CFF22 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 200

Federal Circuit and Family Court of Australia

(DIVISION 2)

CFF22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 200

File number(s):	MLG 1469 of 2022
Judgment of:	DEPUTY CHIEF JUDGE MERCURI
Date of judgment:	16 March 2023
Catchwords:	MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal –  Protection (Class XA) (subclass 866) – claims of unreasonableness and illogicality – claim that Tribunal did not consider applicant’s claims – where applicant claims to fear harm due to sexuality, criminal convictions and status as a failed asylum seeker – where the Tribunal’s findings were reasonably open on the evidence before it – where applicant’s claims lacked particularity – consideration of whether Tribunal failed to afford applicant procedural fairness – where Tribunal validly invited applicant to hearing to present evidence and arguments – no jurisdictional error established – application dismissed with costs.
Legislation:	Migration Act 1958 (Cth), ss 422B, 424A
Division:	Division 2 General Federal Law
Number of paragraphs:	57
Date of last submission/s:	13 February 2023
Date of hearing:	13 February 2023
Place:	Melbourne
Counsel for the Applicant:	The Applicant appeared in person
Solicitor for the First Respondent:	Ms N Bosnjak of Mills Oakley

ORDERS

MLG 1469 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CFF22

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:	16 March 2023

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.

2.The application filed on 28 June 2022 be dismissed.

3.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)

REASONS FOR JUDGMENT

DEPUTY CHIEF JUDGE MERCURI:

Introduction

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 24 May 2022.  By its decision, the Tribunal affirmed the decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’) to refuse the applicant’s application for a Protection (Class XA) (subclass 866) visa (‘protection visa’).

   Background

2. By way of background, the applicant is an Indian citizen.[1]

   [1] Court book at page 64.

3. On 1 September 2013, the applicant initially arrived in Australia on a student visa.[2]  On 24 August 2015, that visa was ultimately cancelled.[3]

   [2] Court book at page 64.

   [3] Court book at page 64.

4. On 21 July 2016, the cancellation decision was affirmed in a review sought by the applicant.[4] In August 2016, the applicant then sought judicial review of the cancellation decision and on. 4 March 2020, this was resolved in the Minister’s favour.[5]

   [4] Court book at page 64.

   [5] Court book at page 64.

5. From 18 February 2021 to 9 March 2021 the applicant was imprisoned for theft, robbery and break and enter.[6]   In July 2021, the applicant was convicted of ‘arson under drug influence’ and sentenced to a further 105 days of imprisonment.[7]  In July 2021, the applicant was transferred into immigration detention.[8]

   [6] Court book at page 18.

   [7] Court book at page 18.

   [8] Court book at page 64.

   Protection visa application made on 2 December 2021

6. It was against this background that the applicant lodged his protection visa application on 2 December 2021.[9]  In his application, the applicant states that he ‘left…(his) country on student visa to pursue further study.’[10]  He goes on to claim that, if he were to return to India, neither his parents nor his community or relatives would not accept him because of his sexuality.  He states that his parents and friends ‘made  fun of me and abused me verbally and threatened me’ when he disclosed his sexuality to them, and that his ‘relative and … father threatened me that if I come back to India, they will find me and kill me as I have ashamed them in the community by being a gay’.[11]

   [9] Court book at page 36.

   [10] Court book at page 16.

   [11] Court book at page 17.

7. On 24 February 2022, the delegate refused the applicant’s protection visa application.[12] 

   [12] Court book at pages 63 to 69.

   Application for review at Tribunal on 25 February 2022

8. On 25 February 2022, the applicant sought a review of the delegate’s decision.[13]

   [13] Court book at page 70 and following.

9. On 7 April 2022, the applicant was invited to attend a hearing before the Tribunal to be held on 20 May 2022.[14]   In his ‘Response to hearing invitation’ form, the applicant indicated that he would be relying upon additional documents at the hearing and stated ‘I will provide written submission and other evidence’.[15]

   [14] Court book at page 86.

   [15] Court book at pages 97 to 99. 

10. On 25 May 2022, the Tribunal handed down its decision affirming the delegate’s decision to refuse the applicant’s application for a protection visa.[16]

    [16] Court book at page 104 and following.

