FEDERAL COURT OF AUSTRALIA SZQCI v Minister for Immigration & Citizenship [2012] FCA 1367 Citation: SZQCI v Minister for Immigration & Citizenship [2012] FCA 1367 Appeal from: SZQCI v Minister for Immigration & Anor [2012] FMCA 734 Parties: SZQCI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 1316 of 2012 Judge: RARES J Date of judgment: 16 November 2012 Legislation: Federal Court Rules 2011 (Cth) r 40.02 Migration Act 1958(Cth) ss 424A, 424AA Cases cited: Re Minister for Immigration and Multicultural Affairs, Ex parte Durairajasingham (2000) 74 ALJR 405 applied SZQCI v Minister for Immigration & Anor [2012] FMCA 734 referred to Date of hearing: 16 November 2012 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 17 Counsel for the Appellant: The appellant appeared in person Counsel for the Respondents: Mr D A Hughes Solicitor for the Respondents: Clayton Utz IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1316 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZQCI Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: RARES J DATE OF ORDER: 16 NOVEMBER 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs fixed in the sum of $2,973. 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 1316 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZQCI Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: RARES J DATE: 16 NOVEMBER 2012 PLACE: SYDNEY REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an appeal from a decision of the Federal Magistrates Court refusing the appellant constitutional writ relief in respect of a decision of the Refugee Review Tribunal made on 14 February 2012 that affirmed the Minister's delegate's decision not to grant the appellant a protection visa: SZQCI v Minister for Immigration & Anor [2012] FMCA 734. 2 The appellant is a citizen of India of the Muslim faith and Islamic ethnicity. On 19 June 2010, the appellant arrived in Australia on a tourist visa. He applied for a protection visa on 30 July 2010. That application was refused by the Minister's delegate on 9 November 2010. The appellant sought review of that decision in the Refugee Review Tribunal. The initial review by the Tribunal was adverse to the appellant but its decision was quashed by a consent order made by the Federal Magistrates Court. The review was remitted to the Tribunal which was re-constituted. After a hearing, the Tribunal as reconstituted (which I will simply call "the Tribunal") made the decision to affirm the decision of the delegate which led to the application to the Federal Magistrates Court that is the subject of this appeal. The appellant's claims 3 The appellant claimed to have had a well-founded fear of persecution by reason of his being homosexual. He claimed that he had been in a genuine homosexual relationship for the previous three years and was living with his partner who, independently, had also sought a protection visa. At the time of his entry into Australia and for some time beforehand, the appellant and his partner claimed to have worked for the Qatari Royal Family. He claimed that homosexual marriage was not allowed in Qatar and he and his partner wanted to marry and live in Australia. He claimed that on a visit to India in February 2010, he had been threatened and beaten by members of the Popular Front of India and as a result of his injuries he required hospitalisation. He claimed that he and his partner feared that they would be killed by the Popular Front of India or other Muslim fundamentalists by reason of their homosexuality and that the Qatari authorities would not help them because that Government supported the Popular Front of India through a "vote bank". 4 Earlier, during his interview with the delegate, the appellant claimed that he had met his partner in Qatar where they both worked for the Royal Family. He also claimed at the interview that when he returned to India in March 2010 he was approached by members of the Popular Front because of his homosexuality and that he and his partner travelled to Australia with the Royal Family in June 2010 (AB 93). He claimed to the delegate that during this stay, his manager discovered the homosexual relationship and that as a result the appellant feared harm if he returned to Qatar. The proceedings in the Tribunal 5 The appellant attended and gave evidence before the Tribunal. The Tribunal considered medical evidence that the appellant had tendered concerning his diagnosed adjustment order with mixed anxiety and depressed mood. The Tribunal accepted that the appellant was anxious about his application for review but considered that he was capable of fully discussing his claims and giving evidence to it. The Tribunal found that the appellant was not a credible witness and that he did not have a well-founded fear of persecution for a Convention reason. In particular, it found that he had given inconsistent evidence, on a number of matters, including about the actions of the Popular Front of India. For example, in the hearing before the Tribunal, he claimed to have received two warnings. The Tribunal found that he had not raised with it the claim he had made during the departmental interview that he had also received threatening phone calls from India and as a result had disconnected his phone. The Tribunal did not accept his explanation of that omission. It also found other aspects of his evidence, concerning the threats by the Popular Front of India, to have been inconsistent, including his claim in the first Tribunal hearing that the Popular Front had made an earlier threat during the partner's 2009 visit to India when his partner was attacked and the appellant's name had been called out during that attack. The Tribunal did not accept his explanation when confronted with that omission that he had only been talking about the occasions on which he himself had been warned. It found it "very strange" that, in light of his assertion that his name had been called out when his partner had been attacked in 2009, he had not raised that matter at its second hearing. 6 The Tribunal also noted material inconsistencies between his accounts of the 2010 incident with the Popular Front of India. In his departmental interview and each of the two Tribunal hearings, he claimed to have been threatened or warned, but not harmed, by the Popular Front of India. During the second hearing, the Tribunal asked appellant about the inconsistency between those claims and his initial claim in his protection visa application that he had been harmed and hospitalised in February 2010. He asserted that that inconsistency had arisen because his application had been prepared by another person. He told the Tribunal that he did not know English and that the other person had not read back to him what was written in the protection visa application. However, the Tribunal noted that earlier during the course of its second hearing, the appellant had said he read and wrote English. That was relied on by the Tribunal as another reason for its rejection of his credibility. 