SZTSA v Minister for Immigration

[2019] FCCA 2967

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTSA v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2967

Catchwords:
MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to a decision of the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant a protection visa – whether Tribunal misunderstood evidence – whether it was open to Tribunal not to accept particular evidence in the absence of evidence to the contrary – whether it was reasonably open to Tribunal to make the findings it did on the basis of country information – whether findings were reasonably open to it – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 476

Cases cited:

NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC

Randhawa v Minister for Immigration, Local Government and Ethic Affairs (1994) 52 FCR 437

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

Applicant: SZTSA

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 540 of 2017

Judgment of: Judge Manousaridis

Hearing date: 9 October 2019

Date of Last Submission: 9 October 2019

Delivered at: Sydney

Delivered on: 18 October 2019

REPRESENTATION

Applicant in person

Counsel for the First Respondent: Ms K Hooper

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 540 of 2017

SZTSA

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision of the second respondent (Authority) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).

Background

1. The applicant is a citizen of Mongolia. He arrived in Australia on 27 January 2011 and, on 20 April 2011, he applied for a Protection visa on the ground he satisfied the criterion provided for by s.36(2)(a) of the Act. A delegate of the Minister refused that application, and the Refugee Review Tribunal affirmed the delegate’s decision.

2. On 31 January 2013 the applicant again applied for a Protection visa, this time on the ground that he satisfied the complementary protection criterion provided for by s.36(2)(aa) of the Act which had then been recently introduced into the Act. The application was initially treated as an invalid application but, after the Full Federal Court’s decision in SZGIZ v Minister for Immigration and Citizenship,[1] the application was accepted as a valid application for a Protection visa.

   [1] [2013] FCAFC 71

Claims for protection

1. The applicant stated his claims for protection in a statutory declaration that formed part of his application for a Protection visa.[2] The applicant claimed he is a bisexual. He arrived in Australia in January 2011 with his daughter and the mother of his daughter (Ms A). Ms A is a lesbian. The applicant and Ms A lived together in Australia, but out of financial necessity, and also because the applicant and Ms A needed to care for their daughter. On 16 April 2012 the applicant moved out of the accommodation he was sharing with Ms A and his daughter.

   [2] CB51-54

2. In around July 2011 the applicant was diagnosed with Hepatitis C. The applicant received treatment, but this affected his life dramatically. The applicant has no sexual desire, and the treatment has caused impotence. The applicant finished his treatment, but he was to be tested in a further three months. The treatment of Hepatitis C in Mongolia is very poor. Mongolia has some of the worst health systems in the world. If the applicant were not to get proper treatment in Mongolia there would be a large possibility he would get liver cancer.

3. The claims the applicant made in his statutory declaration should be read with the claims the applicant made in a statement he submitted in support of his first application for a Protection visa.[3] The applicant there claimed:

   a)He had sexual experiences with men in Switzerland in 2005 and 2007. He could not recall when he became attracted to men as well as women. When he was working at a hotel the applicant slept with a foreign man. The applicant could not tell anyone in Mongolia about his sexuality.

   b)When he was 22 years of age the applicant married under pressure from his family, and his first wife fell pregnant. After six or seven months into the marriage the applicant informed his wife about his sexuality. The applicant’s wife was shocked, and she and the applicant separated. They formally divorced in 2005.

   c)In 2005 the applicant met Ms A through a mutual friend (Mr J) who is homosexual. Ms A was pressured by her family to marry, and Ms A’s girlfriend asked Mr J to find a male with whom Ms A could live with to look normal, but also to allow her to follow her own life. The applicant agreed; and he and Ms A tried to look like a couple. Due to pressure from his parents, and to look normal, the applicant and Ms A had a child in 2009.

   d)The applicant left Mongolia because he could not stand anymore the discrimination, insults, and abuse directed towards him, and also toward his daughter because she is the daughter of a homosexual. The applicant and Ms A first went to China, where the applicant, Ms A, and their daughter, applied for visas to Canada. They failed, and returned to Mongolia. The applicant, Ms A, and their daughter, then travelled to Korea, where they applied for a tourist visa to enter Australia. They also travelled to Japan.

