SZUVP v Minister for Immigration

[2016] FCCA 3284

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUVP v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3284

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 take a relevant consideration into account, failed to make enquiries, failed to afford the applicant a real and meaningful hearing and employed reasoning which was unreasonable, arbitrary and capricious.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.36, 91R, 474

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZUVP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2130 of 2014

Judgment of: Judge Cameron

Hearing date: 12 December 2016

Date of Last Submission: 12 December 2016

Delivered at: Sydney

Delivered on: 12 December 2016

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr G. Johnson

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 $6,500.00.

3. The Administrative Appeals Tribunal replace the Refugee Review Tribunal as second respondent in this proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2130 of 2014

SZUVP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Lebanon who arrived in Australia on 25 October 2012. On 4 December 2012 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Lebanon on the ground of his bisexuality. On 5 April 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, 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: see item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its 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 of the 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. The applicant’s claims were made in a statutory declaration submitted with his protection visa application, at an interview with the delegate held on 4 April 2013 and at a hearing before the Tribunal on 31 January and 20 March 2014.  He claimed that he was bisexual and that, if returned to Lebanon, he would be forced to hide his sexuality and would be forced to marry against his will.  He also claimed that if he returned to Lebanon his sexuality would be discovered and his father and local imams would kill him.

2. In support of his claims, the applicant provided a statutory declaration from one of his friends dated 3 March 2014.  The applicant’s friend stated that he had met the applicant on a visit to Lebanon in 2008 and that after the applicant revealed his bisexuality had encouraged him to travel to Australia.  He stated that after the applicant’s arrival in Australia he introduced him to the local gay scene and took him to several gay venues and events.  He also stated that they had had casual sex on a number of occasions but were not in a relationship.  The applicant’s friend attended the Tribunal hearing and gave evidence in support of the applicant.

The Tribunal’s decision and reasons

1. The Tribunal was not satisfied that the applicant was 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, or s.36(2)(aa) of the Act.

2. The Tribunal did not find the applicant or his claim to be bisexual to be credible.  In para.8 of its decision it said:

   [The applicant] did not seem anxious, nervous or uncomfortable at the hearing yet his testimony about matters directly relating to his claimed bisexuality, was very brief and delivered in such a matter of fact and detached manner that it did not appear to me that he was conveying actual personal experiences.  Further, aspects of his testimony varied from statements he had made in his statutory declaration.

3. The Tribunal went on to conclude that the applicant was not bisexual or homosexual and did not accept that he had had sex with males in Lebanon or in Australia.  Those conclusions were based on the following findings and reasons:

   a)the Tribunal found that the applicant’s evidence at its hearing was inconsistent with the claims he had made in his statutory declaration.  In that regard, it noted that in his statutory declaration the applicant claimed that he was bisexual, that he had had a number of relatively short and highly secretive casual homosexual relationships in the past and that he did not want to commit to a heterosexual married relationship.  However, at the hearing he said that he was homosexual, that in Lebanon he had had relationships with three male childhood friends from the time he was fifteen years old and also that he hoped to marry a woman in the future and have children while simultaneously maintaining a relationship with a man;

   b)the Tribunal found that the applicant’s testimony at its hearing was generally extremely brief and dispassionate.  It noted that he gave taciturn evidence when speaking of his reaction to finding out that he was sexually attracted to men, which left the impression that he had not been recounting actual personal experiences.  The Tribunal also found the applicant’s evidence about the gay clubs and venues he had attended in Australia to have been hesitant.  It found that if the applicant had had to be secretive and cautious in Lebanon about his sexuality as he claimed, then it expected that he would have been able to recall with greater ease and testify with some degree of enthusiasm about the “bi-friendly venues and events” he claimed to have regularly attended in Australia and the people he had met there.  The Tribunal found that instead the applicant’s evidence appeared to have been given in an indifferent manner and that he had not demonstrated any particular affinity with the people he had met or any enjoyment in attending the venues he had mentioned.  It found that this raised doubts about whether he had attended the clubs and venues as frequently as he claimed and about whether he attended them because he was bisexual;

   c)the Tribunal also found that the applicant seemed to have been inventing excuses when giving his evidence.  It noted in that regard that he claimed to have had two relationships with men in Australia but when asked if he had photographs of them he first suggested that he did not have photographs on his phone because it was new, then he said that the men had not wanted to be photographed and finally that he did not have photographs on his phone because he was afraid they would be discovered.  The Tribunal also noted that the applicant claimed that he had a Facebook page which he did not want his father to see but when asked to show the page he said that he had a problem with his password; and

   d)the Tribunal did not find the applicant’s friend to have been an impressive witness.  It noted that he had been nervous and hesitant at its hearing which he had said had been because he was not open about his bisexuality.  However, the Tribunal did not accept that explanation, noting that the applicant’s friend appeared evasive when asked about matters unrelated to his sexuality.  It also found that his evidence about how he met the applicant and how he came to know of the applicant’s bisexuality appeared rehearsed.  The Tribunal therefore gave his evidence no weight.

