SZUVQ v Minister for Immigration
[2015] FCCA 1241
•13 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUVQ v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1241 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – dismissal of show cause application – non attendance by the applicant. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 424A |
| SZSNW v Minister for Immigration & Anor [2014] FCCA 134 |
| Applicant: | SZUVQ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2131 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 13 May 2015 |
| Delivered at: | Sydney |
| Delivered on: | 13 May 2015 |
REPRESENTATION
No appearance by or on behalf of the Applicant
| Solicitors for the Respondents: | Ms H Dejean of Australian Government Solicitor |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.
The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his last known postal or residential address, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2131 of 2014
| SZUVQ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application seeking judicial review of a decision of the Refugee Review Tribunal (Tribunal) made on 27 June 2014. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is from Lebanon, and had made claims which varied somewhat over time. Background facts relating to the applicant’s claims to protection, and the decision of the Tribunal on them are set out in the Minister’s outline of legal submissions filed on 4 May 2015.
The applicant is a citizen of Lebanon who arrived in Australia on a prospective spouse visa on 19 March 2010[1]. He applied for a Partner (Residence)(Class BS) visa (the spouse visa) on 16 July 2010 on the basis of his relationship with his female sponsor. However, the sponsor informed the Department that they were no longer together on 6 September 2011. A delegate refused the spouse visa (which was dependent on the currency of that relationship), and the applicant sought review with the Migration Review Tribunal on the basis that he had suffered family violence committed by the sponsor. The applicant provided a report of a Dr Howard dated 8 October 2013 detailing his experiences following separation. On 20 January 2014, the Migration Review Tribunal affirmed the decision to refuse the spouse visa.
[1] Court Book (CB) 279 [2]
The applicant was then an unlawful non-citizen for a period, and was detained on 16 March 2014. On 17 March 2014, the applicant applied for the protection visa[2]. A delegate refused the protection visa on 28 April 2014[3]. The applicant lodged an application for review with the Tribunal and attended a hearing on 22 May 2014:[4].
[2] CB 1-103
[3] CB 182-201
[4] CB 213-225 and 245
In his protection visa application, the applicant claimed that he would be unable to live in Lebanon freely and to express his political and religious views[5]. He claimed he would be harmed by religious fundamentalists as they considered his opinions and body tattoos to be an outward display of a rejection of Islam. He would be targeted by criminal gangs and the authorities would not be able to protect him[6].
[5] CB 55
[6] CB 57-58
In his statutory declaration dated 25 March 2014 (which was lodged after his protection visa application), the applicant claimed that since arriving in Australia his relationship with his prospective spouse had broken down. He had not been in contact with her since September 2010[7]. He suffered periods of anxiety and self-harm and had the tattoos “inked” following the break up[8]. He has been called a “Satan worshipper” because of the nature of the tattoos and has been ostracised by his relatives and the local Lebanese community[9].
[7] CB 135
[8] CB 136
[9] CB 139
The applicant also claimed that he became resentful towards women, and began intimate sexual relationships with men[10]. He claimed that he is bisexual and will be harmed by the “religiously bigoted” members of Lebanese society and his family by reason of his lifestyle (which includes drinking)[11].
[10] CB 137
[11] CB 140-141
The applicant did not mention any claims relating to sexual orientation at his Detention Client Interview (DCI), his Client Compliance Interview (CCI) or in his protection visa application.
Following lodgement of his protection visa application, the applicant also submitted:
a)a psychological report from Mr Chris Probets dated 31 March 2014[12], who had prepared a report after seeing the applicant once on 27 March 2014. Mr Probets attested to the genuineness of the applicant’s bisexuality and to claims to fear harm based on his bisexuality;
b)a statutory declaration from a male transsexual who had had a casual relationship with the applicant;
c)character references from others confirming his bisexuality and fears arising from this and his body tattoos;
d)various news report, articles and print outs from online forums concerning the risk of Salafism, and militant Islam and jihad in Lebanon.
[12] CB 143-148
In his application to the Tribunal, the applicant provided a further report from Mr Probets dated 31 March 2014, urging his release from detention[13].
