FEDERAL COURT OF AUSTRALIA

SZODT v Minister for Immigration and Citizenship [2010] FCA 855

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs 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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     This is an appeal against a judgment of a Federal Magistrate delivered on 3 June 2010 (SZODT v Minister for Immigration & Anor [2010] FMCA 371) in which the Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 18 December 2009 and handed down on the same day.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (the delegate) to refuse to grant a Protection (Class XA) visa to the appellant.

2                     The appellant is a citizen of India who arrived in Australia on 4 April 2009. On 15 May 2009, the appellant lodged an application for a Protection (Class XA) visa (Protection visa application) with the Department of Immigration and Citizenship (the Department).

3                     In a Statutory Declaration subscribed on 14 May 2009 which accompanied his Protection visa application, the appellant claimed that, when he was in “class 8”, studying at the Sarvoudda Bal Government School in New Delhi, he began a homosexual relationship with another student at his school, “Mr P”.  He claimed that, on 10 April 2002, other students at his school reported Mr P and him to the school principal after catching them in an “unpleasant situation”.  He said that he and Mr P were severely beaten by the principal and expelled from school.  The appellant stated that, when he came home after being expelled from school, his father demanded that he cease his “activities” as his behaviour was not acceptable to his family’s religion, Hinduism, and would bring the family into disrepute.  He said that he promised to comply with his father’s demand.

4                     The appellant claimed that a few months after he had been expelled from school, while his father was away, Mr P came to his home and they went to “an isolated place” where they engaged in sexual activities.  According to the appellant, he and Mr P were seen by one of the locals who then told his father.  As a result of this, his father beat him severely and threw him out of the family home.  The appellant stated that he subsequently moved to Gurgaon in the state of Haryana, where, for a time, he stayed with a relative.  He said that he later rented shared accommodation in Gurgaon.

5                     The appellant claimed that thereafter he continued his relationship with Mr P, who visited him at his home in Gurgaon and “spent a few nights” there.  The appellant’s flatmate came to learn of the appellant’s relationship with Mr P.  The appellant claimed that he then felt unsafe.  He said that he left his job and moved to Faridabad, another city in the state of Haryana, where he worked as a delivery person for a restaurant.  The appellant stated that Mr P moved in with him a year later and that they were “living a good life together” until February 2004 when the true nature of their relationship came to the attention of the locals.   

6                     The appellant claimed that Mr P felt that it was no longer safe for him to live in India.  Mr P decided to leave India and to emigrate to the United Kingdom.  According to the appellant, Mr P arranged a visa for the United Kingdom with the help of a relative and left for the United Kingdom on 25 May 2005.  The appellant claimed that he also attempted to go to the United Kingdom in 2007 to meet Mr P but was denied a visa.  He further claimed that, after Mr P left, he had become distressed, frustrated and “under severe mental pressure”.  He said that he was living in a hostile environment and feared that he would be “teased” by his local community for being homosexual.  The appellant alleged that, in this period, he was assaulted by members of his local community.  He said that his relationship with his family had completely broken down by 2007. 

7                     The appellant claims that his homosexuality, which he says is frowned upon in Indian society and under the Hindu religion, makes him a target for harassment and persecution in India and that he will be persecuted if he is forced to return to India.  He claims that homosexuality is not legally accepted anywhere in India and that, for this reason, he will not be able to obtain governmental support or protection.  He also says that homosexuals in India are not free to live openly as homosexuals and are victims of persecution and discrimination in every sphere of their lives in Indian society.  He wants a fair opportunity to live with freedom and dignity and to be free to try to resume his relationship with Mr P.

8                     The delegate refused the appellant’s Protection visa application on 12 August 2009. The delegate concluded that the appellant did not have a well-founded fear of persecution for a Convention related reason.  The delegate considered that the appellant’s account of his relationship with Mr P and the events that allegedly transpired in India which he gave at his interview with the delegate on 5 August 2009 was implausible and inconsistent with written statements made by the appellant in his Statutory Declaration and with documentary evidence of the appellant’s residency in the relevant period.  The delegate concluded that the appellant had provided an inaccurate account of his situation and had not been truthful when providing information at the interview.  The delegate also took the view that, even if he were to accept the appellant’s version of events, there was sufficient evidence regarding the status of homosexuality in India in independent country information (in the form of Indian High Court rulings on the issue and reports of homosexual rights groups) to support the conclusion that relocation within India was a reasonable option for the appellant.

