AXD15 v Minister for Immigration and Anor

[2016] FCCA 1006

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXD15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1006

Catchwords:
MIGRATION – Protection visa – cancellation – incorrect information provided in application form – sexual orientation of applicant – whether the Tribunal’s findings were supported by evidence.

PRACTICE & PROCEDURE – Conduct of proceedings by applicant’s counsel – email correspondence to chambers without consent.

Legislation:

Migration Act 1958 (Cth), ss.101, 102, 103, 104, 105, 107, 108

Migration Regulations 1994 (Cth), reg.2.41

Cases cited:
ABX15 v Minister for Immigration & Border Protection [2015] FCCA 3003
ALA15 v Minister for Immigration & Border Protection [2016] FCAFC 30
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2
Wei v Minister for Immigration & Border Protection (2015) 90 ALJR 213; [2015] HCA 5

Applicant: AXD15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1488 of 2015

Judgment of: Judge Smith

Hearing date: 25 February 2016

Date of Last Submission: 25 February 2016

Delivered at: Sydney

Delivered on: 29 April 2016

REPRESENTATION

Counsel for the Applicant: Mr J. Williams

Solicitor for the Respondents: Mr A. Markus, Australian Government Solicitor

ORDERS

1. The applicant’s application in a case dated 24 February 2016 be dismissed.

2. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1488 of 2015

AXD15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Egypt who first arrived in Australia on 31 March 2007 on a student visa and lodged an application for a protection visa on 14 March 2011. That application was based upon his claim that he was homosexual and feared harm in Egypt for that reason. He indicated in the application that he had never been married or been in a de facto relationship.

2. The applicant was granted a protection visa on 4 July 2011 and, perhaps surprisingly, three weeks later returned to Egypt where he stayed for three months before returning to Australia. He travelled to Egypt again in July 2012, staying for two a half months before returning to Australia.

3. On 28 August 2012 Ms F, also an Egyptian, lodged an application for a partner visa in respect of which she was sponsored by the applicant. More particularly, her application was based on her marriage to the applicant in October 2009, some 17 months before the applicant lodged his protection visa application. Ms F’s partner visa application was subsequently refused.

4. By letter dated 26 August 2014, pursuant to s.107 of the Migration Act 1958 (Cth), a delegate of the Minister gave the applicant a notice of intention to cancel his protection visa. The delegate wrote that she considered that there has been non-compliance with sub-s.101(b) of the Act, which relevantly provides that “a non-citizen must fill in his or her application form in such a way that … no incorrect answers are given”, and drew the applicant’s attention to his responses to questions 14, 41, 42, 43, 44, 46, 61, and 65 in his protection visa application.

5. On 16 September 2014 the applicant’s agent responded to the notice. The applicant accepted that he had been married, although he was unaware of that fact, and agreed that his answer in the application that he had “never married or been in a de facto relationship” was essentially incorrect. However, the agent submitted that when the applicant undertook a “Kateb El Kateb”, he did so under the condition that it was not to be registered and formalised. He further asserted that his claim to be homosexual was true and that the incorrect answers were not intentional.

6. For the purposes of considering whether to cancel the applicant’s visa, an assessment was made of any protection obligations owed to the applicant. The officer who conducted the assessment concluded, amongst other things, that the applicant was married to Ms F, had expressed a desire to live a heterosexual life with her and would not be perceived to be homosexual in Egypt.

7. On 28 January 2015 a delegate of the Minister made a decision to cancel the applicant’s visa and the applicant applied to the Refugee Review Tribunal[1] for review of that decision. On 27 April 2015 the Tribunal made a decision to affirm the delegate’s decision.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

8. The applicant now seeks judicial review of that decision. In order to succeed, he must establish that the Tribunal’s decision was affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2 at [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); Wei v Minister for Immigration & Border Protection (2015) 90 ALJR 213; [2015] HCA 51 at [3] (Gageler and Keane J).

Conduct of matter before the Court

1. Before turning to the grounds raised by the applicant, it is necessary, once again, to say something about the conduct of this matter by the applicant’s counsel. The following is taken largely from the Minister’s submissions.

2. The application was prepared by counsel apparently on a direct access basis. Pursuant to orders made by consent by a Registrar of the Court on 19 June 2015:

   a)the applicant was granted leave to file and serve an amended application by 24 August 2015,

   b)the applicant was required to file and serve any additional affidavits by 24 August 2015; and

   c)the matter was listed for callover on 11 November 2015.

