SZUDS v Minister for Immigration

[2014] FCCA 2806

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUDS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2806

Catchwords:
MIGRATION – Application seeking review of decision of Refugee Review Tribunal to refuse to grant the applicant a Protection (Class XA) visa – No reviewable error – Application dismissed.

Legislation:

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

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
NAHI v Minister for Immigration, Multicultural & indigenous Affairs [2004] FCAFC 10
Re Minister for Immigration and Multicultural Affairs & Ors; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: SZUDS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 901 of 2014

Judgment of: Judge Lloyd-Jones

Hearing date: 18 November 2014

Delivered at: Sydney

Delivered on: 5 December 2014

REPRESENTATION

The Applicant: The Applicant appeared in person with a Nepali interpreter.

Solicitor for the First Respondent: Mr S Speirs of Clayton Utz

The Second Respondent: The Second Respondent filed a submitting notice.

ORDERS

1. The application filed on 2 April 2014 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 901 of 2014

SZUDS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application filed in this Court on 2 April 2014 under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1314010, a decision of Tribunal Member J. Blount dated 28 February 2014, affirming the decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”) to refuse to grant the applicant a Protection (Class XA) visa.

2. The solicitors for the Minister filed on 9 October 2014 a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided has been identified as the Court Book (“CB”) and marked as Exhibit “A”.  

3. The applicant was granted leave on 3 June 2014 to file and serve any amended application, affidavit evidence, written submissions or list of authorities upon which he sought to rely, however, elected not to do so.

Background

1. In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (“CB”) for that material.

2. The following events are material: 

   a)On 23 February 2009, the applicant, a citizen of Nepal, arrived in Australia on a student visa;

   b)On 9 November 2012, the applicant applied for a Protection visa;

   c)On 21 August 2013, the Delegate refused to grant the Protection visa;

   d)On 20 September 2013, the applicant applied to the Tribunal for review of the Delegate's decision;

   e)On 25 February 2014, the applicant attended a hearing before the Tribunal to give evidence and present his claims;

   f)On 28 February 2014, the Tribunal affirmed the Delegate's decision;

   g)On 2 April 2014, the applicant applied to this court for judicial review of the Tribunal's decision.

Applicant’s Protection Claims

1. The applicant told the Tribunal that he feared persecution in Nepal, his country of origin, because of his homosexual orientation. The applicant provided the following insights into his experience as a homosexual living in Nepal, to support his claim:

   a)Despite realising that he was gay at the age of 14, he did not reveal his sexual inclination “because he had to hide his feelings because of extreme fear from homophobic people including members of his family” (CB 82 at [15]).  The applicant explained that his family, friends and neighbours in Nepal are not tolerant of homosexuality (CB 82 at [15]);

   b)His family expects him to marry and have children and does not support his homosexuality (CB 82 at [15]);

   c)He only avoided harm and expulsion from his family and the local community in the past because he had concealed his homosexuality (CB 82 at [15]);

   d)In 2008 he decided to leave Nepal to study so that he could “enjoy his homosexual lifestyle and freedom” and also to avoid marrying a woman that his parents had nominated. His parents agreed to allow him to go overseas on the condition that he returned after 3 years and agreed to marry a woman and have a family (CB 82 at [13]);

   e)He intended to study and work in Australia, but his “study did not work out” after his parents stopped supporting him financially (CB 82 at [14]).  The applicant claims that his parents stopped supporting him in June 2010 “immediately after he told them he was gay” (CB 82 at [18]).Subsequently, his father told him that he was “no longer his son”, he had no money to extend his visa and he had to go to a farm to work and make money (CB 82 at [18]); and

   f)When asked by the Tribunal whether he had experienced any “specific problems” in the past in Nepal, the applicant said that he had not as his family had been “protecting him” and stopped him from having relationships with men (CB 84 at [29]).