The Proceedings in the Tribunal

9                     On 8 September 2009 the appellant applied to the Tribunal for a review of the delegate’s decision.

10                  In a letter dated 22 September 2009, the Tribunal invited the appellant to appear before it to give evidence and to present arguments relating to the issues in his case.  That letter indicated that the hearing of the appellant’s application for review was scheduled to take place on 13 November 2009 and enclosed a form entitled “Response to Hearing Invitation” enabling the appellant to confirm the hearing and to make any requests or attach additional information for the Tribunal to consider.  A completed Response to Hearing Invitation form was received from the appellant by the Tribunal on 6 October 2009.  In that form, the appellant indicated that he required an interpreter, preferably male, who could interpret from English to the Hindi language and vice versa.

11                  The hearing of the appellant’s application for review took place, as scheduled, on 13 November 2009.  It was conducted with the aid of a Hindi interpreter.

12                  On 16 November 2009, after the hearing of the appellant’s application for review, the Tribunal forwarded a letter to the appellant (s 424A letter), pursuant to s 424A of the Migration Act 1958 (Cth) (the Act), inviting the appellant to comment on or respond to information which the Tribunal considered would or might present difficulties for the appellant and that would be the reason or part of the reason for the Tribunal affirming the delegate’s decision.  In that letter, the Tribunal stated that any comments or response which the appellant sought to make were required to be provided to the Tribunal by 9 December 2009.  The Tribunal also said that, if the Tribunal did not receive the appellant’s comments or response within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further steps to obtain the appellant’s views and the appellant would lose any entitlement which he might otherwise have had under the Act to appear before the Tribunal to give evidence and to present arguments.

13                  On 9 December 2009, the last day on which the appellant could respond to the Tribunal’s s 424A letter without extension, the appellant rang the Tribunal at 11.39 am to advise that he would not be attending at the Tribunal on that day as he had a fever.  When asked about his response to the s 424A letter, he said that his English was not good and that he needed a Hindi interpreter.  He was reminded that his response to the Tribunal’s s 424A letter was required by close of business that day (9 December 2009).  He was advised that the Tribunal would secure the services of an interpreter to assist him and would contact him again.  At 1.49 pm, another Tribunal officer called the appellant twice on his mobile telephone.  The calls went straight to the appellant’s message bank.  The Tribunal officer left her number to be forwarded to the appellant via text message.  There is no indication that the appellant sought to respond to the Tribunal’s communications or to make further contact with the Tribunal in relation to the s 424A letter or his response thereto.  The only phone number which the appellant had notified to the Tribunal was the mobile number which was called by the second Tribunal officer on 9 December 2009. 

14                  On 18 December 2009, the Tribunal notified the appellant of its decision to affirm the delegate’s decision and to dismiss his application for review of that decision.  

15                  In its Reasons (particularly at [20]–[69]), the Tribunal considered the appellant’s claims in detail.  It did so by reference to the interview which the delegate had conducted with the appellant on 5 August 2009, the appellant’s Protection visa application, the evidence given by the appellant at the hearing before the Tribunal on 13 November 2009 and the communications between the appellant and the Tribunal concerning the s 424A letter.

16                  At [37]–[70] of the Tribunal’s Reasons, the Tribunal member summarised in considerable detail the conduct of the hearing before the Tribunal, the questions put to the appellant at the hearing and the answers given by the appellant to those questions.  At [61]–[69] of its Reasons, in particular, the Tribunal explained that it had drawn the appellant’s attention to the answers which he gave at the hearing that were inconsistent with material which the appellant had provided to the Department.  It is not necessary to list comprehensively in these Reasons the many matters to which the Tribunal member referred in this section of the Tribunal’s Reasons.  It is sufficient to note that, on a fair reading of these paragraphs, the Tribunal drew the attention of the appellant to all matters which it was required to point out to him and did so adequately and fairly.

17                  At [71]–[73] of its Reasons, the Tribunal also specifically addressed the communications between the Tribunal and the appellant in respect of the s 424A letter. 

18                  At [90] of its Reasons, the Tribunal found that the appellant was not a credible, truthful or reliable witness and that he showed a propensity to change his evidence in a manner which was calculated to assist his case.  In particular, the Tribunal found that the appellant’s evidence regarding his core claims was internally inconsistent and that the appellant had failed to provide satisfactory explanations for such inconsistencies.  This state of affairs undermined the credibility of his claims.  The Tribunal ultimately did not accept that the appellant was homosexual, practised homosexuality or was involved in homosexual relationships or activity in India or in Australia.

19                  At [77]–[89] of the Tribunal’s Reasons, the Tribunal member provided a detailed account of the inconsistencies in the appellant’s evidence which led the Tribunal to reject the appellant’s claim to be homosexual and the manner in which those inconsistencies were discussed with and by the appellant at the hearing before the Tribunal.

20                  At [77]–[78] of the Tribunal’s reasons, the Tribunal member stated:

77.       The applicant did not impress the Tribunal as a credible witness. In reaching this view, the Tribunal has had regard to the inconsistencies between the evidence he presented to the Department and his evidence to the Tribunal, the unconvincing nature of key parts of his claims, and other reasons detailed below.

