SZTAD v Minister for Immigration & Border Protection

[2014] FCCA 1812

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTAD v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 1812

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal had regard to all relevant evidence in support of the applicant’s claims to fear harm in Zimbabwe by reason of her homosexuality and affiliation with the opposing political party – whether the Refugee Review Tribunal’s assertion that it put to the applicant its finding as to why it did not accept that photographs provided by the applicant supported her claims was a failure to properly take the photographs into account – whether the evidence and material before the Refugee Review Tribunal raised a claim by the applicant to be dependent on her mother – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 91R, 411, 422B, 424A, 425, 474
Migration Regulations 1994 (Cth), regs.1.12, 1.03, 1.05A, 2.01

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184

Applicant: SZTAD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1495 of 2013

Judgment of: Judge Emmett

Hearing date: 5 August 2014

Date of Last Submission: 5 August 2014

Delivered at: Sydney

Delivered on: 13 August 2014

REPRESENTATION

Counsel for the Applicant: Mr Ben Zipser

Solicitors for the Applicant: Brett Slater Solicitors

Counsel for the Respondents: Mr David Hughes

Solicitors for the Respondents: Clayton Utz

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1495 of 2013

SZTAD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 7 June 2013 and handed down on the same date (“the RRT”).

2. The applicant claims to be a citizen of Zimbabwe who fears harm on the basis of her sexual preference and affiliation with the opposition political party, Movement for Democratic Change (“the MDC”).

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the RRT’s review and decision.

Background

1. The applicant arrived in Australia on 23 February 2012 having departed legally from Zimbabwe on a passport issued in her own name and a tourist visa issued on 12 January 2012.

2. On 26 April 2012, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).

3. On 20 July 2012, the Delegate refused the applicant’s application for a protection visa.

4. On 7 August 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

5. On 7 June 2013, the RRT affirmed the decision of the Delegate not to grant a protection visa.

6. On 3 July 2013, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa)  a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

6. Section 5 and s.36(2A) of the Act defines “significant harm.”

7. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

8. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:

   “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.

   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.”

9. Section 424AA of the Act permits the RRT to give orally to an applicant clear particulars of any information that the RRT considers would be the reason or part of the reason for affirming the decision under review. The RRT must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The RRT must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

10. Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

11. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision. (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicant’s application for a protection visa

1. The applicant provided a statement in support of her protection visa application in which she stated:

   a)The applicant has had an attraction to women since the time she was in high school. In June 2005, she met a girl named Hazel. Hazel and the applicant began meeting in secret and spending time together at Hazel’s apartment.

   b)The applicant and Hazel were unable to publically display affection towards one another, knowing that their relationship would be met with disapproval.

   c)Hazel and the applicant moved in together in August 2005. The community was not accepting of the relationship.

   d)In January 2007, the applicant jointed the MDC. The applicant wanted to see the MDC win the election because of the discrimination she had faced under the rule of Robert Mugabe.

   e)The applicant was responsible for handing out t-shirts, supporting MDC campaigns and giving leaflets to new members.

   f)During the campaign, the applicant and other members of the MDC were attacked and beaten by police. On some occasions while distributing flyers, the applicant and her MDC colleagues came across a group of youths who were members of the Zimbabwe African National Union – Patriotic Front (“ZANU-PF”). The group of youths threw stones at the applicant and Hazel. The applicant felt that she could not live a free life with her partner due to the fear of persecution caused by ZANU-PF.

   g)During the March 2008, several members of the MDC were murdered. The applicant felt hopeless and that she had let down Hazel, whom she was fighting to protect from members of ZANU-PF.

   h)The applicant and Hazel continued to keep their relationship a secret. They began to be questioned by friends and family as to when they planned to marry. Some of the applicant’s friends started to suspect that she was in a relationship, and Hazel urged the applicant to tell her parents about her sexuality.

   i)In July 2010, the applicant visited her mother and informed her of the relationship with Hazel. The applicant’s mother was not happy and told the applicant that she should never let anyone know of the relationship.

   j)On 29 October 2011, the applicant and Hazel visited Domboshava, outside Harare, and sought out a private place and began kissing each other. This was seen by a group of six men, who set upon the two. The applicant was slapped on the arm and Hazel was kicked to the ground. One of the men recognised the applicant. The group continued to slap and kick the applicant. They took her ID and shouted that they were “gonna make you straight.”

