescheduled the hearing for 14 November 2011. Again, the applicant was told that an unexplained failure to attend may result in the Tribunal proceeding to a decision on what was before it (CB 82 – CB 83).
The applicant did not attend on that date. It appears that no explanation was offered for this. Nor did the applicant seek an adjournment (CB 89.4). Nonetheless, and it must be said in the circumstances, generously, the Tribunal “cancelled” the hearing. In context this could only mean it did not proceed to a hearing on that date. The Tribunal invited the applicant to a “new hearing” scheduled for 14 December 2011 (CB 89).
The applicant did not attend on that date (see further below at [26]). On this occasion the Tribunal proceeded, pursuant to s.426A of the Act, to determine the review on what was before it.
The Tribunal took into account the applicant’s statement in support of his application for a protection visa, and attachments to that application. The Tribunal also listened to an audio recording of the applicant’s interview with the delegate and, in particular, had regard to country information provided by the applicant and photographs of his wedding to a woman in Australia.
The basis for the Tribunal’s decision was that, on what was before it, it could not reach the requisite level of satisfaction such that the protection visa must be granted (ss.65 and 36(2) of the Act and SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22, NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4] – [5] and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73) ([66] at CB 108 – [73] at CB 109).
The Tribunal’s lack of satisfaction was informed by the lack of sufficient detail in the applicant’s claims (see the respondent’s submissions at [11] with which I agree, and adopt for the purposes of this judgment):
“The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason in India. The Tribunal did not consider the Applicant’s claims relating to his sexual orientation were sufficiently detailed. In particular, the Applicant had provided insufficient information as to:
·    how he had come to realise he was homosexual and how he had come to terms with his sexuality in India;
·    the emergence, nature and conclusion of his homosexual relationships with his partner in India and his partner in Australia, as well as contact with the homosexual community in Sydney;
·    the circumstances of his arrest, detention and mistreatment by police in India;
·    the fate of his partner in India after those events;
·    the treatment of the Applicant by his family and their decision to send him to Australia;
·    how the Applicant’s family found out about his partner in Australia; and
·    the circumstances of the Applicant’s marriage.”

Before the Court

On 8 February 2012, at the first Court date for this matter, I made orders setting down a timetable for the progression of this matter. The matter was set down for final hearing on 24 September 2012.
On 24 September 2012, the applicant appeared in person with the assistance of an interpreter in the Punjabi language. Mr O Jones appeared for the Minister. At that time the applicant indicated to the Court that he had not received a letter from the Court in regards to a lawyer being assigned to him from the panel of the Court’s “RRT Legal Advice Scheme” (“RRTLAS”). The applicant further submitted that, although he had received the Minister’s written submissions, he had not received the Court Book. He therefore did not have sufficient time to prepare for the hearing and, consequently, he requested that he be granted an adjournment to prepare his case. Why the applicant waited until the day of the hearing to make these complaints was never explained.
The Minister noted that the applicant had filed an amended application on 6 March 2012 and, therefore, that considerable time had elapsed since that date and, further, that the applicant had not actively attempted to obtain a copy of the Court Book.
At that time I noted to both parties that, although the RRTLAS was established to provide “free legal advice” to protection visa applicants, there is no legal right to obtain this legal advice (SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702 at [3] – [4] per Gyles J, a matter on appeal from this Court (SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 41)). However, my concern was whether some failing in the operations of the Court’s Registry led to the failure to notify the applicant. This, coupled with the applicant’s statement that he had not received the Court Book, made it appropriate to grant an adjournment of some few weeks.
Consequently, the matter was set down for final hearing on 18 October 2012. It was arranged by the Court’s Registry for a panel lawyer to be urgently assigned to the applicant to enable him to receive legal advice. I also made further orders directing that the applicant could file a further amended application and written submissions in support, and the Minister could file supplementary submissions in reply.
At the final hearing on 18 October 2012, the applicant was represented by Mr T Ower of counsel (through direct access). Mr O Jones appeared for the Minister.
Consistent with the orders made by me on 24 September 2012, the applicant, with the assistance of counsel, filed a further amended application on 15 October 2012. In addition to the Court Book, the Court had before it written submissions from the applicant and the first respondent. The applicant sought to rely on his affidavit made on 10 June 2012.

