CBM19 v Minister for Immigration

[2020] FCCA 2287

FEDERAL CIRCUIT COURT OF AUSTRALIA

CBM19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2287

Catchwords:
MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed

Legislation:

Migration Act 1958 (Cth)

Cases cited:

N/A

Applicant: CBM19

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 488 of 2019

Judgment of: Judge Vasta

Hearing date: 23 July 2020

Date of Last Submission: 23 July 2020

Delivered at: Brisbane

Delivered on: 23 July 2020

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. That the Application filed 22 May 2019 is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

3. That the Applicant pay the costs of the First Respondent fixed in the sum of $3,737.00.

IT IS NOTED:

A. That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

B. Order has been amended pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 488 of 2019

CBM19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 23 April 2019 the Administrative Appeals Tribunal (“the AAT”) affirmed a decision not to grant the Applicant, CBM19, a protection visa. On 22 May 2019, the Applicant asked this Court to review that decision. The matter first came before Registrar Lynch on 19 June 2019. On that date, Registrar Lynch made orders setting the matter down for a show-cause hearing in December 2019.

2. On 20 June 2019, the next day, a senior legal case manager from the Queensland registry of the Federal Court sent the Applicant an email. The email attached a copy of the orders of Registrar Lynch, and reiterated when the Applicant’s hearing was going to be heard. The email also said this:

   I also attach a brochure for an organisation called LawRight. They provide free legal advice to self-represented litigants, and may be able to assist you with your application.

   The email continued:

   I also attach a brochure regarding migration applications in the Federal Circuit Court in Punjabi.

   It ended with the sentence:

   Please do not hesitate to contact the registry if you have any queries.

3. The Applicant was contacted by my Chambers and told that, because of problems in my calendar, the hearing would be moved to the date of 23 July 2020. On 30 June 2020, the Applicant emailed the registry. The email read:

   Dear Madam/Sir. I requested Federal Court on 3 June for a pro bono lawyer for my legal matter, but I did not hear any answer back from there, and my Court hearing is next month on 23 July, which is very urgent for me, and without lawyer, it will be very hard to fight my case, and there is not much time for me to get help from somewhere else. As I tried all legal firms, no one trying to help me, I would like to humble request to the honourable judge to order for pro bono assistant.

4. My Associate emailed the Applicant on 1 July reiterating that the matter was listed, and noting that the Applicant had been sent a previous notice by the registry. The email continued:

   We ask that you please check your emails, otherwise please find the RAILS website and link below for your information. You may also enquire with LawRight with respect to pro bono legal assistance. Their details are as follows.

   The RAILS website was linked and the pro bono legal assistance telephone numbers and website was also linked. The last sentence of the email read:

   We advise that it is the Applicant’s responsibility to make enquiries with respect to pro bono legal assistance.

5. The Applicant sent an email back the same day which simply read:

   I did not get any email on 20 June 2019. I’m requesting you can you please send me that mail again.

   My Associate emailed back 13 minutes later simply saying:

   The information you have requested is in the email we sent you today.

6. On 12 July 2020, the Applicant emailed the registry and my Associate. He said in that email:

   I write to you seeking pro bono assistance in my migration matter.

   He explained that he contacted all of the firms that were given to him by the registry. He said:

   I have contacted all of these listed firms, and also few others which were suggested by fellow detainees. Unfortunately, all of my efforts were unsuccessful.

   He wrote:

   Please find a list of following firms I already contacted for my matter.

   (1) Pacific Connect.

   (2) RAILS.

   (3) LawAccess

   (4) LawRight

   (5) Legal Aid

   (6) Human Rights

   (7) Red Cross

   On 3 June 2020, I sent an email about a request for pro bono assistance from Federal Court chamber. As a response, I received an email which describes, ‘contact RAILS and Queensland Pro Bono Referral Solicitors’. As per instructions, I contacted them, but no one came forward to help me in matter. Furthermore, due to lack of representation, I am looking for an extension of time on the matter and request respected judge to make an order for a pro bono representative from the chamber.

7. My Associate replied, the next day, saying that she confirmed that the matter remained listed for hearing on today’s date. She wrote:

   You may seek to press your application for an adjournment before the judge on this date.

   She said:

   However, we note that correspondence was sent to you on 20 June 2019 with respect to pro bono assistance, and then again at your additional request on 1 July 2020.