   k)Two weeks later, the applicant’s mother returned to her house to find that someone had written on her door “Lesbian Dog we know you”. The applicant’s mother was terrified and suggested that the applicant and Hazel live apart.

   l)On 24 November 2011, Robert Mugabe made a public statement that “gay people were worse than dogs”. The applicant knew that this statement meant that gay people would have no freedom and would not be accepted in Zimbabwe.

   m)The following day, the applicant received a telephone call from a friend telling her about a gay couple that were seriously injured in an assault. The applicant and Hazel decided to leave Harare. The applicant went to live with her sister in Bulawayo and Hazel with her aunt in a remote country town.

   n)The applicant called her brother, who advised her to leave Zimbabwe. Two weeks later, the applicant lodged an application for a tourist visa.

   o)On 10 January 2012, a group of people broke into the sister’s house at approximately 11.00pm, where the applicant was living at that time. The applicant heard people screaming “where are you hiding that lesbian dog?” The applicant made her escape through a window.  The applicant fled to her grandmother’s house. The applicant suspected that her phone had been traced by ZANU-PF, which is how they had found her location.

   p)The applicant stayed with her grandmother for four more weeks before departing Zimbabwe on 22 February 2012.

   q)On 25 February 2012, Robert Mugabe publically stated that Zimbabwe would never accept homosexuals. The applicant was afraid of returning home as she could be killed and the law would not protect her.

The Delegate’s decision

1. On 20 July 2012, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.

2. The Delegate found that the applicant was not a witness of truth. In particular, the Delegate noted:

   a)The applicant’s vague testimony regarding her relationships with women, which resulted in the Delegate forming the view that the applicant had attempted to create a profile as a protection visa applicant as a means to gain permanent residency in Australia.

   b)The contradictory and implausible nature of the applicant’s testimony in relation to her involvement in the MDC and her family’s knowledge of her sexuality.

   c)The applicant’s failure to avail herself of protection in South Africa, a Convention signatory, which the Delegate found to be inconsistent with the actions of a person genuinely fearing persecution.

3. Having found that the applicant was not a witness of truth, the Delegate gave no weight to her photographs and her MDC membership card submitted by her in support of her claim.

4. The Delegate did not accept that the applicant is a homosexual or that she had any political role of note within the MDC. The Delegate found that she was not of adverse interest to the Zimbabwean authorities or community at large.

The RRT’s review and decision

1. On 7 August 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

2. The applicant provided an additional statement to accompany her application for review, as well as additional documents.

3. On 6 February 2013, the RRT wrote to the applicant informing her that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 11 April 2013 to give oral evidence and present arguments.

4. The RRT noted that it had before it the applicant’s protection visa application and accompanying statement. It also that it had listened to a recording of the applicant’s interview with the Delegate.

5. The RRT explored the applicant’s claims with her at the hearing and put to her concerns it had about her evidence, noting her responses.

6. The RRT was not satisfied that the applicant is a homosexual and that she was in a long term homosexual relationship prior to her departure from Zimbabwe. The RRT found it incongruent that the applicant should claim on one hand to have been in a de facto relationship for seven years, but on the other hand would leave Zimbabwe without her partner, despite facing the same threats of harm. The RRT did not accept the applicant’s explanation that the reason for this was that once she had settled in Australia, she hoped that she would be able to bring her partner across.

7. The RRT found the applicant’s evidence at hearing was unconvincing in respect to her partner, noting that the applicant did not naturally volunteer information about her claimed partner and did not demonstrate a focus on, or concern about, her partner’s well-being. The applicant claimed that she had lost contact with her partner, but had asked her sister to try to locate her.

8. The RRT noted that the applicant claimed to be reticent to speak of her sexual orientation and Hazel by reason of her cultural upbringing. The RRT also expected that the applicant would have provided further detail of her claimed relationship with Hazel, having been put on notice that her sexuality was an issue before the Delegate.

9. The RRT found the manner in which the applicant claimed her sexual orientation came to light, being the alleged attack upon her and Hazel at Domboshava, to be “far-fetched”.

