BZD17 v Minister for Immigration
[2017] FCCA 3186
•15 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZD17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3186 |
| Catchwords: PRACTICE AND PROCEDURE – Application for an adjournment – whether an adjournment was in the interests of the administration of justice – application refused. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424AA, 476 |
| Applicant: | BZD17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1416 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 15 December 2017 |
| Date of Last Submission: | 15 December 2017 |
| Delivered at: | Sydney |
| Delivered on: | 15 December 2017 |
REPRESENTATION
| The applicant appeared in person. |
| Solicitors for the Respondents: | Mr K Eskerie Sparke Helmore Lawyers |
ORDERS
The oral application for an adjournment is dismissed.
The amended application is dismissed.
The applicant to pay the first respondent’s costs fixed in the amount of $5,800.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1416 of 2017
| BZD17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 28 April 2017 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Cameroon and his claims were assessed against that country.
The applicant arrived in Australia as the holder of a Visitor (Business) (sub-class 600) Visa on 16 June 2014. On 11 July 2014, the applicant lodged an application for a protection visa. On 27 May 2015, the delegate refused the grant of the visa.
The Tribunal’s decision
On 22 June 2015, the applicant applied to the Tribunal for review. The applicant attended three hearings to give evidence and present arguments on 9 February 2017, 16 February 2017, and 19 April 2017. Throughout the review the applicant was represented by his migration agent. A number of witnesses were called to give evidence.
Claims for protection
The applicant claims to fear harm, in summary, by reason of being a homosexual. The applicant alleges that homosexuals are not welcome in Cameroon and face rejection by the population, their families, and the authorities. The applicant alleges he was forced to marry a woman on 12 December 2008 by his family. The applicant alleges he did not reveal his homosexuality to his wife and that on 22 February 2014 his wife followed him to a nightclub, where she found him with a man called “E”. The applicant alleged that he and E were surrounded and beaten and that E was killed. The applicant alleges he was arrested and taken to a police station and the applicant was taken to hospital, where he remained in intensive care for two weeks.
The applicant alleges on 10 March 2014 a nurse helped him escape and he went into hiding at the home of a friend. The applicant alleges that his home has been searched by police and property seized. The applicant alleges on 12 March 2014 an arrest warrant was issued for the applicant. The applicant alleges he departed Cameroon on 13 June 2014 with the assistance of an army officer, who assisted him to depart without any verification checks.
Refugee assessment
The Tribunal in its reasons dated 28 April 2017 summarised the background to the application for review. The Tribunal summarised the applicant’s claims and evidence as well as what occurred at the three hearings. The transcripts have been tendered. The Tribunal clearly raised with the applicant issues in respect of the applicant’s credibility in the course of the hearing, giving the applicant an opportunity to address the Tribunal’s concerns in respect of the applicant’s evidence.
The Tribunal also put adverse information to the applicant in the course of those hearings, consistent with the requirements of s 424AA and found evidence that the applicant contradicted the information that was put to the applicant pursuant to s 424AA. The Tribunal identified raising with the applicant the need to produce evidence in relation to the alleged adoption of his daughter. The Tribunal squarely raised with the applicant during the hearing its concern as to the applicant’s credibility as to whether he was gay. The Tribunal raised with the applicant conduct that had been engaged allegedly in Australia, including the attendance of a catholic church, was done with a view to creating a homosexual profile rather than any real expression of his homosexuality.
The applicant alleged that one homosexual a month was killed in Cameroon but was not reported in the media. The Tribunal summarised in detail the inconsistencies in the applicant’s evidence. The Tribunal did not accept that the inconsistencies could be explained by any medical reasons in respect of the applicant. The Tribunal found the applicant’s evidence regarding his claims to lack credibility. The Tribunal found the applicant not to be a credible, reliable, or truthful witness and found that he had fabricated his claims in order to be granted a protection visa.
The Tribunal was satisfied that there is no real chance of harm for the applicant’s association with any political party and noted that the applicant no longer pursued a claim in this regard.