    Tribunal decision

11. The Tribunal’s decision record dated 24 May 2022 is at pages 105 to 112 of the court book.

12. Relevantly, after setting out the criteria which an applicant must satisfy to qualify for a protection visa, the Tribunal set out its considerations of the applicant’s claims at paragraphs [12] to [23].

    Claim of persecution due to sexuality

13. At paragraphs [24] to [31], the Tribunal set out its findings in relation to the applicant’s claims to fear harm on the basis of his sexuality.  The Tribunal ultimately concluded that the applicant was not a homosexual and, on this basis, did not face a ‘real chance of serious harm from his father, relatives, the community or anyone else’[17] on his return to India as claimed.

    [17] Tribunal decision record dated 24 May 2022 at paragraph [31].

    Claims of persecution due to criminal convictions and failed asylum seeker status

14. At paragraphs [32] to [37], the Tribunal considered whether the applicant faced a real risk of harm on his return as a result of his criminal convictions whilst in Australia or as a returning failed asylum seeker.

15. Relevantly, the Tribunal had regard to the following:

    (a)the applicant confirmed that his criminal sentences in Australia are complete and his criminal matters are finalised;[18]

    (b)given that the applicant said he does not hold concerns about returning to India due to his criminal history in Australia, the Tribunal found the chance the applicant would face serious harm from relatives and/or the community due to his offending on return to India to be remote for the reasonably foreseeable future;[19]

    (c)country information indicated that double jeopardy is not imposed upon Indians with expiated sentences abroad and the fact that the applicant completed his sentences in Australia led to the Tribunal being satisfied that the applicant would not be of adverse interest to Indian authorities upon return to India; and

    (d)further country information indicated a lack of evidence of mistreatment of returnees, including failed asylum seekers, by the Indian authorities.

    [18] Tribunal decision record dated 24 May 2022 at paragraph [33].

    [19] Tribunal decision record dated 24 May 2022 at paragraph [34].

16. For the reasons given, and having regard to relevant country information, the Tribunal concluded that the applicant does not face a real chance of serious harm from the authorities on return to India, either as a returnee, a failed asylum seeker, or a failed asylum seeker with a criminal record in Australia. As a result, the Tribunal concluded at paragraph [38] that the applicant did not satisfy the criterion set out in section 36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’).

17. The Tribunal also considered whether the applicant faced a real risk of significant harm on the grounds advanced so as to engage Australia’s complementary protection obligations. For similar reasons to those discussed above, the Tribunal concluded that he did not.[20]

    [20]  See Tribunal decision record dated 24 May 2022 at paragraphs [41] to [42].

18. Consequently, the Tribunal affirmed the delegate’s decision to refuse the applicant a protection visa.[21]

    Proceedings in this court

    [21] Tribunal decision record dated 24 May 2022 at paragraph [46].

    Hearing on 14 November 2022

19. When the matter came before me for hearing on 14 November 2022, the applicant sought an adjournment on the basis that he had not had a chance to obtain legal advice.  In circumstances where the application was for a protection visa, the application had been filed in June 2022 and then listed relatively quickly, I found it appropriate to grant an adjournment of the hearing to 13 February 2023 to allow the applicant time to seek legal advice.

20. I further made orders permitting the applicant to file and serve any amended application with proper particulars, any written submissions and any further evidence upon which he sought to rely.  Notwithstanding these orders, no further material was filed by the applicant.

    Hearing on 13 February 2023

21. When the matter came on again for hearing before me on 13 February 2023, the applicant appeared on his own behalf and was assisted by an interpreter in the Punjabi language.

22. The applicant confirmed that he had not filed any amended application or other material.  After explaining the nature of the proceedings before me, and in particular that the role of the court in a judicial review application is limited to considering whether the Tribunal, in making its decision, engaged in a jurisdictional error, I invited the applicant to speak to his application and in particular to expand upon the grounds of review in his application. 

23. I will set out the further submissions made by the applicant in dealing with each ground in turn.

24. However, I note that, in essence, the applicant stated that he provided the Tribunal with information in support of his claims, which the Tribunal did not accept, and to the extent that the Tribunal requested further evidence and documents from him, he stated that he was not able to provide these as he was in detention at the time.

