SZTGV v Minister for Immigration

[2014] FCCA 1541

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTGV v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1541

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to comply with s.424AA of the Migration Act 1958 and made findings of fact which were wrong and unreasonable.

Legislation:

Migration Act 1958, ss.36, 424A, 424AA, 474

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

Applicant: SZTGV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2176 of 2013

Judgment of: Judge Cameron

Hearing date: 3 July 2014

Date of Last Submission: 3 July 2014

Delivered at: Sydney

Delivered on: 3 July 2014

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Ms R. Graycar

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2176 of 2013

SZTGV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Namibia.  He came to Australia on 5 October 2012 as the holder of a transit visa.  On his arrival he was detained, denied immigration clearance and his transit visa cancelled.  Later that month the applicant lodged an application for a protection visa alleging that he feared persecution in Namibia because of his sexual orientation.  On 12 March 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for a protection visa.  As summarised by the Tribunal, the applicant relevantly made the following claims.

2. In his protection visa application and in a statement attached to that application the applicant stated that:

   a)he had been born in Zambia.  From June 1990 to October 2010 he had lived in Namibia, from October 2010 to June 2012 in Canada and from July 2012 to October 2012 in South Africa; 

   b)he is homosexual.  His first gay relationship was in Namibia with a man he met in early 2010.  The man gave him an address and when he went there, he found that it was a gay bar.  About a month after he first went there, the bar was raided and he and six others were arrested and detained overnight in their underwear only.  The next day before being released they were brought before the police chief who insulted them and told them that he did not want to see them again.  He was so shaken by the incident that he ended his relationship a month later;

   c)he feared further harm from the police so he decided to leave Namibia.  He asked his brother to assist him financially, initially telling him that he wanted to go to Canada for work before telling him that he was gay and of his relationship and arrest;

   d)he told his parents about his homosexuality in a letter which they read after he had left for Canada.  They did not say anything to him and when he called his mother she avoided talking about it.  His brother told him that his parents were angry and shocked and thought that he had run away;

   e)he was denied entry to Canada so he sought asylum.  However, he did not mention his homosexuality because he thought that he could only seek asylum on political or ethnic grounds.  He started to frequent gay bars in Toronto in search of friends and possibly a partner and had had a “one night stand” with a man;

   f)his claim for asylum in Canada was rejected and he was unsuccessful in his appeal.  He was given a departure order to return to Namibia on 26 June   2012 and although the Canadian Border Service had booked an airline ticket for him to travel to Namibia, he arranged with the airline to make Johannesburg his final destination; and

   g)he attempted to seek asylum in South Africa but when he attended the immigration office there he was told that he should have applied for an “Asylum Transit Permit” when he first arrived.  Instead, he was granted a 30 day visa and after it expired he remained there illegally.  In any event, he decided that he could not apply for protection in South Africa because homosexual      people there experienced discrimination, violent attacks, and xenophobia. He therefore decided to seek protection in Australia.

3. In a further declaration made on 29 October 2012, the applicant claimed that he had been sexually abused by an uncle when he was young but had never told anyone and his speech impediment had started at that time.  The applicant claimed that when he was stripped down to his underwear in prison he had been afraid that he would be sexually abused again.

Delegate’s interview

1. The applicant made the following additional claims at an interview with the delegate:

   a)although his mother had been a Zambian citizen, his father was not and so had no right to reside in Zambia;

   b)he first realised that he was gay when he was sixteen or seventeen.  His first relationship had lasted a month and he and his partner had met a few times a week, sometimes at his home and sometimes at a bar.  No one had known that they were in a relationship;

   c)when he was arrested his personal details were not recorded and the matter      was not reported in the media;

   d)his father worked for a non-governmental organisation, supported democracy and was disliked by the Namibian Government.  He had sought asylum in Canada based on his father’s political activity.  His application was refused because he did not supply enough information;

   e)he had had two short encounters in Canada.  Each week he had attended gay bars, one called the “Carlton Bar” and the other the “Harvest Bar”.  He did not openly identify as gay on his Facebook page as he did not want other people to know and had not joined any gay social groups or gay clubs.  In Australia he had joined an online gay rights group;

   f)the letters purportedly from the Canadian offices of Amazon, which he had provided in support of his Australian tourist and transit visa applications, were genuine and had been provided to him by the human resources department of his employer, Amazon, before he left Canada.  He then said that he had obtained the letters from Amazon while in South Africa before going on to admit that the letters were false;

   g)the woman he had named as his de facto partner in his tourist visa application was a colleague he had known for a few months but he had not been in a relationship with her.  He had stated that he was in a relationship with her to make himself “seem more of an individual”.  He had not declared in his tourist and transit visa applications that he had been removed from Canada; and

   h)he had heard from other people that two people had been arrested in Namibia for being homosexual and another person had been assaulted in jail.  He feared that he would be targeted because of his homosexuality.

