SZRIK v Minister for Immigration
[2013] FMCA 188
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRIK v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 188 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the applicant was denied procedural fairness and the Tribunal made erroneous findings of fact and reached an erroneous conclusion. |
| Migration Act 1958, ss.91R, 422B, 424AA, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZRIK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 763 of 2012 |
| Judgment of: | Cameron FM |
| Hearing date: | 14 March 2013 |
| Date of Last Submission: | 14 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 26 March 2013 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 763 of 2012
| SZRIK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India who arrived in Australia on 20 April 2009 as the holder of a student visa. On 27 July 2011 he applied to the Department of Immigration and Citizenship for a protection visa, alleging that he feared persecution in India because of his homosexuality. On 23 September 2011 his application for a protection visa was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-38 of the Tribunal’s decision. Relevant factual allegations are summarised below.
The applicant made the following claims in a statement attached to his protection visa application:
a)he realised that he was gay when he was nineteen years old and a friend of his sister made sexual advances towards him;
b)he did some research on the internet and found cities around the world, including Sydney, which were popular destinations for gay people and had large gay populations. He decided to travel to Sydney to study and arrived in April 2009;
c)in May 2009 he began a relationship with a man named John. After two months they moved to a share house where all their housemates were gay or lesbian and they went to gay and lesbian clubs together. He became a “member” of the Colombian Hotel on Oxford Street, Darlinghurst, which he stated is well-known for its gay and lesbian clientele;
d)in June 2010 his relationship with John ended because John moved to Darwin and he remained in Sydney for his studies. He moved to Kings Cross where there were many gay clubs within walking distance;
e)he had short relationships with two other men, Frank and Ricky, but he believed that John would return;
f)if he returned to India his parents would force him to enter an arranged marriage because they were conservative. He would have to tell them he was gay and there would be no place for him there. If he moved to another part of India he would be unable to get a job because employers did not like gay people. In India gay people were hated, physically harassed and not treated equally; and
g)if he returned to India, his family would send him to a community called Masi which cut off parts of gay people’s bodies. The police did not care about them.
Departmental interview
The applicant made the following claims at a departmental interview on 20 September 2011:
a)he realised he was homosexual when he was eighteen years old. He had been attracted to men since he was sixteen but had not been confident that he was gay. He realised that he was gay when his friends told him that he was like a girl;
b)he had had no sexual experiences in India;
c)he thought that there was no gay population in India because gay people were not accepted by society and he had not seen any gay people in his village or in the city;
d)if he was sent to the Masi or Hijda community he would be forced to wear dresses and would have his penis removed. If he went to Delhi he would be abducted by the Masi;
e)his parents had tried many times to arrange a marriage for him but he told them that he was not ready and convinced them to allow him to study in a western country before marrying;
f)he had not moved to Darwin with John because he had wanted to apply for a protection visa, knew where everything was in Sydney and had been told that the weather was different in Darwin;
g)he had been a member of the Colombian Hotel since June or August 2010 and went there once a week on Fridays or Saturdays. He had attended gay clubs, gay parties and an event at the Sydney Town Hall concerning gay marriage. When John was in Sydney they had also gone to the beach with a group of other gay people; and
h)he had not heard of Mardi Gras and did not know what it was. He had not been invited to it and no-one had told him about it.
Tribunal
In an unsigned statement received by the Tribunal on 20 October 2011, the applicant claimed that he had not known about Mardi Gras because his friends had not told him about it, he had lived alone and been lonely since childhood, he had never read newspapers or watched television and did not have a computer or internet at home. He claimed that his parents had moved to the United States of America and given their property away and that if he returned to India his relatives and spiritual gurus would force him to go to the hijra. He claimed that he could be imprisoned for ten years for being gay, would be homeless and abducted by or forced to join the hijra. The applicant claimed that an uncle who was gay had committed suicide because the community and spiritual gurus had forced him to join the hijra. He claimed that the room in which his uncle had committed suicide was his room and that he had spent most of his time in there.