4. Having concluded that the applicant was not bisexual or homosexual, the Tribunal considered the applicant’s claimed attendance at LGBTI clubs, venues and events in Australia. It found that the applicant might have attended such venues on occasion but was not satisfied that he had engaged in that conduct otherwise than for the purpose of strengthening his claim to be a refugee. Consequently, pursuant to the then s.91R(3) of the Act, the Tribunal disregarded that conduct when assessing the applicant’s claims. The Tribunal also found that there was no evidence before it to suggest that anyone in Lebanon was aware of the applicant’s conduct in Australia. It concluded that if the applicant returned to Lebanon he would not face any harm there for reasons of his sexuality.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.The Tribunals assessment of the Applicant’s credibility was unreasonable, arbitrary and capricious.

   Particulars

   a.The Tribunal conclude at paragraph 8 of the decision records that the Applicant did not seem anxious, nervous or uncomfortable at the hearing yet his testimony about matters directly relating to his claims bisexuality, was brief delivered in such a matter of fact and detached manner that it did not appear to me that he was conveying actual pursued experiences.

   b.The Tribunal failed to reasonably consider or reasonably enquire whether the detached manner in which the Applicant gave his evidence may have arisen due to being anxious, nervous or being uncomfortable during the hearing, when questioned about his personal experience.

   2.The Tribunal failed to specify at paragraph 8 of the decision record which evidentiary test it has applied in assessing real risk of significant harm.

2. The applicant made additional submissions at the hearing of this application. 

Ground 1

1. The first ground of the application alleged that the Tribunal’s assessment of the applicant’s credibility was affected by jurisdictional error because it was unreasonable, arbitrary and capricious. 

2. The first particular of the first allegation referred to the Tribunal’s observation that the applicant did not appear anxious, nervous or uncomfortable when giving evidence to it, yet his evidence was brief and he appeared disengaged.  The two points I perceive the Tribunal was trying to convey were, first, the manner of the applicant’s delivery was such that the Tribunal had no confidence that he was recounting events or things which had actually occurred or were real, were central to his identity as an individual and which put him at risk of harm were he to return to Lebanon.  The second point I perceive that the Tribunal was trying to convey was that the applicant’s presentation could not be explained by nervousness or the like.  Such matters do not evidence arbitrary conduct on the Tribunal’s part.

3. The second particular of the first allegation contended that the Tribunal had had to take certain matters into account or should have enquired into them.  The applicant did not advance any argument which suggested that the law required such conduct on the part of the Tribunal.  Moreover, it is not independently apparent to me that the law required consideration to be given to whether or not the applicant might have been nervous, in circumstances where he gave no suggestion of being so, or that any exception to the general rule that the Tribunal has no duty to enquire applied in this case.  The matters raised in this connection by the applicant did not evidence arbitrary or capricious conduct on the part of the Tribunal.

Ground 2

1. The allegation made in the second ground of the application is meaningless in the context of para.8 of the Tribunal’s decision, on which the ground expressly relied.  That paragraph has been quoted earlier in these reasons.  Significantly, that paragraph did not discuss the likelihood of the applicant suffering harm if he returned to Lebanon. 

2. The allegation is also meaningless in the context of the Tribunal’s reasons as a whole.  This is because the Tribunal’s decision was based on its disbelief of the applicant’s core claim concerning his sexuality.  Because the Tribunal was not persuaded by that claim, it did not need to consider the potential for the applicant to face harm in Lebanon except in the context of his visits to LGBTI venues, which it did in an unexceptionable manner. 

Submissions

1. At the hearing of this application, the applicant expressed surprise and concern on more than one occasion that the Tribunal had not believed him or his friend.  Essentially, the applicant was encouraging the Court to reach a view on the credibility of his claims different from that arrived at by the Tribunal.  Because the applicant was seeking impermissible merits view, no jurisdictional error was disclosed by those particular submissions. 

2. The applicant also implicitly submitted that, for two reasons, his hearing before the Tribunal had not been a real and meaningful one.  The first assertion was that he had had to give his evidence and make his submissions to the Tribunal through an interpreter and that the process of interpretation had led to him being unable to convey fully the sense or meaning of relevant events.  The applicant did not point to any particular aspect of his account which had not been interpreted to the Tribunal.  In essence, this ground was addressed to the applicant’s concern that he had been unable to convey his case with sufficient rhetorical effect, not that the substance of his claims were not made known to the Tribunal.  Consequently, this argument identified no jurisdictional error by the Tribunal.

3. The other aspect of the applicant’s allegation that his hearing had not been a real and meaningful one was an assertion that his then migration agent had failed to place before the Tribunal all the information which the applicant had wished the Tribunal to have.  What the applicant told the Court from the bar table, which I am willing to accept as correct, was that he put an account of various events on paper and gave it to his migration agent who did not then provide it to the Tribunal. 

4. Significantly, the applicant’s submission from the bar table was that the material which he wished the Tribunal to have concerned what would have happened to him in Lebanon were he to return there.  As these reasons make plain, the Tribunal’s decision turned on its disbelief of the applicant’s core claim.  Consequently, even if the material which the applicant says he would have liked the Tribunal to have had had been provided to the Tribunal, it would have made no difference to the outcome of the review. 

5. But, in any event, all the applicant was recounting was what appears to have been a decision by his representative to present his case to the Tribunal in a particular way.  The applicant is ultimately responsible for the conduct of his case and, relevantly, for the conduct of his representative.  The core of the applicant’s complaint is that his migration agent did not present his case in the way that he would have liked.  A complaint of that sort does not, without more, raise issues of jurisdictional error.

Conclusion

1. For these reasons, the application will be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 19 December 2016