DZP16 v Minister for Immigration

[2019] FCCA 2978

FEDERAL CIRCUIT COURT OF AUSTRALIA

DZP16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2978

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa –whether the Tribunal, in rejecting the corroborative evidence of the applicant's current partner, lacks an active and intellectual engagement with the evidence – whether there is evidence to support the Tribunal's conclusion that no weight should be given to the partners evidence – no real and intellectual engagement with the corroborative evidence by the Tribunal – constructive failure to exercise the jurisdiction of the Tribunal – amended application allowed.   

Legislation:

Migration Act 1958 (Cth), s. 476

Applicant: DZP16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3655 of 2016

Judgment of: Judge Street

Hearing date: 17 October 2019

Date of Last Submission: 17 October 2019

Delivered at: Sydney

Delivered on: 17 October 2019

REPRESENTATION

Counsel for the Applicant: Mr O Richard Jones

Solicitors for the Applicant: Juris Australia Lawyers

Solicitors for the Respondents: Ms B Rayment
Sparke Helmore

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. Grant leave to the applicant to rely upon the amended application annexed to the affidavit of Ejaz Khan filed on 27 September 2019 and direct that the signed amended application be electronically filed and served on or before 21 October 2019.

3. A writ in the nature of certiorari is issued calling up the record of the Administrative Appeals Tribunal and quashing the decision made on 28 November 2016.

4. A writ in the nature of mandamus is issued requiring the Administrative Appeals Tribunal differently constituted to determine the review application for a Protection (Class XA) visa before it according to law.

5. The first respondent pay the applicant’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 17 October 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3655 of 2016

DZP16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application on a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision the Administrative Appeals Tribunal (“the Tribunal”) made on 28 November 2016 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of Nepal and his claims were assessed against that country. The applicant arrived in Australia on 3 January 2010 on a fraudulently altered passport and applied for protection on 3 October 2010. A differently constituted Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa on 16 October 2012.

3. The applicant’s application had not been assessed in relation to complementary protection. The applicant then applied on the grounds of complementary protection on 2 May 2014. In support of the application for protection the applicant answered question 42, identifying circumstances in which he claimed to fear harm, relevantly, in relation to his sexual orientation and referred to the history of a past sexual relationship. That answer also referred to the applicant asserting that he has now found his “soul mate”, a particular person, and that “he is also from Nepal and we are in a homosexual relationship”.

4. The applicant provided a further statutory declaration on 2 December 2014 in relation to being in a current relationship with his particular partner. The partner also put on a statutory declaration dated 2 December 2014 in support of that relationship. The delegate on 9 December 2014, whilst making adverse findings in relation to certain information, dealt with the applicant’s claim to fear harm by reason of being a homosexual on the basis of whether the applicant would in fact be exposed to persecution as a member of a particular social group and whether the applicant could obtain protection. The delegate did not make a finding that the applicant was not in a current relationship with his gay partner.

5. The applicant applied to the Tribunal for review on 12 January 2015. By letter dated 19 August 2016, the applicant was invited to attend at the hearing on 19 September 2016 and his alleged partner also attended and gave evidence.

6. The Tribunal made adverse credibility findings in relation to the applicant’s evidence and claims and effectively found that the applicant was not a witness of truth. The Tribunal expressly referred in its consideration to the statutory declaration in paragraph 22 and the statement of the applicant as to how they met and formed a relationship as well as the statement from the partner. The Tribunal also in paragraph 33 summarised the substance of the current partner’s statutory declaration.

7. In introductory paragraphs referring to the assessment of credibility of the applicant’s claims the Tribunal referred to the applicant’s claim that he will face significant harm on return to Nepal as he is a homosexual male and will not be able to live openly as a homosexual male in Nepal and on account of his political opinion, being his involvement with a particular entity in Nepal and belief in the monarchy.

8. The Tribunal observed, however, as to the applicant fearing return or facing a difficulty in Nepal:

   For the reasons that follow, the Tribunal does not accept that the applicant is a credible witness.

9. The Tribunal then proceeded:

   For the reasons that follow, including significant internal inconsistencies and inconsistencies with third parties, the Tribunal finds the applicant is not genuine in his claim to be homosexual or to hold the political beliefs and opinions he claims or to fear return on these bases.

10. The reference in that regard to inconsistencies with third parties on its face refers to the current alleged gay partner of the applicant. No such inconsistency has been identified in the reasons that follow by the Tribunal in respect of the applicant’s current partner’s statutory declaration.

11. There was a s 424A letter dated 21 September 2016 sent to the applicant in relation to a possible inconsistency but it was not picked up in the Tribunal’s reasons however, on its face, may not have met the requirements of materiality or significance in relation to an adverse credibility finding. Be that as it may, the basis for the statement that the applicant was not accepted because of internal inconsistencies with third parties, insofar as it refers to the current gay partner, has not been explained by the Tribunal.

12. The Tribunal expressed the view that the applicant had fabricated claims and concocted evidence to achieve a successful immigration outcome and that the Tribunal found that the applicant was not a witness of truth. The Tribunal’s reasons in relation to this preliminary assessment of credibility then proceeded to make a statement that “in making these findings the Tribunal considered the evidence as outlined above.” That is presumably a reference back to the statutory declaration of the applicant’s partner as there is an express reference to statutory declarations provided by third parties. This makes clear that the earlier reference to third parties included the current partner in respect of whom no identified inconsistency appears in the Tribunal’s reasons.

13. The Tribunal then said:

    However for the reasons outlined below, in a separate paragraph, the Tribunal places no weight on these as evidence of the truth of the applicant’s claims to be a homosexual, his involvement with the RPP and/or RPP-N in Nepal and the difficulties he has and will face for the reasons he claims.

