APF16 v Minister for Immigration
[2018] FCCA 1973
•25 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| APF16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1973 |
| Catchwords: MIGRATION – Application to review decision of the Administrative Appeals Tribunal – whether Tribunal failed to consider evidence or claims or acted unreasonably – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5CB, 36, 91R Migration Regulations 1994 (Cth), reg.1.09A |
| Cases cited: Commissioner of State Revenue (Vict) v Royal Insurance Australia Ltd [1994] HCA 61; (1994) 182 CLR 51 |
| Applicant: | APF16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 623 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 10 July 2017 |
| Delivered at: | Sydney |
| Delivered on: | 25 July 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Karp |
| Solicitors for the Applicant: | Prominent Lawyers |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 623 of 2016
| APF16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 24 February 2016 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Lebanon, arrived in Australia in 2010 as the holder of a student visa. He applied for a protection visa in February 2014. In a statutory declaration of 6 February 2014 provided in support of his application he claimed to fear harm on return to Lebanon on the basis that he was a member of “a particular social group ie, Bisexual”. He claimed that since the age of approximately 15 he had been sexually attracted to both males and females, that he had had sex with both males and females, but that he had always maintained a sexual preference towards males. He claimed that he had had a few short-term sexual encounters with males in Lebanon (which were covert in light of prevailing familial and social intolerance of such relationships). He claimed his family were not aware of his true sexual orientation and put increasing pressure on him to marry.
The Applicant claimed that in Australia he had regularly attended a number of local gay friendly venues, and participated in gay matchmaking sites and social media. He claimed he had had a number of casual relationships with men. He provided two statements from men who stated that he was “gay”. While these statements were handwritten on statutory declaration forms, they were not witnessed and no evidence of the makers’ identities was provided. The Applicant claimed to fear harm from family members, relatives or others who disapproved of his sexual orientation.
The application was refused by a delegate of the First Respondent who did not accept that the Applicant was bisexual.
The Applicant sought review by the Tribunal. He provided a statutory declaration from a man (referred to herein as NM) who claimed to be his partner and also from two other persons described as a couple who were the Applicant’s friends. In addition, the Applicant provided an email about volunteering to assist in relation to the 2016 Mardi Gras, a warning email from his employer, photographs of social activities, in particular with NM, and a report from a counsellor.
The response to the hearing invitation form stated that NM was the Applicant’s partner and that he wished to give oral evidence. The friends also sought to give evidence at the Tribunal hearing.
The Applicant attended a Tribunal hearing on 12 February 2016. A transcript of the hearing is in evidence as an annexure to an affidavit of Anthony Bazouni of 29 June 2017. The Applicant and NM gave evidence (although in the transcript NM is referred to by a different name) as did the friends.
After the hearing the Applicant provided further documentary evidence, country information and a post-hearing statutory declaration of 23 February 2016 which sought to address concerns put to him during the Tribunal hearing. He described his central claims as claims that he was a homosexual in a sexual relationship with NM and that he could not live openly as a homosexual man in Lebanon.
The Tribunal Decision
In its reasons for decision the Tribunal referred to the written evidence before it, including the witness statements and supporting documents provided by the Applicant. It summarised the claims he had made in support of his protection visa application. It recorded that it had received oral evidence from the Applicant’s claimed partner and two friends who had also provided statutory declarations and a further statement from the Applicant after the hearing.
In its findings and reasons the Tribunal stated that it had a number of concerns about the Applicant’s “changing, inconsistent and not credible evidence as to past events, and what he feared upon return to Lebanon”. The Tribunal did not find the Applicant to be a credible witness in relation to what it described as “matters central to, and related to, many of his claims”. For reasons which it gave, the Tribunal found that the Applicant was not a truthful, reliable or credible witness and that the account of events and fears on which his protection claims were based was false. It was of the view that the Applicant was prepared to give false evidence and to rely upon false supporting evidence in order to achieve an immigration outcome.
In making these findings the Tribunal had regard to various matters. It found that the Applicant had given inconsistent evidence in relation to whether he was sexually attracted to women (as well as to men) and inconsistent evidence about his past sexual encounters, in particular whether or not he had had sex with girls. It found this inconsistent evidence undermined the Applicant’s credibility and his claims about his sexuality. It also had regard to what it described as the Applicant’s “evasive” evidence concerning his claim to be bisexual and the fact that the claim to be bisexual was inconsistent with the statements the Applicant had provided to the Department, which described him as “gay”. It considered this evidence undermined his claim to be bisexual.
The Tribunal also had regard to inconsistencies in the Applicant’s oral evidence in relation to whether he had ever had a relationship with a girl in Australia. It was of the view that his initial failure to mention a later claimed failed relationship with a girl in Australia undermined his credibility and his claims about his sexuality and relationships.