2. The applicant also made the following assertions about his homosexual lifestyle in Australia:

   a)That he frequented gay venues in Oxford street, and used to attend most Fridays and Saturdays (CB 82 at [18]); and

   b)That once in Australia for about three months he had had numerous homosexual relationships, but no long-term relationships (CB 83 at [19]);

3. At the time of his hearing before the Tribunal, the applicant contended that he had a boyfriend (CB 83-84 at [26]).

4. The applicant asserted that Nepal is a country where homosexuals were persecuted and treated like criminals. In support of this assertion, he claimed that:

   a)About 10 years ago, two lesbians were beaten by their parents in his village. Police said the incident was a family matter and did not investigate the assault (CB 85 at [33]);

   b)The Nepalese Supreme Court Rulings of 2007 and 2008, which provide legal rights to homosexuals, were not reflected in social practice (CB 85 at [37]);

   c)Protection was offered to Sunil Pant, the first openly gay Member of Parliament and founder of the gay rights organisation Blue Diamond Society, because of his political profile. However, people like the applicant do not receive protection (CB 85 at [38]).  The applicant further claimed Sunil Pant was corrupt (CB 85 at [37]);

   d)As a homosexual, he would not be able to find employment or housing (CB 86 at [40]); and

   e)Gangsters may kidnap and rape him or he may be put in jail (CB 86 at [40]).

Tribunal’s Decision

1. The Tribunal found that the applicant's fear of harm on the basis of his homosexuality was not well-founded, nor was there a real risk that he would face harm if he returned to Nepal. It reached this finding for the following reasons:­­

   a)The applicant stated that he had a gay partner and regularly attended gay bars. However, at the Delegate's interview, he was unable to identify any gay bars to the extent that one might expect of someone who regularly attended them. It was only at the Tribunal hearing, almost 12 months later, that he could name two bars that he regularly attended (CB 84 at [30], 87 at [48]);

   b)The Tribunal formed the view that the applicant is not a flamboyant person who would flaunt his sexuality, but is naturally discreet. Accordingly, this trait would minimise the extent to which societal disapproval in Nepal may impact him, particularly in relation to open displays of affection, which the applicant claimed attracted harassment (CB 87-88 at [50]);

   c)The Tribunal did not make a general credibility finding regarding the applicant, but found that many of his claims regarding the treatment of homosexuals in Nepal were without foundation, exaggerated and lacked credibility. Specifically, the Tribunal noted:

   i)The applicant's absence of five years and limited direct experience of the treatment of homosexuals in Nepal (CB 89 at [59]); and

   ii)The applicant's long delay in seeking protection. The applicant told his parents about his homosexuality in June 2010, but did not apply for a Protection visa until 9 November 2012, even though his Student visa had by then ceased. The Tribunal concluded that it was difficult to understand why he would have waited so long to seek protection (CB 87 at [46]);

   d)For the reasons outlined in [6] above, the Tribunal preferred to rely on country information which indicated that, the treatment of lesbian, gay, bisexual and transgender people in Nepal has significantly improved and pervasive persecution and discrimination does not occur. Having said that, the Tribunal acknowledged that (CB 88 at [52]):

   i)While some discrimination may occur, especially at the village level, and homosexuals may be ostracised by their families if they "come out" as openly homosexual, these incidents were not as widespread as the applicant claimed (CB 89 at [27]); and

   ii)The applicant's claims (see [6] above) were otherwise not credible;

   e)The Tribunal accepted that the applicant's family may have cut off contact and financial support but did not find that this amounted to serious or significant harm. In particular, the Tribunal rejected the applicant’s fear that if he returned to Nepal he would be forced to marry. This is so for two reasons;

   i)The illogicality of forcing him to marry when they had "cut off" ties with him and,

   ii)As an independent and reasonably educated man, he would not be required to return to his family even if he returned to Nepal (CB 89 at [61]).

2. Having considered the applicant's claims concerning his homosexuality and fear of persecution in Nepal, the Tribunal concluded that the applicant did not face a real chance of serious harm amounting to persecution. Accordingly, it found that the applicant was not a person in respect of whom Australia has protection obligations pursuant to s.36(2)(a) of the Migration Act (CB 90 at [67]).

