BGZ18 v Minister for Immigration

[2020] FCCA 1035

FEDERAL CIRCUIT COURT OF AUSTRALIA

BGZ18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1035

Catchwords:
MIGRATION – Application for Protection Visa filed three years after expiry of Student Visa – no reasonable explanation for such delay – the homosexuality of the applicant did not constitute a factor giving rise to protection obligations – doubts as to applicant’s credibility – availability of safe haven residence in a third country – no jurisdictional error – application for extension of time refused.  

Legislation:

Migration Act 1958 (Cth), ss.5J(4), 5J(5), 36(2)(a), 36(2)(aa), 36(2)(b).

36(2)(c), 36(2B), 36(3), 36(4), 36(5), 36(5A), 357A, 499.

Cases cited:

Selvadurai v MIEA & Anor [1994] FCA 1105.

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous

Affairs (2003) 236 FCR 593.

CED15 v Minister for Immigration and Border Protection [2018] FCA 451.

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205

CLR 507.

Re Refugee Review Tribunal & Anor; Ex Parte H & Anor (2001) 75 ALJR 982.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86.

Applicant: BGZ18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 661 of 2018

Judgment of: Judge Egan

Hearing date: 16 April 2020

Date of Last Submission: 16 April 2020

Delivered at: Brisbane

Delivered on: 6 May 2020

REPRESENTATION

Applicant: Self-represented

Solicitors for the First Respondent: Mr Kyranis, Solicitor of Sparke Helmore

Second Respondent: Submitting appearance save as to costs

ORDERS

1. The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2. The application for extension of time filed on 16 March 2018 be dismissed.

3. The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $3,737.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

MLG 661 of 2018

BGZ18

Applicant

And

MINISTER FOR IMMIGATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of India who arrived in Australia on 16 July 2009 on a student visa. On 22 December 2015 he applied for a protection visa (Class XA).

2. On 7 February 2017 a delegate of the Minister refused to grant the applicant the visa.

3. On 23 February 2017, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the delegate’s decision.

4. On 25 September 2017, the applicant provided written submissions and supporting material to the Tribunal. On 26 September 2017, the applicant appeared before the Tribunal with a representative and a witness. On 20 October 2017, the applicant provided further submissions and further supporting material to the Tribunal.

5. On 1 November 2017, the Tribunal affirmed the decision of the delegate.

6. On 16 March 2018, the applicant filed an originating application for review of the decision of the Tribunal. The grounds of review were as follows:

   “Grounds of application

   1. That the tribunal failed to act according to substantial justice and merits of the case, in breach of s353(B) if the Migration Act 1958 and/or failed to act in a way that is just and fair, in breach of s357A(3) of the Act.

   2. The tribunal misunderstood or misapplied the applicable law or has otherwise failed to rely exclusively on the relevant facts and information.

   3. The tribunals reasoning is unfairly biased and based on unsound reasoning. For example, the Tribunal Member found that my depression and anxiety was not from my sexual orientation but my studies.

   4. The tribunal considered irrelevant considerations and or placed too much weight on certain information for example the Indo-Nepal Treaty of Peace and Friendship of 1950 which does not necessarily codify a legally recognised right to enter Nepal. Further my position as not only an Indian but coming from a strict Christian family, but also a member of the LGBT community and the dimensions of my identity and thus the reality of the persecution I may face, on account of that has not been adequately considered.

   5. The tribunal failed to understand my concerns that even if I relocate to Nepal for indefinite period, I will be subject to prejudice and persecution as LGBT community live in fear and insecure environment in Nepal.”

7. The applicant filed his originating application for review one-hundred and one (101) days after the date on which the application for review was required to be filed. A determination of the application for extension of time made by the applicant was deferred pending the Court’s consideration of the substantive claims made by him.

8. The applicant’s relevant background was recorded by the Tribunal at [14] – [29] of its reasons as follows:

   “Background:

   [14] The applicant is a 31 year old man from the town of [Town A], province of Kerala, India.

   [15] The applicant is of the Christian faith, is of Indo-Portugese ethnicity and speaks Hindi, Malay and English.

   [16] The applicant is single.

   [17] The applicant’s parents and sister live in [Town A], in India.

   [18] The applicant completed his Secondary School and Senior School Certificates in [Town A], in May 2002 and May 2004 respectively.

