Aay17 v Minister for Immigration

[2019] FCCA 743

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAY17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 743

Catchwords:
MIGRATION – Application for protection visa – assertion that applicant would suffer harm if returned to Zambia by reason of, inter alia, her bi-sexuality – fears unfounded – documents non-genuine – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss.476, 424AA, 36(2)(aa), 438

Cases cited:

MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1

Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305

SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138
Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li [2013] 249 CLR 332

Applicant: AAY17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 2 of 2017

Judgment of: Judge Egan

Hearing date: 18 March 2019

Date of Last Submission: 18 March 2019

Delivered at: Brisbane

Delivered on: 18 March 2019

REPRESENTATION

Applicant: In person

Counsel for the First Respondent: Mr King of Minter Ellison

IT IS ORDERED THAT:

1. The application for review filed on 4 January 2017 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 2 of 2017

AAY17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Zambia who arrived in Australia on 23 October 2013.  On 29 October 2013, the applicant applied for a protection visa (class XA).  The applicant claimed to fear harm in Zambia because she was bisexual, and because she had escaped arrest for her involvement with an LGBT group in 2013.  She supplied a number of documents in support of her application for a protection visa.  On 22 August 2014, a delegate of the Minister refused to grant the applicant a protection visa.

2. On 30 August 2014, the applicant filed an application for review of the delegate’s decision. On 28 January 2016, 17 October 2016 and 16 December 2016, the applicant appeared before the Tribunal. On 22 December 2016, the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa. On 4 January 2017, the applicant filed an application seeking judicial review of the decision of the Tribunal pursuant to the provisions of section 476 of the Migration Act 1958 (Cth) (‘the Act’).

3. The Tribunal referred to each of the documents which had been submitted to it on behalf of the applicant. The Tribunal expressed concerns about the documents provided by the applicant to the Tribunal. The Tribunal put its concerns to the applicant on the occasion the applicant appeared before it using the procedures under section 424AA of the Act. The Tribunal expressed that it considered the applicant’s response that her lawyer cousin had arranged her documents, and that if fraudulent, she was disappointed in him, but the Tribunal did not otherwise accept that explanation as overcoming the fundamental problem that the documentation provided in support of the application was non-genuine.

4. The Tribunal afforded little weight to the documentation which had been provided.  It did so in a detailed analysis of such documents in paragraphs 30 – 52 of its reasons.  The Tribunal had regard to the applicant’s evidence about her bisexuality, her involvement in an LGBT group and her arrest for involvement with that group.  At [56] – [59] of its reasons, the Tribunal accepted that the applicant had been involved in relationships with both men and women.  At [60] of its reasons, the Tribunal was satisfied that the applicant said that she did not want to have sexual relationships with women in the future, although she would not rule it out as a possibility.  She stated that she was more connected to men and would prefer to have a relationship with a man in the future for the sake of her daughter. 

5. The Tribunal, at [75] – [78] inclusive of its reasons, did not accept that the applicant had a genuine fear of serious harm based on her sexuality alone, because in part, the applicant stated in her evidence that the chance of a relationship with a woman in the future was remote.  The Tribunal did not accept that the applicant was involved in an LGBT group in Zambia because it did not accept that her documents were authentic.  The Tribunal also did not accept that the applicant’s evidence about the group was anything other than general, merely referring to the fact that the applicant had not sought to find out what had happened to other members of the group following her alleged arrest.

6. The Tribunal noted that there were no reports of the police raid in the Zambian media.  The Tribunal noted that there was no reference to her cousin being male or female in circumstances where it was the cousin who was said to have helped her escape ([61] – [66] of Tribunal’s reasons).  The Tribunal found that the applicant was not involved in the LGBT group and, thus, did not accept that the applicant had been arrested or had escaped arrest ([67] of Tribunal’s reasons).  The Tribunal also did not accept that the applicant was of interest to the police before departing Zambia because the applicant was able to receive a police clearance before doing so ([68] of Tribunal reasons).

7. For the same reasons as given in respect of the refugee criteria, the Tribunal did not accept that the applicant satisfied the complementary protection criteria as set out in paragraph 36(2)(aa) of the Act.

8. The application for review filed on behalf of the applicant constituted assertions that the factual findings of the Tribunal were wrong to the extent that the applicant sought to invite the Court to conduct a merits review of the factual decisions of the Tribunal.  The Court was unable to do so. 

9. The Tribunal closely examined each of the claims made by the applicant and addressed each of those claims before arriving at its decision. The Tribunal at [47] of its reasons was recorded as having put its significant concerns about the authenticity and genuineness of documents supplied to the Tribunal to the applicant pursuant to the provisions of section 424AA of the Act.

10. The applicant was content to submit to the Tribunal that if documents supplied to it were fraudulent, then it was not her fault, but rather the fault of her lawyer cousin. The Tribunal, at [34] of its reasons, found the section 438(1)(a) certificate issued in respect of the matter to be valid, and disclosed the content of the documents that were the subject of the certificate to the applicant using the procedure as set out in section 424AA of the Act. In doing so, the Tribunal complied with its procedural fairness obligations with respect to such documents. [1]

    [1]        See MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 and Minister

    for Immigration and Border Protection v Singh (2016) 244 FCR 305.

11. In the absence of any transcript evidence filed by or on behalf of the applicant, it is inferred that the Tribunal correctly complied with the procedure set out in section 424AA of the Act. [2] Further, the Tribunal explicitly stated that matters relating to the section 438 certificate were not taken into account when making its decision ([35] of Tribunal reasons). It cannot be stated that the Tribunal treated the section 438 certificate as in any way being material to the making by the Tribunal of its decision, either based upon the certificate itself, or upon the documents related to the certificate. [3]

    [2]        See SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138 at [38].

    [3]        See Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 at [65].

12. The Tribunal closely examined each and every aspect of the claims made by the applicant.  It cannot be said that no other rational or logical decision-maker could not have made the same decision as the subject Tribunal.  As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:

    [130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

13. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered in Minister for Immigration and Citizenship v Li [2013] 249 CLR 332 at [66] and [76] where it was said:

    [66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness134. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power135. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    …

    [76]  As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

14. No jurisdictional error has been established.

15. The application for review is without merit and is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:   

Date:  25 March 2019