BWC19 v Minister for Immigration and Multicultural Affairs

Case [2025] FedCFamC2G 96

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BWC19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 96

File number: MLG 1367 of 2019
Judgment of: JUDGE SYMONS
Date of judgment: 3 February 2025
Catchwords: MIGRATION – protection visa – decision of the Administrative Appeals Tribunal –  alleged failure to consider material of significance – whether the Tribunal was required to consider statutory declaration made by the applicant’s husband – what inferences to be drawn from the failure of the Tribunal to refer to the statutory declaration in its written statement of reasons – whether findings made by the Tribunal rejecting the applicant’s sexual identity claims were unreasonable – finding that the Tribunal was required to consider the husband’s statutory declaration and failed to do so – error material – writs issued
Cases cited:

BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 277 FCR 420; [2020] FCAFC 94

BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 281 FCR 594; [2020] FCAFC 189

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26

Division: Division 2 General Federal Law
Number of paragraphs: 91
Date of last submissions: 2 December 2024
Date of hearing: 2 December 2024
Place: Melbourne
Counsel for the Applicant: Ms E Levine
Solicitor for the Applicant: Victoria Legal Aid
Counsel for the First Respondent: Mr C McDermott
Solicitor for the First Respondent: Mills Oakley
Solicitor for the Second Respondent: Submitting an appearance, save as to costs

ORDERS

MLG 1367 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

BWC19

Applicant
AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE SYMONS

DATE OF ORDER:

3 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs” pursuant to r 7.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).

2.The name of the second respondent be amended to “Administrative Review Tribunal” pursuant to r 7.01 of the Rules.

3.A writ of certiorari issue to quash the decision of the Administrative Appeals Tribunal made on 15 April 2019.

4.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine according to law, the applicant’s application to the Administrative Appeals Tribunal for review of the decision of the delegate of the first respondent dated 22 November 2016.

5.The first respondent pay the applicant’s costs as agreed or in default of…

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BWC19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 96
Case
[2025] FedCFamC2G 96
Decision Date

CaseChat Overview and Summary

The case of BWC19 v Minister for Immigration and Multicultural Affairs involves the applicant, a Rwandan citizen, seeking a protection visa in Australia. The applicant claims she faces significant harm upon return to Rwanda due to her sexual identity and past experiences of violence and discrimination. The matter was heard and determined by the Administrative Appeals Tribunal (AAT), which upheld the delegate’s decision to refuse the visa. The applicant subsequently sought judicial review of the AAT’s decision in the Federal Court of Australia.

The primary legal issues in this case revolve around whether the AAT erred in its assessment of the applicant's credibility and whether it failed to consider a statutory declaration made by the applicant’s husband, which could have supported her claims. The applicant argued that the AAT's findings rejecting her sexual identity claims were unreasonable and that the omission of the husband's statutory declaration from the Tribunal's reasons constituted a material error.

In addressing these issues, the court found that the AAT was indeed required to consider the husband's statutory declaration, which was not referenced in the Tribunal's written reasons. The court held that the failure to consider this material was a material error, as it could have influenced the outcome of the case. The court also noted that the AAT's findings on the applicant's sexual identity were unreasonable given the evidence presented, particularly considering the statutory declaration that was overlooked. Consequently, the court issued writs to facilitate judicial review.