10. The RRT considered the applicant’s claimed membership of the MDC, but found that her interest and involvement in the party had waned since the presidential elections of 2008. The RRT did not accept that the applicant was a person with a profile within the MDC such that she would be targeted by ZANU-PF.  

11. Having considered the applicant’s claims, the RRT found that there was no evidence to support a finding that the applicant would suffer harm for a Convention related reason were she to return to Zimbabwe and for this reason the applicant was not a person to whom Australia owed protection obligations.

12. The RRT also considered whether the applicant met the alternative criteria for complementary protection under s.36(2)(aa) of the Act and concluded that she did not. The RRT found that there are not substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, Zimbabwe, there is a real risk that the applicant would suffer significant harm.

13. The RRT also noted that the applicant has a brother in Australia who was granted a protection visa in 2005 and that her mother has also lodged a protection visa application. However, the RRT found that the applicant is independent of both her mother and brother, as they are of her.

14. Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the RRT affirmed the decision under review.

The proceeding before this Court

1. The applicant was represented before this Court by Mr Ben Zipser, of counsel.

2. At the commencement of the hearing, leave was granted to the applicant to file in Court an amended application which contained the following grounds:

   “1. The second respondent without a reasonable foundation for so doing asserted either:

   1) that the applicant and the person with whom she said she was in a long term lesbian relationship (“the partner”) were both subject to “the same threat of harm”; or

   2) that the applicant claimed that she and the partner were both subject to the same threat of harm.

   2. The second respondent [in connection with (1)]:

   1) failed to take into account that as between the applicant and the partner there were significant differences in relation to their familial relationships, the attributes of their relatives and other factors;

   2) failed to take into account that the brother of the applicant had previously been granted a protection visa;

   3) failed to take into account that the mother of the applicant had on 30 May 2013 had been found to be a person in respect of whom Australia had protection obligations under the Refugees Convention and had been found to satisfy the criterion set out in par 36(2)(a) of the Migration Act 1958 (the mother’s RRT decision);

   4) failed to take into account that there was no evidence that the partner had close relatives who had been accorded refugee status;

   5) failed to take into account that the applicant was a member of the MDC: the second respondent accepted this claim elsewhere but failed to take it into account as regards the sameness or differences between the applicant and the partner;

   6) failed to take into account that the applicant claimed that her father was a strong ZANU-PF supporter and was called Secretary General by party members;

   7) failed to take into account that there was no evidence that any close family member of the partner had any political affiliations;

   8) failed to take into account that the applicant claimed that she could not live a free life with the partner due to the applicant’s fear of persecution caused by ZANU-PF.”

   3. In a manner adverse to the applicant, who had relied on her lesbian sexuality, the second respondent concluded that it was not satisfied that the applicant was a lesbian or that she was in a long term (lesbian) relationship prior to the applicant’s departure from Zimbabwe; but in coming to that conclusion the second respondent failed to realistically or at all take into consideration evidence of the applicant about the relationship and/or surrounding circumstances including evidence:

   1. that she met the partner through one of her friends;

   2. that she and the partner began meeting in secret and spent time at the partner’s apartment;

   3. that she and the partner knew that no one would approve of their relationship and they could not be affectionate to one another in public or in front of friends for that reason;

   4. about the reasons given as to why the couple pretended to just be friends;

   5. about the cover up story of waiting for the right man;

   6. about suspicions which people attending close friends’ parties being friends of the applicant and/or the partner, had about the relationship;

   7. comprised in the statement made by the partner to the applicant that they should “come out” and tell their parents about their sexuality;

   8. that the partner was with the applicant when the applicant went to the applicant’s mother’s house in Masvingo and the applicant told the applicant’s mother about the relationship;

   9. that at that time the applicant’s mother was not happy to learn that the applicant was lesbian and the mother told the couple with fear that the couple should never let anybody know about their relationship;

   10. that the applicant felt good knowing that her mother knew about the relationship;

   11. that the partner’s mother warned the couple never to return to the partner’s mother’s house as the partner’s mother did not want to have any involvement with the couple;

   12. that each of the applicant and the partner were distressed a lot due to the circumstances that there were living a lie and not disclosing their relationship (to others).

