SZRBG v Minister for Immigration
[2012] FMCA 755
•17 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRBG v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 755 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.424AA, 424A |
| Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 |
| Applicant: | SZRBG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 70 of 2012 |
| Judgment of: | Barnes FM |
| Hearing date: | 17 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 17 August 2012 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 70 of 2012
| SZRBG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal dated 9 December 2011. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant is a citizen of India who arrived in Australia in January 2009. He applied for a protection visa on 28 April 2011. His claims, in essence, are that he was involved in a homosexual relationship with a Hindu male in India and that as a consequence, he was assaulted, threatened and harassed. He claimed to fear similar treatment should he return to India.
The applicant claimed to be a Sikh of homosexual orientation and that although he was not a member of any political party his family supported the Indian National Congress Party. His application was refused and he sought review by the Tribunal.
The Tribunal set out in detail the claims made by the applicant, including claims made in the interview with the delegate and at the Tribunal hearing. The only evidence before the court as to what occurred in the interview and hearing is the Tribunal reasons for decision. The Tribunal recorded that the applicant’s claims were based on the Refugees Convention grounds of membership of a particular social group, religion and political opinion although, essentially, the applicant claimed to have been involved in a homosexual relationship and as a consequence to fear mistreatment were he to return to India.
However the Tribunal did not find the applicant to be a credible witness. In reaching this view it had regard to internal inconsistencies in the applicant’s evidence, the “unconvincing nature of key parts of his claims” and other matters it detailed.
The Tribunal recorded that it had put to the applicant at the hearing “numerous inconsistencies between his oral evidence to the Tribunal and his written evidence to the department”. The Tribunal detailed these inconsistencies, including inconsistencies as to the number of times he was assaulted and whether, after an alleged assault in July 2007, the applicant was arrested and detained by the police or called to the police station to answer questions. The Tribunal had regard to the applicant’s explanations for these inconsistencies but found that “he either did not comment or merely and unsatisfactorily asserted the truth of his evidence”. The Tribunal found the “significant omissions and inconsistencies in the applicant’s evidence cast serious doubt on the truth and reliability of his evidence”.
The Tribunal also had regard to inconsistent evidence provided by the applicant in relation to his conduct and activities in Australia, in particular as to whether he had a sexual relationship with a man in Australia. It found his explanations for the inconsistency unsatisfactory and that his evidence was lacking in credibility. The Tribunal did not accept the claim that the applicant had any interest in or had endeavoured to meet gay men or become involved in a homosexual relationship in Australia in light of the applicant’s inconsistent evidence.
The Tribunal also had regard to unconvincing aspects of the applicant’s account of his relationship with the Hindu man in India and how he felt about himself when he realised he was gay. It found that his “evidence did not contain any credible or meaningful references to any thought processes…while coming to terms with significant issues of identity and difference over a period of time and in a community apparently hostile to homosexuality”.
In addition, the Tribunal had regard to the significant delay between the applicant’s arrival in Australia and his application for a protection visa. It was of the view that if he had been mistreated as claimed because of homosexual activities, “he would not have waited for more than two years” to seek protection. The Tribunal found this delay also “cas[t] doubt on the truth of [the applicant’s] claims”.
The Tribunal found that the applicant showed “a propensity to shift and tailor evidence in a manner which achiev[ed] his own purpose” and concluded that he had “fabricated his claims and concocted evidence to achieve an immigration outcome”.
Because it did not find him to be a credible, truthful and reliable witness, the Tribunal did “not accept that the applicant was a homosexual, practised homosexuality or was involved in homosexual relationships and/or activity in India”. Hence it did not accept his claims about consequential mistreatment in India, either of him or of members of his family. Nor did it accept his claims about the involvement of the Hindu religious community, including the claim that they used his claimed relationship “as an excuse to galvanise anti-Sikh sentiments in [his] locality”.
The Tribunal did not accept the applicant’s claim that he was arrested, detained or mistreated by the police or that any cases had been filed against him for reason of his sexual orientation or associated issues. Nor did it accept that after he came to Australia, his father told him “the family was again attacked by the Hindu community”. It did “not accept that [he] had engaged in or expressed any interest in being involved in homosexual activity in Australia”. It found that he was not homosexual and that there was no real chance he would be harmed for the reason of his sexual orientation in India.
