FEDERAL COURT OF AUSTRALIA

ASW15 v Minister for Immigration and Border Protection [2015] FCA 1484

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an appeal by the appellants from an order made by the Federal Circuit Court dismissing an application for constitutional writs directed to the Administrative Appeals Tribunal (“the Tribunal”) (ASW15 & Ors v Minister for Immigration & Anor [2015] FCCA 2287). There are three appellants. The first appellant was the primary applicant. The second appellant is her husband, and the third appellant is her adult daughter. The second and third appellants were secondary applicants. The Tribunal has filed a Submitting Notice.

2    The appellants are citizens of Jordan who came to Australia on tourist visas. On 12 November 2013, they applied for Protection (Class XA) visas. A delegate of the Minister refused the applications and advised the appellants of his decision by letter dated 28 May 2014. On 5 June 2014 the appellants applied to the Tribunal for a review of the decision. The Tribunal conducted a hearing on 5 March 2015 involving the appellants and a representative and, on 16 April 2015, it decided to affirm the delegate’s decision. On 24 August 2015, the Federal Circuit Court made an order dismissing the appellants’ application for constitutional writs.

The Claims for Protection

3    The first appellant’s case was as follows. The first appellant has two sons whom I will call “A” and “B”. A came to Australia to study and, in late July 2013, the first appellant’s family was advised that A had been admitted to the Prince of Wales Hospital in Randwick, New South Wales. They were also advised at or about this time that A had applied for a Protection visa in Australia.

4    B obtained a tourist visa to travel to Australia and support A and take him back to Jordan.

5    A and B returned to Jordan on 14 September 2013 and they were questioned at the airport by “the intelligence department”. Five days later, A was summoned to the intelligence department and he went there with a solicitor. A was questioned about being homosexual and about applying for asylum in Australia.

6    The solicitor then informed the first appellant’s extended family or tribe of A’s homosexuality and that A had had sex with members of the extended family or tribe. The tribe then declared that the appellants were no longer members of the tribe and threatened to kill them unless they killed A or handed him over to them. Their home was attacked. The police were of no assistance and in fact imprisoned the second appellant and A and B. The first appellant and the third appellant escaped to Aqaba and the second appellant followed them. They were followed by a group of about 10 people from the appellants’ home town and there was an attempt to attack them with knives, but they were able to escape owing to the large crowds. They came to Australia.

7    The first appellant claimed that she would be raped and killed if she returned to Jordan by the members of the tribe who believed that they had been lied to and dishonoured.

8    At the Tribunal hearing, the appellants gave further details of the events set out above.

The Tribunal’s Reasons

9    The Tribunal said that the appellants came to Australia on tourist visas on 14 August 2013. It noted that it had received medical evidence to the effect that the first appellant suffered from a depressive disorder. It took that matter into account while at the same time noting that there was nothing in the medical report to suggest that that condition affected the first appellant’s ability to recall events.

10    The Tribunal did not accept that A was homosexual or that he had made claims to have had sex with members of his tribe. The Tribunal accepted that A had applied for protection in Australia and, giving the benefit of the doubt to the first appellant, that A’s application for protection was known to Jordanian authorities.

11    The Tribunal referred to A’s medical condition. The Tribunal said (at [51]):

All the claims surrounding what [A] did or didn’t claim, and what response they elicited in Jordan needs to be viewed in light of his medical condition. The applicant’s son had a history of mental health issues in Jordan and was bipolar, was a hashish smoker there (folio 124), and had a psychotic episode in Australia that resulted in his hospitalisation before being deported. He had been on a treatment of anti-psychotic drugs that he ceased taking before he came to Australia (folio 124).

12    I note that the medical notes of the Prince of Wales Hospital indicate that A was an involuntary admission to the hospital on 26 July 2013. He had a history of bipolar affective disorder and he had an episode of manic psychosis. He had arrived in Australia in 2012 on a student visa. He applied for a protection visa in 2013, but his application was refused. He was discharged from the hospital on 13 September 2013 and he flew back to Jordan with his brother who had come to Australia to support him.

13    When A arrived in Jordan, he was interviewed by the General Intelligence Directorate. The Tribunal found that the Directorate would have been aware of A’s mental health issues and that it was plausible that the Directorate would have been aware of his application for a Protection visa. The Tribunal said that there was no independent country information to the effect that Jordanian authorities persecute individuals simply for seeking asylum. The Tribunal said that it did not accept that A made claims of having had sex with three members of the tribe, including the Sheikh’s son, or that A’s application for a Protection visa was made known to other members of the tribe.

14    The Tribunal found implausible, for the reasons it gave, the alleged role of the relative/solicitor and the alleged tribal meeting. The Tribunal rejected the suggestion that the first appellant and her family were threatened or attacked.

15    The Tribunal reached the conclusion that the first appellant’s claims lacked credibility, that she was not a reliable, credible or truthful witness, and that the claims she made had been fabricated for the purposes of obtaining a Protection visa.

16    The Tribunal’s conclusion with respect to the claims meant that the claim for complementary protection also failed.

The Federal Circuit Court

17    The grounds of the application for judicial review were as follows:

1.    The Member of the Tribunal misunderstood the case and acted contrary to the evidence before him especially the issue of homosexuality of our son.

