SZNXJ v Minister for Immigration & Anor [2010] FMCA 89 (8 February 2010)

Last Updated: 16 February 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNXJ v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 89

MIGRATION – Review of RRT decision – applicant a citizen of India – protection claim based on applicant’s homosexuality – where Tribunal did not accept that the applicant was a homosexual – grounds for review essentially seeking merits review or based on misunderstanding of the duties of the Tribunal in seeking information at interview – duty to inquire – whether Tribunal failed to make inquiries of the situation of homosexuals in India following High Court of Dehli decision.

Migration Act 1958 (Cth), ss.424, 424A, 424B

Minister for Immigration v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123

Applicant:

SZNXJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2274 of 2009

Judgment of:

Raphael FM

Hearing date:

8 February 2010

Date of Last Submission:

8 February 2010

Delivered at:

Sydney

Delivered on:

8 February 2010

REPRESENTATION

For the Applicant:

In Person

Counsel for the First Respondent:

Mr J Smith

Solicitors for the First Respondent:

DLA Phillips Fox

ORDERS

(1) Application dismissed.
(2) Applicant to pay the First Respondent’s costs assessed in the sum of $5,800.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2274 of 2009

SZNXJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India. He arrived in Australia on 14 February 2009 and on 30 March 2009 he applied to the Department of Immigration and Citizenship for a protection (Class XA) visa. On 30 April 2009 a delegate of the Minister refused to grant a protection visa and on 25 May 2009 the applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision. The Tribunal invited the applicant to a hearing which he attended. Following the hearing on 20 July 2009 the Tribunal wrote the applicant a detailed letter pursuant to s.424A of the Migration Act 1958 (Cth) (the “Act”) [CB 159-164]. The applicant responded to the letter by providing the Tribunal with certain further documents. On 25 August 2009 the Tribunal determined to affirm the decision not to grant a protection visa and the decision was handed down on 26 August 2009.
2. The factual circumstances which provided the applicant with his claim to be a person to whom Australia owed protection obligations were that he was a Muslim from Kerala who, during his adolescence, had commenced a relationship with a close friend. That homosexual relationship continued causing him problems with his family. In the township in which he lived the applicant claimed that he and his partner had been the subject of threats and attacks in the shop which the applicant ran and that he had received threats, after attending a mosque, from the Imam. The pressure that this placed upon him caused him to leave India to look for work in Singapore and then in South Korea. He also told the Tribunal that he had moved around India a bit. In 2001 he went to Mumbai and stayed there and then went to Madras but he did not believe that these places were conducive to living in a homosexual relationship.
3. The Tribunal questioned the applicant about his statement and, in particular, about matters which would enable the Tribunal to come to a view as to whether he was in fact a homosexual. Questions were asked about the applicant’s relationship with his partner and the Tribunal noted inconsistencies in his evidence and, in particular, in his earlier evidence that he had come to Australia with his partner but he later admitted that he had not, even though he said he could not live without him. Questions were asked about the applicant’s homosexual activities in Australia, whether he went to clubs in Sydney and what steps he took to take part in homosexual community activities. The Tribunal found inconsistencies in the applicant’s responses to those questions.
4. The recent High Court of Delhi ruling that gay sex between consenting adults would no longer be unlawful had changed the climate in India. The Tribunal took this to mean that it can no longer be said that homosexuality was illegal in that country. The applicant’s response was that the government had not endorsed the ruling and, in any event, the situation amongst Muslims was a bit different because of the well-known prohibition against homosexuality in the Koran.
5. In the s.424A letter the Tribunal put to the applicant the inconsistencies which it had concerns about in his evidence and explained to him that this could lead it to come to a conclusion that he was not a credible witness. A substantial concern raised by the Tribunal was that the applicant claimed to be a shop owner selling bread when his application for a tourist visa indicated that he was an employee of Hewlett Packard as a systems engineer. The Tribunal also pointed out to the applicant that false documentation was a problem in India and expressed concern about some documents that he had provided purportedly confirming that he had been a member of a trade association in Kerala from which he had been dismissed because of his homosexual activity. The s.424A letter also referred to the Delhi High Court decision and some other independent country information.
6. In its findings and reasons which commence at [CB 206] the Tribunal concluded that it had concerns with the applicant’s veracity which led it to a decision that it could not be satisfied that the applicant was indeed a homosexual or that he had a relationship with his partner that had caused the problems that he had adumbrated. It came to that conclusion because of the inconsistencies in his evidence, because of the responses he gave to questions concerning his homosexuality and because it felt that some of the documents that he had presented to support his case were not acceptable as genuine. Not, in this case because it did not believe the applicant, but because of matters within the documents themselves that seem to coincide with concerns raised about false documentation in the independent country information.
7. The Tribunal also noted the inconsistency to which I have already referred between the tourist visa application and the story that the applicant had given to the Tribunal.
   • “After considering all the evidence and circumstances and having regard to all the incidents and claims reported by the applicant singularly and cumulatively the Tribunal is not satisfied that all the statutory elements of the grant of protection visa have been made out. The Tribunal does not accept that the applicant is, or is perceived to be, a homosexual. The Tribunal is not satisfied that the applicant suffered past persecution nor does the Tribunal accept that if the applicant returns to India now or in the reasonably foreseeable future there is a real chance that the applicant will be perceived to be a homosexual or that he will be persecuted for reasons of any real or imputed membership of any particular social group for the purposes of the Convention on the basis of his claimed homosexuality.”
8. On 17 September 2009 the applicant filed an application to this Court seeking review of the Tribunal’s decision. There were five grounds. The first was:
   
