GTK18 v Minister for Immigration

[2019] FCCA 2546

FEDERAL CIRCUIT COURT OF AUSTRALIA

GTK18 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2546

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36,438

Cases cited:

Minister for Immigration v SZMTA (2019) 93 ALJR 252
S395/2002 v Minister for Immigration (2003) CLR 473
SZNOE v Minister for Immigration [2012] FCA 96

Applicant: GTK18

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3627 of 2018

Judgment of: Judge Driver

Hearing date: 10 September 2019

Delivered at: Sydney

Delivered on: 10 September 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr A Downie of Minter Ellison

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3627 of 2018

GTK18

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 22 November 2018.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 3 September 2019.   

2. The applicant is a citizen of India who arrived in Australia on 14 December 2006 as the holder of a student (subclass 573) visa.[1]

   [1] Court Book (CB 91)

3. On 17 September 2014 the applicant applied for the visa in issue.[2] The applicant claimed to be homosexual and to fear harm in India from her family, her community and the police on the basis of her sexuality which she claimed was condemned by her religion and family and considered illegal by the authorities. The applicant claimed that she would be not be allowed to live in her own way. The applicant claimed that she was in a relationship with a woman in India for several years and was arrested, tortured and charged under s.377 of the Indian Penal Code (Indian Penal Code) for having attended a party with her lesbian friends. The applicant claimed that her family came to know her sexuality after she was arrested and they subsequently threatened, harassed and disowned her, which led to her coming to Australia in 2006 on a student visa. The applicant claimed to have returned to India on four occasions since her arrival to meet up with her girlfriend and also claimed that she had had relationships with several women in Australia.[3]

   [2] CB 1–149

   [3] CB 20–26

4. In support of her application for the visa, the applicant provided the Minister with two news articles relating to the treatment of homosexuals in India.[4]

   [4] CB 44–49

5. On 23 June 2015 the applicant attended an interview with the delegate.[5] On 29 June 2015 the delegate refused to grant the applicant the visa.[6]  In arriving at this decision, the delegate found that the applicant “had fabricated evidence and claims for the sole purpose of supporting her protection application” and found “that her claims are not credible”.[7]

   [5] CB 93

   [6] CB 82–101

   [7] CB 96

6. On 30 June 2015 the applicant provided to the Minister five statutory declarations from various people attesting to her sexuality.[8]

   [8] CB 105–117

7. On 20 July 2015 the applicant sought review of the delegate's decision by the Tribunal.[9] On 27 July 2015 a delegate of the Minister issued a “certificate and notification regarding the disclosure of certain information under s.438 of the Migration Act 1958” which purported to condition the use and disclosure of Folios 52 and 65 of departmental file CLF2014/124487 under s.438(1)(a) of the Migration Act 1958 (Cth) (Migration Act) (non-disclosure certificate).[10]

   [9] CB 119–120

   [10] CB 118

8. On 3 August 2018 the applicant attended a hearing before the Tribunal to give evidence and present arguments in relation to the issues in the review with the assistance of a Hindi interpreter.[11] At that hearing the applicant submitted various documents to the Tribunal including a statement and two affidavits from third parties attesting to her homosexuality, a letter from a psychologist stating that she had spent most of her time at home and had limited social contact, photos of the applicant attending Mardi Gras and with another person at a bar called “The Sly Fox”.[12]  On 9 August 2018 the applicant provided a further psychological report to the Tribunal which stated that the applicant had a “homosexual personality”.[13]

   [11] CB 142–144

   [12] CB 145–172

   [13] CB 173–175

9. On 11 October 2018 the applicant attended a further hearing before the Tribunal with the assistance of a Hindi interpreter.[14]

   [14] CB 182–184

10. On 16 October 2018 the applicant provided a medical certificate to the Tribunal which stated that the applicant was a homosexual.[15]

    [15] CB 187

11. On 22 November 2018 the Tribunal affirmed the delegate's decision.[16]

    [16] CB 193–211

Tribunal decision

1. The Tribunal recorded the oral evidence provided by the applicant at both hearings,[17] and the independent country information before it concerning the treatment of homosexuals in India.[18]

