AOO16 v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

AOO16 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 3048

Catchwords:
MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed

Legislation:

Migration Act 1958 (Cth), ss.424A

SZBEL v Minister for Immigration [2006] HCA 63

Applicant:

AOO16

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 119 of 2016

Judgment of:

Judge Vasta

Hearing date:

2 September 2019

Date of Last Submission:

2 September 2019

Delivered at:

Perth

Delivered on:

5 September 2019

REPRESENTATION

Solicitors for the Applicant:

FOUR LION LEGAL PTY LTD

Solicitors for the First Respondent:

SPARKE HELMORE

ORDERS

That the name of the First Respondent be varied to reflect “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
That the Applications filed 16 March 2016 and amended on 19 June 2017 and further amended on 9 August 2017 and on 17 June 2019 are dismissed.
That the Applicant pay the costs of the First Respondent, to be agreed or assessed, and taxed in accordance with Schedule 1 of the Federal Circuit Court Rules 2001.

IT IS NOTED:

A. That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

No. PEG 119 of 2016

AOO16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

On 2 March 2016, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision of the delegate not to grant the Applicant, AOO16, a protection visa. On 16 March 2016, the Applicant filed an originating application in this Court asking this Court to review that decision. Since then, the matter has had a rather unfortunate history in this Court. It would seem that orders were made for the hearing of this matter to occur on 8 August 2017.
However, it seems that just before that hearing date, the Applicant, about two months before that hearing date, filed an amending originating application. The hearing date of 8 August was filled up with argument as to whether the amendment would be allowed. The question as to whether that amendment would be allowed was reserved and a decision was given in that matter on 24 May 2019, which allowed the amendment, and, by consent, the Applicant then filed a further amended originating application on 17 June 2019.
The matter was set down before me on 2 September 2019. Given the history of the matter, I have done what I can to get this matter out as quickly as I can, because the delay that has been occasioned may be seen as being unacceptable, though trying to apportion blame for this is quite counter-productive.
The background of this matter is that the Applicant is a citizen of Zimbabwe. She claims to fear harm on return to Zimbabwe because of her homosexuality. She fears serious harm if she were to return to Zimbabwe, because of her sexual orientation. She said that she was born on 21 June 1972 in Murewa, Mashonaland, East Province, and she lived there until 1984 when her family moved to Harare. She lived there until her departure from Zimbabwe to Australia, apart from a few years during her marriage from 1994 to 2001.
She speaks, reads and writes the Shona language and her religion is Christian. The Applicant indicated that she had travelled to Botswana and South Africa on a number of occasions in 2010, 2011, 2012 and 2013.
The Tribunal assessed her claims and during its reasons summarised the matters before the delegate.
Before the Tribunal, however, the Applicant said that she became aware of her own sexual orientation in 2004. This followed the breakdown of the marriage in 2001. She said that, in about 2005, she was involved in a relationship with a woman that she met at a local bus stop on her way to work.
She claims that they were friends at first and as time passed they fell in love. She lived in Glenview. The Applicant said that they saw each other a lot, they were together for the duration of the bus trip each day and they saw each other on weekends. She claimed that they spent a lot of time together, but did not live together, as they were scared of discovery. She said her friend rented a room in a house and lived alone and no one knew that they were romantically involved, but knew that they were friends. Her friend died in 2010.
She said that her family didn’t know and only found out in 2012, some two years after her friend died. She stated that her family were upset when they found out. She said that the family did not support her, as they were accused of being the parents of a lesbian, and that sense of shame has remained. She said that they tried to talk her out of her sexual orientation, but she could not accept what they were saying. She claims that they had to sell their home in Glenview and downgrade to another, and they were not happy because of this.
She told the Tribunal she has had difficulties in relationships with a man and over the years found herself attracted to other women, and she used to talk to herself and wondered what it would be like to be free to express herself. She told the Tribunal that she formed a friendship with another woman who lived in Glenview and wasn’t married. She thought that there was something between them, but there wasn’t, and she moved on. She said that this woman told other people that she, the Applicant, was a lesbian, and after that she was targeted.
She said the first instance was in August 2012. There was a campaign against homosexuals, especially in a high density area, and they stormed her house accusing her of being a lesbian. She said they came to her home carrying placards and yelling, “Lesbian, out”, and then they broke into the house, smashed things, carried her out and beat her.
She said she was home with her daughter at the time, and while nothing happened to her daughter, the daughter was traumatised by the incident. The Applicant said that she was injured, but she did not report it to police, as she thought that they would turn against her, as she was a lesbian. She didn’t go to hospital, as she would need a police report.
She said that, in November 2012, there were a number of rallies and the president made a speech that homosexuals should be killed. So they came to her home and harassed her and beat her again. She said she was alone that day. And, again, she didn’t report it to the police or seek medical treatment. And she told the Tribunal that her parents were aware of these incidents in August and November 2012.
The Tribunal had some difficulty reconciling her public vilification with what seemed to be a smooth and peaceful existence at work. At paragraphs 31 and 32, the Tribunal put to the Applicant that she claims that people stand outside her house and harass because of her sexuality, yet she also claims her work colleagues do not know. The Applicant responded that they definitely know in her community, but in her work front they may not have known, or, if they knew, they never harassed her. She told the Tribunal she did not socialise with her work colleagues.