3. No amended application or further affidavit was filed by 24 August 2015. The applicant filed written submissions on 10 November 2015 in anticipation of a callover conducted the following day.

4. On 11 November 2015, counsel appeared for the applicant at the callover and orders were made:

   a)listing the matter for hearing on 25 February 2016;

   b)granting leave to the applicant to file and serve any application in a case seeking leave to rely on an amended application and any affidavit in support within 7 days;

   c)making any application in a case returnable on 25 February 2016 at 11.30am.

5. No application in a case was filed by the applicant within 7 days of the callover.

6. On 11 February 2016, the applicant filed his written submissions, which addressed his application as filed on 1 June 2015, although the grounds of the application were not dealt with in strict order.

7. On 14 February 2016, the applicant (through his counsel) circulated by email to the Court and the first respondent’s solicitor a ‘draft application in a case’ and a ‘draft affidavit with the amended application’. The email from the applicant’s Counsel stated that the ‘amended application adds ground 3(b) …’. The proposed amended application is marked to indicate that paragraph 3(b), ground 4(e) and ground 3(a) (sic: 5(a)) are new.

8. There was no indication that counsel for the applicant had either sought or obtained the consent of the solicitors for the Minister to correspond with the Court.

9. The Minister indicated that his submissions were drafted prior to 14 February 2016. At the time they were finalised, no formal application in a case had been filed and served and no explanation at all given as to the proposed late amendments.

10. At 9:05am on 25 February 2016, the day of the hearing, counsel for the applicant sent a further email to the Court and to the solicitor for the Minister. It stated:

    The applicant is impoverished and cannot afford disbursements.

    Please note that the application in case with the amended application has been filed, but has not been returned as yet.

    Please find attached an electronic copy of the application in case and the authorities.

    …

    I also attached [sic] an aide memoire with regard to the authorities dealing with homosexuality.

11. The claim that the applicant is impoverished is remarkable. First, no evidence was proffered to support it; and secondly, it is entirely inconsistent with the evidence given by the applicant to the Tribunal. The applicant claimed that he had “built a stable and financially secure life in Australia” (see [62] of the Tribunal’s reasons). He also gave the Tribunal statements of a bank account held by a company apparently controlled by him showing a total of $1,054,636 credits in the three month period from 31 December 2014. His rental records show that he paid $780 per fortnight in rent without fail over a three year period. The applicant’s counsel had all of this material available to him. Either he did not read it (which is difficult to believe) or chose to ignore it when making the representation to the Court that his client was “impoverished and could not afford disbursements”.

12. At 9:17am on the same day, counsel for the applicant sent yet a further email to the Court and to the solicitor for the Minister. This email attached electronic sealed copies of an application in a case and an affidavit with a proposed amended application.

13. Yet again, neither of those emails indicated whether counsel for the applicant had sought or obtained the consent of the solicitor for the Minister to this correspondence. I infer that at no time had he done so.

14. The affidavit sworn by the applicant which was attached to the last email included the following:

    3.The reason why my application is late is because I went to Queensland and did not notify my lawyer.

15. That does not constitute any excuse for the failure to comply with the Court’s directions. There is no excuse for the lateness of the application and no excuse for the conduct of the matter by counsel for the applicant. It is not the first time he has conducted himself in this manner before me (ABX15 v Minister for Immigration & Border Protection [2015] FCCA 3003) and it appears that the conduct is not restricted to proceedings in this Court: ALA15 v Minister for Immigration & Border Protection [2016] FCAFC 30.

16. In light of the unexplained delay in bringing the application to amend the application in a case will be dismissed with costs. Parties cannot expect to ignore Court orders and to prejudice their opponents’ preparation of a case by obtaining leave to amend out of time with little or no notice. I would add that I have, in addition, considered the amendments marked on the proposed amended application and consider that to allow the applicant to argue them would be futile. They are borrowed without explanation from another case (in which counsel for the applicant appeared) involving a decision by the Tribunal to affirm a decision to refuse to grant a protection visa. In that case, like this one, the applicant had never claimed that he faced harm in Egypt as a person who had a failed claim of homosexuality.

17. I turn, then, to the grounds in the application as filed. In order to understand those grounds, it is necessary first to have regard to the relevant statutory scheme and then the reasons for the Tribunal’s decision.

Relevant statutory provisions

1. Section 107 of the Act relevantly provides that, if the Minister considers that a visa holder who has been immigration cleared did not comply with ss.101, 102, 103, 104, or 105, he or she may give the holder a notice giving particulars of the possible non-compliance.

