SZMXZ v Minister for Immigration & Anor [2010] FMCA 629 (20 August 2010)

Last Updated: 24 August 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMXZ v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 629

MIGRATION – Review of the Refugee Review Tribunal decision – refusal of a Protection (Class XA) Visa – no reviewable error – application dismissed. The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZMXZ.

Migration Act 1958 (Cth), ss.56, 65, 91R(3), 415, 424, 427

Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 Minister for Immigration and Citizenship v SZKTI [2009] HCA 30 Minister for Immigration and Citizenship v SZLFX [2009] HCA 31 Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109 Minister for Immigration & Multicultural & Indigenous Affairs v Jia [2001] HCA 17 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982 SZKHD v Minister for Immigration & Citizenship [2008] FCA 112

Applicant:

SZMXZ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2307 of 2009

Judgment of:

Lloyd-Jones FM

Hearing date:

11 May 2010

Delivered at:

Sydney

Delivered on:

20 August 2010

REPRESENTATION

The Applicant:

Applicant appeared in person with the assistance of a Hindi interpreter

Solicitors for the Respondents:

Mr Johnson (DLA Philips Fox)

ORDERS

(1) The application filed on 21 September 2009 is dismissed.
(2) The Applicant is to pay the First Respondent’s costs and disbursements, of and incidental to this application fixed in the amount of $5,865.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2307 of 2009

SZMXZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision made by the Refugee Review Tribunal to refuse to grant the Applicant a Protection (Class XA) visa under s.65 of the Migration Act 1958 (Cth) (“the Act”).
2. The Applicant in these proceedings is a male who was born on 23 December 1989 in Delhi, India to a Hindu family. The Applicant arrived in Australia on 10 March 2008 and applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 21 April 2008.

