FEDERAL COURT OF AUSTRALIA SZOZV v Minister for Immigration and Citizenship [2011] FCA 1235 Citation: SZOZV v Minister for Immigration and Citizenship [2011] FCA 1235 Appeal from: SZOZV v Minister for Immigration and Citizenship [2011] FMCA 483 Parties: SZOZV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 1087 of 2011 Judge: FOSTER J Date of judgment: 31 October 2011 Legislation: Migration Act 1958 (Cth), s 424A and s 424AA Cases cited: SZOZV v Minister for Immigration and Citizenship [2011] FMCA 483 upheld Date of hearing: 31 October 2011 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 26 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Ms M Stone of DLA Piper Australia Solicitor for the Second Respondent: The Second Respondent submitted save as to costs IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1087 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZOZV Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: FOSTER J DATE OF ORDER: 31 OCTOBER 2011 WHERE MADE: SYDNEY 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: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1087 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZOZV Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: FOSTER J DATE: 31 OCTOBER 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The appellant appeals from a judgment of a Federal Magistrate delivered on 15 June 2011 (SZOZV v Minister for Immigration and Citizenship [2011] FMCA 483). The Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 20 January 2011, which had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (the delegate) dated 15 September 2010 to refuse to grant a Protection (Class XA) visa (protection visa) to the appellant. 2 The appellant is a citizen of India. He arrived in Australia on 25 July 2008 on a student visa. 3 On 14 May 2010, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. As stated at [1] above, the delegate refused the appellant's application for a protection visa on 15 September 2010. 4 On 19 October 2010, the appellant applied to the Tribunal for a review of the delegate's decision. The appellant claimed to fear returning to India on the basis that he was homosexual. He claimed that, when he was at school in India, he was unable freely to express his sexuality because of his religion and culture. His father is a strict Sikh. In Australia he said that he was free to express his sexual preference which he claimed to experience, in particular, when visiting the Oxford Street area in Sydney. After his arrival in Australia, he changed his appearance by cutting his hair and shaving his beard, which angered his family. 5 The appellant claimed to have formed a relationship with a man he knew as Smith. He claimed that his homosexuality was discovered by his brother in November 2009 when he happened to find the appellant engaged in sexual intercourse with Smith. The appellant's brother told their parents in India about the incident and the appellant was disowned by his family. The appellant claimed that his father has threatened to kill him or have him killed if he returns to India. 6 The Department of Immigration and Citizenship invited the appellant to attend an interview, but he did not do so. In the absence of his attendance at the scheduled interview, the delegate found the appellant's claims to be vague and unsubstantiated. The delegate was not satisfied that the appellant had established that he was homosexual, nor that, if he were, he would be persecuted in all parts of India. The appellant never subsequently satisfactorily explained why he had not attended the interview with the delegate. THE TRIBUNAL'S REVIEW 7 On 8 December 2010, the appellant attended a hearing before the Tribunal. 8 On 20 January 2011, the Tribunal affirmed the decision of the delegate to refuse the appellant's application for a protection visa. The Tribunal found that the appellant's claims were highly problematic in a number of respects. The Tribunal identified concerns which it had about the vagueness of the appellant's evidence about his homosexual conduct in Australia (he was unable to name any of the clubs which he claimed to have attended regularly) and his relationship with Smith. He could not give any personal information about Smith, including his first name. 9 The Tribunal said that the appellant's evidence about his relationship with Smith "lacks credibility in the context of the evidence about the duration of the relationship". The appellant had claimed to have had a close relationship with Smith for five to six months, during which they saw each other at Smith's house or at the appellant's house on a weekly basis. The Tribunal questioned the appellant as to the circumstances surrounding the delay in his applying for a protection visa in Australia. He had made that application in May 2010 which was almost two years after his arrival in Australia and just a few months after he had ceased his studies here. 10 The Tribunal found that the delay in making his protection visa application, made as it was after he had come to the realisation that he no longer had realistic prospects of gaining residence in Australia on the basis of his studies in Australia, was significant. The Tribunal raised with the appellant the circumstances in which he had stopped attending his college in Sydney. The Tribunal put to the appellant records from the PRISMS education database which suggested that the last day of his study in the cooking course at Holmes Institute in which he had been enrolled was 25 September 2009 and that his enrolment had been subsequently cancelled on 25 January 2010 for failure to pay fees. These facts contradicted the appellant's version of events. He said that he had attended classes until the end of the education year in December 2009. 