ASP24 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 681
•1 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ASP24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 681
File number: PEG 60 of 2024 Judgment of: JUDGE LADHAMS Date of judgment: 1 August 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicant a protection visa – whether the Tribunal made a jurisdictional error in its consideration of the applicant’s claim for protection on account of his bisexuality – no jurisdictional error – application dismissed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Migration Act 1958 (Cth) ss 5J, 36, 116, 423A, 476, 477
Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
DQU16 v Minister for Home Affairs (2021) 273 CLR 1; [2021] HCA 10
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437
Timu v Minister for Immigration and Border Protection [2018] FCAFC 161
Division: Division 2 General Federal Law Number of paragraphs: 100 Date of hearing: 10 June 2024 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Ms C Taggart Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: MinterEllison ORDERS
PEG 60 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ASP24
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
1 AUGUST 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant is a citizen of India who applied for a protection visa. A delegate of the Minister refused to grant the applicant a protection visa and that decision was affirmed by the Administrative Appeals Tribunal (Tribunal). The applicant now seeks judicial review of the Tribunal decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant’s main complaint about the Tribunal decision relates to the Tribunal’s assessment of his claim to face harm in India because of his bisexuality.
For the reasons explained below, the applicant has not established that the Tribunal decision is affected by jurisdictional error. The application for judicial review is therefore dismissed.
BACKGROUND
The applicant first arrived in Australia in August 2018 as the holder of a student visa.
In 2019 the applicant was convicted in New South Wales of two counts of ‘stalk/intimidate intend fear physical etc harm (personal)-T2’ and one count of ‘possess child abuse material-T1’ and those convictions were upheld, with sentences varied, on 31 July 2019.
On 3 February 2020 a delegate of the Minister cancelled the applicant’s student visa under s 116(1)(g) of the Migration Act, on the basis that the applicant had been convicted of an offence against a law of the Commonwealth or a State or Territory. The applicant subsequently applied to the Tribunal for merits review of the decision to cancel his student visa, and the Tribunal affirmed the cancellation decision on 20 January 2021.
The applicant applied for the protection visa the subject of this judicial review application on 27 October 2022. In his protection visa application, the applicant claimed he would be killed or physically and mentally harmed from people in his home village in India because the villagers knew about his convictions in Australia and had spread rumours that the applicant physically harmed and sexually assaulted children.
The Minister’s Department invited the applicant to provide additional information in support of his claims on 9 November 2022. However, the applicant did not provide any additional information to the Department.
On 24 November 2022 a delegate of the Minister refused to grant the applicant a protection visa. The delegate found the applicant’s claims that he would be targeted and killed by villagers if returned to India lacked detail and were not credible. The delegate was not satisfied that the applicant met the requirements of s 36(2)(a) or (aa) of the Migration Act.
On 2 December 2022 the applicant applied to the Tribunal for merits review of the delegate’s decision to refuse to grant him a protection visa.
The applicant provided material to the Tribunal on 1 May 2023, including a statutory declaration in which he made the following additional claims:
(a)he is a member of the Other Backwards Caste (OBC) and is a Sikh ;
(b)he had a sexual relationship with another boy as a teenager, and had been talking to men online since entering immigration detention and identified as bisexual;
(c)the people from his village think that he either ‘inappropriately touched or raped a minor girl’;
(d)he had received telephone threats in October 2022 from a man claiming to be a well-known gangster and contract killer in India;
(e)although his family previously supported him they no longer wished to maintain contact with him as they were concerned it would put them at risk of harm, and they would be unable to offer him any financial support;
(f)the news of his offending had spread to nearby villages;
(g)he has been diagnosed with ‘Adjustment Disorder with mixed anxiety and depressed mood’ and, if he returned to his home village, he would be unable to access the psychiatric treatment he required for his adjustment disorder, and his return could lead him to develop Major Depressive Disorder;
(h)if he were unable to receive treatment for his adjustment disorder and subsequently developed Major Depressive Disorder, he would be unable to study or work and people would become aware of his mental health condition and potentially assault him;
(i)he would be unable to find employment in India as a result of his offending, his bisexuality, his Sikh religion and his membership of the OBC;
(j)he would suffer discrimination as a result of the OBC membership; and
(k)he would never be able to live openly as a bisexual in India and could be killed if people found out.
On 3 May 2023 and 6 May 2023 the applicant, via his representative, provided written submissions, country information and other evidence to the Tribunal. The additional material included two statutory declarations made by the applicant referring to sexual encounters he had with men in Australia.
The applicant appeared before the Tribunal on 8 May 2023 to give evidence and present arguments. A psychologist also gave evidence at the hearing.
The applicant, via his representative, provided further evidence to the Tribunal on 25 May 2023 and 26 May 2023, which included an additional claim set out in the psychologist’s report that the applicant had been sexually assaulted by his uncle when he was about 8-10 years old.
On 26 May 2023 the applicant appeared before the Tribunal at a resumed hearing, which was adjourned to give the Tribunal an opportunity to review the additional material provided by the applicant.