The Application to the Court

The application, as further amended, is in the following terms:
“1. The RRT fell into jurisdictional error by not making findings on essential elements of the applicant’s claim and thereby failed to address the claim.
Particulars
(i) The RRT did not identify the particular social group the Applicant claims to be a member of (i.e. homosexual from a Sikh family), or identity whether the claimed class in (sic) capable of constituting a social group.
(ii) The RRT did not decide whether the Applicant was or is a member of the claimed social group.
(iii) Having not completed the above steps the RRT could not assess whether the Applicant had a well founded fear for a Convention reason as required by the Act.
(iv) The RRT made no finding regarding the Applicant’s sexual orientation.
(v) The RRT made no finding as to the Applicant’s homosexual activities in Australia.”

The Tribunal’s Invitation to Hearing and s.426A

Before considering the applicant’s ground it is important to note the sequence of events involving the invitation to the hearing, the postponements of the hearing date, and the applicant’s failure to attend at the Tribunal hearings.
First, the invitation of 25 August 2011, for a hearing on 9 November 2011 met all the relevant statutory and regulatory requirements, including the relevant period of notice (ss.425, 425A, 426, 426A, 441A, 441C and reg.4.35D of the Migration Regulations 1994 (Cth) (CB 72 – CB 78)).
The postponement of the hearing from 9 November 2011 to 14 November 2011 was done at the applicant’s convenience and request (CB 79 – CB 88). As such, in the circumstances, no failure of procedural fairness is evident (Minister for Immigration & Multicultural & Indigenous Affairs v SZFML and Anor [2006] FCAFC 152).
The further postponement from 14 November 2011 to 14 December 2011 of itself met the relevant notice period (noting that the applicant was notified of the postponement on 17 November 2011 (CB 89 – CB 95). But, even if it had not, the “cancellation” and postponement was clearly arranged for the applicant’s benefit to enable him to appear. As such, no error is revealed here.
Second, before the Court the applicant, by affidavit (not required for cross-examination), gave evidence that he had telephoned the Tribunal on 13 December 2011 and advised that he was ill. He claimed he was told by an officer of the Tribunal that he should provide a medical certificate to support that claim. The applicant claims that he failed to produce the certificate and that he “treated” himself.
The applicant’s explanation before the Court must be seen in light of the following. The applicant had already been given an opportunity over a period of nearly four months to attend the Tribunal hearing. The only medical certificate provided related to a period of four days in early November. His failure to attend specifically on 14 November 2011 remained unexplained.
Yet the Tribunal gave the applicant another opportunity. On the last occasion (14 December 2011), even on his own account, the applicant was given the opportunity to provide a certificate as he had done on a previous occasion. That he chose not to do so is not entirely explained by his choosing to “treat” himself (using “paracetamol and traditional medicine”). Particularly after he told the Tribunal officer that he was going to consult a doctor ([62] at CB 108).
In all the circumstances it was open to the Tribunal, to exercise its discretion to proceed to a decision pursuant to s.426A of the Act. It cannot be said that the exercise of that discretion was done in an arbitrary or capricious manner. Nor that the Tribunal acted unreasonably.
His lack of success before the Tribunal flowed from his failure to attend at the hearing. His complaint in his affidavit (see [26] above), that he did not understand the consequences of not attending, must be rejected in the circumstances. The Tribunal repeatedly put the applicant on notice of this consequence in its letters.
The applicant complains that he was not fully aware because he had no lawyer to assist him. The plain and simple words in the Tribunal’s letters do not require a lawyer to interpret their meaning for the applicant.
In this context, I should note that the applicant claimed in his protection visa application to speak, read and write English (CB 11). He claimed not to have received assistance in filling out the application form (item 14 at CCB 8). That is, he did it himself in English. While a signature appears at that part of the form requiring an “interpreter’s declaration” no relevant details are provided. Given that a similar signature appears next to “Applicant 7” and “Applicant 8”, on balance, it appears no interpreter was used. There is nothing to show that the applicant required an interpreter at the interview with the delegate.

