SZRRF v Minister for Immigration

[2012] FMCA 975

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRRF v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 975

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in India as a homosexual – applicant not believed – no arguable case of jurisdictional error.

Federal Magistrates Court Rules 2001 (Cth)

Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 Minister for Immigration v SZIAI (2009) 259 ALR 429
Re Refugee Review Tribunal; Ex parte H[2001] HCA 28; (2001) 179 ALR 425
SBBS v Minister for Immigration [2002] FCAFC 361; (2002) 194 ALR 749
SZRHS v Minister for Immigration & Anor [2012] FMCA 806
VFAB v Minister for Immigration [2003] FCA 872; (2003) 131 FCR 102

Applicant: SZRRF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1622 of 2012

Judgment of: Driver FM

Hearing date: 23 October 2012

Delivered at: Sydney

Delivered on: 23 October 2012

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms E Warner Knight
Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,239 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1622 of 2012

SZRRF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (the Tribunal).  The decision was made on 29 June 2012.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from India and had claimed protection based upon his asserted homosexuality.  The following statement of background facts relating to the applicant’s claims and the decision of the Tribunal on them is derived from the Minister’s written submissions filed on 15 October 2012.

2. The applicant arrived in Australia on 24 August 2011 on a subclass 456 visa and lodged an application for a protection visa on 22 September 2011[1] without any supporting statements.

   [1] Relevant Documents (RD) 1, 3

3. The applicant was invited to attend an interview with a Departmental officer to be held on 19 December 2011, by letter dated 1 December 2011. The applicant did not attend. On 20 December 2011 a delegate of the Minister refused to grant the applicant a protection visa[2]. On 17 January 2012, the applicant applied to the Tribunal for a review of the delegate's decision[3]. The applicant attended a hearing before the Tribunal on 22 May 2012[4] and on 14 June 2012 provided the Tribunal with written submissions and further documents in support of his claims, comprising media articles and a letter of support[5]. The Tribunal affirmed the decision under review on 29 June 2012[6].

   [2] RD 44-57

   [3] RD 58-63

   [4] RD 94-96

   [5] RD 97-107

   [6] RD 111-134

4. In his application for a protection visa, the applicant, claimed to be an Indian citizen and a Christian, who was targeted by the Communist party and Christian authorities in India due to his homosexuality. He claimed he was afraid he would be killed by those groups and that the Indian authorities would not protect him because homosexuality was illegal in India.

5. At the beginning of the Tribunal hearing, the applicant claimed he had been in a homosexual relationship with a person at a government school where he was employed as a manager and residential tutor from 2004. He claimed he stopped working there in June 2011 after the school community discovered his homosexuality.  He also claimed that the Catholic Youth Movement (KCYM) and the Democratic Friends of the Communist Party (LDF) were against him due to his homosexuality and feared he would be killed if he returned to India. Further the applicant claimed that he was afraid of his relatives and of the Indian society generally as they persecute homosexuals.

6. In further evidence at the hearing, the applicant claimed that he first became aware that he was a homosexual while studying in year 10. The applicant initially claimed he was sexually abused by a person he thought of as a friend, a Mr Koti. Ultimately, however, the applicant found he became involved with this person and found “real happiness” in the relationship[7], with the relationship ending when Mr Koti left the area where the applicant lived. The applicant then claimed he commenced a second homosexual relationship with a friend, Nilash, whom he had met at pre-degree college. The applicant claimed Nilash would visit him at the school where he was employed as a tutor and further that Nilash had made enquiries of a lawyer as to whether he and the applicant could marry in India.

   [7] RD 121 [73]

7. The applicant claimed that students and colleagues at the school became aware of the relationship and he was forced to cease that employment in June 2011. The applicant claimed it was suspected he had a relationship with a driver at the school who used to visit him.  He claimed that in 2009 and in January 2011, he was involved in traffic accidents caused by people against his lifestyle. The applicant also claimed that, because of his homosexuality, he was excluded from church and church activities.

8. The applicant also claimed harm from the Communist party on the basis that his uncle was a lawyer and an active leader within the party and it was considered the applicant's homosexuality reflected poorly on the party's image.

9. The applicant claimed that, upon his arrival in Australia he attended Catholic church services. He claimed he had not met any other homosexuals in Australia, but had made enquiries from a work colleague. He claimed he had not thought to make enquiries via the internet as he did not expect such information to be freely available.

