DMD16 v Minister for Immigration

[2019] FCCA 221

FEDERAL CIRCUIT COURT OF AUSTRALIA

DMD16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 221

Catchwords:
MIGRATION – Visa – protection visa – procedural fairness – whether Tribunal failed to put applicant on notice of dispositive issue – whether applicant denied meaningful opportunity for hearing – no error demonstrated – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), (3) & (4), 425, 425(1) and 476

Cases cited:

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Minister for Immigration and Multicultural Affairs v SCAR (2003) 198 ALR 293

Applicant: DMD16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 397 of 2016

Judgment of: Judge Heffernan

Hearing date: 16 February 2018

Date of Last Submission: 16 February 2018

Delivered at: Adelaide

Delivered on: 8 February 2019

REPRESENTATION

Counsel for the Applicant: Mr T Goodwin

Solicitors for the Applicant: Hamdan Lawyers

Counsel for the Respondents: Ms H Stanley

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The applicant do pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 397 of 2016

DMD16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act1958 (Cth) (‘the Act’) for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 1 November 2016. That decision affirmed an earlier decision of a delegate of the Minister refusing to grant the applicant a Protection (Class XA) visa (‘the visa’).

2. The applicant was represented by counsel at the hearing before me who indicated that ground 2 of the application was abandoned, and that particulars (e), (f) and (g) of ground 1 would not be argued.  As a result, this matter proceeded on a single ground as follows:

   “1.The Tribunal failed to comply with section 425(1) of the Migration Act 1958 (Cth).

   (a)The Tribunal found that the applicant’s family will not find him if he relocated to Nepal (Tribunal at [36]).

   (b)The finding at paragraph (a) was a crucial link to the Tribunal determining that the applicant does not face a real risk of significant harm in Nepal or that the applicant will be persecuted.

   (c)In Nepal (Tribunal at [36]), having determined that the applicant has a well-founded fear of persecution as a homosexual man in India (Tribunal at [20]).

   (d)The finding at paragraph (a) was an issue arising in relation to the decision maker under review and was not raised with the applicant by the Tribunal during the hearing and had not been an issue before the delegate.”

3. As is often the case, the essential background matters were not in dispute.  For that reason I have below paraphrased the summary of those matters in the Minister’s written outline.

Background

1. The applicant is an Indian citizen who initially arrived in Australia on a student visa in 2009.  When that visa expired he was granted two subsequent student visas.  He applied for the subject visa on 6 March 2014 on the basis that he feared harm in India because of his homosexuality.  The delegate refused the visa on 19 January 2016.  The applicant was invited to, and attended at, a hearing before the Tribunal on 14 September 2016.  He was represented on that occasion.  His representative provided detailed written submissions before and after the hearing, as well as a statutory declaration from the applicant.

2. The Tribunal accepted that the applicant was a homosexual man and a member of the social group of “homosexual men in India”.  It was satisfied that the level of discrimination and actual and threatened violence targeting homosexual men in India was sufficient to amount to a real chance of persecution.  It also found that the applicant would not be able to avoid the harm by relocating within India, nor would he be able to access adequate or effective protection from the State.

3. The Tribunal was therefore satisfied that the applicant had a well-founded fear of harm in India because of his membership of the particular social group identified. For that reason, it found that he met the criteria in s.36(2)(a) of the Act.

4. However, the Tribunal found that the applicant had a right to enter and reside in a third country within the meaning of s.36(3) of the Act, by virtue of the Indo-Nepal Treaty of Peace and Friendship of 1950 (‘the Friendship Treaty’). The Tribunal also found that the applicant had not taken all possible steps to avail himself of his right to enter and reside in Nepal. For that reason it found that this country did not have protection obligations by virtue s.36(3).

5. The Tribunal went on to consider whether the applicant had a well-founded fear of being persecuted, or whether there was a real risk of him suffering serious or significant harm in Nepal.  The applicant was invited to present information on that matter because the question of his residing in Nepal had not been raised by the delegate.  The applicant claimed that he would still face harm from his family whilst in Nepal.  He also found that the level of persecution and discrimination against homosexuals in Nepal would amount to persecution on the basis of sexual orientation.

6. The Tribunal did not accept that the applicant’s family would travel to Nepal to cause him either physical harm or force him to return to India, and concluded that such a claim was exaggeration and mere speculation.  It found that the chances of the applicant’s family locating him in Nepal were remote, and mere speculation.  For that reason it concluded that there were not substantial grounds for believing the applicant faced a real risk of significant harm from his family in Nepal.

7. The Tribunal also did not accept that there was a real chance that the applicant would suffer serious harm or that there were substantial grounds for believing there was a real risk he would suffer significant harm for reasons of his sexuality, identifying as a homosexual, or for any other matter connected with his sexuality.  It based that finding on its consideration of country information.

