SZUCC v Minister for Immigration

[2015] FCCA 2541

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUCC v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2541

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (Tribunal) – whether the Tribunal failed to understand claims – whether there was an apprehension of bias on the part of the Tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Applicant: SZUCC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 761 of 2014

Judgment of: Judge Manousaridis

Hearing date: 29 October 2014

Delivered at: Sydney

Delivered on: 17 September 2015

REPRESENTATION

The Applicant appeared in person assisted by an Arabic interpreter.

Solicitor for the Respondents: Mr M Wiese of Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs.

3. The Administrative Appeals Tribunal be substituted as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 761 of 2014

SZUCC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant applies for judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) visa (protection visa).

2. The applicant is a citizen of Lebanon who arrived in Australia on 22 December 2012 as the holder of a sponsored family visitor visa[1].  He applied for a protection visa on 29 January 2013[2].  A delegate of the Minister refused to grant the applicant a protection visa on 8 August 2013[3]. 

   [1] CB 64

   [2] CB 1-40

   [3] CB 64-85

3. The applicant sought review of the delegate’s decision in the Tribunal by application filed on 16 September 2013.  The Tribunal affirmed the delegate’s decision on 21 February 2014[4].

   [4] CB114-123

Applicant’s Claims

1. The applicant claimed to fear harm in Lebanon on the basis of his and his father’s perceived support of the South Lebanese Army (SLA).  He claimed his father was detained by Hezbollah in 2000 and was accused of being an SLA operative.  His father was detained for approximately two months and, on his release, forced to abandon the family home in southern Lebanon and move to Beirut.  He claimed Hezbollah operatives continued to monitor and intimidate his father.

2. The applicant claimed that, because he was the oldest male member of his family, he was also subjected to similar intimidation by Hezbollah.  Hezbollah operatives asked the applicant about his and his father’s allegiances, attempted to recruit him into Hezbollah, and threatened to ruin his life.

3. In 2011 the applicant worked for six months in Saudi Arabia which ended when he and many other Lebanese Shiites were repatriated.  He claimed that soon after his return Hezbollah operatives interrogated him in relation to his activities in Saudi Arabia.  He was accused of collaborating with the Saudis and Hezbollah continued to monitor him.

4. In the statement attached to his protection visa application, the applicant stated he had “a further very personal issue which prevents [him] from returning to Lebanon”[5]. The applicant discussed these personal issues in the interview with the Minister’s delegate.[6] The applicant said in Lebanon he had had a long term relationship with a man (whom he named) but that relationship ended because they disagreed about the applicant’s travelling to Australia. The applicant said he feared he would be harmed by Hezbollah or by his mother’s family. For those reasons, the applicant conducted all his relationships in secrecy, which meant he did not attend any of the gay nightclubs in Beirut, and he did not seek assistance from Helem, the Lebanese lesbian, gay, bisexual, and transgender (LGBT) advocacy group. The applicant submitted photographs of himself kissing a man to whom the applicant attached a first name (A).

   [5] CB39

   [6] CB77

5. The applicant gave further details of his claims based on his being a homosexual at the hearing before the Tribunal. He said that he had known he was gay from the time he was 16 or 17 and he had been sexually active in Lebanon until he came to Australia. When in Lebanon he had boyfriends but they did not go out much. They thought of joining Helem but did not do so because the applicant was too afraid Hezbollah was watching him.[7] In Australia the applicant met a man (X) at a train station where they talked and exchanged telephone numbers. X’s parents were Lebanese and he understood Arabic.[8] The applicant said he knew there was a festival every year, but he did not go to it in 2013 because he did not know about it.[9] The applicant also said he did not join any society in Australia but was doing internet research.[10] He knew of Helem; his boyfriend’s brother was going to introduce them to Helem but the applicant and his boyfriend were too scared.[11] The applicant did not look at Helem online because he was being watched all the time.[12] The applicant said he had met other homosexuals in Australia, including one person to whom the applicant attached a first name; he met that man near Central Station at a particular bar.[13] The applicant said his grandparents knew he was a homosexual and they will kill him.[14]

   [7] CB116 at [16]

   [8] CB117 at [18]

   [9] CB117 at [20]

   [10] CB117 at [20]

   [11] CB117 at [20]

   [12] CB117 at [20]

   [13] CB117 at [21]

   [14] CB117 at [23]

Tribunal decision

1. The Tribunal found that the applicant’s evidence regarding his claims lacked credibility.[15] It found he was not a reliable, credible, or truthful witness, and had fabricated his claims in order to be granted a protection visa.

