SZRIK v Minister for Immigration, Multicultural Affairs and Citizenship

[2013] FCA 771

FEDERAL COURT OF AUSTRALIA

SZRIK v Minister for Immigration, Multicultural Affairs and Citizenship

[2013] FCA 771

Citation:	SZRIK v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 771
Appeal from:	SZRIK v Minister for Immigration & Anor [2013] FMCA 188
Parties:	SZRIK v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:	NSD 610 of 2013
Judge:	COWDROY J
Date of judgment:	5 August 2013
Legislation:	Migration Act 1958 (Cth) ss 36, 91R, 424AA, 424A, 425
Cases cited:	Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 SZRIK v Minister for Immigration [2013] FMCA 188
Date of hearing:	5 August 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	20
Counsel for the Appellant:	The Appellant appeared in person
Solicitor for the First Respondent:	Ms SA Given of Minter Ellison
Counsel for the Second Respondent:	The Second Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 610 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN: SZRIK
Appellant

AND:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	5 AUGUST 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the First Respondent be changed to ‘Minister for Immigration, Multicultural Affairs and Citizenship’.

2.The appeal be dismissed.

3.The Appellant pay the costs of the First Respondent of the appeal.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 610 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN: SZRIK
Appellant

AND:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE:	5 AUGUST 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By notice of appeal filed on 10 April 2013, the appellant challenges a decision of the Federal Magistrates Court (as it was then known) dismissing his application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (‘the Tribunal’), dated 13 March 2012: see SZRIK v Minister for Immigration [2013] FMCA 188.

   BACKGROUND

2. The appellant is an Indian citizen who arrived in Australia on 20 April 2009 having been issued with a student visa. On 27 July 2011 the appellant applied for a protection visa. By letter dated 23 September 2011 a delegate of the first respondent (‘the Minister’) made a decision to refuse the application for the visa. The appellant sought review of the Minister’s decision by filing an application for review in the Tribunal on 7 October 2011.

3. The appellant claims to be homosexual. He also claims that:

   1.he realised he was gay in his late teens and he had been in a same sex relationship after coming to Australia with a man named John for a little over a year. This relationship came to an end when John moved away from Sydney;

   2.he has been in brief relationships with two other men;

   3.after coming to Australia, he joined a gay dating website gays.com. He only used it once because he did not feel secure using the internet;

   4.he had originally chosen to come to Sydney following his internet research of popular destinations for gay people;

   5.he has lived in share houses with other gay people, and he regularly attends gay clubs in Sydney;

   6.his parents had been trying to make arrangements for him to marry, but he had convinced them to allow him to undertake further study in a Western country before marrying;

   7.when he was a young child his uncle had died and although he had been told his uncle had committed suicide, he believed his family had killed his uncle because he was gay;

   8.if his sexuality was discovered in India he would be sent to a hijra community (whom the appellant also referred to as the ‘Masi’) where he would be forced to wear a dress and would have his penis removed;

   9.he could not relocate from his community to Delhi as if he did he would be abducted by the Masi; and

   10.he could find work if he relocated to Bangalore, but he would likely be sacked if his employer found out he was gay, and he could not survive without a job.

4. Evidence before the Tribunal revealed hijra communities to be made up of biological men or hermaphrodites who dress and act like women.

   THE DECISION OF THE TRIBUNAL

5. The Tribunal found that the appellant was not a credible witness. It found the appellant’s claims to be inconsistent; for example that the appellant claimed to have researched popular homosexual destinations on the internet and had led a homosexual life in Sydney, but that he did not know about the Sydney Gay and Lesbian Mardi Gras (‘Mardi Gras’). The Tribunal did not accept evidence given by a witness for the appellant, finding that the witness’ belief that the appellant was homosexual was speculative rather than probative. The Tribunal disregarded the appellant’s claims to have attended gay nightclubs in Australia and to have registered a profile on a gay website, finding pursuant to s 91R(3) of the Migration Act 1958 (Cth) (‘the Act’) that it was not satisfied that this conduct was other than for the strengthening of his visa claims.

6. Ultimately, the Tribunal rejected the appellant’s claim that he was a homosexual. As such, the Tribunal was not satisfied that the appellant would face a real risk of persecution for a Convention reason should he return to India, and found that the appellant did not satisfy the criteria set out in s 36(2)(a) of the Act. The Minister’s decision was affirmed.

   THE FEDERAL MAGISTRATES COURT PROCEEDING

7. The appellant’s application commencing the proceeding in the Federal Magistrates Court filed on 5 April 2012 advanced nine grounds. Such grounds raised three issues, namely, whether the Tribunal:

   1.denied the appellant procedural fairness;

   2.made erroneous findings of fact; and

   3.made an erroneous conclusion on the merits of the application.