   4. The second respondent further failed to take into consideration evidence:

   1. that the applicant’s mother suggested that the applicant and the partner live apart and that the applicant consider living with the applicant’s sister in Bulawayo;

   2. that in November 2011 the partner received a call from a friend telling the partner about a gay couple who were seriously injured in an assault;

   3. that after hearing about the said assault the couple decided to leave Harare;

   4. that on 10 January 2012 while the applicant was at her sister’s house a group of people broke into the house at around 11 pm and the applicant heard people screaming and shouting “Where are you hiding that lesbian dog” and banging on the door;

   5. that ZANU-PF was known for tracing phone calls and that the applicant suspected that this is how she had been located in the house of her sister, as no-one apart from the applicant’s family and the partner knew of the applicant’s whereabouts.

   The second respondent should have asked itself whether people in Zimbabwe thought the applicant was a lesbian, not merely whether she was one.

   Before concluding, “I do not find satisfactory her explanation at the hearing that she hoped that once she settled in Australia she would be able to bring her partner over”, the second respondent should have given consideration or realistic and meaningful consideration to Part 100 Sch 2 of the Migration Regulations 1994 and in particular cl 100.221(6) being a provision specific to and restricted to sponsors (including lesbian sponsors) holding permanent humanitarian visas which, pursuant to reg 1.03, included subclass 866 visas; and the using of those provisions to bring a partner to Australia.

   During the hearing the Member mentioned photographs which the applicant had given to Immigration (the first respondent) and indicated that it was going to ask questions about those photographs, but never did and instead closed the hearing and by virtue thereof the applicant was misled and/or the second respondent failed to properly take the said evidence into account.

   For all or any of these reasons the second respondent failed to exercise or exceeded its jurisdiction.

   5.  The second respondent should have asked itself whether people in Zimbabwe thought the applicant was a lesbian, not merely whether she was one.

   6. Before concluding, “I do not find satisfactory her explanation at the hearing that she hoped that once she settled in Australia she would be able to bring her partner over”, the second respondent should have given consideration or realistic and meaningful consideration to Part 100 Sch 2 of the Migration Regulations 1994 and in particular cl 100.221(6) being a provision specific to and restricted to sponsors (including lesbian sponsors) holding permanent humanitarian visas which, pursuant to reg 1.03, included subclass 866 visas; and the using of those provisions to bring a partner to Australia.

   7.  Issues with photographs

   The following occurred:    

   The photographs were briefly discussed during the hearing;

   The Tribunal did not put to the applicant “that they did not provide any insight into the applicant’s claims as they were simply photographs of a group of friends together” [par 35, CB 137];

   In its decision the Tribunal incorrectly said that it “put to the applicant that they did not provide any insight into the applicant’s claims as they were simply photographs of a group of friends together” [par 35, CB 137];

   The Tribunal’s assertion that “that they did not provide any insight into the applicant’s claims as they were simply photographs of a group of friends together” [see par 35, CB 137] was so unreasonable that no reasonable person could reach that conclusion;

   The Tribunal failed to properly take the photographs into account.

   8.  The Tribunal failed to take into account a relevant consideration, namely the applicant’s oral evidence that she did not think that her attackers were from Masvingo.

   9. The Tribunal either failed to turn its mind to whether the applicant was a dependent child of the mother or did not give that question proper consideration. It was required to assess whether the applicant was wholly or substantially reliant on the mother for financial, psychological or physical support. Consideration of these matters was required by regulations 1.12, 1.03 and 1.05A of the Migration Regulations 1994.”

Grounds 1 and 2

1. Ground 1 asserts that the RRT erred in finding that both the applicant and Hazel are “subject to the same threat of harm” in Zimbabwe.

2. The Particulars in support of Ground 2 identify various differences in the situation of the applicant and Hazel to support the contention made in Ground 1 that there was no “reasonable foundation” for the RRT to find that they were both subject to “the same threat of harm”.

3. Counsel for the applicant, Mr Ben Zipser, referred to the Court to the following finding made by the RRT

   “I am not satisfied that the applicant is a lesbian and was in a long-term relationship prior to her departure from Zimbabwe…”

4. The RRT went on to find it incongruent that the applicant claimed to have a long-term relationship of some seven years, yet departed Zimbabwe without Hazel “even though they are both subject to the same threat of harm.”