78.       The inconsistencies in the applicant’s evidence covered his movements, circumstances and the consequences of his sexual activities with his claimed sexual partner, [Mr P].

21                  An example of the Tribunal’s treatment of such inconsistencies can be found at [81]–[85] of its Reasons, where the Tribunal member said:

81.       The applicant’s claims before the Tribunal were distinctly different to the account he had put forward to the Department. In his statement, for instance, the applicant indicated that after his initial stay with a relative, he rented shared accommodation in Gurgaon. He gave a clear impression that it was his flatmate who had discovered the nature of his relationship with [Mr P] and that this happened towards the end of his stay in Gurgaon, causing him to move to Faridabad. Similarly, at the interview, in response to the delegate’s numerous questions, he made distinct references to having been discovered by his flatmate as he engaged in sexual activity with [Mr P]. He also claimed that this incident occurred in February 2003 and that after he and [Mr P] moved to Faridabad together, his former flatmate called him to tell him that what he was doing was not good and he should not do it. At no point the applicant made any references to his relative or his knowledge of the applicant’s relationship with [Mr P].

82.       The various inconsistencies in the applicant’s evidence were discussed with him at the hearing. He did not provide explanations for the inconsistencies in his evidence other than to reiterate what he had claimed at the hearing. The Tribunal is unable to reconcile the differences in the applicant’s account of his experiences, which undermine his credibility and truthfulness.

83.       The inconsistencies in the applicant’s evidence extended to his evidence in relation to his move to and circumstances in Faridabad. … When his evidence to the Department was brought to his attention at the hearing, the applicant stated that he had tried to explain the situation to the delegate but the delegate did not understand him. The Tribunal does not find this explanation satisfactory.

84.       The applicant further claimed before the Tribunal to have come to the attention of the locals in Faridabad after they saw them kissing each other. He also stated that he never tried to initiate a relationship or meet anyone else, even after [Mr P]’s departure from India. At the interview, however, he claimed that he and [Mr P] did not come to the attention of the locals or anyone else when he lived together. However, after [Mr P]’s departure when he tried to meet someone else his sexual orientation became known to others. Consequently, he was threatened and was told to leave. When the delegate put to him that this contradicted the contents of his statement to the effect that he and [Mr P] came to the attention of locals in February 2004, he said whatever he [was] describing at the interview was correct and the person who had typed his statement had made a mistake. When the delegate put to him that he had confirmed the accuracy of the contents of his statement at the beginning of the interview, he said he did not consider it properly. The inconsistencies in his evidence were discussed with the applicant at the hearing. However, he was unable to provide a meaningful explanation and repeated the version of events he had provided at the hearing. The Tribunal finds the applicant’s evidence most troubling and his explanation unconvincing.

85.       The Tribunal’s concerns are compounded by the applicant’s written claim that he was not accepted by the people in the society and that he ‘was being assaulted by them’. The applicant did not pursue this claim and made no mention of being assaulted by anyone other than by his father at the interview or at the hearing. When this was put to him at the hearing, he did not explain why he had claimed in his statement to have been assaulted and merely stated that the matter was not discussed at the interview.

22                  The Tribunal also noted that the adverse information giving rise to the inconsistencies in the appellant’s evidence was put to him in the s 424A letter, which was not responded to by the appellant.  In particular, at [79] and [86] of the Tribunal’s Reasons, the Tribunal member noted:

79.       … When the inconsistencies in relation to the circumstances leading to his departure from school were put to him at the hearing, he simply reiterated that he had left the school voluntarily. The Tribunal does not find this explanation satisfactory. The applicant did not respond to the Tribunal’s a 424A letter and provided no comments in response to the information he had provided to the Department regarding the manner in which he was treated by the school principal.

…

86.       The adverse information giving rise to the inconsistencies referred to in the above paragraphs, which go to the core of the applicant’s evidence and seriously undermine the credibility of his key claims, were put to him in a s 424A letter. The applicant did not respond to this letter and no further evidence was submitted in support of the case.

23                  In addition to the inconsistencies in the appellant’s evidence, the Tribunal (at [88] of its Reasons) found the appellant’s responses concerning how he had come to realise that he was homosexual unconvincing.  The Tribunal found that his evidence on this matter was vague and did not contain any credible or meaningful references to any thought processes which may have occupied his mind while coming to terms with such significant issues of identity and difference in a community which is apparently hostile to homosexuality.  At [89] of its Reasons, the Tribunal also rejected the appellant’s claim to have engaged in homosexual activities in Australia on the basis of the vagueness of the appellant’s evidence and his inability to explain satisfactorily his motivations for attending a gay church, the sole homosexual activity he claimed to have engaged in while in Australia, combined with the Tribunal member’s overall negative impression of the appellant’s credibility.