   [17] CB 19 at [16]–[36]

   [18] CB 19 at [46]–[49]

2. The Tribunal did not accept that the applicant was homosexual as claimed and rejected all of her claims for the following reasons:

   a)the Tribunal found that the applicant's oral evidence about her claimed long term relationship in India was sparse in content and lacked convincing details and that the applicant's return to India four times was inconsistent with her claimed fear of harm from her family and community on the basis of her sexuality;[19]

   b)the Tribunal found the applicant's claim that she was arrested under s.377 of the Indian Penal Code and tortured was inconsistent with independent country information that indicated the provision was rarely invoked in the context of female homosexual conduct;[20]

   c)the Tribunal was concerned with the credibility of the applicant's evidence relating to her relationships while in Australia. For example, despite claiming to be in a relationship with a woman at the time of the delegate interview, that person did not attend the interview with the applicant or provide any evidence to either the department or the Tribunal. In addition, the applicant had provided the department with a statutory declaration dated 15 June 2015 before the delegate interview from a different woman who stated she was in a relationship with the applicant. Finally, despite claiming to be in a relationship with another woman at the time of the Tribunal hearing, that woman had provided no supporting oral or written evidence to the Tribunal;[21]

   d)the Tribunal found that the various supporting statutory declarations contained mere assertions that the applicant was a lesbian, with little or no explanation of the basis of knowledge on which those assertions were made, or contained information which contradicted the applicant's own evidence about her circumstances;[22]

   e)while the Tribunal accepted the medical reports provided evidence the applicant had exhibited symptoms of anxiety, depression and stress, it did not accept them as evidence of her claimed homosexuality as they contained “little more than a self-serving, self report” by the applicant;[23]

   f)the Tribunal found the applicant's photos of herself at the Sly Fox and her evidence of her membership of the Sydney and Gay and Lesbian Mardi Gras organisation did not, in themselves, establish the applicant was a lesbian;[24]

   g)the Tribunal found that the applicant's ignorance of the Indian Supreme Court's decision relating to s.377 of the Indian Penal Code and its impact for homosexuals in India added to its concerns about the veracity and credibility of her claimed sexuality;[25] and

   h)the Tribunal found that the applicant's delay in making her protection visa application of almost eight years after she arrived in Australia to be relevant and significant together with all of the other concerns that it had.[26]

   [19] CB 19 at [56]

   [20] CB 19 at [57]

   [21] CB 19 at [58]

   [22] CB 19 at [59]

   [23] CB19 at [60]

   [24] CB 19 at [61]

   [25] CB 19 at [62]

   [26] CB 19 at [63]

3. The Tribunal, having rejected the applicant's claims, did not accept that she faced a real chance of serious harm in India on the basis of sexuality.[27]

   [27] CB 19 at [65]

4. The Tribunal considered whether the applicant would face a real chance of serious harm as a single woman. The Tribunal found, having regard to general country information about gender based violence in India and the applicant's particular circumstances, that it was not satisfied the applicant faced a real chance of harm returning to India as a single woman.[28]

   [28] CB 19 at [67]–[68]

5. The Tribunal, having considered the applicant's claims singularly and cumulatively, was not satisfied that the applicant faced a well-founded fear of persecution upon return to India in the reasonably foreseeable future or a real risk of significant harm as defined in s.36(2A) of the Migration Act. For these reasons, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia owed protection obligations under s.36(2) of the Migration Act.[29]

   [29] CB 19 at [69]–[73]

The present proceedings

1. These proceedings began with a show cause application filed on 24 December 2018.  The applicant continues to rely upon that application.  There are three grounds in it:

   (1) The Tribunal decision was affected by [error] of law, procedural fairness and jurisdictional error in relation to grant of a protection visa. The questions in these appeals are whether the Tribunal erred in law as per Appellant S395/2002 v Minister for Immigration and Multicultural Affairs, Appellant S396/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 as follows:

   •by impliedly dividing homosexual women or men into two particular social groups - discreet and non­discreet homosexual women or men;

   •by failing to consider whether the need to act discreetly to avoid the threat of serious harm constituted persecution; and

   •by failing to consider whether the applicant might suffer serious harm if members of the Indian community.