The Tribunal asked her why her workplace was so unique, as she claims the president was encouraging people to get homosexuals. Her claims were there was anti-homosexual sentiment and yet she claims she was left alone in the workplace. The Applicant responded that the dynamics in the workplace were different, as everyone focuses on their work, so they chose not to do anything about it. But, she said, it is a large community with a mob mentality. The Tribunal asked if her harassment was so unique to her community, why couldn’t she relocate to a safer area, and she replied that they have worked out she is in Australia and they can still threaten her, so if she relocated, word would get around and Zimbabwe is not that large.
The Tribunal put to her that she claims the intelligence community were after her, but she was not hassled in the workplace. The Applicant responded that no one came to her work, but they came to her house and they would time things to her coming and going. The Tribunal rhetorically asked why, if they were so intent on getting her, they would then leave her alone in her workplace.
The Applicant pointed to a letter she had from an organisation called Restoration of Human Rights (ROHR). She claimed that this letter supported her claim to be a lesbian. The Tribunal asked her why she didn’t bring any witnesses to speak of her sexuality, such as her brother. The Applicant said she thought that the Tribunal would only be interested in people from Zimbabwe, though she later said she was unaware that she could bring witnesses to the Tribunal.
When asked about her travel to South Africa and why she simply didn’t relocate to South Africa, the Applicant said that she believed that the intelligence of Zimbabwe may reach out and grab her. She said that there were many people in South Africa from Zimbabwe and she thought she would be sent back to Zimbabwe.
She said that she was not confident that she would be given protection in South Africa. She said that she thought she could be extradited back to Zimbabwe. The Tribunal pointed out to her that South Africa had decriminalised homosexuality and, if the authorities had not sought her out in her own workplace, why would she think that they would bother trying to extradite her if she fled to South Africa.
The Tribunal then made a number of findings which came down to the fact that the Tribunal did not accept that the Applicant was a lesbian.
The Tribunal did not accept that she had been harmed in 2012 because she was a lesbian, nor did the Tribunal accept that any personal group or Zimbabwean authority was out looking for her on account of her lesbianism.
The Tribunal found that the Applicant did not meet the criteria for the refugee criteria and did not meet the complementary protection criteria.
The further amended application has six grounds and with a number of sub-grounds. They are as follows:
1. The Second Respondent failed to afford the Applicant procedural fairness…
2. The Second Respondent failed to take into account the following relevant considerations…
3. The Second Respondent took into account the following irrelevant considerations…
4. The Second Respondent held apprehended bias as demonstrated by the Tribunal Member…
5. The Tribunal Member exercised their power improperly because…
6. The Second Respondent’s decision was so unreasonable that no reasonable decision maker could have arrived at it for the following reasons…
The first aspect of these grounds needs to have some background to put the submissions into context. There was some material that the AAT did not disclose to the Applicant. I have previously referred to the letter from ROHR. What was not disclosed to the Applicant was that the Tribunal had contacted the department about this letter. The relevant email is annexed to the affidavit of Mr Emmanuel Dominique Salama of 31 July 2017.
The email in question is dated Wednesday, 4 November 2015. It is sent from the Tribunal to the department’s Tribunal Liaison Section. It reads:
Dear, Tribunal Liaison Section. The Tribunal is currently considering an application for review in relation to AOO16 –
and the details are given:
The presiding member requires further information on a letter of support provided by the Applicant to the Tribunal. Specifically:
·If the department could contact Restoration of Human Rights Zimbabwe and ask for the name of their national coordinator, Zimbabwe.
·If Douglas Shumbayaonda is a member of the board or has any other role, official or otherwise, with the organisation in Zimbabwe or if they are aware of this person.
·If it is routine for the organisational members on behalf of the organisation to write letters of support for people (including other members of the organisation) seeking protection in other countries.
·If they do write such letters, do they have a process for providing such letters and who should sign those letters.
The email continues:
Could you, please, advise whether you are able to assist with this matter and, if so, an estimate of how long it may take. To note, a hearing has been scheduled for 20 November 2015. The Tribunal appreciates your assistance in this matter. If you require any further information, please, contact me on the below details or by return email.
The email was “signed” by someone from the AAT Protection Team. It was not signed by the actual member of the AAT who heard this matter.
The Applicant contends that the failure to disclose that email to the Applicant prior to the hearing on 20 November 2015 deprived the Applicant of
a)responding to some of the RoHR inquiries,
b)from presenting to the AAT copies of her communications with RoHR, copies of documents she provided the RoHR and further details of the verification process she underwent,
c)from being prepared to respond to queries relating to the RoHR letter and verification process, and
d)from obtaining information from RoHR with respect to their processes and procedures.
The submission continues:
If the emails had been disclosed to the Applicant, she would have had the opportunity to obtain the necessary information and prepare herself for any matters the second respondent raised relating to the RoHR. The Applicant was deprived of the opportunity to alleviate some of the concerns the second respondent had over the RoHR letter being based on “self-reporting”. In failing to disclose the emails to the Applicant, the second respondent failed to afford the Applicant procedural fairness.
With respect to this aspect, the Applicant also contends that the AAT believed the letter to be a bogus document and the failure to disclose this belief deprived the Applicant of an opportunity to show that this was not a bogus document. Further, the Applicant contends that by sending this email, the AAT can be seen to have had already made up their mind about the contents of this letter and therefore have displayed a bias or at least that these actions could allow an apprehension of bias to be formed.
To fully consider these aspects of the application, one has to look at the starting point which is the RoHR letter itself. That letter has been reproduced at page 180 of the court book. It is dated 25 October 2015 and sent to the Applicant at her address in Perth:
Dear, AOO16. We are very concerned about your situation in Australia. It is unfortunate that our country has a serious deficiency when it comes to protecting its citizenry. From this end, we will, as an organisation, liaise with the Australian Embassy to find common ground of pursuing protection for individuals, yourself included, who are at high risk of persecution because of your beliefs.
Homosexuality, as you are aware, is forbidden, and your return back home risks your life not only from state security agents but also from radical believers against the practice of homosexuality. Other countries have embraced diversity in cultural and sexual practices, but Zimbabwe is far from reaching that basic stage. Please, be informed the human rights organisations are also under threat and human rights defenders continue to be persecuted. In only March this year, a young man -
and the name is given:
…was abducted and to date we do not even know where the state security agents put him. He was abducted because of expressing his opinion. In your case, the practice of homosexuality is even worse than expression of opinion. It is sad that we have such a ruthless government that does not respect basic human rights. In recent months, we have witnessed various forms of human rights abuses, including killings with impunity by state security agents. It is not an option for you to risk coming back home at this point in time.
As an organisation for whom you are a member, we will seek to appeal to the Australian Government to protect you rather than expose you to our ruthless state security agents. I am sure the Australian Government will apply kindly to you some of the United Nations legal protection protocols such as:
·The 1951 Convention relating to the status of refugees
·The 1967 optional protocol relating to the status of refugees
·The Universal Declaration of Human Rights article 14
·The regional laws and standards
·The UN General Assembly resolutions
·The 1967 Declaration on Territorial Asylum and Rights Crucial to Refugee Protection, among others.
You deserve to enjoy the right to life as defined in the United Nations fundamental rights stated in the 1948 Universal Declaration of Human Rights. We remain focused and seek positive ways to foster progress on the best way forward in protecting people against inhuman, degrading, torture and other forms of human rights abuse. Please, share with the Australian authorities our position which seeks to advance peace, freedoms and justice. We hope the Australian Government will kindly consider your plight. Yours sincerely, Douglas Shumbayaonda, National Coordinator, Zimbabwe.
That letter is extremely general and is more in the form of country information than anything else. The Applicant contends that this letter is proof that the Applicant is a lesbian. I fail to see how this can be so on the face of it. The Tribunal did voice its concern about the letter during the hearing. The transcript, which is annexed to the second affidavit of the Applicant, discloses this at page 14 of the transcript at line 15. I will read it into the record. The Tribunal said:
You’ve provided a reference letter but that's written by someone in Zimbabwe. Who is the person who signed your letter from Zimbabwe?
The Applicant, through an interpreter
I can't remember exactly, but I think I might recall the person who signed the reference letter in Zimbabwe was a Mr Mark or - - -
The AAT:
No. It’s neither of those people.
The Applicant:
Okay. I can't clearly remember who it was any more. So - sorry. I think she might want to – she might have wanted to finish off the sentence.
This is the interpreter after:
But I can't remember who signed the letter. The two names I've just mentioned, they're two of the people I was talking to. All I remember is I got the letter. I read through it, obviously, but I didn’t pay too close attention who had signed. I simply read it and then presented it to you as needed.
AAT:
So you just joined an organisation solely for the purposes of getting a reference letter to support your claim to be a lesbian in Zimbabwe?
The interpreter said:
Okay. So the main – the main reason why I joined this organisation was really to have with them around if I go back to Zimbabwe, would I be safe and therefore if I go back to Zimbabwe, would I thrive and be able to get on with my life or would I pretty much be facing a bleak situation such as my death if I went back.
The AAT:
I am surprised that they would write a reference letter for someone who has just rung up and said, “I would like to join because I'm a lesbian in Zimbabwe and what would happen to me if I returned?” They don’t know you apart from a voice on the other end of the telephone.
The interpreter said:
Okay. Sorry about that. I'm just gathering ..... me. So when I first – in July – well, I first in July but they only then wrote the letter a few months later, like, in October. So they actually had asked me to provide various things. They didn’t just accept things off a single phone call. But between first conversation and getting the letter, I had to – for example, I had to provide basic evidence such as my full name, where I lived in Zimbabwe and, of course, my full story.
I had to tell them about my parents, where their current address is, my daughter, where she lives and those type of things. And then I even had to tell them a few things like I said before – documentation of Australian immigration and then that formed a number of supporting documents. There are questions that they asked me and they did, frankly, ask me, “How do we believe that you are who you are and what you've said is true?” And so I went, after which they then wrote this letter.
The AAT said:
If I told you I am able to have your membership of this organisation verified and I am able to follow up on your membership and the story you told, what would you say?
The interpreter said:
What are you saying? If I am able to?
The AAT repeated:
Okay. I am able to verify your membership of this – in this organisation and the basis of your claims to be a member and the basis on which they have written this letter of support and to verify the people who have written the letter of support. What would you say to me following up your claims to be a member and your claims to have spoken to them?
The interpreter said:
I'm sorry but just – let me just play back what I think you are saying here because I am not sure I am getting the – did you say if you were able to verify all these things, what will she say – then say or – yes. You have been able to verify all these things?
The AAT said:
No.
The interpreter said:
Therefore, what is her comment?
The AAT said:
What I am trying to say – sorry, what I am saying is that I am going to - - -
The interpreter said:
You are going to. Sorry. Got it.
The AAT:
- - - contact the organisation and verify the membership and conversation and the people. Yes.
The interpreter said:
Sorry.
The AAT said:
Sorry.
The interpreter said:
Initial clarification. Okay. I would be – okay, Member. If you were going to – if you were to go ahead and do this because I have no problem with you verifying this.

