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SZMXJ v Minister for Immigration & Anor [2009] FMCA 57 (27 January 2009)

Last Updated: 11 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMXJ v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Visa – protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of Pakistan claiming fear of persecution for reason of his belief and his practice of homosexuality – no reviewable error.


Re Minister for Immigration & Multicultural Affairs; ex parte AB (2000) 177 ALR 225 referred to
Galea v Galea (1990) 19 NSWLR 263 cited

Applicant:
SZMXJ

First Respondent:
MINISTER FOR IMMIGRATION

Second Respondent:
REFUGEE REVIEW TRIBUNAL

File Number:
SYG 2870 of 2008

Judgment of:
Scarlett FM

Hearing date:
27 January 2009

Date of Last Submission:
27 January 2009

Delivered at:
Sydney

Delivered on:
27 January 2009

REPRESENTATION

Solicitors for the Applicant:
In Person

Counsel for the Respondents:
Mr Reynolds

Solicitors for the Respondents:
Clayton Utz

ORDERS

(1) The Application is dismissed.
(2) The Applicant is to pay the First Respondent’s costs fixed in the sum of $4000.00.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2870 of 2008

SZMXJ

Applicant


And


MINISTER FOR IMMMIGRATION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

(Revised from Transcript)

  1. The applicant is a citizen of Pakistan. He has applied for a protection visa in Australia, on the basis that he is a member of a particular social group. He claims that he is a homosexual and is engaged in a relationship with his partner. This relationship commenced when they lived in Pakistan and they have now both come to Australia. He asks the Court to review a decision of the Refugee Review Tribunal that affirmed the decision of a delegate of the Minister not to grant him a protection (Class XA) visa.
  2. In his application, which he filed on 5 November 2008, he asks the Court to issue writs of certiorari and mandamus. The applicant, or the person who helped him prepare his application, is unaware of the effect of those particular writs, because he asks for a certiorari to order the Tribunal to hear his application again and asks for a writ of mandamus to require the Minister and his delegate to abstain from enforcing the decision until the finalisation of this application. However, that is of no moment because, if the Court is satisfied that the Tribunal decision is affected by jurisdictional error, then, of course, it will make the appropriate orders. However, as has been explained to the applicant, the Court must first be satisfied that the decision is affected by jurisdictional error.
  3. In his application the applicant sets out three grounds in which he claims that the Tribunal fell into jurisdictional error. Those grounds are as follows:
  4. In order to understand the nature of the applicant's claims, it is necessary to consider the fact that he arrived in Australia on this occasion on 30 October 2007. On 27 November in that year, he applied for a Protection (Class XA) visa. He accompanied his application with a six-page typed statement, in English, in which he sets out that he is seeking protection from Australia on the basis of his affiliation with a particular social group which is subject to a serious discrimination in his country of origin, being Pakistan. He sets out that he was born in a very conservative Muslim family and has never married, although, when he applied for a visitor's visa with the Australian High Commission in Beijing, he said that his agent declared that he was married with two children. He sets out that he fell in love with his now partner in about 2000 and that they had continuous sexual relations from March to July 2002, when he left Pakistan. He went to Japan in April 2004, stayed there until April 2006. He said that he had relationship with some male friends in Japan, including with one gentleman, who, unfortunately, took his own life in March 2006.
  5. The applicant claimed that he and his partner formed a friendship with a young boy back in Pakistan and were subject to threats and violence from the young boy's family, and, in fact, subjected to violence from the police. The applicant set out in his statement that his friend was sent to China by his family in June 2006 and in October of that year the applicant said that he went, and in May 2007 he visited Australia, stayed for a couple of months and returned to China. He and his partner applied for visas in September 2007 and came to Australia, where he applied for a protection visa. His partner has also applied for a protection visa on the same grounds.
  6. A delegate of the Minister refused the application for a protection visa on 25 February 2008. The delegate expressed some doubt about the applicant's reasons for leaving Pakistan and the harm that he claimed to fear on return, and set out those claims and found that applicant's actions were inconsistent with a person leaving his home country because he feared serious harm, and took the view that the applicant did not hold a subjective fear of persecution in Pakistan for Convention reasons.

