SZRXT v Minister for Immigration
[2013] FCCA 286
•24 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRXT v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 286 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – whether complementary protection criteria applied – no applicable criteria – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 425, 474 Migration Amendment (Complementary Protection) Act 2011 (Cth) |
| Cases cited: SZOHJ v Minister for Immigration and Citizenship [2010] FCA 1268 |
| Applicant: | SZRXT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2235 of 2012 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 14 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 24 May 2013 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of a Nepali interpreter |
| Solicitors for the First Respondent: | Ms S. Sangha of Minter Ellison |
| The Second Respondent: | The Second Respondent filed a submitting notice of appearance |
ORDERS
The application filed on 10 October 2012 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
The applicant in these proceedings is not to be identified pursuant to s. 91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZRXT.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2235 of 2012
| SZRXT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In accordance with the Court Orders made on 2 November 2012 the solicitors for the first respondent, the Minister for Immigration & Citizenship, were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”). On the date of the hearing, the Court Book was marked Exhibit “A” and is the only evidence before the Court.
At the First Court Date directions hearing, the applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any supporting affidavit material on or before 19 December 2012. The applicant elected not to file an amended application. The applicant was also required to file and serve a short written outline of submissions and a list of authorities 14 days before the hearing, but elected not to do so.
This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review in respect of a decision of the Refugee Review Tribunal (the “Tribunal”) affirming the decision of a delegate of the first respondent, the Minister for Immigration & Citizenship (the “Minister”) to refuse the grant to the applicant of a Protection (Class XA) visa. It is the decision of Member P. Leehy dated 11 September 2012, RRT Case Number 1204700, that is the decision subject to review in the proceedings before this Court.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by Ms Sangha appearing for the Minister. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book (“CB”), each item contains a Court Book reference for that material.
The applicant is a citizen of Nepal who arrived in Australia on a Student (subclass 572) visa on 8 February 2007 (CB 3). The applicant’s Student visa expired on 15 March 2010 and he became an unlawful non-citizen on this date. On 11 August 2011, the applicant lodged an application for a Protection (Class XA) visa (CB 1-39). The applicant was granted a Bridging visa C in association with his application for a Protection visa on 11 August 2011 (CB 64).
In a typed statement submitted (CB 30-32) with his Protection visa application form, the application claimed that he faced harm on the basis of his homosexuality. He claimed that he had a relationship with another male student during his college years and that the principal of the college asked him to leave the college once his relationship became known. The applicant claimed that if returned to Nepal he would be harassed, discriminated against, isolated and forced to marry a woman. He claimed that his parents, the police, homophobic people and Maoists would harm or mistreat him because of his homosexuality (CB 30-31).
In support of the applicant’s application, he provided various academic certificates including a character certificate from Orchid Science College attesting to his good moral character and completion of senior secondary high school exams (CB 33-39).
The Delegate’s Decision
On 13 January 2012, the applicant attended an interview with a delegate of the Minister (CB 40-43). By decision dated 9 March 2012, the delegate refused the grant to the applicant of a Protection visa (CB 64-77).
In his Decision Record the Minister’s delegate noted that, while homosexuals may continue to experience discrimination and harassment from some members of the authorities and society generally including their own families, there was no evidence before him to suggest that homosexuals were being subjected to serious harm amounting to persecution in Nepal as a result of systematic and discriminatory conduct (CB 133 at [29]). The delegate also stated that the applicant’s delay in seeking protection raised doubts about his claim to have a subjective fear of Convention-based persecution (CB 133 at [29]).
The Tribunal’s Decision
The applicant applied to the Tribunal for review of the decision of the Minister’s delegate on 13 April 2012 (CB 123-145). By letter dated 6 July 2012, the Tribunal advised the applicant that it was unable to make a favourable decision on the information before it and invited him to give oral evidence and present arguments at a hearing on 16 August 2012 (CB 94-100). That hearing was rescheduled by the Tribunal to 3 September 2012 (CB 106-112). The applicant attended a hearing with the assistance of a Nepali interpreter. The applicant did not provide documents at the hearing but indicated he would do so by 10 September 2012 (CB 114-116).
By decision dated 11 September 2012, the Tribunal affirmed the decision of the delegate not to grant the applicant a Protection visa. The Tribunal found the applicant’s evidence about his homosexuality, and particularly his relationship with his fellow student to be unconvincing. However, despite concerns about credibility of the applicant’s evidence about his homosexual relationship in Nepal, the Tribunal could not be satisfied on the evidence before it that the applicant was not a homosexual and accordingly proceeded on the basis that he was in fact homosexual (CB 142 at [71]).