The Tribunal addressed the fact that in the written statement accompanying his protection visa application, the applicant had referred generally to discrimination against Sikhs in India and his family’s support for the Congress Party, “although he expressly stated that he was not a member of any political party or group”. Having rejected the applicant’s claimed involvement in a homosexual relationship or homosexual activities and all the claims that flowed from this claim, the Tribunal rejected all the harms claimed to have been directed at him including those harms motivated by a mixture of his Sikh religion and his family and/or community’s support for the Congress Party.
More generally the Tribunal had regard to country information about the position of Sikhs in India, including their ability to practice their religion without restriction in every state and to the fact that there were localities in the state from which the applicant came other than where the applicant lived, where the Sikhs constituted a majority. The Tribunal expressed the view that if the applicant had any concerns in his locality arising from his religion or imputed political opinion, it would be reasonable for him to safely relocate to a different part of India, having regard to his youth, education, demonstrated resilience and capacity to survive in an alien environment and his circumstances overall. The Tribunal was satisfied that there was no real chance the applicant would face serious harm for a Convention reason if he were to internally relocate in India. It was not satisfied that his fear of persecution in India for the reasons of his political opinion or any other Convention reason was well-founded. It found that he was not a refugee.
The applicant sought review by application filed in this court on 13 January 2012. There are three generally expressed and unparticularised grounds in the application.
The applicant filed an affidavit which appears to either to be intended to address those grounds or to seek to raise associated grounds. The applicant did not file written submissions and he had nothing to say, either in oral submissions to the court or in reply to the submissions for the Minister today. Nonetheless, I have considered the grounds in the application and the matters raised in the affidavit.
Ground one in the application is as follows:
The Tribunal failed to consider my well founded fear of persecution for my homosexual relationship in India. The Tribunal failed to believe that persecution whatsoever has been inflicted upon me were true and the sufferings were the extreme mercilessly (sic).
Insofar as this ground takes issue with the Tribunal’s factual findings, it seeks impermissible merits review. Credibility findings are a matter for the Tribunal as the decision-maker and its findings were open to it on the material before it for the reasons which it gave.
Insofar as this is a contention that the Tribunal failed to consider any integer of the applicant’s claims, that claim is not made out. The Tribunal considered the applicant’s claims arising out of the claimed homosexual relationship. It understood and considered the aspects of his claims that were said to be based also on religion and actual or imputed political opinion and considered those claims. It certainly considered his claimed fear of persecution based on a homosexual relationship in India as is apparent from its reasons for decision. Ground one is not made out.
Ground two is:
Tribunal thought’s that my claim was not true in terms of foreseeable future and up to some extend its fabricated without any further investigation which is I believe is an errors of jurisdiction (sic).
It appears that this ground is intended to contend that the Tribunal erred in failing to investigate the applicant’s claims or to make further inquiries. It is for an applicant to put evidence in support of his claims before the Tribunal. It is not under an obligation to conduct an investigation in the manner that seems to be submitted for the applicant. In particular, it is well-established that the Tribunal has no general duty to make inquiries, (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32).
It is the case that a failure to make an obvious inquiry about a critical fact the existence of which is easily ascertained may supply a sufficient link to the outcome to constitute a failure to review and a constructive failure to exercise jurisdiction as mentioned in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 at [25]. However, this is not such case. There is no clarification from the applicant and nor is it apparent on the material before the court as to what obvious inquiry ought to have been made about what fact that could be easily ascertained. Nor is there any indication that the applicant asked the Tribunal to or that the Tribunal undertook to make any inquiries. Ground two is not made out.
Ground three is as follows:
The Tribunal failed to give me adequate opportunity to provide documents relevant to my claimed persecution that i experienced in India for my relationship with my partner and The Tribunal did not accept me as a credible witness. The Tribunal fell into errors of jurisdiction denying me natural justice in determining my review application.
As submitted for the first respondent, this ground appears to have two limbs. The first is an allegation that the Tribunal failed to give the applicant an adequate opportunity to provide documents in support of his claim. There is no indication on the material before the court that the applicant sought additional time to provide documents in support of his claim. I note that he applied for a protection visa in April 2011 and the Tribunal’s decision was not made until December 2011. Furthermore, it is apparent from the Tribunal account of what occurred in the hearing that after the Tribunal put to the applicant information (in accord with the procedures in s.424AA of the Migration Act 1958 (Cth)) it explained to him that he was entitled to seek additional time to comment or respond. After he responded the Tribunal reminded him he was entitled to additional time to provide further information. The applicant is recorded as stating that he did not require additional time. There is no evidence that he otherwise sought additional time to provide documents. This aspect of ground three is not made out.