Application to the Refugee Review Tribunal

  1. After the applicant had his application for a visa refused, he applied to the Refugee Review Tribunal for review of that decision. The Tribunal received his application on 11 March 2008. The applicant disclosed that he had a lawyer acting for him and the lawyer's address was used as the address for correspondence. The Tribunal wrote to the applicant, care of the lawyer, on 12 May 2008, inviting him to appear at a hearing on 16 June. The applicant attended the hearing but had difficulty with the accent of the particular interpreter and the Tribunal made the decision to adjourn the hearing and obtain the services of another interpreter. Accordingly, the hearing was adjourned until 21 July 2008. The applicant attended the hearing and gave evidence with the interpreter. He also brought his partner along as a witness, and the witness gave evidence.
  2. After the hearing the Tribunal wrote to the applicant, care of his lawyers, on 7 August 2008. The letter was headed, "Invitation to comment on, or respond to, information in writing," and was clearly intended to comply with the requirements of s.424A of the Migration Act. The letter set out a number of inconsistencies in the applicant's claims, including claims that he made in his statement to the department that he did not make at the hearing, and also referred to certain country information. The letter set out why the Tribunal considered that information to be relevant and invited the applicant to provide written comments, or a response, by 21 August 2008.
  3. The applicant did provide a response in a statement dated 20 August 2008, and a copy of that document is set out in the Court book, at pages 202 through to 206. He also provided some other documents, including a document headed "Unmarried Certificate", and a report from the Transcultural Mental Health Centre, signed by a Dr Suman Tyagi. There was also a report from the Australian Red Cross, indicating that the Red Cross was providing assistance to the applicant, as he did not have any other income.
  4. The Tribunal signed its decision on 23 September 2008 and handed that decision down on 7 October 2008. The Tribunal affirmed the decision not to grant the application a protection (Class XA) visa. In the Tribunal decision record, the Tribunal set out the applicant's claims and evidence; it also referred to the delegate's decision and the various documents submitted to the Tribunal. The Tribunal set out a summary of the applicant's evidence to the Tribunal and a summary of the evidence of the applicant's witness to the Tribunal. The Tribunal, in its decision record, referred to its s.424A letter of 7 August 2008, which it quoted in full, and referred to the applicant's response to that document and the various additional documents that he provided. It also referred to certain country information, under the rather misleading heading, "County Information"[1]. The country information related to information from the Immigration and Refugee Board of Canada, about the situation for homosexuals in Pakistan.

The Tribunal’s Findings and Reasons

  1. The Tribunal's findings and reasons are set out in the Court Book, at pages 259 to 269. The Tribunal accepted that the applicant is a citizen of Pakistan, based on his Pakistani passport. The Tribunal noted the applicant's claims to be a homosexual and noted his claim that he discovered that he was a homosexual after he met his partner, at the end of December 1999 or the beginning of January 2000. The Tribunal set out a summary of the applicant's claims and accepted country information that homosexual acts are illegal in Pakistan and that, under that country's Sharia laws, homosexual acts are punishable by corporal punishment, imprisonment or death. The Tribunal accepted that homosexuals in Pakistan live in constant fear of being outed, and that it was rare for homosexual couples to live together, and that many gay men ended up marrying women to avoid scandalising their families.
  2. The Tribunal did not find the applicant to be a truthful or credible witness. It set out its reasons why, saying:
  3. The Tribunal then set out a number of what it described as inconsistencies in his affidavit at pages 260 through to 266. The Tribunal referred to the applicant's documentary evidence submitted in support of his claim. The Tribunal noted that the applicant submitted a document from the Raza Surgical Hospital, stating that he had been admitted to the hospital on 2 March 2000 and discharged on 15 March with a wound in the arm. The Tribunal noted that the document does not indicate why the applicant was wounded in the arm. The Tribunal referred to the unmarried certificate that the applicant submitted but placed no weight on it. The Tribunal had this to say about the applicant's credibility:
  4. The Tribunal then set other parts of the applicant's basic claim and specifically rejected them.
  5. The Tribunal noted that the applicant has submitted a psychologist's report but commented that the report did not indicate that the applicant's symptoms of social and cultural isolation and post-traumatic stress disorder would have affected the way that he gave evidence, and did not state that the applicant's symptoms had affected his memory. The Tribunal noted the applicant's claims about his activities in Australia, including becoming a member of a club in Oxford Street, Sydney, called The Colombian Club, to have attended the Mardi Gras and to have been involved in planning meetings for the Mardi Gras in 2008 and in 2009. The Tribunal, however, did not accept the applicant's evidence about these activities in Australia, saying:
  6. As the Tribunal did not accept the applicant's claim to be a homosexual, the Tribunal did not accept that he had a real chance of persecution arising from his alleged membership of a particular social group, or any other Convention reason, if he should return to Pakistan, and affirmed the decision not to grant him a protection (Class XA) visa.

