Dpo18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 111
•14 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DPO18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 111
File number(s): SYG 1931 of 2018 Judgment of: JUDGE D HUMPHREYS Date of judgment: 14 February 2024 Catchwords: MIGRATION - Administrative Appeals Tribunal – Protection (Class XA) visa –Whether jurisdictional error has been made out – Whether the Tribunal’s decision was legally unreasonable, illogical or irrational - Application dismissed Legislation:
Migration Act 1948 (Cth) ss 42A, 42AA , 36, 36(2)(a), 424A
Migration Regulations 1994 (Cth) sch 2
Cases cited:
AMV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 180
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of last submission/s: 7 February 2024 Date of hearing: 7 February 2024 Place: Parramatta Solicitor for the Respondents: Ms Edmondstone (MinterEllison) Solicitor for the Applicant: Applicant appearing in person
Table of Corrections 15 February 2024 The judgment information cover page has been amended to record the solicitor appearing for the first respondent as from MinterEllison rather than Mills Oakley. ORDERS
SYG 1931of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DPO18
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:
14 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant is to pay the First Respondent’s costs fixed in the sum of $5600.00.
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
The applicant is a citizen of Lebanon. On 14 October 2014, the applicant applied for a Protection (Class XA) visa.
A delegate of the Minister for Immigration and Border Protection (“the delegate”) refused to grant the applicant the visa on 10 June 2015. The delegate was not satisfied the applicant was of homosexual orientation as claimed.
The applicant sought merits review of the delegate’s decision by the Administrative Appeals Tribunal (formerly, Refugee Review Tribunal) (“the Tribunal”). On 13 January 2017, the Tribunal, affirmed the decision under review from the delegate.
The applicant then sought judicial review of the Tribunal’s decision in this Court. The matter was remitted by the Federal Circuit Court of Australia back to the Tribunal on 31 July 2017, as the respondent conceded that the Tribunal failed to put certain information to the applicant in accordance with procedures set out in s 424A of the Migration Act 1948 (Cth) ( “ the Act” ). This information contained matters involving a rejection or undermining of the applicant’s claims.
The applicant appeared before a differently constituted Tribunal on 16 May 2018 to give evidence and present arguments. On remittal, the delegate’s decision was once again affirmed on 3 July 2018. The applicant now seeks judicial review of the Tribunal’s second decision.
For the reasons set out below, the application must be dismissed.
THE ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION
The Tribunal’s decision considered whether the applicant met the criteria for a protection visa as set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).
Paragraphs 1 to 5 of the Tribunal’s decision provides a background of the application for review before the Tribunal.
Paragraphs 6 to 12 are a consideration of the claims and evidence submitted by the applicant in light of relevant national and international law, being the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (“Refugees Convention”).
At paragraph 11, the Tribunal set out the substantive issue in the review application as follows:
[11] The issue in this case is whether there is a real chance the applicant will suffer serious harm a Convention reason or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon there is real risk that he will suffer significant harm.
Paragraphs 13 to 23 comprise of the applicant’s claims as at the time of his application for the protection visa, as set out in a statutory declaration dated 9 October 2014. These claims are:
[14] He was born in 1979 in Lebanon into a strict Christian family.
[15] He knew he was different while growing up and at the age of 13 he realised he was homosexual. His close friend G was the only person that understood him and together they realised they were both homosexual.
[16] He never told anybody that he was homosexual while he was growing up.
[17] He began working as a hairdresser when he was 21.
[18] Several year later his friend G, got married.
[19] His own parents started pressuring him to get married. Knowing that he could never reveal his sexuality in Lebanon he allowed himself to get close to a woman who frequented his salon. She is an Australian citizen. They married on 29 June 2013 and he tried to have sexual intercourse on the night of his wedding but he didn't feel anything and couldn't proceed with it. The situation continued and it had a huge impact on their relationship.
[20] Shortly after the wedding his wife returned to Australia and they applied for a Partner visa. While she was away G became divorced from his wife. G was very vulnerable and they grew closer and closer and fell in love again.
