FEDERAL COURT OF AUSTRALIA SZRHF v Minister for Immigration & Citizenship [2012] FCA 1085 Citation: SZRHF v Minister for Immigration & Citizenship [2012] FCA 1085 Appeal from: SZRHF v Minister for Immigration & Citizenship [2012] FMCA 595 Parties: SZRHF v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 1081 of 2012 Judge: NICHOLAS J Date of judgment: 27 September 2012 Date of hearing: 27 September 2012 Place: Sydney Division: GENERAL DIVISION Number of paragraphs: 10 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: DLA Piper Australia IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1081 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZRHF Appellant AND: MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: NICHOLAS J DATE OF ORDER: 27 september 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant must pay the first respondent's costs. 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 1081 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZRHF Appellant AND: MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: NICHOLAS J DATE: 27 september 2012 PLACE: SYDNEY REASONS FOR JUDGMENT Revised from transcript 1 This is an appeal against a decision of a Federal Magistrate (Raphael FM) delivered on 26 June 2012 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 15 February 2012. 2 The appellant is a citizen of Ghana. He arrived in Australia on 11 March 2006. He applied for a protection visa on 3 November 2011. He claimed to fear harm in Ghana on account of his homosexuality. The appellant was self-represented today, but he was assisted by an interpreter. 3 On 15 December 2011 a delegate of the first respondent refused the appellant's application for a protection visa. The appellant then applied to the Tribunal for review of the delegate's decision. He attended a hearing before the Tribunal on 8 February 2012 at which he gave evidence. On 15 February 2012 the Tribunal affirmed the delegate's decision not to grant the appellant a protection visa. 4 In its reasons for decision the Tribunal referred to numerous inconsistencies in the appellant's evidence. The Tribunal's reasons for decision include a detailed discussion of the particular aspects of the appellant's evidence which it considered affected the appellant's credibility. At para [69] of its reasons the Tribunal said: Making allowance for nervousness at the hearing, and having had regard to the factors discussed above, I have serious concerns about the overall credibility of the applicant. His evidence was vague, inconsistent, and overall problematic in ways that I do not accept can be explained by his background or any particular difficulties that might have prevented him from putting forward his claims. He has provided inconsistent and conflicting information about important matters at different times in relation to his application. Aspects of his conduct appear to be inconsistent with his claim to be a homosexual and to be in fear of his life due to events in his home town in 2005. His evidence about some matters was vague and appeared to be evasive. His evidence about some matters shifted and changed under questioning, or when problems with that evidence were identified, giving the impression that he was prepared to change his evidence if he felt that would help him. Overall, the deficiencies in the evidence lead me to conclude that the applicant has not been truthful in presenting his claims. Moreover, in contrast to the deficiencies in the evidence that he is homosexual there is evidence demonstrating that he has engaged in two long term heterosexual relationships which have produced three children. 5 At para [72] of its reasons the Tribunal stated that it concluded that the appellant was an unreliable and untruthful witness and that it did not accept that he was homosexual or that he would be perceived to be homosexual in Ghana if he was to return there. The Tribunal did not accept that there was any credible or persuasive evidence to support a finding that the appellant was a homosexual. It is apparent that there were two particular matters which influenced the Tribunal considerably. 6 The first was the time it took for the appellant to apply for a protection visa. As I have mentioned, he arrived in Australia in March 2006, but did not apply for a protection visa until November 2011. The second was that the appellant had engaged in two long term heterosexual relationships which produced three children. The first was a de facto relationship with a woman to whom he had two children when he lived in Ghana. The second was a de facto relationship he had with a woman in Australia to whom he had another child. 7 The appellant sought judicial review of the Tribunal's decision in the Federal Magistrates Court. There were two grounds of review specified in the appellant's application for review. Neither postulated jurisdictional error but merely invited merits review of the Tribunal's decision. Even so, the learned Federal Magistrate examined the Tribunal's reasons to see whether there was any suggestion of jurisdictional error. His Honour concluded that there was none. His Honour said at para [13]: It is now well established that matters of credibility are for the Tribunal par excellence (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405) and that provided the Tribunal came to its conclusions on the basis of available evidence there will be no jurisdictional error even though an applicant claims that the Tribunal's decision was incorrect. In this particular case, the Tribunal pointed to a number of factors which led it to come to the conclusions that it did. Thus, those conclusions were based upon available evidence and seemed to me to be not capable of being impugned on any of the grounds that remain available to applicants in this court. There was no suggestion that the applicant did not receive procedural fairness as prescribed by s.422B and Div. 4 of the Migration Act 1958 (Cth) and I am not able to say that there is any hint that the Tribunal's views were infected by actual or ostensible bias. The applicant received a hearing as required by s.425 of the Act and the decision was no way illogical given the evidence that had been produced. 8 The Federal Magistrate was satisfied that the Tribunal did not commit any jurisdictional error. 9 The appellant did not seek to identify any legal error in the Federal Magistrate's reasons during the course of today's hearing. Rather, he sought to persuade me that the Tribunal ought to have accepted his claim that he had a well founded fear of persecution on the ground of his sexuality should he return to Ghana. As I sought to explain to the appellant, in order for him to succeed in his appeal, it would be necessary for me to be satisfied that the Federal Magistrate was wrong in finding that the Tribunal's decision was not affected by any jurisdictional error. Based upon my own reading of the Tribunal's decision I am satisfied the Federal Magistrate did not make any error. 10 The appeal will be dismissed. The appellant must pay the first respondent's costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate: Dated: 8 October 2012