DKX24 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 1133

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DKX24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1133

File number(s):

PEG 190 of 2024

Judgment of:

JUDGE D HUMPHREYS

Date of judgment:

4 November 2024

Catchwords:

MIGRATION -Administrative Appeal Tribunal – decision to affirm refusal of protection visa (class XA) (subclass 866) – protection claim on the basis of homosexual relationship – impermissible merits review - application dismissed.  

Legislation:

Migration Act 1958 (Cth) ss 36, 36(2)(a), (aa), 423A.

Migration Regulations 1994 (Cth) sch 2.

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

Minister for Immigration and Citizenship v Lay Lat (2006) 151 FCR 214

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347

Division:

Division 2 General Federal Law

Number of paragraphs:

43

Date of hearing:

29 October 2024

Place:

Perth

Solicitor for the Applicant:

Self-represented litigant

Solicitor for the First Respondent:

Ms Martin (Sparke Helmore)

Solicitor for the Second Respondent:

Submitting appearance, save as to costs.

ORDERS

PEG 190 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DKX24

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE D HUMPHREYS
DATE OF ORDER:	4 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The Applicant to pay the First Respondent’s costs, fixed in the amount of $6500.00.

THE COURT NOTES THAT:

A.The costs order was made in the absence of the Applicant. The Applicant has a right, should he so wish, for the matter to be re-heard as to costs.

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

JUDGE D HUMPHREYS

INTRODUCTION

1. This is an application for judicial review of a decision made by the Administrative Appeals Tribunal (“Tribunal”) on 16 April 2024. The Tribunal affirmed the decision of a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection (class XA) (subclass 866) visa (“the visa”).

   BACKGROUND

2. The applicant is a citizen of Fiji. They first arrived in Australia on 14 November 2019 on a Visitor visa (class FA) (subclass 600) and departed 7 January 2020. On the same visa, the applicant arrived on 11 August 2022 and has not departed since.  

3. On 4 September 2022, the applicant applied for the visa claiming to fear harm based on his political opinions and homosexuality.

4. On 28 January 2023, the delegate refused to grant the visa. On 3 February 2023, the applicant applied to the Tribunal for review of the delegate’s decision. On 15 December 2023 the applicant appeared before the Tribunal.

5. On 16 April 2024, the Tribunal affirmed the delegate’s decision.

6. For the reasons set out below, the application must be dismissed.

   THE ADMINSTRATIVE APPEALS TRIBUNAL’S DECISION  

7. At [8] and [9] of the decision record, the Tribunal set out the information that was before the Department of Home Affairs as contained in the protection visa application, noting as follows:

   ...the applicant is a 20- year-old Fijian citizen who was born in Suva, Central Division, Fiji. Further, the applicant:

   •belongs to the Fijian ethnic group;

   •belongs to the Uniting Church denomination of Christianity;

   •had never married;

   •was in contact with relatives outside Australia by Facebook Messenger;

   •had a cousin in Queensland, Australia, who is about 4 years older than the applicant;

   •had lived from August 2000 to August 2022 in Makoi, Naitasiri Province, Central Division, Fiji;

   •speaks, reads and writes in both the Fijian and English languages;

   •was born to Fijian citizens;

   •obtained his Fijian passport on 18 July 2019;

   •had not travelled to any countries in the last 30 years;

   •had never been employed;

   •attended primary school in Suva from 2009 to 2017 and high school in Korovou, Tailevu Province from 2018 to 2021; and

   •was making their own claims for protection and did not receive assistance from an interpreter or anyone else to complete the application.

8. As set out in the Tribunal decision, the applicant stated the following in relation to his claims for protection:

   ·he left Fiji because of their political opinion of [the then Bainimarama] Government and because he belonged to a different group of people (LGBTI). The applicant said he fled to avoid family and community persecution, and for freedom to live as he pleased and to be respected;

   ·he had experienced harm in Fiji, described as physical, mental and psychological harm caused by members of their family and the community, plus the applicant was also physically harmed at their school; and

   ·he did not seek help after the harm nor move because of fear, because he knew what people thought of gay people in a community where it is not accepted and there was nowhere to go to be protected and live freely. The applicant said the people do not have faith in their authorities and there is no government support in aid or accommodation.

9. The applicant was notified on 12 September 2022 that supporting documentation should have been provided with his protection visa application and the applicant could bring any additional information he would like to be considered.

10. On 16 December 2022, the applicant was sent correspondence advising that more information was needed to assess the protection visa application and noted that he had not provided key details regarding his sexuality and how this had affected his life. The applicant did not provide any further details in support of his claims. The applicant was invited by the delegate to provide more information and answer a series of questions for the applicant to answer. The Department did not receive a response to that letter of 16 December 2022.

