SZLVF v Minister for Immigration & Citizenship

The proceedings in the Tribunal 11 The appellant gave evidence at a hearing before the tribunal. He was represented by a migration agent for the purposes of the tribunal proceedings, although the agent did not accompany him to the hearing. After the hearing, the tribunal wrote to the appellant identifying information which it considered, subject to any response or comments he made, would be the reason, or part of the reason for affirming the decision under review pursuant to s 424A of the Migration Act 1958 (Cth). This letter noted inconsistencies in the account of the appellant's sexual history given respectively to the delegate at the interview and the tribunal at the hearing. The appellant did not reply to the tribunal's letter. 12 In its findings and reasons, the tribunal said that having considered his evidence at the hearing it was not satisfied that he was at risk of serious harm in India for any reason. The tribunal accepted that there was a particular need for care and assessing claims relating to the sexual orientation of an applicant for review. The tribunal acknowledged that the claims were easy to assert but could also pose particular difficulties for a person to substantiate. And the tribunal acknowledged that, even in the relatively informal setting of a tribunal hearing, an applicant could be inhibited by feelings of embarrassment or shame from articulating the details of his or her sexuality and that those difficulties could be compounded by the presence of an interpreter. 13 After giving full weight to those considerations, the tribunal was not satisfied that the appellant's evidence at the hearing provided any indication that he was a homosexual as he claimed. The tribunal found that his responses to questions on the subject of his sexual orientation were notably vague and uninformative and that there was no indication that they were based in any genuine, first-hand knowledge, experience, or emotions. It identified the number of inconsistencies in his evidence which had caused it the concerns articulated in the s 424A letter it had sent him. In particular, the tribunal referred to the appellant's claim of his relationship with Naresh, which he claimed to have been significant and long-standing. The tribunal noted that the appellant had explained that relationship to it as involving them engaging in overt acts, extending from kissing in public, to sexual intercourse performed in semi-public settings, which allowed them to be detected on many occasions. It said that: "Despite the commitment to each other which these implausible claims might imply, however, he claims he never met Naresh's family members (despite living in the same village) or gave him a present on his birthday. Asked if he ever went out in public with Naresh his answers indicated that the only times this happened were when they had sex together. Asked about his feelings towards Naresh his responses amounted to no more than the assertion that he liked to have sex with him. His explanation that lack of money prevented him from helping Naresh come with him to Australia appeared improbable and contrived." 14 Next the tribunal noted that, for all his claims to have come to Australia to escape the homophobia of Indian society, his evidence at the hearing revealed a marked lack of interest in exploring the freedoms that Australia might offer him. The tribunal found that the appellant's claim to have suffered serious harm when members of the public detected him having sex with Naresh behind a tree in the village during the day appeared inherently improbable. After considering all the appellant's claims, the tribunal was not satisfied that they were anything more than inventions adopted by the appellant at the interview and at the hearing. Accordingly, it found that these matters raised doubts about the truth of his claim to have been beaten on many occasions when detected in homosexual acts. The tribunal also was concerned about the delay of over three years in his departure from India after obtaining a passport in October 2003, having regard to his claims of a fear of persecution. 15 The tribunal concluded that it was not satisfied as to the truth of these claims to have suffered harm in India or to have been badly treated by his family given its various doubts and the inconsistencies and conspicuous vagueness it had detected in the appellant's account together with the lack of any substantiation from an external source of the appellant's claimed beatings by police or members of the public. The tribunal concluded that it was not satisfied that the appellant was homosexual as he claimed or that he had suffered any harm in India for that reason. Since the appellant made no other convention related claims, the tribunal rejected his application.

