CDD15 v Minister for Immigration

[2016] FCCA 576

FEDERAL CIRCUIT COURT OF AUSTRALIA

CDD15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 576

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to take relevant considerations into account – whether the Tribunal failed to properly assess the applicant’s risk of serious harm – whether the Tribunal improperly instructed the applicant to modify his behaviour – whether the Tribunal applied the wrong test – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(2)(b), 91R, 476

Applicant: CDD15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2834 of 2015

Judgment of: Judge Street

Hearing date: 16 March 2016

Date of Last Submission: 16 March 2016

Delivered at: Sydney

Delivered on: 16 March 2016

REPRESENTATION

Solicitors for the Applicant: Mr A Silva
Silva Solicitors

Counsel for the First Respondent: Mr T Reilly

Solicitors for the First Respondent: Mills Oakley Lawyers

ORDERS

1. The amended application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2834 of 2015

CDD15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 24 September 2015 affirming the decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Fiji and his claims are assessed against that country.

2. The applicant was granted a Business Visitor Stream (FA600) visa on 25 September 2013 and arrived in Australia on 4 December 2013.  That visa was only valid until 4 March 2014.  On 3 March 2014 the applicant lodged an application for protection.  The applicant claimed to fear persecution by reason of his sexuality, being gay. 

3. In the initial statutory declaration in support of the applicant’s claims for protection the applicant made reference to nine different incidents, two of which are relevant to the way in which the applicant developed the argument in respect of ground 1.  The first incident occurred on 2 January 2013 outside a nightclub where in the first statutory declaration the applicant identified he was chased and beaten by the military and the police.  The second incident is one that happened on 26 July 2013 where the applicant said he was beaten at a nightclub. 

4. Those two incidents were expanded upon in the applicant’s second statutory declaration.  In respect of the incident alleged to have occurred on 2 January 2013 the second statutory declaration provides as follows:

   (19) On Friday 2/01/13 we were drinking at home and after 10 pm we went to the [O] night club which is in Suva City opposite City Library. There were three of us; myself, [J] and [V], who were my gay friends.

   (20) We were drinking inside the bar with other friends and their partners. After 2 am we three came outside and we were laughing and enjoying. The Police who were patrolling shouted at us “You Qauri, shameless bastards, go home. I said it is none of your business. They got off and chased us and caught us. They asked us to kneel down. They said to each of us say “I am a shameless Quari and I ask for mercy for my bad behaviour”. When I refused to say that they slapped me so hard that my ears started ringing and they told me I will have to kneel down till the morning if I don’t say that. I had no choice but to say that. Then they shouted at us runaway you silly Quaris we done want to see you anymore. We ran off.

5. In relation to the incident on 26 July 2013 the applicant second statutory declaration provides as follows:

   (21) I went to the “[I]” night club in Nadi around 7 pm. I was drinking by myself and my friend called and said she wanted to join me. She is a lesbian. When she came we continued to drink. There was this group of 4 couples, 8 people, four males and four females who were seated nearby.

   (22) They were making fun of me as I was wearing a tight jean and a butterfly vest. I could not take it anymore I went to them and said “Dont judge others whom you don’t know”

   (23) Police came and started punching me and insulting me calling me a useless Qauri and I lost consciousness. They were very nice to him. I was taken to the [N] police station and was locked up until evening 3 pm. I asked them why they didn’t do anything to the other guy who started punching me first after insulting me. They said shut up you, if you talk too much will kepp you for a few more days. Just run away and save yourself.

6. Both incidents were the subject of evidence before the Tribunal.  There are several difference in the version of events in the evidence of the applicant to the Tribunal in relation to the two incidents. The Tribunal accepted that the applicant had been mistreated in the two incidents in the manner described by the Tribunal.  The Tribunal, in that regard, had earlier set out the two incidents, the first on 2 January 2013, describing what occurred, and the second on 26 July 2013, describing what occurred.

7. In the Tribunal’s reasons, the Tribunal made reference to the evidence the applicant gave at the hearing, which the Tribunal found to be credible and plausible.  The Tribunal referred to the country information as well as the PAM3.  From the country information the Tribunal quoted material from a report dated 14 April 2015 that referred to the constitution of Fiji banning discrimination on the basis of sexual orientation and gender identity or expression and the repealing of laws criminalising homosexuality. 