11. The applicant was not invited to attend an interview with the Department of Home Affairs.

12. The applicant gave the following oral evidence at the Tribunal hearing:

    (a)The applicant’s aunt had prepared the online protection visa application, despite the Tribunal pointing out to the applicant that the visa application noted that no assistance had been provided in the preparation of the application. The applicant confirmed that his aunt had assisted him [24].

    (b)The applicant was raised in Suva by Christian parents, attended an all-boys boarding school in 2021. The applicant was constantly being bullied, on account of him showing signs that he liked men from year 11 [25].

    (c)The applicant was confused and scared about his sexuality and was not treated well during school.

    (d)The applicant was a member of the netball team and socialised with the members of that team. The applicant detailed an incident when a member of the team had his bag stolen, was beaten up with his clothes torn and had a black eye.

    (e)The applicant could not find any work after high school and farmed [36].

    (f)The applicant was physically hurt in boarding school, during school night classes they were ‘maybe sometimes’ beaten up for fun. People would enter the applicant’s room and throw books and beat him up after they discovered the applicant had slept with a fellow student [38].

13. At [39], the Tribunal pressed the applicant as to what his fear was if he returned to Fiji. The applicant feared he would not have a place to stay, he would not be able to work like he does in Australia and would be treated differently. The applicant stated that he came to Australia in August 2022 as he was “doing nothing with (his) life” and knew that Australia would have opportunities for gay people.

14. Upon arriving in Australia in August 2022, the applicant moved to Kalgoorlie as his cousin had informed him about work opportunities there.

15. The applicant told the Tribunal that he had not had any connection with the gay community in Kalgoorlie and was not in touch with any members of the LGBTQI community in Australia.

16. Further on the point of the applicant’s fear in returning to Fiji, the applicant said that he feared what his extended family would do for him or how they would think of him if they found out about his sexual orientation.

17. The Tribunal raised the protection visa application and the delegate’s letter of 12 September 2022 as chances the applicant had to provide more information in support of his claim. The applicant stated that he did not feel the urge to reply to the information sought out through the delegates questions. When section 423A of the Migration Act 1958 (Cth) (“the Act”) was raised a second time with the applicant towards the end of the hearing, the applicant then stated that he did not remember being asked these questions by the delegate. He did not really think about it and said they were busy at the time [50].

18. The applicant stated that he did not reply to the Tribunal’s November 2023 correspondence because he did not have any physical evidence to provide to the Tribunal.

19. The applicant claimed that Fijian authorities could not protect him as the police were not concerned with members of the LGBTQI community.

20. As to the applicant’s claim that he had left Fiji because of his political opinion of the then Bainimarama Government, the applicant confirmed he was not that political and stated that the government does not help people or the country and if he lived in Fiji, he would rely on the government’s support.

21. The applicant had also claimed that he had suffered physical and psychological harm caused by members of his extended family and that he experienced his extended family members calling him names for, amongst other things, acting like a girl.

22. From [56] to [66] the Tribunal had regard to country information regarding the ‘LGBTQI+’ community, the political opinion and social welfare in Fiji.

23. From [67] – [72] Tribunal instructed itself as to the criteria for a protection visa which is set out in s 36 of Act and Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

24. In accordance with Ministerial Direction No.84, the Tribunal considered policy guidelines prepared by the Department of Immigration and relevant country information assessments by the Department of Foreign Affairs and Trade.

25. In consideration of the applicant’s claims and evidence, the Tribunal accepted the following information and made the following findings:

    (a)The applicant left Fiji and came to Australia as he was doing nothing with his life and he thought there was no life for him back home living in the village.

    (b)Contrary to what was provided in the protection visa application form, the applicant has received assistance in completing the form and had travelled overseas in the last 30 years.

    (c)The Tribunal accepted the applicant’s evidence put forward in the hearing as to him not having any relationships with men since arriving in Australia. Further he was not in touch with the LGTBQI community in Australia since arriving.

    (d)The Tribunal found that the applicant first travelled to Australia in November 2019 and returned to Fiji in January 2020 whilst he was still in high school in Fiji and that his year 12 was in 2020. The Tribunal noted that the applicant claimed he started showing signs they liked men in year 11 which would be 2020.

    (e)The Tribunal noted that the applicant provided evidence that was not before the delegate. The Tribunal was not satisfied that the applicant had a reasonable explanation as to why that evidence was not provided to the delegate and therefore drew an inference unfavourable to the credibility of the applicant under s 423A of the Act.

    (f)The Tribunal did not accept the applicant’s claim to be gay was genuine and was therefore not satisfied the applicant would be harmed in the reasonably foreseeable future if they returned to Fiji because of his sexual orientation.

    (g)The Tribunal accepted that the applicant was not political and did not hold an opinion beyond the general statements advanced about the Fijian government during the hearing. The Tribunal was not satisfied that there was a real chance that the applicant would be harmed based on his political opinion.