   [15] CB 119 at [35]

2. The Tribunal ultimately found the applicant did not have a well-founded fear of persecution for a Convention reason either now or in the reasonably foreseeable future[16] and, as such, did not satisfy the Convention criterion set out in s.36(2)(a) of the Migration Act 1958 (Cth) (Act)[17].  It further found there weren’t substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Lebanon, there was a real risk the applicant will suffer significant harm[18] and, as such, did not satisfy the complementary protection criterion as set out in s.36(2)(aa)[19].

   [16] CB122 at [54]

   [17] CB122 at [57]

   [18] CB122 at [56]

   [19] CB122 at [56]

Claims relating to Hezbollah

1. In relation to the applicant’s claims about Hezbollah, the Tribunal considered and rejected each of the key elements of those claims.[20]  Having regard to country information[21], the Tribunal found that the applicant’s father was not a member of the SLA[22] and that his travel between Saudi Arabia and Lebanon did not raise any suspicion[23].  It did not accept that the applicant’s father was targeted because of a claimed friendship between him and the local SLA commander.[24]

   [20] CB119-120 at [36]-[43]

   [21] CB119 at [37]

   [22] CB119 at [38]

   [23] CB119 at [39]

   [24] CB120 at [40]

2. The Tribunal was not satisfied that Hezbollah made the applicant and his family leave their village or that they were kept under surveillance.[25]  It did not accept the applicant had been questioned by Hezbollah about his father’s activities until he left Lebanon in 2012.[26]  Further, the Tribunal did not accept the applicant was questioned about his own activities during his time in Saudi Arabia or accused of collaborating with Saudi authorities.[27]

   [25] CB120 at [41]

   [26] CB120 at [42]

   [27] CB120 at [43]

3. The Tribunal did not accept the claim that the applicant had been approached by Hezbollah, asked to join, refused and as a result would be targeted by the organisation, citing country information and the inconsistencies with the applicant’s evidence.[28]

   [28] CB120 at [44]-[45]

Claims relating to homosexuality

1. The Tribunal also did not accept the applicant was homosexual or that his maternal grandparents believed he was homosexual.[29] First, the applicant knew nothing of Helem, other than its name. The Tribunal did not accept the applicant’s evidence that he decided not to join Helem because Hezbollah was watching him; nor did the Tribunal accept the applicant’s evidence that he did not research the organisation because the applicant’s boyfriend’s brother in Lebanon told them what they needed to know about it.[30] Second, having come to Sydney, a very gay-friendly city, the applicant took no actions to explore the city’s gay scene. The applicant visited no websites, either Arabic or English, he joined no online or actual groups, he could not name the main street in Sydney associated with the gay community, and he had not gone to the Mardi Gras in 2013 because he did not know about it.[31] Third, the applicant was vague about where he did go, saying only that there were gays in a street near Kings Cross and he had coffee with them.[32]

   [29] CB120 at [46]

   [30] CB121 at [47]

   [31] CB121 at [48]

   [32] CB121 at [49]

2. The Tribunal did not accept he had a gay partner (X) in Australia. The claimed meeting with X was coincidental; the applicant said that he and X exchanged messages but the applicant did not provide copies of those messages to the Tribunal, even though he was requested to do so; the applicant was vague about when he met X; X did not appear before the Tribunal to give evidence, and the Tribunal did not accept the applicant’s explanation as to why he did not ask X to attend, namely, he did not know what help X may be.[33] The Tribunal gave no weight to the photographs because they appeared “staged and dispassionate, and are taken in a room on a hand-held iPhone”, the applicant provided no other photographs of X and him in any other settings, and the applicant provided no evidence of any correspondence between him and X.[34]

   [33] CB121 at [50]

   [34] CB121 at [51]

3. The Tribunal did not accept the applicant had a relationship with a Brazilian man the applicant claimed he met at a bar near Central Station.[35] Nor did the Tribunal accept the applicant’s grandparents know or believe he is gay; the applicant could not say how his grandparents found out or were certain he was gay, or why they would kill him.[36]

   [35] CB121 at [52]

   [36] CB121 at [53]

Grounds of review and hearing

1. The application for review contains three grounds:

   1.The Refugee Review Tribunal (the Tribunal) failed to understand my claim.

