APY17 v Minister for Immigration

[2017] FCCA 2562

FEDERAL CIRCUIT COURT OF AUSTRALIA

APY17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2562

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – Tribunal did not fail to address the claim advanced by the applicant – Tribunal made findings that were open to the Tribunal – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 438, 476

Applicant: APY17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 441 of 2017

Judgment of: Judge Street

Hearing date: 23 October 2017

Date of Last Submission: 23 October 2017

Delivered at: Sydney

Delivered on: 23 October 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr N Swan

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 441 of 2017

APY17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 9 December 2013, affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of Nepal and her claims were assessed against that country. The applicant claimed to fear harm if she returns to Nepal, on the basis that she will be killed by the parents of a former girlfriend and the people of her village, because she is a lesbian, and she claimed that that goes against social and religious principles of her village. The applicant claimed she will be the subject of an honour death due to her relationship with a girl at school. The applicant claimed that in 2005 she was attracted to one of her female classmates and they fell in love. The applicant claimed their relationship was discovered and she was banned from attending school and beaten by her parents. The applicant claimed they viewed her as a disgraceful person, and the applicant claimed she was allowed to return to school but discovered the girl with whom she had been in a relationship, had been killed by her parents. The applicant claimed that when she finished school, she was forced to marry a man and then travelled with him to Australia to study. The applicant claimed that in 2011 she found out her mother was sick and travelled back to Nepal to visit her parents. The applicant claimed that the girl’s brothers spoke to her father and that she should be dead too. The applicant claimed that her mother asked her to leave the village because it was too dangerous for her to stay.

3. The applicant was first granted a student visa on 28 April 2009 and arrived in Australia on 30 May 2009. The applicant was granted a further student visa on 18 April 2011, and departed Australia and returned to Nepal on 4 October 2011. The applicant next arrived in Australia on 10 November 2011. It was not until 31 January 2012 that the applicant applied for protection. 

4. The delegate, in a decision dated 10 October 2012, made adverse credibility findings in relation to the applicant and her claims and found the applicant did not meet the criteria for the grant of a protection visa. The applicant applied for review on 13 November 2012. A differently constituted Tribunal on 9 December 2013, affirmed the decision on the review. That decision was set aside by orders of this Court made on 19 August 2016. 

The current Tribunal’s decision

1. The applicant was then invited by letter dated 15 November 2016 to appear before the current Tribunal on 22 December 2016.The applicant appeared on that date to give evidence and present arguments. The Tribunal identified the background to the application for review and set out the relevant law. The Tribunal summarised the applicant’s claims and evidence. The Tribunal summarised what had occurred at the protection visa interview, as well as what occurred at the first hearing, and then summarised what occurred at the second hearing. In particular, the Tribunal referred to raising country information with the applicant in relation to the level of discrimination in the community in respect of LGBI people. 

2. When the applicant was invited to comment, the applicant maintained that because of her particular circumstances, she could not return because the girl’s father and brothers were searching for her. The applicant alleged she had been able to hide for two or three years and that she would die if she was returned to Nepal. The Tribunal was prepared to accept that the applicant is in fact, lesbian in her sexual orientation and that if she returns to Nepal, she would be a member of this particular social group.

3. In relation to the other claims and evidence of the applicant, the Tribunal found those to be implausible and internally inconsistent. The Tribunal provided detailed reasons for its adverse credibility findings.  Those reasons have not been the subject of any challenge in relation to their reasonableness or being open on the material before the Tribunal.  The Tribunal was not satisfied as to the truth of the applicant’s claim to have had a sexual partner when she was in high school whose father and brothers killed the partner, when the discovered the nature of the relationship. The Tribunal was not satisfied that such a person’s father and brothers threatened to kill the applicant, or that she was sent to Kathmandu for a year to be locked inside a house for her safety. The Tribunal was not satisfied that a concern for her safety led to her parents to force her to marry as a means of allowing her to travel to Australia. The Tribunal did not accept that there is any reason to believe that she would be at risk of harm on return to Nepal because of her past lesbian relationship. 

4. The Tribunal found that there was some level of discrimination against lesbians in Nepal. However, the situation had improved significantly in recent years. The Tribunal was not satisfied that the reactions, which may be unwelcome or upsetting, could reasonably be seen as rising to the level of serious harm. The Tribunal was not satisfied there is any evidence to support the applicant’s claim that they would cause her to fall into depression of a kind that would lead to her taking her own life. 

5. The Tribunal was not satisfied the applicant has a well-founded fear of persecution for a Convention reason should she return to Nepal now, or in the reasonably foreseeable future. The Tribunal was not satisfied the applicant is a refugee. The Tribunal was not satisfied the applicant met the criteria under s 36(2)(a) of the Act.

