SZLVK v Minister for Immigration and Citizenship [2009] FCA 100

FEDERAL COURT OF AUSTRALIA

SZLVK v Minister for Immigration and Citizenship [2009] FCA 100

SZLVK v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1751 of 2008

GRAHAM J

10 FEBRUARY 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1751 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLVK

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE OF ORDER: 10 FEBRUARY 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant to pay the Respondent Minister'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.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1751 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLVK

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE: 10 FEBRUARY 2009

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant, who is identified for the purposes of these proceedings as 'SZLVK' was born in Narayangarh in Hoshiarpur, India, on 3 November 1986. He obtained an Indian passport on 31 August 2006. When in the Peoples Republic of China, he obtained a visa described as a Class TX visa permitting him to enter Australia. 2 He arrived in Australia on 4 July 2007. On 5 July, he lodged an application for a Protection (Class XA) visa. He responded to the question, "Why did you leave that country [India]?" In the following terms: 'I was persecuted for my political belief and sexual orientation. I am a gay. I will provide more details in an interview. For now, please accept my application. I am in urgent need of protection. I am very scared.' 3 The appellant's application for a Protection (Class XA) visa was refused by a delegate of the Minister on 3 September 2007. On 24 September 2007, he applied to the Refugee Review Tribunal for review of the Minister's delegate's decision. On 9 October 2007, he was invited to attend a hearing before the Refugee Review Tribunal ('the Tribunal'). The Tribunal stated that it had considered the material before it, but it was unable to make a favourable decision on that information alone. 4 The appellant appeared before the Tribunal member dealing with his application for review on 8 November 2007. On 14 November 2007, the Tribunal decided to affirm the decision not to grant the appellant a Protection (Class XA) visa. That decision was handed down on 4 December 2007. 5 On 28 December 2007, the appellant filed an Application seeking constitutional writ relief in respect of the Tribunal's decision in the Federal Magistrates Court of Australia. That application was itself amended. The Amended Application dated 20 May 2008, which was forwarded by the appellant to the Federal Magistrates Court by facsimile on 22 May 2008, raised the following grounds: '1. The Tribunal failed to comply with the s424A of the Act. Particulars: The Tribunal failed to invite the applicant to contest with the information it had which was a reason or part of the reason to affirm the decision that was under review. The Tribunal relied on information obtained from the departmental file and failed to disclose those information to the applicant under s424A of the Act. 2. The tribunal failed to identify that the possible investigation the applicant would face in India on return would be as a result of his political opinion. Particulars: The applicant gave evidence to the tribunal that the riot he was involved in was as a result of his political opinion and he harmed another person as a way of self-defence.' 6 The learned Federal Magistrate heard the application for judicial review on 20 August 2008 and on 17 October 2008 delivered his reasons for judgment, ordering that the Application be dismissed and that the applicant pay the respondent Minister's costs fixed in the sum of $4500. From that judgment, the appellant appealed to this Court by a Notice of Appeal filed 7 November 2008. The grounds of appeal identified in the Notice of Appeal were as follows: '1. The Honorable Magistrate erred in finding that RRT did not commit any jurisdictional error in it's decision. 2. The Honorable Magistrate erred in finding that the RRT did not breach s424A of the Migration Act 1958. 3. The Honorable Magistrate erred in finding that the RRT did not breach natural justice hearing rule.' 7 When invited to address the Court in support of his Notice of Appeal, it became apparent that the appellant was not familiar with the terms of the Notice of Appeal and in particular the grounds referred to in it. 8 In the respondent Minister's submissions, the Court's attention was drawn to the fact that the third ground had not been raised below and it was submitted that leave should not be given to argue it on appeal. Rather than deal with that particular submission, I invited the appellant to address the Court in respect of each of the three grounds seriatim. 9 When asked what the words of ground 1 meant, the appellant's response was, 'I don't know much about that.' 10 When asked why ground of appeal 2 was included in the Notice of Appeal, his response was, 'I can't say anything.' 11 When asked to identify the way in which the Tribunal had breached the natural justice hearing rule as mentioned in ground 3, the appellant said words to the effect: 'Because I explained everything to them [referring to the Tribunal] – my life is in danger over there [referring to India] – but they didn't give the decision in my favour.' 12 In respect of ground 1, the appellant indicated that he thought the correct decision had not been given in the Tribunal. When invited to indicate whether he had anything further to say, the appellant indicated that he had nothing more to say. 13 I have read the Statement of Decision and Reasons of the Tribunal member which appear on some 10 closely typed pages and am unable to discern any jurisdictional error, any failure to comply with s 424A of the Migration Act 1958 (Cth), or any breach by the Tribunal of the natural justice hearing rule to the extent to which it applies to a matter such as this. 14 In the 'Claims and Evidence' section of the Tribunal member's Statement of Decision and Reasons it was noted the appellant had confirmed his claim that he had been persecuted in India because of both his political opinion and his sexual orientation. The appellant claimed to have been a supporter, but not a party member, in the Indian National Congress Party who had solicited new members for the party. He agreed that