FEDERAL COURT OF AUSTRALIA

SZNKX v Minister for Immigration and Citizenship [2009] FCA 1407

SZNKX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1111 of 2009

LANDER J

2 DECEMBER 2009

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.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                          This is an appeal from an order made in the Federal Magistrates Court dismissing an application by the appellant for the quashing of a decision made by the Refugee Review Tribunal (RRT) on 13 March 2009 affirming a decision of a delegate of the first respondent to refuse the appellant a Protection (Class XA) visa.

2                          The appellant is a citizen of Bangladesh who arrived in Australia on 14 July 2008.  On 15 August 2008 the appellant applied to the Department of Immigration and Citizenship (the Department) for a Protection (Class XA) visa.  He claimed to be a member of a particular social group, namely homosexuals in Bangladesh, and he claimed that by reason of his membership of that social group he feared that he would be persecuted if he were to return to Bangladesh.

3                          The appellant submitted a nine page statement to the Department with his application detailing the circumstances in which he was introduced to homosexuality.  He said whilst in Bangladesh he was caught “red handed” having sex with a male friend.  He said he was beaten by men in the village and later by his father.  Thereafter he was teased and taunted.  He had to end his relationship with his male friend.

4                          After completing school he went with his Church for a week in Chittagong.  During that time he was caught by his supervisor having sex with another man.  He said the other students threw shoes at them, beat them and treated them like dogs.  Whilst studying at Notre Dame College, he developed a relationship, including a sexual relationship, with his room mate.  They were caught engaging in sexual intercourse.  He was beaten brutally he said and left half dead.  They were also beaten by the person in charge.

5                          In 2004, whilst still a student, he met a boy called “Walter” who lived close by.  He and Walter were caught kissing by Walter’s brother who beat them both brutally with his sandal.  He continued to meet Walter secretly.  He said that he and Walter decided to leave Bangladesh and they both got a visa to enter Australia.

6                          On 24 October 2009 he attended a meeting with a delegate of the Minister.  On 13 November 2008 the delegate of the Minister refused the appellant’s application for a Protection (Class XA) visa on the ground that the delegate was not satisfied that the appellant was a homosexual and therefore not satisfied that he was a member of the claimed social group.

7                          On 8 December 2008 the appellant applied to the RRT for a review of the delegate’s decision.  On 6 February 2009 the appellant appeared before the RRT at an oral hearing.  At that hearing the RRT advised the appellant that it had received an undated anonymous letter on 18 December 2008.  The letter contained the following:

This is to notify the authority Mr. Walter … (D.O.B. 11/10/1982) Passport No. … who stated on his protection visa that he is a gay totally bogus & replica he mentioned since 2000 he never been in his village Gazipur was totally false.  The authority may verify his claim by sending the foreign affairs to his village.

The village people know he is a normal men & he spend most his time in his village.  He always maintains dear relationship with his parents.  Even when he left in Australia his parents bless him at his home town in Gazipur.  He even has a girl friend.

The authority may contact the village people or send the Bangladeshi foreign affairs to his village for an investigation.

8                          The RRT has recorded that it informed the appellant that the message identified the appellant’s partner by his name, date of birth and passport number, and stated that the appellant’s partner’s claim to be homosexual was “totally bogus”.  It informed the appellant that the message said that “Walter had a close relationship with his parents, that his parents had blessed him before he left for Australia and that he had a girlfriend”.  The RRT further recorded (at [84]):

As I put to the applicant, the anonymous message is relevant to whether I accept that he himself is homosexual since he claims to be in a homosexual relationship with his partner Walter and the message casts doubts on whether Walter is homosexual.  As I explained to the applicant, I would not ordinarily place much weight on a message from an anonymous informant but I consider it significant that this person is clearly close to the applicant’s partner in that this person knew the applicant’s partner’s passport number and the nature of the claims he had made in support of his application for a protection visa.  Accordingly I give what is said in the message some weight along with the other evidence before me which, for the reasons given above, leads me to find that the applicant is not telling the truth and that he is not homosexual as he claims.

9                          The RRT therefore rejected the appellant’s claim that he was homosexual and therefore rejected his claims that he was a member of the particular social group relied upon.  The RRT made its decision affirming the decision of the delegate on 13 March 2009.

10                        On 9 April 2009 the appellant applied in the Federal Magistrates Court for an order quashing the decision made by the RRT and for an order remitting the matter to a differently constituted RRT for determination according to law.  On 10 September 2009 a Federal Magistrate dismissed the appellant’s application and ordered the appellant to pay the Minister’s costs assessed in the sum of $5,500.  It is from those orders that this appeal is brought.