The applicant, via his representative, provided the Tribunal with supplementary submissions and additional evidence on 30 May 2023.
On 1 June 2023 the applicant again appeared before the Tribunal at a resumed hearing to give evidence and present arguments. The applicant’s cousin also gave evidence at the hearing.
The applicant, via his representative, provided closing written submissions to the Tribunal on 28June 2023, along with a further statutory declaration of the applicant.
On 29 September 2023 the Tribunal invited the applicant to provide additional submissions on an updated country information report on India published by the Department of Foreign Affairs and Trade (DFAT) that same day. The applicant, via his representative, provided additional submissions on 12 October 2023.
On 19 January 2024 the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
SUMMARY OF THE TRIBUNAL DECISION
The Tribunal gave detailed reasons for its decision, comprising some 59 pages. The Minister’s lawyers summarised the Tribunal’s reasons in the Minister’s written submissions and I am satisfied that the summary provided on behalf of the Minister is accurate. I respectfully adopt that summary with minor modifications.
The Tribunal made the following findings in relation to the applicant’s claims for protection.
Membership of a particular social group of ‘accused child rapist vulnerable to lynchings by mob justice in India’
The Tribunal rejected the applicant’s claims that:
(a)he had been threatened by an Indian gangster;
(b)he would be perceived to have wronged the community; and
(c)villagers were seeking to impose vigilante justice on the applicant in the sense of retribution for his crimes.
The Tribunal however accepted that there was a real chance that the applicant’s treatment from villagers in his home village would reach the threshold of serious harm. In this regard, the Tribunal accepted that:
(a)the applicant genuinely feared being harmed by villagers on return to India;
(a)instances of vigilante justice occur in India;
(b)it was plausible that, as a result of the applicant’s convictions in Australia:
(i)there were members of the community in his home village who were concerned about him and opposed his return to the village;
(ii)there may be rumours among the villagers that the nature of the applicant’s offending involved sexual offences against a minor; and
(iii)members of the community may have placed pressure on his family to cease contact with the applicant to discourage his return to the village; and
(c)attempts to deter the applicant from settling in the village may result in him being the target of adverse treatment in the form of verbal abuse and threats and may bring him to the adverse attention of authorities, including additional scrutiny and false accusations.
The Tribunal did not accept that there was any real chance of harm on the basis of the applicant’s actual or implied offences against a minor if he returned to India but did not return to his home village. The Tribunal accepted that whilst some villagers had connections to the ruling political party in India there was no information to support the claim that the applicant would be able to be tracked down anywhere in India or that the villagers had any interest in doing so.
The Tribunal did not consider the risk of harm to the applicant for reasons of his actual or imputed convictions in Australia extended outside his home village in circumstances where the Tribunal found that there was no real chance his offending history would be known outside the village. The Tribunal considered the applicant’s concerns that it would become known but, based on the localised nature of the villagers’ concern and country information regarding the size of the Indian population and the lack of centralised systems for tracking or tracing individuals, the Tribunal considered that the chance of the applicant being targeted for harm elsewhere to be remote.
Membership of a particular social group ‘persons living in India with a particular sexual orientation, namely bisexuality’
The Tribunal did not accept that the applicant would face a real chance of harm as a bisexual or imputedly gay person.
The Tribunal was concerned with the fact that the claim was raised late, not just in the context of the protection visa application but also late in his migration process, and the claim had also not been disclosed in his psychological records. The Tribunal found this particularly significant as mental health professionals specifically raised and explored the applicant’s sexual history. The Tribunal considered the applicant’s evidence in relation to why the claim had not been raised earlier, and although it accepted that the applicant engaged in online sexual activity with at least three males in Australia, it was not satisfied that he had a physical relationship with any man in Australia or India. The Tribunal also did not accept that engaging in online sex with males for the purposes of sexual gratification equated with him identifying as bisexual and was not satisfied that he was bisexual.
Rather, the Tribunal found that:
(a)engaging in sexual activity in private online conversations carried a low risk of persecution in India;
(b)the applicant’s preference for concealing his sexual activity and claimed LGBTI status from family and friends was due to embarrassment and fears they would stop talking to him, and that he would continue to do so in India not due to a fear of persecution but because he wished to maintain contact with them; and
(c)it was doubtful that the applicant’s family would disown him on the basis of his sexuality but in any event, even if there was a real chance he may be estranged from his family, such treatment would not amount to serious or significant harm.
Membership of a particular social group of ‘persons living in India who suffer from mental and psychosocial conditions’
The Tribunal accepted that the applicant suffered from an ‘adjustment disorder’ and that he may require, and seek, support for his mental health in the future in India. The Tribunal found that there was nothing in the applicant’s history or the evidence from a psychologist that suggested there was a real chance that maintaining his mental health would require him to be institutionalised, particularly if he did not return to his home village, and noted that he had not been hospitalised for mental health reasons at any point in Australia. The Tribunal accordingly did not accept that there was a real chance the applicant would be harmed as a result of seeking treatment for his mental health in India and being institutionalised as a result.
