ACD17 v Minister for Immigration

[2018] FCCA 2515

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACD17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2515

Catchwords:
MIGRATION – Application for judicial review – Protection (Class XA) visa – persecution due to homosexuality – whether the Tribunal made a jurisdictional error – whether the Tribunal was biased – whether the Tribunal did not consider critical evidence – no error apparent – no bias apparent – Tribunal had regard to all claims and evidence of the Applicant – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 476

Cases cited:

Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421

Applicant: ACD17

First Respondent: MINISTER FOR IMMIGRATION

Second Respondent:  ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 15 of 2017

Judgment of: Judge McNab

Hearing date: 14 June 2018

Date of Last Submission: 14 June 2018

Delivered at: Melbourne

Delivered on: 7 September 2018

REPRESENTATION

Applicant in person:

Counsel for the Respondent: Ms Kowalewska

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application filed 4 January 2018 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

PEG 15 of 2017

ACD17

Applicant

And

MINISTER FOR IMMIGRATION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an application filed on 10 January 2017, the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’). This decision affirmed a decision of the Minister’s delegate (‘the Delegate’), not to grant the Applicant a Protection (subclass XE-790) Safe Haven Enterprise Visa (‘Visa’). The application was initially listed for hearing on 7 September 2017. However, upon application and orders made by consent, the Court ordered that:

   a)the hearing listed for 7 September 2017 be vacated;

   b)no later than 42 days before the hearing, the Applicant file and serve:

   i)an amended application, if any, with proper particulars of the ground of the application;

   ii)a supplementary Court book, if any; and

   iii)written submissions. 

2. The Court also ordered that the matter be listed for hearing on

   
   

   15 June 2018. That date was later amended for the matter to be heard on 14 June 2018 at 10:00 am. The Applicant appeared before the Court with the assistance of a Twi interpreter. At the commencement of the hearing, the Applicant announced that he had prepared a written document outlining his grounds of review in greater detail and relied upon that document. A number of the grounds that he raised in this document were additional to matters raised in his original application, and I will deal with those matters below.

Background

1. The Applicant is a citizen of Ghana who arrived in Australia via Johannesburg using a false Ghanian passport and was taken into Immigration detention upon arrival on 10 September 2015. He applied for the Visa on 22 October 2015. The Applicant was invited to attend an interview with an officer of the Department, which took place on

   
   

   3 June 2016. On 19 July 2016, the Delegate refused to grant the Applicant a Visa. 

2. On 28 July 2016, the Applicant applied to the Tribunal for review of the Delegate’s decision. On 10 October 2016, the Applicant appeared before the Tribunal to give evidence and present arguments. On

   
   

   23 December 2016, the Tribunal affirmed the Delegate’s decision not to grant the Applicant the protection Visa. The Applicant’s claims for protection are set out in [4] to [8] of the Tribunal decision. Those claims are as follows:

   4.In his written application for protection, the Applicant claims he is homosexual and Muslim, and that the government does not support homosexuals and they are mistreated in Ghana. He claims he will be mistreated and jailed. He claims the religions and the political parties do not support the idea of being homosexual.

   5.The Applicant claims if he returns to Ghana he may be killed, tortured or jailed.  He claims his “other partner, Hamza” and his friend Kinto have been mistreated and tortured by the Ghanian Accra. He claims his father’s attitude to him changed when he knew the Applicant was homosexual, and he is now a disgrace to the family. 

   6.The Applicant claims he “received threats from a group of gangs” who caught his friends, Hamza and Kinto. He claims the group threatens to kill homosexuals. 

   7.The Applicant claims the police in Ghana will not help him because they do not support homosexuals. 

   8.He also writes that he tried to move to South Africa where he visited in 2012 but he could not contact his brother there since the xenophobia started. In relation to other West African countries, the Applicant claims they are the same as his country and they do not respect human rights. 

3. The decision of the Tribunal made reference to the findings of the Delegate, and at [91] made reference to the Applicant’s oral evidence about entering Australia on false pretences and using a false passport through the assistance of a Dr. Abu Bakr Yaro:

   The Applicant referred to Dr. Yaro being a Good Samaritan and someone he had confided in about his sexuality. 

4. The Tribunal considered the Applicant’s response submitted to the Department to this adverse information, as set out exactly in the Delegate’s decision record. The Delegate’s decision record is found at Court Book pages 96 to 105. Given the detail of the findings, it is appropriate to set out those findings verbatim:

   At his Visa interview on 3 June 2016, the Applicant was asked to explain the reasons for his departure from Ghana and his decision to come to Australia. The Applicant stated that a few weeks before his departure, he received threats from a group called the “Mighty Empire Gang” which he described as a vigilante/criminal gang based in New Town near the Applicant’s home in Accra. 

