SZRHF v Minister for Immigration - [2012] FMCA 595

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRHF v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 595

MIGRATION – Review of decision of Refugee Review Tribunal – where applicant sought protection on the basis of his sexual orientation – whether Tribunal fell into jurisdictional error.

Migration Act 1958 (Cth), ss.422B, 425

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405

Applicant:

SZRHF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 653 of 2012

Judgment of:

Raphael FM

Hearing date:

26 June 2012

Date of Last Submission:

26 June 2012

Delivered at:

Sydney

Delivered on:

26 June 2012

REPRESENTATION

For the Applicant:

In person

Solicitors for the First Respondent:

DLA Piper

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $3,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 653 of 2012

SZRHF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Ghana who arrived in Australia on 11 March 2006. On 3 November 2011 he applied to the Department of Immigration and Citizenship for a protection (Class XA) visa. On 15 December 2011 a delegate of the Minister refused to grant him that visa. On 16 December he applied to the Refugee Review Tribunal for a review of the delegate’s decision. The applicant attended a hearing before the Tribunal which on 16 February 2012 determined to affirm the decision under review.
The ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was the convention one of membership of a particular social group. The applicant claimed he was a homosexual. He told that when he admitted his sexuality to his mother she reported him to the local priest who made his status public. In May 2005 his shop was ransacked and he claimed that if he had been in the shop at the time he would have been killed. He told that the situation in Ghana in respect of homosexuals was dangerous. The politicians were inciting people against them so he determined to leave. He made arrangements at the time of the Commonwealth Games and came to Australia. It appears that the applicant did not make a claim for a protection visa immediately but he did so shortly after being taken into detention as an unlawful non-citizen.
The applicant was questioned by the delegate and he told that after he had originally spoken to his mother about his sexuality she and the priest encouraged him to enter into a relationship with a woman which he did. He had two children with that woman but he did not find the relationship satisfying and he ended it shortly before he left. He also told that when he came to this country he sought assistance from an Iraqi man who introduced him to a woman with whom he stayed. He also began a relationship with her and had a child.
In response to questioning from the Tribunal the applicant told, for the first time, that he had a very lengthy relationship with another man in Ghana. The Tribunal naturally questioned him as to why he had not mentioned this relationship before. He said that no one had asked him. When the Tribunal questioned the applicant about his relationship with the Australian woman he gave inconsistent answers in relation to the length of that relationship.
The Tribunal pointed out to the applicant that his delay in applying for a protection visa for five years was inconsistent with the existence of a genuine fear of persecution. The applicant said that he didn’t know about this option until he had been detained at Villawood.
“[56]After an adjournment, the applicant said that he felt his relationship with N was genuine, and if she had not asked him to leave he would not have left. I asked was that not inconsistent with him being a homosexual and he said that at a certain point he felt that this type of double life was not proper for him, especially when N got pregnant and so he decided that he would live a heterosexual life.” [[56] CB 125]
At [58] [CB 125] the Tribunal put to the applicant some of the concerns it had about his story and its inconsistencies. It noted that although he had been in Australia for five years he had not used that opportunity to explore his homosexuality or pursue homosexual relationships in Australia. The applicant responded that his friends in Melbourne would not accept him if he was gay. The Ghanian community did not like gays.
In its findings and reasons the Tribunal stated:
“[69]Making allowance for nervousness at the hearing, and having regard to the facts as discussed above, I have serious concerns about the overall credibility of the applicant. His evidence was vague, inconsistent, and overall problematic in ways that I do not accept can be explained by his background or any particular difficulties that might have prevented him from putting forward his claims. He has provided inconsistent and conflicting information about important matters at different times in relation to his application. Aspects of his conduct appear to be inconsistent with his claim to be a homosexual and to be in fear of his life due to events in his home town in 2005. His evidence about some matters was vague and appeared to evasive. His evidence about some matters shifted and changed under questioning, or when problems with that evidence were identified, giving the impression that he was prepared to change his evidence if he felt that would help him. Overall, the deficiencies in his evidence lead me to conclude that the applicant has not been truthful in presenting his claims. Moreover, in contrast to the deficiencies in the evidence that he is homosexual there is evidence demonstrating he was engaged in two long term heterosexual relationships which have produced three children.” [[69] CB 127 - 128]
The Tribunal then goes on at [70] to set out in detail the inconsistencies and problems which it found with the applicant’s evidence and at [71] it noted that, in addition, it had concerns about the fact that he had not applied for a visa although he had been here for five years allegedly in fear of his life:
“[72]For the reasons discussed above, I find that the applicant is an unreliable and untruthful witness. I am therefore not prepared to accept his unsupported assertion that he is homosexual. I do not accept his evidence about his homosexual relationship with J and he does not claim to have engaged in any other homosexual activity or expressed in homosexuality in any other way. I find his failure to take any steps to explore his homosexuality during the five years he has been in Australia to be highly inconsistent with his claim to be homosexual, and do not accept his explanations that he was afraid and did not wish to mix in the Ghanaian community. I find it almost inconceivable that a homosexual man who fled to Australia would have found no opportunity at all to express his homosexuality in five years. On the other hand, the applicant has had two lengthy heterosexual relationships, including one in Australia. I consider it highly significant that the applicant stated at the hearing that he would resume his relationship with N with given the opportunity. While of course, there are bisexual men, and homosexual men who marry and have children, in this case there is no credible or persuasive evidence to support a finding that the applicant is in fact homosexual; and for the reasons set out above I do not accept that he is a reliable, credible or truthful witness. Moreover, I consider the applicant’s conduct in remaining in Ghana for many months after he claims to have been in fear of his life; then failing to apply for protection in Australia for five years after his arrival, further indicates that he did not leave Ghana in fear of his life for the reasons claimed.”
[CB 130 - 131]
On 13 March 2012 the applicant filed an application in this court seeking a review of the decision of the Tribunal. There were two grounds of that application. The first was:
“That by going back to my country will put my life in danger.”
This is clearly not a ground of judicial review. It is a statement of fact and a statement of fact that was made to the delegate and to the Tribunal and was not accepted by either of them. It is not a matter that can be taken into account by this court.
A second ground was:
“I need the protection of Australia people.”
Once again this is at best, a request for merits review of the Tribunal decision, which is impermissible in this court.
I asked the applicant why he believed the Tribunal had made an error of law in the manner in which it reached its decision but in response he was unable to say more than that he believed that his life would be in danger if he returned and that he did not understand why the Tribunal did not believe him because he had told the truth. He said that if he returned to Ghana the boys who attacked him would still be there and would come after him again.
It is now well established that matters of credibility are for the Tribunal par excellence (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405) and that provided the Tribunal came to its conclusions on the basis of available evidence there will be no jurisdictional error even though an applicant claims that the Tribunal’s decision was incorrect. In this particular case, the Tribunal pointed to a number of factors which led it to come to the conclusions that it did. Thus, those conclusions were based upon available evidence and seemed to me to be not capable of being impugned on any of the grounds that remain available to applicants in this court. There was no suggestion that the applicant did not receive procedural fairness as prescribed by s.422B and Div. 4 of the Migration Act 1958 (Cth)[1] and I am not able to say that there is any hint that the Tribunal’s views were infected by actual or ostensible bias. The applicant received a hearing as required by s.425 of the Act and the decision was no way illogical given the evidence that had been produced.
[1] “Act”
In those circumstances the application must be dismissed. I order that the applicant pay the first respondent’s costs assessed in the sum of $3,500.00.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 5 July 2012