The Tribunal did not accept that the applicant would be unable to find work in India due to mental health issues, and found that any inability to obtain affordable access to mental health services would be a result of inadequate public resourcing of healthcare in India which would not meet the requirements of s 5J of the Migration Act. The Tribunal also rejected the claim that there was a real chance of the applicant being harmed by seeking mental health support from traditional or natural healers, as the applicant’s historical mental health treatment and his family’s attitude to that treatment was not consistent with a claim that he may be forced to seek assistance from traditional healers due to stigmatisation. The Tribunal considered that the applicant’s personal experience and circumstances would make him less susceptible to stigma that may cause people to delay or avoid mental health treatment in India.
The Tribunal did not accept that the applicant would be killed or significantly harmed by members of the public as a result of membership of the particular social group of people who suffer from mental health and psychosocial conditions. The Tribunal found that the reports of violence in the country information appeared to be isolated and specific. The Tribunal did not consider that any of the manifestations of the applicant’s condition would give rise to a real chance of being killed for the essential and significant reason of being a person with a mental illness, and found that he did not face a real chance of serious harm on this basis.
The Tribunal otherwise found that there was nothing in the mental health reports or his evidence which would lead to a finding that there was a real chance he would come to the adverse attention of authorities, be arrested and/or imprisoned in India.
Accordingly, the Tribunal did not accept that the applicant faced a real chance of serious harm for any of the reasons claimed associated with his mental health now or in the reasonably foreseeable future.
Religion as a Sikh
The Tribunal accepted that the applicant was a practising Sikh and that he had attended a Sikh temple and Sikh events in Australia, and that the applicant’s current lack of external indicia of his faith would not prevent him from being identified as Sikh.
The Tribunal drew an adverse inference from the applicant’s late raising of the claim and considered that the applicant did not have a genuine subjective fear of harm in India as a Sikh.
The Tribunal found that the applicant did not face a real chance of serious harm for the essential and significant reason of his Sikh faith in India. With regard to country information and the size of the Sikh community in India, the Tribunal found that the instances of violence referred to in the country information did not represent a real chance of harm to members of the Sikh community generally and that the applicant did not claim to have and would not be imputed with a profile that would place him at an elevated risk of harm.
The Tribunal did not accept that the applicant would need to relocate to the South, where there was a limited Sikh presence and where he did not speak the language, to avoid harm from villagers in his home village. In any event, the Tribunal considered based on credible country information that there was less than a real chance he would suffer significant harm for reasons of his Sikh faith in India, including in Southern states.
Membership of an Other OBC
The Tribunal accepted as plausible that the applicant’s family belonged to a family clan which may be classified as an OBC.
The Tribunal found that the applicant had not offered any satisfactory explanation for the late raising of his claims relating to his OBC status and drew a negative inference with respect to the credibility of those claims and did not accept them.
The Tribunal went on to consider relevant country information and accepted that the applicant may suffer some societal discrimination based on his surname being associated with an OBC in India. However, the Tribunal did not accept that the applicant would be subjected to severe economic hardship or be denied access to basic services, including access to mental health services, as a result of real or imputed membership as a member of an OBC. The Tribunal did not accept that any discrimination would amount to serious or significant harm, and in particular did not accept the applicant would be unable to obtain employment based on his surname or that he would be subjected to violence on the basis of being an OBC.
Harm on the basis of having been molested by an uncle as a child
The Tribunal did not draw an adverse inference from the applicant’s failure to raise this claim earlier and accepted that the applicant had been molested by an uncle as a child of around 8-11 years old. The Tribunal recorded that the applicant’s concern was that he faced a risk of serious harm from his uncle on return to his village in the form of abuse if his uncle discovered he was bisexual.
Noting that the applicant lived in the same village as his uncle for a significant number of years after the abuse ceased and there was no repetition of the abuse or threats of harm since he was a child, the Tribunal did not accept that the applicant was at risk of harm from his uncle in the reasonably foreseeable future. Notwithstanding the applicant’s claims to be bisexual, the Tribunal found that the power dynamic had permanently shifted now that the applicant was an adult and that there was no evidence to suggest that his uncle’s sexual interest in the applicant persisted beyond him being a child or to suggest that his uncle had any sexual interest in men. The Tribunal accepted that the applicant may be apprehensive about seeing his uncle again, but did not accept that there was any real chance he would be harmed by his uncle or by any other person based on having been a victim of historical child abuse.
Relocation
The Tribunal referred to its earlier finding that there was a real chance the applicant could be seriously harmed in his home village for the reasons arising from his real or imputed offences against a child in Australia.