   The Applicant stated that the gang, led by a man who calls himself

   
   

   ‘Gay Slayer’, attacked a friend of his called Kinto. He claims that Kinto was forced by the gang to name other homosexual men, including the name of the Applicant. He claims that as a consequence, the gang contacted him on his mobile phone and threatened him. The Applicant claims that he went into hiding and didn’t return to his family’s home in New Town. He claims he stayed with a friend.

   The Applicant stated that during his time in hiding, he contacted a

   
   

   Dr. Abu Bakr Yaro, a friend of a friend, and confessed that he was homosexual. He claims that he contacted Dr. Yaro because he feared that his homosexuality was an illness. He claims that Dr. Yaro told him that it is not an illness; some people are simply born that way. He told Dr. Yaro about the threats and Dr. Yaro offered to help him leave Ghana. He stated that Dr. Yaro was due to travel to Australia and suggested the Applicant travel under his name, utilising the Australian visa; in essence, the act of a Good Samaritan. The Applicant stated that for $200, a friend of a friend called Shehu made him a fake passport using Dr. Yaro’s details. The Applicant claims that the time between receiving threats, calling Dr. Yaro and departing for Australia was approximately two weeks.

   The Applicant arrived in Perth, Australia on 10 September 2015 after a flight that included changing planes in South Africa. The layover in Johannesburg was approximately five hours, according to the Applicant. This means the Applicant departed Ghana no earlier than 9 September 2015. If the time between receiving threats from the “Mighty Empire Gang” to departure was no more than a couple of weeks, then he received the threats in late August 2015. The Applicant claims the gang learned of his homosexuality after his friend Kinto was assaulted and forced to reveal the names of other homosexual men. Country information indicates that Albert Appiah, aka Kinto, was attacked in February 2015. If Kinto passed the name of the Applicant on to the gang, it took them six months to then contact and threaten the Applicant. 

   However, critically, undermining the Applicant’s narrative is information before the Department indicating that he provided an inaccurate account of the circumstances regarding his assistance from Dr. Yaro and when and how the decision was made to travel to Australia. Department systems checks indicate that the Applicant, Dr. Yaro and two other men known to the Applicant applied for visitor visas to Australia in December 2014. The men, including the Applicant, informed the Department that they were medical professionals wishing to attend a conference on palliative care. These applications were refused. Department systems indicate that the Applicant and the other three men reapplied for visitor visas in mid-2015 with the Applicant submitting his application using a second passport. In his second application, the Applicant claimed to be a nurse and wrote that he wished to attend a conference on prostate cancer. However, this was partially erased and amended to read ‘HIV/sexually transmitted diseases’. Of the four applicants, only Dr. Yaro was successful in obtaining a visa. This was the visa that the Applicant used in an attempt to gain entry to Australia. 

   This information indicates that the Applicant and Dr. Yaro were attempting to travel to Australia for approximately 10 months prior to his arrival, inconsistent with his claim that the decision to come to Australia and the assistance of Dr. Yaro all occurred within the space of a couple of weeks prior to landing in Perth. The fact that four men known to each other lodged applications together weakens the Applicant’s narrative that he was a lone homosexual man fleeing persecution. This information undermines the Applicant’s claim that Dr. Yaro was a friend of a friend with whom he contacted after he went into hiding and the choice to come to Australia was made simply because Dr. Yaro had a visitor visa.

5. It is apparent from the Tribunal decision that the Tribunal discussed with the Applicant his claims for protection and the findings made by the Delegate. In particular, at [17] – [18] the Tribunal notes that it asked the Applicant to describe any stages or phases of any sexuality and relationships that he had in the past. 

6. Paragraphs [14] – [29] deal with the Tribunal’s questioning of the application in relation to the Applicant’s sexuality and indicated the responses given by the Applicant. At [30], the Tribunal stated that it referred to the Delegate’s decision where the Delegate made reference to the Applicant entering Australia on false pretences and a false passport through the assistance of Dr. Yaro (which I have observed above). The Tribunal noted that the Applicant responded that, “Dr. Yaro was a Good Samaritan and he knew his character and of the threats against him”. He said that he had spoken to Dr. Yaro about homosexuality and Dr. Yaro had told him it was peoples’ ignorance that was the trouble.