Secondly, the Tribunal was concerned that the Applicant was prepared to give false evidence, to rely upon false supporting evidence and to make false claims in order to be granted a protection visa. It had regard to a number of aspects of the Applicant’s evidence and claims, including the fact that while in his protection visa application the Applicant had presented himself to the Department as currently studying, he had disclosed to the Tribunal that he had decided to stop studying by the time he decided to lodge his protection visa application. The Tribunal also had regard to inconsistent and changing evidence about the Applicant’s claimed discussion with his boss about his behaviour and attitude and inconsistencies between his evidence and an email from his boss which contained a formal warning. The Tribunal found that the Applicant’s inconsistent evidence in this respect suggested that the email was not genuine and had been manufactured as supporting evidence for the purpose of the claims. This was said to undermine the Applicant’s claim that he had been underperforming at work because he was depressed and anxious about his sexuality and his fear of returning to Lebanon. The Tribunal was of the view that this evidence also undermined the Applicant’s credibility and indicated that he was prepared to produce false supporting evidence and to change his evidence in order to obtain a visa.
Thirdly, the Tribunal was concerned about the fact that while the Applicant claimed that he was interested in discovering himself and his sexuality, he also claimed that he had made no efforts to discover anything about the gay scene or homosexual activities in Lebanon. His responses when this issue was raised with him at the hearing were said to be evasive. The Tribunal acknowledged that the Applicant had produced country information suggesting that homosexual sex was illegal in Lebanon and that there were some adverse attitudes towards homosexuals which may indicate that an applicant may not want to openly explore and announce his sexuality. However it was concerned that the Applicant had sources of information about sexuality in Lebanon (in particular from an “audacious, daring, forthcoming” older sexual partner in Beirut) and that he had said he was curious about his sexuality, but he claimed not to know about and had taken no steps to find out about, homosexual lifestyle or possibilities in Beirut.
Finally, the Tribunal expressed concerns in relation to the Applicant’s claim that he could not let anyone (friends, family or others) in Lebanon know about his sexual orientation because if he did so he would face persecution and harm. The Tribunal considered that the Applicant had given vague, evasive and inconsistent evidence about his contact with his family in Lebanon and implausible evidence about his claimed fear of harm based on people finding out that he was homosexual/bisexual.
The Tribunal addressed inconsistencies and changes in the Applicant’s evidence about contact with his family members, in particular with his siblings, including whether his siblings had contact with him through his Facebook page (on which the Applicant’s “likes” of gay/LGBT websites in 2012 were visible). The Tribunal was of the view that the Applicant had “changed his evidence continually about his contact with his family members, initially generally attempting to downplay any communication but then changing his evidence once he was asked specific information or once it was specifically put to him that his answer was incorrect”. The Tribunal considered that it was likely the Applicant had changed his evidence in this respect because he had presented claims that his family would not accept and would harm him for his claimed bisexuality. It considered the Applicant’s evidence undermined his credibility and his claim that he was in minimal contact with his family due to his claimed sexual orientation which he sought to keep secret and his claim that his family wanted him to marry.
The Tribunal had regard to the fact that the Applicant had “liked” numerous LBGT/gay websites in a publically accessible part of his Facebook profile (a copy of which he had produced to the Department), despite his evidence that about 200 or more of his “friends” on Facebook were in Lebanon and most were family, relatives and friends in his home town (including 3 siblings who regularly commented on his profile). In light of his claim that he wished to keep his sexuality a secret from his family the Tribunal did not accept the Applicant’s explanations for the existence of such material. The Tribunal observed that the Applicant’s explanation (that he was not as worried about his parents finding out he was gay as about leaving Australia because he was in love with a man) contradicted the Applicant’s evidence that he would not go to Germany with his partner (when his partner’s visa expired) and also involved a change in his claims about whether he feared harm from his family members (despite the fact he had also reiterated that claim).
The Tribunal also had regard to the fact that, after having posted numerous gay/LGBT websites on his publically accessible Facebook profile in 2012, the Applicant travelled back to Lebanon in mid-2013 for his sister’s wedding, notwithstanding that any number of his friends and family in Lebanon could have seen the websites he “liked” and assumed that he was gay. It considered it extremely unlikely that the Applicant would have returned to Lebanon for his sister’s wedding if he was indeed gay/bisexual and returning to an intolerant, dangerous society with hostility all around as he had claimed. The Tribunal considered it more likely that the Applicant had posted these websites for the purpose of his protection visa claim and returned to Lebanon because he was not gay or bisexual and believed there would be no consequence for him of posting the gay websites on his profile. It considered that this undermined his claim that he was bisexual or gay.
On the basis of these matters the Tribunal did not consider the Applicant to be a credible witness.
The Tribunal observed that while the Applicant’s agent had complained that there were “significant interpretational errors” in the interview with the delegate, he had not provided requested details of such errors and the Applicant was unable to identify any such interpreting errors. The Tribunal did not accept that there was any prejudice or difficulty for the Applicant in the departmental interview.