The court’s decision highlights the importance of the AAT considering all relevant material in making its determinations, especially in cases involving claims of persecution based on sexual identity. The failure to consider significant evidence can lead to errors that materially affect the outcome, warranting judicial intervention.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 15 April 2019, the Tribunal affirmed the delegate’s decision to refuse the applicant the visa and produced a statement of decision and reasons (R) (CB 208-221).THE DECISION OF THE TRIBUNAL The Tribunal identified the relevant law, by reference to the refugee criterion and then the complementary protection criterion and noted its obligations under Ministerial Direction No. 56 (R [5]-[19]). The Tribunal identified the applicant’s claims for protection by adopting the summary contained in the decision of the delegate (R [23]). The Tribunal recorded various legal principles related to the assessment of credibility (R [25]-[29]) before turning to an assessment of the applicant’s various claims. The Tribunal accepted that the applicant had been receiving treatment for her mental health and that she had the mental health concerns that were identified in the documentation provided. The Tribunal noted that it had remained alert during the hearing for any evidence that the applicant was unable to present evidence and arguments but was satisfied that the applicant was able to do so (R [30]-[31]). The Tribunal found that country information before it indicated that the Rwandan government had been prioritising mental health in recent years including by the integration of mental health care services into the national health system (R [32]). The Tribunal found that there was nothing to suggest the applicant would not have the support of her family members upon return to Rwanda and that there was nothing before the Tribunal to indicate that she would be denied access to mental health services and medication upon her return to Rwanda (R [33]). The Tribunal found that the applicant was not a lesbian or bisexual and did not have a real chance of serious harm or a real risk of significant harm upon return to Rwanda. The reasoning that informed this conclusion is the subject of the applicant’s judicial review challenge but can be summarised as reflecting: (a)The applicant’s evidence about her relationship with Y, including her responses to questions asked at the Tribunal hearing. The Tribunal was dissatisfied with this evidence and found that the applicant was not in a long-term same sex relationship with Y, although she may have experimented with her sexuality with Y (R [34]-[39]);(b)The failure of the applicant to engage in a lesbian relationship or seek out the lesbian community since being in Australia and her transition to a committed heterosexual relationship instead (R [40]-[43]). The Tribunal accepted that the applicant had been raped as a young girl by a soldier but did not accept her claim to have been raped twice by her neighbour JP. The Tribunal identified what it described as inconsistencies in the applicant’s account. The Tribunal did not accept that the applicant faced a real chance of persecution from JP (R [44]-[53]). The Tribunal considered the applicant’s claim relating to her ex-supervisor at the X Authority but found that any mistreatment was not related to the applicant being a lesbian and had not ultimately resulted in any detriment to the applicant, given that she had been reinstated to her position (R [54]-[56]).

Ratio Decidendi

Legal Principle Established

On 16 June 2015, the applicant’s representative provided the Department with a statutory declaration made by the applicant on the same date in support of her protection claims (first statutory declaration) (CB 49-55). The information contained in the first statutory declaration included: ·The applicant is a citizen of Rwanda, who was born in the Democratic Republic of Congo (DRC) and chooses not to identify as a specific ethnic group.·The applicant fears harm in Rwanda due to being a lesbian and her status as a young single woman, and the Rwandan authorities will not protect her. ·The applicant has suffered serious harm through violent attacks and rape by members of her family and local community.·The applicant had a difficult childhood including because her father was violent towards her mother, the applicant’s siblings and the applicant. The family lived in the DRC due to the applicant’s father’s work. The applicant was unable to attend school on a constant basis due to conflict in the DRC. ·In or around 1998, following the death of her father, the applicant returned to live in Rwanda with her mother and siblings.·During high school, the applicant only had female friends, and did not want to be associated with men at all, citing her father’s behaviour towards her family as a contributing factor. ·While at boarding school, the applicant formed a romantic relationship with another female student, Y. This relationship continued after the completion of high school in January 2023 and the couple kept their relationship a secret.·In either 2004 or 2005, the applicant’s family questioned her as to why she was not married. After the applicant stated she would never get married, her family threw her belongings out of the house and told her she could no longer stay with them.·The applicant’s mother told her siblings that the applicant was “bewitched”, which resulted in them ceasing to visit the applicant. ·In or around 2009, the applicant’s neighbour, JP, showed interest in the applicant and asked her out numerous times. The applicant informed JP that she was not interested in men. After this, JP attended the applicant’s house raped her and told her that she should not go to the police because he would tell them she was a lesbian and that she would be arrested. JP continued to pursue and harass the applicant while she was in Rwanda. ·In around June 2010, the applicant began training with X Organisation and in April 2011, she secured a position as Field Manager for the X Authority.·In or around 2013, the applicant’s supervisor D at the X Authority asked the applicant if she was interested in marriage. The applicant informed him that she was not. The applicant’s colleagues told D that she was not interested in men at all. After this, D wrote a letter to the applicant, informing her he did not want her working for the company, and accused her of stealing. Following an investigation the applicant retained her position.·In 2014, JP continued to pursue and harass the applicant. The applicant began searching on the internet for a place that she could be free. These inquiries led the applicant to apply for and obtain a scholarship to study in Australia.·The applicant arrived in Australia on 26 October 2014 and completed the course she was enrolled in.·The applicant decided to apply for protection in Australia because she knew she would never be able to live safely in Rwanda. The Rwandan authorities would not protect the applicant from the harm that she feared because they are also anti-gay and lesbian.·The applicant fears harm including sexual assault, torture and death at the hands of the anti-gay Rwandan community.