8. The Applicant is in detention at the Yongah Hill Detention Centre and has been in detention for over two years. He is appearing by phone, and this hearing is being conducted by Global Team Meets, which is a phone application that has been used since March for all migration matters in my Court. The Applicant has been assisted by an interpreter, notwithstanding that he has a fairly good command of oral English.

9. There had been problems in that he is in a confined space at Yongah Hill, and that he spoke somewhat loudly and excitedly at times. This caused an echo which sometimes hampered the interpreter in understanding what the Applicant had said, and there were a number of occasions where the interpreter had to clarify what it was that the Applicant was conveying to the Court.

10. He told me that he needed a lawyer and that he feared that this application would not go well for him because he was speaking on the phone and he did not have a lawyer. I explained that I was listening to his matter, and that anything he said, I would be taking into consideration. He said to me on two occasions that, as he was making submissions, that he cannot explain on the phone. When I asked him why he could not explain on the phone, he simply replied, because he did not have a lawyer.

11. I made special effort to monitor the situation at all times to ensure that the Court was treating the Applicant fairly. I explained to the Applicant that there is no right to a lawyer, and that if a law firm did not want to represent him, then that was nothing that the Court could do. I should say that apart from the bald assertions made in the emails that the Applicant sent, there was no other material before the Court, such as emails from these firms, explaining why it was that they could not assist him, but that is a peripheral matter.

12. I went ahead with the matter because of the history of it, and the fact that the Applicant is in detention, and the matter simply needs to be heard now. The Applicant was able to give full submissions, and quite forcefully make his point as to why he believes that the AAT was in error.

13. The Court considered what the AAT had detailed in their reasons. The background to the matter is that the Applicant is a 21 or 22 year old man from an area in the Punjab in India. He is of the Sikh faith and is of Punjabi ethnicity and speaks Punjabi, Hindi and English. He is a single man whose father is deceased and whose mother and brother still live in India. He completed his education in India.

14. He came to Australia on 21 December 2016 under a student visa, which had been granted on 29 November 2016. That visa was to expire on 1 June 2018. The Applicant was charged with a number of criminal offences in early 2018. Those offenses included sexual assault of a female, possession of child exploitation material, and committing an indecent act.

15. After being charged with those offences, his visa expired and he was taken into detention. He claimed that he pleaded guilty to the offences on 30 November 2018. He told the AAT that he “did a deal” where he would stay in detention upon pleading guilty, and he would therefore avoid jail. In his submissions before me, he said that the deal was that if he went back to India, they would drop all the charges. He said that the reason he was offered this deal was that the prosecution authorities wanted to kick him out of the country.

16. Obviously, the charges were not dropped, and he did plead guilty, but he was not actually imprisoned. He told me in his submissions that he was going to say not guilty, but that his lawyer said that it would be best if he took the deal, and that is why he pleaded guilty. He did stay in detention, and not in jail, after he pleaded guilty on 30 November 2018.

17. On 4 January 2019, the Applicant made the application for the protection visa which is the subject of these proceedings. The detail of his application is somewhat sparse, but his claims are as follows.

18. He said he cannot return to India. He said in India, he was taunted about his sexual orientation and he feels unsafe in India. He said that he was harmed, tortured and even persecuted at every occasion by the community. He claims that he was beaten by crowds and prevented from attending religious places, and he was an outcast from society.

19. He claimed that he attempted to seek help from the authorities, but no action was taken, because these matters are handed by the community members. He claimed that he will be persecuted, tortured and harmed by the community if he returned to India. He claimed that he cannot relocated within India, as he is bisexual, and his sexual orientation is not common in Indian society and not accepted by the wider Indian community.

20. The Applicant handed, at the hearing, a number of articles that he had obtained online, which dealt with the problems faced by the LGBTIQ community in India, to the AAT. The Tribunal also had regard to a great deal of country information, including DFAT reports on India and Nepal.

21. During the hearing, the Applicant explained his situation. He said that he was bisexual and had a preference for both males and females. The Tribunal asked the Applicant when he first discovered an interest in males. He said that he was aged about 9 or 10, but became sexually active when he was 11. The Tribunal enquired as to whether that meant he engaged in sexual intercourse at 11 years of age, and the Applicant replied that it was a “kind of” intercourse, with no further elaboration.

