Azn17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 245

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AZN17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 245  

File number(s):

SYG 695 of 2017

Judgment of:

JUDGE CAMERON

Date of judgment:

29 February 2024

Catchwords:

MIGRATION – persecution – review of Administrative Appeals Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – allegation that the Tribunal’s decision affected by jurisdictional error – no matter of principle.

Legislation:

Migration Act 1958 (Cth) ss.36, 474

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Division:

General

Number of paragraphs:

18

Date of hearing:

29 February 2024

Counsel for the Applicant:

The applicant appeared in person

Solicitor for the First Respondent:

Mills Oakley

Counsel for the Second Respondent:

Submitting appearance save as to costs

ORDERS

SYG 695 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AZN17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE CAMERON
DATE OF ORDER:	29 FEBRUARY 2024

THE COURT ORDERS THAT:

1.Leave be granted for the applicant to file in Court today a document entitled "Applicant's Written Submissions".

2.The application be dismissed.

3.The applicant pay the first respondent's costs fixed in the amount of $5,400.

4.The name of the first respondent in the Court file be changed to "Minister for Immigration, Citizenship and Multicultural Affairs".

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 CAMERON

INTRODUCTION

1. The applicant is a citizen of Mongolia who arrived in Australia on a student visa on 5 February 2013. On 18 December 2013 he lodged an application for a protection visa with what is now the Department of Home Affairs (Department), alleging that he feared persecution in Mongolia because of his homosexuality.  On 17 December 2014 the applicant’s application was refused by a delegate of the first respondent (Minister).  The applicant then applied to the second respondent (Tribunal), for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In this judicial review proceeding the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (Cth) (Act); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

   BACKGROUND FACTS

4. The applicant’s claims for protection were made in his application, in an interview conducted with the delegate on 10 December 2014 and at a Tribunal hearing on 7 December 2016.

5. In its decision, the Tribunal summarised in the following terms the matters alleged by applicant in his visa application and his written statement:

   a.He left Mongolia to escape persecution, discrimination and physical and mental harm because of his homosexuality.

   b.He identified as a homosexual since high school. This caused problems for him at school and with his family, who asked him to hide his sexuality so as not to damage their social standing.  While at university he met a gay man named [A], who took him to an underground bar called ‘Face’, where ‘homosexual activities’ took place.  There he met [B] with whom he had sex for one night, his first homosexual encounter.

   c.At the behest of his parents, he became involved with [C], who came to live with him and gave birth to their first daughter in November 2010. However, he resisted her pressure to marry and she was suspicious of him. His revelation to [C] that he was gay in February 2012 resulted in their breakup. As a result, his parents disowned him, banished him from their home and fired him from their burger business.

   d.He then started receiving threatening phone calls from [C] and her family, who were connected to the mafia. A criminal gang led by pop singer [D] threatened him, verbally abused him and spread the news that he was a homosexual. Although he complained to police, they took no action. In June 2012, the gang beat him up and took over his canteen and mini-supermarket businesses for [C]. However, the police took no action.

   e.His mother refused to help him saying he had ‘died for them’. He tried to find a job but to no avail. Unable to find employment, he started a marketing business but the gang ‘captured that’. He concluded that he could not live peacefully in Mongolia as his life was at risk. With the help of an agent he obtained a Student visa to study English in Australia, where he arrived on 5 February 2013. His visa was valid till December 2013 but not renewable as it had no further stay condition.

   f.He fears that if he returns to Mongolia, his life will be risk from gangsters involved in harming homosexuals, who might even kill him. Society will not let him live a normal life and the police will not protect him, but promote atrocities against him.

6. At the interview with the delegate on 10 December 2014 the applicant made further claims in support of his application which were summarised in the Minister’s written submissions in the following terms:

   a.He found out about the protection visa from a classmate during a Friday night out at the pub.

   b.He has several businesses in Mongolia and because he was a homosexual had been targeted by a mafia group who approached him two or three times and hit him.

   c.The applicant had not been in a homosexual relationship or participated in the homosexual community in Australia due to his lack of language skills preventing him from socialising.

   d.“Legally” the applicant had two daughters but he did not believe the second daughter was his and that when the baby was brough into the house they “rarely had sexual relations”.

   e.When it was put to the applicant, that in student visa application lodged in December 2012, he declared his was in a relationship, he claimed that the relationship was because of “pressuring” and that it had ended on 17 June 2012 when his partner came with the mafia group and he no longer had family relations with her,

   f.When it was pointed out to the applicant that the departmental records showed his partner living in Mascot and that he had also originally wrote an address in Mascot which he later whited out in the application form, the applicant responded that he had lived in Mascot for about 6 months but did not have contact with his ex-partner and that their children were still in Mongolia.

7. I adopt that summary.

   The Tribunal’s decision and reasons

8. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967, or s.36(2)(aa) of the Act.