The applicant claimed that he was expelled from his college after it had been discovered by fellow students, teachers and the school principal that he was in a homosexual relationship with a student. The Tribunal made the following findings in rejecting this claim (CB 143 at [74]):
a)The applicant was unable to give a convincing account of his relationship with his fellow student;
b)The Tribunal found it implausible that the expulsion of a college student for being in a gay relationship with another student would not have been communicated to the applicant’s parents;
c)The Tribunal found it implausible that if, as alleged by the applicant, the expulsion was communicated to the parents of the fellow student, that the other student’s family would not have contacted the applicant’s parents given the implications of an expulsion from college; and
d)The applicant’s claims were directly inconsistent with the character certificate from Orchid College which stated unequivocally that the applicant completed his college education, passed his exams at a high level and was of sound moral character.
Other than the applicant’s claims of expulsion, the Tribunal noted that the applicant did not claim to have suffered any serious harm in Nepal prior to his arrival in Australia in 2007 or when he visited Nepal in 2010 (CB 143 at [75]). The Tribunal found this was consistent with the fact that the applicant did not apply for protection for the three years in which he studied in Australia before returning to Nepal in February 2010. There was a delay of a further 15 months after the applicant returned from Nepal in February 2010 until he applied for a Protection visa. The Tribunal found the significant delay to be relevant in assessing the genuineness of the applicant’s claimed fear of persecution (CB 143 at [75]).
In determining whether there was a real chance that the applicant would be persecuted in a Convention sense if he returned to Nepal, the Tribunal had regard to country information about the treatment of homosexuals in Nepal. The Tribunal noted the country information which indicated that, whilst discrimination and harassment of homosexuals occurred in Nepal, homosexuality is not an offence, such discrimination is against the law and that there is an openly gay and vocal member of parliament in Nepal who has founded a high profile functioning organisation that provides support to homosexuals in Nepal (CB 143 at [76]).
In relation to the applicant’s claims that he may face ostracism from his family, social exclusion or discrimination, the Tribunal determined that this would not amount to persecution in a Convention sense, particularly given the applicant’s high level of education after having studied in Nepal and Australia (CB 143-144 at [77]-[78]). In addition, the Tribunal was not satisfied on the evidence of the country information before it that the applicant would be seriously harmed by the Maoists because of his sexual orientation (CB 144 at [79]).
The Tribunal was not satisfied on the evidence before it that there was a real chance that the applicant would face Convention-based persecution if he returned to Nepal in the foreseeable future under s.36(2)(a) of the Migration Act. The Tribunal was also not satisfied that the applicant’s claims of harm, individually or cumulatively, would constitute significant harm under s.36(2)(aa) of the Act (CB 145 at [89]). Accordingly, the Tribunal affirmed the decision of the delegate to refuse the grant of a Protection (Class XA) visa to the applicant.
Current Proceedings
The applicant filed an application for judicial review in this Court on 10 October 2012 that seeks the following order:
A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant’s application according to law.
The application pleads the following grounds:
1. I argue that the Tribunal Member applied purely politically motivated country information to assess my safety and failed to give me a procedural fairness.
2. I am a victim of the purported decision made by the Tribunal Member as the Tribunal Member simply ignored my safety by heavily relying on Mr Sunil Babu Pant’s superficial reports or comments which were obviously politically motivated.
3. Thus the Tribunal Member’s decision was affected by jurisdictional error.
Applicant’s Submissions
At the directions hearing held on 2 November 2012, an order was made that the applicant was to file and serve in the Registry a short written outline of submissions and list of authorities 14 days before the date of the final hearing. The applicant confirmed that he had not complied with this order. When invited to make any oral submissions in support of his application, the applicant indicated that the decision by the Tribunal focused on a specific person who is identified in the Tribunal decision as Mr Sunil Babu Pant established the Blue Diamond Society in Nepal. The applicant indicated that this person was seeking to establish a political image for himself and to promote the activities that he was involved in. The Tribunal, in its decision, compared the applicant’s position to that of Mr Pant’s lifestyle. This approach ignored the circumstances of people who were not involved in politics and did not have the benefits of Mr Pant’s political status. The applicant claimed, in respect of this approach taken by the Tribunal, he did not believe that it was a fair decision.
When the applicant was asked whether he had a copy of the respondent’s written submissions he confirmed that they had been read to him and that he understood the contents. When asked whether he wished to make any comments in respect to the respondent’s submissions he indicated that he did not and that he had nothing further to say.
Respondent’s Submissions
The Minister argues that in order to be granted the relief sought in these proceedings; the applicant must establish jurisdictional error on the part of the Tribunal. Absent jurisdictional error, the decision of the Tribunal is a ‘privative clause decision” under s.474(2) of the Migration Act which is therefore final and conclusive pursuant to s.474(1)(a) of the Migration Act: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
The Minister submits that it is well established that the Tribunal is entitled to have regard to country information: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ, affirmed in SZODW v Minister for Immigration and Citizenship [2011] FCA 5 at [25] per Katzmann J. The country information in question was very relevant in that it indicated that the situation in Nepal for homosexuals was enlightened compared to other countries in the region. In particular, the Tribunal noted that in 2001 Mr Sunil Babu Pant, who established the Blue Diamond Society to support homosexuals in Nepal, was elected to Parliament as an openly gay man (CB 136 at [43] and 143 at [75]).