8. That report also referred to the official treatment of LGBTI people being generally tolerant and made reference to some reports of discrimination in relation to access to state protection that had not been able to be verified.  The report expressed an overall assessment that LGBTI Fijians and those of heterodox gender identity are at a low risk of official discrimination and a moderate risk of societal discrimination.  The Tribunal also referred to a report of 2014 that referred to the constitutional provisions and also made reference to there being some societal discrimination against persons based on sexual orientation and gender identity, and the report noted (CB157):

   although there was no systemic discrimination.

9. The Tribunal made reference to the applicant’s background and where he had lived and proceeded to address the first incident in the applicant’s list of incidents.  The first incident was identified in both the applicant’s first statutory declaration and the second statutory declaration.  The Tribunal also referred to the applicant’s statements and the alleged instances of various uncles and cousins verbally and physically attacking him on certain occasions.  The Tribunal also referred from the chronology to the incident involving the applicant’s aunt and the number of instances where the applicant faced harassment and heavy-handed treatment from citizens and police in both Suva and Nadi. 

10. It was in those circumstances that the Tribunal turned to deal with 2 January 2013 incident in Suva and then addressed the incident in Nadi on 26 July 2013. 

11. Relevantly, the Tribunal made reference to the incident on 2 January 2013 as being a quite isolated incident in which there was some provocation by the applicant to the police.  In relation to the incident in July 2013 at Nadi, the Tribunal made reference again to this episode being isolated and peculiar to the immediate individual circumstances that included the applicant trying to reason with drunks. 

12. The applicant appeared before the Tribunal on 21 September 2015 to give evidence and present arguments and was assisted by an interpreter and his registered migration agent. 

13. The grounds of the amended application are as follows:

    (1) The Administrative Appeals Tribunal made jurisdictional error in that it failed to take relevant considerations into account in its decision, since it gave “no weight” to harmful incidents which the Tribunal itself accepted that the applicant had experienced

    Particulars

    The Tribunal stated explicitly in [30] at CB 162 that it gave no weight to:

    (i) [O] Club incident (see also [16] & [17] at CB 159-160;

    (ii) [I] Club incident; and

    (iii) Being placed in overnight lock-up by police.

    This is particularly so in the context of the Tribunal's finding in [18] at CB 160 which makes them vital in the applicant's case that:

    I accept on the evidence before me that homophobic attitudes exists amongst police and soldiers in Fiji and that these can come to the surface during episodes like the two bar-related incidents Mr [CDD15] has described

    (2) The Administrative Appeals Tribunal made jurisdictional error in that it failed to consider all the harm suffered by the applicant cumulatively in considering whether there is a serious risk that the applicant will suffer serious harm

    Particulars

    Although the Tribunal referred to in [26] at CB 162 about considering the claims separately and cumulatively and in [37] at CB 163 to considering all the facts in the case, it did not do that cumulatively.

    The Tribunal had the treated incidents as isolated, and appears to deal with them in isolated manner from the other incidents:

    (i) [16]- [O] Incident (CB159);

    (ii) [17]-[I] Incident (CB 160);

    (iii) [29]-Aunt's abuse (CB 162);

    (iv) [30]- [O] and [I] Incidents (CB162); and

    (v) [11] & [28] at (CB158 & 162 respectively) -Abuse from all three uncles and their sons.

    Nowhere does it appear that the Tribunal went through the process of assessing various harm of different nature cumulatively to consider whether they constitute serious harm. The Tribunal used the word “significant harm” as different from “serious harm” indicating some misunderstanding on the part of the Tribunal in the sense of requiring each of the incident of harm to be serious harm on its own.

    (3) The Administrative Appeals Tribunal made jurisdictional error in that it required the applicant to modify his behaviour contrary to the law

    Particulars

    (i) The Tribunal stated in [17] at CB 160 that:

    that the only behaviour he might have to modify in the event of return to Fiji is trying to reason with drunk people when they say hurtful things about him.

    See Trancript pg 16 Ln 18-29.

    The Tribunal thus required the applicant to not respond to drunk people who abuse him because he is gay, implying that he should stay quiet-and take the abuse.

    (ii) Tue Tribunal also required the applicant to go quietly when abused by the police based on his sexuality.