Tribunal

1. At a Tribunal hearing held on 19 June 2013 the applicant made the following additional claims:

   a)the gay bar he had been arrested in was the only one he knew and the only one he had been to in Namibia;

   b)he had made a mistake at the delegate’s interview by saying he had attended a bar called “Carlton Bar” in Toronto when he had meant to say that he had attended the bar on Carlton Street.  He had also mistakenly referred to Harvest Bar when he meant “Harvey’s”, which was not a gay bar but a restaurant where he would meet a gay friend.  He had also attended a bar called “Zippers” which was on Church Street (the applicant drew a map of its location) and another one called “Fusions”.  He had attended a lot of bars and could not remember their names, only street names;

   c)his father was a project officer in an NGO, which promoted     “democracy and good governance”, and was also a member of the opposition party in Namibia.  Although nothing had happened to him as a result of his father’s political activities, his asylum claim in Canada had been based on him being his father’s son;

   d)he had been given an application form at the airport in Canada which he had completed and lodged with supporting documentation, but he had not been interviewed prior to receiving a negative decision.  He had attended the immigration board office to receive the decision and, although he had been asked a few questions on that day, it had not been a hearing;

   e)he had lied about being in a de facto relationship because he had     thought it would make his tourist visa application “more genuine”.    He regretted providing false information in support of his tourist and transit visa applications but had been depressed in South Africa, running out of money and could not have returned to Namibia.  He had wanted to get out of a difficult situation; and

   f)in Namibia there was state-sanctioned discrimination and violence against homosexuals and he would be denied basic rights such as health care and justice.

2. At the end of the Tribunal hearing the applicant’s migration agent indicated that she wished to look into the Canadian refugee determination process, make written submissions on it and perhaps obtain a copy of the decision in the applicant’s case. The migration agent subsequently provided submissions which addressed the complementary protection criterion but contained no information on the Canadian refugee determination process or a copy of the decision in the applicant’s case.  The applicant’s migration agent submitted that the applicant needed mental health care to treat his mental illness which was associated with the abuse he had suffered as a child and with his detention “due to being gay”, which would be difficult to obtain in Namibia.  Included with the submissions was a psycho-social assessment report.  The report writer’s qualifications were not provided.  The report:

   a)detailed the applicant’s account of his history of sexual abuse and being gay;

   b)stated that the applicant had anxiety and his stutter worsened when he was anxious but did not provide a diagnosis; and

   c)stated that the applicant had said that he had not sought political asylum in Canada because he had been naive and had thought he would be persecuted for being gay.  He said he “went home” even though he had been confused and suicidal.  A later part of the report stated that the applicant had said that he had not applied for a visa in Canada because he had thought that he would not be given one because he was gay.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal found that the applicant was not a credible witness and it did not accept most of the claims on which his application for protection was based. In making that finding the Tribunal noted that:

   a)the applicant admitted that he had made false and misleading statements to the delegate and that he had provided false documents in support of his tourist and transit visa applications.  It noted that the applicant had repeatedly maintained the lie during his interview with the delegate and it was only at the end of that interview that he admitted that the letters he had said were from the human resources department of Amazon were false.  The Tribunal found that that indicated an ongoing intention on the part of the applicant to be deceitful as well as a preparedness to fabricate documents and a history in order to advance his protection claims;

   b)the applicant gave a conflicting and confusing account of his interaction with      the Canadian immigration department in relation to his claim that he had sought protection there, saying that he had not had a hearing, then saying that he had had one during which the decision was handed to him, describing a process which was not correct and then maintaining that his evidence on    that issue was correct.  The Tribunal noted that although the applicant’s migration agent had sought further time to investigate the process and make submissions, including perhaps obtaining a copy of any decision from Canada, she had ultimately only provided a submission which in part included the psycho-social assessment report indicating that the applicant had said that he had not sought protection in Canada.  The Tribunal concluded that the applicant had not sought asylum in Canada and that he had provided that misleading information in order to enhance his claims for a protection visa and in an effort to try to explain his failure to make claims relating to his homosexuality in Canada.