3. The Tribunal then considered the alternative criterion in s.36(2)(aa) of the Migration Act. For the same reasons it rejected the applicant's assertion that, as a homosexual in Nepal, he would suffer significant harm in the future.

Current Proceedings

1. The application filed in this Court on 2 April 2014 pleads the following three grounds of review:

   1. I content (sic) that the Refugee Review Tribunal Member committed jurisdictional error in failing to consider my claims that I would be persecuted by being forced to marry and enter into a heterosexual relationship if I returned to Nepal.

   2. I argue the fact that I will be discriminated against and subjected to serious harm by my family and relatives, religious figures and society in general in Nepal. I will not be able to express my sexuality freely and safely in Nepal and will not have access to state protection.

   3. The Tribunal Member failed to accord procedural fairness. The Tribunal Member has heavily relied on politically motivated country information and my evidence has been adversely construed and my safety has been completely ignored.

Applicant’s Submissions

1. The applicant indicated at the hearing that he had not prepared any affidavit evidence or written submissions in support of his application.  He further indicated he did not wish to make any oral submissions or amend his application as he wished to rely on the application before the Court.

Minister’s Submissions

1. The Minister submits that the applicant's grounds of review are without merit and do not raise an arguable case for relief.

Ground One

1. Factually, this ground must fail. The Tribunal did consider the applicant's claim that he would be "persecuted by being forced to marry and enter into a heterosexual relationship".

2. In addition, the Minister submits that any evidence which was put before the Tribunal relating to the applicant being "forced to marry" or enter a heterosexual relationship is, at its core, inconsistent with the applicant's assertion to the tribunal, that his family had "cut off" ties with him (see [10(e)] above). On this basis, the Tribunal made the finding that, if the applicant had truly been disowned from his family then there was no actual concern that his family would control his relationship. The Minister submits that it was reasonably open, on the material available, for the Tribunal to makes such a finding.

3. Further, the Minister notes that the applicant's inconsistent assertions were put to him at the Tribunal hearing and that the applicant was unable to reconcile his remarks, but say "it is true that his parents would not allow him to enter the house". 

Ground Two

1. The Minister submits that this ground merely reiterates “the fact” that he will be discriminated and will not be able to express his sexuality. This ground does not raise a question of legal error. It is an attempt by the applicant to cavil with the merits of the Tribunal’s decision. The court's role is not to retry the merits of the claim. This ground must fail. 

Ground Three

1. The applicant's third ground contains two elements.

   a)First, that the applicant was denied procedural fairness. This ground is not particularised and should not be accepted. In any event, the Minister submits that a review of the procedure adopted by the Tribunal discloses that it complied with the requirements of Division 4 of Part 7 of the Migration Act (Conduct of Review).

   b)Second, the applicant cavils with the Tribunal's use of country information and the fact that his own evidence was discounted. In this regard, the Minister submits, consistently with the notations above at [10(d)], that the Tribunal found that the applicant's evidence regarding the treatment of homosexuals in Nepal lacked credibility. On this basis, the Tribunal placed more weight on the independent country information as opposed to the information proffered by the applicant at the hearing. It is well established that the selection of country information and the weight placed on it are matters for the Tribunal (NAHI v Minister for Immigration, Multicultural & indigenous Affairs [2004] FCAFC 10 at [11]).

Consideration

Ground One

1. Ground 1 of the application raises an allegation that the Tribunal failed to consider the applicant’s claim he would be persecuted by being forced to marry and enter into a heterosexual relationship.

2. This claim, however, cannot be sustained.  At [40] of the Decision Record (CB 86) the Tribunal stated:

   40.    … In relation to his family he had said that since he told them he is gay they had cut off all contact with him and said that he is no longer their son and that he is not to see or contact them; but on the other hand he has said that if he returns they will force him to marry…

   (CB 86)

3. The Tribunal then stated at [61] of the Decision Record (CB 89):

   61. The Tribunal is satisfied that in fact a major focus of concern by the applicant was and remains the attitude of his own family, who have cut off contact and financial support. However, the Tribunal does not accept that this of itself amounts to serious or significant harm. Certainly if the applicant has been disowned by his family there appears to be no question of them forcing the applicant into an arranged marriage. The applicant is not required to return and live with his family even if they were prepared to accept him. He is a reasonably well-educated adult male who has been living independently of his family for several years.