11 The Tribunal allowed to the appellant further time to present documents and comments in relation to the matters put to him. The Tribunal then made a decision on 20 January 2011 which affirmed the delegate's decision. The Tribunal found that the appellant was not a credible witness and had not given a credible account of his claim to homosexuality, the resulting problems from his family and the reasons for his stated fear of returning to India. It found that the appellant had contrived his evidence of his claim to homosexuality and resulting family problems for the purposes of establishing a claim for refugee status. It did not accept that the appellant is, or ever has been, homosexual, nor did it accept that he fears harm if he should return to India for this reason. 12 The Tribunal did not accept that the appellant cut his hair and shaved his beard after his arrival in Australia for any reason related to his claim to homosexuality nor did it accept that he had done these things in order to attract interest of a homosexual nature. The Tribunal was prepared to accept that the appellant's family may have disapproved of his taking action to adopt a more secular or western lifestyle by cutting his hair and ceasing to wear a turban and by shaving his beard. However, given its adverse findings in relation to the appellant's credibility, the Tribunal did not accept that the evidence established that he faced any real chance of serious harm from his family if he returned to India. THE FEDERAL MAGISTRATES COURT PROCEEDING 13 On 18 February 2011, the appellant applied to the Federal Magistrates Court for judicial review of the Tribunal's decision. The following grounds of review were set out in his Application to that Court: 1. 1. The Tribunal failed to accord procedural fairness: Particulars (a) The Tribunal erred in law amounting to jurisdictional error in finding that I shall not be a subject of adverse treatment in my country of origin for my homosexuality. The Tribunal failed to consider that I was involved in homosexual activities in Australia and I shall face harm by my family and community on my return back to India. The Tribunal failed to consider my situation appropriately and did not consider the persecutions I will experience if I return to India. The Tribunal made errors of jurisdiction disregarding my conduct and my homosexual engagement in Australia and concluded that I am not a homosexual and I have a real chance that I shall be harmed for the reason of my sexual orientation or any other Convention reason; (b) The Tribunal failed to take into account the relevant consideration at the time of decision for refusing my case. The Tribunal made errors of law for its failure to consider me as a credible witness for my claims. The Tribunal emphasised that the reasons of my application for a protection visa was the change of government regulation for student to apply for permanent residence in Australia, not my homosexual relationship and related problems. The Tribunal was biased to take the decision on my application; (c) The Tribunal failed to perform the duty imposed on it by the Migration Act (section 424(1)); 2. The Tribunal failed to take into consideration of the threat to my life and/or liberty and the significant discrimination that I will face if I return to India because of homosexual relationship The Tribunal did not give me opportunity to submit my explanations and materials in reply to the alleged adverse materials the Tribunal considered at the time of decision and the Tribunal failed its duty; The Tribunal failed to correctly recognise that I could be singled out and targeted because of my homosexuality; 3. The Tribunal made an erroneous approach to my claims and failed to address my mind to the materials questions arising out of my claims for Protection Visa and made errors; … I state for the reasons stated above there are errors of jurisdiction of the Tribunal at the time of the decision. I was not also provided natural justice and the Tribunal did not pursue procedural fairness to make the decision of refusing my application. 14 In his judgment, the Federal Magistrate noted that the grounds of review relied upon by the appellant essentially came to one thing: That is, that, on the merits, the Tribunal had made an incorrect decision on the evidence before it. The Federal Magistrate came to the view that the grounds and arguments relied upon by the appellant did not identify any conclusions reached by the Tribunal which could be characterised as unreasonable, illogical or not rationally founded upon the evidence before it. 15 The Federal Magistrate found that the appellant's arguments really only rose to the point of asking the Federal Magistrates Court to make a decision for itself as to the appellant's qualifications for the visa which he was claiming. The Federal Magistrate pointed out that this was not the function of the Federal Magistrates Court in dealing with an application for judicial review of a decision of this nature. The Federal Magistrate said that he was unable to detect any relevant evidence or considerations which were not considered by the Tribunal and was of the opinion that the Tribunal's reasoning in relation to the appellant's delay in making a protection visa application was open to it as a matter of law. 16 The Federal Magistrate was unable to draw any inference from the Tribunal's reasoning that it might have approached the matter with a closed mind nor could he find anything to give substance to the assertion of bias. He was also unable to detect any failure by the Tribunal to afford procedural fairness as it was required to do by the Migration Act 1958 (Cth) (the Act) and found the reference to s 424(1), in particular (c) of ground 1, to be completely obscure. 17 As far as ground 2 was concerned, the Federal Magistrate found that, insofar as some particulars of this ground appeared to constitute a complaint about the Tribunal's compliance with procedures mandated by s 424A and s 424AA of the Act in relation to information coming within s 424A(1), there was no deficiency identified by the appellant. 