22. The Tribunal asked the Applicant how long the relationship lasted, and the Applicant said that it was a five-year relationship, but he has now lost contact with that person. The Applicant stated that as a result of his behaviour, his family had to move to a different city 70 to 80 kilometres away. He said that they stayed there for eight months, and then they moved to another city 10 to 12 kilometres away. The Applicant said that they stayed at that city for seven years.

23. The Tribunal then worked backwards, noting that the Applicant was 18 years old when he arrived in Australia. According to what the Applicant was saying, he had lived away from the home village for nearly eight years by that time. He was asked then how he could have maintained a sexual relationship with his friend in his home village for five years. The Applicant said that, whilst they lived away from the home village, they frequently returned to their home village, and during that time he would re-engage with his friend.

24. The Tribunal noted that the mother and brother were now living back in the home village. The Tribunal stated that it appeared then that neither his mother, nor his brother, were living in any shame or dishonour because of anything the Applicant had done. The Tribunal noted its concern that the Applicant was saying that the family had to leave the home village because of his behaviour, yet they regularly returned there.

25. The Tribunal asked the Applicant about his other relationships. The Applicant said that he did not have any girlfriend in India, but he did have a girlfriend whilst he was in Australia. He said he had the one male partner in India and had also had a male partner whilst he has been in Australia. He said that he had two other casual relationships with men since he had come to Australia.

26. The Tribunal asked the Applicant whether he had any evidence at all of these relationships. The Tribunal asked whether he had any photos of any of his partners, or had any letters or statements by them that supported his claims. The Applicant was asked how he met these people, and he said he met them on dating websites, but he had no evidence of the websites or of the connections on those websites. He said that he found them on Google.

27. The Tribunal asked the Applicant about the harm that he suffered in India, and he said that he had been beaten up by schoolboys, but these were not boys who went to his school, because he had kept his relationship with his friend a secret. The Applicant told the Tribunal that he only was beaten up in his home village, and not in any of the other places that he lived. He said that whenever the family would return to his home village, then he would meet up with his friend, and then he would be beaten up again. The Applicant had no evidence of any injuries or torture, or complaints or reports that he made of these beatings.

28. The Applicant explained that if he had a relationship with a girl, it would be accepted, but if he has a relationship with a boy, he would be beaten up and have to leave the village. The Tribunal went through the material that the Applicant had given it, and noted that some of the articles referred to suicide rates. The Applicant told the Tribunal he did not want to be someone who committed suicide. The Applicant said that if he returned to India, he would not hide his bisexuality, and that as a result, he would be beaten up.

29. The country information from the DFAT report was discussed with the Applicant. The assessment of DFAT was that:

    …people who identify as LGBTIQ face a moderate risk of official and societal discrimination, and may face societal violence.

    The Tribunal asked the Applicant about relocating, and suggested he could move to Mumbai or Delhi, each of which have a more open and tolerant community. The Applicant agreed that he could be more open in Mumbai or Delhi, but only if he was rich. The Tribunal then discussed further information from the DFAT report, and a DFAT conclusion, which was that:

    …individuals seeking protection from discrimination or violence had a wide range of viable internal relocation options, although these may be more limited for some individuals, depending on their personal circumstances.

30. The Applicant replied to that information that someone like him cannot live anywhere else in India. The Tribunal noted that the Applicant had moved to Australia on his own, had found a job immediately, and had integrated into the community and had made friends. The Tribunal suggested that the Applicant could do that also in another city in India.

31. The Tribunal then put to the Applicant that he had a right to enter and live in another country, that being Nepal. The Applicant said that he had never been to Nepal, but that it would be exactly the same as India. The Tribunal then put to him the DFAT report from Nepal that suggested that Kathmandu was a very cosmopolitan city with liberal views, and that DFAT assessed that LGBTI people face a low risk of official discrimination and harassment, and a moderate risk of societal discrimination in Nepal.

32. The Applicant did not accept any of that information, and pointed out that there was a big difference between what is written in reports and what reality is.

33. The Tribunal asked the Applicant why it had taken from December 2016 to January 2019 to make a visa protection application. The Applicant told the Tribunal that he did not know about protection visas, and it was only a friend in detention who told him about them. The Tribunal explained to the Applicant that the fact that it still took him seven months after being put into detention to make an application is the type of consideration it makes when assessing the genuineness of a claim.