   (CB 89)

4. It is clear on the face of the Decision Record that the Tribunal did, in fact, squarely consider the applicant’s claim of being forced to marry a woman and enter into a heterosexual relationship, but ultimately found due to the applicant’s own evidence that his parents had “cut off” their ties with him that there was no actual concern they would force him into such a marriage. 

5. On a fair reading of the Decision Record as a whole, this finding by the Tribunal was reasonably open to it to make on the material before it.  This ground, consequently, must fail.

Ground Two

1. Ground 2 of the application is, effectively, a restatement of a number of the applicant’s substantive protection claims. There is no error of law raised in this ground and it simply cavils with the Tribunal’s findings and invites the Court to engage in impermissible merits review (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 280-282). Accordingly, this ground cannot be sustained.

Ground Three

1. Ground 3 of the application alleges a number of errors of law on the part of the Tribunal.

2. The first allegation is that the applicant was denied procedural fairness, however, this has not been particularised in any way. Division 4 of Part 7 of the Migration Act, titled “Conduct of Review”, prescribes the statutory requirements the Tribunal must comply with in respect of its procedural fairness obligations. On a fair reading of the Decision Record and Court Book against the procedural fairness requirements of the Division 4 of Part 7 of the Migration Act, no breach is apparent and the Tribunal has complied with its various obligations. Accordingly, this aspect of the ground cannot be sustained.

3. The second aspect of this ground alleges the Tribunal has relied too heavily on “politically motivated” country information.  Again, this allegation has not in any way been particularised. 

4. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 the Full Court stated at [11]:

   11.    … By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.

5. The selection of country information and the weight place on that country information are matters for the Tribunal.  Accordingly, on a fair reading of the Decision Record, there has been no error of law by the Tribunal in this regard.  This aspect of the ground cannot be sustained.

6. The third aspect of this ground alleges that the applicant’s evidence has been adversely construed and his safety ignored.  Again, this aspect of the ground has not been particularised any further.  However, as help by his Honour McHugh J in Re Minister for Immigration and Multicultural Affairs & Ors; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] a “finding on credibility is the function of the primary decision-maker par excellence.”  The Tribunal in this matter made its findings at [44]-[46] (CB 87) in respect of the applicant’s credibility.  On a fair reading thereof, the Tribunal’s findings in this regard were open to it to make on the material before it and there has been no error by the Tribunal.  This aspect of the ground simply seeks to engage the Court in impermissible merits review (see [26] above).

1. Consequently, none of the aspects of Ground 3 can be sustained and it must fail.

Applicant’s Oral Submissions

1. At the hearing the applicant raised a number of oral submissions before judgment was reserved.

2. The first oral submission made by the applicant complained that the media in Nepal were being bribed by the government to tell people that it is easy to live there. The applicant submits that the Tribunal relied on this and did not appreciate the real situation there. To the extent this raises complaints in respect of the Tribunal’s use of country information, such a submissions cannot be sustained for the reasons outlined at [29]-[31] above. Further, there is no suggestion the country information relied on by the Tribunal had been prepared by the media in Nepal, in any case. This allegation simply seeks to engage the Court in impermissible merits review.

3. The applicant then made a number of oral submissions disagreeing with the findings of the Tribunal and stating what the real situation in Nepal is.  This, again, seeks to engage the Court in impermissible merits review and, consequently, cannot be sustained.

Conclusion

1. Neither the grounds of the application nor the applicant’s submissions demonstrate any jurisdictional error on the part of the Tribunal. Further, on a fair reading of the Decision Record and Court Book, no error is apparent. Consequently, the application should be dismissed with the applicant ordered to pay the Minister’s costs fixed in the sum of $6,646.00.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date:  5 December 2014