24                  For all of the above reasons, the Tribunal found that there was no real chance that the appellant would be harmed for a Convention related reason should he return to India and was therefore not satisfied that the appellant had a well founded fear of persecution for a Convention related reason.

The Decision of the Federal Magistrate

25                  On 11 February 2010, the appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court.  In his application for judicial review of that decision, the appellant raised the following grounds:

1.         The Tribunal did not consider me as a credible witness. The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction for its failure to take into consideration the harm amounting to persecutions I experienced in India for my relationship as homosexual. The Tribunal failed to accord procedural fairness at the time of decision as I was not given adequate opportunity to provide documents as proof of persecution I experienced in India.

2.         The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction or denied procedural fairness in that the Tribunal failed to consider the documents I have provided to substantiate my claims for a protection visa. The Tribunal failed to exercise the power conferred on the Tribunal under s.427(1)(d) of the Migration Act.

3.         The Tribunal failed to perform the duty imposed on it by the Migration Act (section 424(1)).

26                  At the hearing before the Federal Magistrate on 19 May 2010, the appellant raised a new claim.  He said that the interpretation services provided to him at the hearing before the Tribunal had been deficient.

27                  After reviewing the history of the appellant’s attempts to secure a permanent place in Australia and the disparate claims made by the appellant in his Statutory Declaration, at his interview with the delegate on 5 August 2009 and before the Tribunal, the Federal Magistrate proceeded to determine the appellant’s application for judicial review of the Tribunal’s decision.

28                  Prior to doing so, at [4] of his Reasons, the Federal Magistrate noted that his task was:

to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act 1958; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

29                  In his Reasons, the Federal Magistrate rejected each of the three grounds of review raised by the appellant and concluded that the appellant had failed to discharge the burden of proof which he bore in respect of his additional claim regarding the alleged deficiency of the interpretation services provided at the Tribunal hearing. 

30                  In respect of the first ground of review, the Federal Magistrate held (at [14]–[23] of his Reasons) that:

(1)               Credibility findings were the province of the Tribunal and were not matters which the Court could review;

(2)               The harm, mistreatment and ostracism allegedly experienced by the appellant in India by reason of his alleged sexuality (including allegations of beatings) were comprehensively summarised at [20]–[68] of the Tribunal’s Reasons, were addressed in its Findings and were taken into account by the Tribunal in its reasoning; and

(3)               The appellant’s claim that he sought and was not provided with an extension of time to respond to the s 424A letter was inconsistent with the contents of the first Tribunal officer’s file note of 9 December 2009.  That file note contained no reference to any request made by the appellant for further time to respond to the s 424A letter.  The Tribunal did not err in not affording additional time to the appellant to respond to that letter because he had not requested more time.

31                  The allegation that the appellant was denied procedural fairness in not being given an adequate opportunity to provide documents proving the persecution which he claimed to have suffered in India in response to the s 424A letter was dealt with thoroughly by the Federal Magistrate at [16]–[23] of his Reasons.  In those paragraphs, he said:

16.       … At the hearing in these proceedings, the applicant’s evidence was that after receiving the Tribunal’s post-hearing s.424A notice, he telephoned it saying that he had received the Tribunal’s letter. His evidence was that he asked for more time in order that he could provide a statement substantiating his story. He asked if he could give his statement in Hindi but was told that he had to provide it in English. He told the Court that as his migration agent was away he needed more time because he had to wait for the latter’s return. The applicant said that the person he was speaking to at the Tribunal could not understand his English and, although that person said the Tribunal would call back, it never did.

17.       On the applicant’s version of events, he said to the Tribunal officer who took his call:

... And I said to him on the phone that I don’t understand English that well, so, please, provide me with an interpreter and also about the letter, please, I have received your letter, please give me some more time ...

18.       In cross-examination he said:

I was talking to them. They couldn’t understand my English and I couldn’t understand their English, and they said they would call back, but they didn’t.

19.       The documentary evidence contained in the bundle of relevant documents tends to contradict the version of events given in the applicant’s evidence. At RD 94 a file note of the applicant’s telephone call to the Tribunal on 9 December 2009 is reproduced. That file note records the conversation in terms of the following summary:

The Review applicant rang to advise that he was not coming to the Tribunal today as he had a fever. I noted that a 424A response was due today. I asked the applicant if he had received the Tribunal’s letter. He said yes. I asked him if he had read it and responded to the letter. He said that his English was not good. I asked if he needed an interpreter. He said yes he needed a Hindi interpreter. I advised that the Tribunal would get an interpreter and return his call. [Emphasis added]

20.       Significantly, the applicant agreed in cross-examination that he had said to the Tribunal in the telephone call that he was sick with fever and he recalled his belief that he had been meant to attend the Tribunal that day.