   2.The Tribunal made a decision against my homosexuality claim because of my lack of information about homosexuality and not because I am not personally a homosexual.

   3.The Tribunal in general had evidence about my reference to a very personal issue yet failed to accept my claim. I will wait for copy of my file to present my argument.

2. The applicant, who is not legally represented, made a number of submissions at the hearing before me. He submitted the Tribunal member “was not fair” and the Tribunal’s decision “wasn’t correct”.[37]  The applicant submitted the Tribunal member was unfair because “he totally rejected the idea that I was gay”.[38] The applicant submitted that the manner in which the Tribunal member asked the applicant questions “was unhumane” because “he did not understand my situation, my case, from all aspects, whether it is my connection or relations with Hezbollah or about my sexuality or sexual inclinations”.[39] The applicant submitted that the Tribunal’s rejection of the applicant’s claim that he is gay is “contrary to the proof or the evidence that is present in the green book, pages 46 to 50”.[40] The evidence to which the applicant referred is the photographs of the applicant and X to which the Tribunal referred.

   [37] T3.40-45

   [38] T4.5-10

   [39] T4.10-20

   [40] T4.30-35

3. The applicant urged that I listen to the audio recording “to check the question that was asked and the answers that was given”.[41] I agreed to do so for the purpose of considering whether the manner in which the Tribunal conducted the hearing before it could give rise to an arguable case of apprehended bias.

   [41] T3.45

Jurisdictional error?

1. The Tribunal did not fail to understand the applicant’s claims. The Tribunal methodically identified the applicant’s claims, questioned the applicant in relation to each of those claims, and gave reasons for rejecting them in a manner which manifests the Tribunal understood the applicant’s claims. The first ground, therefore, is not made out.

2. As to the second ground, the Tribunal did reject the applicant’s claim based on his being a homosexual in part because of the absence of information that tended to show the applicant was a homosexual. Thus, the Tribunal considered it relevant that the applicant did not join or contact Helem, the applicant did not explore the gay scene in Sydney, the applicant did not know the main street in Sydney associated with the gay community, the applicant had not attended Mardi Gras in 2013 because he did not know about it, and the applicant joined no online or actual groups. There was nothing inherently improper or unsound in the Tribunal relying on the absence of such information. Further, the Tribunal did not only rely on the absence of such information. The Tribunal also relied on the applicant’s not having provided copies of messages between him and X, even though the applicant was asked to do so;[42] the applicant’s not arranging for X to appear before the Tribunal to give evidence of his relationship with the applicant; and the applicant’s not providing any photographs of him and X in social settings it could reasonably be expected they would find themselves in if they had been in a relationship. The second ground, therefore, is not made out.

   [42] CB121 at [50]

3. The third ground is that the Tribunal failed to accept the evidence that the applicant is a homosexual. That does not state a jurisdictional error. The Tribunal was not obliged to accept the applicant’s evidence; at least, not where it was reasonably open to the Tribunal not to accept that evidence. It was reasonably open to the Tribunal not to accept the applicant’s evidence, including the photographs he submitted, for the reasons it gave. The third ground is also not made out.

Conduct of hearing before Tribunal

1. I have listened to the audio recording of the hearing before the Tribunal. There is nothing in the content of the questions the Tribunal member asked the applicant that might lead a fair-minded lay observer reasonably to apprehend the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the applicant’s case. Nor is there anything in the manner in which the Tribunal member asked those questions, or the manner in which the Tribunal otherwise conducted the hearing that might lead a fair-minded lay observer reasonably to so apprehend. The Tribunal member asked detailed and searching questions about specific aspects of the applicant’s claims. The Tribunal member was entitled to do so. And the Tribunal member asked the questions in an even-toned and even-tempered manner.

Conclusions and disposition

1. The applicant has not established any of the grounds of review stated in his application. The Tribunal did not make any jurisdictional error in not accepting any of the applicant’s claims. It was reasonably open to the Tribunal not to accept any of the applicant’s claims for the reasons it gave.

2. I propose, therefore, to order that the application be dismissed, and that the applicant pay the Minister’s costs. I will also order that the Administrative Appeals Tribunal be substituted as the second respondent.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 17 September 2015