SZOTG v Minister for Immigration and Citizenship [2011] FCA 559 (20 May 2011)

Last Updated: 26 May 2011

FEDERAL COURT OF AUSTRALIA

SZOTG v Minister for Immigration and Citizenship [2011] FCA 559

Citation:	SZOTG v Minister for Immigration and Citizenship [2011] FCA 559
Appeal from:	SZOTG v Minister for Immigration & Anor [2011] FMCA 148
Parties:	SZOTG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:	NSD 337 of 2011
Judge:	EMMETT J
Date of judgment:	20 May 2011
Legislation:	Migration Act 1958 (Cth) ss 424, 424A, 430
Date of hearing:	20 May 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	22
Counsel for the appellant:	The appellant appeared in person
Solicitor for the first respondent:	Mr O. Jones of Clayton Utz
Counsel for the second respondent:	The second respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 337 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZOTG Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	20 MAY 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs, fixed in the sum of $3,450.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 337 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZOTG Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	EMMETT J
DATE:	20 MAY 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of India, having arrived in Australia on 14 February 2010. On 16 February 2010, the appellant applied to the first respondent, the Minister for Immigration and Citizenship, for a protection (class XA) visa, under the Migration Act 1958 (Cth) (the Migration Act). On 2 June 2010, a delegate of the Minister decided to refuse to grant a protection visa. On 30 June 2010, the appellant applied to the second respondent, the Refugee Review Tribunal (the Tribunal), for review of the delegate’s decision. On 5 October 2010, the Tribunal affirmed the Minister’s decision not to grant a protection visa. On 18 November 2010, the appellant commenced a proceeding in the Federal Magistrates Court, seeking Constitutional writ relief in respect of the decision of the Tribunal. On 3 March 2011, the Federal Magistrates Court ordered that the application be dismissed, and that the appellant pay the Minister’s costs of the proceeding. By notice of appeal dated 18 March 2011 and filed on 24 March 2011, the appellant appealed from the whole of the judgment of the Federal Magistrates Court.
2. The appellant claimed to fear harm in India because of his sexual orientation as a homosexual. The Tribunal observed that the mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear, or that it is well founded. The Tribunal stated that a decision-maker is not required to make an applicant’s case for him or her, and is not required to accept uncritically any and all of the allegations made by an applicant. The Tribunal recorded that, having considered the information provided by the appellant, it was not satisfied that he was at risk of serious harm in India for any reason.
3. The Tribunal observed that the appellant’s claimed fear of harm rested entirely on his claim that his sexual orientation was exclusively towards other men. He claimed to have had homosexual relationships in India with four other men, the latest with a person whom he met in mid-2001, and who, he said, remains his partner. The Tribunal outlined particulars of the claims of persecution made by the appellant, who claimed that his approaches to the police were fruitless, and that, instead of protecting him, the police verbally abused him and his partner. The Tribunal observed that claims such as those made by the appellant are, by their nature, difficult to evaluate, involving private issues and strong emotional issues.
4. The Tribunal accepted that, even in the relatively informal setting of a Tribunal hearing, an applicant may be inhibited by feelings of embarrassment or shame from articulating details of sexuality. The Tribunal said that, having given full weight to those considerations, it was not satisfied that the appellant’s evidence before the Tribunal supported his claims to be homosexual, or that he feared harm in India for such a reason. The Tribunal then set out in some detail its reasons for concluding that it was not satisfied as to the appellant’s credibility, and in particular the appellant’s claims to have had homosexual relationships while he lived in India.
5. The Tribunal also referred to a statutory declaration by a third party, that was provided to the Tribunal by the appellant. The Tribunal put to the appellant a number of concerns that it had about the statutory declaration. The Tribunal was not satisfied that the declaration was written by the deponent without the assistance of another person. The Tribunal was not satisfied as to the credibility of the appellant’s evidence concerning the provenance of the statutory declaration. The Tribunal found that that lack of credibility cast doubt on the reliability of the statutory declaration itself. The Tribunal was not satisfied that any reliance could be placed on the statutory declaration as substantiating the appellant’s claims.
6. The Tribunal was not satisfied, in the light of all of the information before it, that the appellant was homosexual in his orientation, or that there was any reason to believe that he was imputed with such an orientation while he was in India. One of the matters referred to by the Tribunal was the appellant’s reluctance to provide the Tribunal with the means to communicate with the person that he named as his partner. The Tribunal was not satisfied that the appellant had maintained a homosexual relationship in India, including with the person whom he named as his partner, or that he had ever suffered harm for such a reason.
7. In his application to the Federal Magistrates Court, the appellant relied on nine grounds, which may be summarised as follows:
   1. The Tribunal made an error of law and failed to exercise the proper procedure in relation to the making of the decision under review.
   2. The manner in which the Tribunal dealt with the application and the appellant indicated an apprehension that the Tribunal did not bring an impartial mind to the resolution of the matter before it.
   3. The Tribunal denied the appellant natural justice and procedural fairness.
   4. Following the hearing, pursuant to s 424A of the Migration Act, the Tribunal did not put important information to the appellant concerning its reasons, or part of its reasons, for the decision.
   5. The appellant was deprived of natural justice and procedural fairness, and was denied the opportunity to present his case.
   6. The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction by asking itself some wrong question in deciding the review application.
   7. The Tribunal was biased, and deprived the appellant of natural justice, by failing to consider the appellant’s claim from a neutral point of view.
   8. The Tribunal’s decision relied upon country information and inconsistencies between the appellant’s claims in the protection visa application and the claims made before the Tribunal.
   9. The Tribunal’s failure to accord procedural fairness led to jurisdictional error.
      