6. The Tribunal, having considered the applicant’s claims individually and cumulatively, was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk she would suffer harm which would amount to significant harm. The Tribunal found the applicant failed to meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review. 

7. The Tribunal in its reasons referred to the existence of a certificate issued under s 438(1)(a) of the Act. The Tribunal identified that the certificate was not valid and related solely to internal working documents and business affairs. The Tribunal was not satisfied that any of the documents mentioned were relevant to the Tribunal’s decision. 

Before this Court

1. On 8 June 2017, a Registrar of the Court made orders giving the applicant an opportunity to put on an amended application, affidavit evidence and submissions. No such documents were filed. 

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair.

3. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs.

4. The Court explained that it would have identified the evidence, then hear submissions from the applicant in support of the ground in her application as to why the Tribunal’s decision was unlawful or unfair.  The Court explained that it would then hear submissions from counsel for the first respondent and then hear the applicant in reply. The applicant confirmed that she understood the nature of the hearing as explained by the Court. 

5. The ground in the application is as follows:

   1. The Tribunal erred in law by holding that the Applicant did not face serious harm when the law of the land and the evidence clearly stipulates that it is an offence to have homosexual relationship.

   Particulars

   The Tribunal in para 16 of its finding accepted that the applicant was a lesbian. The evidence on record and the law of Nepal (country of reference) adduced before the Tribunal clearly states that it is a criminal offence to have homo sexual relationship and will be prosecuted under law and subject to imprisonment. The applicant was self represented and without considering any of the material on record and her submissions the Tribunal merely affirmed the decision of the First respondent and passed an order without stating as why such local laws will not apply in full force to her and cause serious harm to her.

6. From the bar table, the applicant maintained that she would be harmed if returned to Nepal. The applicant maintained that she would rather die here in Australia than go back to Nepal. At this point, the Court interrupted the applicant to inform her that that was a silly remark to make, in that the Court had no power to decide the case on compassionate grounds. The Court explained that it could not review the merits. The Court explained that it could only consider whether the Tribunal’s decision was unlawful or unfair.

7. The applicant maintained that she would be harmed if she were returned to her small village.  The applicant maintained that she would be humiliated. Nothing said by the applicant from the bar table identified any jurisdictional error.  The applicant’s submissions from the bar table were, in substance, an invitation to this Court to engage any permissible merits review. 

Ground 1

1. In relation to ground 1, the Tribunal did not find that the law of the land stipulates that it is an offence to have a homosexual relationship.   The Tribunal made reference to putting to the applicant, the country information that while there are some residual levels of discrimination against lesbians in Nepal, the situation  has improved in recent years, as well as referring to the reforms urged by the Supreme Court of Nepal. The Tribunal in its summary of the second hearing, made reference to the country information and that in 2007 and 2008, the Supreme Court of Nepal ordered the government to abolish all laws discriminating against lesbian, gay, bisexual, transgender and inter-sex people to recognise same sex marriage. The Tribunal noted that it raised with the applicant that although the Nepalese Government has not complied with these directions and it is technically still possible to prosecute people for homosexual acts, these provisions are not being implemented.

2. The Tribunal made reference to the fact that in Nepal, identity documents may be obtained identifying a person has a third gender, and that there have been gay pride parades and transgender beauty contests in Kathmandu and the Blue Diamond Society and other support groups operating in various parts of the country. The Tribunal noted that it raised with the applicant, while there are still some reports of harassment of LGBI people including by the authorities, there is still some level of societal discrimination. There are no reports of people suffering severe harm because of their sexual identity.

3. The Tribunal did not fail to address the claim advanced by the applicant in relation to the Nepalese law and the Tribunal made findings that were open to the Tribunal. For the reasons given by the Tribunal, there is no finding that the applicant would be prosecuted or subject to imprisonment. The Tribunal’s reasons reflect an orthodox approach to the determination of the applicant’s claims and the dispositive findings of the applicant’s claims cannot be said to lack an evident and intelligible justification. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review. No jurisdictional error as alleged in ground 1 is made out.

Section 438 certificate

1. The Tribunal in its reasons expressly identified that the certificate was invalid and that the documents related solely to internal working documents and business affairs. In light of that finding, the documents were not relevant and could not be regarded as credible, relevant or significant material so as to give rise to any jurisdictional error by reason of the failure to disclose the existence of a certificate, or disclose the documents the subject of the certificate. No jurisdictional error is made out by reasons of the existence of the certificate and the documents that were identified by the Tribunal as not being relevant to its decision. On the face of the material before the Court, the applicant had a real and meaningful hearing.

2. As the application fails to make out any jurisdictional error, the application is dismissed.

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

Date:  8 November 2017