The proceedings

3. The Applicant is a self-represented litigant and appeared with the assistance of a Hindi – English interpreter. The Applicant speaks, reads and writes Hindi and English and has completed 14 years of study.
4. In the Applicant’s Protection (Class XA) visa he claimed to fear persecution in relation to his membership of a particular social group. The claimed basis for alleged persecution was the Applicant’s homosexuality. The Applicant claims:
   1. He is homosexual and believes he was born “gay”. However due to family pressures in India, social prohibitions and religious obstacles, it was not possible for him to maintain his life in the way that he wanted. The Applicant believes his homosexuality had caused his otherwise highly respected father to be disrespected in the community.
   2. As a homosexual, he was the victim of discrimination and hostility from members of his own family, the community and authorities. They have told the Applicant that as a result of his homosexuality, he was disobeying the law, religion and social norms and that the Applicant would be severely punished if he continued to disobey these rules.
   100. The Applicant has suffered physical abuse from fellow students, his father and other members of the community as he became known as “gay” in the community.
   4. Following a report to the community leaders that the Applicant was seen engaging in sexual activities with his partner, the matter was discussed in a community forum and he was subsequently banned from attending the temple as well as any social and religious activities in the community. Following the forum meeting a group of younger community members threatened to kill the Applicant if he maintained his homosexual relationship.
   5. The Applicant’s partner, who remains in India, continues to be targeted by members of the community.
5. On 16 June 2008 a delegate of the Minister decided to refuse to grant the Applicant a visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention (“the Convention”). The delegate notified the Applicant of the decision and his rights of review by way of letter.
6. The Applicant applied to the Refugee Review Tribunal for review of the delegate’s decision on 14 July 2008. The Applicant gave oral evidence before the Refugee Review Tribunal on 4 September 2009 (“the first Tribunal”) and the Tribunal affirmed the decision of the delegate on 1 October 2008. This decision was subsequently set aside, by an order of this Court by the consent of the parties, for the reason of the first Tribunal’s failure to properly apply s.91R(3) of the Act.
7. The Application was remitted to the RRT and the Applicant was invited to attend a further hearing, and did so, on 7 May 2009. A reconstituted Tribunal (“the second Tribunal”) delivered its decision on 21 August 2009, once again affirming the decision of the delegate. It is this decision that forms the subject of the present review, being RRT case number 0901518 a decision of Shahya Roushan dated 21 August 2009.
8. A Court Book (“CB”) was prepared by the first Respondent’s solicitors and marked Exhibit “A”.
9. At the First Court Date directions hearing, the Applicant was granted leave to file an Amended Application. On 5 February 2010 the Applicant filed an Amended Application which is essentially in the same terms as the original application except for a minor change to ground three. The Amended Application contains the following grounds:
   • The Tribunal failed to accord procedural fairness:
     • Particulars:
     • (a) The Tribunal erred in law amounting to jurisdictional error in finding that the Applicant is not homosexual and was not involved in homosexual relationships and/or activity in India and that he did not face harm as claimed on this basis in India and having disregarded the conduct engaged in by the Applicant in Australia, there is no basis on which the Tribunal can be satisfied that the Applicant is homosexual and there is no real chance that he will be harmed for the reason of his sexual orientation or any other Convention reason. This is contrary to the Tribunal’s own findings that accepting the Applicant’s claims that since arriving in Australia he has attended meetings at ACON and Trikone Australia, and also accepted he is a member of several organisations in the gay community and that he has participated in a few activities in the gay community and further accepted that he has placed his name on several gay dating websites and that he has consulted a psychologist and told the psychologist that he is gay;
     • (b) The Tribunal failed to find that the Applicant faced and continued to face significant discrimination and criminal sanctions in India despite the several documents produced to the Tribunal which clearly establish that there are very onerous criminal sanctions against persons involved in performing any form of consensual adult homosexual activity in India is an error in law amounting to jurisdictional error;
     • (c) The Tribunal failed to perform the duty imposed on it by the Migration Act (section 424(1)).
   • 2. The Tribunal failed to exercise the power conferred on the Tribunal under s.427(1)(d) of the Migration Act.
     • Particulars:
     • The Tribunal was put on noticed by his Solicitor and Migration Agent David Bitel annexing the Psychological Assessment Report of Psychologist Dr John Jacmon OAM dated 20 August 2008 that the Applicant was suffering from anxiety and depression and it was unfair for the Tribunal to put the obligation on the Applicant at the hearing to identify all of his claims, without exercising the power conferred on the Tribunal under s.427(1)(d) of the Migration Act.
   • 3. The Applicant claims that the Tribunal was affected by apprehended bias as evidence from the comments of the Tribunal could not regard it as otherwise. It is also obvious that the Tribunal had taken a defensive stand and line of approach in order to affirm its previous decision made on 1 October 2008 which was set aside by consent by this court in application no. SYG2977/2008.
   • 4. The Tribunal member failed to consider the comments by Lee J, in WAHP v from Karanakaran v Secretary for the Home Department [2000] 3ALL ER 449 at 469 – 470 where Brooke L’J’ with whom Robert Walker L.J Concurred:
     • “For the reasons which more fully explained in the Australian cases, when considering whether there is a [real risk] of persecution for a convention reason if any asylum is returned, it would be quite wrong to exclude matters totally from consideration in the balancing process simply because the decision maker believes, on what may sometimes be somewhat fragile evidence, that they probably did not occur.

The Tribunal decision

10. The Applicant, through his representatives, provided a number of submissions supporting the application. To the originally constituted Tribunal written submissions were provided, dated 6 and 27 August 2008, which contained a large volume of country information in relation to the situation of homosexuals in India and the problems they face. On 25 August 2008 the first Tribunal received a psychological assessment from Dr John Jacmon diagnosing the Applicant as suffering from anxiety and major depressive disorder. On 4 September 2008 his representatives submitted a statutory declaration from the Applicant together with a letter from Alan Maurice, chairman of Trikone Australasia dated 2 September 2008 and a letter from ACON dated 28 August 2008. These letters refer to his membership of those respective groups.
11. The Applicant appeared before the first Tribunal on 4 September 2008 to give evidence and present arguments. The second constituted Tribunal indicated that it had listened to the audio recording of the first hearing and indicated that it accepts a summary of the first Tribunal as an accurate reflection of the Applicant’s oral claims at that hearing.
12. Following the remittal of the Applicant’s case it appeared before the second constituted Tribunal on 17 May 2009 to provide further evidence and argument. The second hearing was conducted with the assistance of an interpreter in the Hindi and English languages. He advised the Tribunal that he was no longer represented by Mr Bitel and indicated that he had received assistance in preparing his new application by a friend who was not a registered migration agent.
13. The second constituted Tribunal found that the Applicant was not a truthful or reliable witness and did not accept the claims relating to his past activities and harm in India. It found that he had not engaged in any homosexual activity in India. This finding was based on the Applicant’s evidence which was unforthcoming and inconsistent. The Tribunal considered the psychological assessment but was not satisfied that the report explained with particular inconsistencies and memory problems in the Applicant’s evidence.
14. The Tribunal also had regard to the Applicant’s conduct in Australia and found that the Applicant was not, in fact, homosexual and did not face persecution for that reason in the future. In coming to that view the Tribunal considered the Applicant’s involvement in the gay community in Australia and his claimed homosexual relationship with his flatmate. It found the Applicant’s claims were not credible in a number of respects concluding that his only involvement had been to become a member of ACON and Trikone Australasia. The Tribunal concluded that in the circumstances it was not satisfied that the Applicant had engaged in misconduct otherwise than for the purpose of strengthening his refugee claims. Accordingly it disregarded the conduct under s.91R(3).