The proceedings in the Federal Magistrates Court 16 The appellant relied on an amended application before the Federal Magistrates Court. In her reserved judgment, her Honour carefully considered each of the claims put forward in the amended application but found that there was no jurisdictional error demonstrated in the tribunal's decision or proceedings. Some of the grounds of the amended application were simply boilerplateones which had no substance, such as a claim that the decision of the tribunal was infected with error and consequently it acted contrary to law resulting in a constructive failure to exercise jurisdiction. 17 The appellant made a claim in the amended application, which was repeated before me, that the interpretation provided at the tribunal was not satisfactory. He claimed, in the amended application, that the tribunal made a jurisdictional error when it failed to identify the category or social group from which he came. That assertion was nonsense. The tribunal clearly identified that the appellant claimed to be a homosexual in fear of persecution in India. There was no justification for asserting that it had not identified that claim. He also claimed that the tribunal failed to assess the issues relating to the gay population in India because he had to be "discreet." It was open to the tribunal to deal with his claims, as her Honour found, in the way it did. Her Honour carefully reviewed each of the grounds of the amended application. The notice of appeal to this court is again in a boilerplate form and does not identify or articulate any legal error or other error which her Honour made. 18 As her Honour found, before her the appellant had made several quite generalised assertions that the tribunal had erred in law, but it was difficult to discern what error of law he claimed was made. Before me he has not articulated any error by the tribunal or her Honour. Her Honour saw no error in the way in which the tribunal arrived at its decision under s 65 of the Migration Act. She noted that, in the amended application, he had claimed that the tribunal had not identified his possible persecution due to religious belief. She found, incontrovertibly in my view, that there was no basis for that claim, since at no point had the appellant ever articulated a claim that he feared persecution for reasons of religion. 19 Next, her Honour turned to the appellant's claim that he had been denied procedural fairness in the conduct of the tribunal's hearing. He had asserted that the tribunal had adopted some method of questioning which was adverse to him. Her Honour said that it was difficult to discern precisely what he was asserting and noted that he had not sought to put a transcript of the tribunal hearing or other evidence before her as to what had occurred, other than the tribunal's own statement of decision and reasons. Her Honour found that the tribunal was entitled to test claims by conducting its inquiry in a manner which could involve testing an applicant for review's evidence, sometimes vigorously: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at 435 [30]-[31] per Gleeson CJ, Gaudron and Gummow JJ. Her Honour found, and I agree, that she could not detect from the decision record that the tribunal had asked the appellant any questions which were unrelated to the issues in his application and indeed, that the statement of decision and reasons indicated that the tribunal's questioning focused on the questions which were determinative of his claim. 20 Her Honour found, and I agree, that the tribunal did not act unfairly by asking questions about private matters. Indeed, it could hardly have done otherwise given that the appellant was asserting that his sexual orientation was the reason for his claimed fear of persecution. He gave an account which the tribunal found, as had the delegate, had many implausibilities. Her Honour rejected the claim made to her that the standard of interpretation before the tribunal was inadequate. This claim was made again by the appellant in his oral submissions to me on this topic. For the reasons given by her Honour with which I agree, there is no substance in this claim. There was no evidence of any problem with interpretation before her Honour or before me. Accordingly, that ground cannot succeed and should be rejected. 21 The appellant also complained that the tribunal relied on country information. However, as her Honour found, correctly, it did not. It simply found his claims to be so implausible that it rejected them on their merits. It was for the tribunal to assess whether or not it believed or accepted the appellant's account on which he relied to claim the status of a refugee. The Court cannot enter into a review of the merits of the administrative decision‑maker's conclusions. Rather, its function is to determine whether the tribunal followed the procedures required by law: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at 423 [67] per McHugh J. Her Honour was correct to have rejected this ground of the amended application. 22 Her Honour also dealt with a number of other complaints by the appellant that he had been denied procedural fairness. But, for the reasons which she gave, with which I can detect no error, she rejected them. Ultimately, her Honour concluded that the tribunal provided a well‑articulated and detailed set of reasons for rejecting the appellant's claims to be a homosexual and that it applied the law correctly to those findings, so as to reach its conclusion that he was not a person to whom Australia owed protection obligations. She found that there had been no jurisdictional error demonstrated. 23 She also rejected the complaint that the appellant had not been able to provide written or photographic evidence of his homosexual relationship within the short time allowed by the tribunal in the s 424A letter. Her Honour noted that it was difficult to see how he could be said not to have been given enough time. Moreover, he did not ask the tribunal for any extension. For the reasons her Honour gave, I reject this ground of alleged procedural unfairness. In addition, given that the delegate's reasons had made it clear that his claim had been disbelieved in its entirety, the appellant and his migration agent had ample time to prepare for the tribunal hearing so as to provide the tribunal with such evidence as could be mustered to support his claims.