The Tribunal was clearly telling the Applicant that they were going to do exactly what was contained in the email. The Tribunal did not tell the Applicant that they had already made an inquiry some 16 days before the hearing, but the Applicant was clearly put on notice at that time, that is 20 November 2015, that the Tribunal was going to take steps to verify the letter. The Tribunal did not make a decision until March 2016. It would seem that the Applicant had ample opportunity to make those inquiries herself if she so desired and give a post-hearing submission to the AAT.
As it turned out, the Tribunal did not ever receive a reply from the Department and so had to deal with the letter at face value. However, having given the Applicant both an opportunity to explain how the letter came to be originated and putting her on notice that the Tribunal would be making its own inquiries, I cannot see how the Tribunal has failed to give the Applicant procedural fairness. That also goes to the submission as to the contention that the AAT believed that this was a bogus document. In my view, such a submission goes too far.
It is not that the AAT believed that this was a bogus document. The AAT, instead, was, by making the inquiries they did both by email and of the Applicant in the actual hearing, trying to establish whether the document was genuine. That is a different aspect than coming from a starting point that the document is a bogus document until it is proven to be a correct document. The AAT is in a position where it must critically evaluate what the evidence is before it as to whether it can be accepted. In that aspect, I cannot see that there has been a lack of procedural fairness with regard to this aspect either.
The fact that the AAT has already gone ahead and made some inquiries does not give any rise to any apprehension of bias. If the AAT had already come to a conclusion as to the way in which this letter should be looked at, one wonders why, then, they would actually be making inquiries, because if they already believed that the document was, in fact, bogus and that it had no value, why would there be any attempt to try and verify it. If the AAT had already made up its mind, why would the AAT give the Applicant notice that this was what it was planning to do.
It seems to me that what the AAT was clearly doing was giving both the Applicant, and anyone else in the position of being an observer, clear statements as to what they were doing. This is evidence that their minds were able to be changed because they wanted information so as they could actually make up their minds. It seems to me that any suggestion of an apprehension of bias arising from this letter certainly has no foundation.
The Applicant also contends that the AAT was under an obligation to give the Applicant notice that the AAT would consider issues other than issues arising in relation to the decision under review. The Applicant submits that the delegate had made the following findings:
a)the Applicant was not a lesbian.
b)the Applicant was not attacked and beaten in the first attack and second attack.
c)the Applicant’s parents had bought a property, but did not accept that they had sold their property; and
d)the Applicant’s family have not continued to be threatened since the Applicant had been in Australia.
The Applicant says that these, then, are the issues for determination in the hearing before the AAT, and that the AAT went outside of these issues for determination and made findings that:
a)the Applicant was not in a genuine relationship with her friend, Ms S;
b)that the Applicant would not genuinely seek to be a lesbian in Zimbabwe now or in the foreseeable future should she return there; and
c)the lack of harassment suffered by the Applicant in her place of employment entitled the AAT to draw an adverse inference.
The Applicant said that, because the AAT failed to give notice to the Applicant that those other issues, outside of what the Applicant says were the issues for determination, would be put to her during the hearing has, therefore, meant that the AAT has behaved in a procedurally unfair way to the Applicant.
This submission misapprehends the purpose of the hearing by the AAT. The AAT is not restricted to simply looking at the matters that were before the delegate and deciding whether the delegate was correct or incorrect. The AAT must bring a fresh set of eyes to bear upon the question and, for this reason, must look at all of the evidence before it afresh. The parameters for the AAT are to look at the evidence and to decide whether or not Australia owes protection obligations to the Applicant. Whether this results in the AAT looking at matters differently to the delegate or not is beside the point.
The Applicant relies upon what was said in SZBEL v Minister for Immigration [2006] HCA 63, where the Applicant says that the Court made these determinations that:
The AAT is not confined to whatever may have been the issues that the delegate considered, the issues that arise in relation to the decision are to be identified by the AAT. But if the AAT takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the Applicant what the other issue is, the Applicant is entitled to assume that the issues the delegate considered dispositive are the “issues arising in relation to the decision under review”
Similarly, the Applicant says that the Applicant in this case assumed that she was attending the hearing with respect to those, or as she perceived them to be, issues for determination. The Applicant then submits that the SZBEL (Supra) authority says that those issues have to be identified to the Applicant to start with.
The flaw in this submission is that the issue that is dispositive is the issue of whether the Applicant is truly a lesbian. Whilst the AAT may have gone beyond the same aspects in that issue that were dealt with by the delegate, it does not mean that there is a different issue. The observations made by the AAT are simply aspects of the same issue. There has been no failure by the AAT to inform the Applicant of different issues because there are, in fact, no different issues.
The next matter that goes to procedural fairness is that the Applicant contends that the AAT failed to make inquiries with respect to the memorandum of agreement of session regarding the property of the parents of the Applicant. This arises from a claim that the Applicant made that her parents had to sell their house because of the stigma of their daughter being a lesbian. To corroborate this claim, the Applicant provided the AAT with a copy of this memorandum.