21.       It is to be observed that the file note says nothing about the applicant wanting to submit a statement and seeking further time on that account. Rather, it records his misunderstanding that the Tribunal had, by the s.424A notice, required his attendance at the Tribunal on 9 December 2009. Further, although a migration agent is referred to in the applicant’s protection visa application, that person was not referred to in the application to the Tribunal and no reference is made to this person in the file note of the conversation on 9 December 2009. Moreover, although the applicant says that the Tribunal never returned his call, its file note reproduced at RD 93 records that in the hours after the applicant’s call to the Tribunal, the Tribunal endeavoured to telephone him twice but on both occasions the call went to voicemail. That file note records:

Phoned review applicant twice re the previous case note & the applicants mobile number went straight to message bank.

I left my number which will be sent to the applicant via an SMS.

22.       The parties agree that there was no second conversation between the applicant and the Tribunal relevant to his call on 9 December 2009. Importantly, the applicant’s evidence was that he did not telephone the Tribunal a second time. Other than saying that he was waiting for the Tribunal to call he gave no reason for not having pursued the matter. It is difficult to accept that a person who feared persecution, and faced the risk of being returned to the country where that persecution would occur, would take no further action in the circumstances described by the applicant.

23.       Notwithstanding the possibility arising out of the applicant’s evidence that in the telephone conversation on 9 December 2009 he made a request for further time to respond to the s 424A notice which was not understood, I am satisfied that the Tribunal officer to whom he spoke did understand what he said. Notwithstanding the applicant’s request for an interpreter, the note of that relatively simple conversation contains no suggestion of any difficulties in mutual comprehension, at least as far as that conversation went, and there is no reason to think that any such difficulty would not have been recorded. Although the applicant may very well have wished to submit a statement to the Tribunal responsive to its s.424A notice, the first file note of 9 December 2009, which I accept is accurate, reveals that he never raised that matter with the Tribunal when he telephoned it. I do not accept that the applicant said to the Tribunal on 9 December 2009 that he wanted more time, presumably to respond to the s.424A notice. Further, he never pursued the issue by following up his call of 9 December 2009. As I find that a request for more time was never made to the Tribunal, whether in the applicant’s telephone call of 9 December 2009 or subsequently, no error is disclosed by reason that the Tribunal did not afford him such additional time.  

32                  In respect of the second ground of review raised by the appellant, the Federal Magistrate:

(1)               Noted (at [25] of his Reasons) that the documents which were submitted by the appellant in support of his application, including his Statutory Declaration which accompanied his Protection visa application, copies of pages from his passport and various identity cards were all specifically referred to in the Tribunal’s Reasons and that there was no evidence that the appellant had submitted any additional documents to the Tribunal other than a few handwritten notes identifying the appellant’s addresses in Gurgaon and Faridabad.  These notes were provided by the appellant to the Tribunal at its request; and

(2)               Held that there was no evidence to support the appellant’s assertion that he had requested the Tribunal to exercise its discretion under s 427(1) of the Act to require the Secretary of the Department to undertake or organise an investigation of some kind or to arrange for medical examinations.  Nor was there any basis for concluding that, by not exercising its discretion pursuant to s 427(1) of the Act, the Tribunal had somehow failed to conduct a proper review or constructively failed to exercise its jurisdiction.

33                  In respect of the third ground of review, the Federal Magistrate (at [28] of his Reasons) rejected the claim that the Tribunal failed to perform the duty imposed upon it by s 424(1) of the Act.  He said that the Tribunal was not obliged in every case to exercise the power vested in it by s 424(1) to make enquiries and that, while a failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, could in some circumstances constitute a failure to review and thus amount to jurisdictional error, such circumstances did not exist in the present case.  Nothing put by the appellant to the Tribunal or arising from the claims made by him in the course of the visa application process and its review indicated an obvious area of necessary inquiry for the Tribunal to pursue.

34                  The Federal Magistrate also noted that the only aspect of the appellant’s evidence which the appellant identified as having been poorly interpreted by the interpreter at the Tribunal hearing related to the events in Gurgaon—events which were described in a reasonably detailed summary at [43] of the Tribunal’s Reasons.  The Federal Magistrate held that the appellant had not identified in what respects that summary was deficient or inaccurate, had not given any evidence of what was omitted from the interpreter’s account or the Tribunal’s summary of the appellant’s evidence and had failed to demonstrate that his belief that aspects of his evidence at the Tribunal hearing were not properly and fairly interpreted was well founded.