The Tribunal did not accept that the applicant faced an elevated risk of harm in Punjab for reasons of being a member of an OBC, because he is Sikh, due to him being bisexual or on the basis of his mental health. The Tribunal found that the applicant did not face a real chance of serious harm now or in the reasonably foreseeable future in all areas of the receiving country, as per s 5J(1)(c) of the Migration Act. Rather, the Tribunal found that the applicant would have a low-level profile in Punjab among a community that included a significant Sikh community, based on the following findings:
(a)the applicant spoke the local language, was familiar with the local customs of that region and whilst youth unemployment rates were high, the applicant had skills which should assist him in gaining employment;
(b)it was likely that the applicant’s family would support him outside of his home village given they had done so until recently with full knowledge of his offences and he would be able to re-establish himself in Punjab;
(c)the medical evidence suggested that the applicant’s condition would be exacerbated by a return to his home village due to his concern about being targeted there, but did not suggest his mental health would suffer by relocation to another area where his history was not known; and
(d)given that the Tribunal had rejected the submission that there was more than a remote chance that the applicant would be arrested or interrogated for reasons of his sexuality, offences in Australia, mental health issues, OBC status, Sikh religion or for any other reason on return to India, the Tribunal did not accept there was a real chance or real risk of any of the harm the applicant claimed he would suffer as a result of police interrogation, detention or imprisonment outside of his home village.
The Tribunal ultimately found that there was no real chance that the applicant would face serious harm in all areas of India if he returned to India now or in the foreseeable future for any of the reasons claimed, on either an individual or cumulative basis.
Complementary protection criteria and reasonableness of relocation
The Tribunal had regard to case law in finding that s 36(2)(aa) of the Migration Act will not be engaged by harm inflicted by the act of removal itself. The Tribunal accepted that the applicant may not wish to return to India but did not accept that he was owed complementary protection on that basis.
The Tribunal did not accept that the applicant suffered from a ‘mental disability’ as that characterisation was not supported on the evidence as to the manifestations of his documented mental health issues and there was no evidence to suggest he would be imputed to have a mental disability on return to India. The Tribunal found that whilst access to mental health treatments may be less widely available than in Australia, the country information did not suggest a real risk that persons suffering from anxiety or depression would be subject to cruel, degrading and inhumane treatment. The Tribunal also found that neither the social stigma associated with having a mental health condition nor the more limited access to mental health services in India met the thresholds for significant harm in the applicant’s circumstances.
Having found that the applicant did not face a real chance of serious harm in Punjab, the Tribunal also found that the applicant did not face a real risk of significant harm in Punjab. The Tribunal noted that s 36(2B)(a) of the Migration Act required the Tribunal to consider whether it would be reasonable for the applicant to relocate to Punjab. In this regard, the Tribunal found:
(a)there was no evidence that the applicant would be unable to safely access those areas;
(b)the applicant speaks, reads and writes the local languages and also speaks, reads and writes in English;
(c)Punjab had a significant Sikh population and a historical association with the OBC to which the applicant belongs, as well as economic activity across a range of industries with which the applicant had familiarity, including a strong agricultural sector;
(d)whilst relocation in India is challenging without social networks, the applicant had experience travelling and relocating and had family members in Australia that continued to support him; and
(e)the applicant had maintained his Sikh faith and connection to the Sikh community in Australia which would offer opportunities to social connection and support on return to India.
The Tribunal was therefore satisfied that it would be reasonable for the applicant to relocate to Punjab and that under s 36(2B)(a) of the Migration Act, there was taken not to be a real risk that the applicant would suffer significant harm in India.
JUDICIAL REVIEW APPLICATION
The applicant filed his application on 21 February 2024 and the application was therefore made within 35 days of the Tribunal decision, as required by s 477(1) of the Migration Act.
The application contains the following grounds:
1.The Second Respondent acted outside its jurisdiction by not applying Ministerial Direction 84 when determining that it was not satisfied that the real chance of persecution to the applicant related to all areas of India. The Second Respondent failed to consider the DFAT Country Information Report for India regarding relevant considerations relating to the applicant’s ethnicity, sexualities and religion. As such, the Second Respondent failed to have regard to the applicant’s individual characteristics in assessing his protection claim and therefore failed to perform the review function.
2.The Second Respondent has failed to have regard to the Applicant’s individual characteristics in assessing his protection claim.
3.The second respondent erred in considering that the applicant was suffering from mental health problems and could not get proper treatment anywhere in India.
4.The tribunal made an unfair decision despite knowing and providing all the satisfied evidences by applicant that he can be persecuted upon his arrival in India.
These grounds were not pressed at the hearing and the applicant instead alleged an error in relation to the Tribunal’s consideration of his claim to face a real chance of serious harm on account of his sexuality. When the applicant was expressly asked at the hearing whether he would like the Court to consider the grounds raised in his application, even though he did not make submissions on them, he responded ‘no’. He explained that these grounds were inserted when the applicant received assistance from a friend to file the judicial review application within time, and he had not actually read the Tribunal decision at that time. I therefore do not address the grounds as raised in the application, and instead focus solely on the matters raised in the applicant’s oral submissions.
