DIE20 v Minister for Immigration, Citizenship, Migrant Services and... [2022] FCA 102 | Case summary

Grounds of appeal 13 Although the appellant has articulated four separate grounds of appeal, the gravamen of the appellant's attack on the decision of the primary judge centres on a single complaint. The appellant contends that the primary judge ought to have found that the Tribunal failed to conduct a proper review of the decision of the delegate and of the proper application of the refugee test, and acted unreasonably because it failed to consider the application, or otherwise, of the Military Criminal Act of South Korea to the appellant, an issue that was said to arise from the material before it. 14 The principles relevant to such a complaint were noted by the Full Court in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 at [18] (emphasis in original): • The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 (Htun) per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed. • The Tribunal is only required to consider such claims where they are either: (a) the subject of substantial clearly articulated argument, relying on established facts; or (b) clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 (NABE) per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 (AWT15) per Barker J (at [67]). • These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 (2017) FCA 111 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said: ... A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ). (Emphasis added.) • As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]): (a) such a finding is not to be made lightly (NABE at [68]); (b) the fact that a claim might be said to arise from materials is not enough (NABE at [68]); (c) to clearly emerge from the materials, the claim must be based on "established facts" (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 (SZUTM) per Markovic J (at [37]-[38])). In SZUTM, Markovic J said: 37 While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it. 38 Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on "established facts". At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must "emerge clearly from the materials before the Tribunal and should arise from established facts". I agree with the primary judge's approach: the decision in NABE must be read in light of the principle set out in Dranichnikov. (d) while there is no precise standard to determining whether an unarticulated claim has been "squarely raised" or "clearly emerges" from the materials "a court will be more willing to draw the line in favour of an unrepresented party": Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and (e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant's claims are presented over time. 15 Cognizant of these principles, several observations can be made about the review conducted by the Tribunal and that subsequently undertaken by the primary judge. 16 First, as submitted by the Minister, although the appellant was represented before the Tribunal and the FCC, no attention was drawn to the Military Criminal Act, or to any specific offence contained in that Act, in either the pre- or post-hearing written submissions of the appellant, nor was it referred to by the appellant during the oral hearing. No complaint was made before the primary judge that the Tribunal had overlooked the import of the Military Criminal Act. 17 The appellant has raised the import of the Military Criminal Act directly for the first time in this appeal. The Minister submitted that this is a new ground raised on appeal for the first time and thus requires leave. The Minister, quite properly, did not point to any relevant prejudice if leave were to be granted. In any event, the Minister submits that, in light of the findings of the Tribunal, there is no utility in granting leave because the claim regarding the Military Criminal Act is subsumed by the Tribunal's finding with respect to the appellant's claim to be homosexual. The Minister contends that that claim that was apparently not accepted by the Tribunal. 18 The real question is whether this is indeed a separate claim or is an essential component or integer of an existing claim that was not considered by the Tribunal. In my view, the existence of the offence created by the Military Criminal Act is an essential component or integer of the appellant's primary claim to fear persecution in his home country and one which reasonably fell within particulars 1 - 4 of ground one before the FCC. It follows that leave is not required: cf BKQ16 v Minister for Immigration and Border Protection [2019] FCA 40 at [70]. 19 The appellant articulated clearly to the Tribunal his claim to fear persecution as a homosexual in the military. In the Tribunal's reasons at [43], the Tribunal recorded that it read out the claims of the appellant during the oral hearing and said: The applicant confirmed they were now accurate and complete. He added that he was a conscientious objector to military service. And that he feared being LGBTI in the military. 20 At [68], the Tribunal recorded the appellant's concerns: as to how homosexuals would be treated in the military. He spoke of his own physical presence, as being very slight and as fitting the bill of a classic pacifist. He spoke of his limited capacity for self-defence. He stated that his mother fears for him in the military because of his effeminate appearance. 