5. Mr Zipser submitted to the Court that Hazel and the applicant were not subject to the same threat of harm in Zimbabwe because it was only the applicant who was recognised by the group of men who attacked the applicant and Hazel when they were caught kissing on 29 October 2011.

6. However, the RRT made a clear finding that it was not satisfied that “the applicant is a lesbian and was in a long-term relationship prior to her departure from Zimbabwe.” Read in context, that finding is a rejection of the applicant’s claim to be a lesbian. The RRT also found the applicant’s claims as to how her sexual orientation came to light to be “far-fetched”. That manner was referred to by the RRT as the public kissing between the applicant and Hazel on 29 October 2011 where the applicant claimed they were set-upon by a group of men. A fair reading of the RRT’s decision record makes clear that the RRT was rejecting the applicant’s claimed events of 29 October 2011.

7. Having rejected the applicant’s claim of being attacked with Hazel on 29 October 2011, any threat of harm to the applicant and Hazel was otherwise the same threat of harm of being subjected to threats because of their relationship.

8. The RRT’s primary finding is that the applicant is not a lesbian. The RRT provides reasons for that finding to the effect that it found; it was incongruent that the applicant left Zimbabwe without Hazel, where both would face the same threat of harm by reason of their homosexual relationship; the applicant did not indicate that she made any attempts to depart Zimbabwe with Hazel, or to relocate together; the RRT was not satisfied by the applicant’s explanation that once she settled in Australia she would be able to bring Hazel over; the applicant’s evidence was unconvincing in relation to her partner; the applicant did not demonstrate a concern about her partner’s well-being and had lost contact with her partner, although she said she had asked her sister to try to locate her; the RRT would have expected the applicant to provide more detail about her claimed relationship with Hazel given its claimed duration and given that it is a reason she claimed to have fled Zimbabwe; the applicant’s evidence as to the events on 29 October 2011 of being set-upon by a group of men when she was caught kissing Hazel in public were found by the RRT to be “far-fetched”, as was her claim that following this incident her sexual orientation was known to many and she was pursued by a mob.

9. The RRT’s referral to the applicant’s claimed long-term relationship prior to her departure from Zimbabwe in the context of its rejection of the applicant’s claim to be a lesbian was no more than a rejection of the entirety of the applicant’s claims in relation to her claim to fear persecution in Zimbabwe by reason of her sexual orientation.

10. It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

11. The RRT’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the RRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547)

12. Following the Delegate’s decision, the applicant was aware, or should have been, that her credibility was an issue. Both the Delegate’s decision and the RRT’s exchanges with the applicant during the hearing were sufficient to indicate to the applicant that everything she said in support of her claim to be a lesbian in a long term relationship was in issue (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 at [35] and [47]).

13. To the extent that the RRT referred to the applicant and Hazel being “subject to the same threat of harm” as stated above, fairly read, that finding was confined to the consequences in Zimbabwe of being in a homosexual relationship which, in respect of the applicant, the RRT rejected.

14. As stated above, the RRT’s findings were open to it on the evidence and materials before and for the reasons given.

15. Accordingly, Grounds 1 and 2 are not made out.

Grounds 3 and 4

1. Grounds 3 and 4 appear to cavil with the RRT’s finding that it would have expected the applicant to provide more detail about her claimed relationship with Hazel, given the claimed duration and given that it is a reason she fled Zimbabwe.

2. Ground 3 identifies various evidence that was before the RRT that could possibly be said to relate to detail about the applicant’s claimed relationship with Hazel.

3. The applicant’s written submissions to this Court referred in further detail to evidence given by the applicant to the Delegate. That evidence broadly related to the circumstances in which the applicant claimed to have met Hazel. The Particulars in support of Ground 3 largely relate to the claimed “coming out” of the applicant’s relationship with Hazel.

4. It is plainly a matter for the RRT whether the evidence before it is sufficient to satisfy it about the veracity of that claim. It was open to the RRT to find that it would have expected the applicant to provide more detail of the claimed relationship given its duration, even taking in to account every piece of evidence given by the applicant about her relationship with Hazel. A fair reading of the RRT’s decision record is to the effect that the RRT was aware of, and did have regard, to all evidence given by the applicant during the course of her visa application proceedings, including her statement, her interview with the Delegate and her oral evidence to the RRT.