[21] His Australian Partner visa was approved on 23 June 2014 and he arrived in Australia on 29 July 2014. In late August 2014, his wife discovered messages from G on his phone and discovered their affair. She told him that she had told his family in Lebanon that he was homosexual and having an affair with a man. With the assistance of her brothers, he was kicked out of the house.
[22] When he tried to contact his family his parents told him they wanted nothing to do with him. They threatened to kill him if he ever returned to Lebanon. He continued to try to talk to them but they threatened to denounce him to the authorities. The law states that sexual acts which contradict the laws of nature are punishable and will result in prison time.
[23] If he returns to Lebanon, he is certain that he will be subject to extreme 'prosecution' and death.
The applicant provided additional information in support of his claims set out in the delegate’s decision of 10 June 2015. The additional claims are as follows:
·The applicant travelled to Syria from around January 2013 until late July 2014, prior to his travel to Australia. The applicant claimed at this time he would visit G, however their relationship was not sexual. He told his wife he was travelling for business.
·A letter from the applicant’s representative submitted that the applicant had a fear of persecution in Lebanon, based on his homosexuality, which is forbidden in Lebanon. The applicant holds a fear of not only being imprisoned by way of the Lebanese Penal Code, which criminalises homosexual individuals, but he is afraid of harm that other ‘criminals’ would do to him. The applicant claims that if he is to returned to Lebanon he will be forced to marry or practice homosexuality discreetly, or to disclose it openly. He claims neither of the latter two options is possible. The authorities in Lebanon would not protect him.
·The applicant’s representative attached evidence to this submission, including a letter form the applicant’s partner in Lebanon, copies of electronic communications between the applicant and his partner, evidence that the partner is also in the hairdressing business and photos of the couple.
There is additional information to the applicant’s claim provided within the previous Tribunal’s decision dated 13 January 2017. The additional information is as follows:
[29] He has known G since they were teenagers. G came from Syria and lived in the same village for about two years.
[30] Since the time of his interview with the delegate he consummated his relationship with G during a visit to Syria. He said he stayed with G in Syria for one and a half months. He said that G placed a ring on his finger at the airport when he was leaving.
[31] The former Tribunal's decision indicates that evidence was taken from G during the hearing by telephone. G reportedly told the Tribunal that he had known the applicant for about four years. He said that he had not known the applicant during his childhood and had never lived in the same village as the applicant. He confirmed other aspects of the applicant's claims including that they have had a 'beloved' relationship.
[32] The former Tribunal's decision also indicates the existence of confidential information provided to the Tribunal which alleges the applicant is not a homosexual and recently travelled to Dubai and drove to Lebanon to organise fraudulent photographs to assist with his application for review. It is further alleged that he met with his 'fake boyfriend' in Syria and took photographs together pretending to be a couple.
Paragraphs 33 to 56 of the Tribunal’s decision provides a summary of the applicant’s testimony before the Tribunal at a hearing, held on 16 May 2018.
The Tribunal sets out from paragraphs 57 to 82, to present their findings and reasons for the decision. In doing so, the Tribunal highlighted inconsistencies between the applicant’s claimed circumstances in written evidence and evidence provided during the Tribunal hearings and interview. The Tribunal raised concerns in relation to the applicant’s central claims. In relation to claims made by the applicant the Tribunal found:
(a)In relation to the applicant’s claim about how he discovered his sexual orientation, the Tribunal noted that there are inconsistencies between the oral and written evidence given. It was put to the applicant that in his written claims, it reads that his friendship and communications with G in their younger years helped him to realise his homosexuality. However, at hearing he claimed that he came to this realisation that he was homosexual alone, at nineteen years of age. When the Tribunal noted that this account was different from the written evidence, the applicant stated that he had touched on the subject slightly at a younger age with G but realised his homosexuality several years later. The Tribunal, although accepting that this full realisation of his sexual orientation could have been an extended process, was of the view that a homosexual person who struggled with his orientation from a young age and fears persecution would recall who he disclosed his situation with and when.