35                  This claim was dealt with at [29]–[30] of the Federal Magistrate’s Reasons as follows:

29.       The applicant’s evidence was that the interpreter at the Tribunal hearing failed to translate everything that he said. He said his English language skills were sufficient for him to be able to tell that the interpreter had failed to translate everything he had said. He said that he challenged the interpreter on one occasion, in Hindi, telling him to “tell them the whole thing”. Importantly, the only aspect of his evidence to the Tribunal which the applicant was able to identify to the Court as having been poorly interpreted concerned the events in Gurgaon. At para.43 of its decision record the Tribunal sets out a reasonably detailed summary of the evidence which the applicant gave concerning those events. However, the applicant has not identified in what way that summary is deficient or inaccurate. In particular, given the applicant’s evidence that the interpreter had failed to interpret everything he had said, it is significant that the applicant gave no evidence of what was omitted from the translation or from the Tribunal’s summary of his evidence.

30.       Although the applicant might believe that everything he said at the Tribunal hearing was not translated, he has not demonstrated that this belief is well-founded. This is particularly so given that no transcript of the Tribunal hearing, or any evidence from an expert interpreter concerning the accuracy and completeness of the translations at the Tribunal hearing, have been placed before the Court by the applicant. This is notwithstanding that on 1 March 2010 the parties were directed that any further evidence to be relied upon in these proceedings was to be presented by way of affidavit and that any evidence of a Tribunal hearing was to be presented as a transcript verified by affidavit. Had the applicant observed that direction then his evidence might have been strengthened sufficiently that he could have made out his allegation. However, for the reasons given above at [29], he has failed to discharge his burden of proof on this issue.

36                  Having found no jurisdictional error in the Tribunal’s decision, the Federal Magistrate dismissed the appellant’s application.

The Appeal in this Court

37                  The appellant filed a Notice of Appeal in this Court on 15 June 2010.  In that Notice, the appellant sought a writ of prohibition and an injunction preventing the respondents from giving effect to the delegate’s decision (which had been affirmed by the Tribunal), a writ of certiorari quashing the decision, a writ of mandamus requiring that the appellant’s Protection visa application be remitted to a differently constituted Tribunal for re-determination and an order that the first respondent pay the appellant’s costs.  The grounds of appeal specified in that Notice are as follows:

1.         The Federal Magistrate Honourable Cameron erred in law not finding the errors of jurisdiction in the proceedings of the Refugee Review Tribunal (“the Tribunal”), in that the Tribunal did not provide me sufficient opportunity of interpreting services during correspondences over telephone with the Tribunal regarding my interview and subsequently engagement of incompetent interpreter at the time of interview that placed me in a disadvantaged situation of explaining my claims at the time of the interview.

2.         The Federal Magistrate erred in law not finding the errors of jurisdiction of the Tribunal as the Tribunal did not give me a reasonable opportunity to respond to the independent evidence in the possession of the Tribunal which suggested to the Tribunal that the homosexuals are not persecuted in India and is able to maintain relationship which is recognised socially and under the law.

3.         The Federal Magistrate erred to find that the Tribunal failed to accept me as a credible, truthful and reliable witness and did not consider my documents I have provided in support of my claims.

4.         The Federal Magistrate erred in not finding that the Tribunal erred in law amounting to jurisdictional error in finding that I do not have genuine fear of persecution for a convention reason for my homosexual relationship and my persecutions are not well-founded within the meaning of the convention and I do not meet the criteria set out in s.36(2) of the Act of Protection visa;

5.         The Federal Magistrate erred not to find that the Tribunal did not consider at the time of decision that:

•           Homosexuality is not acceptable in Indian society and also in Hindu religion. The Tribunal failed to consider that my life would be at risk if I have to return to India for my homosexual relationship.

•           The Tribunal failed to consider that I assaulted for my homosexual relationship prior to my departure from India.

The Federal Magistrate erred in not finding that the Tribunal has not taken into consideration the threat to my life or liberty, significant harassment to me that I shall be experiencing on return back to my country of origin and I do not come within the Convention definition of a refugee.

Consideration

38                  Each ground relied upon by the appellant in his Notice of Appeal must be rejected.

39                  Grounds 2 and 5 were not raised before the Federal Magistrate.  The appellant requires leave to raise those grounds in this Court.

40                  The principles relevant to the exercise of the discretion to grant leave to an appellant to rely on new grounds of appeal not raised at first instance were summarised by Flick J in SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [7]–[11].  The authorities canvassed by his Honour establish that the primary consideration is whether it is “expedient in the interests of justice to do so” (VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158).  Whether the new grounds have a reasonable prospect of success is a matter which is relevant to the exercise of the discretion (NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [166] (p 85) per Madgwick J).  In my view, the claims agitated in Grounds 2 and 5 contained in the appellant’s Notice of Appeal have no prospects of success (see below at [46]–[50] and [55]).  I am, therefore, not prepared to grant leave to the appellant to raise these new grounds of appeal. 

