BHC16 v Minister for Immigration

[2018] FCCA 1590

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHC16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1590

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Protection visa application – claim that the Administrative Appeals Tribunal committed jurisdictional error in not giving to the Applicant information for the purposes of s.424A or s.424AA of the Migration Act 1958 and failing to consider a claim –  no jurisdictional error established – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 424AA, 438

Migration Regulations 1994 (Cth)

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604

BZV15 v Minister for Immigration and Border Protection [2017] FCA 1522

Applicant: BHC16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1335 of 2016

Judgment of: Judge Dowdy

Hearing date: 26 July 2017

Delivered at: Sydney

Delivered on: 22 June 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent: Mr T. Reilly of Counsel

Solicitors for the First Respondent: Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 26 May 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1335 of 2016

BHC16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant in this proceeding is a male citizen of Nepal aged 27 years, having been born on 12 January 1991.

2. By Application filed in this Court on 26 May 2016 he seeks to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 9 May 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 18 September 2014 refusing to grant to him a Protection (Class XA) visa (Protection visa). 

3. The Applicant left Nepal on 9 August 2010 using a false Nepali passport in the name of one ‘Nishan Poudel’, an Australian Student visa holder, and arrived in Australia on that same day. He remained in Australia until he lodged his Protection visa application the subject of this proceeding on 3 February 2014. At all material times since at least 12 June 2014 he has been represented during his Protection visa process before the Delegate and the Tribunal by Parish Patience Immigration Lawyers (Parish Patience).

Claims for Protection

1. In a written statement of 24 January 2014, which formed part of his Protection visa application and  as subsequently corrected and amplified by a Statutory Declaration declared by him on 1 September 2014, the Applicant made the following claims:

   a)He was born into a conservative Hindu family in the Baglung District of Nepal, and has five sisters and one brother. From early childhood he was very close with his friend ‘Deepak’, and when they were both 14 years of age they started engaging in homosexual relations.

   b)In December 2007 the Applicant and Deepak were discovered having sexual relations with each other by the Applicant’s father. His father beat him and he felt shame and left home. After a week he returned home but felt very depressed and stressed and attempted to commit suicide by hanging himself from a wooden beam in his room.

   c)Their relationship continued until 2009 when they were discovered hugging and kissing each other by another person at a Hindu festival. The Applicant’s parents were informed. Furious, they beat the Applicant and in response he and Deepak left for Kathmandu. However, in 2010 Deepak went to Dubai for work, without the Applicant.

   d)In around 2008 the political situation in Nepal started worsening due to the activities of the Maoists. In March 2008 the Maoist leader came to the Applicant’s house with two other people and said that the Applicant should join the Maoists and threatened his family. Deepak was attracted to the Maoists, but the Applicant did not support the Maoists because he supported the Rastriya Prajatantra Party Nepal.

   e)Frustrated and depressed from being alone, the Applicant received some money from Deepak and used it to engage an agent for travel to Australia under a false passport. Between his arrival in Australia on 9 August 2010 and December 2013 he worked on farms in regional Victoria to avoid detection by the Department of the Minister. He then came to Sydney because he was told that Sydney was “a lively place for gay activities” and he could meet lawyers in Sydney. He came to Sydney and found his original lawyer in January 2014 who advised him to lodge the Protection visa application.

   f)In January 2014 he also met a friend in Sydney named Albert (i.e. a pseudonym) and entered into a homosexual relationship with him. Albert introduced the Applicant to Parish Patience who then in May 2014 commenced acting for him “in my immigration matters”.

   g)The Applicant feared that if he returned to Nepal he would face serious harm because of his homosexual orientation and his homosexual relationship with Albert.

Relevant Criteria and Law Applicable to Protection Visa Applications

1. A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:

   [5]The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

   [6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:

   ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

   [7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:

   ... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....

