SZGYV v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Federal Magistrates Court (SZGYV v Minister for Immigration & Anor [2007] FMCA 280) declining to grant relief in relation to a decision of the Refugee Review Tribunal (the Tribunal). The grounds of appeal set out in the notice of appeal to this Court reproduce, in effect, the grounds in the original application to the Federal Magistrates Court. The appellant was represented at the hearing before the Federal Magistrates Court. As a result of what had taken place immediately prior to and at the hearing, the grounds allowed to be pursued were slightly different from the grounds in the original application. The Court directed that various amendments take place. It is not clear that those amendments did take place but the basis upon which the matter was pursued on behalf of the appellant and dealt with by the learned Federal Magistrate is clear from the judgment. 2 The appellant has filed a written submission which is not limited to the grounds in the notice of appeal and, most particularly, is not limited to the matters pursued before the Federal Magistrates Court. I have asked the appellant whether he can, or wishes to, supplement those written submissions and he has indicated that he does not. The submissions have the flavour of having been prepared by a person, whether legally qualified or not, who has some familiarity with the law and practice in this area. 3 Counsel for the first respondent (the Minister) takes the position that the appeal should be limited to the matters pursued before the Federal Magistrates Court. The appellant should not be allowed to go beyond those issues and neither should he be allowed to go beyond the issues raised in the notice of appeal. She is on strong ground in making those submissions. 4 The first ground concerns the application of s 424A of the Migration Act 1958 (Cth) (the Act). The particulars given relate only to a general statement in the Tribunal's decision to the effect that it had before it the Department's file and the Tribunal files including the record of the Tribunal previously constituted, the decision of which had been set aside. In addition, reference was made to a statement in the Tribunal's reasons as follows: "The applicant's claim to the Tribunal previously constituted that he was in hiding for a period before leaving Pakistan was not made previously and was inconsistent with other statements he made - for example, that he was employed in a leather business until December 2004, when he came to Australia." It was put that this was an express use of a previous statement. 5 The general statement about having regard to other information in the files does not found any breach of s 424A, which section is limited to particular types of information having a particular significance. Driver FM rejected the submission that the particular statement in the Tribunal's reasons was a breach, following the decision of Emmett J in SZJBE v Minister for Immigration [2007] FCA 190 at [15]-[17] in which it was held that s 424A does not require the Tribunal to disclose to an applicant information presented by the applicant to the Tribunal as previously constituted. No error has been shown in relation to that approach. Insofar as the submissions purported to go beyond these points as to s 424A, I do not have regard to them. I might say that, in any event, it is far from clear precisely what is suggested was caught by that section. Before passing from that ground, I should say that before the Federal Magistrates Court the particular of breach relied upon was use of the information derived from the first Tribunal decision and not the very general statement about the use of other information from the files. 6 The second ground related to the use by the Tribunal of a psychologist's report produced and relied upon by the appellant in support of his contention that he had a well-founded fear of persecution if he returned to Pakistan on the basis of his homosexuality and the consequent effect upon him. The essence of the attack upon this basis was that where expert evidence is involved, the Tribunal cannot, as it were, adopt the role of an expert and simply reject the expert's opinion, at least without having a proper basis for doing so. Driver FM took the view that it was incorrect to say that the Tribunal put itself in the position of an expert psychologist in formulating its findings. In my opinion, that is correct. The Tribunal had to assess, based upon the evidence before it, amongst other things, whether or not it accepted the claim of the appellant that he was a homosexual. In making that assessment, the Tribunal was entitled to, and indeed bound to, consider evidence beyond that of an expert psychologist. An expert psychologist has no first-hand knowledge of the proclivities of the person being examined. The psychologist, as the Tribunal held, relied on what he was told by the appellant and on his demeanour. The Tribunal, in rejecting the claim of homosexuality, was not bound to accept expert evidence on the basis of what amounts to second-hand information. There is no error shown in the manner in which the Federal Magistrate approached this matter, he having considered and accepted submissions spelling out in more detail the argument which I have summarised. 7 The ground of State protection, which was raised in the grounds of application in the Federal Magistrates Court, was not pursued in the proceeding in that Court and was not dealt with there. That being the case, there is no proper basis for consideration of it on this appeal. In any event, of course, if the Tribunal were entitled to reject the allegation of homosexuality, then the relevance of State protection would effectively disappear. 8 The next ground, as understood in the light of the matters pressed on the hearing in the Federal Magistrates Court, was that the Tribunal erred by failing to consider the combined impact of the appellant's sexual orientation and his claimed fear of persecution at the hands of religious extremists. That required consideration of the way in which the Tribunal approached the matter and the manner in which the appellant had pursued the matter before the Tribunal. The learned Federal Magistrate, in considering that issue, came to the view that there was no separate claim of persecution on the ground of religion, rather, that the effect of homosexuality was accentuated by reason of the potential for harm at the hands of religious fanatics who took a strong view against homosexuals. Thus, there was no separate basis to be considered and the ground was rejected. I can see no error in the manner in which the Federal Magistrate dealt with that issue. 9 The last ground was very general in form and was that the Tribunal erred: "in failing to take into account matters within jurisdictional facts and erroneously failing to consider such facts." The particulars being: "The Applicant says that the Tribunal erred in declining to accept facts and other evidence such as Mardi Gras photos in making its decision." 10 This was regarded as having been amended by adding that the Tribunal erred in failing to raise with the appellant its concern regarding the psychologist's report of Dr Salu Dean. Driver FM pointed out that the approach of the Tribunal to the evidence, in particular the Mardi Gras photos, was that although it was accepted that the photographs were genuine, the Tribunal member believed that they had been arranged for migration purposes, that is, to bolster the claim of homosexuality and the fear of persecution based upon it. The appellant was unable to persuade the learned Federal Magistrate that the Tribunal was unable to come to such a finding. Once that conclusion was open to the Tribunal, then s 91R(3) of the Act required it to disregard the conduct and it did so. Driver FM said that there was no indication that the issue had been raised with the appellant by the Tribunal and considered the submission by the appellant that the decision of the High Court in SZBEL v Minister for Immigration [2006] HCA 63 supported his position. The learned Federal Magistrate distinguished that case on two bases, the first being the presence now of s 422B in the Act (which is applicable) and, secondly, that, even if s 422B had no effect, he was not satisfied that the appellant had discharged his onus of establishing that the Tribunal did not raise the issue with him. There was no transcript of what took place before the Tribunal in evidence. Similarly, Driver FM was not satisfied that the psychologist's report had not been raised with the appellant and that ground was rejected. I can see no basis upon which that decision can be attacked. 11 In my opinion, the appellant has failed to show any appealable error in the manner in which this case was dealt with by the Federal Magistrates Court. The appeal must be dismissed and the appellant ordered to pay the costs of the Minister. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.