8. The Federal Magistrate (as his Honour then was) found that the Tribunal had complied with its statutory obligations, and that there was no evidence to suggest that it had failed to observe any other obligation which may be imposed upon it. His Honour found that the appellant consequently failed to make out issue one. His Honour found that issues two and three were misconceived in that they both sought impermissible merits review. The application was accordingly dismissed.

   THE APPEAL PROCEEDINGS

9. By notice of appeal filed on 10 April 2013, the appellant appealed the decision of the Federal Magistrates Court. No grounds of appeal were included in such notice, but on a separate piece of paper attached to his notice of appeal, the appellant advanced the eight grounds below. Information relating to the identity of the appellant has been removed.

   1.I [SZRIK], am appealing the Federal Magistrates Court decision made on 26 March 2013 that there is no Error.

   2.I Appeal on the ground that there is an Error when RRT made a decision on 13 March 2012.

   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.

   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. Gay people like me face discrimination in employment in India, face physical attach, rape and blackmail. Police committed crimes against gay and used the threat of arrest to coerce victims not to report the incidents (US state Department, Country Report on Human Rights Practices for 2010 in relation to India, section 6, Societal Abuse, Discriminations, 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.

10. At the hearing the appellant referred to a further ground which was included in his application to the Federal Magistrates Court, but not included in his appeal to this Court. Such ground (which shall be referred to hereunder as ground 9) states:

    Other migration officials ruled I was a homosexual. 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 [sic] I, [SZRIK], am a gay man.

11. No written submissions were filed by the appellant in support of the notice of appeal.

12. The appellant appeared unrepresented. The Court invited the appellant to make oral submissions, in response to which the appellant essentially made the assertions set out in the attachment to his notice of appeal.

13. The appellant’s claims raise no higher than a challenge to the factual findings of the Tribunal. Pivotal to the claims of the appellant is that he is a homosexual and that he would be vilified and persecuted if he returned to India. The Tribunal however did not accept that the appellant is a homosexual. Accordingly it follows that the appellant’s claims of possible persecution based upon him being a homosexual are unsustainable.

14. It is impermissible for an appellant to challenge the factual findings of the Tribunal made within its jurisdiction: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (‘Wu Shan Liang’) at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ, and at 291-292 per Kirby J.

15. If by ground 2 the appellant claims to have been denied procedural fairness, the reasons for the Tribunal do not disclose any failure to accord with procedural fairness as required by Part 7 of Division 4 of the Act. The necessary statutory requirements concerning the provision of an invitation to attend a hearing within accordance of s 425 of the Act were satisfied and the information to be relied upon was put to the appellant in writing as required by s 424A of the Act. In the absence of any particulars of specific alleged failures, it is impossible to discern any error in the Tribunal’s decision.

16. It should be observed that pursuant to s 424AA of the Act, the Tribunal raised factual issues with the appellant at the Tribunal hearing. These related to his claimed attendances at the Colombian Hotel on Oxford Street in Sydney every weekend, yet the appellant did not know of Mardi Gras. Other inconsistencies were put to the appellant concerning his claims to be a homosexual. Further, on 2 December 2010 the appellant had submitted a letter to the Migration Review Tribunal which stated, inter alia:

    [A]ll I need is to solve this situation so I can finish my studies and go back home.

17. The Tribunal, in respect of this statement, said at [129] of its decision:

    The Tribunal explained that the relevance of this information was that it indicated that the applicant was not in fear of returning to India at the time he wrote the letter, which was inconsistent with his claim that he had been in fear of returning to India since his arrival in Australia. If the Tribunal relied on this information, it could decide that the applicant was not credible in his claims of being homosexual, being in a homosexual relationship with John and fearing to return to India. The Tribunal could decide to affirm the decision to refuse the visa. The Tribunal asked the applicant whether he wished to comment on or respond to the information and reminded him that he could request further time after the hearing as well.

18. Grounds 4 and 5 refer to the Tribunal’s rejection of the appellant’s evidence. The Tribunal, as the determiner of fact, is entitled to grant whatever weight it considers appropriate to the evidence before it: see Wu Shan Liang at 291-292 per Kirby J. The Tribunal, in its assessment of the appellant’s evidence relating to his attendances at the Colombian Hotel and of his registration of his name on the website gays.com was entitled to conclude that such conduct was engaged in solely for the purpose of supporting his claim to be a homosexual. The Tribunal was entitled to disregard such conduct in accordance with s 91R(3) of the Act.

19. Grounds 3, 6, 7 and 8 seek to make general submissions to advance the appellant’s claim of persecution but each ground is dependant upon the finding that the appellant is in fact a homosexual. The additional ground 9 gives no support to the appellant. The statement by the delegate merely states the claim by the appellant. There is no ‘ruling’ as asserted. Since the appellant’s claim of being gay has been rejected, the remaining grounds cannot be sustained.

20. The Court is unable to find any jurisdictional error in the decision of the Federal Magistrate and accordingly dismisses the appeal with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated:        5 August 2013