(b)The applicant’s partner, G provided evidence to the former Tribunal that cast doubt in relation to where they had met and the length of time that the applicant and G had known each other. When interviewed by the Tribunal, G claimed that he had only known the applicant for four years and in response to a question on whether he had known the applicant in his childhood, G responded that he did not. In response to a s 424A letter to the Tribunal, the applicant submits that G was confused when answering the questions during the interview as it was 6:00am in Syria. The Tribunal found that the differing evidence provided by G is slightly inconsistent with the applicant’s and calls into question key aspects of the applicant’s claims, including the claim about his realisation of his sexual orientation as a teenager.
(c)In relation to the applicant’s claim about the development of his relationship with his partner G before he departed from Lebanon, the applicant submitted that he frequently travelled to Syria and always stayed in a hotel with G in Tartus. The Tribunal’s decision then noted inconsistencies with this account when the applicant was in front of the formerly constituted Tribunal, and then again at hearing with the current Tribunal. When this inconsistency was put to the applicant by way of a s 424A letter, the applicant wrote to the Tribunal and submitted that he never slept at G’s home when his wife was there but stayed in a hotel. The Tribunal considered that the applicant had not satisfactorily accounted for the changing evidence he had given to the differently constituted Tribunal and was prone to changing his evidence when confronted with a differing account of events.
(d)The Tribunal noted that in the applicant’s application form, he had answered ‘No’ to a question asking whether he ever travelled outside his home country or country of residence before making his current journey to Australia. The Tribunal noted that the applicant’s oral evidence suggests that he had in fact made journeys outside of Lebanon to Syria to visit G. Additionally, this aspect of his claim is not mentioned within his written statement. The applicant contended that he had acknowledged his travels to Syria but told the person assisting him with filling out the application form that he had not needed a passport to enter Syria. Furthermore, the applicant stated that Lebanon and Syria are considered one country. The Tribunal rejected both of these claims as the application form question had not asked whether the applicant travelled to another country using another passport and that there is no doubt that Syria and Lebanon are two countries. The Tribunal considered that the applicant’s claims about his travel history prior to Australia may have been fabricated to strengthen his protection claims.
(e)The Tribunal acknowledged that during the hearing, the applicant claimed that the lawyer who assisted with his statement of claims was in fact informed about his history of travel. The Tribunal was not satisfied that the lawyer the applicant claimed helped him would have omitted pertinent information about aspects of his claim.
(f)During the hearing, the Tribunal asked the applicant about his attempts to make contact with other homosexuals or homosexual support groups in Australia. The applicant submitted he had not made such contact. The Tribunal’s decision noted that this lack of interest was troubling, given the evidence by the applicant and his witness that he is often “ depressed, lonely and tearful because of his situation and his separation from his claimed partner.”
(g)In relation to photographs submitted as evidence by the applicant, as well as those revealed at the Tribunal hearing, the Tribunal considered that photographs alone did prove that the applicant is homosexual or that the man he is photographed with at various locations is G.
(h)Similarly, the Tribunal concluded that the video evidence submitted, showing a man who is claimed to be G masturbating before a camera, did not prove that the applicant is homosexual.
(i)In relation to copies of chat messages submitted as evidence, as well as those interpreted from his phone during the hearing, the Tribunal was not prepared to place significant weight on the chat messages, as the Tribunal was of the view that the applicant and his partner could have established this history of communication ‘for the purpose of contriving evidence.’
(j)In relation to the Western Union Customer receipts tendered at hearing to support the applicant’s claim that he had sent sums of money to G, who was undergoing financial difficulties in Syria, the Tribunal was not prepared to conclude that the evidence supported the applicant’s claims. The Tribunal noted that the evidence could have been produced to strengthen the applicant’s protection claims or the money was sent to support a person who was economically affected by unrest in Syria.
(k)The Tribunal acknowledged that the evidence provided by the applicant’s witness, but concluded in light of all the other evidence, the evidence did not assist in resolving problematic aspects of the applicant’s evidence overall.
(l)The Tribunal noted that the applicant indicated at hearing he would be willing to undergo medical examination to prove his claim that he is homosexual. The Tribunal was unsure what this would go towards proving, noting that no medical evidence was submitted.
