FEDERAL COURT OF AUSTRALIA

SZKNJ v Minister for Immigration and Citizenship [2007] FCA 1842 

SZKNJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1672 OF 2007

EDMONDS J

28 NOVEMBER 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

1                     This is an appeal from the Federal Magistrates Court (Turner FM) (SZKNJ v Minister for Immigration & Citizenship & Anor [2007] FMCA 1439) dismissing an application for judicial review of a decision of the second respondent (the Tribunal) affirming a decision of a delegate of the first respondent (the Minister) to refuse to grant the appellant a protection visa.

Background

2                     The appellant is a citizen of India.  He arrived in Australia on 3 September 2006.  On 25 September 2006, he lodged an application for a protection visa with the Department of Immigration and Citizenship.  On 4 November 2006 a delegate of the Minister refused to grant him a protection visa.  On 29 November 2006, the appellant applied to the Tribunal for a review of that decision.

The Appellant’s Claim

3                     The appellant claimed to have well-founded fear of persecution by the Indian community and his family on the basis of his membership of a particular social group, namely homosexual men in India.

4                     The appellant claimed that he commenced a homosexual relationship with one of his college teachers in 1998 in his final year at college.  In November 2005, his parents pressured him to marry and chose a wife for him.  After discussion with his partner, the appellant agreed to marry to make his parents happy and hoped that his parents would then continue to assist him financially.  The appellant claimed he told his parents he needed to take a business trip to Australia.  Consequently, the marriage ceremony was scheduled for 21 October 2006 after his return.  After travelling to Australia, the appellant continued correspondence with his partner in India who had advised that his parents were upset due to his lack of communication with them and that the marriage arrangements were still continuing.  He claimed that he had only been in one homosexual relationship, that with his teacher, and that it had continued for eight years.  He claimed to fear problems from his family, including extended family, and that they were well-known and influential.  He claimed that his situation changed since his overseas trip in 2003 because he then reached marriageable age and worried about marriage proposals. 

5                     He claimed that after he rejected the latest proposal and travelled to Australia, both families became aware of his homosexuality.  He claimed that his family had made harassing telephone calls to his former teacher.  The appellant claimed that he feared that if he returned to India his large and influential family would arrange to have him killed because he had brought shame to the family and relocation was not possible as his family would find him. The appellant also claimed that the police may only be able to protect him for a period of time but not all the time.

The Tribunal’s Decision

6                     The Tribunal found the appellant was unable to describe his fears regarding his safety if his sexuality were revealed to the community; that he gave different evidence in his protection visa and hearing as to the extent of police protection; and that he did not make his own enquiries as to living elsewhere in India. 

7                     The Tribunal also noted the appellant did not respond to the Tribunal’s letter of 1 February 2007.  Consequently it found that:

“…the review applicant’s inability to provide details of his claims and his lack of understanding of the situation affecting homosexual men in India generally, or his own community in particular, adversely affects the credibility of his claim to have been a practising homosexual in that country eight years prior to his arrival in Australia in September 2006.”

8                     The Tribunal also noted that the there were limited adverse consequences felt by the appellant’s former teacher when his sexuality was revealed and the appellant did not appear familiar or concerned with any adverse consequences to his former teacher in the wider community.  Consequently, the Tribunal was not satisfied the appellant was a practising homosexual or was involved in a long-term homosexual relationship with his former teacher.

9                     The Tribunal accepted that the revelation that the appellant was a homosexual and a failed arranged marriage would bring shame.  However, it found the appellant had not provided evidence to explain why his family would take the extreme step of arranging for him to be killed.  It noted the appellant was unaware of the potential for serious harm to persons who were known practising homosexuals by the community or the police and found it difficult to understand why he would have formed such an extreme view of the situation.

10                  The Tribunal also noted that if it had found the appellant was a practising homosexual, then it would have found he was a member of a particular social group and that he might not have been able to obtain effective state protection in his local area.  It noted, on the basis of independent country information, that there was a real chance homosexuals in many parts of India could be subject to serious harm.  However, there were a number of larger cities and towns in India where homosexuality could be openly practised.  The Tribunal found the likelihood of an openly homosexual person in Bombay or Bangalore being subject to serious harm was remote and thus there would not be a real chance of persecution.  The Tribunal found, if the appellant were a homosexual man, that he could relocate and that it would be reasonable.

The Federal Magistrates Court

11                  The original application raised the following grounds:

(1)               The Tribunal applied the wrong test by requiring independent evidence and thus placing a high onus of proof on the appellant and failing to give him the benefit of the doubt;

(2)               the Tribunal failed to internalise the circumstantial grounds and in weighing the subjective and objective claims.  The appellant alleges breaches of ss 424, 430, 439 and 440 of the Migration Act 1958 (Cth) (the Act);

(3)               breach of the rules of natural justice and s 476 of the Act; and

(4)               the Tribunal acted in bad faith.

12                  The grounds raised in the amended application filed in the Federal Magistrates Court on 27 June 2007 claimed that the Tribunal:

(1)               Did not consider relevant considerations;

(2)               failed to exercise jurisdiction and did not consider the appellant had been under immense pressure from his own family and that they would kill him;

(3)               denied  procedural fairness and failed to investigate claims as required by the Act;

(4)               found the appellant could relocate;

(5)               used country information against the appellant;

(6)               emphasised irrelevant questions and ignored the appellant’s sexuality;

(7)               applied the wrong test by leaving out individual elements of the appellant’s claims and by not considering the claims as a whole; and

(8)               applied the wrong test by requiring independent evidence and thus placing a high onus of proof on the appellant and failing to give him the benefit of the doubt.