Submissions

1. Counsel for the applicant stressed that in seeking a review before the Tribunal the applicant had provided a submission in advance of the hearing, that focused on his fear of harm in India.[1]  Further, having raised with the applicant the implications of the Friendship Treaty, it was the Tribunal that had raised for the first time that the applicant may have a right to live in Nepal, acknowledging that the question of whether the applicant had a well-founded fear of harm in Nepal had not been dealt with by the delegate.[2]

   [1]     Court Book (‘CB’) pp 157 to 173.

   [2]See transcript of Tribunal hearing at p 5, lines 7 to 11.

2. It was critical, the applicant submits, that the Tribunal did not raise with him the issue of fearing harm from his family in Nepal and whether he believed that they would attempt to physically harm him there, and did not ask him to amplify his views on that matter in light of its ultimate findings that his claims with respect to fear to harm in Nepal were an “exaggeration” or “mere speculation”.

3. The effect of the applicant’s statutory declaration, provided post hearing, was that he continued to receive harassing phone calls from his family, and that he feared if he were to relocate to Nepal that they would find him and kill him.[3]

   [3]     CB p 192.

4. Mr Goodwin for the applicant, submitted that it was an error of law of the type identified in SZBEL[4] to fail, as he asserted the Tribunal had, to put the applicant on notice of a dispositive issue, namely that it did not accept this his family would track him to Nepal to cause him physical harm, including death or force him to return to India.

   [4]     SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] 228 CLR 152.

5. In the applicant’s submission the Tribunal had separate statutory tasks in considering, on one hand, the applicant’s claimed fear of harm in India pursuant to s.36(2)(a), and on the other hand, whether there was a right to reside in and a fear of persecution in Nepal, pursuant to ss.36(3) and 36(4) of the Act. The distinction between those two tasks was critical to the obligation of the Tribunal under s.425 to ensure that the applicant was on notice of the issues arising under the decision under review.

6. It is common ground that the delegate did not raise the issue of residing in Nepal, and the Tribunal member herself acknowledged it was a new issue.  The Tribunal, having failed to ask the applicant any questions about his fear of harm from his family if he resided in Nepal, had failed to put him on notice that this was an issue that might be dispositive.

7. Mr Goodwin acknowledged that a Tribunal was not under an obligation to give a running commentary on the attitude it took towards individual matters of evidence from time to time during the hearing.[5]  However, in his submission the finding of “exaggeration” imported an element of intention on the part of the applicant that he was putting a deliberate gloss on his evidence.  Such a finding went directly to his credibility as a witness, and he was not challenged in any way on the evidence with respect to his fear of harm from family members in the context of living in Nepal.  There was nothing that would have alerted the applicant to the fact that this was a live issue. 

   [5]     SZBEL, op cit at para [48].

8. That matter was exacerbated to some extent by an error of fact made by the Tribunal when it found that he had not raised the fear of being killed by his family during the hearing, whereas in truth, the applicant had, without using the term “killed” agreed at the hearing that he feared physical harm from his family.  The net effect of all of the above was that the applicant had not had a meaningful opportunity to participate in a hearing.  Given the findings of the delegate had accepted that aspect of the applicant’s claim, it could not be said that he had been on notice that his credibility in generally was in issue.

9. The delegate’s findings as to the applicant’s claimed fear of harm of family should be ignored because they related to India and not Nepal.  The claimed fear of harm of his family in the context of Nepal was a specific aspect of his claims that the Tribunal clearly believed may have been important to the decision and may have been open to doubt and it was, therefore, incumbent on the Tribunal to at least ask the applicant to expand on it and ask why it should be accepted.[6]

   [6] Ibid at para [47].

10. For the Minister, Ms Stanley submitted that the application was substantially misconstrued.  Properly understood, the dispositive issue on the review was whether the applicant should face a risk of harm in Nepal due to his homosexuality, including harm from his family.  The Tribunal was not obliged, by reason of s.425, to ensure that the applicant had a meaningful opportunity to respond to the risk that his evidence might not be accepted.

11. The applicant was clearly on notice of the dispositive issue because it had been raised at the time of the hearing, and he was invited to, and did, provide written submissions, and in addition, a statutory declaration that addressed that very matter.[7]

    [7]     CB pp 179 to 192.

12. In the context of this matter, the procedural fairness obligations identified in SZBEL required the Tribunal to give an opportunity to the applicant to provide further information, which is what it did.

13. Further, the Minister submitted that the Tribunal had clearly asked the applicant to specify what he feared his family might do.[8]

    [8]     See transcript of Tribunal hearing at pp 2 to 4.

14. In doing so, it was submitted that the applicant had an opportunity to expand on his concerns in his oral evidence and in later written submissions, and this amounted to a meaningful opportunity to respond to the risk that his evidence may not be accepted.  The delegate had clearly not accepted the applicant’s claims of fear of risk at the hands of his family in the context of a return to India.  If that view was shared by the Tribunal it would “feed into” the consideration of whether or not it would accept any claim to fear harm from them in Nepal.  In other words, he was on notice that the risk of harm from his family in Nepal was one of the dispositive issues.