   •discovered that they were homosexuals.

   (2) The Tribunal misdirected itself of on the issue of discretion

   Particulars:

   Discretion has the meaning of acting on one's own authority and judgement. In law, discretion as to legal rulings, such as whether evidence is excluded, may be exercised by a judge or tribunal member at all levels of law enforcement, which was denied in this matter. The Tribunal misdirected itself on the issue of discretion

   In tribunals decision was the finding that the applicant had not suffered harm in the past because they had acted discreetly. Because the Tribunal assumed that it is reasonable for a homosexual person in India to conform to the laws of Indian society, the Tribunal failed to determine whether the applicant had acted discreetly only because it was not possible to live openly as a homosexual in India. Because of that failure, the Tribunal, unsurprisingly, failed to give proper attention to what might happen to the applicant if they lived openly in the same way as heterosexual people in India live. Rather tribunal wrongly rely on Randhawa v MILGEA [1994] 52 FCR 437 where as Appellant S395/2002 v Minister for Immigration and Multicultural Affairs and Appellant S396/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 established homosexuals are being persecuted in India, Bangladesh, Pakistan, etc.

   Gummow and Hayne JJ had said in Abebe v Commonwealth in a passage with which Gaudron and Kirby JJ agreed 11:

   …..Even where a law such as s.377 is not enforced, however, there may be a real chance that a homosexual person will suffer serious harm - bashings or blackmail, for example - that the government of the country will not or cannot adequately suppress. That appears to be the position in Bangladesh and India. If the harm is inflicted for a Convention reason and is serious enough to constitute persecution, the homosexual person is entitled to protection under the Convention.  It is immaterial that the conduct of the applicant for refugee status disclosed his or her identity as a homosexual and attracted the attention of the persecutors.

   3.      Particular social group and persecution

   Jurisdictional error

   Particulars:

   The Tribunal also fell into jurisdictional error by failing to consider the issue of persecution in relation to the "particular social group". The Tribunal failed to consider that homosexual women in India constituted a "particular social group" for the purpose of the Convention. As a matter of law, this finding was open to the Tribunal. Indeed, if the Tribunal had held otherwise, its decision would arguably have been perverse. However, by declaring that there is no reason to suppose that the applicant would not continue to act discreetly in the future, the Tribunal has effectively broken the genus of "homosexual in India" into two groups - discreet and non-discreet homosexuals in India.

2. Although she denied it, it is apparent to me that the applicant received some assistance in preparing that application.  The application is supported by a short affidavit filed with it which I received.  I also have before me as evidence the court book lodged on 1 March 2019 and a supplementary court book filed on 30 August 2019. 

3. Only the Minister filed pre-hearing written submissions in this case.  When I invited the applicant to make submissions, she handed up a single piece of paper directed to me in which she states that she wishes to continue her case through a lawyer but could not arrange enough money for the lawyer and so she requests more time to arrange the money to get a lawyer.  The statement is dated today and signed by the applicant.  The applicant repeated that request several times.  I put to the applicant that the application has been on foot for approximately nine months.  I put the view that that should have been sufficient time for her to arrange legal representation.  The applicant stated that she had not had enough time and needed a few more months.  I put to the applicant that she had received help in preparing in her application and perhaps that person could have continued to help her.  She denied that she had received any assistance.  I rejected the adjournment application which was neither supported nor opposed by the Minister. 

4. The applicant maintained her request for an adjournment in her submissions in reply.  She stated that she was not in a position to make any other submissions.  As I put to the applicant, there is either a legal issue in this case or there is not.  If there is a legal issue, then the Court would adjourn the matter for a final hearing at a later date on that issue and the applicant would have time to arrange whatever representation she wished.  If, on the other hand, there is no legal issue, the adjournment would, in my view, serve no purpose.  It was on that basis that I refused the adjournment request as finally put. 