   [3] CB1-3

4. The applicant also made claims based on harassment by his first wife’s brother (Mr N). He claimed as follows:[4]

   a)About three years after the applicant separated from his first wife Mr N began to threaten the applicant for money and assaulted him. Mr N threatened to tell people the applicant is gay unless the applicant paid Mr N money.

   b)The harassment by Mr N occurred even though Mr N was in gaol for murder. The applicant claimed Mr N “could walk free in the street” because in Mongolia “some prisoners are allowed outside briefly to work or visit families”.[5]

   c)It became worse after Mr N was released from gaol in 2009. Mr N physically assaulted the applicant. He did this because the applicant is gay, and because of what occurred between the applicant and the applicant’s former wife.

   d)The applicant reported the violence to the police. Mr N informed the police, however, that the applicant had been married to his sister and he was bisexual. The police then told the applicant to “go”, and called the applicant “rubbish” and other names. The police also hit the applicant with their batons. The police did nothing to help the applicant.

   [4] CB3

   [5] CB3, [36]

5. The applicant provided a further statutory declaration, this time in support of his application for review by the Tribunal.[6] That statutory declaration dealt with events after the applicant gave evidence before the delegate.[7] The applicant said he had casual sex with more than ten men, and that with most of these sexual partners he had sex one, two, or three times. The applicant identified three of the men, Mr G, Mr B, and Mr F.

   [6] CB181-183

   [7] That occurred on 29 October 2014 (CB142).

The Tribunal’s reasons

1. The Tribunal found that although the applicant may have had occasional sexual contacts, he does not identify as a bisexual man; and he does not fear harm if he returns to Mongolia because “he does not intend to pursue a homosexual or bi-sexual lifestyle”.[8] The Tribunal relied on the following:

   a)Although the Tribunal accepted it is possibly true that the applicant has had some homosexual contact in Mongolia and Australia, there was little supportive evidence of those contacts, other than a statutory declaration from Mr G.[9]

   b)Although the applicant claimed he is bisexual, “he has been concerned to keep the nature of his sexuality hidden in Mongolia and to a large extent in Australia”.[10]

   c)The applicant has had a heterosexual partner, heterosexual contact with Ms A, and is the father of two children.[11]

   d)The applicant has not had a long term partner in Mongolia, and gave little detail at the hearing before the Tribunal about his claimed bisexual lifestyle in Mongolia.[12]

   e)The applicant obtained a letter of support dated 7 December 2012 from two persons who had employed the applicant to assist with renovations that did not mention the nature of the applicant’s claims, and their support was expressed in very general terms.[13]

   [8] CB215, [52]

   [9] CB215, [48]

   [10] CB215, [48]

   [11] CB215, [49]

   [12] CB215, [49]

   [13] CB215, [50]

2. The Tribunal did not accept the applicant’s claims that his former wife’s brother and friends mistreated him, or that the applicant approached the police for assistance.[14]

   a)The Tribunal found implausible, and it therefore did not accept, the applicant’s evidence that the applicant’s former wife’s brother who had been gaoled for murder was free for most of the period for which he was sentenced because he worked outside the gaol. The Tribunal said there is no evidence that a person convicted of murder in Mongolia could freely access the community during his sentence.[15]

   b)The applicant provided little plausible detail of these claims at the hearing before the Tribunal. The Tribunal instead considered that, following the breakdown of his marriage, Mr N may have threatened him, but such threats arose from a private dispute. The Tribunal found that given the applicant separated 20 years ago from his former wife, the applicant will not face harm from Mr N if the applicant returns to Mongolia. Further, given the population of Ulan Bataar is 1.31 million, the Tribunal did not accept the applicant will necessarily come into contact with Mr N if he returns to Mongolia.[16]

   c)The applicant’s evidence about his life in Mongolia was inconsistent with the applicant’s claims of serious mistreatment by Mr N. The Tribunal referred to the applicant’s evidence that he operated a successful small business over a long term; his forming the companion relationship with Ms A; his having a daughter with Ms A; and his purchasing an apartment in 2009.[17]

   [14] CB216, [58]

   [15] CB216, [54]

   [16] CB216, [57]

   [17] CB216, [60]

3. The Tribunal then considered country information about the situation of the LGBT community in Mongolia. The Tribunal found that although in the past the LGBT community has faced a history of significant social discrimination, with some individuals having suffered significant harm, the current situation has significantly improved;[18] and that although there is some information suggesting that in 2011 ultra nationalist groups were targeting the LGBT community, there was no information suggesting that further attacks have taken place in recent years.[19]

   [18] CB217, [61], [62]

   [19] CB220, [76]

4. Finally, the Tribunal referred to the applicant’s claims in relation to the treatment for Hepatitis C that is available in Mongolia. The Tribunal found that the applicant was free of that disease and would therefore not face harm in Mongolia for that reason.[20]

   [20] CB216221, [79]

5. In the light of these findings, the Tribunal was not satisfied the applicant meets the complimentary protection criterion provided for by s.36(2)(aa) of the Act.