Obviously, such a document cannot corroborate this claim. There is nothing on the document that says that this sale is being effected because the vendors need to sell because of the stigma of their daughter being a lesbian.
The Applicant says that the AAT ignored the document. It did no such thing. If one goes to the reasons of the Tribunal, even though the Tribunal was talking about what had occurred in the proceeding before the delegate, the Tribunal says this:
Provided was a copy of an agreement of sale indicating the Applicant’s parents, in December 2013, purchased a property in the district of Salisbury. The Applicant claimed to have been beaten –
etcetera. And it then goes on:
The delegate referred to the agreement for sale provided 17 December 2013. The Applicant referred to her parents being forced to sell their property because of the harassment. The delegate noted that the document indicates the parents are the purchasers rather than the sellers and this is not proof that they have sold their old property.
The submission is that this document was then not spoken about again in the hearing, nor is it spoken about in the reasons. The submission is that, by ignoring this memorandum and failing to put the document to the Applicant to verify what the document was, the AAT failed to afford the Applicant procedural fairness. This submission cannot be sustained, because such a submission elevates the document to a status that it truly could never have attained.
The next aspect of the procedural fairness claim is that the Applicant claims that the AAT failed to give notice to the Applicant of adverse credibility findings. The Applicant contends that the AAT was obliged to do this pursuant to s.424A of the Migration Act 1958 (Cth) (“the Act”).
The adverse findings complained of are found in paragraph 66 of the Applicant’s submissions. They are that:
a)the Applicant’s description of her relationship with Ms S was “unusual and vague”;
b)the Applicant’s relationship with Ms S was more of a friendship;
c)the Applicant was not harmed in the attacks and the Applicant’s failure to call any witnesses to verify the attacks and her sexuality;
d)the Applicant was not a lesbian and will not genuinely seek to be a lesbian in Zimbabwe now or in the reasonably foreseeable future should she return there; and
e)the Applicant joined ROHR because she “thought how best to get her visa”.
The Applicant says that had these propositions been put to the Applicant prior to a decision being made, the Applicant may have had an opportunity to provide evidence to the contrary.
These matters are not findings. They are observations on the evidence. The actual finding that was made was that the Applicant was not a lesbian. This issue was well and truly alive during the hearing and the Applicant did have an opportunity to put her case forward.
Even if these were findings, these were findings that were based on the evidence that the Applicant gave to the Tribunal themselves. It is for the Tribunal to listen to the evidence and to make findings. Section 424A talks about matters that are outside of the actual evidence given by the Applicant and country information. If that information was such that it would tend to affirm the decision being reviewed, then it must be put to the Applicant. These were not those sort of matters.
The Applicant complains that somehow she didn’t know that these matters would be an issue, and that if she had known this, she would have had the opportunity to produce evidence to the Tribunal. The Applicant has had every opportunity to put evidence before the Tribunal that goes to the question of whether she is a lesbian. This is especially so with regard to her relationship with Ms S. It is trite to say that a Tribunal does not simply have to accept the word of the Applicant when she says that she is a lesbian.
It is for the Applicant to put her best case forward and not for the AAT to show her where the deficiencies in her case are. None of the matters complained of were determinative of the issue, but they were observations and aspects of the matter that did go to the determinative issue, which was whether or not the Applicant was a lesbian. Section 424A does not mandate that the AAT needs to put this to the Applicant before making those findings.
This is also true of the observation by the AAT that the Applicant failed to call witnesses. The Applicant claims now she was not aware that she could have witnesses, yet if one goes to the response to the hearing invitation, at page 177 part 3 witnesses, it reads:
You may request that we take oral evidence from a person or persons. If you make such a request, we will consider your request carefully but may decide it is not necessary to take oral evidence from a person you nominate. Unless you advise us otherwise, we will assume that you will make arrangements for any witnesses to be available to give evidence.
And then there is a section that says:
I/we request that the member takes oral evidence from another member.
The box ticked is “no”. With regard to areas where you can have witness 1, witness 2, there has been written “N/A”, meaning non-applicable, and the Applicant has signed that on 27 October 2015.
It is difficult for the Applicant to maintain a submission that she did not know that she could call witnesses when she has signed that document as she has. Again, the AAT didn’t have to put these comments to her, nor did the AAT have to put to her their conclusions, nor any comment about the ROHR letter. As has been noted, the Tribunal did raise the ROHR letter sufficiently in the hearing and allowed the Applicant to say what she wanted about that.
The next aspect of the procedural fairness ground is the Applicant claims that the AAT made adverse credibility findings based on assumptions or incorrect factual findings. The Applicant lists eight factual errors and two wrong assumptions in their submissions which are summarised at paragraph 93 of their submissions. They are – the first factual error – with respect to the opportunity to call witnesses:
…who she claim knew about her situation, attend the Tribunal hearing, she indicated she was not aware she could have witnesses
and:
The Tribunal does not accept that she would have failed to take the opportunity to substantiate her claims by seeking her brother’s support if they were genuine, however, concluded her brother’s evidence would not serve any useful purpose since any evidence would be of no probative value.
That is said to be the first factual error.
The first wrong assumption is that with respect to her employment, it was not accepted that the Applicant would be able to remain employed without incident if she was targeted because of her sexuality.