Ground 1 (The Tribunal’s Failure to Provide the Appellant with an Opportunity to Obtain Interpreting Services When Responding to the s 424A Letter and the Tribunal’s Failure to Provide Adequate Interpreting Services at the Tribunal Hearing)

41                  The appellant did not tender any evidence in support of this ground of appeal.  

42                  The allegation that the interpreter at the Tribunal hearing failed adequately to interpret was dealt with by the Federal Magistrate at [29]–[30] of his Reasons, which are extracted at [35] above.  There is nothing to suggest error in the reasoning of the Federal Magistrate.  As noted by the Federal Magistrate, the only evidence before him of the interpreter’s performance was the Tribunal Decision Record.  The position is the same in this Court.  That Record notes the fact that the hearing before the Tribunal was conducted with the assistance of an interpreter in the Hindi and English languages.  There is no suggestion in the Record that the appellant raised any difficulties concerning the interpreter or his performance during the Tribunal hearing.  Although the appellant claims that the interpreter failed to interpret everything he had said, the only aspect of his evidence that he claims was poorly interpreted, the events in Gurgaon, was summarised in substantial detail by the Tribunal at [43] of its Reasons.  The appellant did not identify specific omissions from the interpreter’s account of his evidence and did not provide evidence substantiating his claims.  He did not explain what, if anything, was inaccurately recorded at [43] of the Tribunal’s Reasons. 

43                  Further, there is no evidence supporting the allegation that the appellant was denied adequate interpreting services in the course of communicating with the Tribunal in respect of his reply to the s 424A letter.  The s 424A letter made clear to the appellant that, if he did not provide a response by 9 December 2009, he could lose his entitlement to appear before the Tribunal.  It is clear from the file notes made by the two Tribunal officers that, on 9 December 2009, the final day on which the appellant could respond to the s 424A letter (without an extension), the appellant contacted the Tribunal under the impression that he was required to attend on that day and with the intention of indicating that he had a fever and would not be attending.  The file note made by the first Tribunal officer suggests that the appellant had a reasonable understanding of the s 424A letter.  During the phone call which he had on 9 December 2009, it was only when the Tribunal officer asked him whether he had read and responded to the s 424A letter that the appellant indicated that he needed an interpreter.  The first Tribunal officer told the appellant that his response to the s 424A letter was due that very day (9 December 2009).  The Tribunal attempted to contact the appellant a second time on that day in relation to his request for an interpreter but the appellant did not answer his phone or return the call, despite the fact that the Tribunal officer arranged for her phone number to be forwarded to the appellant by text message when her call was diverted to his message bank.  

44                  It is significant that the appellant did not initiate contact with the Tribunal of his own accord in relation to the s 424A letter until the very last day when he could respond to the letter nor did the appellant seek to follow up his request for an interpreter with the Tribunal after the first phone call.  The appellant had apparently understood sufficient English at the hearing before the Tribunal to claim subsequently that the interpreter’s account of his evidence was inaccurate.  It is therefore highly unlikely that the appellant did not understand the Tribunal officer when she indicated during the first phone call on 9 December 2009 that she would attend to his request for an interpreter and call him back.  The lack of any indication in the first Tribunal officer’s file note of difficulties regarding comprehension and the failure on the part of the appellant to follow up his request for an interpreter (as well as his failure to take the initiative in relation to the issue in the first place) are indicative of a lack of genuineness on his part.  As highlighted by the Federal Magistrate, other than saying that he was waiting for the Tribunal to call him, the appellant gave no reason for not having pursued the matter.  He did not subsequently suggest that he had not received the text message with the Tribunal officer’s number after the Tribunal’s second call went to the appellant’s message bank.  It was thus reasonable for the Federal Magistrate to infer, as he did at [22] and [23] of his Reasons, that a person genuinely fearing persecution would take further action in the circumstances and, in turn, that no request for an extension of time on the basis of interpreting needs was ever made to the Tribunal by the appellant on 9 December 2009.

45                  The appellant’s first ground of appeal must therefore be rejected.

Ground 2 (The Tribunal’s Failure to Provide An Opportunity to the Appellant to Respond to Independent Evidence/Country Information Regarding the Persecution of Homosexuals in India)

46                  This ground has no prospects of success.  The appellant has misconceived the basis for the Tribunal’s findings and for its ultimate dismissal of his application for review.  The Tribunal did not place any store on independent country information in relation to the status of homosexuality in India because it did not accept that the appellant was homosexual.  The Tribunal did not concern itself with the treatment of homosexuality in India.

47                  At [91] of its Reasons, the Tribunal held that it did not accept that the appellant was homosexual, practised homosexuality or was involved in homosexual relationships or activity in India or in Australia. The Tribunal also did not accept that the appellant was assaulted, mistreated or otherwise harmed on account of being or being perceived to be homosexual or because he had been or was thought to have been engaging in homosexual activities.

