FEDERAL COURT OF AUSTRALIA

SZLGN v Minister for Immigration and Citizenship [2008] FCA 1130

Migration Act 1958 (Cth) s 424A

SZLMM v Minister for Immigration and Citizenship [2008] FCA 801

SZLGN and SZLGO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 558 of 2008

TRACEY J

7 AUGUST 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs fixed at $2,800.

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

REASONS FOR JUDGMENT

1                     This is an appeal against a judgment of a Federal Magistrate delivered on 21 April 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 27 August 2007:  see SZLGN v Minister for Immigration and Citizenship [2008] FMCA 558.  The Tribunal had affirmed a decision of a delegate of the first respondent not to grant the appellants a protection visa.

BACKGROUND

2                     The appellants are husband and wife who are citizens of India.  They arrived in Australia on 17 March 2007.  On 1 May 2007 the appellant husband lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs as it was then known.  The appellant wife did not make her own specific claims to be a refugee but relied on the claims of her husband as part of the family unit.   It will be convenient in these reasons to refer to the appellant husband as the appellant.

3                     On 15 May 2007 a delegate of the first respondent refused the appellant’s application for protection visas.  On 7 June 2007 the appellant applied to the Tribunal for a review of that decision.  

4                     The appellant claimed to fear persecution in India for two reasons.  First, he suffered coercion from “criminals, thugs [and] extortionists” and he could not obtain protection from the State because he refused to pay bribes.  Secondly, he was a bisexual who suffered harm for reasons of his sexual orientation.  The appellant claimed that he went to Hong Kong, the People’s Republic of China and Macau to seek protection. 

REFUGEE REVIEW TRIBUNAL

5                     The Tribunal did not accept that the appellant was a credible witness and did not accept that any of the appellant’s substantive claims were reliable.  The Tribunal noted that, for thirteen years, the alleged extortionists did not carry out the alleged threats.  The Tribunal found that the appellant did not take measures one might reasonably be expected to take to minimise the impact of the alleged threats.  The Tribunal took into account the fact that the appellant continued to live in his home village and do his work almost daily and “the many inconsistencies found throughout the whole body of the [appellant’s] evidence” in relation to his claimed search for protection in foreign countries.  It concluded that the appellant’s claims about people trying to extort money from him were not truthful.  

6                     The Tribunal was not satisfied that the appellant was, or would be regarded in India as, a “male homosexual”, a “male bisexual’, a “male who has, or is disposed to sexual relations with other men” or anything relevantly similar.  The Tribunal did not, therefore, accept that the appellant was a member of any “particular social groups”.

7                     The Tribunal held that the appellant had given no credible evidence of having suffered treatment amounting to serious harm such as could reasonably be regarded as persecution and was not satisfied that the appellant had a well-founded fear of being persecuted in India for a Convention-related reason.  It affirmed the delegate’s decision not to grant the appellants protection visas.

FEDERAL MAGISTRATES COURT

8                     On 4 September 2007 the appellant filed an application for judicial review of the Tribunal’s decision in the Federal Magistrates Court.  The appellant claimed that the Tribunal "breached s 424A” of the Migration Act 1958 (Cth) (“the Act”) breached the “natural justice hearing rule” and procedural fairness.  The Federal Magistrate found these un-particularised grounds to be unhelpful.  

9                     The appellant filed an amended application on 19 November 2007.  The application contained four grounds of judicial review.

10                  The first ground read:

“Ground 1:  WELL‑FOUNDED FEAR:  The Refugee Review Tribunal made a jurisdictional error when it misapplied the express and implied meaning of term “well founded fear” and “refugee” from the UN Convention.  (1)  The Tribunal erred in adopting an unduly harsh approach to the Well‑founded fear. 

Particulars:  The Tribunal adopted a line of questioning designed to establish the harm from the perspective of the Applicant persecute asking why he would be harmed rather than addressing as to the motive.”

11                  The Federal Magistrate considered this to be a criticism of the merits of the Tribunal’s reasoning and did not consider that it raised jurisdictional issues for the reasons he explained in SZIOG v Minister for Immigration and Multicultural Affairs [2006] FMCA 1450.  The Federal Magistrate was unable to identify any passage in the Tribunal’s reasoning where it asked itself a wrong question.  The Federal Magistrate found no substance in the contention that the Tribunal approached the hearing with a closed mind.  The Tribunal’s reasoning suggested that it gave full and genuine consideration to the appellant’s evidence.

12                  The second ground read:

“Ground 2:  The Tribunal identified wrong issue, asked itself wrong question, failed to consider relevant and relied on irrelevant materials. 

Particulars:  The Tribunal erred in asking questions and relying only on the material the perspective of putative persecutors.  The applicant claims that he has fear of harm because of his membership of particular social group, “homosexual”.  The Tribunal member was aware of Article 377 of the Indian Penal Code which prohibits certain acts commonly associated with homosexuality, but did not account the Applicant’s oral evidence with regard to his fear of harm and a real chance of harm because of homosexuality.” 

