SZTGR v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) which dismissed the appellant's application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal), to affirm the decision of a delegate of the Minister for Immigration and Border Protection (the Minister) not to grant the appellant a Protection (Class XA) visa (the protection visa).

Background 2 The appellant is a Fijian citizen. She entered Australia on 18 May 2012 and applied for the protection visa on 14 June 2012. The basis of her claim for protection is that she is a lesbian who has a well-founded fear of persecution in Fiji because of her sexual orientation. 3 The appellant's claims concerning her sexuality, her relationships with same-sex partners and, consequently, with her family, and the harassment and discrimination she has suffered because of her sexuality, were set out in a statutory declaration, which the Tribunal referred to as the appellant's "written claims" or "written statement". The appellant appeared before the Tribunal on 20 August 2013 and gave oral evidence. 4 The Tribunal rejected the appellant's claims, substantially on the basis that it was not satisfied of the truth of significant aspects of the appellant's circumstances in Fiji, as she had claimed them to be. In particular, the Tribunal recorded at [24] of its decision record that it was not satisfied that the appellant: 24. … has or is perceived to have the sexual orientation she claims to have; is or has ever been in a same sex relationship with a woman or that she has any past or future intention or desire to be in a same sex relationship; is perceived to be a Lesbian in Fiji; has experienced past harm or adverse treatment of any type on the basis of her claimed actual or perceived sexual orientation; faces any risk of any type of harm in Fiji in connection with her claimed sexual orientation; or for any other reason in the reasonably foreseeable future. 5 Earlier, at [10] of its decision record, the Tribunal said: 10. … having had the opportunity to review all the evidence before it, including having discussed the applicant's claims with her face-to-face for around three hours when she appeared before the Tribunal on 20 August 2013, the applicant's evidence impresses the Tribunal as hesitant, vague, changing and inconsistent in so many significant respects that the Tribunal is unable to be satisfied of the truth or credibility of even the most fundamental of her past circumstances in Fiji, such as where she attended high school for four to five years in Fiji and when she last lived with either of her parents. She gave no evidence of having any issue of capacity impacting her ability to recall such information, although she did refer to being young at the time she first left home and when her parents left Fiji, which the Tribunal has taken into account, where relevant, below. 6 At [13], the Tribunal said: 13. … her oral evidence to the Tribunal reveals multiple and significant changes and inconsistencies, including inconsistencies with her written claims, and as put to her under section 424AA, with oral information she had previously given the department, detailed further below. She was unable to provide any plausible explanations as to the why such inconsistencies and changes arose in her evidence, leaving the Tribunal unable to be satisfied of the truth of significant aspects of her claimed circumstances, including her claimed sexual orientation. 7 Following these observations, the Tribunal systematically went through the appellant's factual claims and evidence. In doing so, the Tribunal described aspects of the appellant's evidence, including where: there were inconsistencies in the appellant's oral evidence; there were inconsistencies between the appellant's oral evidence and written claims; the appellant changed her evidence, including, on occasion, when the Tribunal pressed her on seeming inconsistencies, and the appellant was unable to adequately explain how she could rationalise inconsistencies between her evidence and the materials on which she placed reliance, as mistakes. 8 The Tribunal also described the manner in which the appellant gave her evidence. The Tribunal noted that, in respect of significant matters, the appellant, on occasion, gave her evidence "with great hesitation", "clear hesitation", "extreme hesitation" or "inexplicable hesitation and vagueness". 9 The Tribunal gave detailed consideration to the appellant's claims and oral evidence about two same-sex relationships she claimed to have had. One relationship was with "Priya". In respect of that claimed relationship, the Tribunal (at [18]) found: 18. When asked when and where she met Priya, a woman with whom she claims to have had a same sex relationship, she initially told the Tribunal that Priya was a neighbor who she met when she went for her morning runs in Nadi, as Priya lived not far from the applicant there. When asked what Priya was doing for work or study at the time they were together, which her statutory declaration identifies as being between 2001 and 2003, she responded that they were school friends at Sangam High School in Suva. When asked how they met in Nadi if they were at school together in Suva for the duration of their relationship she changed her evidence, stating that they met in Suva when the applicant went for morning runs, as they lived nearby, and for the duration of their two year relationship Priya was studying with the applicant at Sangam High School in Suva. She offered vaguely that they were together just under 2 years and their relationship ended while they were still in high school as their parents got involved. In addition to her changing evidence regarding where she lived when she and Priya met, as put to the applicant by the Tribunal, her oral evidence to it regarding her claimed relationship with Priya was also inconsistent with her written claims in the following respects: her written claims are that she was involved with Priya between 2001 and 2003, which is after she claims to have finished high school and when she was already living in Nadi; her written statement says "we used to meet at my place sometimes as her mother used to stay home and my parents were mostly out at work", however her oral evidence to the Tribunal indicates that her father had not been in Fiji since 1996, her mother had not been in Fiji since 1998 or 1999, and she had been renting with friends or on her own in Nadi since 1999 or at the latest, since 2000 when she finished high school; her written statement says that, after her father found out about her relationship with Priya, sometime between 2001 and 2003, he "slapped me and threw me out", however, again, her oral evidence to the Tribunal was that she had not lived in the same household as her father, and he was not even in Fiji, from around 1996. The Tribunal also put to her similar concerns as to why her aunt would be coming to her home looking for her mother between 2001 and 2003 as claimed in her written statement, if her mother had not been living in Fiji since 1998/9. When asked if she is able to offer any explanation for these seemingly significant inconsistencies, she responded that she is trying to recall the dates and times. The Tribunal noted that its concerns extend beyond dates and times. The only response offered by the applicant at that point was a shrug. 