Decision of Delegate

1. The Applicant attended an interview with the Delegate on 4 September 2014 with the assistance of an interpreter in the Nepali and English languages. Parish Patience was present and submitted materials to the Delegate including photographs, a statutory declaration from Albert, country information (including a Report on Homosexuality in Nepal dated 27 April 2011 by Dr Sheleyah A. Courtney of Sydney University) and submissions, both prior and subsequent to the interview on 4 September 2014.

2. In her Decision Record the Delegate accepted that the Applicant was homosexual and currently in an ongoing homosexual relationship with Albert.

3. Nevertheless, the Delegate considered country information to the effect that homosexuality was not illegal in Nepal and that whilst Nepal, as a predominantly Hindu culture, was an essentially conservative and traditional society, any discrimination that might be faced by the Applicant if he returned to Nepal was not such that would amount to harm constituting persecution under the Refugees Convention. Further, the Delegate was of the view that the Applicant did not face a real risk of significant harm for the purposes of the complementary protection criterion.

4. Accordingly, the Delegate refused to grant to the Applicant a Protection visa because she was not satisfied that Australia had protection obligations to him under s.36 of the Migration Act 1958 (Cth) (the Act) and cl.866.221 of Sch.2 to the Migration Regulations 1994 (Cth) (the Regulations).

Decision of Tribunal

1. The Applicant lodged an application for review of the Delegate’s decision on 3 October 2014.

2. There were two hearings before the same Tribunal member.  

3. I note that the numbering of the paragraphs of the Decision Record of the Tribunal cease to be sequential at [35] and numbers as [31] the paragraph which should have been [36]. Accordingly, for the purposes of this judgment I have renumbered the paragraphs so that [31] on page 10 of the Decision Record of the Tribunal has been renumbered [36], and sequentially thereafter until [83], which has been renumbered [88].

4. The first hearing was on 17 December 2015 when the Applicant, together with his migration agent, appeared before the Tribunal to give evidence and present arguments with the assistance of an interpreter in the Nepali and English languages. Albert also gave oral evidence at this hearing. It is evident that the Tribunal gave notice to the Applicant at this hearing of a number of concerns and in particular its concern as to whether the Applicant was homosexual or currently in a homosexual relationship: see [11], [16] – [17], [renumbered 56] and [renumbered 65] of the Decision Record of the Tribunal. The Applicant requested further time to respond and provided a further Statutory Declaration declared on 9 January 2016 in which he re-confirmed his claim to be in a genuine and committed homosexual relationship.

5. Then on 28 April 2016 the Tribunal emailed to Parish Patience a copy of the latest DFAT Country Information Report on Nepal dated 21 April 2016 (DFAT Report).

6. The second Tribunal hearing took place on 3 May 2016 when the Applicant attended together with his registered migration agent, again with the assistance of an interpreter in the Nepali and English languages. Subsequently on 5 May 2016 Parish Patience sent to the Tribunal a number of sexually explicit photos of the Applicant and Albert, which were clamed to corroborate the claimed homosexual orientation of the Applicant.

7. At [6] of its Decision Record the Tribunal set out the claims made by the Applicant in his Protection visa application and initial statements.

8. At [7] – [11] of its Decision Record the Tribunal recorded that it had listened to an audio recording of the Applicant’s interview with the Delegate and summarized the country information, further evidence and submissions provided to the Delegate on behalf of the Applicant after the interview on 4 September 2014.

9. At [12] – [19] of its Decision Record the Tribunal set out the events and circumstances leading up to and including the second Tribunal hearing on 3 May 2016.

10. At [25] of its Decision Record the Tribunal recorded that it had “a number of concerns about the applicant’s changing, inconsistent and not credible evidence” and did not find him to be a “credible, truthful or reliable witness in relation to matters central to, and related to, many of his claims”.

11. The Tribunal then proceeded to identify its concerns with the evidence provided by the Applicant at [26] – [56] of its Decision Record.