[13] CB 220-225
At the hearing, the applicant gave evidence, along with the transsexual, Mr Probets and Mr Dean Moore (a friend). It is recorded that the applicant gave evidence that his mother, brother and sisters are all aware of and support his bisexual lifestyle[14].
[14] CB 289 at [62]
After the hearing, on 23 May 2014, the Tribunal wrote a detailed letter to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (Migration Act/the s.424A letter)[15]. The applicant’s representative responded on 30 May 2014 enclosing a further report of Mr Protets dated 28 May 2014[16]. The applicant’s representative also provided a copy of the submission provided to the Department in response to a Notice of Intention to Consider refusal of his visa issued on 10 April 2014[17]. The applicant submitted that the delegate had been oblivious to the applicant’s mental health issues, including possible drug/alcohol affectation, stress and shock.
[15] CB 258-262
[16] CB 263-269
[17] CB 249-257
By letter dated 10 June 2014, the representative referred the Tribunal to SZSNW v Minister for Immigration & Anor[18] and drew an analogy between the facts in that case and the applicant’s failure to disclose his sexual orientation at earlier interviews[19].
[18] [2014] FCCA 134
[19] CB 274
Tribunal decision
On 27 June 2014, the Tribunal affirmed the decision of the delegate[20].
[20] CB 278-293
The Tribunal did not accept that the applicant was bisexual. It reasoned that there was nothing in the report of Dr Howard which pointed to a “shift” in the applicant’s sexual orientation at the time of separation from his sponsor (a matter put to the applicant in the s.424A letter)[21]. Further, the account of how the applicant came to be attracted to men was unconvincing and inconsistent, even allowing for trauma (arising from an armed robbery), confusion and depressive disorder or any psychological ailment[22].
[21] CB 283-284 [27]-[31]
[22] CB 284-285 [32]-[39] and CB 286 [45]
The Tribunal had concerns about the report of Mr Probets dated 31 March 2014, which had engaged “inappropriately, in an assessment of the merits of the applicant’s case for protection”, without querying or challenging any aspect of the applicant’s claims[23]. The Tribunal found that the report was devoid of any clear diagnosis[24]. The Tribunal also found that Mr Probets did not offer any satisfactory explanation at hearing for his conclusions on the merits of the applicant’s claims[25]. In the circumstances, the Tribunal was not satisfied that significant weight could be attached to Mr Probets’ reports and testimony before the Tribunal[26].
[23] CB 286 [41]
[24] CB 286 [42]
[25] CB 286 [43]
[26] CB 286 [44]
The Tribunal found that the applicant’s evidence about his relationship with the transsexual was inconsistent with her evidence[27] (another matter put to the applicant in the s.424A letter). The explanation of “psychological state” provided by the applicant in response to the s.424A letter did not satisfactorily explain the inconsistencies. Mr Moore’s evidence did not provide information or details “to outweigh” the Tribunal’s concerns about the transsexual’s evidence[28].
[27] CB 287-288 [46]-[52]
[28] CB 288 [53]
The Tribunal considered that the applicant’s failure to mention claims relating to his sexual orientation at earlier interviews and his protection visa application (a matter put to the applicant in the s.424A letter) was significant[29]. The Tribunal found it difficult to accept the applicant’s explanation that this failure was due to fear or embarrassment about his family finding out in light of his evidence that his mother, brother and sisters were aware of his sexuality and supported him[30]. Whilst noting the applicant’s psychological evidence, the Tribunal found that the applicant’s health was not such that he would have been so incapacitated as to make no reference to his sexuality as a basis for his fears in his protection visa application[31].
[29] CB 288 [54]
[30] CB 289-290 [62]
[31] CB 290 [65]
The Tribunal accepted that the applicant had developed a friendship with the transsexual, however, it did not accept that the applicant had ever been in a sexual relationship with her. Further, there was no evidence that the applicant has ever been harmed by anyone by reason of his friendship with her. Mere association with her would not lead the applicant to be perceived as bisexual[32]. Nor would the applicant be perceived as a homosexual as he has never been involved in homosexual relationships. Accordingly, the Tribunal concluded that there was no real chance the applicant would be harmed by reason of his sexual orientation[33].
