SZQAK & Anor v Minister for Immigration & Anor [2011] FMCA 539 (4 July 2011)

Last Updated: 18 July 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQAK & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 539

MIGRATION – RRT decision – Indian wife claiming fear of persecution as lesbian – disbelieved by Tribunal – no jurisdictional error identified – application dismissed.

Migration Act 1958 (Cth), ss.424A(1), 425

SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609

First Applicant:

SZQAK

Second Applicant:

SZQAL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 464 of 2011

Judgment of:

Smith FM

Hearing date:

4 July 2011

Delivered at:

Sydney

Delivered on:

4 July 2011

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondents:

Mr M Alderton

Solicitors for the Respondents:

Sparke Helmore

ORDERS

(1) The application is dismissed.
(2) The applicants must pay the first respondent’s costs in the sum of $4,000.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 464 of 2011

SZQAK

First Applicant

SZQAL

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicants are a husband and wife, who arrived in Australia on visitor visas in April 2010. On 23 April 2010 they applied for protection visas. The applicant wife made claims that she feared persecution for a Convention reason if she returned to India. Her husband made no separate claims, and applied only as a secondary applicant. I shall, therefore, refer to the wife as “the applicant”.
2. The applicant’s written statement attached to the visa application claimed that she had been attracted to girls while at school, and not boys. She claimed to have had relationships with several school friends. Later she was the leader of a choir, and in the course of this “made a relation with a girl”, whom she named, and had sexual relations with the girl. They were discovered by another friend at one stage, and the friend returned to a convent, but the relationship continued. The applicant claimed that in May 2009, after having met her friend at the applicant’s home:
   • After two days one my brother came to my house and hit me and told me if you want to live, go anywhere. I couldn’t understand what happened. The next day a group of KCYM people and Congress Party people came to my home and attacked my home. My relatives suddenly took me in a car and we went out of our district. After a few days, this news spread everywhere. Later only I came to know, when (her friend) was coming to my home some boys followed her. They thought that in the night when everyone go for drama why she goes this way, having a doubt they followed her and they took the sexual relation in a mobile, and they forwarded this as a MMS scandal.
3. The applicant claimed she had been “banned out from the church” and that her husband lost his job when he returned from working in Kuwait, and “when he came our community people attacked him”. The applicant claimed: “I want to live as a lesbian. I never can maintain sexual relationship with my husband or any other man”. She claimed the government could not protect her.
4. The applicant was interviewed by a female officer of the Department on 15 September 2010, and that officer made a decision as delegate of the Minister on 1 October 2010 refusing the visa application. The delegate said that she “found significant elements of the applicant’s testimony to be vague, implausible and inconsistent with her written statement of claim”. The delegate explained some of the problems. The delegate also considered, in the alternative, that the applicants could relocate within India to places where homosexuality was no longer illegal and would be tolerated.
5. The applicants applied to the Tribunal for review. The applicant submitted a further written statement elaborating her history, but no corroborative documents in relation to her claimed sexuality.
6. Both applicants attended a hearing of the Tribunal which, after rescheduling, proceeded for more than three hours on 18 February 2011. A transcript of the hearing has not been tendered, and I accept the description given by the Tribunal in its statement of reasons.
7. According to the Tribunal, which was constituted by a woman, the Tribunal questioned the applicant about her claimed history, including her homosexual relationships. The applicant said that she had married in 1997, and that her husband had lived most of their marriage separately while working overseas. The applicant said that she had no lesbian relationships between 1988 and 1997, and that her relationship with her recent friend commenced in 2006.
8. The Tribunal discussed the claimed events in which their relationship had been discovered in 2006 without serious repercussion. It also discussed the claimed events in 2009, and put to the applicant some inconsistencies with the versions of events previously given.
9. According to the Tribunal, when the applicant’s husband was invited to give evidence, he told the Tribunal “that his wife is the one who faced problems and troubles and whatever she said was the truth”. He said that “he had nothing else to add”.
10. The Tribunal made a decision on 22 February 2011, which affirmed the delegate’s decision. The Tribunal expressed a general conclusion:
    • 69. The Tribunal found the applicant not to be a person of credibility. She appears to have memorised her statement and had difficulty expanding on the information not contained in her written materials. She was uncertain about any dates or periods, other than those to which she referred in her written statement. The Tribunal also found many aspects of her evidence unconvincing.
11. The Tribunal explained some of the difficulties in the applicant’s evidence, including concerning her residential address before coming to Australia, unconvincing evidence about the 2006 incident, and implausible and inconsistent evidence about the 2009 incident. The Tribunal said that its conclusion that the applicant had not been truthful was supported by the fact that the applicant had:
    • not only maintained her marriage since 1997, but she travelled to Australia with her husband and included him in her application for protection.
    • ...the Tribunal is of the view that the existence of such a relationship is contrary to the applicant’s claim that she wants to live as a lesbian.
12. In view of the Tribunal’s finding about the applicant’s credibility, it rejected the entirety of the applicant’s claims arising from that claim, including that she is a homosexual.
13. The applicants now ask the Court to set aside the Tribunal’s decision and to remit the matter for further consideration. I have power to make these orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicants should be believed, nor whether they qualify for a protection visa or any other permission to stay in Australia.
14. The applicants’ grounds are set out in their original application, and have not been explained by any amended application or written or oral submissions. The three grounds are:
    • 1. RRT did not comply with the procedure required by the Migration Act.
    • 2. RRT did not call me for a second RRT hearing.
    • 3. All the adverse information to reject my RRT application was not properly put forward it to me for my comments.
15. In the absence of any meaningful submission identifying any contended defect in procedure followed by the Tribunal, I am unable to identify one.
16. In relation to the second ground, the Tribunal was under no obligation under the Migration Act to “call me for a second RRT hearing”. The hearing ultimately held by the Tribunal lasted for a lengthy period, and the Tribunal appears to have arrived at finality in the matter. There is no suggestion in the evidence before me that either the Tribunal or the applicants contemplated a further hearing. In my opinion, the Tribunal fully discharged its obligations under s.425 of the Migration Act, and it was open to it to proceed to make a decision on the review.
17. In my opinion, the Tribunal was not obliged to explain how it might decide the decision adversely to them, on the evidence they submitted. They were on clear notice from the delegate’s decision that the truth of the applicant’s claims, including her claim to be a lesbian, was in issue.
18. In relation to the third ground, assuming this contends a breach of obligations arising under s.424A(1) of the Migration Act, I am unable to detect any basis for that contention. The Tribunal’s decision was entirely based upon the Tribunal’s assessment of inconsistencies and implausibility in the statements of the applicant, and it was not obliged to follow any procedure under s.424A in relation to those thought processes (see SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609).
19. At an earlier stage in the proceedings, the Tribunal appears to have contemplated the possibility that information in the visitor visa application concerning the husband’s employment might have a bearing on the decision, insofar as it concerned the applicant wife’s credibility. However, it sent a letter to the applicants inviting them to comment on that information, and appears in that respect to have complied with procedures under s.424A, whether or not it was ultimately obliged to do so.
20. The applicants’ sole submission today to me was to assert that the applicant wife should have been believed. However, it was the task of the Tribunal, and is not the task of the Court, to decide that issue.
21. I have not been able to identify any jurisdictional error affecting the Tribunal’s decision and I must, therefore, dismiss the application.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 18 July 2011