Submissions

Before the Court the applicant complains that the Tribunal failed to make findings on “essential elements” of the applicant’s claim to fear persecution.
In support of this ground the applicant submitted that the Tribunal failed to identify the “claimed social group with sufficient precision”, but rather relied on the description adopted by the delegate of “Indian homosexuals” in order to properly assess the applicant’s claims to fear persecutory harm. The applicant submitted that that description was “too broad”. In support of this proposition the applicant relied on Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389 (“Dranichnikov”) at [26] and S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473.
The applicant submitted that the Tribunal should have “narrowed” its focus when assessing the applicant’s claims to consider the applicant’s membership of the group “male Sikh homosexuals from the Punjab area of India”. The submission was that this particular social group, and the applicant’s membership of it, clearly arose from material before the Tribunal ([4] at CB 25 – [20] at CB 28), and that the identification of this group was crucial to the Tribunal assessing whether the applicant’s fear of persecutory harm was well-founded.
The applicant further submitted that the Tribunal failed to make a critical finding as to the applicant’s sexual orientation, and therefore in failing to do so, failed to address an essential element of the applicant’s claim. The applicant also complains that the Tribunal failed to make a finding on the sur place claims raised pursuant to s.91R(3) of the Act, such that the Tribunal did not address the applicant’s homosexual activities in Australia.

Consideration

Mr Ower is correct in submitting that the Tribunal needs to consider the claims expressly advanced by the applicant, or “a substantial, clearly articulated argument relying upon established facts”, whereby a failure to do so will lead to a finding of jurisdictional error (Dranichnikov at [24], see also NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 at [68], Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 824; (2001) 194 ALR 244, Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 and Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51).
As noted above, the applicant was invited to attend a hearing before the Tribunal on 9 November 2011, and on the request of the applicant, the Tribunal rescheduled the hearing for 14 November 2011. On 14 November 2011, the applicant did not appear at the hearing and consequently the Tribunal, for the applicant’s benefit, postponed the hearing until 14 December 2011. The applicant, again, did not attend on that occasion. Consequently, the Tribunal proceeded to make its decision on 19 December 2011, pursuant to s.426A of the Act.
It is the case that it is for the applicant to make out his or her case and to provide sufficient information such that the Tribunal can reach the requisite level of satisfaction (Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 and see the authorities at [12] above). The Tribunal is not required to accept uncritically all the claims made by the applicant (Harjit Singh Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265).

