BKE15 v Minister for Immigration

[2018] FCCA 2365

FEDERAL CIRCUIT COURT OF AUSTRALIA

BKE15 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2365

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – no matter of principle.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.36, 474

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

Applicant: BKE15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1971 of 2015

Judgment of: Judge Cameron

Hearing date: 24 July 2018

Date of Last Submission: 24 July 2018

Delivered at: Sydney

Delivered on: 24 July 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr J. Pinder of Minter Ellison

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s cost fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1971 of 2015

BKE15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of Nepal who arrived in Australia most recently on 8 August 2008. On 14 May 2012 he lodged an application for a protection visa with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Nepal by reason that he is homosexual. On 27 August 2012 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, 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: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. In these judicial review proceedings 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 Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

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

BACKGROUND FACTS

1. The applicant’s claims for protection were made in his application, in a statement dated 22 June 2012, at an interview with the delegate on 23 August 2012 and at a Tribunal hearing on 2 April 2015.  As summarised by the Tribunal in its decision record, the applicant relevantly made the following claims:

   a)he is homosexual;

   b)homosexuality is not accepted in Nepal;

   c)after his arrival in Australia in 2006, he started to enjoy his sexual life without fear; 

   d)when he returned to Nepal in July 2008 his family forced him to marry against his will;

   e)his family were extremely intolerant of his sexual orientation and he feared being harmed by them.  He also feared harm from his ex-wife and her family for damaging their reputations;

   f)he would be discriminated against and mistreated by anti-gay and conservative elements in society.  The authorities would not protect him as they too were homophobic; and

   g)he had had homosexual relationships in Australia, attended gay bars and clubs and had attended the Sydney Gay & Lesbian Mardi Gras in 2015.

The Tribunal’s decision and reasons

1. 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 (“Convention”), or s.36(2)(aa) of the Act.

2. The Tribunal found the applicant’s evidence inconsistent, evasive, vague and implausible.  It also found that the applicant had developed his claims over time and failed to make significant claims promptly. For these reasons, the Tribunal found that the applicant had not been a witness of truth and had contrived all of his claims for protection. It noted the following matters in that regard:     

   a)in his application form the applicant did not provide information about the process by which he had informed his family that he was homosexual. In his statement to the delegate the applicant claimed that he had informed his family [personally] whereas before the Tribunal he claimed that he had first informed his wife who then informed his family. Given the development of these claims over time and the applicant’s failure to provide them at an earlier opportunity, the Tribunal did not consider the applicant to be a witness of truth. It therefore rejected his claim that he was homosexual and had been forced to marry against his will.  It also rejected the applicant’s claim that he had been exploring “homosexual activities and the environment in Australia”;

   b)the applicant was vague and evasive about the process by which he had been forced to marry against his will, leading the Tribunal to conclude that the applicant had fabricated this aspect of his claims to strengthen his application.  The Tribunal also found that the applicant’s inconsistent, vague and evasive evidence was not consistent with someone who had claimed to have fled his country in order to escape a forced marriage, discrimination and physical harm. For these reasons, the Tribunal rejected the applicant’s claim that he had a well-founded fear of persecution in Nepal for reasons of his claimed homosexuality or because he would either be forced to live with his wife or, if divorced, forced to marry again against his will;  

   c)the Tribunal’s view was strengthened by the applicant’s vague and inconsistent evidence concerning his marital status;

   d)given the applicant’s claim that he had been exploring homosexual activities and the homosexual environment in Australia since his arrival, it seemed implausible that the first Mardi Gras parade the applicant attended was held only shortly before the Tribunal hearing. This, together with its other concerns about the applicant’s credibility, led the Tribunal to find that the applicant had attended the Mardi Gras parade in 2015 solely for the purpose of strengthening his claim to be a refugee.  It therefore disregarded this conduct in the context of his Convention-related claims;

   e)at the time the applicant applied for his visa, he did not indicate that he had had any sexual relationships with anyone in Australia.  However, during the later stages of his application process the applicant gave varying and inconsistent evidence about the number of homosexual relationships he had had in Australia; and

   f)the applicant’s delay of more than five years in lodging his protection visa application was not consistent with a subjective fear of persecution which the applicant claimed had existed at the time of his initial arrival and last entry into Australia.

3. In light of its finding that he was not homosexual, the Tribunal was not satisfied that the applicant would engage in or promote a gay lifestyle if he returned to Nepal, nor did it accept that he would be perceived to be homosexual.

4. The Tribunal did not accept, based on the applicant’s personal circumstances, that the applicant would be denied the capacity to earn a living of any kind in Nepal or that he would suffer significant economic hardship which would threaten his capacity to subsist there.        

PROCEEDINGS IN THIS COURT

1. In his application commencing these proceedings the applicant alleged:

   1.The Tribunal failed to assess my harm on the basis of my sexual orientation.

   2.The Tribunal failed to assess the escalating violence in Nepal against homosexual people.

   3.The Tribunal failed to assess my harm from my family especially my brother.

Grounds

1. All the grounds set out in the application were based on a false factual premise, namely, that the Tribunal had accepted that the applicant is homosexual. The pleaded grounds only make sense and could only have any chance of success were that to have been the case; however, it was not, and so all of the applicant’s allegations must fail for that overarching reason.  

2. In reaching that conclusion, it is not apparent that the Tribunal’s factual findings concerning the applicant’s sexual orientation, or perceptions of it were he to return to Nepal, were affected by jurisdictional error. The Tribunal’s relevant conclusions were well open to it on the evidence and were reached by a process of reasoning which could not be said to have been unreasonable or illogical in the relevant legal sense.

3. Nevertheless, turning to the individual grounds, the first ground referred to harm which the applicant claimed to fear in Nepal, but as can be seen by a review of, for instance, paras.103, 105, 106, 107, 109, 111, 112, 114, 117, 118 and 119 of its decision record, the Tribunal considered the harm which the applicant claimed to fear were he to return to Nepal, but was unpersuaded by those claims. No jurisdictional error attaches to the relevant findings. 

4. As for the second allegation, it is true that the Tribunal did not turn its mind to what the applicant alleges is escalating violence in Nepal against homosexual people, but in the circumstances it was not required to. 

5. In the final ground of the application, the applicant referred to the harm he claimed to fear at the hands of his family and especially his brother; however, the issue was dealt with sufficiently in paras.103, 113 and 114 of the Tribunal’s reasons. 

CONCLUSION

1. The allegations made in the application commencing these proceedings have not been made out.

2. As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 31 August 2018