SZRFC v Minister for Immigration
[2012] FMCA 417
•18 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRFC v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 417 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – unparticularised grounds – no assertion of jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.65, 425, 425A, 426, 426A, 441A, 441C, 476 Migration Regulations 1994 (Cth), r.4.35D |
| Minister for Immigration & Multicultural & Indigenous Affairs v SZFML& Anor [2006] FCAFC 152 SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 144 FCR 251 SZFEM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78 Ogawa v Minister for Immigration & Citizenship [2011] FCA 1358 SZJXG v Minister for Immigration & Citizenship [2007] FCA 1120 BZAAA v Minister for Immigration & Citizenship [2011] FCA 447 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 |
| Applicant: | SZRFC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 438 of 2012 |
| Judgment of: | Nicholls FM |
| Hearing date: | 18 May 2012 |
| Date of Last Submission: | 18 May 2012 |
| Delivered at: | Sydney |
| Delivered on: | 18 May 2012 |
REPRESENTATION
| The Applicant: | In Person |
| Appearing for the Respondents: | Mr M Alderton |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 29 February 2012 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 438 of 2012
| SZRFC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore; Revised from Transcript)
This application was made on 29 February 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), and seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 25 January 2012, which affirmed the decision of the respondent Minister’s delegate that the applicant not be granted a protection visa.
Background
I have before me today a bundle of relevant documents (Court
Book -“CB”) filed in accordance with orders made at the first Court date. The applicant is a citizen of India of Sikh ethnicity (CB 11). He arrived in Australia on 20 December 2010 and applied for a protection visa on 17 March 2011 (CB 1 to CB 33, with annexures).
Included with that application was a statement in which the applicant set out his claims to protection (CB 26 to CB 28). This was a long statement, but the essential features of it, for current purposes, are as follows:
1)The applicant claimed that he was a homosexual who had suffered “a lot of discrimination” and was “called names” in India as a result.
2)In 2007 he had commenced a sexual relationship with a male classmate. In March 2007 the applicant and his friend were physically assaulted by other classmates because of their sexual relationship. They were both reported by the college to the police, who detained them and beat them.
3)The applicant’s family secured his release but the applicant was subsequently “punished” by his family. When word spread throughout the local community he was “… approached by many people aggressively” (CB 27). This lead to some restrictions on the applicant’s capacity to study or move outside his home.
4)In November 2009 the applicant recommenced studying and, shortly afterwards, met a man with whom he commenced a sexual relationship. One night the applicant and his partner were attacked by the partner’s cousins. While the applicant escaped, the police came to his home the next day and detained him. The police threatened the applicant with criminal charges and beat him (CB 28).
5)The applicant was released and was subsequently beaten by his father. As it was “no longer safe” for him in his parents’ home he was hidden at a relative’s house for two days, before hiding in a Sikh temple for two weeks. On 19 December 2010 the applicant’s mother telephoned him and advised that a visa and tickets had been arranged for him to travel to Australia (CB 28).
6)Since arriving in Australia the applicant had formed a new relationship and resides with his partner.
On 17 March 2011, along with his application, the applicant provided to the Department a statement in support of his claims from the person he said was his partner in Australia (CB 29) and a statement from another man in whose home it was said he and his partner resided (“his landlord”) (CB 30).
The Delegate
The applicant was invited, by letter dated 18 April 2011, to attend an interview with the delegate on 18 May 2011 (CB 34 to CB 35). The applicant did not attend on that occasion (CB 44). The delegate, given the applicant’s absence from this opportunity to explain his claims, could not be satisfied that the applicant had a well-founded fear of persecution for a Convention reason (CB 44). Absent reaching that level of satisfaction, the delegate determined that that visa must not be granted.
The Tribunal
On 24 June 2011 the applicant applied to the Tribunal for review of the delegate’s decision (CB 46 to CB 49).
