AJB16 v Minister for Immigration

[2016] FCCA 3052

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJB16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3052

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal considered the applicant’s claims relating to his homosexuality – whether the Tribunal’s decision was affected by an error of law – no jurisdictional error – application dismissed. 

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 414, 476

Cases cited:

CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146

Applicant: AJB16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 346 of 2016

Judgment of: Judge Smith

Hearing date: 25 October 2016

Date of Last Submission: 25 October 2016

Delivered at: Sydney

Delivered on: 25 October 2016

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms G Doyle, Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 346 of 2016

AJB16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicant is a citizen of Nepal, who arrived in Australia on 14 January 2009. On 12 April 2010, he lodged an application for a protection visa. That application was rejected by a delegate of the Minister by decision made on 2 September 2010. The applicant made a second application for a protection visa on 20 May 2014, relying, this time, on the complementary protection criterion found in sub-s.36(2)(aa) of the Migration Act 1958 (Cth), although this application was based upon the same factual claims as the first application had been.

2. On 14 October 2014, another delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The applicant applied to the Refugee Review Tribunal for review of that decision. On 22 January 2016, the Administrative Appeals Tribunal made a decision to affirm the delegate’s decision. The applicant now seeks judicial review of the Tribunal’s decision in this Court’s jurisdiction under s.476 of the Act. In order to succeed, he must show that the Tribunal’s decision was affected by jurisdictional error. Broadly speaking, that means that he must establish that the Tribunal made an error that affected the exercise of its jurisdiction.

Applicant’s claims

1. Before turning to the bases upon which this application is made, I will first set out the claims made by the applicant in support of his protection visa application and the Tribunal’s reasons for its decision. In essence, the applicant claimed that he feared harm upon return to Nepal for reason of his homosexuality. He claimed that he could not reveal his homosexuality to his family, relatives, friends, or other Nepalese because he would be expelled from family and society. He said that he found it difficult to live an openly homosexual life in Nepal and he experienced social pressures.

2. The applicant claimed that he worked as a primary school teacher for nearly six years up until July 2008. However, at that time, he talked socially with a local man who then reported to the headmaster of the school that the applicant was sexually attracted to that man. The headmaster suspected the applicant of being homosexual and terminated his employment on the spot. The applicant was told that he could return to work only if he married a woman.

3. The applicant claimed that he would be easily identified as a target in Nepal and that he would be vulnerable to physical harm, harassment, discrimination, denial of basic services, death or other serious harm. He said there was a shame culture in Nepal and that there was a strong pressure to marry. He claimed that he would experience anxiety and emotional abuse from family and relatives, and that he was very stressful about maintaining a single life as a heterosexual.

Tribunal’s decision

1. The Tribunal accepted that the applicant’s claims had remained largely consistent over time. However, it had a number of concerns about his credibility and found that the applicant was not genuinely homosexual, that he was never fired from his employment because of an allegation made that he was homosexual, that anyone in the applicant’s family or community perceived him to be homosexual or that he departed Nepal owing to fears for his safety or wellbeing arising from homosexuality.

2. The Tribunal was not satisfied that the applicant had told anyone in Australia that he was homosexual or that he had visited homosexual bars in Sydney. It was not satisfied the applicant would be forced to behave discreetly or conceal any part of his identity were he to return to Nepal. The Tribunal was not satisfied that he would endure any mental suffering arising from pressure to get married and have children, or fears for his safety or wellbeing.

3. The Tribunal gave four reasons for those conclusions. The first was that his written and oral evidence lacked detail, and that at the Tribunal hearing, he appeared reluctant to stray from his written statement. The Tribunal noted that the applicant was unable to talk freely or lucidly about how he came to realise he was homosexual, and that he was also unable to provide any further detail in relation to the incident which led to him being fired from his job as a teacher.

4. Secondly, the Tribunal found that aspects of the applicant’s claim lacked plausibility. For example, the Tribunal was troubled as to why – if no one in the applicant’s village knew or suspected that the applicant was homosexual – he was accused of being a homosexual. That was particularly in light of the fact that the applicant had had a six year employment history with the school.

5. Thirdly, the Tribunal noted that the applicant had expressed a fear of being excluded or ostracised from his family, whereas, in his oral evidence, he indicated that he had himself cut off ties with his family after deciding to leave his village.

6. Fourthly, the Tribunal was concerned with the applicant’s evidence that he had made no inquiries as to the situation for homosexual people in Australia, given that he was seeking asylum for that reason in Nepal.