10 Another claimed same-sex relationship was with "Sheena". In respect of that claimed relationship, the Tribunal found (at [19]-[20]): 19. The Tribunal also asked the applicant about her claimed same sex relationship with Sheena, with whom, according to her written claims, she was in a relationship with in Fiji from 2009 to 2011. The Tribunal asked the applicant if she and Sheena were still in a relationship when the applicant left Fiji for Australia in May 2012. The applicant responded that: they were not; their relationship ended around one month before the applicant came to Australia; and they have had no contact since then. When asked why the relationship ended she offered that they had just drifted apart. 20. As put to the applicant under section 424AA, the evidence given by her during her department interview regarding the final stages of her claimed relationship with Sheena differed in significant respects from that offered to the Tribunal. In particular, the Tribunal informed the applicant that, in the audio recording of her department interview, held on 9 October 2012, she informed the department that: when she left Fiji for Australia her relationship with Sheena was "strong" and Sheena intended eventually to come to Australia; their relationship ended around one month after the applicant entered Australia, in around June 2012, when the applicant phoned Sheena in Fiji when it was late at night there and another woman answered her phone. The Tribunal explained that her evidence to the Tribunal regarding how and when her claimed relationship with Sheena ended appears different in significant respects and raises concerns regarding the truth of the claims and evidence made not only regarding her relationship with Sheena, but her claimed circumstances more generally, including her claimed sexual orientation. After being informed of her right to request additional time to respond, and following an adjournment of some 20 minutes in which the applicant had access to her migration agent, the applicant offered that: she did say, during her department interview, that she and Sheena had broken up before she got to Australia; however, because she and Sheena met on 14 February she thought there may be something in it; she and Sheena had spoken before about going somewhere to get married so the applicant phoned Sheena from Australia to talk and when she heard the voice of another woman she knew it was over; even though she told the Tribunal they didn't have contact after they broke up, she was referring to routine contact and not to the call she made after she came to Australia. However, in the context of the applicant's evidence overall, including the cumulative and significant credibility concerns identified above, the Tribunal does not consider the applicant's response to be persuasive or true. The Tribunal is not satisfied that the applicant was in an intimate relationship with a person named Sheena as she claims and has significant doubts about the truth of her claimed sexual orientation. 11 The appellant also claimed to have a same-sex relationship with "Simran". In respect of that claimed relationship, the Tribunal said (at [21]): 21. The Tribunal notes that, while the applicant's evidence regarding her claimed relationship with a woman named Simran was largely consistent with her written claims, her oral evidence impressed the Tribunal as offering little beyond what was set out in her written claims, and in the context of the significant and cumulative concerns identified in the balance of the Tribunal's considerations, impresses the Tribunal as rehearsed rather than reflecting the applicant's recollection of her own true past experiences. 12 The appellant also made claims, and gave evidence, about a break-in to her home in October 2011. The Tribunal's findings in that regard (at [22]) were: 22. Similarly, her evidence regarding a claimed break in to her home in October 2011 and an attack while she was at a temple in April 2012, while largely consistent with her written claims, offered little detail beyond that set out in her written claims. Her oral evidence to the Tribunal regarding her contact with the police regarding her claimed treatment in Fiji also impressed the Tribunal as vague and changing. For instance, at one point she told the Tribunal that she had only ever sought police assistance on one accession, which was after the claimed break-in at her home in October 2011. However, only minutes later, when the Tribunal noted her written claims at paragraph 17 of her statutory declaration, referring to her telling the police that she was being called nasty names by people sitting on the road side, she offered that that was another occasion on which she had sought police assistance. Again, her evidence impressed the Tribunal as changing in accordance with the concerns being put to her by the Tribunal, rather than being a communication of past realities actually experienced by her. 13 The appellant also made claims to have experienced past discrimination in the workplace on the basis of her sexual orientation. It is not necessary for me to set out the Tribunal's analysis of those claims, save to note that the Tribunal concluded that the appellant's evidence seemed "contradictory, speculative and unconvincing": see at [23]. 14 Having rejected the substance of the appellant's claims concerning her sexual orientation and her risk of any type of harm in Fiji in connection with her claimed sexual orientation (see the findings quoted at [4] above), the Tribunal concluded (at [25]) that it: 25. … is not satisfied that the applicant faces any harm in Fiji in the reasonably foreseeable future, including a real chance of serious harm for a Convention reason. It follows that the Tribunal is not satisfied that the applicant faces a well-founded fear of persecution for a Convention reason and is not satisfied that she is a refugee under s 36(2)(a).