[32] CB 291 [67]
[33] CB 291 [70]-[71]
The Tribunal did not accept that the applicant had rejected Islam or that his tattoos were an expression of any rejection of Islam. Having regard to country information which suggested that tattoos are popular in Lebanon, the Tribunal was not satisfied that the applicant’s tattoos would lead to him being subjected to any harm from extremists or anyone else[34]. Although noting it was not necessary, the Tribunal found that the applicant could relocate to religiously mixed areas in Beirut, and that it would be “reasonable in the sense of practicable” to expect him to do so[35].
[34] CB 291-292 [72]-[74]
[35] CB 292 [75]
The Tribunal was not satisfied that the general security situation in Lebanon would expose the applicant to a real chance of persecution for a Convention reason or that there was a real risk that the applicant would suffer significant harm, citing s.36(2B)(c)[36].
[36] CB 292-293 [76]
The Tribunal therefore concluded that the applicant did not satisfy either of the refugee criterion or the complementary protection criterion[37].
[37] CB 293 [77]-[78]
The present proceedings
These proceedings began with a show cause application filed on 29 July 2014. At that time the applicant was represented by a solicitor, Mr Issam Issa. The grounds in that application are somewhat lengthy, but are accurately summarised at [22] of the Minister’s submissions:
1.The Tribunal erred by failing to act reasonably and rationally when assessing the applicant’s mitigating circumstances at his DCI and CCI, and in his protection visa application.
2.The Tribunal erred when it failed to make proper enquiries with the psychologist who attended the hearing, instead leaving the psychologist to say ‘whatever he want[ed]’ at hearing.
3.The Tribunal erred when it concluded at [63] that the applicant gave evidence that his mother, brother and sisters were all aware of and support his bisexual lifestyle, when no such claim was made.
4.The Tribunal erred when at [78] it concluded that the applicant could not meet the complementary protection criterion, as a result of its conclusions on the refugee criterion.
5.The applicant was denied procedural fairness as the Tribunal did not ‘notify’ him of the distinction between refugee and complementary protection claims.
6.There is no evidence that the Tribunal applied the ‘real chance of real risk’ test in assessing complementary protection.
7.The Tribunal failed to specify at [78] which evidentiary test it has applied in assessing ‘real risk of significant harm’.
I made orders by consent on 26 August 2014 for the preparation of this matter for a final hearing. I dispensed with the need for a preliminary hearing and listed the matter for a final hearing today at 10.15am. I afforded the applicant with the opportunity to file and serve an amended application and additional evidence. He has not taken up that opportunity. On 20 January 2015, Mr Issa filed a notice of intention to withdraw as the lawyer representing the applicant. At [4] of that notice, he identified an address for the applicant which had previously been disclosed and a mobile telephone number. Subsequently, on 23 February 2015, Mr Issa notified his withdrawal as the lawyer for the applicant, including confirmation that he had served the notice of intention to withdraw on the applicant at least seven days before the date of the notice of withdrawal. Mr Issa confirmed that his client’s last known residential or business address and telephone number were set out in the notice of intention to withdraw. I am satisfied that Mr Issa has complied with the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) concerning withdrawal from the record.
There was no appearance by or on behalf of the applicant when the matter was called today. The matter has been called twice, and on each occasion there was no answer to the call. There is no explanation for that non appearance. I adjourned temporarily while an attempt was made to contact the applicant on his nominated mobile telephone number, with the assistance of the Arabic interpreter booked for today’s hearing. That attempt was unsuccessful; the telephone was turned off.
I received an affidavit from the Minister’s solicitor, Ms Dejean, who deposes that on 4 May 2015 she caused to be sent by express post to the applicant, at his last known address, a letter enclosing a sealed copy of the Minister’s written submissions, which had been filed on the same day. That letter is annexed to the affidavit. At [2], Ms Dejean reminds the applicant of the hearing today at 10.15am at John Maddison Tower.
I have concluded, in these circumstances, that the appropriate course is to dismiss the application on account of the applicant’s non appearance. I will order that the application be dismissed, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $6,000. That is somewhat below scale, and I have no difficulty in accepting that costs of at least that order have been reasonably and properly incurred on behalf of the Minister, when considered on a party and party basis. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.
The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his last known postal or residential address, together with a copy of rule 16.05 of the Federal Circuit Court Rules.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 14 May 2015
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