The applicant made the following additional claims at a Tribunal hearing on 24 January 2012:
a)he was four or five years old when his uncle died. People talked about his uncle’s death and told him that he looked like his uncle. He was thirty-six years old when he left India and had resisted the pressure to marry as his family was soft on him because of his uncle’s suicide. The applicant then said that his grandfather and one of his other uncles who were conservative had killed his uncle;
b)when he lived in India he did not socialise; he studied, worked and went home. He had experienced physical harassment and had played cricket once but had been asked to leave. He was fearful of people;
c)if he had used the internet to search for information about gay people in India he would have been caught. His parents had been strict and checked everything so he was fearful. He had only once looked up information about gay people around the world;
d)it would be easy for him to obtain a job in Bangalore but if his employer found out that he was homosexual he would be dismissed. If he had no job he could not survive. If people knew he was gay he would be physically harassed and possibly raped;
e)in April 2010 he applied for and was denied a student visa. He sought a review with the Migration Review Tribunal (“MRT”) which was unsuccessful. He considered applying to the Minister for ministerial intervention in relation to the MRT decision and was confident that if he had applied he would have received a favourable outcome. However, by then he had heard about protection visas and decided to apply for one;
f)in a letter dated 2 December 2010 which he had sent to the MRT he said that he wanted to finish his studies and return to India because he had heard of other students doing this and had thought that he would be able to gain temporary residence in Australia, and eventually permanent residence. At the time he had not known about protection visas;
g)he had not applied for a protection visa earlier because he had not known about them. He met a lawyer in July 2011 who told him that he could apply for protection and he did so within a week;
h)he had sought the assistance of a migration agent but he had no money and although the migration agent told him that he would help him fill out the form, he would not represent him. The applicant then said that he had filled out the application form by himself because it had been easy;
i)he joined a gay website in April 2010 but had only used it once or twice because he did not feel secure using the internet;
j)John had visited Sydney for a few days at Christmas in 2010. He last spoke to John in May 2011. John left Australia for Ireland in June 2011 but told the applicant that he was returning in June or July 2012; and
k)he was scared and worried and did not feel well. He might have made mistakes and forgot what he said.
The Tribunal also took evidence from a Mr Reynolds, manager at a boarding house where the applicant had lived. He gave the following evidence:
a)he was the acting manger of a boarding house where the applicant had lived in June 2010. The applicant had shared a room with about six to eight men. He was also a friend of the applicant;
b)in June or July 2010 he noticed that there was a girl who was interested in the applicant and that the applicant did not reciprocate her interest; and
c)in December 2010 the applicant introduced him to a young man who he thought was called John. He thought that John was gay based on his mannerisms. He thought that the situation was unusual because he did not usually see the applicant with anyone.
The applicant’s representative submitted to the Tribunal a statutory declaration made by the applicant on 3 February 2012 in which the applicant made the following further claims:
a)he and John had resumed their relationship when John visited Sydney at Christmas in 2010. John had telephoned him in May 2011 shortly before he left Darwin for Ireland and told him that he hoped to return to Sydney in June or July 2012. He anticipated that his relationship with John would resume when John returned;
b)although people said that his uncle committed suicide because his parents were forcing him to marry, he believed that his uncle was killed because his family could not stand the shame of him being gay. This incident scarred him emotionally;
c)in October 2011 he told his brother who is in the USA that he is gay and asked him to pass this information on to their parents. His brother did not approve and they have not spoken since; and
d)John introduced him to his sister as a friend and not a partner.