25. The applicant also stated that to the extent that there was a delay in making his application for a protection visa, this delay was explained by the fact that he only became aware of the risk his family and relatives posed to his life after he had disclosed to them that he was gay.  This disclosure only occurred in early 2021 and his application for a protection visa was made relatively shortly thereafter.

    Grounds of review

26. In his application to this court, the applicant raised three grounds of review.[22]

    [22] Originating application filed on 28 June 2022.

27. I will now turn to address each ground in turn.

    Ground 1

28. By ground 1, the applicant states that the Tribunal acted unreasonably.

29. When asked what he wished to say about this ground, the applicant said that he raised all of the relevant issues before the Tribunal, but the Tribunal said that he had not provided sufficient information.   The applicant further said that he was asked to provide proof of what happened to him and with his family, but he was in detention so he was not able to provide any further information.

30. It was submitted for the Minister that it cannot be said that the Tribunal acted unreasonably or illogically in reaching its finding that the applicant did not face a real chance or a real risk of harm in India.[23]  Moreover, it was further submitted that each of the Tribunal’s findings had a logical and reasonable basis.

    [23] Minister’s Outline of Submissions filed on 31 October 2022 at paragraph [19].

31. For the following reasons, I accept the Minister’s submissions and find that the Tribunal’s conclusions were reasonably open on the evidence before it, and further, that the Tribunal in its reasons set out the basis on which those conclusions were reached.

32. The Tribunal in its decision record set out the applicant’s claims at paragraph [13]. At paragraph [14], the Tribunal then outlined the concerns that the delegate had about the lack of specificity in the applicant’s claims arising from the evidence he gave at his protection visa interview. The Tribunal then set out the applicant’s claims as they were before the Tribunal at paragraphs [15] to [22] of its decision record.

    Claim of persecution due to sexuality

33. In particular, the Tribunal notes the applicant’s claims arising from his disclosure to his father that he was gay in March 2021,[24] including in particular that his father has threatened to kill him if he returns to India.

    [24] See Tribunal decision record dated 24 May 2022 at paragraphs [18] and [19].

34. At paragraph [24], the Tribunal notes that in considering the applicant’s claims to fear persecution as a gay man from his father, relatives and community if he were to return to India, it must first determine whether in fact the applicant is a homosexual as claimed.

35. In considering this issue, the Tribunal went on to state that the applicant’s claims about how he came to realise he was homosexual to be vague and lack details.[25]  For example, in relation to the applicant’s claim that he was teased by friends when he disclosed that he was gay to them, the Tribunal noted that the applicant did not provide any details about who these friends were other than to say they were Indian and that one of them was female.[26]  Additionally, the applicant did not detail the circumstances in which he made this disclosure.

    [25] Tribunal decision record dated 24 May 2022 at paragraph [25].

    [26] Tribunal decision record dated 24 May 2022 at paragraph [25].

36. The Tribunal also had regard to the fact that, on the applicant’s own evidence, although he asserts that he is homosexual, he had no sexual encounters or relationships with men, including in the eight years that he was in Australia.[27]

    [27] Tribunal decision record dated 24 May 2022 at paragraph [26].

37. The Tribunal was also concerned about some of the discrepancies in the applicant’s evidence about the threats made to him.[28]  Relevantly, the Tribunal was concerned about the fact that the applicant did not make his claim for a protection visa until December 2021, despite his evidence that he knew he was homosexual since he was 15 years old and that he was also aware that LGBT persons in India faced discrimination and mistreatment.  The applicant provided a response to this concern during the hearing, but the Tribunal was not persuaded by the applicant’s explanation.[29]

    [28] Tribunal decision record dated 24 May 2022 at paragraph [28].

    [29] Tribunal decision record dated 24 May 2022 at paragraph [30].

38. Ultimately, having regard to all of these matters, the Tribunal did not accept that the applicant was a homosexual or that his family or friends in Queensland had verbally abused and/or threatened him.[30]

    [30] Tribunal decision record dated 24 May 2022 at paragraph [31].

39. These findings were reasonably open to the Tribunal on the material before it.  To the extent that the Tribunal was concerned about the lack of detail and specificity in aspects of the applicant’s claims, these concerns were also reasonably open on the material before the Tribunal and do not evidence unreasonableness or illogicality on the part of the Tribunal.