Consideration

15. At the First Court Date directions hearing the Applicant indicated that he wished to participate in the RRT Legal Advice Scheme (NSW) and his matter was referred to a panel member for advice. The Applicant was granted leave to file an Amended Application after he had received that advice and he availed himself of that opportunity. As noted above the Amended Application was in essentially the same form as the original application through some minor amendments to ground three. The Applicant was also requested to file written submissions prior to the hearing but this was not complied with. When the Applicant was invited to make oral submissions, he indicated he had no submissions to make nor did he wish to make any submissions in reply to the written and oral submissions of the solicitor representing the Minister.

Ground one

16. This is an allegation of a breach of procedural fairness. The particulars allege that the second Tribunal made different findings about his involvement in the Australian gay community from the first Tribunal decision. The Applicant claims that the second Tribunal failed to accept evidence of criminal penalties for homosexual activities in India. The third particular claims a breach of s.424 of the Act.
17. Particulars a) and b) take issue with the Tribunal’s factual findings that the Applicant was not a homosexual and would not face persecution on the basis of his sexual orientation if he was to return to India. The Applicant asserts that the Tribunal’s findings were inconsistent with his evidence. In the Tribunal decision particularly at paragraphs [110], [111] and [112] (CB 462-463) the Tribunal refers directly to the correspondence tendered by him and clearly sets out its findings. The finding of facts including the making of findings of credibility is uniquely within the jurisdiction of the Tribunal. There is no error of law, let alone a jurisdictional error in the Tribunal making a well-founded finding of fact: Abebe v Commowealth [1999] HCA 14; (1999) 197 CLR 510 at [137]. The Tribunal undertook its task and proceeded to make findings on the evidence placed before it. There is no error apparent in the Tribunal’s reasons. The Tribunal accepted country information which it had available to it and that is a matter for the Tribunal. Essentially, all the claims of the Applicant are attacks on the Tribunal’s findings of fact, which are not judicially reviewable.
18. However, particular c) does not proceed to describe what alleged information that the Tribunal should have proceeded to obtain. Particular c) alleges a s.424(1) error the section requires:
    • (1) In conducting the review, the Tribunal must get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to tat information in making the decision on review.
19. In the decision Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109 per Stone, Jacobson and Jagot JJ at [17] their Honours explained the operation of s.424(1) as decided by the High Court in Minister for Immigration and Citizenship v SZKTI [2009] HCA 30 and Minister for Immigration and Citizenship v SZLFX [2009] HCA 31. Their Honours describe the operation of the section as follows:
    • Section 424(1) puts into statutory form a power to obtain information by asking questions. This is an obvious power to give to an inquisitorial body. Subject to not interfering with the liberty of another, making an enquiry with no power to compel an answer is not an unlawful activity. No adverse consequences flow against the applicant for review if the applicant, or any other person questioned, fails to co-operate or to give the information sought. By comparison, the specific power in s 424(2) governed by ss 424(3) and 424B, to give an invitation in writing to provide additional information, results in the adverse consequence that an applicant who fails to respond to an invitation in writing is deprived of the entitlement to a hearing. These critical distinctions emphasise the fact that the powers in ss 424(1) and 424(2) are, in law, significantly dissimilar.
    • The general power to “get” information and the specific power to “invite” in writing the giving of additional information are capable of co-existing without the latter being repugnant to the former. Further, an oral request for information would be authorised not only by s 424(1) of the Act but also by s 56(1), by reason of the operation of s 415 which has been explained above.
20. In concluding this analysis of s.424, the High Court said at [48]:
    • Given all the considerations described above, the phrase “[w]ithout limiting subsection (1)”, as it occurs in s 424(2), means that the procedural restrictions on the specific power to issue an invitation to give additional information do not qualify the RRT’s general power in s 424(1) to “get any information that it considers relevant”.
21. In the absence of clearer particulars with no oral or written submissions, it is not apparent what the Applicant is claiming the Tribunal failed to do. However, in the overall context of the Applicant’s general complaint, it would appear that the Applicant is suggesting that the Tribunal should have made more detailed enquiries of both Trikone Australasia and ACON, in respect of the Applicant’s involvement in those organisations, than is contained in the letters that were provided by them to the Tribunal. It would appear that the Applicant is suggesting that the Tribunal extend its investigations to those organisations, to verify the Applicant’s claims. Clearly, this is not the intention of this provision of the Act and the Tribunal is not in breach of this provision. Consequently, this ground cannot be sustained and should be dismissed.