The applicant’s advisers also provided the Tribunal with written submissions in which they submitted that the applicant had promised his parents that he would marry on his return from Australia and that he would face pressure and social stigma if he refused to comply.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal noted that the applicant had indicated during its hearing that he was not feeling well but that neither he nor his representative had requested an adjournment. The Tribunal found, after listening to the recording of the hearing, that the applicant had been able to fully discuss his claims and respond to questions. The Tribunal therefore found that the applicant had had the opportunity to give evidence and present arguments;
b)the Tribunal formed a strong view that the applicant was not a credible witness and that he did not have a well-founded fear of persecution for Convention-related reasons. In this regard, the Tribunal noted that:
i)if the applicant had researched the internet as he claimed, he would have been aware of some homosexual activity in India, including homosexual activism there. The Tribunal thus did not accept that the applicant had researched popular homosexual destinations around the world while still in India;
ii)even though the applicant claimed to have left India for Australia because of the gay community in Sydney and to have led a homosexual life in Australia, at the departmental interview he did not know about Mardi Gras. The Tribunal found the applicant’s explanations for being unaware of Mardi Gras to be inconsistent with his claims of living in homosexual households in Sydney, attending the Colombian Hotel every weekend, researching homosexual-friendly cities in the world and his claim to have travelled to Sydney because of its gay community. Given the applicant’s complete unawareness of Mardi Gras, the Tribunal did not find credible his claims of why and how he chose Sydney as a destination and the way he claimed to have lived in Sydney since his arrival;
iii)in a letter to the MRT dated 2 December 2010 the applicant claimed that he wanted to finish his studies and return to India. Based on this, the Tribunal did not accept that since he arrived in Australia the applicant had feared returning to India; and
iv)in April 2010, during the time he claimed to have been in a relationship with John, the applicant joined a gay website looking for “friendship, dating and relationship”. The Tribunal found that the applicant’s evidence that he had only used the website once when he gained membership indicated that he had not joined the website in genuine pursuit of a gay lifestyle and/or a relationship;
c)given its finding that the applicant was not a credible witness, the Tribunal rejected all of his claims;
d)the Tribunal did not accept that Mr Reynold’s evidence was corroborative of the applicant’s claims. The Tribunal noted that there may have been other reasons for the applicant’s solitary life and his lack of interest in a particular girl. The Tribunal also found Mr Reynold’s belief that John was homosexual to be speculative and not probative;
e)the Tribunal did not accept that the applicant would be harmed by individuals or harmed or imprisoned by the state because of his homosexuality or perceived homosexuality, or that he would be denied effective state protection. In this regard:
i)given that it did not accept that the applicant was a homosexual, the Tribunal did not accept that he would be abducted by the hijra;
ii)the Tribunal did not accept that the applicant’s parents had given away their land or that if the applicant returned to India he would be homeless;
iii)the Tribunal noted that the applicant was thirty-six years old and unmarried when he left India and found that he would continue to resist the pressure to marry, particularly as his parents had moved to the USA and he had little contact with them. The Tribunal found that any pressure to marry which the applicant’s family brought to bear upon him was motivated by personal reasons of shame or fear of bad karma, rather than for a Convention reason;
iv)given that it did not accept that the applicant was homosexual, the Tribunal did not accept his claims that his employment in India would be contingent on his sexuality remaining undetected, that he had no job prospects in India or that he would not have access to justice in employment matters because of his sexuality; and
v)the Tribunal found that if the applicant returned to India, he would not be involved in homosexual activities, not because he would fear persecution but because he had not been involved in them in the past;
f)the Tribunal described as speculative the applicant’s supposition that he would have been successful if he had applied for ministerial intervention in relation to the MRT decision to refuse him a student visa. It said that this was not evidence that the applicant’s claims were genuine; and
g)whilst accepting that the applicant had attended the Colombian Hotel and other clubs and had a registered profile on a gay website, given its adverse credibility finding the Tribunal was not satisfied that the applicant had engaged in that conduct otherwise than for the purpose of strengthening his claim to be a refugee. Consequently, the Tribunal disregarded the conduct pursuant to s.91R(3) of the Act.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.I, [SZRIK], am appealing the Refugee Review Tribunal (RRT) decision made on 13 March 2012, Case Number:1110531.
2.I appeal on the grounds that the decision was not in accordance with procedural fairness and was not true to fact.
3.The RRT found I was not a gay man. This is not true. I am a gay man with gay friends and a gay life in Sydney.
4.I have had gay lovers in Sydney. The RRT rejected every bit of evidence regarding my sexual orientation, and all of my gay friend’s testimony.
5.The RRT rejected evidence given by applicant’s representative regarding the situation of gay people in India on the basis that I am not gay.
6.The situation is that I have fear of being sent back to India where I cannot be a gay man as I am in Sydney.