The second factual error is said to be with respect to intelligence authorities in Zimbabwe. It was not accepted that if the Applicant was of any interest to the Zimbabwean intelligence authorities because she was a lesbian or for any other reason she would have been able to freely depart and re-enter Zimbabwe on the many occasions that she did.
The third factual error is said to be with respect to the harm she suffered at home during the attacks. It was not accepted that:
If the Zimbabwean intelligence authorities were so interested in her they would only target her when she was at her home.
The second wrong assumption is said to be with respect to the passing of time between the second attack and the June/July 2013 incident that was not accepted:
As plausible that in a country so strongly homophobic that once identified as a lesbian, that between November 2012 and July 2013, she was left alone and not sought after.
The fourth factual error is said to be with respect to the Applicant’s research relating to countries where homosexuality was decriminalised where she would be free to be a lesbian. It was not accepted that:
She was unaware that she would be able to be free to be a lesbian in South Africa.
The fifth factual error is said that, with respect to the June/July 2013 incident, it was not accepted that the Zimbabwean intelligence authorities or any other Zimbabwean authority came looking for her in July 2013.
The sixth factual error is said to be with respect to the Applicant’s claim she is a lesbian that it was not accepted she was a lesbian or that she attempted to commence a relationship with a woman who rebuffed her and told everyone that she was a lesbian and that she would genuinely seek to be a lesbian now or in the reasonably foreseeable future should she return there.
The seventh factual error is said to be the sole purpose the ROHR letter was obtained was because the Applicant felt she needed evidence to support her claims.
And the eighth factual error was alleged to be that a letter from a church was produced as a letter of support in relation to her application for protection.
The Applicant says that the AAT’s credibility findings were based on a number of assumptions which were not supported by probative evidence and the erroneous factual findings as particularised. This aspect of the claim is really an attempt to undertake an impermissible merits review. Each of those facts were conclusions that were open on the evidence. Just because the Applicant disagrees with them does not make them errors. The assumptions are inferences that were open on the evidence.
If one goes through the matters and compares it with what I have summarised already from the reasons, it is open to the Tribunal to find, on the evidence before it, that the Applicant knew that she could have called witnesses, the Applicant knew that she could have had her brother come to give supportive evidence, but she didn’t, which allowed the Tribunal to make an inference that the brother could not have helped her cause. It is the same logic that the Courts use in the celebrated Jones v Dunkel decision. There is nothing that is a factual error in that.
The assumption that the Applicant would be able to remain employed without incident if she was targeted because of her sexuality is an inference that was open on the evidence. The Tribunal was able, on the evidence before it, to question how a person in their everyday life is publicly known to be a lesbian and is targeted because of that, but is then able to have an incident-free work existence. That is something that is open on the evidence.
The second supposed factual error is again something that is open on the evidence; that if the Applicant were of such notice to the Zimbabwean authorities that she was targeted, why was it that she was allowed to go as freely as she was between South Africa and Zimbabwe or Botswana and Zimbabwe? That is an observation that is open on the evidence.
With regard to the Zimbabwean intelligence authorities only targeting her when she was home, it was open on the evidence for the Tribunal to come to the conclusion that if the authorities and the public that were so stirred up about her homosexuality were in such a state that they would try and get at her wherever she was, it makes no sense that she would not be targeted at her work.
The explanation by the Applicant that these people would time their attacks by knowing when she would be home and when she would be at work does not seem to have been something that the Tribunal accepted, and that was open for the Tribunal not to accept.
The aspect that, after the second alleged attack and the time that the Applicant left Zimbabwe, that she would be left alone is something that the AAT could infer, on the evidence before it, as being something that didn’t make sense. If the country was as homophobic as the country information indicates, that there would be a let-up in the attacks or the targeting between November 2012 and July 2013 is a matter to which the Tribunal could make the inferences it did. Again, that is something that is open on the evidence for the Tribunal to make.
With respect to the aspect of the Applicant saying that she was unaware that she would be able to be free to be a lesbian in South Africa, again the Tribunal was entitled to make such a finding or make a conclusion on the evidence that was before it. Again, that the non-acceptance of Zimbabwean intelligence authorities or other Zimbabwean authorities looking for her in July 2013, is something that is open on the evidence, and it is for the IAA to actually make a determination as to whether they are satisfied that the Applicant is a lesbian. Obviously, the AAT must be able to critically examine the aspects of the story that she has told.
The AAT is entitled to look at evidence and come to a conclusion as to whether they are satisfied as to an aspect or not. The AAT is not obliged to accept everything that is told to them. It is open for them to reject evidence as there are so many aspects of the matter that were unsatisfactory as far as the AAT was concerned. The fact that they have not accepted aspects of the Applicant’s evidence as to her pursuit of a woman who, ultimately rebuffed her is a conclusion that was open to the Tribunal.
As far as the ROHR letter was concerned, on what was before the Tribunal, the conclusions that were arrived at by the AAT were open, and as regard to the letter from the church, again, what was said there is something that was open to the Tribunal.