12. At [26] – [30] the Tribunal set out its concerns relating to a number of inconsistencies and evidence which had changed, concerning what had happened after the Applicant’s relationship with Deepak had been discovered at the Hindu festival in 2009, why the Applicant obtained a passport in his own name, why he did not accompany Deepak to Dubai, why he was willing to remain in Nepal despite his claims of harm, and why and when he moved to Kathmandu.

13. At [31] – [35] of its Decision Record the Tribunal expressed a number of concerns with the credibility of the Applicant’s “new” claims at the first and second Tribunal hearings about the alleged discrimination he had experienced by living in a homosexual relationship with Deepak.

14. At [renumbered 37] – [renumbered 38] of its Decision Record the Tribunal found that the Applicant had given “evasive evidence” about his claim of his father catching the Applicant and Deepak having sex in December 2007. At [renumbered 39] - [renumbered 41] the Tribunal expressed its concern that it was “highly unlikely” that if the Applicant’s father had caught the Applicant and Deepak engaging in sexual activities in December 2007, that his father had permitted and paid for the Applicant and Deepak to live together from July 2008 for a period of 18 months while they undertook their high school studies away from home.

15. Having regard to the confined Grounds of attack on the decision of the Tribunal it is unnecessary to set out further inconsistencies which gave concern to the Tribunal. In the result, the Tribunal completely rejected the Applicant’s claims to protection, finding at [renumbered 68] – [renumbered 69] as follows:

    [renumbered 68]            On the basis of the adverse credibility finding, the tribunal does not accept that the applicant was a homosexual in Nepal, that he had a homosexual relationship in Nepal, nor that anyone suspected, accused or imputed him with being homosexual in Nepal, nor that he was distressed or adversely affected (or suicidal) for such reasons. The Tribunal does not accept his claim that he was threatened or isolated or beaten or harmed in anyway, nor that he fled to Kathmandu due to a fear of persecution. The Tribunal does not accept that the applicant came to Australia because he was homosexual or escaping a fear of persecution. 

    [renumbered 69]            The Tribunal is not prepared to accept that any of the applicant's claims of past harm were true. The Tribunal finds these claims have been fabricated for the purposes of his protection visa application, and that he travelled to Australia without a fear of persecution or harm in Nepal. Further, the Tribunal does not accept that the applicant was a homosexual in Australia but was scared to do anything about this for three years while working on farms, nor that he was distressed or suicidal for these reasons. Instead, the Tribunal considers it likely that the applicant came to Australia to earn money, and was working on farms out of choice, to earn money, and after the raid, considered that he should try to remain in Australia by making a (false) visa application.   

16. At [renumbered 79] of its Decision Record the Tribunal recorded that the Applicant had not repeated at either of the two hearings before the Tribunal or in any evidence supplied after those Tribunal hearings the claim made in his written statement of 24 January 2014 and in his Statutory Declaration of 1 September 2014 in relation to the activities of the Maoists in Nepal: see [4(d)] above. On the basis of its credibility findings the Tribunal was satisfied that the assertisons made originally by the Applicant concerning the Maoists in Nepal were not true. At [renumbered 80] the Tribunal noted its consideration of the DFAT Report and stated that it was not satisfied that the Applicant faced a real chance of serious harm or real risk of significant harm in Nepal for any reason.

17. Accordingly, the Tribunal at [renumbered 87] of its Decision Record found that it was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act and accordingly at [renumbered 88] affirmed the Delegate’s decision not to grant to the Applicant a Protection visa.

Grounds of Attack on Tribunal Decision in this Court

1. The Grounds relied upon by the Applicant are verbatim as follows:

   1. The tribunal errored by not putting country report for applicant to comment on which the Tribunal relied upon to reach this decision.

   PARTICULARS

   Paragraph 11 of the subject decision.

   2. The Tribunal failed to investigate and take into account evidence of the relationship with his partner in Australia.

   PARTICULARS

   Paragraph 27 of the subject decision.