    See Transcript Pg 16 ln 42 to Pg 18 ln 20

    (4) The Administrative Appeals Tribunal made jurisdictional error in that it misunderstood what is meant by systemic and discriminatory conduct as in s91R and thus applied the wrong test

    Particulars

    The Tribunal stated in [5] at CB 157 that it concluded that the decision under review should be affirmed based on one of the matters it found and that is:

    There was some societal discrimination against persons based on sexual orientation and gender identity, although there was no systemic discrimination.

    See also [31] at CB 162.

    This finding was made because the Tribunal misunderstood what is meant by systemic and discriminatory conduct as in s91R. It appears that the Tribunal meant that the conduct had to be organized, methodical or by the state, whereas the conduct required was that it is non-random as explained in cases such as VSAI & Haji Ibrahim.

    (5) The Administrative Appeals Tribunal made jurisdictional error in that it failed to consider all factors relevant to whether it is reasonable to relocate to Suva or other cities

    Particulars

    The Tribunal stated in [32] at CB 162 that:

    I give weight in this matter to the evidence of Mr [CDD15]'s practical capacity to relocate to cities where the evidence in this case predominantly indicates that life for LGBTI persons is generally safe.

    It failed to take into consideration the following:

    (i) Discrimination in accessing state protection- [6] at CB 158 (3.110);

    (ii) Country information that states that discrimination is major issue (CB 91 );

    (iii) The Tribunal lacked of family support from male relatives;

    (iv) Harm experienced from the relatives;

    (v) The applicant's own experiences of harm in living in Nadi and Suva;

    (vi) The applicant is not wealthy to live in wealthier suburbs of Suva; and

    (vii) NGOs are cautious in undertaking public advocacy for gay people.

    (6) The Administrative Appeals Tribunal made jurisdictional error in that it made a finding about state protection without taking relevant matters into consideration

    Particulars

    The Tribunal stated in [32] at CB 162 that:

    I give weight in this matter to the independent evidence indicating access to state protection from persecution.

    (i) The Tribunal failed to consider country information it set out in [6] – 3.110 at CB 158.

    There are some reports of discrimination on the basis of sexual orientation or gender identity in access to state protection. While credible, DFAT was unable to verify; these reports.

    (ii) The Tribunal failed to consider the failure of state protection the applicant experienced, being locked up and also being harmed by the police.

14. Mr Silva, the solicitor for the applicant, contended that the incidents involved should be characterised as state persecution because of the involvement of the police.  The applicant’s argument in relation to ground 1 was advanced on the basis of what the Tribunal found at para.30 as follows:

    30. I accept that Mr [CDD15] was mistreated in the manners described in the [O] and [I] incidents. I accept that anti-gay prejudice came into play on both occasions. However, I find that these episodes arose in individual, arguably unique and isolated circumstances, both involving nightclubs where drinks are consumed and tempers and voices are sometimes raised, in which Mr [CDD15] respectively debated with a group of drunk men and told a police officer to shut up. I give no weight to either of these episodes and I give no weight in this matter to Mr [CDD15] having been placed in overnight lock-up after the second incident.

15. The applicant contended that these two incidents were of a kind that identified both a want of state protection as well as state persecution and it was alleged on that basis that it was not open to the Tribunal to give no weight to the two incidents. 

16. It is apparent from the Tribunal’s identification of the mistreatment of the applicant in the two incidents that the Tribunal was referring to the incidents in the manner described by the Tribunal.  That manner described by the Tribunal identified the isolated nature of those two incidents.  In those circumstances, it was open to the Tribunal to determine what weight to give the episodes.  The reference to the Tribunal in para.30 saying it gives no weight to either of these episodes cannot be said to lack an evident and intelligible justification.  Ground 1 is in reality an attempt to cavil with the merits of the review that it was a matter for the Tribunal to determine.  Ground 1 fails to make out any jurisdictional error.

17. In relation to ground 2, the applicant faced the difficulty that the Tribunal made express reference to having considered the applicant’s claims separately and cumulatively in para.26 of the Tribunal’s reasons.  Further, the structure of the Tribunal’s reasons is entirely consistent with the Tribunal taking into account the applicant’s claims and it was not necessary for the Tribunal to make findings in respect of each of the incidents identified by the applicant.