2. Section 108 of the Act provides that the Minister must consider any response to a notice under s.107 and decide whether there was non-compliance by the visa holder in the way described in the notice. If the Minister does decide that there was such non-compliance and has considered any response to the notice and anything else prescribed, he or she may cancel the person’s visa: s.109(1).

3. Regulation 2.41 of the Migration Regulations 1994 (Cth) prescribes the following matters for the purposes of s.109(1):

   (a)the correct information;

   (b)the content of the genuine document (if any);

   (c)whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;

   (d)the circumstances in which the non-compliance occurred;

   (e)the present circumstances of the visa holder;

   (f)the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;

   (g)any other instances of non-compliance by the visa holder known to the Minister;     

   (h)the time that has elapsed since the non-compliance;

   (j) any breaches of the law since the non-compliance and the seriousness of those breaches; and

   (k) any contribution made by the holder to the community.

The Tribunal’s decision

1. After some preliminary matters, the Tribunal addressed the question of whether the applicant had provided correct answers in his application for a protection visa. In this respect, it first set out a detailed summary of the evidence and submissions relied on by the applicant before dealing with three critical matters: the applicant’s relationship with a man in Egypt; his relationship with Ms F and his return to Egypt. The Tribunal found that the applicant had given inconsistent evidence about the first two matters and did not accept his explanation in respect of the third. These matters raised serious doubts for the Tribunal about his protection claims, particularly the fact that he feared returning to Egypt on the basis of his homosexuality.

2. The Tribunal next considered whether the witnesses who gave evidence for the applicant corroborated his claims. The Tribunal found that these witnesses only had superficial relationships with the applicant and concluded that their evidence did not overcome the Tribunal’s concerns about his credibility.

3. The Tribunal also considered the psychological reports relied on by the applicant concerning the applicant’s “conflicted position around his sexuality” and his mental health. While the Tribunal gave the reports  some weight, found that they did not overcome its conclusion that, on the evidence as a whole, the applicant’s credibility was “beyond redemption.”

4. The Tribunal then set out its conclusions as to whether there was non-compliance as described in the s.107 notice. Given the centrality of this reasoning, it is convenient to set out the whole of the critical paragraph:

   [41]The Tribunal appreciates that sexuality is complex and there may be a spectrum in one’s sexual behaviour and preferences. There may also be times of personal uncertainties and confusion about one’s sexual orientation. The Tribunal accepts as plausible that the applicant has engaged in explicit sexual activities with other males in Australia. However, in consideration of the evidence as a whole, the Tribunal does not accept that such activities mean that the applicant is homosexual. Similarly, the Tribunal accepts as plausible that the applicant’s employment was terminated from a convenience store because he was being visited by males, but that does not mean he is homosexual. The applicant’s claim of homosexuality formed the most fundamental ground for the grant of a protection visa. The applicant’s responses to questions 14, 41, 42, 43, 44, 46, 61 and 65 of form 866C essentially indicate that he has never been married or been in a de facto relationship, that he is seeking protection so that he does not have to return to Egypt, that he is homosexual in a long-term relationship, that he fears he would be killed and be forced to marry, that he would be mistreated by his family and others, and that he is not in contact with relatives in his home country. In consideration of the evidence as a whole, and given the Tribunal’s concerns outlined above regarding the applicant’s credibility, the Tribunal does not accept that the applicant was or is homosexual. In consideration of the evidence as a whole, the Tribunal therefore finds that the applicant has provided incorrect information in relation to his marriage and his sexuality and therefore, the Tribunal finds that there was non—compliance with s.101 by the applicant in the way described in the s.107 notice.

5. The Tribunal then turned to consider whether the visa should be cancelled. It did this by reference to the matters prescribed the purposes of s 109. It made the following relevant findings:

   a)at the time of lodgement of the application for a protection visa, the applicant was married in 2009 to Ms F, he was not in a homosexual relationship with a man, he was not homosexual, and he did not fear harm in returning to Egypt from any person or organisation;

   b)the applicant provided incorrect information to conceal his marital status and sexual orientation in order to obtain protection in Australia, and the decision to grant him the protection visa was wholly based on the incorrect information provided by him;

   c)the applicant deliberately and repeatedly provided incorrect and false information;

   d)the applicant may have been involved in sexual activities with men, however, the applicant is not homosexual and he engaged in sexual activities with other males in Australia for the purpose of strengthening his claims for protection; that is, he did that not because he was a genuine homosexual;

   e)the applicant was working despite being aware that he was in breach of the no work condition attached to his visa; and

   f)the applicant has been a good employee, and has a security company with 14 employees and 46 subcontractors, but the applicant’s contribution to the community does not outweigh his intentional breach of immigration laws.