By letter dated 3 November 2011 the Tribunal invited the applicant to attend a hearing before it on 13 December 2011 (CB 52 to CB 53). The applicant attended on that occasion and was accompanied by his landlord. The applicant indicated that he wanted his landlord to give evidence in support of his claims ([24] at CB 74 and CB 54 to CB 56). The Tribunal commenced by taking evidence from the applicant. When it came time to take evidence from the landlord he was no longer available ([43] at CB 76). The applicant gave some explanation for that: “… that [he] had been called away by an emergency” ([43] at CB 77). The applicant has not provided anything before the Court, such as a transcript, as to what occurred at the hearing. In the circumstances, it is not open to the Court to draw inferences as to what may otherwise have happened at the hearing.
At this point in the hearing the applicant indicated that he was “very unwell”, was suffering from a headache and would like the hearing to be adjourned ([49] at CB 77). The Tribunal agreed to adjourn the hearing in light of the applicant’s claimed condition. The hearing was adjourned to 21 December 2011 ([50] at CB 77).
The applicant was notified of the time, date and place for the resumption of the hearing by letter sent to his address for service (CB 59 to CB 60) and also by telephone (CB 61 to CB 62).
The applicant failed to attend at that adjourned hearing. Nor, on the material before the Court, did he contact the Tribunal regarding this matter, nor provide an explanation for his non-attendance (CB 63 to CB 65 and [50] at CB 77). In those circumstances the Tribunal proceeded to formulate its decision.
I should just note that, in this regard, the initial invitation to the hearing complied with all of the relevant statutory and regulatory requirements including, importantly, complying with relevant periods of notice for the hearing, said to commence from the date on which the applicant is taken to have received the invitation for hearing (s.425, 425A, 426, the reference to ss.426A, 441A, 441C and r.4.35D of the Migration Regulations 1994 (Cth)).
While it is the case that the second letter for the adjourned event did not again comply with the full extent of that regulatory notice period, it is important to note that there was nothing unreasonable in the period of notice given by the Tribunal to the applicant to attend the adjourned hearing. In circumstances where that adjournment was at the applicant’s instigation and convenience, and not at the Tribunal’s instigation, no legal error is revealed (Minister for Immigration & Multicultural & Indigenous Affairs v SZFML& Anor [2006] FCAFC 152 at [76] – [83], SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 144 FCR 251 at [29] per Conti J; SZFEM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78; Ogawa v Minister for Immigration & Citizenship [2011] FCA 1358 at [37]; SZJXG v Minister for Immigration & Citizenship [2007] FCA 1120 at [10] per Ryan J and BZAAA v Minister for Immigration & Citizenship [2011] FCA 447 at [20] per Collier J).
The reasons for the Tribunal’s affirmation of the delegate’s decision are clear. Essentially it is a comprehensive rejection of the applicant’s factual account, including his claim to be a person of homosexual orientation. This was to such an extent that the Tribunal found that the applicant had completely fabricated his claims.
The findings that informed that conclusion were, variously, that there were unexplained inconsistencies in the applicant’s account, including of his homosexual experience in India ([54] at CB 78). The Tribunal also noted that the applicant’s landlord had attended at the hearing for the purpose of giving evidence, and while it accepted that it was not implausible that the applicant’s landlord had been prevented from providing evidence because of an “emergency”, that the failure of the landlord to explain his absence meant that it was more likely than not that he had not wanted to provide false evidence in support of the applicant’s claims which were known not to be true ([57] at CB 79).
In all, therefore, the Tribunal, having rejected the factual basis for the applicant’s claim to fear persecutory harm, could not, in those circumstances, be satisfied that the applicant was a person who had a well-founded fear of persecution if returned to his home country in the reasonably foreseeable future. That formulation being the relevant test the Tribunal was required to apply in this application. The relevant statutory and regulatory regime required the Tribunal to reach a requisite level of satisfaction as against the test enunciated above. Absent that level of satisfaction the Act (s.65) mandates refusal of the application. Essentially, once the entire fabric of the applicant’s factual account had been removed, the Tribunal’s inability to reach the requisite level of satisfaction is quite obvious.
