SZTRZ v Minister for Immigration
[2017] FCCA 2672
•30 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTRZ & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2672 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – protection visa – whether the Tribunal failed to give weight to the applicant’s evidence – whether the Tribunal was affected by bias – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 |
| Cases cited: SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 23 |
| First Applicant: | SZTRZ |
| Second Applicant: | SZTSH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 756 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 30 October 2017 |
| Date of Last Submission: | 30 October 2017 |
| Delivered at: | Sydney |
| Delivered on: | 30 October 2017 |
REPRESENTATION
| The first applicant appeared in person |
| Solicitors for the Respondents: | Mr A Markus Australian Government Solicitor |
ORDERS
The amended application is dismissed.
The first applicant pay the first respondent’s costs fixed in the amount of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 756 of 2017
| SZTRZ |
First Applicant
| SZTSH |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 21 February 2017 affirming a decision of the delegate not to grant the applicants protection visas. The applicants were found to be citizens of Mongolia and their claims were assessed against that country. The first applicant is the mother of the second applicant. The first and second applicants arrived in Australia on 27 January 2011, travelling on visitor visas.
An application was made for protection on 20 April 2011 in which the second applicant was included as a member of the family unit. That application was refused and a Tribunal affirmed the refusal on 7 November 2012. On 31 July 2013, the applicants applied on a second occasion for a protection visa in accordance with the decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 23 on the grounds of complementary protection. Given the daughter’s age, the Tribunal treated the application as involving not just complementary protection but whether the second applicant was entitled to protection also under the Refugees Convention.
In summary, the first applicant claimed to fear harm by reason of being a lesbian and that this is not accepted in Mongolia. The first applicant claimed that she had commenced a sham relationship with a bisexual man so that they could present as a normal couple to society, as a result of which she gave birth to the second applicant. The first applicant claims neighbours refused to let her children play with the second applicant and that the first applicant feared harm from her partner’s brother-in-law from a former marriage and a stepbrother as a result of her sexuality. The first applicant also feared societal discrimination that would result if she was to return to Mongolia.
The second applicant’s claim to fear harm is by reason of being at risk of harm as a result of the first applicant’s sexuality and also as a result of the poor healthcare available in Mongolia and the air pollution.
On 29 June 2016, a delegate found the applicants failed to meet the criteria under the Act for the grant of a Protection visa.
The Tribunal’s decision
The applicants applied for review on 11 July 2016. By letter dated 19 August 2016, the applicants were invited to attend a hearing on 28 September 2016. The first applicant appeared on that date and the applicants were represented by their migration representative. The first applicant and a witness gave evidence to the Tribunal and the first applicant had an opportunity to present, and did present, evidence and arguments to the Tribunal at that hearing.
Section 438 certificates
The Tribunal’s reasons of 21 February 2017 identify the background to the application for review and set out the relevant law in an attachment incorporated in the reasons of the Tribunal. The Tribunal in its reasons made reference to the existence of two certificates and that the Tribunal regarded the certificates as not being valid. The Tribunal identified the documents the subject of the certificates and expressly considered the documents and found that there was no material covered by the certificates which would be the reason or part of the reason for affirming the decision under review and, accordingly, the Tribunal decided not to invite the applicant to comment or respond to the material.
The Tribunal’s reasons further reflect, identifying that the documents the subject of the certificate are not relevant to the claims made by the applicants and that the documents have not assisted or formed part of the Tribunal’s consideration in relation to the applicants’ claims and evidence.
The documents the subject of the certificates have also been tendered in evidence before this Court and, on their face, the documents are clearly not relevant to the issues and claims of the applicants in respect of the review by the Tribunal. The nondisclosure of the documents in the present case did not prevent the applicants having a real and meaningful hearing before the Tribunal. The documents cannot be said to be credible, relevant, and significant.
The nondisclosure of the documents the subject of the certificates did not give rise to any jurisdictional error. Further, if the documents could not possibly have affected the outcome of the Tribunal’s reasons, it is a case where, as a matter of discretion, no relief should be granted if it was found that there was relevant error in the failure to disclose the documents.