2. Unfortunately at the hearing in this Court on 26 July 2017 the Applicant was only able to make submissions which went to the merits of his claim rather than jurisdictional error.

Consideration

Ground 1

1. I take this Ground to allege that the Tribunal acted in breach of its obligations under ss.424A or 424AA of the Act with regard to the country information referred to in [11] of its Decision Record.

2. In my view this Ground fails to establish jurisdictional error.

3. First, the reference in this Ground to [11] of the Decision Record of the Tribunal does not coherently or meaningfully particularize the Ground. The reference to “country information” in [11] was in the context of the Tribunal merely reciting that the Delegate had considered country information.

4. Second, s.424A(3)(a) as to country information rendered any obligation under s.424A(1) inapplicable as long as it was not specifically about the Applicant or another person. As Kenny J said in VHAJ v Minister for Immigration (2003) 131 FCR 80 at 95 [50]:

   [50]… It is usual for the Tribunal to have regard to information about the social, political, religious and other conditions prevailing in a country relevant to an applicant’s claim for refugee status, with a view to assessing whether other individuals who share his or her racial, religious, political, social or other attributes suffer treatment of a kind amounting to persecution on Convention grounds in that country. Sometimes information of this kind concerns religious practice, government elections, educational opportunities or other matters. This kind of country information is relevant to the Tribunal’s decision-making task only because the applicant falls within the class of persons who share an attribute, which, according to his or her claim, gives rise to a well-founded fear of persecution in the country concerned. In this circumstance, the information does not cease to be information “just about” a class of persons simply because it can also be characterised as information about religious practice, government elections or educational opportunities. It has been repeatedly held that information of this kind falls within s 424A(3)(a) of the Act…

5. Third, the only express reference to any country information in the Decision Record of the Tribunal was at [renumbered 80] where it confirmed that it had considered the DFAT Report in concluding that it was not satisfied that the Applicant faced a real chance of serious harm or real risk of significant harm in Nepal for any reason. However, the DFAT Report had been forwarded to Parish Patience by the Tribunal’s letter of 28 April 2016 (see [14] above), even though there was no legal obligation on the Tribunal to draw the DFAT Report to the Applicant’s attention because of s.424A(3)(a) of the Act.

6. Accordingly, Ground 1 fails to establish that the decision of the Tribunal is affected by jurisdictional error.

Ground 2

1. With respect to this Ground, [27] of the Decision Record of the Tribunal is not concerned with the Applicant’s relationship with Albert in Australia, but rather with his previous relationship in Nepal with Deepak. Further, the Tribunal clearly did consider and take into account evidence of the claimed relationship between the Applicant and Albert in Australia.

2. At bullet point 14 of [6] of the Decision Record of the Tribunal it recorded the Applicant’s claimed that:

   He met his gay friend [Albert] in January 2014. Then on 2 January 2014 the applicant moved into [Albert’s] room as [Albert] was looking for a flatmate. He did not say at that time that he was gay. Now they live happily together in a homosexual relationship.

1. At [9] of its Decision Record the Tribunal referred to four statutory declarations which were claimed to corroborate that the Applicant and Albert were gay and lived in a relationship in the same house. At [10] the Tribunal referred to the Statutory Declaration from Albert dated 15 September 2014 and the photographs of the Applicant and Albert together.

2. The Tribunal then at [renumbered 60] – [renumbered 67] and [renumbered 71] – [renumbered 74] of its Decision Record gave further consideration to the alleged relationship between the Applicant and Albert. At [renumbered 71] it stated as follows:

   [renumbered 71] Having regard to the adverse credibility finding, the Tribunal does not accept that the applicant has been a homosexual while in Australia, nor that he has engaged in any activities which could be construed as homosexual activities, as a homosexual. The Tribunal considers that all such activities referred to above have been done for the purposes of the applicant's protection visa claims. The Tribunal considers that the applicant moved in with his claimed partner in order for the applicant to claim that he is a homosexual, in a relationship. The Tribunal is not satisfied that any of the applicant’s Australian activities which may be suggestive of him being homosexual or in a homosexual relationship were done for any reason other than for the purpose of strengthening his claims. The Tribunal is not prepared to give weight to these activities as evidence of the applicant's homosexuality or his homosexual relationship. Thus the Tribunal disregards the photos, the attendance at bars and social events, the applicant moving in with and opening a joint bank account with his claimed partner, pursuant to s.91R(3) of the Act.