   [19] The applicant completed a Bachelor of Business Administration at Mahatma Gandhi University from May 2004 to April 2008 inclusive.

   [20] He completed a Master Diploma in Animation at the Institution of Digital Entertainment and Animation Studies in April 2009.

   [21] The applicant’s current employment status is unemployed. He has previously worked in various food retail outlets since being in Australia.

   [22] The applicant was granted a subclass 573 Student visa on 23 June 2009 which was valid until 15 March 2011.

   [23] The applicant arrived in Australia on 17 July 2009 under passport number [Number omitted], issued on 29 August 2008 and expiring on 29 August 2018.

   [24] The applicant applied for a subclass 573 Further Stay Student visa (onshore) on 11 March 2011 which was granted on 28 April 2011 which was valid until 30 August 2012.

   [25] The applicant applied for a subclass 572 Student visa on 30 August 2012.

   [26] The applicant’s Student Visa application was refused on 20 November 2012.

   [27] The applicant was unlawful from 18 December 2012.

   [28] The applicant applied for a protection visa on 18 December 2015.

   [29] The applicant attended an interview with the delegate. His representative provided a submission in support of his claims on the day prior to the hearing of the Tribunal and a post hearing submission on 19 October 2017.”

   [names omitted and pseudonyms added]

9. The claims for protection were as set out in [30] – [43] inclusive of the reasons of the Tribunal as follows:

   “Claims:

   [30] The applicant claims that he is a homosexual.

   [31] The applicant claims that if he returns to India he will have to hide his sexual orientation.

   [32] The applicant claims that if he returns to India he will be seriously physically and psychologically harmed.

   [33] The applicant claims that he will not be able to get a job that reflects his level of training because of his sexuality.

   [34] The applicant claims that he discovered he was gay when he was 14 years of age and was once beaten at school because of a suspicion he was gay but could not tell his family.

   [35] The applicant claims that he once attended a gay event in India.

   [36] The applicant claims that he has been in a gay relationship for some months.

   [37] The applicant claims he opened up about his sexuality after his student visa application was refused, and he became part of the gay community in Brisbane and made lots of friends.

   [38] The applicant claims that if his family found out he was homosexual, he would be taken to a mental health facility for treatment or to a catholic retreat for an exorcism. He claims his parents are strict Catholics and do not believe that homosexuality is real.

   [39] The applicant claims that if his extended family found out he was gay, he would be disowned.

   [40] The applicant claims that being gay is a crime in India and not socially accepted.

   [41] The applicant claims that if he returned to India and hid his sexual orientation he would become depressed and commit suicide.

   [42] The applicant claims that the police will not protect gay men.

   [43] The applicant claims that he cannot relocate without a family support network.”

10. At [3] – [9] of its reasons, the Tribunal comprehensively set out the relevant criteria for the grant of a protection visa, and it specifically referred to the provisions of s. 36(2)(a), (aa), (b) and (c) of the Migration Act 1958 (Cth) (‘the Act’) in that regard. The Court notes that the First Respondent opposed the application for extension of time on the ground that the substantive application was without merit, and was not sufficiently arguable so as to warrant the grant of any extension.

11. At [10] of its reasons, the Tribunal considered the relevant principles relating to relocation by an applicant within a receiving country under s. 36(2B) of the Act. At [11] of its reasons, the Tribunal also considered the relevant principles relating to state protection under that section.

12. At [12] of its reasons, the Tribunal recorded that it had had regard to the policy guidelines PAM 3 in accordance with Ministerial Direction No. 56 made under s. 499 of the Act.

Matters Considered by Tribunal

1. The Tribunal tried unsuccessfully, on a number of occasions during the course of its hearing, to telephone a person said to be the applicant’s cousin.

2. The Tribunal accepted that the applicant was gay. It noted that the applicant had said that his cousin knew he was gay and had accepted that that was the case.