7. In this respect, the Tribunal also noted that the applicant had not provided any evidence in support of the application, despite the fact that he had been on notice that there was an issue of his homosexuality from the time of the Department’s first decision to refuse to grant him a protection visa. For those reasons, the Tribunal was not satisfied that there was a real risk that the applicant would suffer serious harm or significant harm upon return to Nepal.

8. The Tribunal went on to find, in the alternative, that even if it were wrong about its earlier conclusions, there was not a real chance or risk of the applicant suffering serious or significant harm in Nepal. That is because it was satisfied that it would be reasonable for the applicant to relocate to an urban area in Nepal such as Kathmandu where there was no real risk or real chance of serious harm or significant harm. The Tribunal found then that the applicant did not meet the criteria for the grant of a protection of visa and affirmed the decision not to grant the applicant a protection visa.

Consideration

Ground one

1. There are three grounds in the application for judicial review. The first ground is:

   I am not satisfied with the Tribunal Member’s decision on the ground of natural justice and procedural fairness because I am homosexual but I have been undermined in my sexual orientation and my claims were heavily overlooked and ignored by the Member’s strong arbitrary view.

2. This ground appears to equate the rejection by the Tribunal of the applicant’s claim to be a homosexual with a denial of procedural fairness. The question of the denial of procedural fairness, however, is focused not on questions of substance in decision-making, but with procedure. It is clear in regard to that procedure that the applicant was on notice that there was an issue in the proceedings about the genuineness of his claims. The Tribunal record reveals that the applicant was asked a number of questions about his homosexuality and about aspects of his claims that ultimately led the Tribunal to conclude that his claims were not genuine.

3. The Minister submitted that the rejection by the Tribunal of the applicant’s claims was based upon findings of credit and that findings of credit are matters for the Tribunal par excellence. I note the recent consideration of such a submission and the limits of the submission by the Full Court of the Federal Court in CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146 at [36] to [38]. However, even having regard to the limits of the submission, I can see no error of the type identified by the Full Court in the credit findings made by the Tribunal.

4. In any event, even if there were some error in the conclusion by the Tribunal that the applicant was not a homosexual, the alternative finding made by the Tribunal that it was reasonable for the applicant to relocate to Kathmandu meant that the Tribunal was bound to make the decision that it did and so relief would, in any event, be refused in the exercise of discretion.

Ground two

1. The second ground in the application is that the “Tribunal member simply ignored to accept [the applicant] as a homosexual based on its arbitrary view”. While the Minister’s submissions addressed this ground on the basis that it potentially raised a claim of bias, in my view what the applicant means is that there was no reasonable or rational basis for the decision. An arbitrary decision is one made without reason. However, this decision is not one which can be described as arbitrary.

2. As I have said, the Tribunal rejected the principal claim by the applicant on the basis of its concerns about his credibility and those concerns were based, in turn, upon four separate matters which were explained by the Tribunal at [44] to [47] of its reasons. In my view those concerns provided a rational basis for the decision and for that reason, even if another or other decision-makers would not have come to the same view on the material before the Tribunal, there was no jurisdictional error in the decision.

Ground three

1. The third ground is that the Tribunal’s decision involved an error of law. That ground is not particularised at all and I can see no error of law in the Tribunal’s decision. Most importantly, the principal basis for the Tribunal’s decision was a rejection of the applicant’s factual claims. As I have said, there was a rational basis for that rejection.

2. The applicant appeared at the hearing unrepresented. He claimed that he was not satisfied with the decision because he did not get justice, that he is a homosexual and that it was not possible for the Tribunal to base its decision on country information because people like himself from a regional area were unable to relocate to Kathmandu.

3. The applicant may well be correct in what he says concerning his homosexuality and the possibility of relocation to Kathmandu. However, these are not matters for the court to determine. They are matters which were relevant to the question of whether the applicant satisfied the criteria for a protection visa. As such, it was the Tribunal which was given the responsibility of determining them pursuant to s.414 of the Act. For those reasons the applicant’s claims in that respect do not give rise to a jurisdictional error.

4. Similarly, the applicant’s claim that it was not possible for the Tribunal to rely upon country information must fail because the country information is information relevant to the Tribunal’s task, while that information may be inconsistent with the applicant’s own experiences. It is nevertheless open to the Tribunal to rely upon reports from other sources in order to determine the factual circumstances relevant to its review of the delegate’s decision.

5. In light of the applicant’s other claims and arguments before the court, the claim that he did not get justice appears to be a claim that he ought to have been believed by the Tribunal. The answer to that question, however, is beyond the proper scope of judicial review.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 29 November 2016