FEDERAL COURT OF AUSTRALIA

SZJHA v Minister for Immigration and Citizenship [2008] FCA 1691

MIGRATION – consideration of an appeal from the Federal Magistrates Court of Australia

Migration Act 1958 (Cth)

Judiciary Act 1903

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 – cited

Muin v Refugee Review Tribunal (2002) 190 ALR 601 - cited

SZJHA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD2542 of 2007

GREENWOOD J

13 NOVEMBER 2008

SYDNEY (VIA VIDEO-LINK FROM MELBOURNE)

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The appellant is ordered to pay the costs of the first respondent of and incidental to the appeal. 

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 eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     This is an appeal from a judgment of the Federal Magistrates Court of Australia delivered on 6 December 2007 in which that Court dismissed an application for relief under the Migration Act 1958 (Cth) (“the Act”) and s 39B of the Judiciary Act 1903 arising out of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 2 August 2006.  The Tribunal dismissed the appellant’s application for review of a decision of the Minister’s delegate to refuse the appellant the grant of a Protection (Class XA) visa under the Act. 

2                     The appellant is a citizen of Bangladesh who arrived in Australia on 10 December 2005 and applied for a protection visa on 21 December 2005 on the footing that he claimed to hold a well‑founded fear of persecution by reason of his homosexuality.  The appellant claimed by his statutory declaration (AB94) in support of his visa application that he is the youngest of seven children and comes from a religious Muslim family.  He claimed to be always attracted to persons of his own sex and described the evolution of his sexual orientation.  He claimed to have been ostracised by his family.  He claimed that his family attributed the death of his parents to the stress associated with the appellant’s conduct.  He claimed to hold a fear that should he return to Bangladesh police in that country would not help him and would threaten him.  He claimed that his family had cut him off and that he was “terrified to return to Bangladesh” (AB94, AB95). 

3                     The appellant placed submissions before the Department of Immigration and Multicultural and Indigenous Affairs in support of and elaboration upon these claims by letter dated 3 February 2006 from Parish Patience Immigration Lawyers (AB124‑AB149) which attached a range of documents.  The Tribunal in undertaking its review conducted a hearing and on Thursday, 29 June 2006 the Tribunal wrote to the appellant’s representative inviting the appellant to comment on nine particular topics (AB487‑AB490) to which the appellant’s representatives responded on 1 August 2006 (AB494‑AB502). 

4                     The Tribunal reached these conclusions. 

5                     At AB527, the Tribunal concluded that it was not satisfied as to the accuracy of the appellant’s claims to be a homosexual.  The Tribunal considered that the account given by him of his claimed homosexual activities and particular relationships in Bangladesh, Malaysia, Singapore and Australia contained a number of “significant inconsistencies and improbabilities”.  It is not necessary in these reasons to isolate, as Federal Magistrate Nicholls did, the details of each topic said to reflect inconsistent treatment.  However, the topics included evidence given to the Tribunal as compared with evidence given in the course of a departmental interview concerning a contended sexual relationship the appellant claimed to have had with a Bangladeshi friend both in Bangladesh and Malaysia.  Although the explanation put forward by the appellant’s adviser in response to the s 424A letter put the apparent inconsistency on the basis of “understandable confusion” on the part of the appellant particularly having regard to the name of a Singapore student with whom the appellant had had a relationship and the name of a Bangladeshi person with whom the appellant claimed to be living in Australia, the Tribunal was simply not persuaded by that explanation. 