   c)the applicant gave examples of gay bars he claimed to have frequented in Toronto which were actually not gay bars; one, “Harvey’s”, was in fact a chain of hamburger restaurants and the other one, “Carlton Bar”, did not exist.  The Tribunal noted that the applicant had attempted to explain his reference to “Carlton Bar” by saying that he had been referring to “Carlton Street” and had also said that he had frequented a bar called “Zippers” but when asked to draw a map of its location, he provided the wrong location.  The Tribunal found that the applicant’s evidence indicated that he had not attended gay bars in Toronto as he claimed;

   d)in his tourist visa application, the applicant claimed to have been in a de facto relationship with a woman which, if true, would indicate that he was probably not homosexual.  The Tribunal noted that the applicant had claimed that the women was actually a work colleague, that he had not been in a relationship with her and that he had used her name to make his application more legitimate.  Given his history of deception, however, it did not accept those explanations.  It found that he had given the women’s name because he had in fact been in a de facto relationship with her in Canada; and

   e)the applicant claimed that he had not returned to Namibia after being deported from Canada but had instead arranged with the airline to alight in South Africa.  Based on the psycho-social assessment report which stated that the applicant “went home” from Canada, the Tribunal found that the applicant had in fact returned to Namibia.  It found that the applicant had provided false information that he had stayed in South Africa in order to enhance his protection claims.

2. The Tribunal accepted that the applicant was from Namibia, that he had been sexually abused at a young age by an uncle, that that caused him anxiety and that his stutter was worse when he was nervous.  However, the Tribunal did not accept that the psycho-social assessment report evidenced a diagnosed mental illness, noting that it was premised on what the Tribunal had found to be significant false and misleading information and did not refer to the report writer’s qualifications or any diagnostic criteria.  The Tribunal did not accept that the applicant had a mental illness. The Tribunal also found that the applicant had not claimed, and it did not accept, that his history of sexual abuse, his anxiety and his stutter gave rise to any claim for protection. 

Proceedings in this Court

1. In his amended application the applicant alleged:

   1.The Tribunal failed to comply with the requirements of s 424AA with respect to certain information that it considered would be the reason or part of the reason for affirming the decision under review.

   Particulars

   (a)The Tribunal considered that certain information that was contained in an application for a visitor visa lodged by me, the applicant, would be part of the reason for affirming the decision under review. The Tribunal gave the information to me at the hearing, but did not comply with para 424AA(b)(iii) of the Migration Act 1958 in respect of that information.

2. The applicant’s allegation referred to information which the Tribunal gave to him at its hearing on his review.  The Tribunal summarised the matter in this way in para.48 of its reasons:

   The Tribunal put to the applicant under section 424AA the documents on the Department file relating to the Visitor’s visa and Transit visa applications in particular his having detailed that he was in a heterosexual defacto relationship, and further his having supplied false documents – the letters from Amazon.  It was put to him that this indicated that he was not homosexual and further that he was prepared to provide false documents in support of his claims.  He said he understood the relevance and wanted to make further comment.

3. Section 424A of the Act relevantly provides:

   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; and

   (b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)     invite the applicant to comment on or respond to it.

   …

   (2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

   (3)    This section does not apply to information:

   (a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b)that the applicant gave for the purpose of the application for review; or

   (ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   (c)     that is non‑disclosable information.

4. Section 424AA of the Act provides:

   424AAInformation and invitation given orally by Tribunal while applicant appearing

   If an applicant is appearing before the Tribunal because of an invitation under section 425:

   (a)the Tribunal may orally give to the applicant 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; and

   (b)     if the Tribunal does so – the Tribunal must:

   (i)     ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

   (ii)        orally invite the applicant to comment on or respond to the information; and

   (iii)   advise the applicant that he or she may seek additional time to comment on or respond to the information; and

   (iv)   if the applicant seeks additional time to comment on or respond to the information – adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

1. The applicant alleged that the Tribunal did not tell him that he could seek additional time to address the information it had provided to him and to which it referred in para.48 of its reasons. The Minister contested this, submitting that a general invitation to the applicant’s migration agent, who was present at the hearing, to provide a post-hearing submission, as the transcript of the hearing reveals it did, satisfied s.424AA(b)(iii). I am not certain that it did but I do not need to decide that question because I have concluded that the information in question did not engage the operation of s.424AA. This is because the relevant obligation to give information to an applicant is created by s.424A and s.424AA merely provides one way in which a s.424A obligation may be discharged. Consequently, unless there is a duty under s.424A to give information to an applicant, s.424AA cannot be engaged.