18. I note in this regard that counsel for the first respondent identified that there were incidents in the list of incidents by the applicant in respect of which no detail was provided or expanded upon by the applicant. There is no basis upon which it could be concluded that the Tribunal had failed to consider all the alleged harm suffered by the applicant cumulatively in determining whether the criteria under ss.36(2)(a) or 36(2)(aa) were met.

19. The solicitor for the applicant sought to criticised the reference to the incidents being isolated referred to in paras.16, 17 and 29.  It was a matter for the Tribunal to make findings in relation to the incidents and there was no jurisdictional error of the kind alleged in para.2 of the amended application. 

20. In relation to ground 3, this is not a case where the Tribunal made a finding that the applicant had to modify his behaviour for a Convention reason.  There was reference by the Tribunal in relation to the incident at Suva where the police wanted the applicant and his friends to go home quietly and quickly.  In this regard, the Tribunal noted that the incident did not stop the applicant going to the particular location with his friends, although the Tribunal noted that the applicant did cease to attend that venue because he moved for a while to stay with another person.

21. In relation to the Nadi incident, after referring to the applicant’s endeavour to try and reason with drunks, the reasons record that the Tribunal member had put to the applicant that the only behaviour he might try to modify in the event of return to Fiji is trying to reason with drunk people when they say hurtful things about him.  This was not a modification of conduct that gives rise to any jurisdictional error of the kind alleged in ground 3 of the amended application.  Nor does the reference to the applicant going quietly from the police rather than engaging with them and saying to a police officer, “Shut up”, give rise to any modification of conduct for a persecution reason.  Ground 3 fails to make out any jurisdictional error. 

22. In relation to ground 4, the applicant’s argument was founded on the reference in the country material referred to by the Tribunal in para.5 to there being no systemic discrimination.  The argument initially appeared to advance the proposition that the reference to “For the following reasons” in para.5 should be read as if the indented material below para.5 was the basis for the conclusion and decision of the Tribunal.  The Tribunal’s reasons are not to be read with a keen eye for error.  The reference to “For the following reasons” in para.5 are a reference to the following material in para.5 through to para.40. The reference to the indented second paragraph in para.5 does not identify any basis upon which it could be concluded that the Tribunal had misunderstood the concepts in s.91R or had applied the wrong test. Ground 4 fails to make out any jurisdictional error.

23. In relation to ground 5, this was not a case where the Tribunal made findings concerning relocation of a kind within s.36(2)(b) of the Act. The reference by the Tribunal in para.32 to the applicant’s practical capacity to relocate to cities arises out of the applicant’s history in which he did relocate to different cities and does not give rise to any jurisdictional error. The submissions of the solicitor for the applicant sought to identify alleged matters that were not taking into consideration in support of ground 5.

24. It is clear that the Tribunal referred to the whole of the evidence before the Tribunal in coming to the finding that the applicant’s fear of Convention-related persecution was not well-founded.  I accept the first respondent’s submissions that the Tribunal does not have to mention every item of evidence before it.  I also accept the first respondent that, in substance, ground 5 is an impermissible challenge to the merits of the matter which were for the Tribunal to determine.  Ground 5 fails to make out any jurisdictional error. 

25. In relation to ground 6, the solicitor for the applicant contended that the two incidents referred to above identified not just state persecution, but a want of state protection and criticised the reasoning of the Tribunal in the first sentence of para.32.  Paragraph 32 refers to the independent evidence and from paras.4 and 6 of the Tribunal’s reasons this can be seen to be a reference to the constitution of Fiji which bans discrimination on the basis of sexual orientation and gender identity or expression as well as the reference to the official treatment of LGBTI people being generally tolerant and the reference to such persons being at a low risk of official discrimination.  

1. The reference to official discrimination is clearly a basis upon which the finding made by the Tribunal in para.32 was open in light of the other evidence.  There is no substance in the contention that the Tribunal failed to take into account part of the material quoted in para.6.  It is also apparent that the Tribunal had identified the incidents involving the police in relation to the two episodes that the Tribunal concluded no weight should be given to those episodes in respect of the mistreatment of the applicant as described by the Tribunal.  Ground 6 is, in substance, an impermissible challenge to the adverse finding by the Tribunal in relation to the country information.  Ground 6 fails to identify any jurisdictional error.

2. The amended application fails to make out any jurisdictional error.  The amended application is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 5 April 2016