6                     The Tribunal identified what it described as “significant inconsistencies” relating to a claimed sexual relationship in Singapore between the appellant and a Chinese student nicknamed “Cork” and events surrounding the apparent discovery of that relationship by a man named “Russell” and subsequent attempts by Russell to extort money from the appellant against the background of threats of disclosure of the appellant’s sexuality to his parents.  A further matter concerned a contended homosexual relationship between the appellant and a man the appellant met upon his arrival in Australia.  The Tribunal analysed all the evidence given by the appellant to the Tribunal in support of his claims, statements made by the appellant in his protection visa application and statements made in a lengthy submission by the appellant’s adviser to the Tribunal received by the Tribunal on 9 February 2006.  The Tribunal compared that material with the evidence of the witness (the person with whom the appellant claimed to have a homosexual relationship in Australia) called before the Tribunal by the appellant.  Arising out of that analysis, the Tribunal concluded that there were matters of inconsistency which reflected upon the plausibility of the appellant’s explanation.  The Tribunal was concerned that the claim to this relationship which was said to be symptomatic of the appellant’s sexual orientation, central to the claim to a well‑founded fear of persecution “did not sit well with the absence of any reference to such a significant relationship in his protection application or in the lengthy submission from his adviser received by the Tribunal on 9 February 2006”.  The Tribunal concluded that it could “not be satisfied as to the truth of the Applicant’s claims” concerning the contended relationship. 

7                     The Tribunal dealt with the factual foundation for the appellant’s claims of threats of harm giving rise to his contended well‑founded fear of persecution.  The Tribunal noted the appellant’s claims concerning the hostility of his family, the contention that they had made “false cases” against him in Bangladesh and that they had “told his friends in Singapore to beat him up”.  The Tribunal concluded that “if the family’s hostility genuinely had taken on this additional and dramatic form, such a highly relevant fact for the Applicant’s case would [not] have been omitted from his detailed protection application or other submissions prior to the hearing”.  The Tribunal was not satisfied as to the “plausibility” of his claims at the hearing in relation to this matter.  The Tribunal concluded that aspects of the appellant’s claims concerning threats by his family were inaccurate which raised doubts about the general accuracy of the appellant’s claims concerning the harm he claimed to fear. 

8                     The Tribunal also expressed concerns about inconsistencies relating to financial support from his family, whether he had been cut off by his family, his working background and sources of finance from a friend in Malaysia.  The Tribunal addressed the submissions made by the appellant’s adviser of 2 August 2006.  The Tribunal was not persuaded by the explanations put forward by the adviser as to the apparent inconsistencies identified by the Tribunal in its s 424A letter.  The Tribunal ultimately concluded that it could not be satisfied that the appellant is homosexual in orientation or that he has had engaged in homosexual relationships in the countries as claimed.  Nor could the Tribunal be satisfied that news of the appellant’s sexual orientation caused the death of the appellant’s parents or that the remaining members of the appellant’s family became and remained antagonistic towards him and wished to do him harm either because of the death of his parents said to be attributable to discovery of the truth of the appellant’s sexual orientation or by reason of the appellant’s sexual orientation itself.  The Tribunal was not satisfied that a real chance existed that the appellant would suffer “persecutory harm” in Bangladesh because of his sexual orientation.  These findings and underlying reasons are identified at AB527‑AB531 arising out of the analysis of the appellant’s claims and the evidence relating to those claims discussed at AB513‑AB527. 

9                     Before the Federal Magistrates Court the appellant initially relied upon grounds set out in an application filed on 31 August 2006.  The appellant filed an amended application before the Federal Magistrates Court on 29 March 2007 which asserted a constructive failure on the part of the Tribunal to exercise its jurisdictional task of review.  The appellant contended that the Tribunal had failed to make findings as to the preferred evidence and simply noted inconsistencies between the evidence of the appellant and the evidence given by the witness.  Further, the Tribunal was said to have constructively failed to discharge its review function in that it gave no consideration as to whether the witness may have had a reason to be untruthful.  Secondly, the appellant contended that the Tribunal had engaged in jurisdictional error by relying upon apparent inconsistencies as “necessarily connoting dishonesty”.  Thirdly, the appellant contended for jurisdictional error on the part of the Tribunal in concluding that the appellant was giving untruthful evidence in relation to his sexual relationship with a man in Singapore.  Finally, the appellant contended for jurisdictional error on the part of the Tribunal in reaching conclusions about inconsistency in evidence given by the appellant concerning aspects of the evidence relating to the man called “Russell” and the photographs taken by Russell of the appellant engaged in sexual activity with another male. 

