SZNXZ v Minister for Immigration and Citizenship

The Tribunal's findings 8 The Tribunal's reasons for decision set out the appellant's claims, the evidence that the appellant gave at the Tribunal hearing and independent country information relied upon by the Tribunal. 9 The Tribunal accepted that the appellant was a citizen of India. The Tribunal further accepted that homosexuality within the Sikh community exists and that some homosexuals within that community face considerable hardship because of their sexual orientation. However, the Tribunal rejected the appellant's other claims. It analysed the appellant's evidence of his dealings with his father and the tutor with whom the appellant claimed he had a homosexual relationship. It pointed to various inconsistencies which it perceived to exist in the appellant's evidence. It concluded that the appellant was not truthful. 10 The Tribunal rejected the suggestion that the appellant's family perceived him as a homosexual. It accepted that the appellant might have had a disagreement with his father about cutting his hair and becoming 'westernised' in his appearance but did not accept that his father had assaulted him or that the appellant had a well founded fear of harm amounting to persecution from his father, family or other members of the Sikh community. 11 The Tribunal was not satisfied that there was a real chance that the appellant would suffer persecution for any Convention related reason should he return to India.

Decision of the Federal Magistrates Court 12 Before the learned federal magistrate, the appellant pleaded three grounds of review which are summarised in her Honour's reasons: SZNXZ v Minister for Immigration & Anor [2010] FMCA 117 at [33]. The learned federal magistrate rejected the first ground which appeared to allege bias on the part of the Tribunal, rejected the second ground which alleged that the Tribunal had erred by failing to accept documentary evidence tendered by the appellant to the Tribunal and rejected the third ground which made unparticularised allegations about the Tribunal failing to consider whether the appellant would face harm amounting to persecution if he were to return to India. 13 The learned federal magistrate concluded that the Tribunal had not committed any jurisdictional error.

Appeal to this Court 14 In his appeal to this Court, the appellant has raised 5 grounds of appeal alleging that the federal magistrate erred by not finding that the Tribunal had erred by: · failing to afford the appellant procedural fairness by not giving him a reasonable opportunity to respond to the country information which formed the reason, or part of the reasons, to refuse the application (ground 1); · rejecting the appellant's evidence about his homosexual relationship in India, finding that the appellant had given inconsistent evidence and finding that he was not a credible witness (ground 2); · failing to find that the appellant was being persecuted for a Convention reason (ground 3); · failing to consider the documents (including various emails and telephone records) submitted by the appellant as proof of his homosexual relationship (ground 4); and · failing to accept that the appellant had any such relationship with any other individual in that country (ground 5).

Appeal Ground 1 15 The first ground of appeal alleges that the Tribunal failed to provide the appellant with an opportunity to respond to the country information upon which the Tribunal relied as the reason, or part of the reasons, to refuse the application. This ground of appeal was not raised before the learned federal magistrate. The appellant requires the leave of the Court to advance it in this appeal. Such leave will not be given if the point sought to be raised has no merit: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 per Kiefel, Weinberg and Stone JJ at [46]-[48]. 16 The appellant's argument assumes that there was an obligation upon the Tribunal to invite him to comment on the country information. This assumption is incorrect. Section 424A(1) of the Act provides that, subject to subsections (2A) and (3), the Tribunal must give to the appellant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review. However, s 424A(3)(a) provides that subsection (1) does not apply to information that is not specifically about the appellant or another person and is just about a class of persons of which the appellant or other person is a member. 17 It is well settled that the effect of s 424A(3)(a) is to exclude country information from the requirements of s 424A(1): Minister for Immigration and Multicultural Affairs and Indigenous Affairs v NAMW (2004) 140 FCR 572 at [64]-[74] and [138]; VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [11]-[16]. Accordingly, the Tribunal was not obliged to provide the independent country information to the appellant for comment. Ground 1 does not raise any arguable ground of appeal. Leave to rely upon this ground of appeal is therefore refused.

Appeal Grounds 2, 4 and 5 18 Grounds 2, 4 and 5 are overlapping as they each assert that the learned federal magistrate erred by not finding that the Tribunal had erred in rejecting certain of the appellant's arguments and evidence or in finding that he was not a credible witness. 19 The acceptance or rejection of evidence is ultimately a matter for the tribunal of fact: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]. Similarly, it is the function of the Tribunal to make credibility findings: see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]; NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at [9]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291. Accordingly, the learned federal magistrate was correct to reject the appellant's arguments based upon the Tribunal's rejection of evidence or its assessment of his credibility. Each of grounds 2, 4 and 5 is rejected.

Appeal Ground 3 20 Appeal ground 3 raises an unparticularised assertion that the learned federal magistrate erred by failing to find that the Tribunal had erred in not finding that the appellant had suffered from persecution. This ground of appeal was not developed in argument before me by the appellant at all. It follows from what I have already said that this ground of appeal cannot succeed.

Conclusion 21 The appeal should be dismissed with costs. I fix the costs in the amount of $4,373. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.