   • “(1) The Tribunal failed to comply with section 424 of the Migration Act.
     • Particulars:
     • (a) At the hearing the Tribunal invited the applicant to give information in addition to that which the Tribunal had obtained. The Tribunal asked questions which called for information which the applicant had not already provided to the Tribunal or which the Tribunal had not obtained in another way.
     • (b) The invitation was not given in accordance with section 424(3)(a) and 424B of the Migration Act:

(i) the invitation did not specify the way in which the additional information may be given;

(ii) the invitation did not specify the period within which the information was to be given.”

9. There are no particulars provided of this ground other than those which I have set out above. The ground appears to be based upon a misunderstanding of s.424 and 424B of the Act. Section 424(1) of the Act states:
   • “In conducting the review the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information the Tribunal must have regard to that information in making the decision on the review.”

This provision entitles the Tribunal to ask questions of the applicant at an interview. Where the Tribunal asks questions at an interview it is not required to put those questions into writing in the manner suggested by s.424(3)(a). That subsection only applies where an applicant is invited to give information outside the confines of the interview.

10. The information which the applicant was required to give outside the confines of the interview was information requested pursuant to the letter under s.424A and there is no suggestion that that subsection was not complied with. If the Tribunal was required to act in the manner suggested by the applicant’s ground 1, a hearing would be pointless because every question asked would need to be repeated.
11. The second ground of application is:
    • “The Tribunal had no jurisdiction to make the decision because its ‘reasonable satisfaction’ was not arrived in accordance with the requirements of the Migration Act.”
12. Mr Smith who appears on behalf of the Minister submits that ignoring the word “reasonable” this ground is formulated as a general description of what is often called a jurisdictional error. He says that, however, it does no more than that and it is not particularised so that one is unable to see what the jurisdictional error might be. I accept that submission, although, to my mind the ground looks more like a request for merits review, which of course this Court cannot grant.
13. The third ground is that:
    • “The Tribunal’s decision was unjust and was made without taking into account the full gravity of the applicant’s circumstances and the consequence of the claim.”

The difficulty the applicant has with this claim is that his ground for obtaining Australia’s protection was based upon his homosexuality but the Tribunal concluded that he was not a homosexual. So that whatever the situation might be for homosexuals in India, and there is a dispute about this between the Tribunal and the applicant, it did not apply to him.

14. The fourth ground states:
    • “The applicant satisfied the four key elements of the Convention definition. The Tribunal has not considered this aspect and has, therefore, committed factual and legal error.”

This is a clear plea for merits review as the Tribunal made a finding of fact which excluded the applicant from consideration to be a person to whom Australia owed protection obligations.

15. Finally, the applicant claimed:
    • “The Tribunal has failed to investigate the applicant’s claims especially the grounds of persecution in India; therefore, the Tribunal’s decision was affected by actual bias constituting jurisdictional error.”

It is now clear from the decision in the Minister for Immigration v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 [20] to [25] that the failure to inquire is not in itself a jurisdictional error. There may be cases in which the Tribunal by failing to make inquiries of matters that relate to a critical fact, the existence of which is easily ascertained, could constitute a failure to review but the applicant has not pointed to any such inquiry and, when asked at the hearing, he spoke about the High Court of Delhi decision, which the Tribunal discussed at length. The applicant told the Court that the decision had not been implemented by the government and could not be held to indicate any relaxation in previous government or general community views about homosexuals. This is not, to my mind, the type of inquiry that the Tribunal should have made. In fact, it put particulars of the decision to the applicant in the s.424A letter. If the applicant had the views that he now expresses about the decision, he could have responded. But he did not.

16. In these circumstances I am unable to see any grounds upon which the Tribunal did err in law in the manner in which it reached its decision. I dismiss the application. I order that the applicant pay the first respondent’s costs which I assess in the sum of $5,800.00.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 12 February 2010