    Claim of persecution due to criminal convictions and failed asylum seeker status

40. Similarly, there is no illogicality or unreasonableness in the manner in which the Tribunal considered and rejected the possibility of the applicant facing a risk of harm as a returned asylum seeker and or as a returnee with a criminal conviction.

41. The Tribunal accepted that the applicant had a criminal history, having served periods of time incarcerated in 2021.[31]  However, the Tribunal had regard to country information which indicates that neither his criminal record nor his return as a failed asylum seeker would bring the applicant to the attention of the authorities nor put him at risk of mistreatment on his return.[32]

    [31] Tribunal decision record dated 24 May 2022 at paragraph [33].

    [32] Tribunal decision record dated 24 May 2022 at paragraph [35] and following.

42. By this ground, the applicant does little more than disagree with the Tribunal’s findings and invite the court to engage in impermissible merits review.

43. For these reasons, ground 1 is not made out.

    Ground 2

44. By ground 2, the applicant asserts that that Tribunal failed to afford him procedural fairness.

45. When invited to comment on this ground, the applicant again said that, although he had provided details of his claims to the Tribunal, the Tribunal asked for ‘proof’ of these matters, including his sexuality, and also other issues raised in his application.  He said that a month after his father had threatened him, he was incarcerated and then placed in immigration detention thereby limiting his ability to obtain any further ‘proof’ of these matters.

46. Without being critical of the applicant, who represented himself in these proceedings, this ground, like ground 1, lacks any particularity. Leaving that to one side, it is clear from a fair reading of the Tribunal’s decision record that the Tribunal did comply with its procedural fairness obligations in Division 4 of Part 7 of the Act.

47. Section 422B of the Act provides that Division 4 of Part 7 of the Act is to be taken as an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. In this case, the applicant was validly invited to attend a hearing before the Tribunal to give evidence and present arguments in relation to his claim. That hearing was conducted via videoconference.[33]  The applicant completed the hearing response form and indicated that he would provide written submission and other evidence.[34]   No such submissions or evidence were provided.

    [33] See Court book at page 88.

    [34] See Court book at pages 97 to 99.

48. The hearing record indicates that the applicant appeared and that the hearing took about one hour.[35]   It is apparent from the Tribunal decision record that the applicant explained his claims to the Tribunal member, which are recorded at paragraphs [15] to [22].   It is also clear from the Tribunal decision record at paragraphs [27] and [28] that various inconsistencies were put to the applicant and he was provided with an opportunity to respond.

    [35] Court book at page 100.

49. In addition, it is apparent from the delegate’s decision record that there were concerns about the applicant’s credibility.  The Tribunal member held similar concerns, and as stated, it is clear from the Tribunal’s decision record that those matters were put to the applicant during his hearing.

50. There is no evidence that the Tribunal failed to comply with its procedural fairness obligations under Part 7 of the Act nor is there any suggestion that the obligation under section 424A was enlivened in this case.

51. For these reasons, ground 2 is not made out.

    Ground 3

52. By ground 3, the applicant asserts that the Tribunal did not consider his claims.

53. In oral submissions, the applicant said that he told the Tribunal about his sexuality and the problems he had with his family.  The applicant further explained that the reason why he had not lodged a protection visa application earlier is that he did not know that his family was going to cause this problem for him.   He said that this also explains why he did not have any evidence to put before the Tribunal, and then shortly after his father threatened him, he was incarcerated and then he was placed in detention, thereby limiting his ability to provide any such further information.  He said that had he not been in detention, he could have made some inquiries of friends and family to get some proof of his claims, but this was not possible because he was in detention.

1. As with the other grounds of review, this ground is not particularised.  But in any event, a fair reading of the Tribunal’s reasons show that the Tribunal did consider the applicant’s claims and the evidence led in support of those claims.  Ultimately, the Tribunal simply did not accept those claims and indeed did not accept the factual underpinning of the applicant’s claim, namely, that he was homosexual and that his father had threatened him as a result of that status.

2. Those findings were reasonably open on the evidence before the Tribunal.

3. As such, ground 3 is also not made out.

   Conclusion

4. Having concluded that none of the grounds of review have been made out, the applicant’s application for judicial review must be dismissed with costs.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri.

Deputy Associate:

Dated:       16 March 2023