The Minister submits that the weight that the Tribunal attributes to country information is a matter for it to determine: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 291-292 per Kirby J. Therefore, the Tribunal was entitled to use this country information as it had direct bearing on the applicant’s claims.
In any event, the country information available to the Tribunal was only a factor in combination with other reasons in the Tribunal’s finding that a real chance did not exist that the applicant would face persecution if he returned to Nepal. The Tribunal was not satisfied that the applicant was expelled from his college after it was discovered by fellow students, teachers and the school’s principal that he was in a homosexual relationship with a fellow student (CB 143 at [74]) and the applicant did not advance any other claims of serious harm in Nepal (CB 143 at [75]). The Tribunal also found it relevant that the applicant did not apply for protection until August 2011 despite first arriving in Australia in February 2007 (CB 143 at [75]). The Minister submits that the Tribunal properly applied and considered the country information to the applicant’s claims and Grounds 1-3 of the applicant’s application should be dismissed.
Further, the Minister argues that, to the extent that the applicant alleges a denial of procedural fairness, the Tribunal’s obligations are set out in Part 7, Division 4 of the Migration Act. In this regard, the applicant was invited to attend a hearing in compliance with s.425 of the Migration Act where the applicant received the translation assistance of a Nepalese interpreter (CB 114-116). There was no information that was required to be put to the applicant for comment or response pursuant to s.424A(3)(a) of the Migration Act: SZOHJ v Minister for Immigration and Citizenship [2010] FCA 1268 at [27]. Consequently, the Tribunal was not required to put particulars of country information to the applicant that would be the reason or part of the reason for affirming the decision under review. Notwithstanding, the Tribunal’s Decision Record demonstrates that this information was put to the applicant for comment at the hearing (CB 136 at [43]). The Minister submits that there was no failure to afford procedural fairness as required by Part 7, Division 4 of the Migration Act.
Consideration
At the First Court Date directions hearing the applicant expressed the desire to participate in the RRT Legal Advice Scheme NSW and at the hearing the applicant indicated that he had received that advice from the panel adviser allocated to him. The applicant was also granted leave to file an amended application, but confirmed at the hearing that he had elected not to do so. In the applicant’s application he raises three grounds of review which have been addressed in the written submissions prepared on behalf of the Minister. I believe that those submissions, which are reproduced above at [21]-[25], correctly and adequately address the issues raised in the applicant’s three pleaded grounds and require no further comment.
As the applicant is a self-represented litigant and appears to have a very limited understanding of the appeal process that he is attempting to undertake in the Court I have reviewed the contents of the Court Book and, particularly, the Decision Record, which is the only evidence available before the Court. The Tribunal finds that the applicant’s claims regarding his homosexuality and specifically his relationship with a particular identified individual are unconvincing. The Tribunal adopted the approach that the applicant is a homosexual for the purposes of its deliberation. This approach is qualified by the Tribunal Member on the basis of the credibility of the applicant and his supporting evidence.
Proceeding on this basis, the Tribunal rejects a number of the applicant’s claims which are effectively summarised in the Decision Record at [74]:
74. The applicant claims to have been expelled from his college after it had been discovered by fellow students, teachers, and ultimately the school Principal, that he was in a homosexual relationship with a student. The Tribunal does not accept this claim. As detailed above, the applicant was unable to give a convincing account of his relationship with Hari Thapa. Apart from this, however, the Tribunal does not accept that the expulsion of a college student for being in a gay relationship with another student would not have been communicated to the applicant’s parents. The successful completion of higher secondary schooling, the “Plus 2”, could not have been other than a very important matter for the parents of a son from a village in Nepal. It was the gateway to university education and a successful career. Furthermore, according to the applicant, the expulsion and the reason for it was communicated to Hari Thapa’s parents. The Tribunal does not accept that Hari’s family would have contacted the applicant’s parents since this expulsion from college could have ruined Hari’s future prospects, and would hardly have passed unremarked. Finally, the Character Certificate from Orchid College, whose authenticity the Tribunal has no reason to doubt, states unequivocally that the applicant completed his college education, passed his exams at a high level, and was of sound moral character. Despite the applicant’s claims to the contrary, the Tribunal does not accept that the Principal of a college would have issued this certificate if the applicant had not successfully completed his schooling there without incident, or certainly without an incident of the gravity of being involved in a homosexual relationship with a fellow student.