13                  His Honour considered both applications filed by the appellant.  He found the grounds in the original application could not be sustained.  The Tribunal had accepted many matters by the appellant but rejected others and had considered the claims both individually and as a whole.  In relation to allegations of breaches of the Act; there was no breach of s 424 of the Act, the Tribunal set out its reasons to comply with s 430 of the Act, and ss 439 and 440 of the Act relating to disclosure of confidential information did not relate to the Tribunal’s decision.  His Honour considered there was no breach of Division 4 Part 7 of the Act.  There was no evidence of bias and his Honour found ground 4 did not establish jurisdictional error.

14                  His Honour addressed the amended application and found it did not establish jurisdictional error.  There was nothing to establish that the Tribunal failed to consider relevant considerations and in any event the Tribunal considered the claims the appellant alleged it did not.  There was no duty on the Tribunal to investigate.  The findings regarding relocation were properly open to the Tribunal on the evidence before it.  In relation to any allegation relating to country information, the weight of that information was a matter for the Tribunal.  The appellant had not established that the Tribunal emphasised irrelevant questions.  It did consider whether his sexuality put him into danger, concluded he was not a practising homosexual, and also considered if he were, whether he had well-founded fear.  The Federal Magistrate found grounds 7 and 8 of the amended application reiterated the two grounds in ground 1 of the original application.

The Appeal to this Court

15                  The appellant filed a notice of appeal in this Court on 21 August 2007.  The notice of appeal repeats some of the grounds considered by his Honour below and adds new grounds.

16                  The appellant did not file any written submissions and made no oral submissions on the hearing of the appeal.

Grounds 2 and 3

17                  Grounds 2 and 3 of the notice of appeal allege generally that his Honour erred.  However, there is no error apparent in his Honour’s reasons.

Ground 4

18                  Ground 4 alleges that his Honour erred in “not applying the principles” in Randhawa v MILGEA (1994) 52 FCR 437.  This is a new ground of review.  The Tribunal made an independent finding that, even if it was wrong and the appellant was a homosexual, he could reasonably be expected to relocate to a large city in India such as Bombay or Bangalore as:

(a)                the country information indicated that there are openly gay communities in those cities;

(b)               the appellant spoke English and Hindi as well as Malayam;

(c)                the appellant had given evidence he could find employment elsewhere in India; and

(d)               he was a single man with no dependants.

19                  In taking into account these factors, the Tribunal properly applied the principles in Randhawa v MILGEA.  Further, even if there was an error in the Tribunal’s relocation finding, as that finding was an independent finding it would not affect the validity of the decision overall: SLGB v MIMIA [2004] FCA 262 at [10]; VBAP of 2002 v MIMIA [2005] FCA 965 at [25].

Ground 5

20                  Ground 5 alleges that the Tribunal’s decision was unjust and made without taking into account the gravity of the appellant’s circumstances.  It plainly seeks merits review.

Ground 6

21                  Ground 6 asserts the Tribunal emphasised irrelevant questions during the appellant’s oral evidence and ignored his evidence about his homosexuality and thus ignored relevant material and made erroneous findings.  This is the same as ground 6 in his amended application filed on 27 June 2007.  The appellant did not file a transcript of the Tribunal hearing and his Honour rightly observed that he had not “established that the Tribunal emphasised irrelevant questions” (at [31]).  The Tribunal did explicitly consider the appellant’s evidence about his homosexuality and it was that evidence which led it to conclude he was not a credible witness.  This ground of review again in substance seeks impermissible merits review.

Ground 7

22                  Ground 7 asserts that the Tribunal fell into the error identified in Muin v Refugee Review Tribunal (2002) 190 ALR 601.  This is a new ground of review.  The appellant did not file any evidence which suggested that:

(a)                he was misled into believing that the Tribunal had considered any particular relevant information (that is, the appellant has not identified the particular information he was misled into believing would be considered); and

(b)               as a consequence the appellant did not ensure that such information was placed before the Tribunal. 

23                  These matters need to be established in order to enliven the Muin principle: NADR of 2001 v MIMIA (2002) 124 FCR 465 at [24] and [26].

Ground 8

24                  Ground 8 firstly asserts that his Honour failed to consider the appellant’s grounds of review in both his original and amended application.  This is plainly incorrect.  This ground next suggests that there is some error in the fact that the appellant was not legally represented at the hearing before his Honour.  There is no error, per se, in a litigant not being legally represented.

Grounds 9 to 11

25                  Grounds 9 to 11 again repeat grounds of review rejected by his Honour.  Ground 9 repeats ground 1 of the appellant’s amended application filed on 27 June 2007, ground 10 repeats ground 2 of that application and ground 11 repeats ground 1 of the application filed on 18 April 2007.  These grounds of review must fail for the reasons given by his Honour at [26], [27] and [11] to [13] respectively.

Conclusion

26                  The appellant has not demonstrated any error that would lead to the conclusion that the Tribunal failed to exercise, or exceeded, its jurisdiction or that it breached any of the Hickman provisos (R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598).

27                  The appeal must be dismissed with costs.

Associate:

Dated:         28 November 2007