Grounds of application

1. The applicant, who is not legally represented, relies on the following grounds of application contained in the amended application (errors in original):

   1.The Tribunal Member took into account incorrect information when making their decision.

   Particulars:

   a.at paragraph 44 of the Tribunal decision, the Tribunal Member stated that “I was taken into detention for a short time” and that I was released from detention.

   However, I have not spent any time in detention since arriving in Australia.

   I found it the Tribunal Member clearly mixed up my case with someone else’s case.

   b.at paragraph 44 of the Tribunal decision, the Tribunal Member stated that “I did not use any gay websites” but the Tribunal Member did not asked me any questions during the hearing about my use of gay websites.

   c.at paragraph 49 of the Tribunal decision, the Tribunal Member stated that “I have not had long term partner in Mongolia. It is impossible to have a long term committed relationship with gay partner due to real risk of discrimination from the barbarian society of Mongolia, could have ended up the victim of hate crime.

   2.The Tribunal Member made a finding in their decision that my ex-wife’s brother worked outside the gaol during his prison sentence was ‘implausible’.

   The Tribunal Member did not have any evidence to support this conclusion.

   Particulars:

   a.at paragraph 54 of the Tribunal’s decision, the Tribunal member stated that ‘the Tribunal find this evidence implausible and does not accept it.

   b.The Tribunal Member did not give weight to real harm from individuals and society.

   3.The Tribunal Member’s decision was excessively one-sided in their review of the country information relevant to my case.

   Particulars:

   a.At paragraph 67 of the Tribunal Member’s decision, they noted that there were still significant challenges in the area of workplace discrimination, education, police attitudes to LGBT and social pressure to confirm to traditional gender roles.

   Although this information is supportive to my claims, the Tribunal Member did not give weight to it in making their decision.

   b.at paragraph 76 the Tribunal Member stated ‘there has no information suggesting that further attacks have taken place in recent years.

   I found, No information does not mean there is no attacks or harm for LGBTI, specially country like Mongolia with strong tradition of heterosexual believes and hate crime does not report to police due to fear of having more harassment and abuse based on their sexual orientation from police.

   In fact there is plenty information and reports on that issue.

   c.I came to Australia in 2011 since then and as well as recently protection visa has been granted for Mongolian LBGTI applicants. It proves that there is significant harm for the LGBTI community in Mongolia.

   4.The Tribunal Member’s decision was excessively one-sided in their review of my sexual orientation as bisexual.

   5.The Tribunal Member did not give weight to my evidence in making their decision.

   Particulars:

   a.at paragraph 46 the Tribunal Member did not give weight onthat evidence.

   b.The Tribunal Member did not consider that I and my daughter’s mother [Ms A] are most informant witness in that case.

   6.The tribunal member affirmed the decision based on incomplete information and incomplete consideration from Delegate of Minister for Immigration and Border Protection.

   PS: please try to understand by lack of law knowledge and English.

2. The applicant also made submissions at the hearing, some of which addressed or which could reasonably be taken to have addressed some of the grounds contained in the amended application. I will first consider each of the grounds of application.

Ground 1

1. The first ground is directed to three matters. The first is the Tribunal’s stating in paragraph 44 of its reasons that the applicant was taken into detention for a short time. The ground claims the applicant has not spent any time in detention since arriving in Australia. This does not disclose any jurisdictional error. First, it is apparent that in paragraph 44 of its reasons the Tribunal purports to record what the applicant said. It does not represent any finding by the Tribunal to the effect that the applicant had been detained in Australia. Second, there is no transcript of the hearing before the Tribunal and, for that reason, I am not prepared to find, on the assumption that the assertions contained in ground 1 are to be treated as sworn testimony, that the applicant did not say words to the effect, or words that could reasonably have suggested to the Tribunal, that the applicant said he had been detained. Third, even if the Tribunal had misunderstood the applicant, there is nothing to suggest that this was material to the Tribunal’s decision.