The Tribunal went on to consider what it described as “[c]orroborative” evidence. It was of the view that the country information provided in relation to attitudes to homosexuality in Lebanon did not overcome its concerns with the Applicant’s evidence.
At paragraph 58 of its reasons the Tribunal acknowledged that the Applicant had produced an email showing that about two weeks before the Tribunal hearing he had volunteered for a Mardi Gras workshop to assist with bunting and that he had provided statutory declarations from a Mr A and a Mr K as well as from “the three witnesses who attended the hearing” who “asserted variously that the applicant was homosexual; that he went to many parties to the gay club (sic) in Oxford Street Sydney, that he is proud to be gay; or that he is depressed and anxious because of the thought of returning to Lebanon; that he cannot tell his family or friends or return to Lebanon; that he is in a relationship with the witness [NM].”
The Tribunal continued at [59]:
As put to the applicant, people can provide supporting evidence for a number of reasons, for example they may want to assist him so that he can stay in Australia. The Tribunal also put to the applicant that it could be that his claimed partner was actually a close friend (living together as flatmates, going out together as friends). Having regard to the Tribunal’s concerns with the applicant’s credibility set out above, the Tribunal does not accept that the activities undertaken by the applicant to suggest that he is gay/bisexual overcome its concerns about his credibility and claimed orientation:
· attending a Mardi Gras workshop (after the delegate had noted in the decision record that there was no credible evidence of Australian activities indicating his sexual orientation);
· going to some gay nightclubs in Sydney (as suggested by one statutory declaration);
· posting some gay websites on his Facebook profile. The Tribunal notes the applicant’s evidence that, apart from these gay/LGBT website postings, there are no postings or anything else on his Facebook page which would suggest that he is gay or bisexual;
· The applicant has produced a number of photographs of him (and his claimed partner) and others in social setting and home settings, which show people having fun/ relaxing/ arms around each other, near a bed, whispering in someone’s ear. The applicant said in his post hearing statement that the photos were mere evidence of his social activities and not intended to strengthen his claims. While the Tribunal is prepared to accept that the applicant and his claimed partner are friends, the Tribunal is not prepared to give these photos any weight in relation to the claim that the applicant is bisexual or homosexual or in a sexual relationship with his claimed partner.
· Nor does the Tribunal consider that the assertions made by witnesses as to his claimed gay/bisexual orientation (including by his claimed partner to the counsellor) overcome the Tribunal’s concerns.
The Tribunal addressed the claims that the Applicant was stressed because of his bisexuality and that this had affected his ability to study and work. Having regard to what the Tribunal saw as clearly inconsistent evidence from the Applicant about a claimed warning letter from his employer, it gave the letter from his employer no weight. Nor did it give the Applicant’s assertions that he had been having difficulties because of his claimed sexual orientation any weight.
The Tribunal acknowledged the evidence from the witnesses that the Applicant was depressed and stressed about returning to Lebanon and a letter from a counsellor. However it noted that the counsellor had appeared to base most of her assessment on what the Applicant had told her and had not referred to her own observations. As it had found that the assertions made by the Applicant to the counsellor concerning his sexual orientation, fear of return to Lebanon for that reason and current distress for that reason were not true, the Tribunal gave the letter from the counsellor no weight as corroborative evidence as to the Applicant’s claimed sexual orientation.
While the Tribunal was prepared to accept that the Applicant may be anxious and may have shown some symptoms of depression, it did not consider that the Applicant’s mental health could explain or excuse the concerns which cumulatively led it to find that he was an unreliable witness.
On the basis of its adverse credibility findings the Tribunal concluded that it did “not accept that the applicant is or has ever been bisexual or homosexual”, and “that he has ever had any sexual attraction to, kissed or hugged or had any sexual encounters with males, either in Lebanon or Australia”. It did not accept that he came to Australia with a fear of persecution.
The Tribunal also addressed the Applicant’s activities in Australia. It noted that he had not suggested in his statement that anyone in Lebanon would be aware of such activities. It was prepared to accept that the Applicant and his friends had taken photographs that could suggest that he was bisexual/gay, that he had attended some gay nightclubs, and that he had signed up for a Mardi Gras workshop for 2016. It noted that although the Applicant claimed to have exhibited sexual freedom in Australia, the only evidence produced of this, apart from the statements of witnesses to which the Tribunal had not given any weight, was the posting of numerous gay websites on his Facebook profile. The Tribunal noted that the Applicant said he had posted these websites in 2012 before he lodged his protection visa application. It found that he did so in order to strengthen his intended protection claims.
Similarly, having regard to these findings and its adverse credibility finding the Tribunal found that any activities undertaken in Australia suggesting that the Applicant was gay/bisexual had been for the purposes of strengthening his protection visa claims and not for genuine reasons. Accordingly it disregarded the Applicant’s photographs, signing up for and joining a Mardi Gras workshop, posting gay websites on his Facebook profile and attendance at some nightclubs for the purpose of assessing his refugee claims under the then applicable s.91R(3) of the Migration Act 1958 (Cth) (the Act).