18 The Federal Magistrate accepted the Minister's submissions that the Tribunal had adequately followed procedures as required by s 424AA and, in the absence of a transcript of the hearing before the Tribunal, the Federal Magistrate was not prepared to conclude that the Tribunal did not sufficiently comply with those procedures. The appellant had failed to establish any jurisdictional error as asserted in ground 2. The Federal Magistrate noted that other parts of ground 2 and ground 3 constituted nothing more than a merits challenge to the Tribunal's decision which, of course, was not available by way of judicial review. 19 At the hearing before the Federal Magistrate, the appellant repeated his refugee claims. However, in the Federal Magistrate's opinion, these claims did not raise any arguable ground of jurisdictional error. The Federal Magistrate was not prepared to send the matter back to the Tribunal and dismissed the appellant's application for judicial review. THE APPEAL IN THIS COURT 20 On 4 July 2011, the appellant filed a Notice of Appeal in this Court. That appeal raised the following grounds of appeal: 2. The Federal Magistrate Honourable Smith erred in law not finding that the Tribunal failed to consider that I was not a victim of persecution for my homosexuality in my country of origin prior to my departure. 3. The Honourable Federal Magistrate failed to find that the Tribunal failed to consider me as homosexual as I failed to provide the name of any bar or club I visited and concluded that I did not visit these places. 4. The Honourable Federal Magistrate did not find that there was a lack of procedural fairness in the decision of the Refugee Review Tribunal as the Tribunal did not give me a reasonable opportunity to respond to independent evidence in the possession of the Tribunal which suggests that I shall not be a victim of harassment for my homosexuality if returned back to India and made errors of jurisdiction. 5. The Federal Magistrate made error to find that the Tribunal failed to accept me as a credible witness as I delayed the lodgement of my application for a Protection Visa and the reason to apply for my protection visa is the change in the government's migration regulation. The Tribunal failed to consider the fact of my claims at the time of decision and my circumstances in my country of origin prior to my arrival in Australia. 6. 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 and I do not meet the criteria set out in s.36(2) of the Act of Protection visa; 7. The Federal Magistrate erred in not finding that the Tribunal refused my application on the ground that the cutting of my hair and shaving beard is not the attempts to attract the interest of homosexual men and the Tribunal has failed to consider that my father has disowned me for my homosexuality. 8. The Federal Magistrate erred in law not finding that the Tribunal failed to consider that my persecution is well founded and I shall have a real chance of persecution for reasons of my homosexuality if I return to India now or in the foreseeable future. 9. The Federal Magistrate erred in law not finding that I have fabricated my claim of homosexuality and the problems with my family is related to homosexuality and failed to consider me as homosexual though I have provided evidences for my homosexuality at the time of hearing and in a written statement. 10. The Federal Magistrate eared in finding that my fear is not well founded and I shall not be persecuted for a Convention reason on my return back to India. 21 The appellant has appeared in person before me today. He did not lodge any Written Submissions in support of his appeal and, when asked whether he wished to make any oral statement or submission in support of his appeal, he said that he relied upon the contents of his Notice of Appeal. 22 The legal representative of the Minister submitted that, with the possible exception of ground 3, all of the grounds raised by the appellant seek to raise merits review in respect of the Tribunal's decision and do not come to grips with the requirement that the appellant must show error on the part of the Federal Magistrate when the Federal Magistrate dealt with the appellant's application for judicial review in the Federal Magistrates Court. This submission is correct and I accept it. In addition, I do not think that even ground 3 raises any appropriate matter for consideration by this Court. 23 The Minister helpfully recognised that embedded in the grounds of appeal set out in the Notice of Appeal may be an assertion that the Tribunal breached its obligations to the appellant under s 424A of the Act. The Minister submitted that, to the extent that the Tribunal's obligations under that section were enlivened, the Tribunal had complied with those obligations pursuant to s 424AA of the Act. This was the conclusion reached by the Federal Magistrate and I see no error in that conclusion. The Tribunal had put the relevant information concerning the appellant's enrolment at the Holmes Institute to him and fairly alerted the appellant to the fact that the Tribunal considered that material to be relevant to its decision. 24 At [48] and [49] of its decision, the Tribunal explained to the appellant the essential procedures mandated by s 424A and asked him if he wished to request additional time to respond. The decision record makes clear that he did respond orally at the hearing and did provide evidence subsequent to the hearing which was, in fact, considered by the Tribunal. 25 In all the circumstances, I do not think that the appellant has made out any relevant ground of appeal. For this reason, the appeal will be dismissed with costs. 26 I order that the appellant's appeal be dismissed and that the appellant pay the first respondent's costs of and incidental to that appeal. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate: Dated: 7 November 2011