10. On 14 June 2012, after the Tribunal hearing, the Tribunal received a letter from the applicant attaching first, media articles regarding the Communist Party threatening to kill those who opposed it, and secondly a letter allegedly from the applicant's sister, a nun who lives in Germany, stating that the applicant's life was not safe in India as he had faced attempts to murder him a few times.

Tribunal decision

1. The Tribunal accepted the applicant was a national of India, however found the applicant's account of his sexuality to be unconvincing.  Notwithstanding the applicant was recalling events some of which had occurred some years ago, the Tribunal considered the beginning of a homosexual life would have been highly significant and inconsistencies in his account of that which reflected poorly on his credibility[8]. 

   [8] at RD 130 [140]

2. The Tribunal did not accept the applicant's explanation that he had been suspected of an involvement with a school driver in response to its concern about his initial claim that he was involved in a relationship with someone at the school where he worked, as opposed to his later evidence of a relationship with someone who visited the school[9].

   [9] RD 127 [119]

3. With regard to the time when the applicant discovered he was a homosexual, the Tribunal did not accept his claim that he was not so aware until his second relationship with Nilash, noting that the applicant had claimed to have been in a relationship for some time with Mr Koti and it was his evidence that when that relationship ended he realised he was attracted to men[10].

   [10] RD 128 [124]

4. The Tribunal did not accept the applicant's explanation regarding the claim that he was abused by Mr Koti and forced to do sexual acts but later that his relationship with Mr Koti was consensual. The Tribunal found there was “clear and irreconcilable inconsistency” between a claim of abuse followed by claims that any sexual activities between the applicant and Mr Koti were consensual[11].

   [11] RD 129 [129]

5. Finally, the Tribunal found the applicant's account of his sexuality to be unconvincing and artificial. The Tribunal did not believe the applicant would have been so compliant in his contact with Mr Koti at the time when he was not aware of homosexuality and was attracted to women. Nor did the Tribunal accept the applicant's explanation that a sexual relationship with a male “was easy and convenient”[12]. Similarly, the Tribunal did not accept that the applicant and Nilash contemplated marriage and sought legal advice given the mores of the Indian society in which they lived.

   [12] RD 130 [137]

6. The Tribunal concluded that the applicant was not a witness of truth and that his account of events in India was manufactured[13]. The Tribunal did not accept that the applicant was a homosexual and that he left India due to fear of harm by various groups for this reason. The Tribunal found that there was no credible evidence before it to explain why the applicant fled India.

   [13] RD 130 [141] and [142]

7. Considering the conduct of the applicant in Australia, the Tribunal accepted that the applicant was a Christian and attended church in Sydney but noted no claim had been made that he feared harm because of his religion[14].

   [14] RD 131 [146]

8. The Tribunal also rejected the applicant's further evidence after the hearing, finding that the media articles relating to the Communist Party in India had no relevance to the applicant's claims[15]. The Tribunal gave no weight to the assertions of threats of harm set out in the letter from the applicant's sister, noting no attempts were made on his life in India[16].

   [15] at RD 131 [148]

   [16] at RD 131 [147]

9. The Tribunal found that there was no credible evidence before it to support the applicant's claim of feared harm under the Refugee Convention. The Tribunal then considered the complementary protection criterion but also found that there was no substantial grounds for believing that the applicant would face a real risk of significant harm if returned to India.

The judicial review application

1. These proceedings began with a show cause application filed on 25 July 2012.  There are three grounds in that application:

   1. The Hon RRT Member has taken decision with pre occupied and prejudice mentality.

   2. I have given my real life story to him, but he neglected my plead.

   3. My case included in particular social group.  Hon member did not consider that.  (errors in original)

2. The applicant also filed an affidavit on 27 September 2012, which I receive as written submissions. 

3. I received as evidence the book of relevant documents filed on 6 September 2012. 

Consideration

1. The first ground in the application is an allegation of bias.  An allegation of bias is a serious matter and it should not be lightly made.  It should be clearly pleaded and supported by evidence.  The applicant has done neither.  The relevant test for bias, and the apprehension of bias, is well settled[17].

   [17] Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 per Gleeson CJ and Gummow J at [69] and per Kirby J at [127], SBBS v Minister for Immigration [2002] FCAFC 361; (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [43], VFAB v Minister for Immigration [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H[2001] HCA 28; (2001) 179 ALR 425

2. The applicant may be concerned at the comprehensive adverse credibility findings made by the Tribunal against him.  In my view, those credibility findings were open to the Tribunal on the material before it.  As I have indicated previously[18], it is generally unhelpful to examine the reasons of the Tribunal on an allegation of bias.  That is because by the time the Tribunal makes it decision it will, of necessity, have made up its mind.  The Tribunal’s reasons set out its record of the hearing conduct by it.  That was a lengthy hearing of approximately three hours.  The Tribunal’s record indicates that the applicant was questioned closely about his claims.

