FEDERAL COURT OF AUSTRALIA SZUDS v Minister for Immigration and Border Protection [2015] FCA 502 Citation: SZUDS v Minister for Immigration and Border Protection [2015] FCA 502 Appeal from: SZUDS v Minister for Immigration [2014] FCCA 2806 Parties: SZUDS v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number(s): NSD 1340 of 2014 Judge(s): JAGOT J Date of judgment: 19 May 2015 Legislation: Migration Act 1958 (Cth) s 424A(3)(a) Cases cited: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Date of hearing: 19 May 2015 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 22 Counsel for the Appellant: The Applicant appeared in person Solicitor for the First Respondent: Mr S Speirs of Clayton Utz IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1340 of 2014 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: SZUDS Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: JAGOT J DATE OF ORDER: 19 MAY 2015 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal, as agreed or taxed. 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 1340 of 2014 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: SZUDS Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: JAGOT J DATE: 19 MAY 2015 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal against orders of the Federal Circuit Court of Australia (the FCCA) made on 5 December 2014, in which the FCCA dismissed the appellant's application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) and ordered the appellant to pay the costs of the Minister in connection with that application. 2 On 28 February 2014, the Tribunal affirmed a decision of a delegate of the Minister not to grant the appellant a Protection (Class XA) visa. 3 The appellant, after arriving in Australia on a student visa in 2009, lodged an application for a protection visa in November 2012. In summary, the appellant claimed a fear of persecution on the basis of his membership of a particular social group, being homosexual males. 4 The Tribunal held a hearing on 25 February 2014 at which the appellant appeared and gave evidence. The Tribunal accepted that the appellant is a national of Nepal, and also accepted that he is a homosexual, albeit one who on the material available to the Tribunal had no homosexual experience while living in Nepal. The Tribunal said that it had formed: …the firm view that the applicant is in no sense a flamboyant person or one who would normally seek to flaunt his sexual identity but rather someone who is naturally discreet. 5 The Tribunal said: This is relevant to the extent that societal disapproval in Nepal might impact on him, particularly in relation to the open public displays of affection which he referred to (more than once) as attracting harassment. 6 In addition to that observation, the Tribunal referred to a number of reliable reports publicly available which refer to changes in the situation for homosexuals in Nepal in recent years, starting with the legalisation of homosexuality in 2007, and including Nepal's hosting of its first international gay pride parade in 2010, as well as the election of an openly gay MP to the Nepalese Parliament. 7 While the Tribunal accepted that sections of Nepalese society frowned upon homosexuality, and that families of homosexuals in Nepal may ostracise them and cut them off if they come out as openly homosexual, the Tribunal considered that the appellant's assertions about his likely treatment in Nepal were: …coloured by his own relative lack of direct experience of the environment for homosexuals in Kathmandu (in particular), his absence from Nepal for the past 5 years when so much has been changing, and his understandable inclination to paint the worst possible picture in the context of his protection application. 8 Insofar as the appellant relied on his family either forcing him to marry or cutting him off, the Tribunal did not accept that this amounted to serious or significant harm. Noting that the appellant is "a reasonably well-educated adult male who has been living independently of his family for several years", the Tribunal concluded that it was not satisfied that there was a real chance that on return to Nepal the appellant would face serious harm amounting to persecution for a reason in accordance with the relevant Convention. 9 In his application to the FCCA, the appellant relied on three grounds as follows: (1) I content (sic) that the Refugee Review Tribunal Member committed jurisdictional error in failing to consider my claims that I would be persecuted by being forced to marry and enter into a heterosexual relationship if I returned to Nepal. (2) I argue the fact that I will be discriminated against and subjected to serious harm by my family and relatives, religious figures and society in general in Nepal. I will not be able to express my sexuality freely and safely in Nepal and will not have access to state protection. (3) The Tribunal Member failed to accord procedural fairness. The Tribunal Member has heavily relied on politically motivated country information and my evidence has been adversely construed and my safety has been completely ignored. 