Homosexuality claims
The Tribunal did not accept that the applicant had a homosexual encounter with another boy at his school and was discovered by a girl or that it was reported to teachers. The Tribunal identified inconsistency in the applicant’s history of the period after this incident between the fact that at age 16 he claimed that he accompanied his father and did nothing, at the same time as he was exposed to a year of demonic rites which “took a lot of time”. The Tribunal did not accept that the applicant is gay. The Tribunal did not accept that the applicant ever met and carried on a long-term relationship with a gay lover by the name of E. The Tribunal did not accept that the applicant’s phone with photos of E was discovered by the applicant’s wife and that his family began following him.
The Tribunal found that the applicant’s account of the alleged assault of him and E was implausible and did not accept that any such incident occurred. The Tribunal did not accept that E was ever killed, having not accepted that the assault occurred. The Tribunal did not accept the applicant has either generally explored any homosexual behaviour or sought to live a genuinely homosexual lifestyle in Australia. The Tribunal found the applicant has been deliberate in his actions in trying to enter Australia and constructing a fabricated history of trauma and homosexual behaviour in Cameroon. The Tribunal was satisfied that the applicant has continued that deliberate construction of a fabricated profile since being in Australia.
Other issues
The Tribunal was satisfied the applicant was married in 2008. The Tribunal was not satisfied the applicant was divorced and did not accept that the applicant sought a divorce based on his homosexuality. In relation to the applicant’s adopted daughter’s birth certificate having listed as the natural mother someone other than the applicant’s wife but the applicant as the father, the Tribunal did not accept that, because the applicant’s wife was against the adoption, he just used the deceased birth mother’s name. The Tribunal found if the daughter was legally adopted that it is reasonable to assume that there would be an evidentiary trail supporting this event if, as claimed, he paid bribes and using a lawyer for the Family Court he was able to expedite the process so it took weeks rather than months. The Tribunal made no finding in relation to the status of the child in Cameroon, but found the account implausible surrounding the adoption and that that strengthened the Tribunal’s concerns in respect of the applicant’s credibility.
Complementary protection assessment
The Tribunal took into account the conduct engaged in in Australia for the purposes of assessing the applicant’s claims in respect of complementary protection. The Tribunal was not satisfied that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm. The Tribunal did not accept there are substantial grounds for believing that as a necessary and foreseeable consequence to the applicant being removed from Australia to Cameroon that there is a real risk the applicant will suffer significant harm on the basis of the claims made by the applicant under the criterion in s 36(2)(aa).
The Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. The Tribunal found the applicant failed to meet the criterion under s 36(2)(a) of the Act. The Tribunal found the applicant was not a person in respect for whom Australia had protection obligations under s 36(2)(aa) and found the applicant did not satisfy the criterion under s 36(2) and affirmed the decision under review.
Proceedings before this Court
This matter was commenced on 9 May 2017. On 30 June 2017, a Judge of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence, and submissions. The applicant had earlier filed an amended application on 23 June 2017. Following those orders, an affidavit annexing the transcript of the three hearings was filed on behalf of the applicant. No submissions were filed on behalf of the applicant.
Nature of the hearing
At the commencement of the hearing today the Court explained to the applicant this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that, in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that, if satisfied the Tribunal’s decision was unlawful or unfair the decision would be set aside and sent back for further review. The Court explained that, if not satisfied the Tribunal’s decision was unlawful or unfair the application would be dismissed with costs.
The Court explained that it would have identified the evidence and then hear submissions from the applicant and then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood what was said by the Court as to the nature of the hearing.
Application for adjournment
The applicant from the bar table indicated that he wished to obtain an adjournment and that he had raised this by email yesterday with the solicitor for the first respondent. The applicant had been sent by email on 8 September 2017 a reminder in respect of the hearing, as well as attaching the first respondent’s submissions.
The applicant asserted that he was not in a position to continue with the hearing. The applicant indicated that he had been in hospital the day before. The applicant handed up to the Court material in support of the adjournment. The material was marked “Exhibit 1” and identified a report from the Southern Western Local Health District dated 14 December 2017 that confirmed the applicant attended Bankstown Community Health Centre on 13 December 2017 for a mental health assessment and was due to receive a follow up from the mental health team.