Application for Judicial Review

  1. The applicant has taken issue with the Tribunal decision and has set out three grounds. The first ground, in effect, claims that the Tribunal failed to take into account the medical evidence that he had provided, or, at least, has failed to give it proper weight. The particulars of that claim refer to the report from the Transcultural Mental Health Care certificate that the applicant provided. That document is referred to in para.46 of the Tribunal decision, at Court book, page 248, and at para.115 of the Tribunal decision, at page 267 of the Court book. The applicant claims in his second ground that the Tribunal failed to take account of evidence that he provided, being the report from the Raza Surgical Hospital in Pakistan, which he said confirmed that he was attacked and hospitalised, and his Mardi Gras membership cards and photographs taken of the Mardi Gras Parade in Sydney. Third, he claims what appears to be apprehended bias, in that the Tribunal member, he says, shouted, shook her head in anger at the applicant and the witness on several instances during the interview, which made them confused and puzzled, and, as a result, could not answer the questions promptly.
  2. The applicant has not filed a written outline of submissions but he has attended Court today and made oral submissions, with the assistance of an experienced interpreter in the Punjabi language. The applicant raised with the Court the fact that his partner's case - his partner being the man who gave evidence in his case - has, he said, come to Court, and his application was remitted to the Department of Immigration & Citizenship, not to the Tribunal. He said that this happened two months ago. He told the Court that his partner had a hearing on level 5 in this Court complex; presumably, before another Federal Magistrate.
  3. Whatever the circumstances of his partner's case are, I have made it clear to the applicant that the outcome of his partner's case does not have any effect on this case, before this Court. The applicant and his partner had separate applications. The applicant's partner was a witness in the applicant's case before the Refugee Review Tribunal. The Court must decide the applicant's case on its merits; it particularly must decide whether the Tribunal, in making the decision that it did, fell into jurisdictional error for any of the reasons given by the applicant, or for any other reason that may be apparent to the Court. Whilst the applicant's partner appears to have been successful before this Court on another occasion, the Court cannot give that success any weight in dealing with the applicant's case today.
  4. The applicant has pointed out that he has not obtained permission to work and is somewhat impecunious, which has not assisted him in the preparation of his case. He told the Court that the Tribunal member had been rude and had shouted and dealt with him and his partner rudely at the hearing. He said that as a result he was frightened to answer the questions that were asked. He also told the Court that the hearing before the Tribunal lasted for some five to six hours, which is a lengthy hearing, and that it went from 9 am to 4 pm, approximately. Mr Reynolds of counsel, who appeared for the Minister, confirmed that that appeared to be the case. The applicant also complained that the Tribunal had not accepted the fact that he had left Pakistan and gone to Japan for a significant period of time. He basically complained that the Tribunal had not accepted his evidence.
  5. I have also read the comprehensive outline of submissions filed on behalf of the Minister, prepared by Mr Reynolds of counsel. In those submissions Mr Reynolds surveys the history of the matter, the Tribunal decision, the applicant's grounds and sets out the reasons why, in his view, the Court should not grant the application.
  6. As to the first ground, of the Tribunal failing to take into consideration, or give weight to, the psychological report, Mr Reynolds submitted that that ground is without merit because the Tribunal was aware of the existence and the contents of the report and did consider the report. The fact that the Tribunal chose not to give weight to the report does not of itself reveal jurisdictional error.
  7. As to the second ground, where the applicant complains about the Tribunal failing to take into account hospital reports from Pakistan and Mardi Gras membership cards and photographs, Mr Reynolds submitted that this ground should be rejected also, as the Tribunal did take the report into account but gave it little weight, because the report did not indicate why the applicant suffered the wound that the report said that he had. As for the Mardi Gras membership cards and photographs, Mr Reynolds submitted that the Tribunal was not satisfied that the applicant engaged in conduct in Australia otherwise than for the purpose of strengthening his claims to be a refugee, and was therefore obliged to disregard that evidence under subsection 91R(3) of the Migration Act.
  8. As to the third ground relating to the complaints about the behaviour of the Tribunal member, Mr Reynolds submitted that the applicant did not provide any evidence of that behaviour and, even if there was evidence that the Tribunal had engaged in that conduct, that conduct did not necessarily lead to a finding of jurisdictional error. He submitted that, while sustained ill-temper can give rise to a reasonable apprehension of bias, momentary outbursts and misunderstandings in the often stressful world of adjudication must be tolerated, so long as they pass and do not affect the functions of the adjudicator. He referred the Court to Re Minister for Immigration & Multicultural Affairs; ex parte AB[5] per Kirby J at 230, citing Galea v Galea[6] at 279-80 and 283:
  9. Plus, he submitted that ground 3 should also be dismissed.