7.India is not a safe place for me as a gay man. Homosexuals like me in to face discrimination in employment in India, face physical attacks, rape and blackmail. Police committed crimes against homosexuals and used the threat of arrest to coerce victims not to report the incidents (US State Department, Country Reports on Human Rights Practices for 2010 in relation to India, Section 6, Societal Abuses, Discrimination, and Acts of Violence Based on Sexual Orientation and Gender Identity).
8.As a gay man, and if I am sent to India I will suffer persecution, harassment and physical harm.
9.Other migration officials ruled I was a homosexual man. In my refusal letter I received for a Protection Visa the officer stated in section ‘Reasons and Findings’ answering the question ‘Is the harm feared for a Convention reason?’. The Officer’s response is ‘The applicant claims he fears persecution due to his homosexuality.’ The officer states in the affirmative than I, [SZRIK], am a gay man. (Page 10 (Protection Visa Refusal Letter File Number: CLF2011/118929).
Although expressed in nine paragraphs the allegations made in the initiating application raised three issues, namely, whether the applicant was denied procedural fairness and whether supposedly erroneous fact finding and an erroneous conclusion on the merits of the applicant’s visa application, if proved, provide a basis to set the Tribunal’s decision aside.
On 12 June 2012 the applicant filed an amended application together with an affidavit dated the same day. On 27 August 2012 the amended application was struck out and the matter proceeded on the original application.
Denial of procedural fairness
In proceedings before the Tribunal, s.422B of the Act has replaced common law duties of procedural fairness with the statutory rights and obligations found in div.4 of pt.7 of the Act. The most significant of those provisions are ss.424A and 425 which, respectively, relevantly provide:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
…
(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or …
425 Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. …
The applicant has not suggested in what way either of these provisions might have been contravened. Instead, a review of the Tribunal’s decision indicates that it discharged its s.424A obligations by giving the applicant oral notification of the relevant information at its hearing pursuant to s.424AA of the Act. Specifically, the Tribunal put to the applicant certain information which he had provided orally to the delegate concerning the Colombian Hotel, his parents’ changed circumstances, the assistance he had received in completing his protection visa application, his attraction to men since he was sixteen and his sister’s friend’s advances towards him when he was eighteen. The Tribunal also put to the applicant information which he had provided to the MRT concerning why he wished to remain in Australia.
The Tribunal complied with its s.425 obligations by, first, inviting the applicant to a hearing which he then attended and, secondly, by putting to him various issues which were potentially determinative of the review. In particular, on various occasions the Tribunal raised with the applicant the credibility of his claims, and various aspects of them, as well as whether certain of his activities in Australia might have been engaged in for the purposes of strengthening his claim for protection.
Not only is it not apparent that the Tribunal breached any of its obligations under either of those sections, it is not apparent that it failed to observe any other obligations which might have been imposed upon it by any of the remaining sections in div.4 of pt.7. Certainly, the applicant did not point to any. For these reasons, the applicant has not demonstrated that the Tribunal denied him procedural fairness.
Tribunal made erroneous findings of fact
In judicial review proceedings such as these, the Court has no power to substitute the Tribunal’s factual findings with findings of its own. Consequently, even if the Court disagreed with the factual conclusions reached by the Tribunal, that would not provide a basis for the Tribunal’s decision to be set aside. The Court may only set the Tribunal’s decision aside if it is affected by jurisdictional error.
Consequently, allegations of this sort as made by the applicant do not disclose a basis upon which the Tribunal’s decision might be set aside.
Tribunal’s conclusion on the merits of the visa application was erroneous
As with the reasons given above at [20], the fact that the Court might arrive at a conclusion on the merits of the applicant’s protection visa application different from the one the Tribunal reached does not provide a basis to set the latter’s decision aside. As already noted, the Court may only do this if jurisdictional error is identified. As the relevant allegation by the applicant did not go beyond a disagreement with the Tribunal’s ultimate conclusion, it is insufficient to support a finding that the Tribunal’s decision is affected by jurisdictional error.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently the application will be dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 26 March 2013
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