10 The FCCA rejected each of these grounds. 11 In respect of ground 1 it concluded that the Tribunal had considered the appellant's claims that he would be forced to marry if he returned to Nepal. 12 In respect of ground 2, the appellant's contention that he would not be able to express his sexuality freely and safely in Nepal, the FCCA characterised this claim as one going to the merits of the Tribunal's decision. 13 As to ground 3, an allegation that the Tribunal had not given the appellant procedural fairness, the FCCA noted that the claim was not particularised, and also concluded that the Tribunal was entitled to place more weight on the independent country information, as opposed to the information given by the applicant at the hearing, citing in support the decision in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10. 14 In this hearing I asked the Minister about the Tribunal's use of certain country information, in particular, the website of the Blue Diamond Society, which the Tribunal said showed a steady improvement in legal protections and growing social acceptance of homosexuality. As the Minister submitted, this information was not required to be specifically put to the appellant, because in accordance with s 424A(3)(a) of the Migration Act 1958 (Cth) this information is not specifically about the appellant, and is just about a class of persons of which the appellant is a member. 15 I also asked the Minister about the Tribunal's reference to the appellant being naturally discreet and not a flamboyant person. I accept the Minister's submission that these observations by the Tribunal amount to factual findings reasonably open to the Tribunal, and are not indicative of any error. 16 In the notice of appeal to this Court, three different grounds are raised. Although none of these grounds were put to the FCCA the Minister has dealt with them, and insofar as necessary, I would grant the appellant leave to rely upon these grounds. These grounds are as follows: (1) The Federal Circuit Court made a legal by failing to find that the Tribunal made a jurisdictional error in making the finding that I could relocate to Kathmandu when there was no evidence before it to that effect. (2) The Federal Circuit Court erred by failing to find that the Tribunal made a jurisdictional error in concluding that I could relocate to Kathmandu having regard to the material upon which it relied, that reliance being irrational. (3) The Federal Circuit Court erred by failing to find that the Tribunal made a jurisdictional error in concluding that I did not have a well-founded fear of persecution that conclusion being irrational and/or unreasonable. 17 Ground 1 concerns a contention that the Tribunal found the appellant could relocate to Kathmandu. As the Minister submitted, the problem with this ground is that the Tribunal did not make that finding. It did not specifically consider the issue of internal relocation in Nepal, because it was not satisfied that the appellant would encounter serious harm upon return to Nepal. As a result, ground 1 cannot be accepted. 18 Ground 2 raises the same issue about relocation to Kathmandu, and therefore also must fail for the same reasons. 19 Ground 3 asserts that the Tribunal's decision that the appellant did not have a well-founded fear of persecution was irrational and/or unreasonable. But as the Minister submitted, the assertion is without particulars. The Tribunal's findings were reasonably open on the material available to it and, accordingly, ground 3 also cannot be accepted. 20 In oral submissions, the appellant noted that he had been greatly affected by recent events in Nepal, was not in contact with his family and understood he had lost relatives in the recent earthquakes. This is consistent with a letter that the appellant sent to the Court on 18 May 2015 which requested a postponement of the hearing until June on the same basis. However, the appellant attended Court on the scheduled hearing date and indicated that he was ready to proceed, and made submissions in support of his appeal. 21 The effect of his submissions was to repeat that he could not go to Kathmandu, that he would suffer persecution in Nepal and that the information on which the Tribunal had relied had to be understood in the context that people were bribed to say good things about Nepal which were not true. Again however, as the Minister submitted, all of these matters go to the merits of the appellant's claims and it is the Tribunal alone which can determine those merits. 22 Having reviewed the decisions of the Tribunal and the FCCA, I am unable to discern any jurisdictional error by the Tribunal or error in the way the FCCA determined the matter. For these reasons, the appeal must be dismissed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate: Dated: 22 May 2015