The Tribunal observed that the Applicant had made no claims in relation to the general country situation in Lebanon other than those pertaining to his claimed bisexual/homosexuality which had not been accepted. It was not satisfied he faced a well-founded fear of persecution in Lebanon for a Convention reason.
The Tribunal considered the complementary protection criterion in light of its findings that it did not accept that the Applicant was gay or bisexual or that he had ever been or that his claims in relation to his sexual orientation were true and its finding that it did not accept that he faced being forced to marry in Lebanon. The Tribunal considered the Applicant would return to Lebanon to live with his family and that he would find work, although he was depressed and would find it distressing to leave his businesses and friends in Australia.
In relation to the Applicant’s claims about posting gay websites on his Facebook profile, the Tribunal noted that he had not suggested in his statement that anyone in Lebanon would be aware of his activities in Australia. It observed that it was only when the Tribunal had raised with him at the hearing that it was difficult to understand why he would have posted numerous gay websites on his Facebook profile that the Applicant claimed that he would be “judged” in Lebanon because of these postings because he was from such a “dangerous country”.
The Tribunal took into account the Applicant’s apparent lack of concern about the implications of others becoming aware of these “likes”, as well as his willingness to return to Lebanon for his sister’s wedding. In the circumstances, the Tribunal was not satisfied on the evidence before it that the Applicant would face a real risk of significant harm in Lebanon as a result of having “liked” these gay websites or that there was a real risk he would be imputed as homosexual or bisexual in Lebanon.
Further, the Tribunal was not satisfied that the other activities the Applicant had engaged in in Australia meant that he faced any risk of becoming known in Lebanon. It did not accept on the evidence before it that the Applicant’s circumstances would lead to a real risk of significant harm for him in Lebanon. It found that he did not meet the complementary protection criterion and affirmed the decision not to grant him a protection visa.
These Proceedings
The Applicant sought review by application filed in this court on 18 March 2016. He filed an amended application in May 2016. In pre-hearing written submissions counsel for the Applicant foreshadowed seeking leave to rely on a proposed further amended application, a copy of which was attached to the submissions and was addressed in submissions for the First Respondent, who did not oppose the grant of leave. Counsel for the Applicant advised that the grounds in the further amended application were intended to replace in their entirety the grounds previously pleaded.
I granted leave to the Applicant to rely on the proposed further amended application. I also ordered that the Applicant file and serve the proposed further amended application after the hearing. It appears that this has not occurred. Despite this, I have considered the grounds in the further amended application on the basis that these are the grounds on which the Applicant intended to rely and which were addressed by both parties.
Whether failure to consider essential evidence or an integer of the Applicant’s claims
The first two grounds are as follows:
1. The Tribunal committed jurisdiction (sic) error by failing to lawfully consider evidence essential to the resolution of the review.
Particulars
(a) Evidence that the applicant and his partner were in a sexual relationship.
2. The Tribunal committed jurisdiction (sic) error by failing to consider an integer of a claim.
Particulars
(a) The claim that the applicant and his partner were in a sexual relationship.
In submissions the parties addressed grounds 1 and 2 together. The Applicant submitted that although the Tribunal had purported to consider the evidence of his witness (NM) and also his two friends (Mr S and Ms E), and had suggested that it could be that NM was a close friend of the Applicant, it had not confronted or otherwise dealt with NM’s evidence that he and the Applicant were in a sexual relationship.
It was noted that NM’s evidence to the Tribunal was not simply an assertion that the Applicant had a gay/bisexual orientation, but rather was first-hand evidence that he was in a sexual relationship with the Applicant.
Counsel for the Applicant submitted that whatever the Tribunal’s view of the Applicant’s credit may have been, NM’s evidence of being in a sexual relationship with the Applicant was on its face credible and was central to the Applicant’s case. It was suggested that nothing in the Tribunal’s questioning of NM put any doubt on this claim. It was observed that the Tribunal had not put to NM that he was simply a good friend of the Applicant (although it was also conceded that the Tribunal was under no obligation to do this).
NM’s oral and written evidence was that he had met the Applicant in Granville while on a three-month holiday from Germany (where he lived), that he had returned to Germany, but had immediately applied for another visa to return to Australia to be with the Applicant. He claimed he had returned to Australia on a working holiday visa mainly because of his relationship with the Applicant. He gave evidence that while their “relationship” began earlier in 2015, their sexual relationship started on NM’s birthday in November 2015. The Applicant also claimed their sexual relationship started on NM’s birthday in November 2015. It was submitted that the Tribunal had simply not engaged with NM’s evidence that he was in a sexual relationship with the Applicant.
The Applicant relied on Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67, in particular the remarks of the Full Court of the Federal Court at [34] that:
The fact that a matter is not referred to in the Tribunal’s reasons, however, does not necessarily mean the matter was not considered by the Tribunal at all: SZGUR at [31]. The Tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the Tribunal’s reasons does not necessarily mean that the material was overlooked. The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52] (emphasis added).