8. The Federal Magistrates Court gave very careful and detailed reasons for its decision to dismiss the application. The primary judge set out the detailed reasoning of the Tribunal for reaching its conclusion concerning the credibility of the appellant. His Honour did not find the Tribunal’s reasoning to be compelling, for reasons that he set out. His Honour observed that the persuasiveness overall of the Tribunal’s reasons was not assisted by the absence of all discussion of the elements in the evidence before the Tribunal that pointed in favour of acceptance of the appellant’s claimed history. However, his Honour accepted that s 430 of the Migration Act required the Tribunal to provide only the reasons for finding adversely against the appellant, and not the reasons by which it might have found favourably on his claims. His Honour correctly observed that the Tribunal’s adverse reasoning must be assessed for jurisdictional error, and that it was irrelevant that other persons might have accepted the appellant’s evidence.
9. The primary judge identified and addressed possible concerns as to the Tribunal’s reasoning, notwithstanding that jurisdictional error relating to that reasoning was not clearly raised in the grounds of the application made to the Federal Magistrates Court. His Honour then dealt with the grounds set out in the application. His Honour began with the observation that the grounds appeared to have been adopted from unhelpful precedents and were largely devoid of particulars. His Honour observed that similar problems of generalisation, or lack of particulars, were to be found in the appellant’s written submissions, although the written submissions raised some discrete points that his Honour considered deserved to be addressed.
10. In relation to ground 1, the primary judge was unable to identify an error of law vitiating the Tribunal’s decision: his Honour observed that none was pointed to by the appellant. The general allegations of failure to follow proper procedure or natural justice and procedural fairness were not explained, and his Honour was unable to identify substance in those contentions. His Honour could find no departure by the Tribunal from procedures required to be followed under the Migration Act, whether designed to afford procedural fairness or otherwise.
11. In relation to the unparticularised allegation of bias in ground 2, the primary judge stated that he had given careful consideration to the elements of unreasonableness and illogicality that he had previously discussed in his reasons. His Honour correctly observed that it is only in exceptional cases that unreasonableness of reasoning provides evidence of a closed mind by the Tribunal prior to reaching its decision, and noted that defects in the expression or reasoning of a Tribunal in its statement of reasons do not themselves generally point to a closed mind prior to arrival at a decision. His Honour did not consider that any defects in the Tribunal’s reasoning process in this case provided such evidence, and was not persuaded that arguable unreasonableness in the Tribunal’s reasoning indicated bias or a closed mind on the part of the Tribunal. His Honour was therefore not satisfied that any ground of apprehended or actual bias had been established. The contention in ground 7 that the Tribunal was biased and did not consider the appellant’s claims with a neutral point of view was addressed by the primary judge in dealing with ground 2.
12. The primary judge then dealt with the appellant’s contentions concerning failure to follow s 424A of the Migration Act, and concluded that those contentions had no basis, on the evidence and reasoning of the Tribunal. His Honour observed that the Tribunal’s reasoning was based entirely upon an assessment of the oral and documentary evidence presented by the appellant. The appellant’s reference to s 424 of the Migration Act was not explained, and his Honour could discern no argument that might help the appellant by reference to that section. His Honour concluded that the Tribunal did not ask itself some wrong question in a jurisdictional sense when deciding the review application. Rather, his Honour said, the Tribunal identified the claims made by the appellant, and addressed them with an adverse finding. The primary judge said that the reference in ground 8 to wrong reliance on country information had no foundation in the reasoning of the Tribunal. That reference appears to be a slavish following of a precedent.
13. Notwithstanding that no ground was raised in the application, the primary judge also dealt with the appellant’s written submissions concerning criticism of the Tribunal’s reasoning in relation to the statutory declaration to which I have referred above. His Honour correctly observed that the Tribunal is not obliged to exercise its power to call witnesses who have provided written statements, whether or not this is expressly requested by an applicant.
14. Lastly, his Honour referred to a written submission made on behalf of the appellant that there was no evidence to support the finding made by the Tribunal that the appellant would not be harmed in the future by “the religious mongers and homophobics” in India. His Honour observed that that submission misstated the reasoning of the Tribunal, and wrongly assumed that the Tribunal must find for an appellant unless positively persuaded otherwise by the evidence. His Honour correctly observed that the Migration Act requires the Tribunal to be positively satisfied as to the factual basis upon which an applicant qualifies for a protection visa. His Honour concluded by observing that, while the Tribunal’s reasoning leading to its conclusion that it was not satisfied about the matters required under the Migration Act might reveal flaws, it did not disclose jurisdictional error within the principles of Wednesbury unreasonableness. His Honour concluded that, in the light of the matters to which he had referred, the application should be dismissed.