34. The Tribunal then made an assessment of the claims and evidence of the Applicant. The Tribunal said that it had reservations about the veracity, credibility and plausibility of the Applicant’s claims, and accepted that he wished to stay in Australia to make a future for himself.

35. The Tribunal doubted the genuineness of his claims and that one reason was that it took him so long to make his protection claim. The Tribunal noted that, notwithstanding the Applicant said that he did not know about protection visas, he was able to obtain a student visa to travel to Australia from India. The AAT noted that the application was not made until the Applicant was well on the pathway of returning to India.

36. The AAT did not accept the explanation that he did not know about protection visas, because he was educated, attending a university and had obtained a student visa. The Tribunal said that it suspected that the Applicant applied for a protection visa because he had no other visa options. The Tribunal suspected that the Applicant’s claims had been totally fabricated to satisfy protection visa criteria.

37. As to his evidence, the Tribunal found that it was vague and lacking in detail. They referred to the generality of what it was that he was claiming he did. They referred to the fact that the Applicant could not even provide the names of any of his former partners, either male or female, and did not have any photos or places that he had been, or letters or statements from these former partners.

38. The Tribunal noted that he had no evidence of any injuries that he claimed to have suffered in his beatings, and there were no medical records, or records of complaints made to authorities. The Tribunal noted that the evidence he gave of having to move from the village simply did not make sense.

39. In the end, the Tribunal did not accept that the Applicant was a bisexual person. Because of that, the Tribunal found that he was not a member of a particular social group, and so therefore, he did not meet the criteria of the refugee definition.

40. The Tribunal then looked at the complementary protection criteria, and whether there were substantial grounds for believing that, as a consequence of the Applicant being removed to India, there was a real risk he would suffer significant harm. The Tribunal did not accept that the Applicant was bisexual, therefore it did not accept that the Applicant would be subject of beatings and torture.

41. The Tribunal did not accept that he would be subjected to any form of harm, either physical or mental. The Tribunal said that for the sake of completeness, it also found that, if the Applicant had any concerns about returning to Punjab, it would be reasonable for him to relocate to another area of the country.

1. The Tribunal then said that, again, for the sake of completeness, and only in circumstances where the Applicant may subsequently choose to become gay or bisexual in the future, that they would look at whether he had the right to enter and reside in another country. The Tribunal found that the Applicant can reside in Nepal. The Tribunal found that there were no circumstances in Nepal that would give rise to an objective fear of harm to the Applicant if he were to reside in Nepal.

2. Therefore, even if the Applicant were to be subject to serious harm or discrimination if he returned to India, there was another country that he could live in where that fear would not exist. As there is such a country, under the legislation, Australia would not owe protection obligations to the Applicant.

3. So, even though the primary finding of the AAT was that the Applicant was not bisexual and therefore did not fit into the criteria for protection, that even if he were, he would still have a right to live in Nepal, which meant that Australia did not owe him protection obligations.

4. For those reasons, the Tribunal affirmed the decision of the delegate.

5. The grounds of the application number 12 in all. Most of those grounds have no particularity whatsoever, and some of them are simply statements. I invited the Applicant to talk to these grounds and make any other submissions that he wished to make. The first ground was

   1. The Second respondent in making the decision did not comply with rules of natural justice and I the applicant was denied procedural fairness.

6. With regard to that ground. in and of itself, the Tribunal is required to comply with the statutory framework in part 7 regarding protection visa hearings.

7. The Applicant said that all of his grounds were related to this particular ground. It was obvious that the Applicant was talking about notions of natural justice and procedural fairness rather than the statutory framework in the Migration Act 1958 (Cth). I will not read all 12 grounds into the record, but if it is that I am required to reduce these reasons to writing, I will include the 12 grounds in those reasons. They are as follows below,

   2. The decision of the second respondent should be quashed made on 23 April 2019.

   3. The Second respondent decision included the error of the law.

   4. The Second Respondents took into account irrelevant considerations.

   5. The Second Respondent decision was unreasonable.

   6. The Second respondents failed to took into account the relevant considerations.

   7. The decision of the Second respondent failed meets the refugee law when making the decision.

   8. I believe the tribunal made an error in coming to its decision due to my inability to prepare and present a proper case and therefore a meaningful opportunity to be heard by denying me procedural fairness.

   9. The Second respondent also made an error by finding that I do not engage the protections afforded at s.36(2)(a) of the act and s.5J and s.36(4) respectively.