3. At [50] – [55] it was recorded that the applicant wasn’t sure whether his family knew he was gay, though he said that they might be in denial. By reference to a person who had attended the same Church as the applicant’s parents, and who had announced that he was gay, the applicant said that his parents found it unacceptable and were bitter about it. The applicant said that he was fearful that if he returned to India and it was found out that he was gay that he might be taken to a mental institution. He also feared being killed by anti-gay activists. The Tribunal recorded that the applicant had not previously made such a claim, and it was recorded that when the applicant was asked by the Tribunal about that, the applicant became very evasive. The applicant then admitted that he had told his older sister that he was gay, saying that it was she who had threatened to cause him to be taken to a mental institution when he was aged 17. It was noted that the applicant had said that his parents had funded him to travel to Australia for education purposes when he was 21 years of age. When asked how he survived, the applicant said that he didn’t work and he was supported by friends.

4. At [57] the Tribunal noted that the applicant had been an unlawful entrant in Australia for a period of three (3) years between the date of expiry of his student visa, and the date on which he applied for a protection visa. The applicant said that he knew that he was breaking the law at that time.

5. At [66] – [68] of its reasons, it was recorded that the applicant had claimed that he had delayed applying for a protection visa because his friends didn’t know anything about protection visas, because he could not afford a lawyer, and because he had been depressed. It was noted by the Tribunal that it had asked that question of the applicant a number of times before he had provided the answer that he did. The applicant also said that though he had approached some lawyers for assistance in about September 2015, he was unable to afford a lawyer or complete forms on his own.

6. At [72] – [79] it was recorded that the applicant had said that he would have to hide his sexuality if he returned to India, and that if he did return, he would be seriously physically injured and psychologically harmed. The applicant said that he would be arrested, bullied and put in jail and would be assaulted. When the Tribunal put to the applicant that that had not happened to him in the past, he said that that was what he had been told happened when someone was in jail. The applicant also said that he would not be able to get a job that reflected his level of training because of his sexuality. The applicant gave an example of how, when he had attended a gay event in India at a bar which had been attended by a lot of people who were gay, the event broke up because there was a fear that police might intervene.

7. At [81], the Tribunal pointed to inconsistencies in the applicant’s evidence as to when he came out – in paragraph 5 of the applicant’s statement the applicant said that he came out after his student visa application had been refused in November 2012, whereas at the hearing the applicant said that he had come out in 2010.

8. At [85] – [86], the Tribunal asked the applicant whether he believed that his parents could send a 31 year old grown man off to an institution, and whether he believed that they could man-handle him for that purpose, and have him kept there. The applicant replied that his being gay would bring shame and dishonour to his family.

9. At [87] the Tribunal asked the applicant if he still feared being sent to the Catholic retreat, to which the applicant replied that he did not know where it was, and that though he would not suffer any physical harm if sent there, he said it would do him mental harm.

10. The Tribunal referred the applicant to a DFAT country report for India, provisions of the Indian Penal Code, and newspaper articles at [92] – [95] of its reasons. The Tribunal at [96] noted that the articles all referred to homosexuals who had been jailed, not because they were gay, but because they had been charged with sexual assault and paedophilia. It was noted by the Tribunal that such articles were consistent with country information to which it had accessed.

11. At [101] it was recorded that the applicant had said that the reason he had obtained the student visas was not to study, but rather because of his homosexuality. 

12. At [102] – [108] of its reasons, the Tribunal recorded matters relevant to the issue of relocation within India. Specific reference was made to the applicant moving to Mumbai which was said to be a very cosmopolitan city which was becoming more accepting of homosexuality, and of the LGBTI community. The applicant responded that even in Mumbai it would take a long time to accept that it was okay to be gay.

13. At [109] – [148] the Tribunal discussed at length, and in great detail, the prospect of the applicant living in Nepal. The Court noted that Nepal is an independent nation and was not a part of India. In that context, the Tribunal discussed with the applicant the provisions of s. 36(3), (4), (5) and (5A) of the Act, which sections provided as follows:

    “Section 36      Protection visas – criteria provided for by this Act

    …

    (3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

    (4) However, subsection (3) does not apply in relation to a country in respect of which:

    (a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

    (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

    (5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:

    (a) the country will return the non-citizen to another country; and

    (b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

    (5A) Also, subsection (3) does not apply in relation to a country if:

    (a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and

    (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.”

14. At [116] of its reasons, the Tribunal noted that in determining whether the above sections applied, relevant considerations included whether the applicant had a liberty, permission or privilege to lawfully enter and reside in a third country, either temporarily or permanently; whether the applicant had taken all possible steps to avail himself or herself of that right; and whether s. 36(3) did not apply because of the operation of either of s. 36(4), (5) or (5A) of the Act.