15. When the appeal was called on for hearing today, the appellant appeared without legal assistance, but with the assistance of an interpreter who communicated by telephone. The appellant indicated that he did not wish to make any oral submissions beyond the written submissions that he had filed.
16. In his notice of appeal filed on 24 May 2011, the appellant raised four grounds of appeal. The first is that the Tribunal committed numerous errors of law and failed to exercise the proper procedure in relation to making decisions on the appellant’s protection visa review application. Since the appellant is unrepresented, I would construe that as a complaint that the Federal Magistrates Court failed to uphold that contention. The second ground is that the Federal Magistrates Court ignored some legal issues, and that the Federal Magistrates Court denied the appellant natural justice. No particulars of that ground are provided. The third ground is that the Tribunal did not follow procedural fairness in reviewing the appellant’s protection visa application, and did not act in accordance with the provisions of the Refugees Convention. The fourth ground is that the Tribunal denied the appellant natural justice, and that the Tribunal was biased, or there was an apprehension of bias in making its decision. Again, I will construe those two grounds as meaning that the Federal Magistrates Court erred in not upholding those contentions.
17. There is a complete absence of particularity in relation to the assertions made in the grounds of appeal. The written submission made by the appellant does not appear to address the grounds of appeal as such. In relation to what is described as the first ground, the appellant asserted that there was jurisdictional error, in that the Tribunal failed to honour his privacy, and that of his partner. That appears to be a reference to the weight placed by the Tribunal on the fact that the appellant was not prepared to disclose particulars that would enable the Tribunal to communicate with his alleged partner. In any event, the material before the Court indicates that the Tribunal gave assurances to the appellant that the particulars of his alleged partner’s telephone number would not be disclosed.
18. In relation to the second ground, the written submissions asserted that the Tribunal was not satisfied that the appellant had provided a plausible reason for his partner not having joined him in Australia during the pendency of the protection visa proceeding. This ground appears to be an attack on the Tribunal’s reasoning, which was dealt with at some length by the primary judge, in concluding that, while he did not find the reasoning compelling, any illogicality or deficiency in the reasoning did not lead to jurisdictional error. While minds might differ as to the significance of the matters relied upon by the Tribunal in its reasoning, there is no basis for concluding that that reasoning discloses jurisdictional error.
19. The submission in relation to the third ground concerns the reasoning of the Tribunal based on the assertion that the appellant’s alleged partner was exploring avenues for seeking protection in Italy and Canada, and that that was a reason for his failure to come to Australia. Whether or not the reasoning based on those matters is persuasive is not a question that involves jurisdictional error. Again, while minds might differ as to the significance to be attached to that response by the appellant, there is no indication of jurisdictional error.
20. The written submission deals with so-called ground 4 as being a failure to comply with s 424A of the Migration Act. The complaint in the written submission is that the Tribunal did not give the appellant adequate notice of the way in which it was going to deal with the statutory declaration. However, the statutory declaration was provided to the Tribunal by the appellant, and accordingly s 424A does not apply, by reason of the operation of s 424A(3). There is no substance in any complaint based on s 424A in relation to the statutory declaration.
21. The appellant’s written submissions do not appear to address the grounds in the notice of appeal as such. In any event, they do not reveal any error on the part of the Federal Magistrates Court. In the absence of any particulars in support of the grounds stated in the notice of appeal, I do not see any basis for concluding that there was any appealable error on the part of the primary judge.
22. It follows, in my view, that the appeal should be dismissed. The Minister has asked that his costs be fixed in the sum of $3,450. The solicitor for the Minister has indicated that, based on an investigation of the time taken in relation to the conduct of the appeal, the Minister has incurred costs in excess of $4,000 in connection with the appeal. A further $1,220 will have been incurred before the appeal is finally disposed of. In the circumstances, it seems to me that it is in the interests of efficiency and fairness that the Minister’s costs be fixed in the sum of $3,450.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 25 May 2011