2.    The Member’s decision is based on assumption rather than on the evidence and material before the Tribunal and previously before the Department of Immigration concerning the protection visa of the son.

3.    I ask the Honourable Court to take into consideration the transcript of 5 March 2015 before Member Shanahan.

18    With respect to the first ground, the Federal Circuit Court judge said that the Tribunal had not erred in not taking steps to obtain information relating to A in the Department file or before the Review Tribunal. It was open to the appellants to tender information from A’s application of review if they believed it to be relevant. He said that the allegation in the first ground was an impermissible challenge to the adverse findings of fact made by the Tribunal. He said that the Tribunal made findings which were open to it.

19    With respect to the second ground, the judge said that this was an attack on factual findings made by the Tribunal. He said that the findings were open on the material before the Tribunal and could not be said to be lacking a logical foundation. The judge said that, although the delegate found that the first appellant believed her son may be a homosexual, the Tribunal made a less favourable finding after fully exploring the issue with the first appellant.

20    With respect to the third ground, the judge referred to an observation by the Tribunal that the third appellant said that she feared the same harm as the first appellant for the same reason. He said that, although she had applied for a Protection visa as a secondary applicant even if she was treated as a primary applicant, her claim would fail for the same reasons as the first appellant’s claim failed.

The Appeal

21    The first and third appellants appeared in person before this Court as they had before the Federal Circuit Court. They made brief oral submissions and relied primarily on a six page submission which they had put before the Federal Circuit Court and an additional two page submission they put before this Court. They made a number of points in their written submissions.

22    First, they contended that the Tribunal had erred in finding that they had arrived in Australia on 14 August 2013 when in fact they had arrived in Australia on 3 November 2013. They contended that, although their tourist visas were issued on 14 August 2013, they arrived in Australia on 3 November 2013. The Tribunal said that the appellants arrived in Australia on 14 August 2013. The first respondent appeared to accept that the appellants arrived in Australia on 3 November 2013. The Tribunal did not make any point to the effect that the appellants had delayed in making their application for Protection visas, and the Tribunal’s error as to the appellants’ date of arrival in Australia was of no consequence in terms of its decision.

23    Secondly, the appellants contended that, whereas the delegate accepted that A was homosexual, the Tribunal did not accept that fact. There are two answers to this submission. First, it is clear from the transcript of the hearing before the Tribunal that whether A was homosexual was in issue before the Tribunal, and that would have been known to the appellants. There is no error of the type identified in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63. Secondly, in any event, the delegate did not find that A was homosexual, but rather that the first appellant may consider her son to be homosexual.

24    Thirdly, the appellants contended that the delegate accepted that their family suffered persecution as a result of A’s sexual preference. The delegate said:

In light of the issues outlined above, although I accept that the applicant may consider her son to be a homosexual, I do accept that the applicant’s family has suffered persecution as claimed because of her son’s sexual prefernce (sic).

I think there is a typographical error in this passage and that the delegate intended to say that he did not accept that the applicant’s family has suffered persecution as claimed because of her son’s sexual preference. To my mind, that is clear from the decision as a whole and the delegate’s conclusions. Furthermore, the question of whether the applicant’s family had suffered persecution because of her son’s sexual preference was clearly in issue before the Tribunal.

25    Fourthly, the appellants referred to the evidence relating to A’s medical condition. The Tribunal took this evidence into account and there is no error in its approach to this issue.

26    Fifthly, the appellants complained of a number of findings of fact made by the Tribunal and in this context they complained, in particular, of the Tribunal’s failure to consider A’s application for a Protection visa. There was no jurisdictional error in the way the Tribunal went about making its findings and none of its findings are irrational or illogical in the relevant sense (Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611). As to the Tribunal’s alleged failure to inquire into A’s unsuccessful application for a Protection visa, the appellants did not identify what information in that application would have assisted their case or explain why they could not have put relevant information before the Tribunal. Even if it be accepted that in his application A claimed to be homosexual, the fact is that the application was refused and, in any event, the appellants’ case depended on revelations in Jordan. Any duty on the Tribunal to inquire is a limited one and did not arise in the circumstances of this case (Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39).

27    Sixthly, the appellants submitted that the Tribunal’s conclusions were unreasonable. They complained about the Tribunal’s adverse credibility findings. Such findings are matters par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67] per McHugh J). Furthermore, I have read the reasons carefully and I do not think that the Tribunal’s conclusions were unreasonable (Minister for Immigration and Citizenship v Li and Another (2013) 249 CLR 332).

28    Finally, the appellants pointed to the medical evidence concerning the first appellant. The medical evidence to the effect that the first appellant was receiving cognitive behavioural therapy and was suffering from a depressive disorder was noted and taken into account by the Tribunal. It was open to the Tribunal to conclude that the first appellant’s medical condition did not affect her ability to recall events.

Conclusion

29    In my opinion, the Federal Circuit Court judge did not err. As the appellants were not represented, I have examined the Tribunal’s reasons and considered whether it committed a jurisdictional error. I do not think that there was such an error.

30    The appeal must be dismissed with costs.

Associate:    

Dated:    23 December 2015