Pursuant to an Order made by a Registrar of this Court on 20 March 2024, the applicant was to file and serve written submissions, any amended application and any additional evidence upon which he intended to rely at least 28 days before the hearing. The applicant did not file any documents in accordance with the Order. The Minister filed written submissions 14 days ahead of the hearing, as required by the Order.
The evidence before the Court comprises:
(a)an affidavit filed by the applicant on 21 February 2024 annexing a copy of the Tribunal decision;
(b)the court book filed by the Minister on 30 April 2024;
(c)an affidavit of service of Ellen Lucy Goldsworthy Tattersall filed on behalf of the Minister on 4 June 2024; and
(d)an email from the applicant to the Court sent on 1 June 2024, which was tendered by the Minister in response to the applicant’s oral application for an adjournment.
ORAL APPLICATION FOR AN ADJOURNMENT
At the commencement of the hearing of this matter, the applicant made an oral application for an adjournment of the hearing, on the basis that he had not been able to find a lawyer.
The applicant said that he was a member of the Centre for Asylum Seekers, Refugees and Detainees (CARAD) and had requested a lawyer through CARAD, but they had been unable to find a lawyer for him. He also said that he had emailed two lawyers who had not returned his emails and a third lawyer had declined to act for him. He wanted a further opportunity to try to find a lawyer, potentially through Law Access, and in response to the email tendered by the Minister, also submitted that he had mental health concerns. The applicant said that he was not ready to represent himself at the hearing.
The Minister opposed the applicant’s request for an adjournment, noting that the applicant had requested an adjournment previously by way of emails to Chambers and to Registry. When he requested an adjournment by way of email to my Chambers, my associate informed him that the request for an adjournment was refused, and informed him of steps he could take to seek an adjournment, including by conferring with the Minister’s lawyer and, if agreement was not reached, filing an application in a proceeding supported by an affidavit. In response to his email to Registry, the applicant was again informed that he could not seek an adjournment by email. The Minister’s lawyer responded to that email giving reasons why the Minister did not consent to an adjournment.
I declined to grant the applicant an adjournment and indicated that I would give reasons for that decision in my judgment relating to his application.
These are the reasons I declined to grant the adjournment.
First, I do not consider it appropriate to grant further time to the applicant to enable him to try to find a lawyer to represent him. The applicant was notified of the listing for hearing on 9 April 2024, and has therefore had two months’ notice of the hearing. While there is no evidence before the Court of his attempts to find a lawyer, taking into account his submission from the bar table, it would appear that the applicant has approached at least two lawyers, plus requested assistance through CARAD, without success. There is nothing before the Court to indicate that the applicant would be likely to find a lawyer if an adjournment is granted.
Further, I note that the lack of legal representation is not, of itself, a reason to grant an adjournment of the hearing. As the Full Court said in Timu v Minister for Immigration and Border Protection [2018] FCAFC 161 (Timu) at [19]:
It is undoubtedly true that a litigant in person who is not a lawyer faces substantial difficulty in prosecuting a claim. Legal representation is plainly highly desirable, both in the interests of Mr Timu and the due administration of justice. However, lack of legal representation is not, of itself, a reason to adjourn the hearing of a long scheduled application or appeal.
After the adjournment was refused, the applicant also submitted that he had expected that a lawyer would be able to find new grounds of application. The Full Court in Timu at [20] also accepted that it would be inappropriate to grant an adjournment on the speculative basis that a lawyer might discover further grounds of review.
I am not satisfied that the applicant’s present lack of legal representation or his desire to find a lawyer amounts to a reason to grant an adjournment of the hearing.
Second, insofar as the applicant seeks an adjournment on medical grounds, there is no current medical evidence provided to support that request, although I acknowledge there is some evidence in the court book to show that the applicant has a mental health condition. There is no evidence before the Court to show that the applicant’s ability to prepare for the hearing has been impeded in any way by any mental health condition. The applicant did not make any detailed submissions about why his mental health is a proper basis for an adjournment of this hearing and I am not satisfied that an adjournment is warranted for medical reasons.
Third, to the extent that the applicant relies on his own unpreparedness to proceed as a reason why an adjournment should be granted, I observe that it is the applicant’s responsibility to ensure that he is ready to proceed with the hearing, even if he could not find a lawyer. It is not appropriate for an applicant to assume that an adjournment will be granted on request, and therefore not prepare for the hearing, or to rely on their own unpreparedness to try to persuade the Court to grant them an adjournment. I do not agree to grant the applicant an adjournment on the basis that he is not prepared for the hearing.
Fourth, in making any decision in relation to the grant of adjournments it is appropriate to act in a manner that best promotes the overarching purpose of the Court’s civil procedure and practice provisions. The overarching purpose is explained in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). Subsections 190(1) and (2) provide:
(1)The overarching purpose of the civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 2), is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c)the efficient disposal of the Court’s overall caseload;
(d)the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
I have had regard to these principles in refusing to grant the adjournment.