It is trite to say that just because a conclusion reached on the evidence is a conclusion that I may not have reached, or that the Applicant would not have reached, or that the counsel for the Minister would not have reached, is beside the point. It is not what conclusion should have been made, but whether the conclusion made was one that could have been made. In each of those matters, those conclusions were matters that could have been made. They, therefore, cannot be described as factual errors. And so the aspect of this part of the ground has no basis and, therefore, no merit.
The last part of the procedural fairness ground is that the Applicant claims that the Tribunal failed to consider the particular social group of persons who are perceived by the community at large to be homosexual.
However, again, it is trite to say that the Tribunal is only required to deal with claims that the Applicant advanced to it, and not required to consider a claim that was not made by the Applicant, or which could not be said to clearly arise on the material before the Tribunal.
In this case, the essence of the Applicant’s claims were that she was a lesbian and that, as a result of the woman she attempted to have a relationship with telling everyone in the community that she was a lesbian, she was subsequently targeted. Those claims were considered and the AAT concluded that the Applicant was not a lesbian and had not been attacked in August and November 2012.
It then means that, having made such a finding, there is no obligation on the Tribunal to then consider the potential social group of beings who are perceived by the community at large to be lesbian or homosexual because the Tribunal has found that she would not be a member of such a group. There cannot be said then to be a breach of procedural fairness in relation to that.
In the end, it has not been shown to me that there has been any lack of procedural fairness by the IAA in any of those matters pointed to by the Applicant. For those reasons, ground 1 fails.
Ground 2 is that the AAT failed to take into account relevant considerations.
In this respect, a relevant consideration is a consideration upon which it is mandated that the AAT consider. The Applicant claims that the AAT failed to take into account the memorandum of agreement of session; that the Applicant belonged to a particular social group of persons perceived to be lesbian or homosexual; that the Applicant has been forced to be separated from her daughter who is living with her brother, I think, in Zimbabwe, and who the Applicant has not seen since she left Zimbabwe; that moving to another part of Zimbabwe would mean that she could no longer be employed and be able to support her daughter, or how easy or difficult it would be for the Applicant to find alternative accommodation or employment elsewhere in rural Zimbabwe, and whether any form of unemployment benefits were offered by the Zimbabwean government; and, that the Applicant obtained the ROHR letter for the purposes of establishing how she could live with her sexual orientation issue or go back to Zimbabwe, and whether she would be safe.
It is submitted that the Tribunal is mandated to consider all those matters.
However, there is nothing in the memorandum of agreement that would dictate that it was mandatory to be considered.
Because the AAT has come to the conclusion the Applicant was not a lesbian, there was no need, and, certainly, it was not mandated, to consider whether she belonged to a particular social group.
The Applicant being separated from her daughter, who was living still in Zimbabwe, and she has not seen, is not something that is a mandatory consideration as part of her claim.
The only reason that the Tribunal would be looking at whether she could move to another part of Zimbabwe would be if they had found that she was a lesbian, and were then considering whether it was safe anywhere else for her to live. Because they found that she was not a lesbian, they did not have to consider her moving to another part of Zimbabwe.
The aspect of obtaining the ROHR letter is not a mandatory consideration. It is not something that is integral to her claim. Her claim is that she was a lesbian.
None of those matters that the Applicant complains of are relevant matters that were failed to be taken into account. Therefore, that ground fails.
Ground Three is that the AAT took into account irrelevant considerations. Again, an irrelevant consideration is a consideration which is prohibited from consideration by the AAT.
It is contended that the irrelevant considerations were whether the Applicant’s relationship with Ms S was a genuine relationship, and whether a genuine relationship is not conclusive evidence of a person’s sexual orientation; and the Applicant’s current relationship status, as this is not conclusive evidence of a person’s sexual orientation.
Of course, those matters are not looked at as to whether they are conclusive evidence.
One must look at the fact that the Applicant has said that she was a lesbian. Whilst a genuine relationship would, in most cases, be reflective of a person’s orientation, that will not always be conclusive evidence of a sexual orientation, but the genuineness of the relationship will always be something that a decision-maker that has to look at whether or not it has been proved to them that a person has a particular sexual orientation, the AAT was entitled to consider the circumstances of the relationship with Ms S.
The AAT was entitled to consider what her current relationship status was. Because of that, it cannot be said that these were irrelevant considerations and, therefore, there is no merit in ground three.
Ground four is that the second respondent, the AAT, held apprehended bias. During the course of the hearing, there was some debate about the aspect of apprehended bias and actual bias. The Applicant did not want to say that she was alleging actual bias, but the particulars that she gave go to actual bias.
Apprehended bias is bias that is apprehended in the manner in which the tribunal of fact is actually conducting the determination of the hearing. As such, it really could only be contained to what occurred during the hearing, and what had led up to it. In effect, what had the Tribunal done or said coming into the hearing and what occurred in the hearing that would give, to an observer looking at what was happening, if such an observer were able to do that, an apprehension that the Tribunal had already made up its mind.
It must be said that a Tribunal is engaged in an inquisitorial process; it is not an adversarial process where the Tribunal sits and hears different arguments from persons and comes up with a decision.