6. The Tribunal went on to note that those factors were not an exhaustive list of matters relevant to the exercise of its discretion to cancel and then stated:

   [65]In consideration of the evidence as a whole, for the reasons outlined earlier, and on the basis of the available information, the Tribunal is satisfied that as the applicant is not homosexual and that he has engaged in sexual activities with other males in bad faith – for the purpose of strengthening his protection claims, the applicant would not engage in sexual activities with other males in Egypt on his return. In consideration of the evidence as a whole, the Tribunal is satisfied that the applicant would not engage in sexual activities with other males in Egypt not out of fear of harm but because he is not a homosexual. For the same reasons, the Tribunal is satisfied that there is not a real chance that the applicant would be subject to serious harm on his return to Egypt amounting to persecution, on the basis of any Convention ground. The Tribunal therefore finds that the applicant does not have a well-founded fear of persecution.

7. On the basis of that reasoning the Tribunal decided that the visa should be cancelled and so affirmed the delegate’s decision to cancel the applicant’s protection visa.

Consideration

1. There are four grounds in the application. In spite of that, as will be seen, there was ultimately only one real argument: once the Tribunal accepted that the applicant had had sex with men, it was not open for it to find that the applicant was not a homosexual. There are many difficulties with that argument. I will deal with those in due course.

First ground: Procedural fairness or failure to ask correct question

1. There are, on the face of the application, two bases for this ground: first, an assertion that the Tribunal failed to make a finding on a substantial, clearly articulated claim relying on established facts; and secondly, that the Tribunal misinterpreted, misunderstood, or misapplied the applicable law or “otherwise failed to ask the correct question.”

2. Although there are 19 paragraphs of particulars to this ground, none of them assists in identifying or clarifying the asserted errors. Most of those paragraphs simply repeat facts relevant to the Tribunal’s decision. There are three paragraphs that assert error:

   3(g)the Tribunal erred in not considering the circumstances in which the non-compliance occurred;

   3(m)the Tribunal erred by not having regard to the present circumstances of the applicant; and

   3(q)the Tribunal erred when it found that the applicant is not homosexual.

1. The first two are completely unarguable on any reading of the Tribunal’s reasons for decision and, subject to what I mentioned at [35] above, the third is an attack on the merits of the Tribunal’s decision. This ground does not disclose any jurisdictional error and is rejected.

Second ground: No evidence

1. This ground is expressed as follows:

   There was no evidence or other material to justify the making of the series of adverse credibility findings by the second respondent, which rejected out of hand, the applicant’s claims on the basis of credibility or the second respondent relied on facts, which did not exist.

2. However, the particulars make it plain that the real gist of the ground is, as explained above, that the Tribunal could not find that the applicant was not a homosexual because it accepted that he had had sex with men.

3. There are, as I have said, many difficulties with the ground. It suffices to deal with the most obvious one. The difficulty is exposed by stating the underlying premise: all men who have sex with other men are homosexuals. It goes without saying that the applicant did not rely on any evidence to establish the truth of that premise. Rather, his counsel stated the proposition as though it were axiomatic. It is not. In truth, sexuality and sexual activity are two different things. Western literature alone reveals that people engage in sex with other people beings or objects for any number of reasons: money, power, obligation, expectation, procreation, advantage, attraction, experimentation, compulsion, enjoyment and boredom to name a few possibilities (not all exclusive of each other). A person’s sexuality is neither confined to nor defined by the particular acts of sex in which a person engages. Thus, on the applicant’s own case, he had sex with a woman (his wife) even though he was homosexual. That did not mean that he was heterosexual or bi-sexual. He may have had no particular sexual identity at all, or he may have been pansexual.

4. Once this is understood, it is clear that the applicant’s argument is based on a false premise and must fail. The second ground is rejected.

Third ground: Relevant considerations

1. This ground is that the Tribunal failed to consider the psychological reports and the evidence of three witnesses. It must fail because the Tribunal clearly did so and expressly set out its consideration of each of these matters.

Fourth ground: Unreasonableness

1. This ground is another emanation of the same complaint made in ground 2. It is rejected for the same reason.

Conclusion

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

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date: 29 April 2016