SZLAE v Minister for Immigration and Citizenship [2008] FCA 807

FEDERAL COURT OF AUSTRALIA

SZLAE v Minister for Immigration and Citizenship [2008] FCA 807

SZLAE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2517 of 2007

SIOPIS J

30 MAY 2008

PERTH IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2517 of 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLAE

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: SIOPIS J

DATE OF ORDER: 30 MAY 2008

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The appeal is dismissed. 2. The appellant is to pay the first respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2517 of 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLAE

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: SIOPIS J

DATE: 30 MAY 2008

PLACE: PERTH

REASONS FOR JUDGMENT Background 1 The appellant is a citizen of India, who arrived in Australia on 9 January 2007. He applied for a protection visa on 6 February 2007, alleging that he would be persecuted in India due to his homosexuality. 2 In a statement attached to his protection visa application, the appellant claimed that he was the only child of a very strict Brahman Hindu family. He claimed that while he was a high school student he started having sexual relations with other young men. On 30 March 2006, his mother arrived home early and found him engaged in homosexual activities. Both the appellant's parents allegedly beat him as a result of this. News of the appellant's sexuality spread through the town in which he lived and some of his school friends were not happy to talk to him. Soon thereafter, the appellant graduated from high school. He applied for admission to BMS, a college, but was rejected on character grounds. He was told that gay people were not permitted to study at that college. The appellant believes that the father of one of the people with whom he engaged in sexual relations, who was a professor, played a role in the rejection of the appellant's application. The appellant then applied to the National College Mumbai, but his application was also rejected on character grounds. The appellant states that he applied for a visa to Australia because his parents were not talking to him. His father asked him to leave the house because his religion did not permit the appellant to live in the same house as his father. The appellant's father said to him that "my Dharam [religion] required me to burn you alive" but the father refused to do this because the appellant was his only son. The appellant stayed with his maternal grandmother until he received a visa to enter Australia. The appellant also said that one of his lovers was attacked by relatives and physically injured. The appellant seeks protection in Australia and wants to join gay organisations here. 3 On 6 March 2007, a delegate of the first respondent refused the appellant's application for a protection visa. On 2 April 2008, the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of the first respondent's decision. The appellant appeared at the Tribunal hearing. On 14 May 2007, the Tribunal affirmed the decision of the first respondent. The Tribunal handed down its decision on 5 June 2007. The Tribunal's decision 4 At the hearing, the appellant said that he was homosexual and he could not return to India because his father would kill him for being homosexual. He restated the claims he had made in his written application about his sexual experiences. The Tribunal also noted that the appellant had applied to come to Australia in 2006 with his uncle and that the appellant's parents had provided the necessary consent papers. The appellant said that he and his uncle were not granted visas on that occasion and that his uncle was aware of his sexual orientation. 5 The Tribunal asked the appellant about his sexual experiences in Australia and how he expressed his sexuality. The appellant said that he could not express his sexuality because he had no money and limited English. He said that his two flatmates knew that he was gay, but that he did not become involved in the gay community because he had no money. He did not read free gay community newspapers. The Tribunal asked the appellant if he knew of any places in Sydney that catered for the gay community. He said that he knew of a place in Newtown but did not know the details and that his lack of money prevented him from going to such places. The Tribunal put to the appellant that some activities did not require money, but the appellant said he thought it would be rude to meet someone and not have the money to offer them a coffee. The appellant said that he would join a gay organisation if he could get a job and have some money, but he did not know which one he would join. When asked by the Tribunal, he said he had not researched gay organisations on the internet. 6 The Tribunal also discussed with the appellant information about the treatment of homosexuals in India. The Tribunal asked the appellant if he was aware of Article 377 of the Indian Penal Code, which criminalises activities such as sodomy. The appellant stated that he did not know about the law, or a constitutional challenge to the law brought by a major gay activist group in India. 