5. In any event, none of the evidence identified in Ground 3, if accepted, might have led to a different finding of fact.

6. In the circumstances, it is open to the RRT to engage in the process of reasoning in which it did engage and to make the findings it made on the evidence and material before it. (see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648)

7. Accordingly Grounds 3 and 4 are not made out.

Ground 5

1. Ground 5 asserts that the RRT should have asked itself whether people in Zimbabwe thought that the applicant was a lesbian.

2. Counsel for the applicant submitted that the RRT’s finding that the applicant was not a lesbian and its rejection of the incident on 29 October 2011 were not sufficient to deal with whether people in Zimbabwe thought the applicant was a lesbian. In support, counsel for the applicant referred to the applicant’s evidence that following the incident on 29 October 2011 ,the words “lesbian dog we know you” were written on her mother’s house.

3. However, having rejected the applicant’s claim to be a lesbian, the only other evidence about the applicant being perceived to be a lesbian in Zimbabwe was that she and her partner had “come out” to their families and had been observed kissing on 29 October 2011. As stated above, those claims were not believed.

4. I accept the submission of counsel for the first respondent that the RRT’s rejection of those claims was subsumed within the RRT’s finding that the applicant was not a lesbian and was not in a long-term relationship prior to her departure from Zimbabwe. (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641 per the Court (French, Sackville and Hely JJ).

5. Accordingly, Ground 5 is not made out.

Grounds 6 and 8

1. Grounds 6 and 8 were not pressed.

Ground 7

1. Ground 7 asserts that the RRT’s statement that it put to the applicant that photographs of the applicant and friends did not provide any insight into the applicant’s claims as they were simply photographs of a group of friends together, was not in fact put to the applicant.

2. Counsel for the first respondent conceded that the RRT did not in fact put to the applicant at the hearing that the photographs did not provide any insight into the applicant’s claims as they were simply photographs of a group of friends together.

3. The RRT’s finding that the photographs did not provide any insight into the applicant’s claims as they were simply photographs of a group of friends together was open to it for the reasons given.

4. The fact that the RRT said that it put this to the applicant, when in fact it did not, does not demonstrate jurisdictional error on the part of the RRT. The RRT was not obliged to share its subjective thought processes with the applicant. (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18]).

5. Accordingly Ground 7 is not made out.

Ground 9

1. Ground 9 asserts that the RRT did not properly consider whether the applicant was a dependent child of her mother at the time of decision. Certainly, if the applicant claimed to be dependent on her mother, it was necessary for the RRT to consider whether the applicant was a dependent child as required by s.36(2)(b) of the Act and regs.1.12, 1.03 and 1.05A of the Migration Regulations 1994 (Cth).

2. As stated above, the RRT found that the applicant “is independent of both her mother and brother as they are of her.” That finding was made in the context of the RRT noting that the applicant has a brother in Australia who was granted protection in 2005 and a mother who has also lodged a protection visa application.

3. However, a fair reading of the RRT’s decision record does not suggest that the applicant ever made a claim, either before the RRT or the Delegate, to have been dependent upon her mother, as contemplated by s.36(2)(b) of the Act. The applicant tendered a transcript of the RRT’s decision record and of her interview with the Delegate. The Court was not referred to any part of those transcripts in support of a claim by the applicant that she was dependent on her mother.

4. Indeed, the evidence before the RRT was that the applicant and her mother lived independently in Zimbabwe, although resided together in Australia. I am not persuaded that the bare statement by the applicant that she and her mother reside together in Australia is sufficient to support a contention that such a claim was raised on the evidence or material before the RRT. Without further articulation, I do not accept that the applicant was seeking to raise a claim in support of her application for protection that she was dependent on her mother. The function of the RRT is to respond to the case that the applicant advances (Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 405 per Kirby J; SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17] per Selway J; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [58]-[60] per Black CJ, French and Selway JJ).

5. Accordingly Ground 9 is not made out.

Conclusion

1. A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The RRT put to the applicant matters of concern it had about her evidence and noted the applicant’s responses.

2. The RRT then made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  13 August 2014