3. Accordingly, Ground 2 also fails to establish jurisdictional error.

4. I finally note that I asked Mr Reilly of Counsel, who appeared for the Minister as a model litigant, whether or not he could discern anything in the Decision Record of the Tribunal of a problematic nature which a lawyer acting for the Applicant could submit to the Court as having a tendency to establish jurisdictional error, but he was not able to do so. I agree with Mr Reilly’s submission that the Decision Record is a comprehensive one and I cannot for myself discern any illogicality, irrationality or legal unreasonableness in the Tribunal’s findings. In my view the Tribunal’s decision to dismiss the application for review was not “arbitrary” or “irrational” or lacking an “evident and intelligible justification”.

A Final Matter

1. The Minister as a model litigant disclosed that an officer of the Department of the Minister had issued a certificate dated 18 September 2014 purportedly pursuant to s.438 of the Act, addressed to the District Registrar of the Tribunal (s.438 Certificate). The s.438 Certificate states that it applies to information in folios 47 – 48, 56, 62 – 63 in file number CLF2014/18237, “because it contains information relating to internal business of the department”.

2. The folios referred to in the s.438 Certificate are as follows:

   a)Folio 48 contains an internal request to an area within the Department of the Minister responsible for the examination of documents, the Document Examination Unit (DEU), to examine the two passports provided by the Applicant. Folio 47 is an email from the DEU acknowledging the request.

   b)Folio 56 is merely an internal Departmental confirmation of a request for an interpreter.

   c)Folios 63 – 62 comprise the DEU report in relation to the Applicant's two passports. The findings of the DEU were that one of the passports was “legitimately manufactured, personalised in the expected manner that has been altered by photo substitution” and the second passport was a “legitimately manufactured document, personalised in the expected manner, and is unaltered”.

3. At the hearing Mr Reilly accepted that the s.438 Certificate was invalid but submitted that, whilst the Tribunal did not disclose the existence of the s.438 Certificate or the documents the subject of it to the Applicant, this did not give rise to a denial of procedural fairness constituting jurisdictional error.

4. At [20] – [21] of its Decision Record the Tribunal accepted that the Applicant entered Australia on a false Nepali passport in the name of Nishan Poudel but that he subsequently produced a legitimate passport in his own name to the Department. The Tribunal was prepared, as was the Delegate, to accept the Applicant's name, age and nationality, and that he was a citizen of Nepal. The Delegate’s decision, which the Applicant provided to the Tribunal, indicated that the Department had verified his claims that the passport in the name of Nishan Poudel was fraudulently altered, and that the second passport in his own name  was  a  genuine  document.

5. I agree with Mr Reilly’s submission that non-disclosure of the s.438 Certificate and the folios did not give rise to a denial of procedural fairness. In my view the s.438 Certificate is invalid, but no relevant non-disclosure has occasioned procedural unfairness to the Applicant. The Tribunal did not mention or rely upon the s.438 Certificate and in reaching its decision did not act upon or have regard to any of the folios which were subject to the s.438 Certificate. They were entirely irrelevant and immaterial to the Tribunal’s review of the Delegate’s decision and neither the existence of the s.438 Certificate nor the documents subject to it could have had any conceivable impact on the outcome of the review and there was no practical unfairness caused thereby: see BZV15 v Minister for Immigration and Border Protection [2017] FCA 1522 at [2] – [4] per Robertson J.

Conclusion

1. The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.

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

Associate: 

Date:  22 June 2018