AMU15 v Minister for Immigration

[2015] FCCA 2312

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMU15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2312

Catchwords:
MIGRATION – Protection (Class XA) visa – whether tribunal’s decision affected by jurisdictional error – where no error in tribunal’s decision – application dismissed.

Legislation:

Migration Act1958 (Cth), ss.36(2)(a), 36(2)(aa), 476(1)

Applicant: AMU15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: DNG 21 of 2015

Judgment of: Judge Jarrett

Hearing date: 25 August 2015

Date of Last Submission: 25 August 2015

Delivered at: Darwin

Delivered on: 25 August 2015

REPRESENTATION

The Applicant appeared in person with the assistance of an interpreter.

Solicitor for the First Respondent: Ms Kent

Solicitors for the First Respondent: Australian Government Solicitor

The second respondent entered a submitting appearance.

ORDERS

1. The name of the Second Respondent be amended to “Administrative Appeals Tribunal”.

2. The application filed on 17 April, 2015 is dismissed.

3. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 21 of 2015

AMU15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex tempore

1. This is an application pursuant to s.476(1) of the Migration Act1958 (Cth) for review of a decision of a refugee review tribunal given on 23 March 2015 that affirmed a decision of a delegate of the first respondent to refuse the applicant a Protection (Class XA) visa.

2. The application was filed by the applicant without legal assistance.  It lacks any precision and arguably any proper grounds of review. 

3. Directions were made on 19 May, 2015 to prepare the application for hearing.  Those directions provided the applicant with the opportunity to file any amended application, with full particulars of each ground of review and any affidavit evidence, by 9 July, 2015.  The applicant has not taken up that opportunity.

4. The parties were both directed to file and serve written submissions prior to the hearing date.  The applicant has filed an affidavit that annexes what I will treat as his written submissions and some other documents.  The first respondent has also filed written submissions.  I have had regard to the written submissions filed by each party.

Background

1. The applicant is an Indian citizen who arrived in Australia on 16 September, 2008 on a student visa. The applicant’s student visa ceased on 1 March, 2011 and he lived in the community without a visa until he was taken into immigration detention on 27 July, 2014.

2. On 2 September, 2014 the applicant applied for a Protection (class XA) visa. 

3. In his visa application the applicant claimed to fear harm should he return to India on the basis that he is homosexual.  He claimed that he was raped when he was 8 years old by a male labourer and had been the subject of verbal, physical abuse, social exclusion and threats to his life since that incident.  The applicant claimed to fear verbal threats and threats of torture, hanging or stoning if he returned to his village.  He claimed that he could not report his problems to the Police because he would face jail, torture and perhaps death in jail.   He also claimed to have contracted hepatitis C from a sexual encounter with another man.

4. The applicant’s claims were explored in an interview with a delegate of the first respondent.  On 21 January, 2015 his application was refused by a delegate of the first respondent.  The delegate did not accept that the applicant was homosexual.

5. On 30 January, 2015 the applicant sought review of the delegate’s decision by a refugee review tribunal.  The tribunal was unable to make a favourable decision on the papers alone and so invited the applicant to attend a hearing before the tribunal to give evidence and present arguments.

6. On 5 March, 2015 the applicant appeared by telephone before the tribunal. He had the assistance of a Punjabi/English interpreter. The tribunal further explored the applicant’s claims. During that process, the applicant claimed that whilst in India, he had turned to drug use because he was “mentally weak, sick and depressed and wanted to get over that”. It accepted a post hearing submission and attached materials concerning the treatment of homosexuals in India, in Islam and in other countries from the applicant.

7. On 23 March 2015 the tribunal affirmed the delegate’s decision.  The tribunal identified the central issue as whether it accepted the applicant’s claim that he is a homosexual.  The tribunal accepted the applicant’s claim to have been sexually assaulted at a young age, but considered that this assault was not an incident of the applicant’s claimed homosexuality and did not result in the applicant suffering serious or significant harm from verbal, physical and social exclusion.