5. While the application on its face raises a number of hypothetical legal issues bearing upon cases in which homosexuality is a factor, the present decision of the Tribunal was based on adverse credibility findings.  In short, the Tribunal did not accept that the applicant is a lesbian as she claims.  Because the case turned on fundamental adverse credibility findings, in my view, the grounds advanced in the application fall away.  In other respects, I agree with the Minister’s submissions concerning the grounds. 

Ground 1

1. The applicant contends that the Tribunal erred as per S395/2002 v Minister for Immigration[30] by “impliedly dividing homosexual women or men into two particular social groups”; failing to consider whether the need to act discreetly to avoid the threat of serious harm constituted persecution; and failing to consider whether the applicant might suffer serious harm if members of the Indian community discovered she was homosexual.

   [30] (2003) CLR 473

2. This ground cannot succeed. The reference to S395/2002 is misconceived. The Tribunal's findings did not, either expressly or by implication, require the applicant to conceal or otherwise modify her behaviour so as to avoid persecution. Simply put, the Tribunal found that the applicant was not a homosexual as claimed having found it had serious doubts about the credibility of her claims. In light of these findings, the Tribunal cannot be said to have erred as alleged.

3. To the extent that this ground takes issues with the Tribunal's factual findings, it constitutes an invitation for the Court to engage in impermissible merits review and cannot succeed in establishing jurisdictional error.

Ground 2

1. The applicant contends that the Tribunal “misdirected itself on the issue of discretion” and refers to findings of the Tribunal that bear no resemblance to the present Tribunal's reasons for decision. Particularly, the applicant complains that the Tribunal found that she “had not suffered harm in the past because they had acted discreetly” and assumed “that it is reasonable for a homosexual person in India to conform to the laws of Indian society”, referring again to S395/2002 and asserting that it is immaterial whether an applicant disclosed his or her identity as a homosexual in attracting the attention of persecutors. The Tribunal made no such findings about the applicant's prior conduct or potential future conduct and, accordingly, no error can be discerned in findings of the Tribunal that it simply did not make.

2. The applicant also complains that the Tribunal “failed to give proper attention to what might happen to [her] if [she] lived openly in the same way as heterosexual people in India live”.  To the extent that this ground is taken to assert that error arises in relation to the Tribunal not making findings, either on the applicant's prior conduct or potential future conduct, these complaints are misplaced. Simply put, the Tribunal rejected the applicant's claim to be a homosexual, and all related claims, and as such, it was not incumbent upon the Tribunal to make any such findings. Accordingly, this ground cannot succeed.

Ground 3

1. The third ground complains that the Tribunal failed to consider that homosexual women in India constitute a particular social group for the purpose of the Convention and repeats the unfounded assertion that the Tribunal made a finding that the applicant would act discreetly in the future. These complaints bear no resemblance to the present Tribunal's reasons and must fail. Having not been satisfied that the applicant's claims were well-founded, it was not incumbent upon the Tribunal to determine whether any claimed particular social group existed.[31]

   [31] SZNOE v Minister for Immigration [2012] FCA 96 at [78] per Greenwood J

The non disclosure certificate

1. The other issue in this case concerns the purported non-disclosure certificate in the supplementary court book.  The Minister concedes that the certificate is, on its face, invalid and that it does not appear that it was disclosed to the applicant.  The Minister does not dispute that it follows that the tribunal made an error.  The question is whether that error goes to jurisdiction.  The documents covered by the purported certificate are a protection visa application validity check and an identification test. [32]   There was no issue before the tribunal either of the validity of the protection visa application or the applicant’s identity. 

   [32] Supplementary Court Book 2–4

1. It follows, in my view, that the documents purportedly covered by the certificate were irrelevant to the Tribunal’s review. [33]  I therefore agree with the Minister’s submissions on that issue. 

   [33] Minister for Immigration v SZMTA (2019) 93 ALJR 252 at [2]–[3] per Bell, Gageler and Keane JJ

2. I conclude that the applicant is unable to advance an arguable case of jurisdictional error by the Tribunal. I will therefore order that the application be dismissed under rule 44.121(a) of the Federal Circuit Court Rules2001 (Cth) (Federal Circuit Court Rules).

3. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant renewed her request for an adjournment, which has already been dealt with.

4. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  27 September 2019