  10. I deal with the applicant's three claims of jurisdictional error. First of all, the applicant complains that the Tribunal either ignored or failed to give proper weight to the psychologist's report from Dr Suman Tyagi.
  11. The Tribunal was aware of that report and stated, at para.46 of the decision:
  12. Clearly, the Tribunal did consider the report and in fact, in its findings and reasons, referred to it at para.115. However, the Tribunal said:
  13. I am satisfied that the Tribunal did consider the psychologist's report. However, whilst the Tribunal assessed the contents of the report, it gave little, or no, weight to, at least, certain parts of the report, but that is entirely within the province of the Tribunal. It is the Tribunal, the administrative decision-maker, that decides the factual matters. In my view, it is open to the Tribunal to form that view of the psychologist's report insofar as it affected the applicant's case. There is no jurisdictional error in the Tribunal deciding not to give weight to a particular document. The applicant's ground 1 fails.
  14. The applicant's second ground complains that the Tribunal fell into error by failing to take into account the hospital report from Pakistan and the Mardi Gras documents that the applicant provided.
  15. The Tribunal did consider the hospital report from Pakistan. At para.111, on page 266 of the Court book, the Tribunal said:
  16. Again, the Tribunal considered the document but gave it little weight. It was open to the Tribunal to do so and, in my view, no jurisdictional is demonstrated.
  17. As to the Mardi Gras membership cards and photographs, the Tribunal found that the applicant had done such things, including joining The Colombian Club, attending the Mardi Gras, in order to strengthen his claim that he was a homosexual and in a homosexual relationship, and the applicant did not satisfy the Tribunal that he engaged in that conduct otherwise than for that purpose. Accordingly, the Tribunal was obliged to disregard that conduct under subsection 91R(3) of the Migration Act. Again, the Tribunal has not fallen into jurisdictional error and the applicant's ground 2 has not been made out.
  18. The third ground relates to the applicant's complaint about the behaviour of the Tribunal member. It may or may not be the case that, at a hearing, the behaviour of the Tribunal member, if inappropriate, may lead to an apprehension of bias. Statements can be made, insensitive comments can be made and it is not unknown for administrative decision-makers to act with rudeness towards an applicant. In certain circumstances that may lead to an apprehension of bias; in other circumstances it may not. However, in this case there is just no evidence. There is no affidavit, either from the applicant or from his partner. There is no transcript of the proceedings. There is nothing more than an assertion by the applicant that that is the way the Tribunal member behaved and that, as a result, he and his witness were unable to answer the Tribunal's questions promptly, and the applicant has told the Court today that he was afraid to answer questions. The fact is that there is no evidence to establish the alleged behaviour of the Tribunal member, so that matter just cannot be taken any further. Ground 3 must therefore fail.
  19. The applicant also complained at the hearing today that the Tribunal had not accepted that he had gone to Japan. That, in fact, is just not the case. At para.112 of the Tribunal decision, the Tribunal said:
  20. That claim by the applicant, therefore, has not been made out, because the Tribunal did accept that he had been to Japan and lived and worked there.
  21. I am mindful of the fact that the applicant is not legally represented today. It has often been said that it is not a privilege to be without legal representation in Court, it is a misfortune. I have read through the Tribunal decision and the supporting documents, independently of the applicant's claims and of the respondent's submissions, in order to ascertain whether an arguable case may be made for jurisdictional error. I am unable to discern any arguable case for jurisdictional error. In the absence of jurisdictional error, the Tribunal decision is a privative clause decision, as defined by subsection 474(2) of the Migration Act. Accordingly, under subsection 474(1), relief in the nature of certiorari, or mandamus, or prohibition, will not lie. It follows that the application must be dismissed.
  22. There is an application for costs on behalf of the first respondent Minister. The applicant has been unsuccessful in his claim and it is usually the practice that an order for costs is made in favour of the successful party. The amount sought is $4000, which is within the scale prescribed by the Federal Magistrates Court Rules. That figure, obviously, is inclusive of counsel's fees. The applicant says that he does not have that money, and there is certainly evidence in the Court book to indicate that he has no income, apart from money that he is receiving through the good graces of the Australian Red Cross. That is not of itself a reason not to make an order for costs but, quite clearly, the applicant would not be able to pay that amount within the next 28 days. It is a matter to be taken into account in deciding whether the applicant should be given time to pay. I propose to allow four months to pay.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Scarlett FM


Associate: A. Coutman


Date: 3 February 2009

[1] See Court Book at page 258
[2] See Court Book at page 266
[3] See Court Book at page 266
[4] See Court Book at page 268
[5] (2000) 177 ALR 225
[6] (1990) 19 NSWLR 263
[7] See Court Book at page 248
[8] See Court Book at page 267
[9] See Court Book at page 266
[10] See Court Book at page 266

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