   [18] SZRHS v Minister for Immigration & Anor [2012] FMCA 806 at [23]

3. The hearing opportunity appears to have been a fair one.  There is nothing in the Tribunal’s account of that hearing which gives any indication that the presiding member went into it with a closed mind.  Neither is there anything in the Tribunal’s account which would support a reasonable apprehension that the presiding member did not bring an unprejudiced mind to the review. 

4. In his written submissions and in his oral submissions the applicant raised an issue concerning the interpreter used at the hearing.  He asserts that the interpreter was a woman from his home village and he was inhibited in explaining his claims in front of her.  That is an issue of procedural fairness. 

5. I do not rule out the hypothetical possibility that in circumstances such as here, where much depended upon the demeanour of the applicant at the hearing, the choice of interpreter may have had some impact.  Beyond that hypothetical possibility, however, there is nothing to support the applicant’s assertion.  As is pointed out by the Minister’s solicitor in her written submissions, the applicant gave a lengthy and detailed account of his sexual experiences.  There is nothing in the Tribunal’s account of the hearing to indicate that the applicant was in any way inhibited.  Further, there is nothing to indicate that the applicant voiced any concern to the Tribunal either at the hearing or in his post-hearing correspondence with the Tribunal.  In my view, the applicant has failed to advance an arguable case of jurisdictional error based on bias or procedural unfairness. 

6. The second ground appears to be an assertion that the Tribunal has overlooked some element or integer of the applicant’s claims.  The ground is not, however, particularised.  In his oral submissions the applicant referred to the fact that he was awaiting supportive documents from India.  He said the same thing to the Tribunal.  The Tribunal dealt with that at [153] of its reasons[19]:

   At the end of the hearing the applicant said he was willing to produce documents to support his claim and in the submissions received from him on 14 June 2012 he said he was still waiting for more documents including photographs and reports to submit.  The Tribunal elected not to wait for further documents from the applicant as the Tribunal is satisfied on the basis of the inconsistencies in his evidence and the other matters discussed above which the Tribunal finds to impugn his credibility that his account is false.  The Tribunal finds the applicant’s credibility to be so discredited that the production of documents at this stage will not alleviate or outweigh the Tribunal’s concerns.

   [19] RD 132

7. There are several points to note about that paragraph.  First, it does not appear that the applicant sought from the Tribunal any particular indulgence for the purpose of providing additional documents.  He simply told the Tribunal that he was hopeful of obtaining additional documents.  The applicant had approximately a month after the hearing before the Tribunal made its decision.  He is apparently still waiting for the documents.  Secondly, the Tribunal reasoned that there was no point in waiting for further documents because it had made comprehensive findings of untruthfulness against the applicant and additional documents were unlikely to change the Tribunal’s mind.  Such an approach should be used sparingly.  It is only in circumstances where the well has been truly poisoned that the Tribunal is entitled not to have regard to additional documents.

8. In the present case, of course, the Tribunal did not have the additional documents.  It appears that if the Tribunal had elected to wait it would still be waiting.  In the circumstances of this case, I see no arguable case of error by the Tribunal in its approach to that issue. 

9. Ground 3 in the application asserts error in relation to the applicant’s claim of membership of a particular social group.  The applicant claimed to be a member of the particular social group of homosexuals in India.  The allegation appears to be that the Tribunal erred by failing to consider that Convention nexus.  The short answer to that assertion is that the Tribunal did not need to consider any Convention nexus because it did not accept the factual basis of the applicant’s claims. 

10. The applicant claims in his affidavit filed 27 September 2012 that the Tribunal rejected his case without a proper investigation. The applicant, however, did not invite the Tribunal to make further enquiries into his claims. Nor is the Tribunal under a positive duty to make inquiries or investigate claims imposed upon it[20].

    [20] Minister for Immigration v SZIAI (2009) 259 ALR 429 at [25]

11. I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (the Federal Magistrates Court Rules).

12. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale. The applicant indicated that he would require some time to pay. I will not require payment of costs within any particular time. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,239 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Driver FM

Date:  25 October 2012