15. At [120], after having noted at [118] that there existed a bilateral treaty between India and Nepal which allowed free movement and commerce between those nations, the Tribunal noted that there were no practical barriers for Indian citizens being able to travel to, or enter, Nepal.

16. At [124] – [136] the Tribunal considered the question of whether the applicant would face a real chance of persecution, or real risk of significant harm, if he was to live in Nepal. At [127] the Tribunal noted that the new constitution for Nepal granted the right of equality to sexual minorities. The Tribunal noted that DFAT country information suggested that there were no prosecutions taking place in Nepal based upon a person’s homosexuality, and that citizens could then obtain gender identity documents. It was also noted that gay pride parades had taken place in Kathmandu, and that in April 2014 the Ministry of Women Children and Social Welfare had assigned a focal position for sexual and gender minorities. At [129] it was noted that LGBTI people had lived openly with their families, communities and employers without discrimination. At [130] – [136] the Tribunal recorded US Department of State country information relative to LGBTI people in Nepal which was of like effect to that contained in the DFAT information. It was said at [136] that tolerance of diverse sexual orientations or gender identities can be perceived to be high. It was thought that such tolerance could date back centuries because visible presence of individuals of diverse genders had been recorded in Nepal in ancient religious texts.

17. At [138] the Tribunal recorded that there was no evidence before the Tribunal that Indian citizens residing in Nepal had been returned without good reason.

18. At [139] – [148] of its reasons, the Tribunal referred to the content of a post hearing submission prepared by the applicant’s representative – it had been apparent to the Tribunal during the course of the hearing that the representative had not been in a position to discuss the application of subsections 36(3), (4), (5) and (5A) of the Act. In that submission, dated 19 October 2017, a letter of support was received from a person said to be the applicant’s cousin. The representative asserted that the applicant has been denied procedural fairness, and that the Tribunal was biased against the applicant because the Tribunal had questioned the applicant about the delay (of three (3) years) in making his protection claim, stating that the applicant was entitled to make a claim at any time. At [148] the Tribunal noted the contents of a submission provided to the Tribunal by the representative that in part suggested that there was widespread extreme poverty in Nepal in the context of it being suggested that human rights in Nepal might be difficult to prioritise.

Tribunal’s Assessment of Claims and Evidence

1. At [149] and [150] the Tribunal referred to the requisite level of satisfaction that was required before the Tribunal was satisfied that the applicant had a well-founded fear of persecution if returned to India, or whether the applicant faced a real risk of significant harm if so returned. The Tribunal noted that it was for the applicant to satisfy the Tribunal that all of the statutory elements had been satisfied.

2. At [151] – [153] the Tribunal recorded that it had concerns about the applicant’s credibility, and the genuineness of his claims. In particular, it had concerns about the plausibility of the explanations offered by the applicant in response to questions put to him by the Tribunal. At [153] the Tribunal stated that it might have concerns about the genuineness of the applicant’s claims that he knew nothing about how to go about applying for a protection visa in circumstances where, even though he knew that he had overstayed his student visa, he still didn’t apply for a protection visa until three (3) years after his student visa had expired. The Tribunal noted that the applicant stated that people had mentioned protection visas to him during the three year period when he had overstayed his visa, but that he did nothing because he did not know what to do.

3. As to the representative’s suggestion that the Tribunal was biased because it had asked a number of questions of the applicant concerning his reason for not having earlier applied for a protection visa, the Tribunal at [155] referred to the judgment Heerey J in Selvadurai v MIEA & Anor [1994] FCA 1105 at [11] where it was said:

   “[11] …  

   (v) The applicant complained of the Tribunal's taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant's alleged fear of persecution. It is a rational consideration open on the material. Natural justice does not require every possible adverse inference from uncontested facts to be put to an applicant. A decision-maker does not have to provide an applicant with a draft of the proposed reasons for decision.”

4. At [156], again on the question of the delay on the part of the applicant in applying for a protection visa, the Tribunal said as follows:

   “[156] A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant’s fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J, 10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant’s case that the claimed fear of harm in this regard is not genuine.”