10                  The Federal Magistrate dealt with each of these four contentions and concluded that each of the inconsistencies complained of were matters open to the Tribunal.  Federal Magistrate Nicholls identified the integers comprising the appellant’s claim to a well‑founded fear of persecution and examined the Tribunal’s treatment of those integers.  The Federal Magistrate identified the topics giving rise to the contended inconsistencies and improbabilities in the accounts given to the Tribunal, as described by the Tribunal.  Federal Magistrate Nicholls isolated each of the contentions giving rise to contended threats of harm and the way in which the appellant’s evidence evolved along the continuum of the protection visa application itself, the supporting statutory declaration, the oral evidence at the hearing and written submissions put to the Tribunal.  Federal Magistrate Nicholls concluded that the Tribunal had analysed each of the claims and the factual foundation for each claim made by the appellant and reached findings concerning each claim, which were open to the Tribunal. 

11                  On 28 December 2007, the appellant filed a notice of appeal before this Court in which the appellant relies upon ten grounds of appeal.  Leaving aside para 1 of the notice of appeal which recites that the appeal is from the whole of the judgment of Federal Magistrate Nicholls, the grounds are these:

1.                  The Federal Magistrates Court “failed to find error of law, jurisdictional error, or [a denial of] procedural fairness and [a right to] relief under s 39B of the Judiciary Act 1903”.

2.                  Federal Magistrate Nicholls “dismissed the case without considering the legal and factual errors contained in the decision of the [Tribunal]”.

3.                  Federal Magistrate Nicholls made “a legal, factual and jurisdictional error in not applying the principles laid down by the Full Court of the Federal Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437”.

4.                  Federal Magistrate Nicholls failed to “take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences of the claim”. 

5.                  The Tribunal emphasised “some irrelevant question at the oral evidence [the hearing] and ignored my political background that put my life in risk.  In doing so the Tribunal may be said to have ignored relevant material, relied upon irrelevant material and/or made findings which were erroneous or mistaken”.

6.                  The appellant was denied “procedural fairness” in the same way that procedural fairness was denied in Muin v Refugee Review Tribunal (2002) 190 ALR 601.

7.                  Federal Magistrate Nicholls did not consider the appellant’s amended application for relief.

8.                  The Tribunal, in reaching its decision, did not take into account “certain relevant considerations or ‘integers’ central to the applicant’s claim” and thus failed to carry out its statutory review function.  The matters the Tribunal did not consider were the “immense and intimidating pressure from family members because of [the appellant’s] homosexuality” and the appellant’s claim that “his family members [would] kill him if he returns to Bangladesh”. 

9.                  The Tribunal applied the wrong test by “requiring independent evidence of the fact [asserted by the appellant]” before the Tribunal would accept the claim made by the appellant and thus placed “[a] high onus of proof on the applicant and [failed] to give the applicant the benefit of the doubt”; and the Tribunal applied the wrong test by failing to “look at the claim as a whole to determine whether the claim so considered [amounted] to persecution”. 

12                  The first ground simply represents a conclusionary statement without any content.  If ground 1 is intended to reflect the result or conclusion arising out of other failures, ground 1 is simply reliant upon the content of the other grounds of appeal.  Ground 2 has two limbs.  The first is a contention that Federal Magistrate Nicholls failed to consider legal errors contained in the Tribunal’s decision and failed to deal with factual errors.  The appellant has not identified any factual errors in the Tribunal’s decision unless, of course, the contention really is that the conclusions reached as to implausibility and inaccuracy in the factual claims made by the appellant, derived from the analysis undertaken by the Tribunal mentioned earlier, influenced by the identified inconsistencies, are in error.  In that event, the ground seems to suggest merits review.  To the extent that the appellant relies upon legal errors made by the Tribunal in reaching its decision, no legal errors are identified.  To the extent that the remaining grounds contend for the application of the wrong test, the failure to take particular matters into account etc, the content of the remaining grounds of appeal might be seen as a subset of ground 2.