Assessment of claims
The Tribunal, in its reasons, summarised the approach to the assessment of the claims of the first applicant and the second applicant. The Tribunal noted that the applicants had Mongolian passports.
Claims concerning homosexuality
The Tribunal found that the first applicant is not in a long-term relationship with the father of the second applicant. The Tribunal made reference to photographs provided by the first applicant of herself and a woman. The Tribunal observed that the photographs, albeit identifying the applicant and another person, do not depict the nature of the claim for relationship and the Tribunal found that the photographs did not add any weight to the first applicant’s claim that she was in a lesbian relationship with a particular person.
The Tribunal summarised what occurred at the hearing, including interjection by the first applicant in the course of evidence being given by the witness. The Tribunal did not accept that the first applicant identifies as a lesbian. The Tribunal found that the first applicant provided no independent evidence confirming that she and a particular person were in a lesbian relationship. The Tribunal did not accept the claim that the first applicant is in a current lesbian relationship with another person. The Tribunal found that neither the first applicant nor the witness that she called gave plausible detailed evidence as to how they maintained a regular same sex relationship, given the work, study and child care commitments of the first applicant and the alleged partner, and the distance between their homes and difficulties in using transport.
The Tribunal found the evidence of the witness called by the first applicant was vague and confused. The Tribunal found that witness had difficulty giving any specific details about the relationship and was extremely vague in giving evidence about her past experiences. The Tribunal found the witness’s evidence to be insincere and lacking in conviction. The Tribunal accepted that the first applicant and the other person were friends, but did not accept that they were in a same-sex relationship. The Tribunal having considered the evidence, and given its defects and lack of specificity, has not given weight to the witness’s alleged support in coming to the conclusion about the first applicant’s sexual orientation. The Tribunal did not accept that the first applicant identifies as a lesbian, did not accept that the first applicant is in a same-sex relationship with another person or that she is in a same-sex relationship with a different person.
The Tribunal accepted that the first applicant’s stepbrother was violent and abusive during her childhood, but did not accept that the first applicant identifies as a lesbian or was in a same-sex relationship or, consequently, that her stepbrother abused or threatened her for that reason after she left home in 2002.
The Tribunal referred to the alleged threats by the first applicant’s ex-brother-in-law. The Tribunal found that the first applicant had not provided sufficient plausible detail or context about these threats for the Tribunal to be satisfied they took place. The Tribunal did not accept that the ex-brother-in-law had threatened or mistreated the applicant’s mother or daughter for reasons of her claimed sexual orientation. The Tribunal considered that the written description and history of allegations about the ex-brother-in-law lacks plausible detail, and the Tribunal did not accept the claims advanced by the first applicant in that regard. The Tribunal did not accept the first applicant faced any threats, disapproval or opprobrium for reasons of actual or perceived homosexuality at the time she and her daughter left Mongolia.
The Tribunal made reference to a document provided by the applicant in relation to an investigation in respect of a person operating a karaoke without a permit and found there was no evidence of a criminal case. The Tribunal did not accept that the document supports the claim of detention and harassment of the first applicant’s previous partner for reasons of any LGBT orientation or activity in 2013, and the Tribunal decided to give no weight to the document in considering the claims made by the first applicant.
The Tribunal did not accept that the first applicant would face a real risk of being arbitrarily deprived of her life or the death penalty will be carried out on her or that she will be tortured or subject to inhumane treatment or punishment or cruel or inhumane treatment or punishment if she returns to Mongolia.
Readapting to Mongolia
The Tribunal did not accept that the difficulties in readapting to Mongolian environment, finding work, and accommodation in Mongolia constitute significant harm.
Second applicant’s refugee claims
The Tribunal considered whether or not the second applicant’s claims met the definition of the refugee criteria for complementary protection. The Tribunal found that it did not accept that the first applicant identifies as a lesbian and does not accept that she will do so if she returns to Mongolia. In those circumstances the Tribunal did not accept that the second applicant will be subject to threats, mistreatment or discrimination from members of the Mongolian community for this reason if she returns to Mongolia. The Tribunal did not accept that the first applicant mother is a lesbian and does not accept that the second applicant daughter will face a real chance or real risk of serious or significant harm for this reason if she returns to Mongolia.