Findings of the Tribunal

1. The Tribunal, at [157] – [189]:

   a)Accepted that the applicant was gay.

   b)Did not accept the statements of the applicant’s cousin to the effect that the applicant’s parents would hand the applicant over to the authorities, or would try to cure the applicant by, amongst other things, exorcism.

   c)Did not accept that the applicant struggled with his sexuality, as observed by a friend over the previous six years, because the applicant’s own evidence was that he was happy and had made lots of friends after he had come out.

   d)Did not accept that the applicant feared having to hide his sexuality in India in circumstances where the applicant’s use of social media in Australia to celebrate his homosexuality would have clearly been accessible on social media in India.

   e)Did not accept that the applicant was genuine when he said that he feared his parents and family finding out that he was gay, or that he feared any repercussions from them so knowing.

   f)Did not accept the applicant’s claims about it being likely that his family would try to have him detained in a mental institution if he was to return to India, or that the applicant would be killed by anti-gay activists.

   g)Did not accept that the applicant had a depressive or anxiety condition related to his sexuality. The Tribunal noted that the applicant had said that after he came out in 2012 he was happy and had lots of friends.   

   h)Accepted that homosexuals constituted a particular social group within India, and that homosexuals in India faced discrimination and sometimes harassment and assault.

   i)Found that Mumbai was India’s most gay-friendly city and was a place which had a thriving LGBTI scene that was supported both socially and politically because of its rich diversity.

   j)Did not accept that the applicant would be arrested, bullied or put in jail because he was gay.

   k)Accepted that societal discrimination experienced by the applicant as a young man was hurtful and disrespectful, but held that it did not amount to serious harm as provided for in s. 5J(4) and (5) of the Act. Section 5J(4) and (5) provided as follows:

   “Section 5J      Meaning of well-founded fear of persecution

   …

   (4)  If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)  that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)  the persecution must involve serious harm to the person; and

   (c)  the persecution must involve systematic and discriminatory conduct.

   (5)  Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)  a threat to the person's life or liberty;

   (b)  significant physical harassment of the person;

   (c)  significant physical ill-treatment of the person;

   (d)  significant economic hardship that threatens the person's capacity to subsist;

   (e)  denial of access to basic services, where the denial threatens the person's capacity to subsist;

   (f)  denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.”

   l)Was not satisfied that there was a real chance that the applicant would be persecuted by reason of him being a homosexual in India if he was to return to India, then or in the reasonably foreseeable future. It did not consider that the applicant’s fears of harm were well founded.

   m)Was not satisfied that there was a real chance that the applicant would be subjected to significant ill treatment or psychological harm amounting to persecution if he was to return to India. The Tribunal found that the applicant would be able to avail himself, if needed, of effective state protection from the risk of persecution by the society, or police, by reason of his homosexuality, if he returned to India.

2. At [190] of its reasons, the Tribunal found that having considered the applicant’s claims, both individually and cumulatively, as well as having considered relevant country information, and the personal circumstances of the applicant, there was no real chance that the applicant would suffer persecution by reason of his homosexuality. The applicant was found not to have satisfied the relevant s. 36(2)(a) criteria.

3. At [191] – [194] inclusive, the Tribunal set out its reasons for it not being satisfied that there was a real risk that the applicant would suffer significant harm for any of the claimed reasons should he be returned to India. The Tribunal was also not satisfied that the applicant would be arbitrarily deprived of life, or that he would be subjected to cruel or inhuman treatment or punishment, or would otherwise be subjected to degrading treatment or punishment, if he was to return to India. The Tribunal found that the applicant did not meet the relevant s. 36(2)(aa) criteria.

4. Additionally, at [195] – [207] of its reasons, the Tribunal found that the applicant had an existing right to enter and reside in Nepal, and that the applicant had not taken all possible steps to avail himself of a right to enter and reside in Nepal [199]. The Tribunal accordingly found that, pursuant to the provisions of s. 36(3) of the Act, Australia did not therefore have protection obligations owed to the applicant. At [207], the Tribunal found that there was no well-founded fear that Nepal would return the applicant to India, or any other country, and that the qualifications in s. 36(5) and (5A) had not been enlivened. By inference, and based upon the findings of the Tribunal at [202] – [204] of its reasons, the Tribunal found that the provisions of s. 36(4) had also not been enlivened.