The Tribunal is inquiring, in the manner it is, because it has to be satisfied of certain matters. And sometimes the questioning will be, and should be, quite robust. But what is submitted to have been illustrating apprehended bias in this case is the Applicant saying that the AAT arrived at conclusions without evidence or a reasonable basis with regards to there being: no evidence of the parents selling the property, the purpose of the ROHR letter, the time which passed between the first contact with ROHR Zimbabwe and the letter, the Applicant’s evidence of the verification process undertaken by ROHR, the purpose of the church letter, the separation between work and the community, the conclusion the Applicant’s relationship with Ms S was unusual and vague, the Applicant being unaware she could call witnesses, contrary to the evidence that she did not know she would be able to bring someone from Zimbabwe to be a witness, the Applicant’s failure to call her brother as a witness when her brother giving evidence would not serve any useful purpose, the intelligence authorities in Zimbabwe keeping the Applicant under surveillance when she had not stated that, and the Applicant not being a lesbian or not being likely to genuinely live in Zimbabwe as a lesbian.
When one looks at those eleven particulars, those matters do not go to a question of apprehended bias; the particulars given are matters that would go to actual bias. The way in which the hearing was conducted, having gone through the transcript, does not disclose anything that would indicate apprehended bias. What was pointed out to me was the conclusions that were made.
If one is looking at the conclusions made, then one is looking at actual bias. At paragraph 164 of the Applicant’s submissions, the Applicant summarised the submission in regards to this matter and said that as a result of the Second Respondent’s:
a)adverse credibility findings based on erroneous factual findings,
b)adverse assumptions made without any probative evidence,
c)ignorance of documents which supported the Applicant’s claims,
d)assertions and failure to consider logical and reasonable reasons for the Applicant obtaining membership of the ROHR,
e)negative imputation to the church letter,
f)the ROHR inquiries and emails and failure to follow through with the same, and
g)critique of any documentary evidence presented by the Applicant,
that the AAT’s mind was not open to persuasion and there is a reasonable apprehension that the AAT did not bring an impartial and unprejudiced mind to the hearing.
The problem with that submission is that those matters that the Applicant has spoken about are conclusions that have been made where the AAT has been persuaded of all those things. There is nothing that has been shown, that occurred before the AAT has come to those conclusions, that illustrates that the AAT had already made up its mind. All of those particulars go to the actual decision that was made and not the manner in which the hearing was conducted. However, this ground is really a rehash of previous grounds.
The argument can really be summarised in this way. Because the Applicant feels that she is correct in her arguments, it cannot be accepted that the AAT could ever disagree with the correctness of those arguments. Therefore, if the AAT has disagreed with her, it must be biased.
If this argument were correct, then any dissatisfied litigant could claim that the fact that there were arguments not accepted by a tribunal of fact is sufficient ground to claim that the tribunal of fact was biased. That argument holds no logic.
To prove apprehended bias or bias, there is a very high threshold to meet; it certainly has not been met in this case, but on what has been presented before me, this ground is totally without merit.
Ground five is put as the Tribunal member exercised an improper power. It was said that there was no proper genuine and realistic consideration of the case of the Applicant and it was put to me that the Tribunal had not done its job; it had just simply slavishly followed the findings of the delegate and made the exact same findings.
However, this contention flies in the face of the earlier submission of the Applicant that the Tribunal went outside of the issues for determination set down by the delegate. When this glaring contradiction was pointed out to the Applicant, at first the Applicant attempted to argue that the two positions could exist side by side. The Applicant then realised the absurdity of that position and put the matter in the alternative.
As I have already dealt with the first aspect of the matter and found that the AAT did, in fact, go upon their own fact-finding mission and did engage with each of the claims of the Applicant, this ground cannot be made out and it also fails.
The final ground is that the decision of the AAT was so unreasonable that no reasonable decision-maker could have arrived at it. What this ground really comes down to is that on the whole of the evidence, this conclusion, that the Applicant was not a lesbian and, therefore, Australia did not owe protection obligations to her, was a conclusion that was simply not open.
This complaint is an attempt to try and go beyond an impermissible merits review, it must be seen within the prism of what the High Court said in SZMDS (Supra); that the test for illogicality or irrationality in the process of reasoning must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on the evidence on which the decision is based. Crennan J and Bell J stated at paragraph 131 of SZMDS (Supra) that:
If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
As I said during the hearing, it is not whether I would have made that decision or whether any of the counsel who were appearing before me would have made that decision; it is not even whether that is the decision that should have been made; the question is whether that decision is one that could have been made.
Having gone through the evidence – as I have in the course of these reasons - it is clear that the decision that was made by the Tribunal was one that was open to it; it is a decision that could have been made and, therefore, it cannot be said to be unreasonable. For that reason, ground six fails.
Having gone through all of those matters, I am not satisfied that there has been any jurisdictional error.
I dismiss the application with costs.

I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:1 November 2019

[2019] FCCA 3048

5 September 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Civil Procedure

Legal Concepts

Judicial Review

Costs

Procedural Fairness

Jurisdiction