CONSIDERATION OF THE JUDICIAL REVIEW APPLICATION
The role of the Court in judicial review proceedings
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicant if he establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
The applicant’s oral submissions
The applicant did not file any written submissions ahead of the hearing.
Given the applicant’s assertion that he was not properly prepared for the hearing, after explaining to him the nature of the application before the Court and how the hearing would proceed, I stood the matter down for a period to enable the applicant to think about the submissions he wished to make to the Court.
As noted above, the applicant indicated that the grounds in his application were drafted by a friend, and he did not press the grounds. The applicant was given an opportunity at the hearing to identify any legal error he believed the Tribunal made, even if it was not referred to in his grounds.
The Tribunal’s consideration of the applicant’s claim for protection on account of his bisexuality
When the matter resumed, the applicant referred to [131] of the Tribunal reasons, which reads (footnote omitted):
Country information suggests local sources told DFAT that lesbian, gay, bisexual, transgender and/or intersex (LGBTI) people ‘face intolerance, abuse and violence in their daily lives’. Discussion about sexuality is generally taboo in India, which means that LGBTI people often lead hidden lives.
The applicant submitted that there was a point in the Tribunal’s reasons where the Member said that she considered the applicant was bisexual, but said that he did not come out before, and that he can keep hiding. The applicant submitted that if he kept his sexuality hidden until now, the Member cannot expect that he can keep this hidden for his whole life.
The applicant was unable to pinpoint the relevant finding in the Tribunal’s reasons. I have reviewed the Tribunal’s reasons in an attempt to identify the paragraph the applicant is referring to, without success.
The Tribunal summarised the applicant’s claim relating to his sexuality at [123] of its reasons, where it said:
The applicant claims that he is bisexual and that there is a real chance he will be seriously harmed if he is returned to India on this basis. The applicant claimed that he is interested in men and women and generally prefers men and would face a similar level of risk to a gay man living in India (Integer B).
The Tribunal then considered the applicant’s claims based on his sexuality from [123] to [160] of its reasons.
At the hearing, Counsel for the Minister and the Court questioned whether the applicant may be referring to one or more of [157]-[159] of the Tribunal’s reasons. In these paragraphs, the Tribunal said:
157.The Tribunal accepts the applicant has engaged in sexual activity with males online while he has been in detention, including conversations of a sexual nature mutual masturbation. The Tribunal accepts this evidences that the applicant may engage in online sex with males for the purposes of sexual gratification. However, the Tribunal does not accept that this equates with him identifying as bisexual something he claims to have understood prior to coming to Australia. Noting the failure of the applicant to raise any claims to identify as bisexual until the current proceedings before the Tribunal and the lack of any evidence as to the nature of the applicant’s claimed relationships outside the online communications the Tribunal had significant doubts about the applicant’s claims to be bisexual and to fear harm on that basis. Noting the requirements of s 423A and the failure of the applicant to offer a satisfactory reason for the late raising of these claims the Tribunal is required to draw inference unfavourable to the credibility of the claims and evidence of the applicant and the Tribunal cannot be satisfied that the applicant is bisexual as he claims.
158.Even if the Tribunal is wrong about this, the Tribunal notes the applicant’s only documented sexual activity with men is online communications. He said he told the Tribunal if he remained in Australia, he would continue to hide his sexuality from his family members. He said he had caused them enough trouble already. He also said he did not want his Indian friends to know or his parents and village may find out. Later he said he might come out by he could only do that if he was in Australia. Importantly, the applicant did not indicate he had maintained a discrete lifestyle as an LGBTI person because of fear of persecution but because he was ashamed and did not want his family and friends to know. The Tribunal notes that estrangement from family and friends would not meet the thresholds of serious or significant harm even if it were to eventuate, which the Tribunal does not accept. In this regard the Tribunal notes the applicant
159.In any event, based on the applicant’s evidence and claimed history and having regard to the above country information the Tribunal does not accept there is any real chance he would be seriously harmed due to actual or imputed membership of a particular social group as a bisexual or gay man. The applicant has engaged in sexual activity in private online conversations which the Tribunal considers carries with it a low risk of persecution in India. Further he has indicated a preference for concealing that sexual activity and his claimed LGBTI status from family and friends due to embarrassment and fear they will stop talking to him. The Tribunal considers he would continue to do so in India not due to a fear of persecution by them or other but because wished to maintain contact with them. The Tribunal considers it doubtful that the applicant’s family would disown him on the basis of his sexuality noting their continued support following his convictions in Australia. In any event, the Tribunal finds that even if there is a real chance he may be estranged from his family if he were known to identify as LGBTI or engage in online sexual activity with men, such treatment would not amount to serious or significant harm.
However, the applicant indicated that those were not the paragraphs he was thinking of. In the absence of the applicant being able to identify the relevant finding of the Tribunal, and the Court and Counsel for the Minister being unable to otherwise identify the finding the applicant refers to, I cannot be satisfied that the Tribunal in fact made the finding as articulated by the applicant.