13                  In Randhawa, the Full Court of the Federal Court (Black CJ, Beaumont and Whitlam JJ) considered Article 1A(2) of the United Nations Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees, the term “refugee” and the meaning and application of the phrase, a person who “owing to well‑founded fear of being persecuted … is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”.  The Court concluded that although the Convention definition of refugee does not refer to parts or regions of a country, that circumstance does not provide any warrant for construing the definition so that it would give refugee status to those who although having a well‑founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country (see:  p 440G to p 441A).  In this case, the question before the Tribunal was whether it could be satisfied that the appellant held a well‑founded fear of persecution for a Convention reason having regard to the appellant’s identified claims of persecution derived from his contended sexual orientation.  That sexual orientation was said to be demonstrated by reference to the examples of the relationships he claimed to have had with identified participants in the nominated countries.  Those relationships and that sexual orientation was then said to have resulted in consequences for him within his family and to give rise to concerns as to how he would be treated by Bangladeshi authorities, particularly the police, having regard to the appellant’s contentions that gay men are subjected to ill treatment by Bangladeshi police. 

14                  The central matter was the assessment by the Tribunal of all the evidence before it and whether it could be satisfied that the evidence was plausible, accurate and truthful.  The Tribunal concluded that it was not satisfied of those matters.  No question arose as to whether the appellant might be able to safely relocate elsewhere within his home country as a means of avoiding a demonstrated well‑founded fear of persecution or harm.  The Tribunal was simply not satisfied that the appellant held a well‑founded fear of persecution for a Convention reason, as contended. 

15                  By ground 4, the appellant says that Federal Magistrate Nicholls failed to recognise that the Tribunal’s decision was unjust and made without the Tribunal taking account of the “full gravity” of the appellant’s circumstances.  The reference to the decision of the Tribunal being unjust is not supported by any elaboration.  If the ground is intended to be an analogue for a contention that the Tribunal was not entitled to rely upon the inconsistencies isolated in the Tribunal’s reasons, the conclusions reached by the Tribunal were open to it arising out of its evaluation of the material and the weight that it elected to place upon the particular matters identified in its reasons.  As to the question of the “full gravity” of the appellant’s circumstances, it is plain from the detailed analysis undertaken by the Tribunal and the conclusions recorded in its reasons for decision that each of the factual claims made by the appellant were considered and weighed in the balance having regard to all the material put before it.  That material included the protection visa application, the statutory declaration in support of the application, material submitted in writing by the appellant’s advisers, the oral evidence and material specifically in response to the s 424A letter from the Tribunal to the appellant.  If the contention really is that the Tribunal did not conclude that the appellant held a well‑founded fear of persecution as claimed, the contention is a complaint about the merits.  In effect, the appellant asks, why did the Tribunal not accept my claim to a well‑founded fear of persecution? 

16                  By ground 5, the appellant says that the Tribunal asked itself an irrelevant question and ignored the appellant’s political background in reaching its decision.  As counsel for the Minister notes, there is no transcript before this Court concerning the hearing.  The decision record setting out the analysis and reasoning of the Tribunal, its conclusions and ultimately its operative decision reflects an analysis of documents and material put to the Tribunal, versions of facts and evidence given, going to the content of the claims.  The reasons do not reflect any inquiry into irrelevant matters or reliance upon irrelevant matters along the path to the Tribunal’s decision.  As to the elements of ground 5 which are directed to the Tribunal’s failure to take into account the appellant’s political background, the visa application does not place reliance upon any contended political background on the part of the appellant as a basis for a well‑founded fear of persecution.  Nor is there any such contention in the statutory declaration, the oral evidence or other material put to the Tribunal.  Thus, there was no obligation upon the Tribunal to take any such matter into account. 