The Tribunal concluded that the inconsistencies and anomalies from the applicant’s evidence had casted serious doubts on the truthfulness of his claims. As such, the Tribunal did not accept that the applicant is a homosexual male or was in a homosexual relationship with G or any other person.
The Tribunal did not accept that the applicant would be perceived to be a homosexual in Lebanon or that there is a real chance that he will suffer serious harm for reason of his sexuality.
Accordingly, the Tribunal was satisfied that the applicant did not have a well-founded fear of persecution and that he does not fall as a person in respect of whom Australia has protection obligations for under s 36(2)(a) of the Act.
GROUNDS OF JUDICAL REVIEW
The applicant’s ground of judicial review are contained in an Originating Application filed with the Court on 11 July 2018. The applicant relies on two grounds of judicial review. They are as follows (verbatim):
(1) The Tribunal misunderstood my well-founded fear of harm as a result of my sexual orientation
(2) The Tribunal acted against the evidence provided.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. He was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the respondent’s written submissions had been translated to him. The Court also ensured that the applicant had access to a pen and paper so that he could take notes during the course of the hearing, should he wish to.
At the commencement of the hearing, the Court explained that 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.
Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of his case. The applicant told the Court that the Tribunal did not believe him that he was homosexual and that was not right or correct. The applicant offered to provide a video to the Court to show that he was a homosexual. The Court reiterated it was conducting judicial review, not merits review, and it could not consider any fresh evidence.
At the conclusion of the respondent’s oral submissions, the applicant was asked if he wished to state anything in reply. He stated: “Why did I come here if I cannot prove that I am homosexual?’. The Court again reiterated that it was restricted to undertaking judicial, not, merits review.
THE FIRST RESPONDENT’S SUBMISSIONS
Ground one is a contention that the Tribunal “misunderstood” the applicant’s “well-founded fear of harm” as a result of his sexual orientation.
It was submitted that the Tribunal’s reasons demonstrate that it was cognisant of the applicant’s claims for protection. It referred to the applicant’s parents threatening to kill him or denounce him to Lebanese authorities on the basis of his homosexuality. The claims referred to the fact that homosexuality and/or homosexual acts are illegal in Lebanon and that the applicant would face persecution from his family and society.
In particular, at [78] of its decision, the Tribunal found:
[78] The applicant has not claimed to have experienced any past harm in Lebanon on account of his sexual orientation. Having considered the evidence as a whole and for the reasons set out above, the Tribunal finds that the inconsistencies and anomalies in the evidence have caused the Tribunal serious doubts as to the truthfulness of his claims. The Tribunal does not accept that the applicant is a homosexual male or that he was or is in a homosexual relationship with G or any other person. Therefore the tribunal does not accept that the applicant is or will be perceived to be homosexual in Lebanon on. The Tribunal does not accept that there is a real chance the applicant will suffer serious harm for reason of his sexuality from his parents, his community or from any member of society in general should he returned to Lebanon on now or in the reasonably foreseeable future. The applicant is not claim to fear harm in Lebanon on for any other reason.
It was submitted that the applicant has made no attempt to particularise what the Tribunal “misunderstood” in consideration of his “well-founded fear of harm”. In the absence of further particulars, the Minister submitted that this ground cannot succeed. The Tribunal otherwise addressed, in detail, the nature of the claims but it found that they were not credible.
Provided that these findings of fact were in the bounds of legal unreasonableness, were logically reasoned, addressed the nature of the issues raised and were based on material before the Tribunal, not assumption, then there is no jurisdictional error: (see; AMV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 180 at [5] to [6]. It was submitted that the Tribunal sufficiently engaged with the list of the applicant’s protection claims and made findings that were open to it on the available evidence that were dispositive of the applicants claims under s 36(2)(a) of the Act.
Further, the Tribunal’s reasons demonstrated it considered the applicants claims did not amount to a real risk of significant harm under s 36(2)(aa) of the Act.
