ECY17 v Minister for Immigration and Anor

[2020] FCCA 2989

FEDERAL CIRCUIT COURT OF AUSTRALIA

ECY17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2989

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in India as a homosexual – applicant believed but Tribunal found the applicant had a right to enter and live in Nepal which he had not exercised – whether the Tribunal overlooked critical evidence considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.36

Cases cited:

Applicant WAEE v Minister for Immigration (2003) 75 ALD 630

Gill v Minister for Immigration [2017] FCAFC 51

Minister for Immigration v MZYTS [2013] FCAFC 114

Minister for Immigration v SZNPG [2010] FCAFC 51

MZYNA v Minister for Immigration [2012] FCA 159

NABE v Minister for Immigration (No 2) [2004] FCAFC 263

Applicant: ECY17

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2864 of 2017

Judgment of: Judge Driver

Hearing date: 3 November 2020

Delivered at: Sydney

Delivered on: 27 November 2020

REPRESENTATION

Solicitors for the Applicant: Mr M Jones of Parish Patience Immigration Law

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed on 14 September 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2864 of 2017

ECY17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 21 August 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. The following statement of background facts is derived from the submissions of the parties.

3. The applicant is a citizen of India who on 15 March 2013 applied for a protection visa.[1] He had previously entered Australia on student visas. In his protection visa application, he claimed to fear harm if returned to India on the basis that he was homosexual, and that homosexuality was not permitted in Hinduism, which considered it to be wrong and abnormal. He claimed that he had been discreet about his homosexuality in India, including with his family, and that if his family discovered his sexuality they would not accept him. He claimed to have been party to an arranged marriage, however that marriage broke down, and his wife had told his family that the applicant was not a real man, resulting in the spreading of rumours. The applicant felt vulnerable to blackmail and violence in India, and did not have the protection of police. The applicant claimed that he had not experienced harassment from his family in India as they remained unaware of his sexuality. He claimed that if returned to India he would be forced to re-marry, and would be potentially subject to blackmail and physical attacks, and be at risk from his ex-wife’s family. He would have to deny his sexuality.

   [1] Court Book (CB) 1

4. On 7 January 2015 the delegate refused to grant the applicant a visa.[2] The applicant applied to the Tribunal for review.  The Tribunal held a hearing into the applicant’s claims on 12 July 2016.[3]

   [2] CB 262

   [3] CB 333

Tribunal’s decision

1. As noted above, on 21 August 2017 the Tribunal affirmed the decision under review.[4] The Tribunal accepted at [42] that the applicant was homosexual. However, it did not accept at [43] that the applicant was at risk of harm from his ex-wife’s family or from his own family at [44]. By reference to country information the Tribunal did accept at [47]-[56] that the applicant had a real chance of serious harm due to his membership of a particular social group, being a homosexual man in India.

   [4] CB 385

2. At [57]-[59][5] the Tribunal considered whether the applicant could safely relocate within India, and found that he could not.

   [5] CB 397

3. The Tribunal considered whether the applicant came within the terms of s.36(3) of the Migration Act 1958 (Cth) (Migration Act); that is, whether the applicant had “taken all possible steps to avail himself … of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including country of which the non-citizen is a national”. The Tribunal had regard to information at [56]-[68] that indicated that the applicant had a right to enter and reside in Nepal. The Tribunal was satisfied at [84] that the applicant had a right to enter and reside in Nepal. The Tribunal found at [85] that s.36(3) was engaged as the applicant had not taken all possible steps to avail himself of that right. The Tribunal was not satisfied at [88]-[123] that the applicant was at risk of harm in Nepal. The Tribunal was not satisfied at [125] that Nepal would return the applicant to India.

4. An aspect of the Tribunal’s reasoning at [79]-[80] in support of its conclusion that the applicant has an existing right to enter and reside in Nepal, was that it took into account that the applicant had lost his Indian passport, and would need to apply to the Indian High Commission for a replacement. The applicant claimed that by reference to the documents he would need to submit to obtain a new passport, he would be required to divulge his “protection visa matters”. The applicant submitted that he could not be expected to do this.

5. The Tribunal rejected the argument at [81]. It had regard to the requirements for obtaining a new passport through VFS Global (described as the authority responsible for renewing or providing new Indian passports), and found that the applicant would not be required to disclose that he had applied for a protection visa.