2. The second matter to which ground 1 is directed is the Tribunal’s recording at paragraph 44 of its reasons that the applicant did not use any gay websites. The ground claims the Tribunal did not ask the applicant any questions during the hearing about his use of gay websites. This claim, too, discloses no jurisdictional error. First, the Tribunal purports to record what the applicant said at the hearing before the Tribunal. Even if I were to assume ground 1 is sworn testimony, I would not be prepared to accept its truth in the absence of a transcript of the hearing before the Tribunal. Second, even if the applicant did not say he did not use gay websites, the ground does not claim that the applicant said that he did use gay websites. Thus, the Tribunal’s statement that the applicant did not use any gay websites is correct. Third, the ground assumes it was for the Tribunal to ask the applicant whether he used gay websites. That assumption is not correct. The applicant knew that whether he was a bisexual, as he claimed, was an issue the Tribunal was required to consider, and it was for the applicant to provide evidence that was relevant to that question. That would have included evidence of his using gay websites, if that is what the applicant did, and if the applicant considered that to be relevant.

3. The third matter to which ground 1 is directed is the Tribunal’s finding in paragraph 49 of its reasons that the applicant did not have a long term partner in Mongolia. Paragraph (c) of the particulars to the ground may be taken to claim that it was legally unreasonable or irrational to consider the absence of the applicant’s having had any long term relationship in Mongolia, given the dangers the applicant submits that his doing so would have posed to the applicant. The Tribunal did not act unreasonably or irrationally. The applicant claimed he and Ms A had a baby so that they could “look normal”. That could reasonably have indicated to the Tribunal that the applicant claimed he was willing to conduct his affairs in a way that would conceal his bisexuality. In those circumstances, it was reasonably open to the Tribunal to have regarded the absence of any evidence from the applicant that in Mongolia he maintained any long term relationship as a matter weighing against its accepting the applicant’s claims that he feared returning to Mongolia because he was bisexual.

4. At the hearing before me the applicant said that he was not in detention. He submitted that this perhaps showed the Tribunal had mixed up his case with another person’s case. Even if I were to accept the Tribunal misunderstood the applicant’s evidence on this point, I could not be satisfied that that would have been due to the Tribunal’s having mixed up the applicant’s case with that of another person. The applicant has not pointed to any other matter that could suggest any such mixing up.

5. For these reasons, ground 1 fails.

Ground 2

1. Ground 2 is directed to the Tribunal’s finding in paragraph 54 of its reasons that it considered implausible the applicant’s evidence that Mr N worked outside the gaol during his prison sentence. The ground claims the Tribunal had no evidence to support its conclusion; and in support of that claim paragraph (b) of the particulars asserts the Tribunal did not give weight “to real harm from individuals and society”.

1. This ground assumes that in the absence of any evidence to support the contrary of what the applicant claimed – namely, that in Mongolia convicted murders are free to move in the community to work and visit families – the Tribunal was bound to accept that claim. That assumption is incorrect. The Tribunal is not bound to accept uncritically an assertion made by an applicant only because it has been made.[21] It is a matter for the Tribunal, acting reasonably, to assess whether it should give any credit to the claim. It was reasonably open to the Tribunal to consider the applicant’s claim as implausible in the absence of any evidence beyond the applicant’s claim that in Mongolia convicted murders are free to move in the community to work and visit families.

   [21] Randhawa v Minister for Immigration, Local Government and Ethic Affairs (1994) 52 FCR 437, at pages 451-452

2. The matter stated in paragraph (b) of the particulars is incapable of supporting ground 2. It assumes there was real harm to the applicant. That, however, ignores that it was for the Tribunal to determine whether the applicant faced real harm; and that turned on whether the Tribunal accepted the applicant’s claims and evidence, which included the claim that Mr N, being a convicted murderer who had been sentenced to imprisonment for his crime, was free to circulate in the community to work, and to visit family.

3. Ground 2, therefore, also fails.

Ground 3

1. This ground takes issue with the Tribunal’s assessment of country information. The ground particularly relies on the country information the Tribunal identified in paragraphs 67 and 76 of the Tribunal’s reasons. This part of the ground does not disclose jurisdictional error. As the Minister correctly submitted,[22] the weight the Tribunal gave to the country information that was before it, and its preference for certain country information, was a question of fact for the Tribunal. I am not satisfied the Tribunal’s findings on the basis of the country information before it were legally unreasonable or irrational.