he had not been persecuted because of his political opinion before he left India indicating that he had just had arguments with others about politics, but when the matter was before the Tribunal said that he feared being killed because the Congress Party was no longer the dominant party in his local area. 15 His claims that he had been persecuted because of his sexual orientation need to be placed in context. Before he travelled to Australia the appellant firstly went to Thailand, then to the Special Administration Region of Macau, then to the Peoples' Republic of China from where he came to Australia. He left India from New Delhi on 18 October 2006; that is to say a little over a month and a half after he obtained his Indian passport. He obtained his visa to travel to Thailand the day before he left India. The Tribunal member noted in the Claims and Evidence section of her Statement of Decision and Reasons that the appellant had been sexually inexperienced until six weeks before he left India and that until that time he had been attracted to women. Notably six weeks before he left India was shortly after he obtained his Indian passport. 16 The other important matter to note is that he informed the Tribunal member that about five days before he went to New Delhi, that is to say about twelve days before he left India, he had seriously injured a person during a fight and that the person whom he injured had been 'close to death.' The appellant agreed with the Tribunal member that under the circumstances the police had a duty to investigate him. In the course of the Tribunal hearing the Tribunal member informed the appellant of her doubts that he was a homosexual, referring in part to the fact that he had made no attempt to make contact with any other homosexuals in the period of four months between his arrival in Australia and the hearing before the Tribunal. 17 For a number of reasons which were set out on pages 9 and 10 of the Tribunal member's Statement of Decision and Reasons the Tribunal member was not satisfied that the appellant considered himself to be homosexual, that he had been perceived in the past to be a homosexual or that he may be perceived in the future to be a homosexual. The Tribunal was not satisfied that the appellant was a homosexual, that he left India for any reason associated with a perception that he was a homosexual or that he feared harm in India for any reason associated with his sexual orientation. In relation to his claims with respect to his political opinion, the Tribunal member considered that the appellant had exaggerated the extent of his support for the Indian National Congress Party. The Tribunal was not satisfied that the essential and significant reason for any harm that he may face were he to return to India might be his political opinion. 18 The Tribunal member concluded that the authorities were justified in conducting an investigation in relation to the serious harm which the appellant conceded he had inflicted on the person whom he injured. The Tribunal member was unable to find, or imply, that he might be treated differently by the authorities for his actions because of his support for the Congress Party. The Tribunal member concluded that the appellant did not have a well-founded fear of Convention related persecution in India. 19 It is apparent that the appellant is simply aggrieved by the findings of the Tribunal member which were unfavourable to him. 20 Section 65 of the Migration Act 1958 (Cth) ('the Act') relevantly provided: '65(1) After considering a valid application for a visa, the Minister: (a) if satisfied that: … (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; … … is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa.' 21 Under s 415(1) of the Act the Tribunal was, for the purposes of the review of the Minister's delegate's decision, empowered to exercise all the powers and discretions that were conferred by the Act on the Minister who through his delegate made the decision. The relevant criterion for the grant of a protection visa to which s 65(1)(a)(ii) referred was to be found in s 36(2) of the Act, which relevantly, for present purposes, provided as follows: '36(2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol;' The Refugees Convention means the Convention Relating to the Status of Refugees done at Geneva 28 July 1951 and the Refugees Protocol means the Protocol Relating to the Status of Refugees done at New York on 31 January 1967. Hereafter I will refer to the Refugees Convention as amended by the Refugees Protocol as 'the Convention'. 22 As has been said many times, proceedings in the Tribunal are not adversarial, but rather, inquisitorial, the Tribunal is not in a position of a contradictor of the case being advanced by an applicant. The Tribunal member conducting the relevant inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair (see per Gummow and Heydon JJ in re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs); ex parte applicant S154/2002 (2003) 201 ALR 437 at [57]; see also Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [40]). 23 The Tribunal conducting an inquisitorial hearing is not obliged to promote and stimulate an elaboration which an applicant chooses not to embark on. It is for an applicant to advance whatever evidence or argument he or she may wish to advance before the Tribunal and for the Tribunal to decide whether the relevant claim has been made out. (See per Gummow and Heydon JJ in Ruddock at [57] – [58]). 24 The question of who answers the description of a refugee is relevantly determined by Article 1 of the Convention which relevantly provided: 'A. For the purposes of the present Convention, the term 'refugee' shall apply to any person who: … (2) … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, 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; or who, not, having a nationality and being outside the country of his former habitual residence … is unable, or owing to such fear, is unwilling to return to it.' 25 The appellant failed to satisfy the Tribunal that the criteria for a Protection (Class XA) visa prescribed by s 36(2)(a) of the Act and the Convention had been satisfied. It is not open to this Court on an appeal such as this to grant the appellant a merits review. In the circumstances the appeal should be dismissed. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.