Health care and air quality
The Tribunal made reference to the healthcare in Mongolia and air quality and found that the air quality and health system were matters that affected the Mongolian population generally and not directed towards the second applicant. The Tribunal did not accept that the second applicant will face a real risk of being unfairly deprived of her life or of the death penalty being carried out on her or that she will be tortured or subject to inhumane treatment or punishment or cruel or inhumane treatment or punishment if she returns to Mongolia.
Conclusion
The Tribunal found that the first applicant does not meet the complementary protection criteria and found that the second applicant has not met the refugee or complementary protection criteria and that neither applicant meets the family membership criterion. The Tribunal found that neither applicant is a person in respect of whom Australia has protection obligations and affirmed the decision under review.
Proceedings before this Court
On 29 June 2017, a Registrar of the Court made orders fixing the matter for hearing and giving the applicants an opportunity to put on an amended application, affidavit evidence and submissions. An amended application has been filed but no other documents.
Grounds in the amended application
The grounds of the amended application are as follows:
1. The Tribunal Member did not give weight to my evidence
Particulars:
a. at paragraph 66 of the Tribunal decision
The Tribunal Member stated that 'the photographs show her with another female person they do not depict the nature of the claimed relationship'
The photographs are taken in deferent countries and deferent cities between 2001-2007 during my ex-girlfriend and I was traveling together. It was black and white unrecognizable copy and they did not request to see the original copy
2. The Tribunal Member did not give weight to my witness
a. at paragraph 93 of the Tribunal decision
The Tribunal Member stated that 'the distance between their home and difficulties in transport' The travel time between our home is 40 min by a car, 1 hour 20 min by a public transport and I don't think it is an issue to maintain our relationship as we were not living an another cities.
b. at paragraph 94 of the Tribunal decision
The Tribunal Member stated that 'difficulty giving any specific details about the relationship' My girlfriend physically attended the hearing and open up about our sexual, emotional relationship and future plans, I don't know what else could have been more specific. Her personality makes her look confused, uncomfortable and it does not mean her evidence was insincere.
3. The Tribunal Member did not accept the real harm
a. at paragraph 102 of the Tribunal decision
The Tribunal Member I did not accept harm from him
There is still a significant harm from my stepbrother, I have been mentally and physically abused by him due to the rumours of my same sex relationship with my ex-girlfriend and I still have flashback memories and dreams that I suffer time to time. I run away from home and was hiding my whereabouts from him and living with paranoid was extremely hard.
b. at paragraph 105 of the Tribunal decision
[Ex husband’s] ex brother in law have been badly treated, feared me and my daughter's live and he is very violent person and he can do anything to destroy us based on hate.
4. The Tribunal Member's decision was excessively one-sided in their review of the country information
a. I came to Australia 2011 since then and as well as recently protection visa has been granted for Mongolian LBGTI applicants. It proves that there is significant harm for the LGBTI community in Mongolia.
5. The Tribunal Member's decision was excessively one-sided in their review of my sexual orientation as lesbian.
6. The Tribunal Member did not give weight to my evidence in making their decision
7. The Tribunal Member did not consider that I and my daughter's father [Name removed] are most informant witness for each other in that case.
8. The tribunal member affirmed the decision based on incomplete information and incomplete consideration from Delegate of Minister for Immigration and Border Protection.
The nature of the hearing
At the commencement of the hearing, the Court explained to the first applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicants. The Court explained that, in summary, that this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair.
The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for a further review. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs. The Court explained that it would have identified the evidence and then hear submissions from the first applicant and then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that she understood the nature of the hearing as explained by the Court.
Submissions from the bar table
From the bar table, the applicant maintained she had had difficulty expressing herself in the course of the hearing. Annexed to one of the applicant’s two affidavits is a medical report which does not identify any medical inability for the first applicant to be able to give evidence or present arguments at a time prior to that medical report. The Tribunal’s reasons reflect the first applicant being able to engage in the course of the hearing and, in fact, record the first applicant interrupting the first applicant’s witness to correct her in the course of evidence. There is no evidence to establish that the applicants did not have a real and meaningful hearing or that there was any material area in which the first applicant was unable to express herself satisfactorily in respect of the hearing. No jurisdictional error is made out for that reason.
