AJJ16 v Minister for Immigration

[2016] FCCA 2627

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJJ16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2627

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – applicant fears harm upon return to Nepal because of his homosexuality – whether the Tribunal erred by failing to consider evidence – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J(1)(a), 36(2), 36(3)

Cases cited:

Minister for Immigration, Multicultural Affairs & Citizenship v SZRHU (2013) 215 FCR 35; [2013] FCAFC 91

Applicant: AJJ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 72 of 2016

Judgment of: Judge Smith

Hearing date: 28 September 2016

Date of Last Submission: 5 October 2016

Delivered at: Sydney and by video-link to Perth and by telephone-link to Yonga Hill Immigration Detention Centre

Delivered on: 21 October 2016

REPRESENTATION

The Applicant appeared in person in Perth by video-link.

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 72 of 2016

AJJ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India who arrived in Australia on 2 July 2009 as a student. On 3 October 2012, his last substantive visa expired and he became an unlawful non-citizen. As a result, the applicant was taken into immigration detention on 28 September 2014. On 19 December 2014, the applicant lodged an application for a protection visa based upon his claim that he feared persecution for reason of his homosexuality.

2. On 2 November 2015, a delegate of the Minister made a decision not to grant the applicant a protection visa and the applicant applied to the Administrative Appeals Tribunal for review of that decision. On 20 January 2016, the Tribunal affirmed the delegate’s decision. The applicant now seeks judicial review of the Tribunal’s decision.

3. The matter was originally listed for hearing on 20 March 2017. However, as the applicant remained in immigration detention, the hearing was brought forward to 28 September 2016.

4. The applicant appeared unrepresented at the hearing on that day and indicated that he had not had sufficient time to prepare submissions in support of his case. In light of that, the parties were given further time to prepare and file written submissions. Both parties agreed that, once those submissions were filed, the matter could be determined without any further hearing. The applicant filed written submissions in accordance with the leave granted to him. The first respondent has chosen not to file any further written submissions.

5. In order to succeed, the applicant must establish that the Tribunal’s decision was affected by jurisdictional error. For the reasons that follow, he has failed to do so and the application will be dismissed.

Background

1. The applicant’s claims for protection were based upon his homosexuality. He claimed that the persecution that he had suffered in India had been perpetrated by the government and the society and that the government was either unwilling or unable to prevent it. The applicant claimed that it was illegal to be homosexual in India and that if he returned he would be killed by a mob or arrested and thrown in jail. He also claimed that homosexual people were highly discriminated against in Indian society at every level, and that he would not be able to find and stay in employment, or to live as a gay man. The applicant claimed that his parents had disowned him from their family and property as a result of his homosexuality.

2. The applicant attended an interview conducted by a delegate of the Minister and gave evidence about his claims. He was asked by the delegate about the possibility of residing in Nepal in light of the 1950 Treaty of Peace and Friendship (“Treaty”) between Nepal and India. The applicant claimed that he had never thought about residing in Nepal in spite of the Treaty. He further claimed that Lesbian, Gay, Bisexual and Transgender (LGBT) people are not safe in Nepal and that he would not be able to live there freely as a gay man. Further, the applicant said that it would be very difficult for him to find stable employment because he is homosexual. The applicant claimed that he would be mistreated and ostracised in that country and that he did not have anybody in Nepal who could offer him any effective protection.

3. The delegate accepted that the applicant had a genuine fear of harm by the authorities in India due to his homosexuality but found that the applicant had a right to enter and reside in a safe third country, namely Nepal, and that the applicant had not taken all possible steps to avail himself of that right.

4. The delegate then made a number of findings. The delegate found on the basis of the country information available to it, and the applicant’s own evidence in relation to the LGBT community in Nepal, that the applicant did not have a well-founded fear of persecution for a sub-s.5J(1)(a) Migration Act 1958 (Cth) reason. The delegate also found that the applicant did not have a well-founded fear that Nepal would return him to another country where there were substantial grounds for believing that there would be a real risk of suffering significant harm in that other country. For those reasons, the delegate concluded that the applicant did not satisfy the criterion in either sub-ss.36(2)(a) or (aa) of the Act and so decided not to grant the applicant a protection visa.

5. The applicant applied to the Tribunal for review of the delegate’s decision. In support of his application for review the applicant sent the Tribunal a large amount of material concerning the circumstances affecting LGBT people in Nepal, as well as a 64 page hand written submission explaining the reasons for which he claimed that he could not safely live in that country.