17                  In Muin v Refugee Review Tribunal, the High Court (Gleeson CJ, Gaudron, McHugh and Kirby JJ; Hayne J dissenting) concluded that the appellant, an Indonesian national of Chinese ethnicity had been denied procedural fairness in relation to a submission sent by the Secretary of the Department of Immigration and Multicultural Affairs to the Tribunal.  The appellant applicant for a protection visa ought to have been provided with an opportunity by the Tribunal to deal with and respond to matters contained in the submission.  In this case, there is no reference by the appellant to any document or other material relied upon by the Tribunal which was not brought to the appellant’s attention.  Accordingly, the reference to Muin in ground 6 and the contention that by reference to the principles in Muin the appellant “strongly believe(s) that there is a lack of procedural fairness in my case”, seems entirely misplaced. 

18                  By ground 7, the appellant contends that Federal Magistrate Nicholls did not consider the appellant’s amended application.  It is plain from the reading of the reasons published by Federal Magistrate Nicholls that each element of the appellant’s amended application before the Federal Magistrates Court Australia was fully taken into account.

19                  By ground 8, the appellant contends that the Tribunal did not consider the “integers” central to the appellant’s claim thus failing to discharge the review function.  The two essential integers identified are the “intimidating pressure” from the appellant’s family members due to the appellant’s homosexuality and the contention that the appellant’s family members would kill him if he returned to Bangladesh.  It is clear from the reasons of the Tribunal that the contention of pressure brought to bear by family members and the notion that family members might harm the appellant by reason of the appellant’s sexual orientation were expressly addressed.  There is little point in quoting the specific paragraphs of the Tribunal’s reasons as to these matters.  However, the question of the hostility of the appellant’s family, the contention that they had lodged false cases against him and that family members had encouraged the appellant’s friends in Singapore to “beat him up” is expressly dealt with at AB529 and AB530 beginning with the reciting of aspects of these claims at the second paragraph under the heading Threats of harm (being the fourth paragraph on AB529). 

20                  As to the contention that the Tribunal applied the wrong legal test by requiring independent evidence of relevant facts before it would accept a claim made by the appellant, it is plain that the Tribunal examined the totality of the evidence before it, put to the Tribunal in the manner previously described, and then reached a decision firstly as to whether it could be satisfied of the claims made by the appellant and secondly, whether the appellant held a well‑founded fear of persecution for a Convention reason.  The test applied by the Tribunal was whether it could be so satisfied.  The Tribunal did not start from the position that it would not accept any evidence given by the appellant or contentions made by the appellant unless every aspect of the claim was corroborated by independent evidence.  The Tribunal determined that it could not be satisfied that the appellant held a well‑founded fear of persecution for a Convention reason because it could not be satisfied, as a result of the forensic analysis of material going to each claim, that the appellant’s evidence was plausible, accurate and truthful.  In other words, the analysis of the material revealed inconsistencies identified by the Tribunal which it regarded as significant and which led it to form a view that the version of the facts put forward by the appellant was implausible or improbable.  Thus the claims were rejected. 

21                  In the final ground, the appellant also contends that the Tribunal failed to look at the claims made by the appellant in their totality to determine whether it could be satisfied that the appellant held a well‑founded fear of persecution.  The appellant says in effect (although it was not put this way as the appellant was self‑represented) that the segmentation of each claim and conclusions reached about each separate claim failed to give proper emphasis to the aggregated burden of the total claim.  However, it is plain from the Tribunal’s reasons that the entirety of the appellant’s claim based on all of its constituent integers or elements was dealt with.  The central matter was whether the Tribunal could be satisfied that the claims made by the appellant were truthful, plausible and acceptable.  Once the Tribunal was unsatisfied about those matters, the Tribunal could not reach the relevant state of satisfaction as to a well‑founded fear of persecution for a Convention reason.  That conclusion was open to the Tribunal. 

22                  Accordingly, the contention that Federal Magistrate Nicholls fell into error by failing to find jurisdictional error on the part of the Tribunal for the reasons asserted by the appellant, necessarily fails. 

23                  The appeal must be dismissed with costs. 

Associate:

Dated:         13 November 2008