(CB 143)
The Tribunal then notes that, other than the applicant’s claimed expulsion from Orchid College, there is no other claim of serious harm experienced in Nepal before departing for Australia in 2007 or during his visit in February 2010, together with a considerable delay after returning to Australia in 2010 in the filing of his Protection visa application. The Tribunal then focuses on the prospects of the applicant being persecuted if he were to return to Nepal in the foreseeable future. This evaluation is undertaken with reference to the country information in respect of homosexuality in Nepal and its legality and social acceptance. The Tribunal finds that the extent of any harm the applicant may face is limited to ostracism from his own family and possible exclusion from some social events and rituals. The Tribunal adopts a similar approach to the applicant’s claims that he may be persecuted by the Maoists because of his sexual orientation, but this claim is unsupported by the available country information.
Insofar as the applicant takes issue with the factual findings in the Tribunal’s reasons, this does not establish any jurisdictional error. The applicant was unsuccessful because of the view the Tribunal took of the facts and, in particular, its finding that he was not credible. Such findings are a matter of fact for the Tribunal par excellence: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (1999) 168 ALR 407 at [67]. As was said in W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]-[69], so long as a tribunal’s credibility findings were open to it, no error is demonstrated.
The Tribunal’s findings are effectively summarised at [80]-[81] (CB 144) where it states:
80. The Tribunal has also taken into account the current very volatile political situation in Nepal in making its findings on the risk to the applicant of returning there. While the applicant may be the victim of random violence in the current circumstances in Nepal, the Tribunal finds that neither his sexual orientation nor any other characteristic of the applicant puts him at elevated risk of being targeted or harmed by anyone in Nepal.
81. The Tribunal is not satisfied on the evidence before it that there is a real chance that the applicant will face Convention-based persecution if he returns to Nepal in the foreseeable future. It is not satisfied that he has a well-founded fear of persecution in Nepal within the meaning of the Refugees Convention.
Since the Migration Amendment (Complementary Protection) Act 2011 (Cth) amended the Migration Act in March 2012, the Tribunal has been required to consider whether Australia owes applicants for Protection visas complementary protection. The applicant and those who are assisting him with his application are unlikely to be aware of the existence of this obligation in the Migration Act, but it was known to the Tribunal and the Tribunal has addressed this issue. A convenient summary of these new provisions are contained in the then bill’s second reading speech on 24 February 2011. The new provisions establish a criteria to grant a Protection visa in circumstances that engage Australia’s non-refoulement obligations under the Human Rights treaties and other refugee conventions and is summarised as follows:
Australia will not return a person to a place where there is a real risk that a person will suffer particular types of significant harm contained in the relevant human rights treaties, namely:
· the arbitrarily deprivation of life;
·having the death penalty carried out;
·being subjected to torture;
·being subjected to cruel or inhuman treatment or punishment; or
·being subjected to degrading treatment or punishment.
(Hansard, 24 February 2011)
The claims advanced by the applicant to seek protection from persecution as described in the Refugees Convention were rejected by the Tribunal. The claims were rejected primarily on the basis of credibility and on the evidence before it that there is not a real chance the applicant will face Convention-based persecution. In these circumstances none of the issues were raised by the applicant in his Protection visa application, nor are they relevant. This is understandable in the case of an unrepresented litigant unfamiliar with the language and the legal administration of this country and having very little opportunity to avail himself of this knowledge or assistance.
The Tribunal addresses the complementary protection criteria in the context of this application at [82], where it states:
82. The Tribunal has found that the applicant may experience discrimination, social exclusion and ostracism by his family if he returns to Nepal. It has considered whether any of these individually, or all of them cumulatively, amount to significant harm within the meaning of the Complementary Protection legislation. The legislation is exhaustively defined in the Act, and specifies that a person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to a degrading treatment or punishment.
(CB 144)
Being ostracised by his family or being excluded from some social and ritual activities because of his claimed homosexuality was found by the Tribunal not to have reached the threshold for applying any one of the five identified behaviours that would warrant the granting of protection, available under the Complementary Protection criteria. The Tribunal specifically addresses this issue at [85]-[87]:
85. The final type of significant harm listed in s.36(2A) is degrading treatment or punishment: s.36(2A)(e). Degrading treatment or punishment is exhaustively defined in s.5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.
86. However, ‘degrading treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
87. The Tribunal does not accept that any discriminatory or exclusionary treatment which the applicant may suffer if he returns to Nepal constitutes “significant harm” as defined in the legislation and set out above. It therefore follows that the Tribunal is not satisfied on the evidence before it that there is a real risk that the applicant will suffer significant harm if he is removed from Australia to Nepal.
(CB 144-145)
Conclusion
On the material available to the Court, which is essentially limited to the contents of the Court Book, I am satisfied that the application should be dismissed with costs awarded to the Minister.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Date: 24 May 2013
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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