    (h)The Tribunal did not accept it would be difficult for the applicant to support himself but accepted the applicant may wish to remain in Australia for economic reasons: (CB 95, [101]). It was therefore not satisfied that the applicant faced a real chance of harm from economic circumstances in Fiji.

26. Accordingly, the Tribunal found that the applicant was not a person in respect of whom Australia had protection obligations under s 36(2)(a) or (aa). The Tribunal affirmed the decision under review not to grant the applicant a protection visa.

    GROUNDS OF JUDICIAL REVIEW

27. The applicant relied on three grounds of judicial review filed in his Originating Application on 21 May 2024, which are as follows (verbatim):

    1. I am currently living in a homosexual relationship

    2. I had a partner back in Fiji who is willing to give evidence in my

    3. I have fear for my life as my life style is never going to be accepted by my family and community members

    THE APPLICANT’S SUBMISSIONS

28. The applicant appeared before the Court unrepresented.  At the commencement of the hearing, the Court ensured that the applicant was in possession of a copy of the relevant Court book and had a copy of the respondent’s written submissions.  The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wish to.

29. At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review and the difference between the two types of review.  The Court also explained the procedure by which the hearing would be undertaken.

30. Despite Court orders, no written submissions or other material was provided to the court by the applicant in support of his case.  The Court explained that the grounds of judicial review, such as they were, failed to articulate any jurisdictional error and only went to the merits of his claim. The applicant was completely unable to articulate any matter that went to jurisdictional error.

31. At the conclusion of the respondent’s oral submissions, the applicant was asked if he wished to state anything in reply.  He answered “No”.

    THE FIRST RESPONDENT’S SUBMISSIONS

32. In relation to ground one, the first respondent submits that the applicant advances this ground to bolster his homosexuality claim although the respondent accepts the possibility that the applicant commenced a relationship in the time between the Tribunal hearing and judicial review application.  There is no jurisdictional error identified in ground one and the Court cannot consider fresh evidence to this point.

33. Ground two is an assertion that the applicant’s partner will give evidence in support of his claim. It is submitted it must fail for the same reasons as ground one. It was open to the applicant to request that the Tribunal take oral evidence from any witnesses, including his claimed partner, in the hearing invitation sent to him on 29 November 2023.

34. Ground three reads as an invitation for the Court to undertake impermissible merits review; Minister for Immigration & Ethnic Affairs v Wu Shan Liang (Wu Shian Liang) (1996) 185 CLR 259 at [272]. The Tribunal’s finding that the applicant’s claim of homosexuality was not genuine was open to it based on its findings and justified in its reasons. The Tribunal was also entitled to draw an adverse inference to the applicant’s credibility pursuant to s 423A.

    CONSIDERATION

35. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:

    … an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister.  The Court does not consider the merits or wisdom the decision; nor does it remake the decision.  The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

36. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant; (see: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]).

37. Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out; (see: Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at [348]).

38. It is for the applicant to satisfy the Tribunal, being the relevant decision maker, that the applicant meets the criteria for being a refugee; (see: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]).

39. It was for the applicant to provide his evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction; (see: Minister for Immigration and Citizenship v Lay Lat (2006) 151 FCR 214 at [76]). The Tribunal is under no obligation to “afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence”; (see: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [82]).

40. Ground one is a claim by the applicant that he is currently living in a homosexual relationship. It is not a proper ground of judicial review, rather it is a bare assertion provided to the Court without any supporting evidence. Even if evidence were provided, the Court would be unable to accept that evidence, as fresh evidence to this effect cannot be considered by the Court: Wu Shan Liang at[ 272].

41. Ground two, is a similar claim in relation to fresh evidence that can be provided by the applicant’s partner back in Fiji. For the same reasons as articulated above, ground two must also fail. There were multiple opportunities for the applicant to provide evidence from witnesses as to his relationships both before the delegate, and the Tribunal. The applicant failed to provide any evidence other than his own statements, and in these circumstances, it is unsurprising that the Tribunal arrived at the conclusion it did. Ground two has no merit.

42. Ground three is simply a restatement of the fears that the applicant claims he has should he be returned to Fiji. The Court is satisfied that the findings of the Tribunal were open to it, based on the evidence that was before it and for the reasons it gave. There is nothing illogical, irrational, or legally unreasonable in the findings made by the Tribunal. Further, the Tribunal was entitled to draw an adverse inference as to his credibility under s 423A of the Act. The Court agrees with the submission that ground three is nothing more than an attempt to engage the Court in impermissible merits review. Ground three has no merit.

    DETERMINATION

1. As the applicant is unrepresented, the Court has perused the relevant Court Book and supporting documentation and is unable to find any unarticulated jurisdictional error. The application must be dismissed.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:

Dated:       4 November 2024