The Applicant acknowledged that the fact that a matter was not referred to in the Tribunal’s reasons did not necessarily mean it was not considered by the Tribunal at all (and see Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594), but submitted that whether a matter should be referred to in the reasons would depend on the importance of the matter to the Applicant’s case. In this instance it was contended that the evidence of NM that he was in a sexual relationship with the Applicant was so central to the Applicant’s case that it required express consideration by the Tribunal.
The Applicant submitted that NM’s evidence in this respect was not mentioned and that this indicated that the necessary consideration was not given to it by the Tribunal. This was said to indicate that by either failing to consider essential evidence or failing to consider an integer of a claim the Tribunal had failed to complete the exercise of its jurisdiction.
It was suggested that the Tribunal should have specifically addressed this aspect of the claim in assessing the Applicant’s credibility or whether his claim was made out. In support of ground 2 reference was made to Htun v Minster for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 at [42].
Insofar as the Minister submitted that the Tribunal’s finding that it did not accept that the Applicant was or ever had been bisexual or homosexual or that he had ever had any sexual attraction to, kissed or hugged or “had any sexual encounters with, males” either in Lebanon or in Australia dealt with the claimed sexual relationship with NM, the Applicant contended that this general finding did not deal with the specific issue of that claimed sexual relationship. It was pointed out that there was no finding by the Tribunal that NM was not being accurate in his evidence. It was conceded that the Tribunal had put to the Applicant that NM’s evidence may not be accepted, but submitted that there was no specific finding that there was not a sexual relationship between the Applicant and NM. It was contended that while there was a specific finding in relation to photographs of the Applicant and NM in paragraph 59 of the Tribunal’s reasons and the conclusion that could be drawn from the photographs, this did not deal with the specific evidence of a sexual relationship between the Applicant and NM.
The First Respondent submitted that neither ground 1 or ground 2 engaged with the central dispositive issue before the Tribunal, which was said to be its finding that the Applicant lacked credit. It was submitted that the Applicant had not identified any reason why the Tribunal’s findings regarding the Applicant’s credit were not open to it based upon the numerous and serious inconsistencies and implausibilities it identified in his claims and evidence and which were put to him for response at the Tribunal hearing.
Insofar as these grounds related to the asserted relationship between the Applicant and NM, the First Respondent contended that SZSRS did not assist the Applicant as it dealt only with the inferences that may be drawn from omissions in the written reasons of a decision-maker. It was submitted that in this case, contrary to the Applicant’s contention, the claimed relationship was referred to explicitly in the Tribunal decision record and that the Tribunal had recognised that the claim was that the Applicant was in a “sexual relationship with his claimed partner”.
In other words, it was submitted that the Tribunal had expressly acknowledged that the Applicant claimed his relationship with NM was sexual in nature, that it had recognised that it purported to bolster the veracity of the Applicant’s gay/bisexual claim, but that it had found that the assertions made in the supporting evidence from NM and others and in the counsellor’s letter and the scenes depicted in the photographs did not overcome its many other concerns regarding the Applicant’s credit.
The First Respondent acknowledged that the Tribunal was obliged to consider the claims made by the Applicant, including the claimed relationship with NM, in order to perform the statutory task conferred upon it under the Act (see Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [68]), but submitted that it had plainly discharged this obligation. Moreover, it was submitted that the Tribunal did specifically “deal with” the claimed relationship, in that it rejected that it was sexual in nature and found that while NM may have been a friend of the Applicant’s, the Applicant had never had any “sexual attraction to” or “sexual encounters with males” (which must include NM). Such findings were said to directly contradict the essence of the Applicant’s evidence and claims in relation to a sexual relationship with NM.
Consideration
It is not in dispute that the Applicant’s claimed sexuality was at the core of his claims for protection. The Tribunal plainly understood that he claimed to be homosexual or bisexual with an attraction to males. It assessed each integer of his claims within that framework. Further, it is clear on the face of the Tribunal’s reasons that the Tribunal plainly understood that the Applicant and NM claimed that their relationship was of a sexual nature. It referred to oral evidence from the Applicant’s “claimed partner” and two friends (who had also provided statutory declarations). It gave detailed reasons for its finding that it did not consider the Applicant to be a credible witness, in the course of which it addressed his responses when concerns were put to him about whether he posted gay/LGBT websites on his Facebook profile to strengthen his claims as follows:
48. In response, the applicant said that he is not as worried about his parents finding out that he is gay as much as he is worried about leaving Australia because he fell in love with a man. The Tribunal noted that his claimed concerns about leaving Australia were contradictory to his evidence to the Tribunal that he and his partner would be physically separated (his partner is on a working visa in Australia, he will return to Germany, the applicant would not follow him to Germany because the applicant has his own life in Australia).