The Application to the Court
The application to the Court puts forward three sentences. They do not rise to any properly pleaded grounds of jurisdictional error. Namely:
“1. The Tribunal did not consider my persecution for my homosexuality and made errors of jurisdiction.
2. The Tribunal did not accept me as a credible witness and made errors of jurisdiction.
3. The Tribunal found that my harm for my homosexuality is not well founded and refused my application and made errors of jurisdiction.”
When the applicant appeared before the Court at the first Court date I sought to impress on him that the nature of these proceedings was confined to whether the Tribunal made a jurisdictional error, and that the Court had no power to address the question of whether the applicant is a refugee or had a well-founded fear of persecution.
I further impressed upon the applicant the need to obtain legal advice in matters of this type. I note from my record that I did tell the applicant that if all that he was able to do when he came back to the Court was say that the Tribunal did not believe him, then his chances of success were very low.
Before the Court
At the hearing, the applicant appeared in person and was assisted by an interpreter in the Punjabi language. Mr M Alderton appeared for the first respondent.
Unfortunately, despite my having put the applicant on notice as to the precarious state of his application and the need for him to seek legal advice as to how to properly address the matters that fall within the proper jurisdiction of this Court in matters of jurisdictional review of an administrative decision (the Tribunal’s decision), nothing further has been put before the Court by the applicant.
When given the opportunity today the applicant’s submission, essentially, was that he could not return home because of the difficulties that that would pose for him, and that the Tribunal did not give proper consideration to his claims. That matter of consideration is echoed in the purported first ground of the application to the Court.
Quite contrary to the mere assertion by the application, any plain reading of the Tribunal’s decision record reveals that it fully considered the applicant’s claims. It simply chose, for the reasons it gave, not to accept them. It is the case that a failure to consider a claim, or an integer of a claim, expressly made or clearly arising from circumstances presented by the applicant may lead to jurisdictional error. Authority for that proposition is well settled (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1, and Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244).
However there is a significant difference between the Tribunal not considering a claim and the Tribunal rejecting a claim by not accepting the truth of it. No error is revealed in what the Tribunal did in this case. The Tribunal’s findings were reasonably open to it on what was before it. Findings of fact include findings on credibility and, so long as those findings of fact are made in a way that is reasonably open on the material before the decision maker, such findings of fact are made within the proper exercise of the Tribunal’s jurisdiction. No jurisdictional error can be said to arise in the current circumstances.
The second complaint in the application is essentially also a complaint directed to what I just said: that the Tribunal did not find the applicant to be a credible witness. On its own that does not succeed in revealing jurisdictional error.
I should also note that the Tribunal’s conclusion in comprehensively rejecting the credit of the applicant’s claims was based on a series of findings involving the inconsistency in the applicant’s various accounts and the inability of the applicant to provide such explanation and detail as to otherwise satisfy the Tribunal.
The Tribunal’s finding that the applicant fabricated his claims was probative of the material before it. To the extent the Tribunal included in its analysis the involvement of the applicant’s landlord, again, the Tribunal’s finding in this regard, to the extent that it assisted in informing its ultimate conclusion, was reasonably open to it on what was before it.
Conclusion
In the absence of anything else from the applicant, and considering the material that has been put before Court, I can only agree with the Minister that there is no jurisdictional error evident in the Tribunal’s decision. For the applicant to succeed before this Court, at the very least, the Court would need to find jurisdictional error before the grant of the relief the applicant seeks could be considered.
The applicant asked the Court today how he could have his case returned to the Tribunal for another hearing so he could address the “mistakes” he had made. As I pointed out to the applicant, the only way the Court could return his matter to the Tribunal is if jurisdictional error is found. In the absence of such error, it is not appropriate that the Court grant the relief the applicant seeks. If the applicant made “mistakes” that is unfortunate for him, and he will have to live with those “mistakes” in circumstances where it is inappropriate for the Court to grant the relief sought. I note incidentally that what the applicant described as “mistakes”, the Tribunal described as complete fabrications.
The application to the Court should be dismissed. I will make an order accordingly.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 8 June 2012
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