Ground two

22. This ground alleges that the Tribunal failed to exercise its powers pursuant to s.427(1)(d) of the Act. The particulars allege that having received Dr Jacmon’s psychological assessment about the applicant’s anxiety and depression it was unfair of the Tribunal to require the Applicant to identify all his claims without exercising the power in s.427(1)(d).
23. The Applicant’s complaint is that the Tribunal should have exercised its power to have the Department arrange for the making of investigations, or medical examinations and to have a report provided to that examination. The power under s.427(1)(d) is permissive and whether it is exercised was a matter for the Tribunal. To the extent that the compliant may be understood as being that the Tribunal could have made enquiries about the Applicant’s documents, there is no positive duty to investigate claims imposed upon the Tribunal: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 per Gummow and Hayne JJ (Gleeson CJ agreeing) at [43]. Their Honours made clear in that decision that whilst the Tribunal has the power to obtain further information, it does not have a duty to investigate an Applicant’s claims. The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire: Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [25].
24. The Tribunal considered the psychologist’s report but determined that the report “did not adequately explain to its satisfaction the nature of the inconsistencies in his evidence relating to his movements” (CB 462 at [105]). Mr Johnson appearing for the Minister, in his written submissions, submits that the Tribunal does not appear to have cavilled with the opinions stated by the psychologist in his report, but was of the view that whilst persons who suffer from anxiety and depression may be impeded in their ability to recall precise dates or details, the report did not specifically, or in the Tribunal’s mind, adequately address the Applicant’s situation. The Tribunal gave due consideration to the psychologist report and did not fail to take the report into account in a meaningful sense. The circumstances in this matter can be distinguished from those in SZKHD v Minister for Immigration & Citizenship [2008] FCA 112 at [27]. Consequently, this ground cannot be sustained and should be dismissed.

Ground three

25. This ground alleges a reasonable apprehension of bias on the basis that the Tribunal ignored the evidence. This allegation has been made in the absence of any supporting evidence such as the transcript of the Tribunal hearing, to demonstrate that the Tribunal had taken a “defensive” standard in conducting the review.
26. Apprehended bias exists where a fair minded lay observer, who was properly informed as to the nature of the proceedings, the matter in issue and the conduct of the Tribunal, would not apprehend that the Tribunal member might not bring an impartial mind to the resolution of the question to be decided: Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982 at [27]; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at [293]-[294].
27. A determination as to whether an administrative decision is affected by apprehended bias should be informed by the following considerations:
    1. Natural justice does not require the Tribunal member’s mind to be absent of any pre-disposition or inclination for or against, an argument or conclusion. All that is required is that the Tribunal member is open to persuasion: Minister for Immigration & Multicultural & Indigenous Affairs v Jia [2001] HCA 17 at [72] and [86].
    2. In the context of an administrative decision maker, is not attended with the strictures that apply in the case of judicial pre-judgment: Jia (supra) at [179]-[187] and [244]-[245]; NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 per Allsop J (Moore and Tamberlin JJ agreeing) at [19].
28. Where credibility is an issue, the Tribunal member will necessarily have to test the evidence presented, often vigorously; Ex parte H (supra) at [30]. The requirements of procedural fairness will often require the Applicant to be plainly confronted with maters which bear adversely on their credit or which bring their accounts into question. Further, the decision maker’s assessment of the Applicant’s credit will depend on the demeanour of the witness and the manner in which they give the evidence: Ex parte H (supra) at [34].
29. I accept the written submissions of Mr Johnson that there was nothing unreasonable about the way in which the Tribunal dealt with the Applicant’s documents, and certainly not to the extent that the hypothetical fair minded lay observer, properly informed about the nature of the proceedings might reasonably apprehend that the Tribunal member might not have brought an impartial mind to the question to be decided. This ground cannot be sustained and should be dismissed.