The second limb of ground three is an unparticularised general assertion that the Tribunal denied the applicant natural justice. This claim is not made out. There is nothing in the material before the court to suggest that the Tribunal failed to comply with any of its obligations under Division 4 of Part 7 of the Migration Act. Insofar as this ground may be seen as raising s.424A of the Act, the Tribunal put to the applicant information in accordance with the provisions of s.424AA of the Act, relevantly including information he had provided orally to the Department in the interview with the delegate. He was given the opportunity of further time to respond or to provide further information.
Beyond this, the Tribunal was not obliged to put to the applicant information such as independent country information or information provided by the applicant for the purposes of the review or during the application process that led to the decision under review, consistent with the exceptions in s.424A(3) of the Act. Nor was the Tribunal obliged to put to the applicant, under s.424A, its provisional reasoning or thought processes. It is well-established that there is no obligation under s.424A to put to the applicant inconsistencies, although in fact, the Tribunal did put to the applicant its concerns about inconsistencies and inadequacies in his evidence. Information does not include the Tribunal’s disbelief of the applicant’s evidence arising from inconsistencies, gaps, defects or lack of detail or specificity or conclusions in weighing up the evidence by reference to such gaps (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [90]).
Nor is there any evidence before the court to support any contention that the Tribunal failed to raise determinative issues with the applicant at the hearing. Again, I note that through the course of the hearing the Tribunal raised with the applicant its concerns about the vagueness and lack of detail in his claims, the shifts, changes and inconsistencies in his evidence and the possibility that the Tribunal may find on this basis that he had not been truthful and that his evidence was not reliable. No lack of procedural fairness, whether on the basis of a failure to comply with Division 4 of Part 7 of the Act or otherwise, is apparent on the material before the court. Ground three is not made out.
For the sake of completeness, I have also considered the affidavit filed by the applicant on 13 January 2012 in which it is contended first that:
Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction or denied procedural fairness to consider that, i was denied from every avenues managed by the Governmental organizations as because of my homosexual relationship.
The lack of clarity in this claim was referred to by the solicitor for the first respondent in oral submissions. The applicant did not address what was intended by this paragraph of his affidavit. In any event, no jurisdictional error is established on the basis of any lack of procedural fairness, as considered above.
Insofar as this is an allegation that the Tribunal failed to consider some claim, whether to do with an absence of state protection or otherwise in relation to inaction by government organisations, in this case the Tribunal did not accept that the applicant was a homosexual, practiced homosexuality or was involved in homosexual relationships and/or activity in India. As it stated, it rejected all the claims that flowed from this claim. That would encompass any such claims that the applicant made, although it is not in fact apparent on the material before the court that he made a claim in the terms that now appear in his affidavit.
The Tribunal also expressly considered the applicant’s contention that harm would flow from a combination of his homosexuality, his Sikh religion and his family’s and/or community’s support for the Congress Party. It rejected such claims and also rejected any claim based on political opinion in light of his evidence that he was not a member of any political party or group. Insofar as it was necessary to do so, the Tribunal found that if the applicant had any concerns arising from his religion or imputed political opinion, it would be reasonable for him to safely relocate to a different part of India. No jurisdictional error is apparent in this approach.
The second “ground” in the affidavit is that the Tribunal “failed to put the adverse materials to [the applicant] and to enable [him] to have an opportunity to submit [his] explanations and material in reply to the alleged adverse materials”. The issue of the applicant having an opportunity to provide documents relevant to his claims has been considered. Insofar as it was obliged to do so under s.424A of the Act, the Tribunal put information that would be the reason or part of the reason for affirming the decision under review to the applicant.
If this is intended to relate to independent country information, independent country information is outside the s.424A(1) obligation (see s.424A(3)(a) of the Act). Furthermore, as indicated, the applicant was given the opportunity to reply to the Tribunal concerns raised at the Tribunal hearing.
No jurisdictional error is apparent on any of the bases contended for by the applicant. Hence the application must be dismissed. Before I make the orders I will hear submissions in relation to costs.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and the Minister seeks costs in the sum of $5,225. The applicant told the court that he had no money. However the applicant’s lack of funds is not a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of the first respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. However, doing as best I can on the material before me and having regard to the nature of this and other similar matters and the lack of complexity in these proceedings, I consider that an appropriate and reasonable amount is the sum of $4,500.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 27 August 2012
0
6
1