   10. The Second respondent has not considered each of the integers of my claims of the serious harm discussed with respects to my claims for refugees protection in the context of the

   11. The Second respondents’ conclusion in the decision is vague and is without considering the facts of my country report information.

   12. The acknowledged difficulties in preparing and presenting my  case I am from a different social, ethnic and cultural background and the difficulties I have with English language. Moreover, I believe the decision maker misinterpreted their obligations to consider representations I made to mitigate my offending behaviour as non-refoulement obligations.

8. The Applicant’s argument was that the Tribunal did not engage with the complementary protection criteria. He submitted to me that he agreed that he was not a refugee.

9. He said that he does meet the complementary protection criteria, and that this was not properly considered by the AAT. He claimed that the decision that was made by the AAT had been tainted by his criminal convictions, and that instead the Tribunal should have realised that his criminal convictions and his application for a protection visa were two separate matters.

10. He said that the Tribunal doubted his credibility, and asked me, rhetorically, how he was going to provide any proof of his claims. He said that because he did not know he would have to prove those things, he did not have time to prepare, and that he did not have a lawyer.

11. He said when he was asked for more time, it was not given to him. He said that his story had not been considered properly by the AAT. He said that he could not move anywhere in India, and he could not live there, to use his words, “nicely”. He said that the AAT did not look at what would happen to his life or his mental health if he had to go back to India.

12. With regard to his not applying for the visa earlier, he said that he did not know that he could have applied for a protection visa. He said that he kept talking about the harm he was going to face, but that the Tribunal was not listening to him. He said that the Tribunal kept telling him that he could move to another state, but the country is the same. The risk would be the same anywhere in the country.

13. He said that he gave the AAT the articles about what would happen to LGBTIQ people, but the AAT would not consider them. He said that he did not want to go back to India and be tortured or continually beat up. He said that he might commit suicide six or 12 months down the track if he was removed to India and had to endure what he had endured.

14. He said he would be treated the same as he was before, and for his safety, he wanted to live here. In reply to submissions made by the Minister, he said that he had spoken to an agent, it would seem, a visa agent in India, and explained his situation, and that that agent had told him that a student visa was his best option, and he had not spoken to him about protection visas.

15. These were the claims that the Applicant made in trying to talk to each of the 12 grounds, plus any other matter that I had invited the Applicant to address the Court upon.

16. As one can see from what the Applicant has said, it has been an attempt to engage the Court in an impermissible merits review.

17. When one looks at what the Applicant has submitted to the Court, it really is an attempt to engage the Court in an impermissible merits review. There are some matters that I should specifically address.

18. The Applicant claimed that the Tribunal had not engaged in the complementary protection criteria assessment. From my recitation of the aspects of the AAT reasons, it is clear that the AAT did engage with this matter.

19. The Applicant claimed that the decision had been tainted by his criminal convictions. While the Tribunal did ask about those matters, it was because the fact of those matters were an integral part of the history of the matter. The Tribunal noted that the timing of the application for protection was after the Applicant had been convicted of the criminal offences. This was proper for the Tribunal to do in assessing the genuineness of the claim.

20. The Tribunal noted that the Applicant had said that he had only one female partner in Australia, and yet noted that the Applicant had been convicted of the criminal offence of sexual assault of a female. Whilst this was proper for the AAT to note, it was not a matter that figured in the ultimate reasons for rejecting the Applicant’s claim of bisexuality.

21. I cannot see how this decision has been tainted by the criminal convictions. The Applicant is correct that these are two separate matters, and the Tribunal needed to concentrate on the protection claim. This is exactly what the Tribunal did do.

22. The Applicant, in his submissions, claimed that he had asked the AAT for more time to be able to prove these matters that the AAT asked about. This was the first time that such an allegation had been made. It certainly was not part of the grounds of the application. There was no evidence that the Applicant had asked the AAT for more time to prove the matters of which the AAT asked the Applicant. This claim must be rejected.

23. All of the other matters that the Applicant raised really, I take, were a submission that upon the whole of the evidence, it was not open for the AAT to reject his claim of being bisexual, and therefore, to reject his claim that he would be harmed if returned to India.

24. However, upon looking at the whole of the decision, it seems to me that such a conclusion was well and truly open on the evidence before the Tribunal.

25. This therefore leaves me to the conclusion that this application does not raise an arguable case for the relief claimed and cause has not been shown.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 21 August 2020.