8. The tribunal identified a number of inconsistencies in the applicant’s evidence that undermined the applicant’s claimed fear of harm due to his homosexuality. The tribunal considered that the applicant’s inability to identify any serious or significant harm he had suffered in India because of his claimed homosexual activities between the age of 16 or 17 and 24 was inconsistent with his claimed fear of harm.  The tribunal considered the applicant’s evidence that he took drugs in India up to the time he left for Australia to be fabricated.

9. The tribunal considered the applicant’s claim that he contracted hepatitis C because of his homosexual activities but considered that the evidence did not support a claim that homosexual relations is the only cause of hepatitis C. 

10. The tribunal discussed inconsistencies in, and implausible elements of, the applicant’s claimed history of homosexual activity in Australia.  The tribunal then found that the applicant’s claims to have participated in homosexual activity in Australia or in India were not credible, that the applicant is not and has not been a homosexual.  Further, it found that he would not be forced to marry if returned to India.

11. The tribunal found that the applicant’s history of education and living in India was inconsistent with his claimed fear of harm and that his delay in applying for protection reinforced the tribunal’s finding that his claims were not genuine.

12. The tribunal found that the applicant did not satisfy s.36(2)(a) or s.36(2)(aa) of the Act.

Grounds of review

1. The application lists the following grounds:

   (1) Decision made with lack of information on my claim for protection.

   (2) Decision is not based on law.

   (3) R.R.T has misused the power of making decision on my claim

   (4) Decision was made without any information about me, my past life, my situation back in my Country about my problems and fears

   (5) Decision was against the Migration and Refugee acts.

   (6) Decision was so irresponsible

   (7) R.R.T has violated my rights as refugee

2. The first respondent’s submissions suggest that grounds 3 and 6 can be dealt with together.  It is argued that they each seek impermissible merits review.  I agree.  The tribunal is empowered by the Act to hear and determine the applicant’s review applicant.  That is what it did. It did so according to the requirements of the rules of procedural fairness set out in the Act.  I can see no basis upon which it might be sensibly suggested that the tribunal misused its power to make a decision on the applicant’s claims.  Ground 6 is commentary upon the tribunal’s decision and is not a ground of review at all.  To the extent that it invites a consideration of the merits of the tribunal’s decision, it seeks that I embark upon a course not available to the Court.

3. The first respondent suggests that grounds 1 and 4 might be best viewed as an allegation that the tribunal failed to take into account relevant information.  I agree with that suggestion.  And in this regard, it is important to note that it was the applicant that chose what information to place before the tribunal and the extent to which he would inform the tribunal of the background to his claims.  His claims about drug use are a good example.  Whilst he accepted that he had not raised that matter in his visa application or with the delegate, his response to the tribunal when asked why he had not raised it was simply that he had not been asked.  The tribunal’s reasons, however, do not suggest that the applicant was asked about drug use, rather, he volunteered the information when answering a more general charge by the tribunal member that the applicant had not suffered serious or significant harm in India because of his claimed homosexuality.

4. Further, to the extent that the applicant’s grounds 1 and 4 are meant to suggest that the tribunal did not give proper consideration to the material provided by the applicant in his post hearing submission, the reasons reveal that the tribunal’s acknowledged the material supplied to it by the applicant.  However, the weight that the tribunal gave to that information was a matter for the tribunal as part of its fact finding function.  Further, as the first respondent points out, given the tribunal’s rejection of the applicant’s claimed homosexuality and homosexual activity, the tribunal was not obliged to address the material concerning the treatment of homosexuals in India, in Islam and in other countries that the applicant had provided.

5. The remaining grounds have no substance.  No error of law or failure to comply with the relevant legislation is apparent from the tribunal’s reasons for decision.  No lack of procedural fairness is evident.

Conclusion

1. The tribunal’s decision is not affected by jurisdictional error.  The tribunal’s decision is a privative clause decision and is unable to be challenged in this Court.

2. The application must be dismissed with costs.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:       1 September 2015