The applicant included also a discharge referral identifying an attendance and discharge on 14 December 2017 in relation to a diagnosis of the applicant being suicidal. The report referred to suicidal ideation, insomnia, and anxiety due to visa issues and an impending Court case. The applicant was discharged for community mental health follow up. The applicant also provided a copy of a medical report dated 13 February 2017 from a Professor Harris as well as a psychologist’s report dated 6 March 2015, some email correspondence of February 2017, and an Asylum Seekers Centre report dated 26 June 2016. None of the documents provided by the applicant identified any medical basis upon which the applicant was unable to participate in the hearing today. The applicant has, in fact, put submissions to the Court and the Court is satisfied the applicant was able to meaningfully participate in the hearing.
Further, the applicant identified that he wanted an adjournment so as to obtain the benefit of other legal input. These proceedings were commenced on 9 May 2017. The applicant has had ample time if he was able to obtain legal assistance to do so. The Court does not accept that anything said by the applicant in support of the adjournment application identified any utility in the granting of an adjournment. The Court was not satisfied that an adjournment was warranted in the interests of the administration of justice. It is for these reasons the application for an adjournment was refused.
Submissions from the bar table
The applicant from the bar table rhetorically put the proposition as to what is a homosexual. The applicant identified the period of time that he had been here and referred to the three occasions in which he gave evidence before the Tribunal. The applicant suggested that he had been pressured by the Tribunal.
The transcripts of the hearings before the Tribunal and the Tribunal’s reasons to not identify any conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. The material before the Court supports the Tribunal approaching the determination of the review with an open mind reasonably capable of persuasion as to the merits. Nothing in the transcript supports the assertion by the applicant from the bar table that he was pressured during the course of the hearings.
The Tribunal properly sought to explore with the applicant in those hearings its concerns in respect of the applicant’s credibility. The applicant identified the hardship that he said he had encountered whilst living here in Australia. This Court does not have power to grant relief on compassionate grounds.
The applicant referred to contacting friends in Canada and he had recently received on 11 November 2017 an article supporting the alleged incident that he alleges occurred on 25 February 2014. This was not material that was before the Tribunal and this Court cannot receive into evidence in order to make out a jurisdictional error material in support of the applicant’s claims that was not before the Tribunal. The applicant’s submission in respect of the existence of that article does not identify any basis upon which there could be said to be a jurisdictional error by the Tribunal.
The applicant submitted that he found the decision unfair. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of a review. On the face of the material before the Court, the applicant had a real and meaningful hearing before the Tribunal and the Tribunal complied with its requirements of procedural fairness. No jurisdictional error is made out by reason of the applicant’s general assertion that the Tribunal decision was unfair. Such a submission reflects a disagreement with the merits of the decision and it is for the Tribunal to determine the merits. This Court has no power to review the merits of the matter. Nothing said by the applicant from the bar table identified any jurisdictional error.
Grounds in the amended application
The grounds in the amended application are as follows:
1. The First Respondent (Tribunal) fell into jurisdictional error by failing to take into account independent corroborative evidence of witnesses based on its earlier finding that the Applicant had “been deliberate in his actions in trying to enter Australia and in construing and fabricating history of trauma and homosexual behaviour in Cameroon” and that “he has continued that deliberate construction of a fabricated profile in Australia”: D[115].
Particulars
a. On that basis the Tribunal had expressly “disregarded” evidence (D[116]), which were corroborated by the evidence of witnesses that had made statements and appeared at the Tribunal, including the following:
i. the applicant’s attendance at a service for gay Catholics; and
ii. his attendance at a sexual health clinic where he had STI checks;
b. The Tribunal had failed to properly consider the evidence of Adonis Tchoudja, a man who had known the Applicant and his deceased partner in Cameroon, a human rights and gay activist from Cameroon, and whom had provided a statutory declaration and gave corroborating evidence at the Tribunal hearing.