7 The Tribunal also considered in some detail other matters that led to its overall firm conclusion that the appellant was not a credible witness. It did not accept that he was homosexual or had been in a homosexual relationship with his partner since 2006 or that he was currently a homosexual or in such a relationship with his claimed partner. The Tribunal comprehensively rejected every aspect of the appellant's claim to be, or to be perceived to be a homosexual so that it concluded that he did not have a well-founded fear of persecution for any Refugee Convention reason. The Tribunal also did not accept that the appellant had been honest about why he no longer worked for the Qatari Royal Family, in rejecting his claim that he would not have left a well paid and secure position with the Family to make his protection claim unless it were true. The proceedings before the trial judge 8 The trial judge summarised the appellant's claims and the Tribunal's reasons for rejecting them. Her Honour noted that he had submitted to her that the Tribunal's decision was against him but that he was not able to add to, or explain, the grounds for his application for relief in that Court. Before me today, he was in a similar position, simply submitting that he did not, in effect, agree with the Tribunal's conclusion and wished to be granted a protection visa. 9 Her Honour noted that none of the grounds the appellant relied on below were supported by any particular evidence or relevant submissions, those grounds being: "(1) The decision made by RRT is Jurisdictional error; (2) Breach of Natural Justice; (3) Will be filed later." 10 Her Honour considered whether the Tribunal could be found to have made a jurisdictional error by failing to comply with s 424AA of the Migration Act 1958(Cth). She concluded that the Tribunal's decision record revealed that it had put to the appellant, in great detail, in accordance with s 424AA, various items of information that caused the Tribunal concern about the appellant's claims, inconsistencies in his evidence and between his evidence and that of his friend. Her Honour found that there was no evidence that the Tribunal had failed to comply with either s 424AA or s 424A of the Act, having regard to what was in the decision record, that being the only evidence of the way in which the Tribunal conducted its proceedings. 11 In my opinion, her Honour correctly rejected the appellant's application. She found that the Tribunal's findings were open to it on the material and evidence before it, for the reasons that it gave. I agree. 12 Her Honour also considered whether the second ground raised an issue that the Tribunal might have been biased or given an appearance of bias. The trial judge rejected such a contention. She said she found that on a fair reading of the Tribunal's decision nothing appeared that disclosed any sense of pre-judgment on its part or suggested that it had approached its task otherwise than with a mind open to persuasion in accordance with the law. In those circumstances her Honour ordered that the application be dismissed. I agree with her Honour's reasons for rejecting this ground. This appear 13 The notice of appeal raises grounds of appeal that are in a template form. They are unparticularised, bald assertions which the appellant has not addressed or explained, namely: "1. The honourable FM failed to consider the grounds of my application such as error of law made by the Tribunal not giving me the opportunity of the adverse information in the possession of the Tribunal. The Court below erred in that it ought to have found that on the evidence before the Tribunal it was open to the Tribunal to find that the appellant was a refugee within the meaning of the Act. 2. The Tribunal's decision was in breach of section 424A(1) of the Migration Act 1958 (Cth). Particulars: (a) There was certain adverse information used by the Tribunal to affirm the decision under review. (b) The Tribunal did not disclose the information in accordance with s 424A(1). 3. The Tribunal made error of law and lack procedural fairness and therefore committed jurisdictional error. 4. The Tribunal made denial of natural justice. Because it failed to provide further opportunity before the tribunal." 14 None of those grounds has any substance. While it is correct that the evidence before the Tribunal could have enabled the Tribunal, had it believed the appellant, to find he was entitled to a protection visa, there is no material before me to suggest that it was equally not open to the Tribunal to find as it did. A finding on credibility is a function of a primary decision maker par excellence: Re Minister for Immigration and Multicultural Affairs, Ex parte Durairajasingham (2000) 74 ALJR 405 at 417 [67] per McHugh J. As the trial judge found, the Tribunal's decision record showed that it put a considerable amount of material to the appellant during the course of the hearing from which it was able to make its findings of inconsistencies between his accounts and between his account and that of his alleged partner. There is nothing to suggest that the Tribunal failed to comply with s 424AA within this process or that s 424A was otherwise engaged by the way in which the Tribunal proceeded. 15 In my opinion, the Tribunal's findings were open to it and nothing has been shown to suggest that it proceeded otherwise than in accordance with law in arriving at its decision. Conclusion 16 For these reasons the appeal must be dismissed. 17 The Minister has applied for an order for costs fixed in the amount of $2973 pursuant to rule 40.02 of the Federal Court Rules 2011 (Cth). That application is based on the affidavit of Oliver Jones, an employed solicitor of the solicitors acting for the Minister. The amount sought comprises 65% of the Minister's professional costs for the preparation and hearing of the appeal and $1213 in respect of counsel's fees. In my opinion, the order fixing costs should be made in the amount sought having regard to that evidence. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 19 December 2012