7. The Tribunal also noted the parts of the Delegate’s decision which referred to Facebook activity engaged in by the Applicant where he was seen posing in a photograph with a young woman and had posted anti-homosexual statements. The Tribunal at [92] and [93] held that it did not regard the evidence in the Facebook posts as probative to the question of the Applicant’s sexuality. At [29], the Applicant told the Tribunal that he had not been physically harmed in Ghana, but confirmed that he had been threatened.

Tribunal Decision.

1. The Tribunal considered country information in relation to the treatment of homosexuals in Ghana and found at [82] that homosexuality is criminalised in Ghana and punishable by a period of up to three years imprisonment. The Tribunal also found that the country information indicates the existence of reports of violent attacks on homosexuals in Ghana and of societal discrimination. 

2. In relation to the Applicant’s claims to be a homosexual, the Tribunal made adverse credibility findings against the Applicant. At [80] to [85] the Tribunal set out its reasons for the adverse credibility findings. At [85] the Tribunal stated that it:

   … considered the Applicant’s written and oral evidence very carefully in arriving at its conclusion on the question of whether the Applicant is genuinely homosexual. It found his written statement to be relatively brief and lacking in the detail that might assist the Tribunal in making a decision on the Applicant’s sexuality. His written claims assert that the Applicant has been in a homosexual relationship and that his family has discovered his sexuality and his father’s attitude towards him changed.

3. The Applicant claimed that he “received threats from a group of gangs, who caught his friends Hamza and Kinto”. At [84], the Tribunal stated that it formed the view “the Applicant’s evidence was rehearsed, insincere and concocted. It observed when he was speaking that he appeared to be speaking of incidents occurring to other people and not of experiences that he had experienced himself.” When the Tribunal asked the Applicant why he would be harmed if he returns to Ghana, it considered the Applicant’s reply to be vague and that it did not appear to be genuine.

4. At [85], the Tribunal stated that when it raised concerns about the credibility of his evidence, the Applicant replied in terms claiming he might not be able to express himself. The Tribunal stated that it:

   … did not find the Applicant lacked capacity for self-expression, but, rather, found his oral evidence to be lacking in credibility, especially when considered in the overall context of such things as delay and the gangs’ claimed threats to the Applicant which he said began six months after the gang became aware of his claimed sexuality. When this was put to the Applicant, he responded that the threats commenced earlier. The Tribunal found this response lacking credibility, too. The Tribunal also found claims that he had been in a homosexual relationship to be lacking credibility. 

5. There are issues with the way that the Tribunal has expressed its findings in relation to credibility. For instance, the reference to the Tribunal forming the view that the Applicant’s evidence was “rehearsed, insincere and concocted” is not specifically linked in the decision to any particular evidence which is said to fit that description. However, when reading the decision as a whole, including the references to the findings of the Delegate and the Delegate’s reference to the circumstances of the Applicant seeking to travel to Australia, those conclusions are in fact supported by references to credibility findings in other parts of the decision, including at [91], where the Tribunal deals with the evidence in relation to Dr. Yaro.

6. Having considered the Applicant’s claims, the Tribunal did not accept that the Applicant was telling the truth about:

   a)being homosexual;

   b)being threatened with harm by members of a gang who went to his house looking for him and whom told his parents that he was homosexual;

   c)being perceived by his family as homosexual, or Dr. Yaro being a Good Samaritan and someone he confided in about his sexuality.

7. At [94] to [95], the Tribunal found that the Applicant did not have a well-founded fear of persecution and did not meet the criteria in s.36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’). At [97] to [98], the Tribunal after considering complementary protection criteria, the Tribunal stated that it was not satisfied on the evidence before it that there were substantial grounds for believing, as a necessary and foreseeable consequence of the Applicant being removed to Ghana, there is a real risk he will suffer significant harm as defined in the Act.

8. As noted above, at the commencement of the hearing before the Court, the Applicant handed to the Court a written statement that he wished to rely upon. Omitting irrelevant parts, in summary, the matters that he raised are that at the interview at the airport and at the interview with the Minister’s Delegate he gave officials the contact details of witness Dr. Abu Bakr Yaro and says that on both occasions he specifically asked them to contact Dr. Yaro to verify his story. 

9. It is not suggested in this document that he requested the Tribunal to contact Dr. Yaro and, in fact, at page 138 of the court book, in the Applicant’s response to the hearing invitation, under the heading in relation to a request to take oral evidence from a person, the Applicant ticked the ‘no’ box in relation to the request that the member take oral evidence from another person. There is no basis for setting aside the decision on that ground.

10. In paragraph B of the statement of the Applicant referred to giving newspaper and internet articles at both the airport interview and the interview with the Minister’s Delegate in relation to the culture in Ghana regarding the treatment of people identifying as LGBTIQ and the laws in relation to homosexuals. Given the Tribunal’s finding at [82], that material is not relevant and makes no difference to the decision. 