14. It is common ground that no separate paragraph provides reasons addressing the matter referred to in paragraph 49. To the extent that it is read as referring to paragraphs plural, the core reasoning that might be said to have been the subject of focus by the Tribunal in that regard appears in paragraph 126. That paragraph refers to not giving any weight to the contents and claims of the applicant’s alleged current partner’s evidence. The reasoning in relation to that rejection, on the face of the Tribunal’s reasons, is the rejection of the applicant’s evidence and the applicant being a credible witness. That fundamental lack of credibility, when read with the earlier assessment in relation to credibility and the assessment of third party inconsistencies does not explain any significant inconsistency with the alleged current partner’s evidence.

15. The structure of the Tribunal’s reasons, following the reference to credibility, identifies the Tribunal engaging in an assessment of sexual orientation identifying, in paragraph 51:

    For the reasons that follow the Tribunal finds the applicant is not genuine in his claim to be homosexual or to fear return on this or any associated basis. This leads the Tribunal to find that the applicant is not a witness of truth.

16. The analysis that then follows in respect of sexual orientation addresses delay, the applicant’s relationship with a particular earlier alleged gay partner, the applicant’s brother’s knowledge of the applicant’s sexuality, the applicant’s fears in relation to his wife and her family, as well as his fears in respect of his family. The Tribunal then turns to consider the applicant’s alleged political fear of harm, the delay in applying for protection, and matters raised in a s 424A letter, but not those in respect of the issue touched on in the letter concerning the alleged gay partner. The Tribunal also referred to the topic of the applicant’s return from Qatar and request for visa extension and approaching police. The Tribunal then engaged in analysis under a heading ‘Credibility Summary’.

17. This Court is all too conscious of the fact that headings are not the basis upon which one should approach the fair reading of the Tribunal’s reasons and that the reasons must be read as a whole. The headings, however, in the present case are consistent with an observation that appears in the reasons in support of the adverse credibility findings concerning the applicant’s sexual orientation to the effect that:

    Central to the applicant’s claim to be homosexual is his claim to have been in a relationship –

    with his former partner. It is difficult to see how the former sexual history could be any more significant or central than the current alleged relationship which was not the subject of any topic, heading or detailed analysis in the assessment of credibility.

The grounds

1. The ground in the amended application is as follows:

   1. The Tribunal made a jurisdictional error of legal unreasonableness or lack of proper consideration when considering corroborative evidence.

   Particulars

   a. The Tribunal may make a jurisdictional error where it makes material findings of fact which are legally unreasonable, in the sense that they lack an evident and intelligible justification (Minister for Immigration and Border Protection v SZVFW [20181 HCA 30 at [101 and [82]).

   b. The Tribunal may make a jurisdictional error where it fails to engage in proper, genuine and realistic consideration with respect to the Applicant's case (Carrascalao v Minister for Immigration and Border Protection [20171 FCAFC 107; 252 FCR 352 at [451).

   c. Such errors may arise m relation to findings of credibility and dismissal of corroborative evidence (BZD17 v Minister for immigration and Border Protection [20181 FCAFC 94; 263 FCR 292 at [45]);

   d. The Tribunal made such an error at paragraph 126 of its decision in the present case.

2. The ground advanced by Mr Jones of counsel on behalf of the applicant in the amended application for relief contends that the Tribunal, in paragraph 126, in rejecting the corroborative evidence of the current partner by giving it no weight on the ground of a fundamental lack of the credibility of the applicant’s evidence, does not reflect a real and meaningful engagement or the engaging in an active intellectual manner with the evidence of the current partner.

3. The Court accepts that submission, notwithstanding the further analysis that refers to the making of adverse findings effectively identifying that the fact that the applicant and his current partner currently share a place and socialise together does not outweigh the significant credibility aspects outlined above by the Tribunal.

4. This analysis does not reflect an engagement by the Tribunal with the corroborative evidence advanced by the applicant’s current partner. Nor does the finding of the Tribunal referring to having considered the evidence and because the applicant is not a witness of truth, and as not accepting that the applicant is a homosexual or in a homosexual relationship with his current partner or with anyone else, identify an active intellectual engagement with the corroborative evidence advanced by the partner.

5. Whilst I accept there may be cases in which there has been a “poisoned well” by reason of which no corroborative evidence can overcome the adverse credibility findings, this is a case where the Tribunal itself identified that there were alleged inconsistencies with the third party’s evidence in respect of which none are identified by the Tribunal in respect of the current partner. It is also one where the Tribunal, even on a fair reading, does appear to have treated as central the historical sexual partner allegations concerning the applicant rather than treating as equally central the allegation of the current relationship. Those failures by the Tribunal are inconsistent with an active and intellectual engagement with the evidence of a current partner.

6. The preliminary assessment engaged in by the Tribunal of credibility of claims, which is inaccurate, reinforces the adverse finding in the present case that this is not a case in which the Tribunal has merely reasoned on the basis that the well has been so poisoned that no corroborative evidence could assist. That is inconsistent with what the Tribunal said in that preliminary assessment of credibility. It is the case that the Tribunal identified the substance of the corroborative evidence in its decision before reference to the credibility assessment. However, there is no evidence of the Tribunal analysing the current partner’s claims and evidence to support the conclusion that they should be given no weight as identified in paragraph 126.

7. There is force in Mr Jones’ submission that the Tribunal has not engaged in the making of a finding in respect of the credibility of the partner who supports what is part of the applicant’s claim to fear harm. The evidence could not be described as any less central than the past historical sexual alleged relationship.

8. In these circumstances there has not been a real and meaningful intellectual engagement with the corroborative evidence of the current partner such that there has been a constructive failure to exercise the jurisdiction of the Tribunal. Accordingly, a jurisdictional error is made out.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 31 October 2019