Ground two is an assertion that the Tribunal “acted against the evidence provided”. It was submitted that the Tribunal considered the applicant’s evidence, including his Statutory Declaration of 9 October 2014, a letter from his representative, dated 26 September 2016, annexed a letter from the applicant’s claimed partner, copies of photographs an electronic communication between the applicant and his claim partner and evidence of the applicants hairdressing business, remittance receipts, the oral evidence given by the witnesses at both Tribunal hearings and the applicant’s responses to the invitation issued pursuant to s 424A of the Act.
Having considered this evidence, the Tribunal proceeded to find that there were inconsistencies or anomalies within the evidence, which caused it to reject the applicant’s claims. It was submitted that it was open to the Tribunal to make these findings. The Court cannot review the merits of the decision: (see; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).
In relation to the non-disclosure certificate, it was submitted that clear particulars of the information were provided to the applicant orally at the hearing under s 424AA of the Act. The Tribunal informed the applicant that he could request additional time to respond to the information, however the applicant opted to respond immediately to the information.
It was submitted that the relevant substance of the information was properly put to the applicant. In the absence of a transcript to show that there was non-compliance with s 424AA of the Act, the Court should infer the Tribunal complied with its obligations: (see; SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138 at [38]).
Further, even if the Court were to find jurisdictional error (which is not conceded), such an error did not deprive the applicant of the possibility of a successful outcome in circumstances where the Tribunal put no weight on the information covered by the non-disclosure certificate: (see; Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599 at [2] –[3]).
CONSIDERATION
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:
[17] … [A]n 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.
Both grounds of judicial review are devoid of any meaningful particulars and merely consist of bare assertions of jurisdictional error. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal: (see; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]).
GROUND ONE
Ground one is a complaint that the Tribunal misunderstood the applicants well-founded fear of harm as a result of his sexual orientation. A fair reading of the entirety of the Tribunal’s decision indicates that the Tribunal appreciated and understood the claims being made by the applicant. For the reasons it gave, the Tribunal rejected the applicant’s claims that he was a homosexual male and in a homosexual relationship with another person.
The Court is satisfied that the conclusion reached by the Tribunal is not subject to legal unreasonableness, nor is it irrational or illogical. For the reasons it gave, based on the material before it, the Tribunal rejected the centrality of the applicant’s claims. The Court is satisfied that the Tribunal was sufficiently engaged with the material before it and understood the applicant’s claims but simply failed to accept those claims. Noting the Court cannot engage in merits review, no jurisdictional error arises as a result of those findings.
Ground one has no merit.
GROUND TWO
Ground two is again, a bare assertion that the Tribunal acted against the evidence provided. As outlined above, the Tribunal considered all of the evidence that was before it, both documentary and oral. For the reasons it gave, on the basis of inconsistencies or anomalies in the evidence, the Tribunal rejected the applicants claims. The Court is again satisfied that it was open to the Tribunal to come to the conclusions that it did based on the evidence before it and for the reasons it gave. This ground is again, an invitation to the Court to undertake impermissible merits review.
Ground two has no merit.
Non-disclosure certificate
In relation to the non-disclosure certificate, the Court is satisfied that the Tribunal followed the appropriate procedural fairness requirements by providing clear particulars of the information to the applicant at the hearing pursuant to s 424AA of the Act. The material was provided to the Court by way of an annexure to an Affidavit by a Solicitor for the respondent.
The Court is satisfied the Tribunal provided clear details of that information. The Court notes that the applicant did not seek additional time to respond to them information and did so during the course of the hearing. In the absence of any material to the contrary, the Court is satisfied that the Tribunal complied with all relevant requirements and procedural fairness obligations.
The Court also accepts the submission from the Minister that even if an error did occur (which is not conceded by the Minister) such an error did not deprive the applicant of the possibility of a successful outcome where no weight was placed on the information covered by the nondisclosure certificate.
As the applicant is unrepresented, the Court has perused the decision record but is unable to ascertain any unarticulated jurisdictional error.
CONCLUSION
In these circumstances, the application must be dismissed.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated:14 February 2024
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