FEDERAL COURT OF AUSTRALIA

SZNXZ v Minister for Immigration and Citizenship [2010] FCA 573

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs fixed in the amount of $4,373.

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.

REASONS FOR JUDGMENT

(Revised from Transcript)

1                                             The appellant appeals from the decision of Emmett FM delivered on 22 February 2010 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 3 September 2009 (see SZNXZ v Minister for Immigration and Citizenship & Anor [2010] FMCA 117). The Tribunal’s decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to refuse to grant a Protection (Class XA) visa to the appellant.

Background

2                                             The appellant is a citizen of India.  He arrived in Australia on or about 18 April 2008.  On 8 December 2008 he lodged an application for a Protection (Class XA) visa. 

3                                             In his protection visa application, the appellant claimed to fear persecution in India because of, amongst other things, his homosexuality and his decision to cut his hair.   The details of his complaints are set out in the reasons for decision of the learned federal magistrate. 

4                                             On 2 February 2009, a delegate of the first respondent invited the appellant to an interview.  The appellant attended this interview and submitted further materials in support of his claims.

5                                             On 9 March 2009, a delegate of the first respondent refused to grant the appellant a protection visa.  In short, the delegate was not satisfied that the appellant had a homosexual relationship in India with his English tutor.  The delegate considered that the appellant’s conduct in Australia was inconsistent with him being homosexual. Nor was the delegate satisfied that the appellant’s relationship with his father was not good or that he only felt “free” to lodge an application for a protection visa after his father had left Australia.  The delegate also concluded that the appellant did not have a high profile in India and that it was reasonable for the appellant to relocate within India.

6                                             On 31 March 2009, the appellant applied to the Tribunal for a review of the delegate’s decision.  By letter dated 14 April 2009, the appellant was invited to appear before the Tribunal for a hearing on 3 June 2009.   The appellant attended the hearing before the Tribunal.  On 10 August 2009, the Tribunal sent a letter to the appellant requesting comments or responses to various particulars of information set out in the letter.  On 1 September 2009, the appellant responded to the Tribunal’s request.

7                                             On 3 September 2009, the Tribunal handed down a decision which affirmed the decision of the delegate. 

The Tribunal’s findings

8                                             The Tribunal’s reasons for decision set out the appellant’s claims, the evidence that the appellant gave at the Tribunal hearing and independent country information relied upon by the Tribunal.  

9                                             The Tribunal accepted that the appellant was a citizen of India. The Tribunal further accepted that homosexuality within the Sikh community exists and that some homosexuals within that community face considerable hardship because of their sexual orientation.  However, the Tribunal rejected the appellant’s other claims.  It analysed the appellant’s evidence of his dealings with his father and the tutor with whom the appellant claimed he had a homosexual relationship.  It pointed to various inconsistencies which it perceived to exist in the appellant’s evidence.  It concluded that the appellant was not truthful. 

10                                          The Tribunal rejected the suggestion that the appellant’s family perceived him as a homosexual.  It accepted that the appellant might have had a disagreement with his father about cutting his hair and becoming ‘westernised’ in his appearance but did not accept that his father had assaulted him or that the appellant had a well founded fear of harm amounting to persecution from his father, family or other members of the Sikh community.

11                                          The Tribunal was not satisfied that there was a real chance that the appellant would suffer persecution for any Convention related reason should he return to India.

Decision of the Federal Magistrates Court

12                                          Before the learned federal magistrate, the appellant pleaded three grounds of review which are summarised in her Honour’s reasons: SZNXZ v Minister for Immigration & Anor [2010] FMCA 117 at [33].   The learned federal magistrate rejected the first ground which appeared to allege bias on the part of the Tribunal, rejected the second ground which alleged that the Tribunal had erred by failing to accept documentary evidence tendered by the appellant to the Tribunal and rejected the third ground which made unparticularised allegations about the Tribunal failing to consider whether the appellant would face harm amounting to persecution if he were to return to India.

13                                          The learned federal magistrate concluded that the Tribunal had not committed any jurisdictional error. 

Appeal to this Court

14                                          In his appeal to this Court, the appellant has raised 5 grounds of appeal alleging that the federal magistrate erred by not finding that the Tribunal had erred by:

·                    failing to afford the appellant procedural fairness by not giving him a reasonable opportunity to respond to the country information which formed the reason, or part of the reasons, to refuse the application (ground 1); 

·                    rejecting the appellant’s evidence about his homosexual relationship in India, finding that the appellant had given inconsistent evidence and finding that he was not a credible witness (ground 2);

·                    failing to find that the appellant was being persecuted for a Convention reason (ground 3);

·                    failing to consider the documents (including various emails and telephone records) submitted by the appellant as proof of his homosexual relationship (ground 4); and

·                    failing to accept that the appellant had any such relationship with any other individual in that country (ground 5). 

Appeal Ground 1

15                                          The first ground of appeal alleges that the Tribunal failed to provide the appellant with an opportunity to respond to the country information upon which the Tribunal relied as the reason, or part of the reasons, to refuse the application.   This ground of appeal was not raised before the learned federal magistrate. The appellant requires the leave of the Court to advance it in this appeal.  Such leave will not be given if the point sought to be raised has no merit: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 per Kiefel, Weinberg and Stone JJ at [46]-[48]. 

16                                          The appellant’s argument assumes that there was an obligation upon the Tribunal to invite him to comment on the country information.  This assumption is incorrect.  Section 424A(1) of the Act provides that, subject to subsections (2A) and (3), the Tribunal must give to the appellant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.  However, s 424A(3)(a) provides that subsection (1) does not apply to information that is not specifically about the appellant or another person and is just about a class of persons of which the appellant or other person is a member.

17                                          It is well settled that the effect of s 424A(3)(a) is to exclude country information from the requirements of s 424A(1): Minister for Immigration and Multicultural Affairs and Indigenous Affairs v NAMW (2004) 140 FCR 572 at [64]–[74] and [138]; VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [11]–[16]. Accordingly, the Tribunal was not obliged to provide the independent country information to the appellant for comment. Ground 1 does not raise any arguable ground of appeal. Leave to rely upon this ground of appeal is therefore refused.

Appeal Grounds 2, 4 and 5

18                                          Grounds 2, 4 and 5 are overlapping as they each assert that the learned federal magistrate erred by not finding that the Tribunal had erred in rejecting certain of the appellant’s arguments and evidence or in finding that he was not a credible witness.  

19                                          The acceptance or rejection of evidence is ultimately a matter for the tribunal of fact: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27].  Similarly, it is the function of the Tribunal to make credibility findings: see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]; NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291.  Accordingly, the learned federal magistrate was correct to reject the appellant’s arguments based upon the Tribunal’s rejection of evidence or its assessment of his credibility.  Each of grounds 2, 4 and 5 is rejected.

Appeal Ground 3

20                                          Appeal ground 3 raises an unparticularised assertion that the learned federal magistrate erred by failing to find that the Tribunal had erred in not finding that the appellant had suffered from persecution.   This ground of appeal was not developed in argument before me by the appellant at all. It follows from what I have already said that this ground of appeal cannot succeed.   

Conclusion

21                                          The appeal should be dismissed with costs. I fix the costs in the amount of $4,373.

Associate:

Dated:         4 June 2010