I have otherwise considered the Tribunal’s findings in relation to the applicant’s claims about his sexuality more generally, and the Minister’s submissions in response to the oral submissions of the applicant.
Counsel for the Minister interpreted the applicant’s submissions as raising, very broadly, the question of whether there was an issue of concealment of sexuality and suggested that his submissions may go to the question of whether there was an erroneous finding that the applicant would be required to conduct himself in a way that would conceal his claimed sexuality or that the Tribunal erred in its reasoning in this regard.
Counsel for the Minister addressed this assertion by first addressing s 5J(3) of the Migration Act, which provides:
A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c)without limiting paragraph (a) or (b), require the person to do any of the following:
…
(vi)altar his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status…
Counsel for the Minister highlighted several features of the Tribunal’s reasons, including:
(a)After identifying the relevant claim at [123] of its reasons, the Tribunal provided a summary of the information that the applicant had provided.
(b)The Tribunal then considered country information relating to the experience of LGBTI people in India. This included acknowledging the following information from DFAT at [135] of its reasons (footnote omitted):
DFAT also observes that there is a distinction in India between men who identify as gay or bisexual man and men who have sex with men, but do not consider themselves part of the LGBTI community, observing that ‘The latter are much more common’.
(c)Following its consideration of the country information, the Tribunal found at [140]:
Based on available country information, including that referred to in the applicant’s submissions, the Tribunal considers that in general the treatment of LGBTI people in India is not sufficiently serious by its nature and repetition as to amount to a real chance of serious harm or constitute persecution. However, the level of risk will depend on an applicant’s individual circumstances and in particular the reaction of the person’s family to their real or imputed LGBTI status or lifestyle.
(d)The Tribunal then proceeded to make various observations and findings as to the evidence given by the applicant in relation to these claims and his credibility in relation to these claims, including findings that:
(i)there was no evidence that the applicant had any physical relationship in Australia, and the Tribunal was not satisfied that the applicant previously had a relationship, as he had claimed, in India with another male;
(ii)the Tribunal accepted that the applicant had engaged in sexual activity with males online whilst in detention but did not accept that that equated to the applicant identifying as bisexual; and
(iii)the Tribunal referred to the applicant raising the claim late and, in the context of considering the application of s 423A of the Migration Act, was not satisfied that the applicant offered a satisfactory reason for raising this claim late. The Tribunal drew an inference unfavourable to the credibility of the claims, and was not satisfied that the applicant was bisexual, as he claimed.
(e)Relevantly, for the purposes of considering s 5J(3) of the Migration Act, the Tribunal:
(i)rejected the factual premise of the claim that the applicant is, or identifies as, bisexual, meaning that any issue of concealment does not arise because a factual premise of the claim has been rejected; and
(ii)in any event, proceeded to consider the possibility that it may be wrong, and:
(A)noted the applicant’s evidence that if he remained in Australia, he would continue to hide his sexuality from family members;
(B)noted that the applicant did not indicate that he had maintained a discrete lifestyle because of fear of persecution, but rather because he was ashamed and did not want his family and friends to know, and feared they would stop talking to him if they knew; and
(C)considered that the applicant would continue to hide his sexuality not due to any fear of persecution, but because he wished to maintain contact with his family and friends.
Counsel for the Minister submitted that there can be no relevant error arising from the Tribunal’s consideration of s 5J(3) because:
(a)the Tribunal did not accept the factual premise of the claim;
(b)the Tribunal, in considering the possibility that it may be wrong in its finding that the applicant was not, and did not identify as, bisexual, did not accept that the applicant would be persecuted on the basis claimed; and
(c)the Tribunal considered why the applicant had not disclosed in India his claimed bisexuality and found that any concealment, or discretion arose for reasons not relating to a claimed fear, or some other risk of persecution.
I accept the submissions advanced on behalf of the Minister both in relation to the interpretation of the issues raised by the applicant’s oral submissions and the Minister’s response to those issues.
The Tribunal’s consideration of the applicant’s claimed bisexuality and whether he would face a real chance of serious harm on account of his claimed bisexuality was comprehensive and detailed, extending over seven pages of the Tribunal’s reasons. The Tribunal identified and considered the relevant evidence provided by the applicant and the Tribunal also considered country information from a range of sources including Indian legislation and case law, DFAT, the United Kingdom Upper Tribunal, the United Kingdom Home Office and the United Nations High Commission for Refugees.
Based on the country information that was before the Tribunal, it was open to the Tribunal to find that, generally, the treatment of LGBTI people in India is not sufficiently serious both by its nature and repetition to amount to a real chance of serious harm or to constitute persecution.
It was appropriate for the Tribunal to also consider the applicant’s specific circumstances in order to ascertain whether the applicant may personally face a higher risk. In considering the applicant’s specific circumstances, the Tribunal made findings that were open to it on the evidence before it. The Tribunal was not required to uncritically accept the applicant’s claims: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451. Where the Tribunal did not accept the credibility of the applicant’s claims, it gave clear reasons for its findings, including in relation to s 423A of the Migration Act, which requires the Tribunal to draw an inference unfavourable to the credibility of a claim or evidence that was not raised or presented before the delegate’s decision was made if the Tribunal is satisfied that the applicant does not have a reasonable explanation for not raising the claim or presenting the evidence before the delegate’s decision.