11                        The Federal Magistrate identified five grounds raised by the appellant for his claims that the RRT had fallen into jurisdictional error.  The first ground was that the applicant claimed that he was denied procedural fairness at the time of the assessment of his claim.  The Federal Magistrate was unable to identify on the material before him any particulars of that broad claim except insofar as the claim might have been particularised in any of the other grounds.  The second ground was that the RRT had failed to accord natural justice.  Like the first ground, no particulars were given of this claim and the Federal Magistrate was not prepared to assess that claim without any particularity.  The third ground was that the RRT had failed to realise the genuine issues of the persecution suffered by the applicant.  His Honour treated that ground as a claim for a merits review and therefore rejected it.

12                        The fourth ground advanced before the Federal Magistrate was that the RRT had committed jurisdictional error by failing to take into account the fact that the appellant belongs to a special social group in Bangladesh.  His Honour rejected that ground because that ground failed to recognise the finding made by the RRT that homosexual members of a particular society may form a particular social group for the purposes of the Convention, and the further finding by the RRT that homosexuals did form a particular social group in Bangladesh for the purpose of the Convention.  The Federal Magistrate said, as the RRT acknowledged, that the question for the RRT was whether or not the appellant was a member of the particular social group as he claimed.  The Federal Magistrate concluded that the RRT had identified the right question but had answered it adversely to the appellant.

13                        The last ground identified by the Federal Magistrate was a claim that the RRT had failed to comply with s 424A of the Migration Act 1958 (Cth) (the Migration Act) and therefore committed jurisdictional error.  The appellant contended before the Federal Magistrate that the RRT’s mind had been clouded by the letter it received on 18 December 2008 concerning Walter.  The Federal Magistrate listened to that part of the tape of the proceeding before the RRT upon which the appellant relied.  The Federal Magistrate identified it as that part of the hearing recorded by the Tribunal to which I have referred earlier.  The Federal Magistrate said that the RRT went on to say that the appellant would be given an opportunity to make representations to the RRT about the letter, and that any representations would be taken into account.

14                        The Federal Magistrate was satisfied that a fair-minded lay observer who was sitting in the RRT hearing room at the time that the RRT heard the appellant would not have considered that the RRT had a fixed view about the appellant’s case.

15                        The Federal Magistrate (at [20]) accepted that the letter the RRT received on 18 December 2008 was “a piece of information which would attract the requirements for s 424A unless the Tribunal had given the applicant the benefit of s 424AA”.  The Federal Magistrate however was satisfied that the appellant had been given the information under s 424AA and therefore was relieved from acting in accordance with the provisions of s 424A.  For all of those reasons the Federal Magistrate dismissed the application for the issue of the constitutional writs.

16                        On this appeal three grounds were identified:

1.         Honourable Federal Magistrate failed to find the jurisdictional error made by The Tribunal thus the appellant didn’t receive fair justice from the Court below.

2.         A significant jurisdictional error made by “the tribunal” by failing to take in to account the fact that the appellant belongs to a Specific Social Group in Bangladesh named “Homosexuals”.

3.         The tribunal didn’t comply with 424A of the Migration Act thus have committed a jurisdictional error.

17                        In the first ground the appellant complains that he did not receive fair justice from the Federal Magistrate but gives no particulars.  The appellant is unrepresented which might explain why the allegation is expressed in such general terms without any particulars.  However, there is nothing in the Appeal Book or in any submissions made by the appellant which would justify the making of a claim that the Federal Magistrate had failed to act fairly, unless it be because he dismissed the application.  That is not a reason to assert that “the appellant didn’t receive fair justice from the Court below”.  That ground must be dismissed.

18                        As I have said, the appellant contended before the Federal Magistrate that the RRT’s use of the letter it received on 18 December 2008 gave rise to an apprehension of bias.  That allegation has not been maintained on appeal.  I have in any event considered the matter.  There is nothing in the papers before me that would support a finding that a fair-minded lay observer might reasonably apprehend the RRT might not have approached the question to be decided with an impartial mind: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27].

19                        The second ground seeks a merits review on the finding made by the RRT that the appellant was not a member of the particular social group, namely homosexuals in Bangladesh.  The RRT correctly identified the particular social group of which the appellant claimed to be a member and found it to exist.  The question was, as the RRT correctly identified, whether the appellant was a member of that group.  The finding that the appellant was not a member of that particular social group was fatal to the appellant’s application for review.  It is not for this Court any more than it was for the Court below to embark upon a merits review of the decision of the RRT.  The second ground must be dismissed.

20                        The third ground must also be dismissed because the Federal Magistrate was under no obligation to comply with s 424A because of the provisions of s 424A(2A).  The RRT proceeded under s 424AA and gave the appellant clear particulars of the information that the RRT considered would be the reason or part of the reason for affirming the delegate’s decision which was the information contained in the letter the RRT received on 18 December 2008.  Once the RRT had complied with s 424AA, it was relieved of the obligation to comply with s 424A by the provisions of s 424A(2A).  The third ground must be dismissed.

21                        The appeal must be dismissed.  The appellant must pay the first respondent’s costs.

Associate:

Dated:         2 December 2009