Ground four

30. This ground appears to allege a failure by the Tribunal to properly apply the tests for whether the Applicant was a refugee. In the Tribunal decision at paragraph [118] it is clear that the Tribunal applied the correct test and was forthright in its conclusion that there was no basis upon which the Tribunal could be satisfied that the Applicant was a homosexual, which was the basis of the Applicant’s claim to fear persecution. The Tribunal sets out the following reasons:
    • [118] Having found the Applicant was not involved in homosexual relationships and/or activities in India and that he did not face harm as claimed on this basis in India and having disregarded the conduct engaged in by the Applicant in Australia, there is no basis on which the Tribunal can be satisfied the Applicant is homosexual. The Tribunal finds that the Applicant is not homosexual and there is no real chance that he will be harmed for the reason of his own sexual orientation or any other convention reason. The Tribunal is not satisfied that the Applicant’s fear of persecution is well founded. He is not a refugee (CB 465).
31. The definition of refugee is set out in the decision at paragraphs [8]-[17] inclusive. This is followed by details of the Applicant’s claim, a review of the evidence given by the Applicant to the first tribunal, various supporting documentation provided by his then migration agent and finally the details of the hearing conducted by the second Tribunal with the Applicant, aided by a Hindu interpreter. At the completion of this hearing, the Tribunal, pursuant to s.424A of the Act, wrote to the Applicant and invited him to comment and respond to information that the Tribunal considered was relevant to the reason, or part of the reason, for affirming the delegate’s decision under review.
32. The Applicant was granted an extension of time in which to respond to this initial request, before replying on 13 July 2009. The Applicant’s response addressed the four questions put to him by the Tribunal and forwarded a further three letters in support. Two of those letters were from ACON while the other was from Trikone Australasia Incorporated. With this material before the Tribunal it then proceeded in its decision making process, based on findings of fact, that is within the jurisdiction of the Tribunal. Throughout his contentions the Applicant attacks the Tribunal’s facts, as being wrong. It is not for this Court to engage in a merits review. The Full Court of the Federal Court considered this NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] where the Court stated:
    • The findings of facts, including the making of findings of credibility, was uniquely within the jurisdiction of the Tribunal and not within the jurisdiction of the Court. It would have been a contravention of the Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 for the court to engage in a merits review. Furthermore, there is no error in law let alone jurisdictional error in law that allows jurisdictional error in the Tribunal making a wrong finding of fact: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [137].
33. This ground cannot be sustained and should be dismissed.

Conclusion

34. The Applicant in these proceedings is a self represented litigant who appeared with the assistance of a Hindi – English interpreter. The Applicant has taken the opportunity to file an Amended Application after receiving advice by a member of the RRT panel advice scheme. In the earlier preparation of material placed before the first Tribunal hearing in this matter, the Applicant was assisted by a registered migration agent. With this agent’s assistance, the Applicant has filed a range of supporting material with his application. The Applicant did not file any written submissions in respect of his appearance in Court at this hearing and indicated that he would rely upon the material already filed. None of the grounds of review pleaded by the Applicant give rise to jurisdictional error.
35. I have independently reviewed the contents of the Court Book and in particular the Tribunal decision and it is not apparent from the face of those documents that there is any jurisdictional error contained in the reasons of the Tribunal. Nor has the representatives of the Minister acting as model litigants brought any other issue to the attention of the Court, other than the pleaded grounds. Consequently, the application should be dismissed with costs.

I certify that the preceding 37Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !thirty-seventhirty-five (35) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate:

Date: 20 August 2010