21 The Tribunal had before it country information submitted by the appellant's representative which included relevant articles of the South Korean Military Services Act which were directed to persons who refused to undertake compulsory military service. The Tribunal also had before it country information prepared by the US Department of State in 2019 (2019 Report) which the Tribunal had itself sourced, and which, inter alia, referred to significant human rights issues included laws criminalizing same-sex sexual conduct between adults in the military; the Ministry of National Defense reported no instances of bullying in the military although local NGOs believed hazing played a role in suicides in the military; alleged mistreatment by superiors outing lesbian, gay, bisexual, transgender, and intersex (LGBTI) soldiers to their colleagues and family members; amendments to the Military Service Act in December 2019 to allow conscientious objectors to fulfil the military service obligation by working for 36 months at a correctional facility, prior to which those who refused service faced up to three years' imprisonment; the government ceased detaining, charging or imprisoning conscientious objectors to military service in 2018; the Military Criminal Act's 'disgraceful conduct clause' that criminalizes consensual sodomy between men in the military with up to two years' imprisonment if convicted, which was ruled constitutional by the Constitutional Court in 2016; Amnesty International considered the criminalization of LGBTI relationships in the military has a significant impact on broader societal attitudes as half the country's population goes through compulsory military service. 22 The Tribunal set out verbatim (Tribunal's reasons at [84]) a paragraph contained in the 2019 Report under the heading 'Political Prisoners and Detainees' which explained the changes to the Military Service Act in so far as it dealt with conscientious objectors. The Tribunal accepted the information in that paragraph and was 'satisfied that the applicant will not be detained, charged or imprisoned if he maintains that he is a conscientious objector' (Tribunal's reasons at [86]). 23 The Tribunal went on to refer (Tribunal's reasons at [91]) to the appellant's fear of 'actually completing his military service as a LGBTI man and being physically incapable of withstanding the infliction of bashings/battering likely to occur'. 24 Once again, the Tribunal set out portions of the 2019 Report, including that 'there were no reported instances of bullying in the military despite a general belief that hazing played a role in suicides in the military. However, the Tribunal acknowledges that some mistreatment of soldiers persisted' (Tribunal's reasons [94]). The Tribunal noted that the 2019 Report also indicates that the Ministry of National Defence has implemented the Basic Law for the Status and Service of Military Personnel in 2016, a law which 'aims to ensure the basic rights of personnel and provide remedies for violation of human rights' (Tribunal's reasons at [95]). 25 Notwithstanding the several provisions of the 2019 Report referred to by the Tribunal, it made no mention of that part of the 2019 Report which referred to the criminalization of consensual sodomy between men in the military by the provisions of the Military Criminal Act. 26 I turn to consider the individual grounds as articulated in the originating application. 27 As to Ground One, the appellant contends that the FCC ought to have found that the Tribunal had failed to conduct a proper review. The gravamen of the complaint is that already articulated above, namely that the Tribunal failed to make findings about the existence and effect of the Military Criminal Act of South Korea which makes sodomy a criminal offence subject to two years imprisonment. The Tribunal's failure to regard that Act as material for the purposes of the appellant's case is said to be a failure to conduct a proper review. 28 Before the primary judge, the appellant contended that 'the Tribunal failed to consider the appellant's claim that he is a LBGT member to face persecution in the South Korea military'. In particular, it was contended: 1. The Tribunal diverted his attention to the applicant being a LGBT member in South Korea but failed to consider meaningfully the applicant's true claim of being a LGBT person in the South Korea military facing persecution. Particulars: a) In assessing the country information relevant to the applicant's claim, the Tribunal selected information regarding LGBT person in South Korea and ignored the information relating to LBGT person in the military where the Applicant claims be to a LBGT person in the military facing persecution. The Tribunal's unreasonable selection or assessment of country information constitutes apprehended bias or legal unreasonableness. b) The Tribunal failed to genuinely engage with and address the grounds that the Applicant advanced, being a LBGT person facing persecution in the military. c) The Tribunal took irrelevant considerations of the country information whether a LBGT person in South Korea would face persecution, irrelevant to the applicant's claim of being a LBGT person in South Korea military. d) The Tribunal simply relayed a series of general information from the country information and made determination at a high level of generality without any attempt to apply the information to the applicant's claim correctly. Consequently, the Tribunal failed to deal with the applicant's claim of being a LBGT person in the South Korea military. 2. The Second Respondent failed to determine whether the Applicant's fear is well-founded as required by s5J. a) The Tribunal failed to consider relevant Country information regarding the LGBT members facing persecution in South Korea military, provided by the applicant and from its own research, namely the latest US state Department's report on human rights in Korea, being the crucial information in relation to the applicant's objective well-founded fear. b) The Tribunal failed to consider or engage with the Applicant's oral evidence sufficiently, being the subjective element of the well-founded fear. 3. The Tribunal overlooked, or deliberate avoided, the issue whether as a member of LGBT group, the applicant will face persecution in the South Korea military, being central to the Applicant's claim of protection. Particulars: a) In the hearing, the Tribunal repeatedly stated that he would like to source and double check the country information about the treatment of LGBTI in the military specifically, however, the Tribunal chose to ignore the information with respect to the treatment of LGBTI member in the military in the country information referred by himself, being , b) Further, the Tribunal failed to determine this issue in its final decision, evidencing the Tribunal's unwillingness to deal with the important integer of the Applicant's claim. 