The Appeal 24 The notice of appeal to this Court asserts three grounds: (1) her Honour had failed to hold that the tribunal had exceeded or constructively failed to exercise its jurisdiction and that the decision of the tribunal should have been found to have been infected with error; (2) the tribunal made a jurisdictional error by failing to identify the social group of which the appellant claimed membership and that he had no access to and did not know what documents were used by the tribunal to make the decision and was thus denied procedural fairness; (3) her Honour failed to hold the tribunal had committed a jurisdictional error because it failed to assess whether he had a real chance of being persecuted. 25 Each of those grounds has no substance. The first ground is bereft of any particularity, other than correctly to note that her Honour rejected the claim of a jurisdictional error. Having reviewed her Honour's reasons, I am of opinion that she was correct to have done so. 26 The second ground is, as I have said, without substance. The tribunal identified, quite clearly, that the appellant claimed to fear persecution for reasons of being a homosexual in India. It rejected that claim squarely on the basis that it did not accept his evidence. The tribunal, on the material before her Honour and before me, clearly accorded the appellant procedural fairness in arriving at that determination. The third ground never arose for the tribunal's consideration after it rejected the appellant's claim that he was homosexual at all. 27 The appellant also filed an outline of written submissions in this Court. These were, again, in a vague and general format and rehearse, in substance, the arguments that had been rejected by her Honour and have already been rejected by me. They again repeat his claim that he had to be treated as being "discreet." This appeared to invoke an argument based on Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473. The tribunal was entitled to reject this claim, among other reasons, because the appellant claimed he was not discreet, but engaged in the activities of kissing his homosexual partner in public and performing sexual activities with him under a tree in the village. The tribunal was entitled to consider those matters and their inherent implausibility when it came to its conclusion that it was not satisfied that he was homosexual at all. It is not for the court to enter into the merits of that claim which were entirely for the tribunal to assess. 28 The appellant also claimed in his written submission that the tribunal had not provided any basis for its conclusion that his claims had been invented at the hearing and at the earlier interview before the delegate. I am of the opinion that the tribunal's reasons detail sufficiently and rationally why it disbelieved his claim and found it had been invented. The appellant argued that he accepted that his obligation was to provide all relevant and supporting materials to the tribunal, but claimed that he had a legitimate expectation that the tribunal would understand his difficulties in obtaining such supporting materials from India when he was not there. I am of opinion that the tribunal was conscious of these matters, but at the same, time the appellant did not inform the tribunal that he needed any more time. I am unable to detect any jurisdictional error in the tribunal's approach. 29 Next, the appellant, in his written submissions, argued that the tribunal asked him many questions which were either irrelevant or concerned private matters with a view to discrediting his oral evidence and that he was nervous and confused at the hearing. For the reasons I have already given and the reasons her Honour gave, this claim has no substance. 30 He also claimed in his written submission that he was so stressed and confused that he was unable to have the presence of mind to continue with the hearing. There was no evidence before her Honour or me to support such a claim. 31 He also claimed that he had lost the chance to be represented. Given that the appellant had a migration agent acting for him in the proceedings before the tribunal, I reject that claim to the extent that he claimed a right to be represented before the courts. He has not provided any evidence of the loss of any chance to be represented or any basis of a legal entitlement to be. 32 I am of opinion that the appeal has no substance and should be dismissed.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate: Dated: 3 October 2008 The Appellant: Appeared in person

Solicitor for the First Respondent: R Baird, Clayton Utz