6. At [71]-[77][6] the Tribunal rejected submissions from the applicant's representatives that a failed asylum seeker who was involuntarily returned from a third country would not be allowed entry to Nepal.

   [6] CB 400-402

The current proceedings

1. These proceedings began with a show cause application filed on 14 September 2017.  The applicant continues to rely upon that application.  There is one particularised ground in it:

   1. The Tribunal constructively failed to exercise its jurisdiction by misconstruing, failing to understand, or failing to take into account evidence of a critical claim made by the Applicant.

   Particulars

   The Applicant claimed that, in applying for a replacement of his lost passport, he would be required to produce to the authorities of his country of nationality evidence that would reveal that he had applied for protection in Australia. The evidence before the Tribunal was that he would be required to provide a copy of his current visa status and, if he were holding a bridging visa, a copy of a "Visa Grant Notice". The Tribunal noted that the bridging visa itself would not reveal his status as an asylum seeker, but failed to take into account that the "Visa Grant Notice" or equivalent document would reveal that the bridging visa had been granted in connection with an application for a Protection Visa.

2. This matter was originally docketed to Judge Barnes but, at a callover on 14 March 2019, her Honour transferred the matter to my docket.

3. I have before me as evidence the court book filed on 14 November 2017.  I also received into evidence the affidavit of Xavier Goffinet made on 27 October 2020, to which are annexed documents from the Minister’s Department, being a visa entitlement verification online check document generated on 18 January 2018 in relation to the applicant and a copy of a visa grant notice.  The applicant’s solicitor objected to the receipt of those documents on the basis that they were not before the Tribunal and hence irrelevant.  I received the affidavit and the annexed documents for the limited purpose of considering, in the event that the applicant established that the Tribunal had misconstrued the requirements for applying for a replacement Indian passport, whether that error was jurisdictional or, if it was, whether the Court should withhold relief in the exercise of discretion. 

4. Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their representatives at the trial on 3 November 2020. 

Consideration

1. The applicant advances one ground in his application for judicial review. The applicant asserts that the Tribunal constructively failed to exercise jurisdiction because it misconstrued, or failed to understand, or failed to take into account evidence of a critical claim made by the applicant. The thrust of the argument is that the Tribunal has misunderstood one sentence in the VFS Global checklist requirements that the Tribunal considered in its reasons. The checklist appears at CB 375.

2. The applicant had claimed in submissions made by his representatives following the Tribunal hearing[7] that if he applied for a replacement for his lost passport while holding a bridging visa he would need to produce, amongst other things, a “‘Visa Grant Notice’ [along with any other VEVO[8] requirements] clearly specifying the category of visa applied for”. He expressed a fear of approaching the Indian authorities because of his fear of harm from them or their agents due to his sexual orientation. The representatives submitted that it was not reasonable to expect the applicant to approach the Indian authorities in such circumstances.

   [7] CB 370, by reference to the document at CB 375

   [8] According to the Minister’s Department’s website, the Visa Entitlement Verification Online system "allows visa holders, employers, education providers and other organisations to check visa conditions":

3. In dealing with this claim, the Tribunal stated at [81]:[9]

   The Tribunal has considered the applicant’s concerns and notes that the applicant not required to disclose he has applied for protection in Australia in making a passport application.  While the applicant will be required to provide proof of a valid visa status, such as a visa grant notice, such a notice will refer to the category of visa applied for, that is, a Bridging visa C. As such, the Tribunal finds the applicant's application for a Protection visa will not be disclosed.  The Tribunal further notes that Protection visa claims are private and confidential and as such are not disclosed to any third party.  The Tribunal does not accept the applicant cannot obtain a passport from the Indian Embassy for this reason.

   [9] CB 403

4. The document relied on in evidence by the applicant was before the Tribunal.[10] It stated that the visa grant notice would need to specify the category of visa applied for, and that such a notice was additional to the VEVO record which states the category of visa granted and currently held. In the applicant's case, the document giving notice of the grant of the bridging visa was the acknowledgment of his application for the protection visa,[11] which was also before the Tribunal.