4. As a result of the Tribunal's failure to deal with the applicant's claim that he is a LGBT member in South Korea military facing prosecution, the Tribunal also failed to consider the applicant's claim regarding the risk of harm in the military because of him being physically incapable of withstanding the infliction of bashings/battering. 5. The Tribunal's determination is unreasonable and illogical. Particulars: a) The Tribunal finds that any punishment the applicant might receive for evading conscription would be due entirely to the general application or legitimate lawful sanctions, but failed to consider the persecution the applicant may received [sic] due to refugee convention reasons outside the general application of law. b) In relation to the claim that the applicant may be required to complete alternative service for 36 months, the Tribunal failed to consider the refugee convention that whether the applicant, being considered in a special social group of LGBT, will face persecution in completing alternative service. 29 The issue of failure to consider a material integer of the appellant's claim was squarely put before the primary judge. Quite properly, the Minister accepted that the consideration of the appellant's claim of fear of persecution as a homosexual person serving in the military in South Korea was in issue before the FCC. 30 The primary judge dismissed the appellant's contention, saying: 23. At [102]-[110] of its reasons, the Tribunal found that on the basis of all the material before it and all of the applicant's claims, the applicant did not have a well-founded fear of persecution if he was then returned to South Korea, or if he was returned at a time in the reasonably foreseeable future. The Tribunal had relevantly considered all matters before it and had not failed to make any obvious enquiry about a critical fact. ... 25. Ground 1 of the Amended Application for Review is without merit. In a lengthy decision, the Tribunal relevantly dealt with all of the applicant's LGBTI claims relating to possible persecution for all the reasons advanced, including by reason of the applicant's failure to return to South Korea as well as the possible imposition of a penalty as a result of matters related to non-completion of military service and the consequences thereof. When so closely analysing the applicant's claims, there was no evidence that the Tribunal was in anyway biased, or that it had acted unreasonably. The Tribunal weighed up the applicant's claims about his LGBT friend, but did not accept such claims because of a lack of detail and substantiation. 26. The Tribunal demonstrated an active and intellectual engagement with the articulated claims made to it. It properly referred to the fact that South Korean laws providing for the imposition of a penalty or a term of imprisonment for the failure of a citizen to undertake military service were laws of general application which did not specifically target the applicant for any reason which might give rise to persecution. There was nothing in the Tribunal's approach to its decision making task which might have given a fair minded and informed person a reasonable apprehension that the Tribunal might not have brought an impartial mind to the task of arriving at its decision. Further, there was no basis for the claim that the Tribunal had acted unreasonably when making its finding. The Tribunal addressed all relevant claims and was not required to refer to each and every part of the evidence when making its findings. (Emphasis added) 31 The primary judge held, correctly, that an administrative decision-maker is not required to refer to each and every part of the evidence before it when making its findings. Equally, when a decision-maker fails to deal with part of the evidence that bears directly on an applicant's clearly articulated claim, a strong inference may arise that it has been overlooked: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [47]. 32 The Minister contended that the claim regarding the Military Criminal Act is subsumed in the Tribunal's 'non-acceptance' of the appellant's claimed homosexuality and is therefore immaterial. Although the Tribunal made no direct finding as to whether the appellant was in fact homosexual (as compared with its express finding that he was not a genuine conscientious objector (Tribunal's reasons at [82]), it is tolerably clear that the Tribunal was prepared to accept the appellant's claim to now be homosexual, despite its reservations about a previous application for a partner visa on the basis of a heterosexual relationship (Tribunal's reasons at [80]). The Tribunal said it was 'impressed by the applicant as a witness' and 'found his responses to be both spontaneous and fulsome' (Tribunal's reasons at [75]). During the hearing, the Tribunal noted that it had 'some homework to do to satisfy myself about really the treatment of LGBTI in the military quite specifically' (Transcript .1704758 27/03/20 P-33 Line 36). 33 It is an inescapable conclusion that the Tribunal failed to have regard to the particular part of the 2019 Report that dealt specifically with the treatment of LGBTI in the military. Given the otherwise careful and detailed consideration of the appellant's claims by the Tribunal, a clear inference arises that the portion of the 2019 Report dealing with the Military Criminal Act was overlooked by the Tribunal. The primary judge was in error in holding that the Tribunal had relevantly considered all matters before it and had not failed to make any obvious enquiry about a critical fact. The consequences of the Military Criminal Act for a homosexual were 'material' to the appellant's claim that he would be persecuted or suffer harm if he were conscripted. The primary judge ought to have found that the Tribunal overlooked relevant material when considering this integer of the appellants claim. 34 Ground one must succeed. 35 As Ground One succeeds, it is unnecessary to deal with the further grounds of appeal. Each of those grounds depends upon the findings I have already made about whether the Tribunal overlooked the Military Criminal Act and its materiality to the appellant's claims to fear of harm and/or persecution.

DIE20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

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