2. In this case, the information in question was information which the applicant had supplied through his migration agents as an attachment to their letter to the Tribunal of 14 June 2013.  I have reached this conclusion having regard to pages 112 to 128 of the Court Book, which was exhibit A.  The agent’s letter commences at CB 123 and continues to CB 128.  In the first page of that letter the agents said:

   Attached is also a letter prepared by [SZTGV] addressing issues of credibility raised in the Department of Immigration and Citizenship’s decision dated 12 March 2013.

3. It can be observed at the top and the bottom of each of CB 123 to CB 128 that fax headers and footers identify the number of pages of the facsimile transmission and its time.  Going towards the front of the Court Book to CB 112, there is a letter from the applicant dated 7 June 2013 addressed to the Tribunal.  Looking at the headers and footers on CB 112 to CB 122 it can be concluded that this is the enclosure or the attachment to which the applicant’s migration agents referred in their letter of 14 June 2013.  I therefore conclude that the material contained in the letter of 7 June 2013 was provided by the applicant’s migration agents to the Tribunal. 

4. As the information contained in that letter was supplied to the Tribunal by the applicant for the purposes of the review it engaged s.424A(3)(b) with the consequence that no duty under s.424A(1) to provide the information arose. As no duty of that sort arose, no duties under s.424AA arose and thus the allegation in the amended application is not made out.

Matters raised at hearing

1. At the hearing of this application, the applicant also argued that the Tribunal made two factual findings which were at least wrong and possibly unreasonable. 

2. The first of these was the finding that the applicant had not applied for asylum in Canada.  The Tribunal set out its reasons for that conclusion in some detail in the first full paragraph on page 12 of its decision record.  The applicant submitted that in that passage the Tribunal did not refer to the document headed Refugee Protection Claimant reproduced at CB 251.  It appears to be some form of Canadian interim visa relating to the applicant. 

3. When the Tribunal’s analysis in the first full paragraph on page 12 of its reasons is considered in the context of the discussion between the Tribunal member and the applicant reproduced at pages 16 to 19 of the Tribunal hearing transcript, which was an annexure to the affidavit of Rebecca Susan Jones affirmed on 29 May 2014, it is apparent that the Tribunal’s firm understanding of the process through which the applicant had passed in Canada was that, upon his entry to Canada being refused, he indicated that he wished to seek protection and he was then given time to seek protection.  However it appears that he did not in fact engage that process, other than making some form of administrative claim at the airport. 

4. I conclude that when the Tribunal said, at page 12 of its reasons, that it did not accept that the applicant had applied for asylum in Canada, what it meant was that he had not fully engaged the Canadian asylum or protection processes and had really done no more than tell immigration officers at the airport that that was what he wished to do, which was sufficient for him to enter Canada.  I am not of the view that the Tribunal failed to take into account information contained in the Canadian visa or entry document reproduced at CB 251 or that, in the circumstances, its conclusion on the issue was illogical or unreasonable in the sense discussed in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611.

5. In any event, even if the Tribunal had overlooked that document, I would not conclude that it was the sort of failure which could possibly have had such an effect on the review that it would cause the Tribunal’s decision to be affected by jurisdictional error. 

6. The second issue which the applicant raised at the hearing of this application was the Tribunal’s finding that he had returned to Namibia after he left Canada.  He pointed in this regard to the fact that there was no stamp in his passport evidencing a return to Namibia.  A number of things can be said in connection with that submission.  The first is that a full copy of the applicant’s passport has not been reproduced in the Court Book or produced to the Court.  Consequently, the significance of there being no stamps on the pages which have been reproduced is very slight.  That is to say, the applicant has not proved that there actually is no stamp in his passport, simply that there is no stamp on the pages that the Court has seen.  Secondly, there is no evidence that Namibia stamps the passports of returning citizens so, even if a full passport had been produced and it lacked a Namibian entry stamp, in the absence of information to prove that it ought to have had one, the absence of it can really not take the issue very far. 

7. The Tribunal expressed its reasons for its finding that the applicant had returned to Namibia in the final paragraph on page 12 of its reasons.  Given the evidence before it, it was open to the Tribunal to reach the conclusion it did on that point. 

8. For these reasons, the matters which the applicant raised at the hearing of this application do not indicate relevant error on the Tribunal’s part. 

Conclusion

1. As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 16 July 2014