48                  At [92] of its Reasons, the Tribunal stated:

“Having found the applicant was not involved in homosexual relationships and/or activity in India and that he did not face harm as claimed on this basis in India and having found that the applicant has not engaged in or expressed any interest in being involved in homosexual activity in Australia, there is no basis on which the Tribunal can be satisfied the applicant is homosexual. The Tribunal finds that the applicant is not homosexual and there is no real chance that he will be harms for the reason of his sexual orientation…”

49                  The last sentence of [92] of the Tribunal’s Reasons makes clear that the reason that the appellant was not considered at risk of harm in India on the basis of his sexual orientation was not because of independent country information but rather because the Tribunal rejected his fundamental contention that he was homosexual.  This rejection was based upon the Tribunal’s further finding that the appellant was not a credible witness.  The reference to the appellant not facing harm in India is a reference to the appellant’s claim that he was assaulted by members of his local community when those persons became aware of his alleged homosexuality.  This was addressed by the Tribunal at [85] of its Reasons. 

50                  The Tribunal’s Reasons do not support the appellant’s contention that independent country information or other independent evidence was referred to or relied upon by the Tribunal in reaching its decision.  This ground of appeal has no prospect of succeeding.

Ground 3 (The Appellant’s Challenges to the Tribunal’s Findings Concerning his Credibility and Failure to Consider the Appellant’s Supporting Documentation)

51                  As held by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67], the appellant’s credibility is a matter for the Tribunal.  The Federal Magistrate correctly acknowledged this at [14] of his Reasons and no error can be found in the manner in which the Federal Magistrate applied the principles articulated in Durairajasingham 168 ALR 407.  

52                  In relation to the Tribunal’s consideration of the appellant’s supporting documentation, as noted by the Federal Magistrate at [25] of his Reasons, the only documents produced to the Tribunal were those which had accompanied the appellant’s Protection visa application and certain handwritten notes providing details about each of the residences where he had lived from time to time.  These were:

(a)                The Statutory Declaration submitted with that application;  

(b)               Copies of pages from the appellant’s passports;

(c)                Copies of  various identity cards; and

(d)               Handwritten pages identifying the appellant’s addresses in Gurgaon and Faridabad which were provided by the appellant to the Tribunal at its request.

53                  The appellant’s Statutory Declaration was referred to in the Tribunal’s Reasons.  There is no evidence in these proceedings and there was no evidence before the Federal Magistrate that the Tribunal had any additional documentation before it.  This claim is misconceived.  This ground of appeal must also be rejected. 

Ground 4 (The Tribunal’s Failure to Find that the Appellant had a Genuine Fear of Persecution for a Convention Related Reason)

54                  The thrust of the appellant’s submission in support of this ground is that the Tribunal made incorrect findings of fact and did not accept his claims when it should have done so.  This ground seeks to challenge the Tribunal’s credibility findings.  Such a challenge cannot be mounted in this Court and could not be mounted before the Federal Magistrate.  It too must be rejected.

Ground 5 (The Tribunal’s Failure to Consider the Status of Homosexuality in Indian Society, the Assault of the Appellant for his Homosexuality and the Threat to Life and Liberty Posed by his Return)

55                  As noted at [40] above, I have refused to grant leave to the appellant to argue this new ground.  As is the case with Ground 2, the appellant has misunderstood the Tribunal’s reasoning.  The basis for the Tribunal’s rejection of the appellant’s concerns that he will be subjected to threats to his life and liberty and persecution, within the meaning of the Convention were he to return to India, was its finding that his evidence was not credible.  The finding that the appellant was not a truthful witness underpinned the Tribunal’s conclusion that it was not satisfied that the appellant was homosexual.  In coming to this finding, the Tribunal thoroughly canvassed the context in which the appellant’s alleged homosexual experiences took place and specifically addressed the appellant’s allegation that he was assaulted on the basis of his homosexuality, explaining why it ultimately did not accept that he had been assaulted, for that reason, or at all.  This ground has no prospect of succeeding.

Conclusions

56                  None of the grounds of appeal relied upon by the appellant has been made out.  The appellant has been unable to demonstrate appellable error on the part of the Federal Magistrate.  The Federal Magistrate found that the Tribunal had not committed any jurisdictional error.  The appellant’s complaints in both the Federal Magistrates Court and in this Court are complaints which are essentially directed to the merits of his refugee claims and to the findings of fact and findings relating to his credibility made by the Tribunal.  Challenges of this type do not constitute jurisdictional error and the refusal on the part of the Federal Magistrate to uphold such challenges did not constitute appellable error.

57                  For these reasons, the appeal must be dismissed with costs.

Associate:

Dated:         11 August 2010