13                  The Federal Magistrate did not accept that the Tribunal made any of the errors alleged under this ground.  The Tribunal gave consideration to the question of whether the appellant had a genuine subjective fear of harm because of homosexuality.  The Federal Magistrate was not persuaded that that the Tribunal had failed to consider the significance of Article 377 – it was discussed with the appellant at the hearing, and “was probably in the mind of the Tribunal when assessing his evidence.”

14                  The third ground read:

“Ground 3:  The Applicant claims that he was denied procedural fairness when the Tribunal member formed the view about the Applicant’s status before hearing.  The Tribunal misapplied the test or alternatively misinformed the applicant about the test. 

Particulars:  The Applicant said many places during hearing that he wants forward relevant evidence with regard to his claim but he did not get chance to present his evidence in support of his claim. 

There was a communication gap between him and the Gujarati language interpreter.  Applicant could not understand nearly half of the questions asked by the Tribunal because of misunderstandings of the interpreted words from Gujarati to English.  The Applicant said that he has limited knowledge of English and could not understand legal words.”

15                  The Federal Magistrate held that there was no evidence to support any of the contentions made under this ground.  There was no suggestion in the Tribunal’s description of the hearing that there was any problem of communication with the appellant, nor that he was denied the opportunity required to be given to him at a hearing pursuant to s 425 of the Act. 

16                  The fourth ground read:

“Ground 4:  The Tribunal made a jurisdictional error in failing to examine all other sources of available country information and other evidence and to make a finding whether the applicant had a well founded fear by reason of membership of a particular social group. 

PARTICULARS:  The Applicant claims that the Tribunal member made decision based on the old and one sided country information.  .The Country information used by the Tribunal was not sufficient and up‑to‑date.  The truth is that Homosexuals are treated in India very badly and discreetly.  The tribunal member failed to understand the cultural and social phenomenon of the Indian Society and based its decision on very limited information.”

17                  The Federal Magistrate was unable to identify the “other sources of available country information” referred to in the contentions.  He was not persuaded that the Tribunal had other information before it which it overlooked.  The Federal Magistrate held that the Tribunal did not have a duty to search for additional information to support the appellants relying on Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73.  The contentions sought to argue against the Tribunal’s assessment of the appellant’s claims against country information, and did not identify jurisdictional error affecting its decision.

18                  The Federal Magistrate was not persuaded that any of the grounds in the amended application should succeed and dismissed the application.

APPEAL TO THIS COURT

19                  The notice of appeal to this Court was filed on 22 April 2008.  The notice of appeal contained three grounds.  The first ground read:  “The Honourable Federal Magistrates Court erred in interpreting the construction of s 424A of the Migration Act 1958 (‘the Act”).”

20                  The second ground read:  “His Honour failed to determine that the purpose of s 424A was not served in the proceeding of this applicant.”

21                  The third ground read:  “The Honourable Court also erred in law determining that the Refugee Review Tribunal (“the Tribunal”) was in a breach of procedural fairness.”

22                  These grounds are in precisely the same terms as those appearing in notices of appeal in two appeals which I dealt with yesterday:  see SZJXU V Minister for Immigration and Citizenship [2008] FCA 1129; SZLMQ v Minister for Immigration and Citizenship  [2008] FCA 1128.  The amended application in the Federal Magistrates Court did not raise any issues under s 424A of the Act.

23                  The appellant appeared in person on the hearing of the appeal.  He had the assistance of an interpreter.  His wife did not attend. 

24                  The appellant said that the notice of appeal had been prepared for him by a “friend” whose name he did not know.  Although the notice had been translated for him before he signed it he had no understanding of its contents.  He was not, therefore, in a position to assist the Court by providing particulars of the first two grounds. 

25                  When asked to elaborate on the third ground the appellant said that there had been problems with the interpreter who had assisted him at the hearing before the Tribunal.  He had not complained about this at the time.  He further objected that the Tribunal had given oral reasons for its decision within half an hour or so of the conclusion of his evidence and submissions.  Written reasons were provided later.

26                  I have examined the reasons provided by the Tribunal and those delivered by the Federal Magistrate.  I have not identified any error of law on the part of the Tribunal or any error on the part of the Federal Magistrate. 

27                  The appeal should be dismissed with costs.

28                  In SZJXU at [23]-[25] I referred to the undesirability of appeals being prosecuted on proforma grounds which bear no relationship to the facts or procedural history of a particular case.  The researches of counsel for the Minister in the present appeal have demonstrated that the practice is far more common than I had previously appreciated.  Those advising appellants would do well to read and consider the observations of Jessup J in SZLMM v Minister for Immigration and Citizenship [2008] FCA 801 and cease providing those who they purport to assist with proforma notices.

Associate:

Dated:         7 August 2008