6. On 19 January 2016 the applicant attended a hearing conducted by the Tribunal and gave further evidence about the issues on the review and on 20 January 2016 the Tribunal made a decision to affirm the delegate’s decision.

Tribunal’s decision

1. The Tribunal accepted that the applicant was homosexual and that there was a real chance that the authorities would not provide adequate protection for him against the harm he feared. It found that the failure of the State constituted persecution for a Convention reason, and thus, that the applicant had a well-founded fear of persecution for reason of his homosexuality. The Tribunal then turned to consider the application of s.36(3) of the Act which provided:

   …

   (3)Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

   …

2. The Tribunal approached this question by reference to the decision of the Full Court of the Federal Court in Minister for Immigration, Multicultural Affairs & Citizenship v SZRHU (2013) 215 FCR 35; [2013] FCAFC 91. First, the Tribunal noted that there were no practical barriers for Indian citizens being able to travel to and enter Nepal; secondly, it identified from country information the documents that were necessary for an Indian citizen to enter Nepal; and thirdly, it considered information concerning the general ability of Indian citizens to enter Nepal.

3. The Tribunal considered that the presentation of specified documentation complemented and supported the Treaty privileges conferred reciprocally, and designed to allow citizens of this country to access the territory of the other country, to allow them to enjoy those privileges which included a privilege of residents. The Tribunal concluded that the terms of the Treaty and the administrative arrangements for entry, referred to in the country information considered by it, meant that the applicant has the right to enter and reside in Nepal for the purposes of s.36(3) and found that he had not taken all possible steps to avail himself of that right.

4. The Tribunal next considered whether the applicant had a well-founded fear of persecution in Nepal or whether there was a real risk of significant harm there. Having considered various sources of country information, the Tribunal did not accept the applicant’s claim that there was no protection for homosexuals in Nepal. It also did not accept that the applicant would be unable to obtain employment or accommodation in Nepal; or that he would be denied access to basic services such as to threaten his capacity to subsist. While the Tribunal accepted that the applicant may face a level of discrimination in that country on account of his homosexuality, it did not accept that he faced a real chance of serious harm amounting to persecution or a real risk of significant harm for that reason.

5. The Tribunal next considered whether the applicant would be returned from Nepal to another country where he would face persecution or a real risk of significant harm and found no country information to suggest that the government of Nepal would return the applicant to India.

6. For those reasons the Tribunal concluded that s.36(3) of the Act was engaged and so the applicant did not satisfy the criterion in s.36(2). Accordingly, it affirmed the decision of the delegate not to grant the applicant a protection visa.

Consideration

1. In his application the applicant raised three grounds:

   i)that return to his country of origin may result in life imprisonment;

   ii)he would not be able to live safely and openly as a gay man in Nepal; and

   iii)the evidence provided by him was totally overlooked by the Tribunal.

2. The first two grounds raise questions of fact and the merits of the Tribunal’s decision rather than any jurisdictional error. For that reason they must be rejected.

3. As to the third ground, it is clear from the Tribunal’s statement of reasons that it did not overlook any of the material provided by the applicant for the purposes of his application for review. The Tribunal not only referred, to but also summarised, that material as follows:

   …

   [54] The applicant provided to the Tribunal a large number of articles in support of his claim to fear harm because of his homosexuality in Nepal. He provided copies of US State Department Country Reports on Human Rights Practices in Nepal for 2013 and 2014 as well as Australia for 2014. Also provided were copies of Human Rights Watch Reports on Nepal, including one dated 1 April 2013 on LGBT people in Nepal. A number of articles from various sources were provided about the relationship between India and Nepal. A number of articles were also provided about the LGBT community in Nepal. The applicant provided various articles from Wikipedia which the Tribunal has considered, however it places greater weight on the country information provided sourced from more reputable sources. The applicant provided copies of decisions by previous members which the Tribunal acknowledges but is not bound by previous or other decisions of this Tribunal.

   [55] The applicant also provided various Human Right Watch Reports on Australia to which he referred during the hearing to indicate that there were no cases of violence against members of the LGBT community in Australia unlike in Nepal and that he trusted the police in Australia whereas he does not trust the police in Nepal to protect him.

4. The Tribunal then referred to and summarised, at [56], the applicant’s 64 page handwritten submissions concerning the articles provided by him.

5. In those circumstances, I reject the assertion that the Tribunal failed to consider the information provided by the applicant and, accordingly, the third ground must fail.

6. The written submissions provided by the applicant in accordance with the leave granted at the hearing, addressed only questions of fact going to the merits of the Tribunal’s decision.

Conclusion

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

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     21 October 2016