7 The Tribunal suggested to the appellant that while gay people are still discriminated against in India, larger cities, particularly New Delhi, were more tolerant of the gay community. The Tribunal put to the appellant that he may be able to relocate to a large city, such as New Delhi, and avoid the harm that he anticipates in Mumbai. The appellant said that he could not return to Mumbai because his father would kill him and that he could not relocate to another part of India because gay men in India do not practise safe sex and he would die of the "disease". 8 The Tribunal told the appellant that they doubted that he was homosexual and that he seemed to know very little of gay life in India or Australia. When the Tribunal asked if it could contact one of the appellant's friends in Sydney, his uncle in India or his former lovers in India to confirm his claims, the appellant said that those people would not be prepared to help him because they did not consider it proper to talk about these matters. 9 The Tribunal found that the appellant was not homosexual. It noted the following factors: • The appellant had not become involved in the gay community in Sydney after he arrived in Australia and he had not demonstrated an interest in living a gay lifestyle. • The appellant's knowledge of the issues confronting gay men in India and his knowledge of the gay scene in Sydney was very poor. • There was no person who corroborated the appellant's claim that he is homosexual. 10 The Tribunal believed that the appellant fabricated his claim about being gay to enhance his protection visa application. Therefore, the Tribunal found that the appellant did not have a well‑founded fear of persecution in India because of his homosexuality or for any other Convention reason. Federal Magistrates Court 11 The appellant filed an application for review in the Federal Magistrates Court on 2 July 2007. The grounds of review were: 1. serious harm; 2. economic hardship; and 3. physical harassment. Further, in an affidavit sworn 2 July 2007, the appellant alleged that the Tribunal did not act in good faith and that the Tribunal's decision was not capable of reference to the decision‑making power given to the Tribunal. The orders the appellant sought were an extension of time (although this was not required) and the grant of a protection visa. 12 The Federal Magistrate dismissed the appellant's application for review on 30 November 2007. He noted that the grounds of review in the application appeared to state the basis of the appellant's claim to be entitled to a protection visa. As such, the appellant appeared to be seeking a merits review. The findings of the Tribunal were open to it on the evidence before it and, therefore, there was no jurisdictional error. 13 The Federal Magistrate noted the seriousness of the allegation that the Tribunal did not act in good faith. The appellant advanced no evidence to support the allegation and the court book indicated that the Tribunal had approached its task conscientiously. The contention that the Tribunal did not act in good faith cannot be made out. 14 The ground that the Tribunal's decision was not capable of reference to the decision‑making power of the Tribunal, also failed. Section 414 of the Migration Act 1959 (Cth) (the Act) required the Tribunal to review the delegate's decision, once a valid review application was made. Section 415 empowers the Tribunal to exercise the powers and discretions conferred on the delegate of the first respondent by the Act. The Federal Magistrate found that the Tribunal fulfilled its requirements under the Act. Appeal to the Federal Court 15 The appellant filed a notice of appeal on 21 December 2007. The grounds of appeal that he listed are: serious harm, physical hardship and an extension of time. Again, the extension of time is not required. The appellant seeks the following orders: 1. That the appellant be heard and the matter be redirected to the Tribunal; 2. That the appellant not be removed from Australia while a decision is pending; and 3. An order for costs as the Court thinks appropriate. 16 The appellant advanced no submissions in support of his appeal. 17 The tenor of the grounds relied upon in the notice of appeal are directed to the merits of the appellant's claims for a protection visa. The Federal Magistrate held that it was not the function of the court to conduct a merits review, and that its role was confined to undertaking a judicial review of the Tribunal's decision. The Federal Magistrate did not err in so finding. Insofar as the grounds of appeal constitute a challenge to the Federal Magistrate's finding, I dismiss the appeal. 18 For the sake of completeness, I also note that the Federal Magistrate also dismissed two other challenges to the Tribunal's decision which were raised by the appellant before him. The first was that the Tribunal acted in bad faith and the second was that the Tribunal's decision was not capable of reference to the decision‑making power given to the Tribunal. The Federal Magistrate did not, for the reasons which he gave, err in dismissing the challenges. 19 The appeal is dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.