More particularly, the Tribunal addressed the claims made in the written and oral evidence from the three witnesses who attended the hearing (as well as in two statutory declarations produced to the Department). It recorded, correctly, (at [58]) that (emphasis added):
…These asserted variously that the applicant was homosexual; that he went to many parties to the gay club (sic) in Oxford Street Sydney, that he is proud to be gay; or that he is depressed and anxious because of the thought of returning to Lebanon; that he cannot tell his family or friends or return to Lebanon; that he is in a relationship with the witness [NM].
Consistent with this summary, NM’s evidence in his statutory declaration was that he was in a “relationship with” the Applicant and in their declarations the other two witnesses referred to the Applicant and his “partner” NM.
Similarly, at the hearing the Applicant and NM both claimed to have been “in a relationship” from about March 2015 and that they had been living together after NM returned from Germany. At the hearing the Tribunal questioned the Applicant as to when he started a “sexual relationship” with NM (see page 80 of the transcript). Both the Applicant and NM claimed that after NM’s return to Australia they commenced a sexual relationship on NM’s birthday in November 2015.
Throughout the Tribunal’s reasons, when the Tribunal was discussing this claimed relationship it referred to NM as the Applicant’s “claimed partner”. It identified that the Applicant claimed to be in a relationship with NM. While the Tribunal did not at all points in its reasons refer to the claimed relationship as a “sexual” relationship, it is apparent from reading the Tribunal’s decision fairly and as a whole, in particular in light of the concluding part of paragraph 59 which referred expressly to the claim the Applicant was “in a sexual relationship with his claimed partner”, that the Tribunal understood that the relationship was claimed to be a sexual relationship. This is not a case in which there was an omission from the reasons of the claim that the relationship was a sexual relationship (cf SZSRS).
Importantly, the Tribunal considered the evidence (including from NM) that the Applicant and NM were in a sexual relationship (and the claim in this regard insofar as it was an integer of his claims in the sense considered in Htun). Having rejected the Applicant’s credibility in relation to matters central to and related to many of his claims (including, significantly, his sexuality as well as his claimed sexual experiences and relationships), in paragraphs 57-65 the Tribunal addressed the potentially corroborative evidence, including from NM and including the assertion that the Applicant was homosexual and “in a relationship with the witness [NM]” which the Tribunal recognised (in paragraph 59) was said to be a sexual relationship.
The fact that the asserted relationship with NM (elsewhere described as the Applicant’s claimed partner) was expressly referred to as a sexual relationship in the particular context of a Tribunal finding that “[w]hile the Tribunal is prepared to accept that the applicant and his claimed partner are friends, the Tribunal is not prepared to give these photos any weight in relation to the claim that the applicant is bisexual or homosexual or in a sexual relationship with his claimed partner” is not to be seen in isolation.
In paragraph 59 the Tribunal had commenced by expressly considering the nature of the Applicant’s relationship with his “claimed partner”. It indicated that it had put to the Applicant that it could be that he and “his claimed partner” were close friends. It did not accept that the activities undertaken by the Applicant to support that he was gay/bisexual overcame its concerns about his credibility and claimed sexual orientation. In that context it considered submitted photos of the Applicant “and his claimed partner” (some of which apparently suggested a degree of intimacy). It found that it was prepared to accept that the Applicant and his claimed partner were friends, but that it was not prepared to give the photos any weight “in relation to the claim that the applicant is bisexual or homosexual or in a sexual relationship with his claimed partner”.
While in this part of paragraph 59 the Tribunal was addressing the weight to be given to evidence and did not reach a conclusion as to the existence of a sexual relationship, it also made a more general finding about the weight to be given to the “assertions made by witnesses” (which would include NM) as to the Applicant’s claimed gay/bisexual orientation. It found that these assertions did not overcome its “concerns” (which clearly referred to the detailed concerns about the Applicant’s credibility).
Insofar as these grounds refer to NM’s evidence, the Tribunal not only found that “the assertions made by the applicant to the counsellor” did not overcome its credibility concerns about the Applicant’s evidence, but also in considering the Applicant’s claim to have “exhibited sexual freedom in Australia”, observed that it had given no weight to the statements of witnesses (who included the Applicant’s claimed partner).
In these circumstances the Tribunal’s conclusory “[f]indings of fact in relation to events to date” clearly encompassed the claimed sexual relationship with his claimed partner. The Tribunal found (emphasis added):
On the basis of the adverse credibility finding, the Tribunal does not accept that the applicant is or has ever been bisexual or homosexual. It does not accept that he has ever had any sexual attraction to, kissed or hugged or had any sexual encounters with, males, either in Lebanon or in Australia.
Seen in context, this finding clearly “dealt with” or “confronted” the evidence and/or claim from NM (as well as from the Applicant) that the Applicant was in a sexual relationship with NM.
The Tribunal correctly understood and considered the claim and the evidence of NM that the relationship with the Applicant was of a sexual nature. It did not accept this evidence or claim.