Consideration

1. Pursuant to s.425(1) of the Act:

   “The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

2. Compliance with the above section is a precondition to the valid exercise of the Tribunal’s jurisdiction.  Failure to comply with s.425 will result in jurisdictional error.  Section 425 “imposes an objective requirement on the Tribunal”.  The Tribunal must objectively provide a “real and meaningful” opportunity to be heard and make submissions.[9] 

   [9]     Minister for Immigration and Multicultural Affairs v SCAR [2003] 198 ALR 293 at paras [37] and [38].

3. Was the applicant given a sufficient opportunity to give evidence and make submissions about his claimed fear of the risk of harm from his family if he were to live in Nepal?  In my view, he was.

4. It is fundamental for a real and meaningful hearing under s.425(1), that an applicant be on notice of the issues that might be dispositive of his application. Such notice can be given in a variety of ways but, given that the Tribunal is reviewing the particular decision for which the delegate has given reasons, the issues considered by the delegate to be dispositive are the starting point when considering notice.

5. In this matter, the applicant squarely made claims to the delegate that he feared his family would kill him if he returned to India.  This was because of his homosexuality.  He claimed they made threats to kill him on that account in order to preserve family honour.[10]  In his interview with the delegate he claimed that as recently as 15 days earlier, his mother had told him over the telephone that if he was gay she would kill him.[11]  The delegate accepted that his mother insisted that he marry a woman, but was concerned that he had embellished his account of her threats to kill him.[12]  Ultimately, the delegate did not find the claimed fear of harm at the hands of his family to be credible:

   “As stated in the section: Findings of fact, I accepted that the applicant is a homosexual man and that he is currently in a same sex relationship. I also accepted that he has been 'outed' to his family since he has been living in Australia. However, I held concerns in regard to the credibility of the claim that he has been threatened with death at the hands of his parents should he return to India. The applicant has not provided any meaningful and substantive information or evidence of any sort that could help support these claims. I have considered country information with regard to honour killings in India. Here I find that, whilst incidences of honour killings have taken place in India, country information suggests that honour killings are most likely to take place in relation to an inter-caste or inter-faith marriage between heterosexual couples. Therefore, based on the applicant being a homosexual man and not intending on entering into a heterosexual marriage, and having considered all the available information before me, I am neither convinced nor satisfied that the applicant’s family would carry out their threats to kill him if he returned to India.

   Additionally, should the applicant fear reprisals at the hands of his family members, I find that the applicant could reasonably and practicably find employment and a place of residence in either Mumbai or Dehli, two Indian cities that are known to be more open and tolerant of homosexuals. Therefore, I am satisfied the applicant can relocate within India.”[13]

   [10]    CB pp 111 to 112.

   [11]    CB p 113.

   [12]    Ibid.

   [13]    CB pp 122 to 123.

6. It can be seen that as a result of the findings of the delegate, the applicant was on notice of the fact that his credibility with respect to fear of family was in issue.  He was also on notice that the delegate regarded his claims as lacking substantive detail and/or corroboration.  Further, and in my view significantly, he was on notice that the delegate concluded that if there was any risk of reprisal at the hands of family members, he could relocate safely to either Mumbai or Delhi. 

7. In other words, the delegate concluded that to the extent that there was any risk posed by the family, it could be avoided by the applicant placing geographical distance between himself and them.  That is the context in which the applicant came to give evidence before the Tribunal about the issues with respect to his family.

8. It was axiomatic and must have been abundantly clear to the applicant that if the Tribunal held the same view about the risk posed by his family in India as the delegate, that this would inform the view it took with respect to the risk they presented should he reside in Nepal.  The applicant, being on notice of the rejection of claims about his family as advanced to the delegate, had the opportunity to amplify those matters before the Tribunal.

9. Before the Tribunal, the applicant gave only brief responses when articulating his claims about his family.  He did not provide any information that was substantively more detailed than he had done before the delegate.  He is correct to submit that the implications of the Friendship Treaty with Nepal were raised with him for the first time by the Tribunal.  It was in recognition of that fact that the Tribunal gave him an opportunity to make post-hearing submissions.  The applicant took the opportunity to do so and this was an opportunity to amplify or expand his claims in the context of resettlement in Nepal.  The Tribunal also provided him with an opportunity to request a further hearing.  He did not do so. 

10. I reject the applicant’s submission that the Tribunal’s finding that the applicant had “exaggerated” his claimed fears with respect to family somehow obliged the Tribunal to put him on notice of the likelihood of its concerns in that regard.  I accept the submission of Mr Goodwin that exaggeration implies an element of deliberation.  So does “embellishment”.  The applicant was on notice that the delegate had found his evidence in that regard to have been embellished. 

11. I considered closely the passage from SZBEL to which I was referred by both counsel.[14]  I am satisfied that the applicant was sufficiently on notice of the dispositive issues and that he had a real and meaningful opportunity to participate in the hearing.  I am not satisfied that he was occasioned the procedural unfairness he has alleged.  In my view, no jurisdictional error has been demonstrated.

    [14]    SZBEL at para [57].

12. I make the orders to be found at the beginning of these reasons.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 8 February 2019