WZAOE v Minister for Immigration and Citizenship
[2011] FCA 1404
•8 December 2011
FEDERAL COURT OF AUSTRALIA
WZAOE v Minister for Immigration and Citizenship [2011] FCA 1404
Citation: WZAOE v Minister for Immigration and Citizenship [2011] FCA 1404 Appeal from: WZAOE v Minister for Immigration and Citizenship [2011] FMCA 429 Parties: WZAOE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: WAD 283 of 2011 Judge: SIOPIS J Date of judgment: 8 December 2011 Date of hearing: 21 November 2011 Place: Perth Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 22 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter. Counsel for the First Respondent: Mr A Gerrard
Solicitor for the First Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 283 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: WZAOE
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
8 DECEMBER 2011
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the first respondent’s costs to be agreed or taxed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 283 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: WZAOE
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
SIOPIS J
DATE:
8 DECEMBER 2011
PLACE:
PERTH
REASONS FOR JUDGMENT
The appellant was born in Bangladesh and arrived in Australia on a student visa on 8 March 2009.
On 11 May 2010, the appellant applied for a protection visa on the basis that he feared persecution if he was to return to Bangladesh because of his sexual orientation. The appellant claimed that he had left Bangladesh because of the intolerance to homosexuals in Bangladesh. He said that Bangladeshi Muslim tradition was very strict in this respect. He said that he applied for a student visa because he understood Australia to be a “great place for the gay-lesbian”.
The appellant went on to say that he had found a partner in Australia since his arrival here and believed that his life was going “in the right direction”. He said that his family in Bangladesh had found out about his relationship in Australia and his family members were “very shocked and they now hate me severely”. The appellant went on to say that if he went back to Bangladesh, the Muslim fundamentalists would kill him; and his family would never accept him as their member.
A delegate of the first respondent refused the appellant’s application on 7 September 2010. On 6 October 2010, the appellant sought review of that decision in the Refugee Review Tribunal (the Tribunal).
THE TRIBUNAL
The appellant attended a hearing before the Tribunal on 10 December 2010.
On 22 December 2010, the Tribunal affirmed the delegate’s decision to refuse the appellant’s application for a protection visa.
The Tribunal made adverse credibility findings in respect of the appellant’s evidence.
The Tribunal observed that the appellant had failed to mention a relationship with another man in Bangladesh until the actual hearing. The Tribunal concluded that it did not find the appellant to be a credible, truthful and reliable witness. It said that his evidence showed a propensity to shift and tailor evidence in a manner which achieved his own purpose. The Tribunal came to the view that the appellant had “fabricated his claims and concocted evidence to achieve an immigration outcome”.
The Tribunal did not accept that the appellant was a homosexual nor that the appellant had been threatened by his family, and went on to find, therefore, that there was no real chance that he would be harmed by reason of his sexual orientation or any other Convention reason, if he was to return to Bangladesh.
Before the Tribunal, the appellant gave evidence of his activities since coming to Australia. The appellant said that he had formed a relationship of nearly a year’s duration with another man in Sydney, that the appellant regularly visited gay clubs on Oxford Street in Sydney and that he had placed a personal advertisement on a website which stated that he was gay.
As to the appellant’s activities in Australia, the Tribunal did not accept that he had formed a homosexual relationship as he claimed. However, it accepted that the appellant had visited gay clubs on Oxford Street and that he had taken photographs showing him present at those clubs. It, also, accepted that the appellant had placed a personal advertisement on a website. However, the Tribunal went on to find that the appellant’s conduct in Australia was for the purpose of strengthening his claim to be a refugee and not because he was gay. The Tribunal stated that the appellant had not satisfied it that his conduct in Australia was otherwise than for the purpose of strengthening his claim to be a refugee. The Tribunal, therefore, said that it disregarded this conduct.
FEDERAL MAGISTRATES COURT
On 3 May 2011, the appellant filed an amended application for judicial review in the Federal Magistrates Court. The following were the grounds of review relied on by the appellant:
1.The Refugee Review Tribunal failed to consider my fear of persecution under s 91R of the Migration Act.
Particulars:
A.The Tribunal failed to consider my fear of persecution under s 91R of the Migration Act that:
(i)The Tribunal failed to deal my gay activities in Australia. The Tribunal failed to ask me any material question that how I would have been adversely affected by the gay activities in Australia if I return to my home country in Bangladesh.
2.The Refugee Review Tribunal acted in excess of its jurisdiction.
A.The Refugee Review Tribunal acted in excess of its jurisdiction by making the following comment that:
(i)the Tribunal did not find the applicant to be a credible, truthful and reliable witness. His evidence shows a propensity to [shift] and tailor evidence in a manner which achieves his own purpose. The Tribunal is of view that the applicant has fabricated his claims and concocted evidence to achieve an immigration outcome.
3.The Refugee Review Tribunal did not consider my homosexuality in Australia accurately and genuinely.
A.The Refugee Review Tribunal did not consider my homosexuality in Australia accurately and genuinely that:
(i)I have visited gay clubs on Oxford Street, placed advertisement on a website, socialized myself with the gay community.
The Federal Magistrate rejected each of the grounds of review and dismissed the appellant’s application for judicial review.
THE APPEAL
The notice of appeal which was filed by the appellant did not purport to identify any error in the decision of the Federal Magistrate. The grounds of appeal simply repeated the grounds of review which comprised the appellant’s application for judicial review before the Federal Magistrate.
Ground 1
As to ground one, the Federal Magistrate found that the Tribunal had given consideration to the integers of the appellant’s claim.
Further, the Federal Magistrate observed that the Tribunal had had regard to the homosexual activities in which the appellant had engaged in Australia, and had rejected his claim that he had formed a homosexual relationship. However, said the Federal Magistrate, the Tribunal had accepted that the appellant had visited gay clubs on Oxford Street in Sydney, had taken photographs in these clubs and placed a personal advertisement on a website, but that the Tribunal had pursuant to s 91R(3) of the Migration Act 1958 (Cth) disregarded that conduct. The Federal Magistrate went on to observe that this finding was one which was open to the Tribunal and, that, in the circumstances, there was no need to consider what might happen to the appellant in Bangladesh because of this conduct. Further, the Federal Magistrate observed that the Tribunal had rejected the appellant’s claim that he was homosexual and, therefore, the question of whether the harm suffered or feared by the appellant, would amount to persecution or a fear of persecution under s 91R of the Migration Act, did not arise.
In my view, the Federal Magistrate did not err in making the findings which he did.
Ground 2
As to ground 2, the Federal Magistrate found that the making of credibility findings was a matter for the Tribunal. The Federal Magistrate, also, found that the Tribunal had put to the appellant its concerns as to his credibility, and that the Tribunal had not fallen into jurisdictional error.
In my view, the Federal Magistrate did not err in making these findings.
Ground 3
As to ground 3, the Federal Magistrate found that the Tribunal had considered the appellant’s evidence in relation to having visited gay clubs in Sydney, that he had formed a relationship with a gay man, and placed a personal advertisement on a website. However, the Federal Magistrate said that the Tribunal had rejected his claim to be a homosexual and disregarded his activities in Australia as to visiting the gay clubs and placing an advertisement on a website, on the basis of s 91R(3) of the Migration Act. The Federal Magistrate found that no jurisdictional error had been revealed in the manner in which the Tribunal had dealt with this issue.
The Federal Magistrate did not err in rejecting that ground of review by the appellant. I observe that the oral submissions the appellant made before this Court, were directed towards an impermissible merits review of the Tribunal’s decision.
It follows that the appeal is dismissed.
I certify that the preceding twenty‑two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 8 December 2011
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