   [10] CB 375

   [11] CB 34-39, see bottom of page 2 to top of page 3

5. The Tribunal's conclusion that the applicant would not have to disclose his asylum seeker status when applying to have his lost passport replaced is said to have been based on a failure to give proper consideration to the evidence before it.[12]

   [12] Minister for Immigration v MZYTS [2013] FCAFC 114 at [38]; Gill v Minister for Immigration [2017] FCAFC 51 at [71]

6. The applicant contends that the result of this failure was that the Tribunal failed to consider a critical claim made or evidence presented by the Applicant, being that he would not be able to enter Nepal because he could not obtain an acceptable document.[13]

   [13] NABE v Minister for Immigration (No 2) [2004] FCAFC 263 at [63]

7. I prefer the Minister’s submissions in relation to the ground advanced.  In my view, the checklist reproduced at CB 375 is relevantly open to three interpretations.  The first possibility is that the requirement is that the passport applicant must identify not only the grant of a bridging visa but also the type or category of bridging visa obtained.  That is the interpretation adopted by the Tribunal and, in my view, it was an interpretation open on the material.  The second possible interpretation is that the passport applicant must identify if the category of bridging visa obtained is different from the particular bridging visa applied for.  The third possibility, and that asserted by the applicant, is that the requirement is that the passport applicant identify the substantive visa relating to the grant of the bridging visa.  That is a possible but less likely interpretation.  As I put to the applicant’s solicitor in oral argument, the bridging visa may be unrelated to any application for a substantive visa.  For example, a bridging visa might be granted for the purposes of the applicant making arrangements to depart Australia.

8. I otherwise agree with and adopt the Minister’s submissions in relation to the ground of review advanced.

9. The Tribunal plainly had regard to the evidence submitted by the applicant. It understood and considered the applicant’s argument about the concern that he would need to disclose his protection visa application to the Indian High Commission, because of the instruction that he provide proof of a valid visa status. Further, it was a matter for the Tribunal, within jurisdiction, to determine what the words on the VFS Global checklist meant. Even if the Tribunal was wrong about what the form meant, that would be an error within jurisdiction. The applicant’s argument, in effect, invites the Court to form its own view about what the instruction in the checklist required the applicant to do. This amounts to seeking that the Court engage in the Tribunal’s task of fact-finding. This Court does not have jurisdiction to engage in an assessment of the merits of the case.

10. Put another way, it is not jurisdictional error for the Tribunal to make an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims as long as the error does not mean that the Tribunal has not considered the applicant’s claim.[14] There was no failure by the Tribunal in this case to consider evidence, or to engage intellectually with the evidence. Neither was there a failure by the Tribunal to understand the applicant’s claim, or to engage intellectually with that claim.

    [14] Applicant WAEE v Minister for Immigration (2003) 75 ALD 630; Minister for Immigration v SZNPG [2010] FCAFC 51 at [28]; MZYNA v Minister for Immigration [2012] FCA 159 at [36]

11. In any event, the Tribunal did not misunderstand the VFS Global checklist, or the requirements for obtaining a new passport from the Indian High Commission. The applicant’s argument focuses upon a few words of the checklist, read in isolation. The relevant passage is as follows:

    VEVO/Visa Grant Notice/Visa sticker is an acceptable proof for a valid visa status. For all bridging visas, a ‘Visa Grant Notice’ must also be provided (along with VEVO) clearly specifying the category of visa applied for.

12. It is necessary to make a few observations about this instruction. First, the expression “clearly specifying the category of visa applied for”, was a reference to the content of the Visa Grant Notice, and was not a request for the applicant to disclose his protection visa application. Secondly, in respect of the instruction requiring that the Visa Grant Notice “clearly specify… the category of visa applied for” it must be noted that the applicant had not been granted a protection visa, and hence he would not be in possession of a visa grant notice confirming the grant of a protection visa, if indeed that was what he was expected to produce.

13. Finally, and in any event, the applicant claimed before the Tribunal that his concern in approaching the Indian High Commission was that he would be forced to reveal his protection visa claims.[15] There is no suggestion in any of the material that was before the Tribunal, and no evidence before the Court, that the applicant might have been required to disclose to the Indian High Commission his claims. The Tribunal expressly found at [81] that protection claims are “private and confidential and as such are not disclosed to any third party”.

    [15] CB 402 at [78]

14. The Tribunal did not misunderstand the requirements of the checklist. It was open to the Tribunal to arrive at the conclusions it did.

Conclusion

1. I conclude that the applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  27 November 2020