   [22] First Respondent’s Written Outline of Submissions, [16], referring to NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC, at [11]

2. Paragraph (c) of the particulars claims that protection visas have been granted to Mongolian “LBGTI applicants”. That consideration, even if true, could not provide an arguable ground of jurisdictional error. The Tribunal’s task was to assess the applicant’s claims for protection having regard to the claims the applicant made and the material that was before it.

3. At the hearing the applicant submitted there was not enough information before the Tribunal about the circumstances of people in Mongolia who shared the applicant’s sexual orientation. He submitted that most of these people are in hiding. These submission do not disclose any jurisdictional error, because they are an appeal to the merits of his claims for protection.

4. Ground 3, therefore, also fails.

Ground 4

1. This ground claims the Tribunal’s decision was excessively one-sided. I take this ground to claim the Tribunal’s findings on the applicant’s sexuality was legally unreasonable or irrational. Whether that claim can be made out depends on the matters on which the Tribunal relied for being satisfied the applicant does not identify as a bisexual man, and does not fear harm if he returns to Mongolia because “he does not intend to pursue a homosexual or bi-sexual lifestyle”.[23] I have identified those matters in paragraph 9 of these reasons. I am not satisfied these findings are legally unreasonable or irrational.

   [23] CB215, [52]

2. Ground 4 also fails.

Ground 5

1. Ground 5 may be taken to make two claims. The first is that the Tribunal did not give weight to the evidence the Tribunal identified in paragraph 46 of its reasons. In that paragraph the Tribunal refers to a statutory declaration from a witness. That appears to be a reference to the statutory declaration Mr G gave.[24] I do not accept the Tribunal did not give weight to that evidence. The Tribunal said it considered evidence that included the evidence given by Mr G; and the Tribunal accepted the applicant may have had occasional sexual contacts with males.

   [24] CB184-186

2. The second claim ground 5 makes is that the Tribunal did not consider that the applicant and Ms A are the most important witnesses in the case. It is not clear what the applicant intends to convey by this part of ground 5. If the intention is to claim the Tribunal did not consider the applicant’s relationship with Ms A, I would not accept it. The Tribunal referred to and considered the applicant’s relationship with Ms A.

Ground 6

1. This ground discloses no jurisdictional error. It does not identify the information the Tribunal ought to have considered, the absence of which rendered the information that was before it to be incomplete; nor does it identify the matters on which the applicant relies for contending such information ought to have been before the Tribunal.

Other matters

1. The applicant made submissions on two other matters. One was to the effect that he was “too honest” in the evidence he gave. This does not disclose any jurisdictional error. Whether the applicant was credible was a matter for the Tribunal, acting reasonably, to assess. That the applicant had the opportunity not to tell the truth before the Tribunal, but he decided not to take advantage of that opportunity, is not a matter that is relevant to determining whether the Tribunal made any jurisdictional error in the assessment of the applicant’s claims.

2. The second matter about which the applicant made submissions related to interpretation. The applicant – who elected on his form of application that he did not require an interpreter – submitted that the interpreter before the Tribunal was poor. I spent some time exploring with the applicant the nature of the difficulties he says he experienced with the interpreter. The effect of what the applicant said was that he was not satisfied the interpreter conveyed all that the applicant intended to convey, but the applicant was aware of this at the time it occurred, and he took steps to explain in English that which he intended to convey.

3. In any event, the applicant was unable to identify particular information he claimed was not properly interpreted or not interpreted at all; and the applicant has not raised in his amended application any ground relating to interpretation. In those circumstances I am not satisfied there is even an arguable case that the Tribunal’s review of the applicant’s case miscarried because of any misinterpretation or failure to interpret. Further, based on my discussion with the applicant at the hearing, I am confident that, although the applicant might have experienced some difficulties with the interpreter, the applicant’s command of English and his intelligence enabled him to identify and address such difficulties as did arise at the hearing before the Tribunal.

Conclusion and disposition

1. The applicant has not succeeded on any of the grounds or submissions on which he relies. I propose, therefore, to order that the application be dismissed. I will consider the question of costs when I pronounce my order dismissing the proceeding.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 18 October 2019