11. The Applicant makes a comment that his social media was trawled by authorities after his airport interview and refers to Facebook posts made between 2010 and 2013 which were used by the Delegate to refuse his application. Given the Tribunal’s finding and statement at [92] - [93] of its decision that it did not place any weight on the Facebook posts, this does not take matters any further. 

12. In paragraph D of the Applicant’s document he states that when he was confronted by authorities at his initial airport interview and asked very specific and intimate questions he froze due to cultural and societal taboos that he had grown up with. He put that:

    I was not able to prove my case enough by the way I answered the questions.

13. The Tribunal asked the Applicant questions and he was able to respond and the Tribunal relied upon the evidence provided at the Tribunal hearing together with other evidence that the Applicant had provided. He did not raise this as a reason for not answering questions fully before the Tribunal.

14. He stated that at the hearing before the Tribunal he reiterated the fact he had asked on two previous occasions that Dr. Yaro be contacted. He then made comments critical of the quality of the recording made of the hearing that was conducted with the Tribunal member. He stated that if there was an issue with the audio then the Tribunal may not have heard his request for Dr. Yaro to be followed up and contacted.

15. As noted earlier, the Court made orders on 29 August 2017 giving leave to the Applicant to file an amended application with particulars of grounds of the application. Prior to this, the Applicant has never raised that there was any issue with the quality of the audio recording or his capacity to answer questions and convey information to the Tribunal as a result of some failure in the audio visual equipment when he was interviewed from detention.

16. Before the Court the Applicant stated that he was able to hear the questions asked of him by the Tribunal and respond and the Tribunal responded to the answers that he had given. The claims in relation to asking the Tribunal to contact Dr. Yaro lack credibility given the Applicant’s indication that he did not wish the Tribunal interview any other witnesses for the purpose of the hearing.

Grounds of review

1. The grounds of the application, replicated exactly below, are:

   (1)The decision-maker made jurisdictional errors in [83], [84], [85], [87], [88] and [90].

   (2)Decision fraught with misrepresentation, negative inferences drawn from particularly plausible explanations, reliant upon biased and targeted information only and sweeping assumptions making it unfair to the Applicant and the administration of justice altogether. Totally indicative of the bias of decision-maker even before the hearing.

   (3)Critical evidence was omitted and if judicial review is not conducted then Applicant face deportation resulting in significant harm and even death.

Ground one

1. For the reasons stated earlier, in my view the credibility findings were open to the Tribunal, and it cannot be said that there were no rational grounds for the credibility findings. The statements of conclusion made are supported the Tribunal’s complete analysis of the evidence. I reject this ground.

Ground two

1. As his second ground of review, the Applicant makes an allegation of bias on the part of the Tribunal. The Applicant has not provided any further particulars for the ground. In order to make out either actual or apprehended bias, the allegation must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 [69]. The Applicant has not referred to any transcript of the hearing, although it is apparent as a result of statements made by the Applicant to the Court that he had access to copy of the transcript and had provided his lawyer with copy of same. The Applicant’s allegation of bias seems to arise from his dissatisfaction with the Tribunal’s findings on credibility as the Applicant cannot point to any evidence that indicates bias. For these reasons, this ground is dismissed.

Ground three

1. The Applicant alleges without particulars that critical evidence was omitted. The Applicant has not gone into any detail as to explain which evidence in particular was omitted which was critical. In the course of the hearing, the Applicant stated that the Tribunal had not taken into account Facebook posts present on his Facebook page which raised his sexuality or, in particular, his homosexuality, which were posted in 2013. In fact, the Tribunal did make comment on a reference made by the Applicant to a page from his Facebook account placed on

   
   

   30 September 2013, where he had posted a picture of himself and someone posted a comment on the picture that he was homosexual. The Tribunal made specific reference to that material and subsequently, as noted earlier, did not place weight on the Facebook posts as determinative of the Applicant’s sexuality. 

2. In my view, the credibility findings made by the Tribunal in this case were open to it. This is particularly so when having regard to the circumstances surrounding the Applicant seeking to gain entry into the country through a scheme to attend medical conferences, for the reasons which were outlined in the decision of the Delegate. These reasons were, in turn, referred to by the Tribunal. There is no basis to the allegation that the Tribunal has failed to have regard to critical evidence or that the decision of the Tribunal is otherwise illogical or irrational. 

Conclusion

1. For the reasons given above, the application filed 10 January 2017 is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate: 

Date:  7 September 2018