The first applicant also took issue with the way in which the interview was conducted by the delegate. This Court does not have power to review the delegate’s decision and is confined to considering whether the Tribunal’s decision was affected by relevant legal error. The applicant’s criticisms of the delegate cannot give rise to any relevant legal error by the Tribunal. Nothing said by the applicant from the bar table identified any jurisdictional error.
Consideration of the grounds
Ground 1
In respect of the grounds in the amended application, Ground 1 seeks to cavil with the adverse findings of the Tribunal in respect of the photographs provided by the applicant in support of the lesbian relationship. The adverse findings by the Tribunal in respect of the applicant’s claims were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. The photographs are patently not capable of establishing the nature of the relationship, and the adverse finding by the Tribunal in that regard was clearly open. No jurisdictional error is made out by Ground 1.
Ground 2(a)
In relation to Ground 2(a), the Tribunal identified reasons in support of the adverse credibility findings in respect of the current alleged relationship. The dispute in relation to the distance between the parties, in substance, invites this Court to engage in impermissible merits review. This Court does not have power to revisit the merits. Paragraph 2(a) failed to make out any jurisdictional error.
Ground 2(b)
In relation to Ground 2(b), it was a matter for the Tribunal to assess the credit of both the first applicant and the applicant’s witness. The Tribunal gave logical and rational reasons in support of the adverse credibility findings. Paragraph 2 (b) reflects a disagreement with those adverse credibility findings, but does not establish any jurisdictional error.
Ground 3(a)
In relation to Ground 3(a), the Tribunal rejected the applicant’s claim of being a lesbian, and in those circumstances the Tribunal’s adverse finding in relation to the step-brother was clearly open and cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by paragraph 3(a).
Ground 3(b)
In relation to paragraph 3(b), the Tribunal again addressed the claims concerning the ex-brother and the applicant’s disagreement with the adverse findings do not demonstrate any jurisdictional error. Paragraph 3(b) fails to make out any relevant legal error.
Ground 4
In relation to paragraph 4, the Tribunal’s reasons reflect an orthodox approach to the determination of the applicant’s claims. The adverse credibility findings are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. On the face of the material before the Court, the Tribunal approached the review with an open mind reasonably capable of persuasion on the merits. The assertion of the Tribunal member’s decision being excessively one-sided is an allegation of bias based on the adverse findings for the reasons given. No case of bias is made out. Ground 4 fails to make out any jurisdictional error.
Ground 5
In relation to Ground 5, this is, again, in substance, the same assertion of bias as advanced by Ground 4. For the same reasons no such allegation of bias is made out. No jurisdictional error is made out by Ground 5.
Ground 6
In relation to Ground 6, it is apparent that the Tribunal took into account the applicants’ claims and evidence and made adverse findings. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. Based on the material before the Court, the Tribunal complied with the requirements of procedural fairness in the conduct of the review. No jurisdictional error is made out by Ground 6.
Ground 7
In relation to Ground 7, the first applicant was invited to attend a hearing and given an opportunity to identify the witnesses that she wished to attend at that hearing. The response to hearing form did not identify the second applicant’s father. The first applicant had ample opportunity to bring other evidence, including evidence from the first applicant’s father, if that is what she wished to do at the hearing. There was no request on the material before the Court for an adjournment in order to adduce evidence from the father. No jurisdictional error is made out by Ground 7.
Ground 8
In relation to Ground 8, the assertion of incomplete information is lacking of any specificity. There is no material information identified that the Tribunal failed to take into account and insofar as the ground seeks to advance error by the delegate, an error by the delegate cannot make out relevant legal error by the Tribunal. Ground 8 fails to make out any jurisdictional error.
Conclusion
For the reasons earlier given, the certificates issued in the present case do not give rise to any relevant legal error. As the amended application fails to make out any jurisdictional error the amended application is dismissed.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 21 November 2017
3
0
2