2. The First Respondent fell into jurisdictional error by making adverse credibility findings against the Applicant without any logical or probative basis; were based upon legal unreasonableness; arose from a misunderstanding or misconstruction of the evidence and/or were minor or trivial inconsistencies that could not support the adverse credibility findings.
Particulars
a. The Tribunal erroneously found an inconsistency in the age at which the Applicant had “his first sexual contact as a gay” (D[90]). In his statement the applicant said it occurred at the age of 18, which led to a 6 year gay relationship. At the Tribunal hearing, his evidence was of touching and kissing another schoolboy at the age of 15, however the Tribunal never clarified the meaning of what that meant to the Applicant and assumed an inconsistency.
b. The Tribunal’s reasoning concerning the injuries suffered by the Applicant from a homophobic attack are legally unreasonable in that on the one hand it states that it is implausible that he only suffered a fractured knee and broken tooth (D[97]), and on the other hand the Tribunal appeared to accept that the Applicant was in a coma when he was admitted to the intensive care unit (D[74]).
c. The Tribunal’s reasoning that it disbelieved the homophobic attack on the Applicant and his then partner occurred, since it was not posted on social media or reported is legally unreasonable and/or lacks any logical or probative basis (D[133] & D[74]).
d. The Tribunal misunderstood or misconstrued the Applicant’s evidence when it alleged the Applicant had previously said he had no idea where he was going to when he fled Cameroon (D[106]). However, the Applicant had explained at the Tribunal hearing that what he meant was that he did not know anything about Australia and he did not know anyone here.
e. The Tribunal misunderstood or misconstrued the Applicant’s evidence by stating in its decision that he and his partner were attacked by “physically punching them and beating them with sticks” (D[97]). The Applicant’s evidence was that most of it was punching but he also remembers being hit on the back with a baton.
Consideration
Ground 1
In relation to Ground 1, it was a matter for the Tribunal to determine what weight to give to the alleged corroborative evidence and to determine the applicant’s credibility. The Tribunal provided rational, logical, and reasonable reasons in support of the adverse credibility findings. Those reasons are summarised above. Those adverse credibility findings were open on the material before the Tribunal.
The Tribunal is not required to refer to every piece of evidence before it. It is apparent the Tribunal regarded the applicant’s activities in Australia as ones engaged in to advance his application for protection rather than by reason of any ground enlivening the protection obligations under the Refugees Convention or in relation to complementary protection. The Tribunal did not disregard the applicant’s evidence in relation to his attendance at catholic services or in relation to health clinics. The Tribunal expressly referred to the former and it was not necessary for the Tribunal to refer to the latter. No jurisdictional error is made out by paragraph (a) in support of Ground 1.
It is a matter for the Tribunal to determine what weight to give to the evidence that was adduced in support of the applicant and the Tribunal rejected the applicant’s claims in relation to the death of his partner. Those adverse credibility findings were open for the reasons given by the Tribunal. No jurisdictional error is made out by Ground 1.
Ground 2
In relation to Ground 2, this seeks to attack the adverse credibility findings and asserts that the findings that are subject of legal unreasonableness all arose from misunderstanding or misconstruction of the evidence. There was no misconstruction or misunderstanding of the evidence made out. Further, for the reasons already given, the adverse credibility findings were open for the reasons given by the Tribunal and cannot be said to lack an evident and intelligent justification.
In relation to particular (a), the Tribunal clearly took into account the alleged incident involving another school boy and the adverse finding made by the Tribunal in that regard was open and both logical and reasonable. It was open to the Tribunal to make the adverse finding in respect of the applicant’s alleged homophobic attack and there was no inconsistency in that regard than accepting the applicant was admitted to a care unit. It was open to the Tribunal to take into account the absence of social media or reporting in respect of the alleged attack and/or in respect of the alleged charges. No misunderstanding or misconstruction of the applicant’s evidence is made out. In substance, Ground 2 seeks to invite this Court to engage in impermissible merits review. No jurisdictional error is made out by Ground 2.
Conclusion
Accordingly, the amended application is dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 24 January 2018
0
2