These grounds are not made out.
Whether legal unreasonableness
Ground 3 is as follows:
The decision was affected by legal unreasonableness
Particulars
(a) Failure to consider the application of Migration Regulation 1.09A(3) in deciding the applicant’s matter was legally unreasonable in the context of the applicant’s claims and the evidence.
In support of this ground the Applicant pointed to the fact that he and NM claimed to be in a homosexual relationship and to be partners. It was also pointed out that the determination of an application for a partner visa based on a de facto relationship required consideration of the factors mentioned in reg.1.09A(3) of the Migration Regulations 1994 (Cth) (the Regulations). While it was acknowledged that the Applicant’s application was not for a partner visa, reliance was placed on reg.1.09A(4) which states:
(4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
The Applicant accepted that this provision was clearly permissive and did not create a “relevant consideration” in the sense considered in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24. However, it was contended that reg.1.09A(4) provided for a discretion to be used in an appropriate case. This was said to be important, given that the task of the Tribunal was to come to the correct or preferable decision within the limits of its statutory powers (see Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287 at [59] and authorities cited therein).
The Applicant submitted that just as it may be legally unreasonable for a Tribunal not to grant an adjournment in an appropriate case (see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332) or not to ask clearly relevant questions of a witness (Huynh v Minister for Immigration and Border Protection [2015] FCA 701; (2015) 232 FCR 497 at [86] and following), so it may be unreasonable for the Tribunal not to consider the use of a “clearly appropriate” statutory discretion.
On this basis it was submitted that the Tribunal had erred in failing to consider whether to consider any of the circumstances mentioned in reg.1.09A(3) (being the financial aspects of a relationship, nature of the household, social aspects of the relationship, the nature of the persons’ commitment to each other etc). It was submitted that this was an appropriate case for the Tribunal to be required to consider the exercise of its discretion under reg.1.09A(4), given that it was claimed that a de facto relationship existed between NM and the Applicant and the existence of that relationship was clearly integral to or at least very important to the Applicant’s case.
It was submitted that written and oral evidence from NM and the other witnesses as to the existence and recognition of such relationship and the emotional support given by NM to the Applicant could be said to clearly go to the nature of the relationship (and therefore to the question of the Applicant’s sexual orientation).
The Applicant conceded that this evidence may not have been determinative, but suggested that it was highly relevant and that the failure of the Tribunal to consider whether to have regard to any of the reg.1.09A(3) factors in deciding the Applicant’s matter was legally unreasonable. It was submitted that the failure by the Tribunal to consider the application of this provision or any of the matters to which attention was directed therein lacked an evident and intelligible justification.
Reference was made to remarks of Gageler J in Li which, while made in relation to the Tribunal’s discretion to adjourn, were said to apply equally to the question of the exercise by the Tribunal of any discretion. It was pointed out that while his Honour observed (at [102]) that the permissive terms in which a power was conferred on the Tribunal may make it clear that the power itself carried no duty to consider the exercise of such power (as was conceded to be the case in relation to reg.1.09A(4)), “[t]he overriding duty of the [Tribunal] to review a decision may nevertheless require the [Tribunal], acting reasonably, to consider the exercise of the power in a particular case”.
Reliance was also placed on his Honour’s remarks in Li at [103] in support of the proposition that the Tribunal had failed to comply with a requirement essential to the valid performance of its duty to review if it failed to consider in the exercise of its power whether to exercise a discretion in circumstances “where no reasonable tribunal could fail to do so”. It was submitted that the Tribunal’s failure to consider whether to exercise this discretion did not fall within the range of “possible acceptable outcomes which are defensible in respect of the facts and law” as discussed in Dunsmuir v New Brunswick [2008] 1 SCR 190 at [47] cited by Gageler J in Li at [105].
The Applicant also submitted that it was incorrect to construct reg.1.09A(4) as simply an “avoidance of doubt” provision rather than a provision giving rise to a positive obligation.
The Applicant acknowledged that there may be good reason why the Tribunal would have decided (had it turned its mind to it) not to consider any of the circumstances in reg.1.09A(3), but contended that the Tribunal had acted unreasonably in failing to consider whether to consider any of the circumstances mentioned in that subregulation (as distinct from then actually having regard to such factors).
Neither the Minister or the Applicant was able to identify any authority that had considered the application of reg.1.09A(4). The Minister submitted that it did not confer a discretion on the Tribunal in the same way as the power to adjourn conferred by the Act which was in issue in Li. It was submitted that unlike the provision in the Act which empowered the Tribunal to adjourn a review, this provision in the Regulations was more in the nature of an “avoidance of doubt” provision to make it clear to the decision-maker that in the context of review of applications for classes of visa other than specified classes he or she was able to take into account circumstances that would fall within reg.1.09A(3). It was submitted that reg.1.09A(4) could not possibly give rise to a positive obligation on a decision-maker to refer to this provision and to consider the exercise of the power therein in the context of considering an application for a protection visa.