For the reasons it gave, it was open to the Tribunal to reject the applicant’s claim to identify as bisexual and to find that his past sexual activities with men were limited to engaging in online sexual activity, including conversations of a sexual nature and mutual masturbation, while in detention. The Tribunal identified that sexual activity in private online conversation carries with it a low risk of persecution in India. It was also open to the Tribunal to find that the applicant would not personally face a real chance of serious harm if he returned to India, on the basis that he is, or is imputed to be, bisexual or gay.
Given the Tribunal’s findings that:
(a)it was not satisfied that the applicant was bisexual as he claimed;
(b)in general the treatment of LGBTI people in India did not amount to a real chance of serious harm, and considering the applicant’s individual circumstances, his claimed fear to be estranged from family and friends if they knew of his sexuality would not amount to serious harm or significant harm,
the application of s 5J(3) of the Migration Act did not arise.
In any event, the Tribunal considered the possibility that it may be wrong in its lack of satisfaction that the applicant was bisexual and considered the reason that the applicant did not reveal his claimed bisexuality. On the evidence before it, it was open to the Tribunal to find that the reason the applicant concealed his claimed bisexuality was not because of any claimed fear of persecution, but rather because of his shame and embarrassment and because he did not want his family and friends to know.
I note for completeness that, in considering whether the applicant met the complementary protection criterion in s 36(2)(aa) of the Migration Act, the Tribunal relied on the same findings of fact in relation to the applicant’s claim bisexuality that it made in the context of considering whether he met the refugee criterion in s 36(2)(a) of the Migration Act. The factual findings made by the Tribunal amounted to a sufficient basis for the Tribunal to find that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real chance that the applicant would suffer significant harm on account of his claimed bisexuality. I further note that any question of the application of s 5J(3) of the Migration Act does not arise in the context of complementary protection and the principles that emerge from Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71,[1] also do not apply in the context of the Tribunal’s consideration of the complementary protection criterion: DQU16 v Minister for Home Affairs (2021) 273 CLR 1; [2021] HCA 10 at [18]-[25].
[1] Subsection 5J(3) was introduced after the decision in Appellant S395 and is said to be ‘not inconsistent’ with the principles articulated in that case: see the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, at 174 [1194].
I also note that, in his reply submissions to the Court, the applicant submitted that he kept his sexuality hidden throughout his life, but gave the Tribunal evidence of it, and does not know what else he could have provided. This submission relates to the merits of the Tribunal decision and does not assert any jurisdictional error in the Tribunal decision.
No jurisdictional error arises from the Tribunal’s consideration of the applicant’s claimed bisexuality.
Paragraph 211 of the Tribunal’s reasons
The applicant also referred in his oral submissions to [211] of the Tribunal’s reasons. In that paragraph, the Tribunal said:
Giving the applicant the benefit of the doubt, the Tribunal accepts the applicant was molested by an uncle as a child, around 8-11 years old. On his own evidence this abuse ceased when he was a child and was not repeated prior to his leaving India as a young adult, at 18 years old. He has had no contact with his uncle since leaving India and following since the abuse ceased, he has not been the subject of any threats or repeated harm from his uncle.
Although the applicant referred to this paragraph, he was unable to articulate any asserted error.
I have also considered the paragraph and have not identified any jurisdictional error arising from the paragraph. The paragraph appears to be an acceptance by the Tribunal of the relevant factual assertions advanced by the applicant. The Tribunal then proceeded to consider whether the applicant would face a real chance of serious harm in the subsequent paragraphs and found that:
(a)the applicant was not at risk of harm from his uncle in the reasonably foreseeable future, noting that the applicant lived for a significant number of years in the same village as his uncle after the claimed abuse ceased and there was no repetition of the abuse or any threats of harm since he was a child;
(b)the power dynamic between the applicant and his uncle had permanently shifted with the applicant now being an adult and there was no evidence to suggest that the applicant’s uncle has any sexual interest in men; and
(c)the applicant may have been apprehensive about seeing his uncle again, but the Tribunal did not accept that there was any real chance the applicant would be harmed by his uncle or any other person based on having been abused by his uncle as a child, either as a member of a particular social group of people who have been the subject of sexual abuse as children or for any other reason.
It appears to me that the findings made by the Tribunal were open to it on the evidence before it. While the applicant may disagree with the Tribunal’s decision, this, of itself, is insufficient to establish jurisdictional error: see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40]. No jurisdictional error arises from the applicant’s reference to [211] of the Tribunal’s reasons.
CONCLUSION
The applicant has not established that the Tribunal decision is affected by jurisdictional error. His application for judicial review must therefore be dismissed.
I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 1 August 2024
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