5. The Tribunal found that the applicant had a right to enter and reside in Nepal where he would not be persecuted.

Grounds of Review

Ground 1

1. As to Ground 1 of the application for review, the claim is un-particularised. Doing their best, the lawyers for the first respondent submitted that the provisions of s. 357A were part of the exhaustive statement of the natural justice hearing rule under Part 5 of the Act. There was no evidence that the Tribunal acted other than in a fair and just way in the conduct of the hearing, or in respect of its deliberations prior to the handing down of its decision. The applicant was represented at all significant stages of the process, and lengthy statements and submissions were provided, both pre-hearing and post-hearing, to the Tribunal. It cannot reasonably be suggested that in considering that material, and handing down its decision, the Tribunal acted in an improper or injudicious manner. This Ground was not arguable and lacked merit.

Ground 2

1. As to Ground 2 of the application for review, the claim is un-particularised. Again doing their best, the lawyers for the first respondent addressed the issue raised by the applicant in his affidavit, whereby he claimed that the Tribunal ought to have considered his use of social media, and his sister’s knowledge of his sexual orientation, when considering his claim. First, the Tribunal did make reference to the applicant’s sister’s knowledge of the applicant’s sexuality, both during the course of the hearing and in its reasons. Second, the Tribunal made specific reference to the applicant’s extensive use of social media during the course of the hearing and in its reasons. In both respects, the Tribunal was respectful of the applicant, and it considered the applicant’s claim in a reasoned way.

2. The Full Court of the Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46] – [47], where it was said, per French, Sackville and Healy JJ:

   “[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225 ; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

   [47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”

3. The Tribunal was entitled to have regard to the fact that the applicant, knowing that he had overstayed his student visa, took three years to apply for a protection visa. Further, the Tribunal was entitled to have doubts as to the genuineness of the applicant’s claims by reason of such delay in seeking protection. The conclusions reached by the Tribunal were open on the evidence before it. As Thawley J said at [21] – [24] in CED15 v Minister for Immigration and Border Protection [2018] FCA 451:

   “[21] In his written submissions, the appellant was more specific.  The complaint centred on paragraphs [69] and [70] of the Tribunal’s reasons, which provided:

   69. The applicant has consistently claimed that a Tamil family of four in his neighbourhood was killed and has provided a TamilNet news article referring to the murders, which took place in November 2008. The tribunal accepts that a family in the applicant’s neighbourhood was murdered at that time, along with Tamils in other villages.

   70. However, in his evidence to the department, the applicant merely claimed that the family were his neighbours and acquaintances. At the hearing the applicant claimed for the first time that the head of the family, Vinayakamoorthy, was his cousin. He claimed that he had previously mentioned this while he was “at the camp” however this significant detail is not mentioned in either his written statement or in the decision record summary of his evidence at departmental interview. The tribunal does not accept that, if this was true, the applicant would have failed to mention a familial relationship with the deceased Tamil family in either his written statement or at his departmental interview. Given the concerns the tribunal holds about the applicant’s credibility and his failure to mention his relationship with the Tamil family at key times during the processing of his application, the tribunal does not accept that the applicant previously mentioned that Vinayakamoorthy was his cousin while he was “at the camp”.

   [22] The appellant submitted that the “later” evidence, given for the first time to the Tribunal, that the man killed by the army in 2008 was the appellant’s cousin was a detail of less importance than the horrific murder of the family and the appellant’s fear of the army because of his being a witness.

   [23] It is not demonstrated that the Tribunal committed any jurisdictional error in reaching its conclusions in paragraphs [69] to [70].  The conclusions which the Tribunal reached were open on the evidence before it.  Specifically, it was open to the Tribunal to conclude that the appellant would have mentioned earlier than he did that the head of the deceased family was his cousin if it were true.  Reasoning which takes into account the time at which claims were, or were not, made is entirely orthodox. 

   [24] The fact that a different decision-maker may have reached a different conclusion on the evidence which was before it is not of itself a basis for concluding that there was jurisdictional error: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30].”

4. The Tribunal appropriately put matters to the applicant during the course of the hearing, and it recorded his responses. It undertook its administrative role in a fair minded way. It is apparent from the lengthy reasons of the Tribunal that all relevant matters were the subject of the Tribunal’s consideration. There is no merit to this ground.