9. The Tribunal’s decision was based on the following findings and reasons:

   (a)at the Tribunal hearing, the applicant volunteered that he had lied during his departmental interview by denying knowledge of his partner being in Australia and of her having lived at his address, and claiming that he did so on the advice of his previous migration agent. The Tribunal found that, regardless of any advice the applicant might have been given, his admission raised doubts about the reliability of his evidence to the Tribunal;

   (b)the Tribunal found it “telling” that the applicant had applied for a protection visa just four days before the expiry of his student visa which, by his evidence, was not renewable;

   (c)the Tribunal found that the applicant was vague as to what he feared might happen to him if he returned to Mongolia and that even if it were to accept that he would be subjected to the treatment in Mongolia he described, it was not satisfied that that would amount to serious or significant harm;

   (d)the Tribunal found that the applicant’s evidence relating to key aspects of his claims concerning why he left Mongolia was “vague, inconsistent and implausible” and in that respect noted that the applicant’s oral evidence at hearing was inconsistent with his written claims concerning:

   (i)the circumstances surrounding his closure of his minimarket business; and

   (ii)the extent of his continuing contact with his parents;

   (e)the Tribunal found that the applicant's evidence regarding his homosexuality was also “vague, inconsistent and implausible”.  In that regard the Tribunal noted that:

   (i)when asked what being gay meant to him, the applicant said he liked “good looking guys with muscles”, however later claimed that he did not have sex with such people as Mongolian men were “not like that”;

   (ii)in his written statement and at his departmental interview, the applicant disclosed one homosexual relationship, which had been a “one-night stand” in 2007, but before the Tribunal he claimed variously that he had had “two or three relationships, maybe more”, had met “many men” and described a number of sexual encounters;

   (iii)the applicant’s evidence before the Tribunal was that he had not had gay relationships or sex with men in Australia because he was trying to rebuild his family with his partner.  When asked by the Tribunal why he did not have any gay relationships while he was free to pursue them in the time between his arrival in February 2013 and his partner's arrival seven months later, the applicant claimed that as his English was very poor and he did not know places in Sydney at that time, he only went to school and home;

   (f)the Tribunal found the applicant’s explanation concerning his sexual activities in Sydney implausible, as by his own evidence, since arriving in Sydney he had built up a successful business and acquired a sufficient level of English. The Tribunal was not satisfied that the applicant would not have found a way to have the “sort of random homosexual sex” which he had described to be his practice in Mongolia, in the much more overt gay environment in Sydney, if he had the interest or motivation to do so;

   (g)the Tribunal did not accept that the applicant left Mongolia to escape persecution, discrimination and physical and mental harm because of his homosexuality. It did not accept that if the applicant returned to Mongolia he would be harmed or killed by gangs involved in harming homosexuals or be mistreated by society and police, as claimed;

   (h)the Tribunal found that the applicant had embellished his evidence in an attempt to strengthen his claims. It found that he was not a truthful or credible witness and did not accept that any of his evidence could be relied upon.  The Tribunal was not satisfied that the applicant's claims for protection were genuine and found that they were fabricated for the purpose of obtaining a protection visa; and

   (i)the Tribunal therefore did not accept that a criminal gang had threatened him, verbally abused him, spread rumours that he was a homosexual at the behest of his partner's parents, beat him or take over his businesses for this reason.  The Tribunal also did not accept that his parents had disowned him, banished him from their home or fired him from their business for being homosexual.

   THE PROCEEDING IN THIS COURT

10. In the application commencing this proceeding the applicant alleged:

    1.The Tribunal misunderstood my claim and my fear of harm and persecution as a homosexual.

    2. The Tribunal finding is affected by error of law as the decision is made contrary to the evidence before the Tribunal.

    Ground 1

11. The first ground of the application is unparticularised and so lacks meaningful substance.  This is significant because it is not apparent that the applicant’s claims, which were not unduly complicated, were not comprehended by the Tribunal or were otherwise misunderstood.  In substance this allegation is a challenge to the Tribunal’s fact finding, unsupported by any identified legal error. 

12. The Tribunal’s reasons were clear and detailed and its findings and conclusion open on the evidence.  That being so, no basis to set the Tribunal’s decision aside has been identified by this allegation.

    Ground 2

13. The second ground of the application is also unparticularised and so should fail on that basis alone.  It is in substance an invitation to merits review because it invites the Court to substitute its view of the facts for that of the Tribunal.  It is not sufficient for the purposes of judicial review, absent any identified legal error, to allege that the facts before the Tribunal supported a conclusion different from the one the Tribunal reached.

14. One legal error conceptually related to the allegation made in the second ground of the application and which might in other circumstances be alleged is that the Tribunal’s conclusion was based on findings which were entirely unsupported by the evidence, in the sense that there was no evidence on which the findings could be based. However, that is not this allegation and neither is it the case in fact.

15. The second ground of the application does not demonstrate that the Tribunal’s decision is affected by jurisdictional error.

    Further matters

16. At the hearing of the application today the applicant did not speak in addresses but filed in court some written submissions. I have had regard to the arguments advanced in that document but they suffer from the same deficiencies apparent in the initiating application and to which I have already referred. They do not identify the sort of legal or procedural error necessary to make out jurisdictional error on the Tribunal’s part.

    CONCLUSION

17. Jurisdictional error on the Tribunal’s part has not been demonstrated.

18. Consequently, the application will be dismissed.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.

Associate:

Dated:       15 March 2024