As noted above, the applicant did not appear at any scheduled hearing and, consequently, the Tribunal proceeded to make a decision on the evidence and material before it, namely the applicant’s statement included with his protection visa application and the audio recording of the applicant’s interview with the delegate. However, the Tribunal found at [66] (CB 108) of its decision record that “… the information provided was not sufficiently detailed to enable the Tribunal to be satisfied that the applicant faces a real chance of persecution for a Convention reason in India.”
In these circumstances the applicant’s failure to attend at the hearing meant that the Tribunal remained no further advanced from the initial state where it was unable to reach the requisite level of satisfaction. As the Full Court said in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 this was the “inevitable consequence” of the applicant’s absence from the hearing.
Under the heading “Claims and Evidence” the Tribunal set out the applicant’s claims as articulated in his protection visa application, his written statement included with that application, and what was discussed at the interview with the delegate. Specifically, the Tribunal noted the applicant’s claims that he was a homosexual who came from a “staunch Sikh religious family background”. Further, that he developed a homosexual relationship with a man in India which later became known to the applicant’s family who disapproved of that relationship.
Under the heading “Findings and Reasons” the Tribunal ultimately set out its consideration that there was insufficient information, and evidence, before it to consider the circumstances surrounding the applicant’s sexual orientation, and how this gave rise to the applicant’s claim to fear persecution in India ([67] at CB 108 – [73] at CB 109). These findings were open to the Tribunal on the evidence and material that was before it, and for the reasons it gave.
It must be said that it appears that the applicant has misconstrued either the obligations and duties imposed on the Tribunal, or sought to minimise the importance inherent in the relevant statutory scheme of the need for the relevant decision-maker to achieve a requisite level of satisfaction such that the visa must be granted.
The applicant complains that the Tribunal failed to make certain findings (see the particulars to the ground), and therefore without those findings could not properly assess the applicant’s claims to fear persecutory harm. As a preliminary, what the applicant has failed to understand is that the Tribunal is not required to refer to every piece of evidence proffered by the applicant, nor is it required to make findings on each piece of evidence (Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 (there is no legal error in a failure to comply with s.430 of the Act per se)).
The obligation on the Tribunal is, as set out above, to consider claims expressly made or clearly arising. The Tribunal did not fail to understand any of the applicant’s claims. It is just that the nature and character of those claims, as presented, lacked such detail as to leave the Tribunal in a state of being unable to reach the requisite level of satisfaction.
Further, and critically, Mr Jones is correct to submit that the Tribunal does not fall into jurisdictional error if it does not consider “an application, never made, which might have been put on another basis” (Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441 at [31], see also Hong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1308 at [41]).
As stated above the Tribunal set out the applicant’s claims and its reasons for affirming the delegate’s decision. Simply, the Tribunal affirmed the delegate’s decision because it is did not have sufficient information and evidence before it, in order to reach the requisite level of satisfaction to enable the granting of a protection visa. The Tribunal was unable to make the express findings as particularised by the applicant in his ground to the Court because it did not have sufficient information before it to do so. For this reason, I agree with the Minister, and his reference to the words of Kirby J in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1, specifically at [123] where his Honour stated:
“This is yet another case where persons who failed before the Tribunal on the merits , sought to re-canvas factual findings in an impermissible way and to argue their claim for judicial review in a manner significantly different from the argument advanced before the Tribunal.”
The applicant’s “argument” as before the Tribunal was that he was at risk of serious harm if he returned to India because of his sexual orientation, which was in conflict with the traditional views of his Sikh family, Sikh society and religion more generally.
The Tribunal’s reasons for affirming the delegate’s decision were at [72] – [73] (CB 109):
“72. The Tribunal has considered the documents submitted to the Department by the applicant. However, these documents and their contents do not remedy the gaps in the evidence. Given the lack of information identified above, without more detail it is difficult to know what significance can be attached to the assertions made by the applicant. No further information was provided to the Tribunal which would enable it to be satisfied that the applicant’s fear of facing persecution in the future is owing to a Convention ground or that his fear is well-founded.
73. Overall, in view of the insufficient information and lack of detail contained in the applicant’s claims, the Tribunal is not satisfied that there is a real chance that the applicant would be persecuted for a Convention reason in the reasonably foreseeable future. The Tribunal, therefore, is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason. Accordingly, the Tribunal is not satisfied that he is a refugee under the Refugees Convention.”
Once the Tribunal was unable to make a finding that the applicant was a homosexual, for the plain reasons it gave, then the applicant’s case fell away.
Implicit in the applicant’s case before the Court is that the Tribunal should have made a finding one way or another. For the plain reason that it gave, it could not. No jurisdictional error is revealed in these circumstances. Whether or not the applicant belonged to a particular social group, and what that group could be, or should be, was plainly dependent on the Tribunal finding that he was, in fact, of homosexual orientation. Its inability to be so satisfied meant it did not need to go any further.

Conclusion

The ground as pleaded in the further amended application does not reveal jurisdictional error on the part of the Tribunal. Therefore, accordingly, the application, as amended, and further amended, should be dismissed with costs. I will make an order to this effect.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date: 2 November 2012