The First Respondent pointed out that reg.1.09A(3) sets out a non-exhaustive list of the circumstances of a relationship which must be considered by the Minister when determining whether two people are in a de facto relationship within s.5CB of the Act. However it was contended that the assertion that it was legally unreasonable for the Tribunal not to consider whether to consider those circumstances in a situation where the mandatory requirement to do so did not apply was misconceived.
Consideration
This is, as counsel for the Applicant conceded, a novel contention.
As Hayne, Kiefel and Bell JJ observed in Li at [72] “[w]hether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense”. The starting point as a matter of statutory construction is the question to be determined by the Tribunal. In this case that question was whether the Applicant met the criteria for a protection visa set out in s.36 of the Act. These did not include criteria as to whether the Applicant for the visa was, or was not, in a de facto relationship. The claims made by the Applicant did not require a determination in that respect. What was relevant was whether the Tribunal accepted the Applicant’s claim that he was in a sexual relationship with NM in support of the Applicant’s claim to be homosexual and hence at risk of harm in Lebanon. The circumstances of this case did not call for the fulfilment of a purpose for which the power to have regard to the factors in reg.1.09A(3) was conferred (cf Commissioner of State Revenue (Vict) v Royal Insurance Australia Ltd [1994] HCA 61; (1994) 182 CLR 51 at 88 per Brennan J cited by Gageler J in Li at [102]).
As was observed in SZOXP v Minister for Immigration and Border Protection [2015] FCA 183; (2015) 145 ALD 675 at [32], “the effect of the regulations cannot go beyond the words of the Act itself”. The criteria for a protection visa are set out in the Act. Not only do the criteria not refer to the relationship status of the non-citizen applying for a protection visa, but in this case what was in issue about the claimed relationship was whether it was a sexual relationship.
The Applicant had not applied for a partner visa on the basis of a de facto relationship. The relevance of the claimed relationship with NM in the context of the Applicant’s protection visa application was not whether it would meet the definition of de facto relationship in s.5CB of the Act or the characteristics relevant to a consideration of whether an applicant was in a de facto relationship set out in reg.1.09A(3) which the decision-maker must consider if considering an application for a specified class of partner visa (see reg.1.09A(2)). Rather, the claimed sexual relationship with NM (his claimed partner) was a matter raised by the Applicant to bolster the veracity of his claim to fear harm in Lebanon on the basis of being homosexual and/or bisexual and thus to strengthen the foundation of his claim to be a person in respect of whom Australia had protection obligations.
Taking into account the many concerns it had with the Applicant’s credibility, the Tribunal did not accept that the Applicant had ever had any sexual encounters with males in Australia. This finding clearly involved a rejection of the claim he was in a sexual relationship with NM. Whether or not their accepted “close friendship” may have met some of the matters listed in reg.1.09A(3) was not to the point, given that the Applicant’s claims were based on his sexuality.
Moreover, the obligation on the Tribunal, acting reasonably, to consider the exercise of a power does not arise in every case. As Gageler J pointed out in Li at [102] “[t]he permissive terms in which the power to adjourn is conferred on the [Tribunal] make clear that the power itself carries no duty on the [Tribunal] to consider its exercise. The overriding duty of the [Tribunal] to review a decision may nevertheless require the [Tribunal], acting reasonably, to consider exercise of the power in a particular case”.
The circumstances of this case were not circumstances in which no reasonable Tribunal could fail to consider expressly whether to exercise the discretion in reg.1.09A(4) to consider any of the circumstances in reg.1.09A(3) (cf Li at [103]). This is not a case in which it can be inferred from the matters falling for consideration in the exercise of the statutory power (to review a decision not to grant a protection visa) that the Tribunal’s failure to consider whether to address the factors in reg.1.09A(3) was unreasonable. The Tribunal’s approach in this respect fell “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”. The Tribunal’s approach was within the area of its decisional freedom (see Li at [28], [66] and [105] and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44]).
It is not necessary for present purposes (and on the limited submissions in that respect) to determine whether reg.1.09A(4) is in the nature of an “avoidance of doubt” provision, although it may well have been intended to make it clear that if a decision-maker chose to consider some of the factors in reg.1.09A(3) in the context of an application for a visa other than a visa of a class mentioned in reg.1.09A(2) he or she was not under an obligation to make findings upon each of the matters listed. However even if reg.1.09A(4) confers a power of the nature considered in Li at [102], for the reasons given this is not a case in which the overriding duty on the Tribunal to review a decision required the Tribunal, acting reasonably, to consider the exercise of such power. It has not been established that in the particular circumstances of this case the Tribunal’s failure to consider the exercise of its power under reg.1.09A(4) was legally unreasonable such as to amount to a jurisdictional error.
This ground is not made out.
As none of the grounds relied on by the Applicant have been established the application must be dismissed.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 25 July 2018
0
16
3