SZSEQ v Minister for Immigration - [2014] FCCA 645

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSEQ v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 645

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – claimed failure to give proper consideration to protection obligations under s.36(2)(aa) – claim that Tribunal summarily dismissed reports on matters of sexuality – no reviewable error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.32(2)(a), 32(2)(aa), 91R(3), 91X, 430(1).

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister of Immigration and Citizenship v MZYYL & Anor (2012) 207 FCR 211
Minister for Migration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO (2009) 238 CLR 642
Minister for Immigration and Citizenship v SZJSS & Ors (2010) 243 CLR 164
Minister for Immigration and Citizenship v SZLSP & Ors (2010) 187 FCR 362
MZYOA v Minister for Immigration and Citizenship & Anor (2012) 135 ALD 87

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SZQGC v Minister for Immigration and Citizenship & Anor (2012) 128 ALD 338
SZRQR v Minister for Immigration and Citizenship & Anor [2013] FMCA 21
WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568

Applicant:

SZSEQ

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2626 of 2012

Judgment of:

Judge Lloyd-Jones

Hearing date:

7 May 2013

Delivered at:

Sydney

Delivered on:

4 April 2014

REPRESENTATION

Solicitors for the Applicant:

Mr M. Jones

Parish Patience Immigration Lawyers

Solicitors for the Respondents:

Mr M. Alderton

Spake Helmore Lawyers

ORDERS

The name of the First Respondent be amended to read “Minister for Immigration and Border Protection”.
The Application filed on 13 November 2012 and amended on 7 May 2013 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 SZSEQ

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2626 of 2012

SZSEQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

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”), being RRT Case Number 1203218, a decision of Tribunal Member Jonathon Duignan dated 16 October 2012, affirming the decision of a delegate of the Minister to refuse to grant the applicant a Protection (Class XA) visa.
The solicitors for the first respondent, the Minister for Immigration & Citizenship (“the Minister”), filed a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This volume of material provided is identified as the Court Book (“CB”), marked Exhibit “A” and is the only evidence before the Court.
The applicant was granted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FCCA 645
Decision Date: 4 April 2014

CaseChat Overview and Summary

This matter came before Lloyd-Jones J in the Federal Court of Australia concerning an application for judicial review by the applicant, SZSEQ, against the Minister for Immigration. The dispute centred on the Refugee Review Tribunal's decision to affirm the Minister's refusal to grant the applicant a protection visa. The applicant claimed to fear persecution in Nepal due to his political opinions, past harms, and his homosexuality.

The primary legal issue before the Court was whether the Refugee Review Tribunal committed a jurisdictional error in its assessment of the evidence, particularly in relation to expert reports provided by Dr Jacmon and Dr Andrews, which supported the applicant's claims. The applicant argued that the Tribunal's statement that it "simply does not share their conclusions" was an insufficient explanation for rejecting the expert evidence and indicated a failure to properly engage with the material.

Lloyd-Jones J considered the High Court's decision in *Minister for Immigration and Citizenship v SZJSS & Ors*, which established that the weight to be given to expert reports is a matter for the Tribunal's assessment, and that a preference for other evidence does not necessarily constitute a jurisdictional error. His Honour found that the Tribunal had explicitly considered the reports from Dr Jacmon and Dr Andrews, noting that it accepted their belief in the applicant's account. However, the Tribunal, after considering all available evidence, concluded it did not share those conclusions. The Tribunal's detailed reasoning, as set out in paragraph [93] of its decision, indicated it found the applicant's evidence to be unreliable and fabricated, and that he had not been harmed or was not homosexual. The Court held that the Tribunal's assessment of the evidence, including its rejection of the expert reports in favour of its own findings, did not disclose a jurisdictional error.

The application for judicial review was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In respect to those reports, the Tribunal made the following finding at [104]104. The tribunal accepted that Dr Jacmon and Dr Andrews believe the applicant’s account of his past experiences, his political view and sexuality and his fears of return to Nepal. Having considered all of the evidence available regarding this matter however the tribunal simply does not share their conclusions.(emphasis added)(CB 334) In reaching this conclusion the Tribunal made the following observations at [93]:93. Beyond his evidence on those issues going to his identity, the tribunal has found the applicant’s evidence to be completely unreliable and is of the view that he has fabricated claims of political involvement and association, claims of any past harms in Nepal and claims of being homosexual. In the tribunal’s view he has never been associated with the RPP or the RPP-N, he has never been harmed in Nepal as a result of that or for any other reason and he is not in fact homosexual. The tribunal believes the applicant has fabricated these claims to assist his application to remain in the country without regard to the truth.(CB 332) It is claimed on behalf of the applicant that the Tribunal’s explanation is that it “simply does not share their conclusion” (CB 334 at [104]). The issue of whether a particular document that is provided by an applicant to the Tribunal is “highly supportive” or “powerfully corroborative” of the applicant’s claim is a matter solely for the Tribunal to assess in Minister for Immigration and Citizenship v SZJSS & Ors (supra) the High Court unanimously upheld that the weight to be placed on letters or reports was a matter on which reasonable minds might come to different conclusions and that the Tribunal’s preference to other evidence could not be said to entail a jurisdictional error. Both reports are contained in the Court Book. Dr Jacmon’s report and covering letter (CB 230) to the applicant’s solicitor, Mr David Bitel of Parish Patience Immigration Lawyers states that it is a psychological assessment report and thanks Mr Bitel for referring the client for assessment and attaches that report. Similarly, with Dr Andrews report (CB 300), Dr Andrews thanks Mr Bitel for referring the applicant for assessment of the truthfulness of his claim to be a homosexual. Both Doctors indicate that they interviewed the applicant with the assistance a Nepalese interpreter and had access to various statutory declarations prepared by the applicant and his relatives and also a collection of photographs. Dr Andrews indicated that he had access to and had read Dr Jacmon’s report. The Tribunal Member, in the Decision Record, under the heading Claims and Evidence at [19]:19. The tribunal has had regard to material contained on tribunal case file 1203218, departmental case file CLF2010/132437, evidence and argument presented at a hearing before it and material available to it from a range of other sources as referred to in this decision.(CB 313)The initial claim made by the applicant is set out at [21]-[22] of the statutory declaration provided by the applicant:21. I returned to Nepal in September 2009. Because I was not satisfied with the family life with a female partner, I always wanted to get out from that relationship. That was one of the reasons coupled with my political opinions forced me to leave Nepal in January 2010. 22. I arrived in Australia in January 2010 and started staying with my brother Rajkumar in Strathfield. My brother, though, knows my political opinions, does not know about my sexual orientation. Therefore, I hid my feelings in Australia until I found my male partner. In addition, due to my lack of English Knowledge and shyness, I could not explore the homosexual activities and environment in Australia, in particular in Sydney.(CB 316)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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