Ground 3

1. As to Ground 3 of the application for review, this ground was also un-particularised. The lawyers for the first respondent appropriately submitted that the allegation of bias had neither been clearly and distinctly made out, nor had otherwise been proven. [1] There was nothing on the face of the record to indicate that the Tribunal was in any way biased against the applicant. There was no basis for it being concluded that a fair minded observer, properly informed as to the nature of the proceedings, the matters in issue, and the conduct of the Tribunal, might reasonably have apprehended bias on the part of the Tribunal. [2] It was open for the Tribunal to find that it did not accept that the applicant had felt depressed or anxious about his sexuality. The Tribunal had, in its reasons, recorded that the applicant was depressed before he came out, but that after he came out he was happy and had lots of friends. It was otherwise open to the Tribunal to find that other factors, including his studies, the pressure from his parents, and the loss of his student visa, were causative of any depression or anxiety which he later suffered.

   [1]        Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69]

   [2]        Re Refugee Review Tribunal & Anor; Ex Parte H & Anor (2001) 75 ALJR 982 at [27] – [28] per

2. The Tribunal clearly engaged upon a consideration of the applicant’s claims and found against the applicant. It has long been accepted that different minds might legitimately reach different conclusions. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]:

   “[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions.  The complaint of illogicality or irrationality was said to lie in the process of reasoning.  But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based.  If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”

3. There is no merit to this ground. It is not arguable.

Ground 4.

1. As to Ground 4 of the application for review, it was asserted that the Tribunal fell into error by having regard to irrelevant considerations in respect of the applicant’s entitlement to enter and remain in Nepal. For the reasons advanced in respect of Grounds 1, 2 and 3, the application for review fails because the Tribunal did not fall into jurisdictional error in finding that the Commonwealth did not owe protection obligations to the applicant should the applicant return to live in India.

2. As to the prospect of the applicant living in Nepal, the Tribunal had due regard to all relevant matters in that regard. The evidence before the Tribunal was sufficient to enable the Tribunal to find that citizens of India could travel to, and live in, Nepal, and that they would not be involuntarily returned to India in the normal course of events because they had done so. The evidence suggested that Nepal was a place of tolerance where issues of a person’s religion and sexuality did not give rise to harm or persecution.

1. The making of a claim that the Tribunal had regard to irrelevant considerations is not easily made out. As was said by Basten J in Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86 at [9]:

   “[9] The “something more” requires reference to the dual concepts of “relevant considerations” and “taking into account”. The term “relevant considerations” is widely misunderstood: as used in leading authorities, such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 per Mason J, it refers to a matter which the decision-maker is bound to take into account. The obligation may derive from the express terms of the power-conferring statute or may be implied from its subject matter, scope and purpose. A preferable term would be “mandatory consideration”. Further, a matter traditionally described as an “irrelevant consideration” is one which is prohibited because, having regard to the subject matter, scope and purpose of the power being exercised, it can be seen to reflect an extraneous or improper purpose or to render the decision arbitrary or capricious. Between these two categories is usually a wide range of permissible considerations which the decision-maker may weigh or disregard without committing an error of law.”

2. The Tribunal carefully considered issues relevant to s. 36(3) of the Act, and whether the provisions of s. 36(4), (5) or (5A) applied. It cannot be said that the Tribunal took any irrelevant considerations into account when considering the right of the applicant to live in societal tolerance in Nepal. There is no merit to this ground. It is not arguable.

Ground 5

1. The Tribunal found that the applicant did not have a well-founded fear of being persecuted should he live in Nepal. It also found that there was no real risk that he would suffer significant harm should he live in Nepal. The claim in this ground seeks a merits review of the decision of the Tribunal on point. This Court is not permitted to undertake any such review.

2. There is no merit to this ground. It is not arguable.

3. No jurisdictional error has been demonstrated on the part of the Tribunal.

4. Accordingly, the applicant’s application for extension of time for the filing of the application for review has no substantive basis. It is dismissed.

5. The Court will hear the parties as to costs.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 6 May 2020

         per Gleeson CJ and Gummow J and at [127] per Kirby J.         Gleeson CJ, Gaudron and Gummow JJ.