BOR16 v Minister for Immigration
[2018] FCCA 2253
•30 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BOR16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2253 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection (class XA) visa – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Cases cited: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496; 70 AAR 413 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332; 87 ALJR 618; 297 ALR 225; 139 ALD 181 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; 84 ALJR 369; 266 ALR 367; 115 ALD 248 Minister for Immigration & Multicultural Indigenous Affairs v Maltsin [2005] FCAFC 118; 88 ALD 304 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; 131 FCR 102; 77 ALD 23 |
| Applicant: | BOR16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1358 of 2016 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 24 April 2018 |
| Date of Last Submission: | 1 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 30 August 2018 |
REPRESENTATION
| Counsel for the applicant: | Dr McBeth |
| Solicitors for the applicant: | Carina Ford Immigration Lawyers |
| Counsel for the respondents: | Mr McDermitt |
| Solicitors for the respondents: | DLA Piper |
ORDERS
The applicant’s application filed on 27 June 2016, amended on
27 March 2018 and further amended on 27 April 2018 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1358 OF 2016
| BOR16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (“the tribunal”) made on 30 May 2016. By that decision, the tribunal affirmed a decision of the delegate of the first respondent, the Minister for Immigration and Border Protection (“the Minister”) to refuse to grant the applicant a protection (class XA) visa (“the visa”).
The applicant’s claims
The applicant’s claims were aptly summarised in the tribunal’s decision as follows:
a)the applicant was born in 1987 in Kuala Lumpur, Malaysia and is a citizen of Malaysia;
b)he arrived in Australia in May 2015 on a visitor visa that allowed him to stay for three months;
c)he applied for a protection visa on 21 July 2015;
d)the applicant is a Hindu and Tamil;
e)the applicant owes money to ‘loan sharks’ in Malaysia who bashed and scolded him for not repaying the debt;
f)the ‘loan sharks’ damaged his car, house, bike and phone and threatened to kill him;
g)the applicant was unable to report the matter to the police and in any event the police do not normally offer protection and that he was told that he needed to settle his own problems with the ‘loan sharks’ himself;
h)the applicant sought help at the local police station and a bank officer at the Maybank branch;
i)he moved to his parents’ home but the ‘loan sharks’ found him by bribing the authorities;
j)the applicant was denied employment because of his racial background;
k)he fears the police because he told them that he would take the matter further; and
l)
in addition to these claims, all of which were referred to in some way in the applicant’s initial claim for a protection visa in
July 2015, on 12 May 2016 for the first time, the applicant claimed that he was homosexual and that he also feared harm on that basis.
The tribunal’s reasons
The tribunal set out the criteria for the visa in paragraphs 3 to 7 of its decision record.[1]
[1] Court book page 252 at paragraphs [3] to [7].
The tribunal summarised that it did not consider the applicant to be a credible witness for the following reasons:
a)significant and fundamentally inconsistent evidence regarding the steps taken to report his difficulties with the ‘loan sharks’ to the police;
b)inconsistency between the applicant’s claims and country information about police corruption in Malaysia;
c)the fact that the applicant first made his claims relating to his homosexuality in May 2016 and made no reference to that either in his initial claim in 2015 or in the first interview; and
d)the implausibility that if he was in fact homosexual and had had a two year relationship whilst living in Malaysia, that he would not be aware of the “many gay bars in Kuala Lumpur.”[2]
[2] Court book page 253 at paragraph [12].
On the basis of these highly significant credibility concerns, the tribunal did not accept that the applicant:
a)owed money to ‘loan sharks’; or
b)was homosexual, or had ever been in a gay relationship either in Malaysia or in Australia or that he would wish to engage in homosexual activity on his return to Malaysia.[3]
[3] Court book page 255 at paragraphs [13] to [14].
The tribunal had regard to supporting evidence including from friends in Malaysia and in Australia but this evidence did not overcome the credibility concerns that the tribunal had expressed.[4]
[4] Court book page 255 at paragraphs [15] to [17].
The tribunal had regard to the psychiatric report the applicant provided following the second hearing and accepted on the basis of that report and notwithstanding that it was based on only one consultation, that the applicant had some mental health issues.[5]
[5] Court book page 255 at paragraph [18].
The tribunal dealt with the applicant’s claims that he was subjected to discrimination because of his race, however, did not accept these claims gave rise to a finding that he would face serious harm or significant harm, having regard to country information.[6]
[6] Court book page 256 at paragraph [21].
The tribunal concluded, having regard to its findings, that the applicant did not meet the requirements for a protection visa[7] and affirmed the decision of the delegate of the Minister not to grant the applicant a protection visa.[8]
[7] Court book page 256 at paragraphs [22] to [25] and page 257 at paragraph [26].
[8] Court book page 257 at paragraph [27].
Ground one
The first ground of review is:
The decision of the Tribunal was affected by jurisdictional error, in that it made an irrational finding that cannot be supported by the evidence the Tribunal purported to rely on for that finding.
Particulars
(a) The applicant gave evidence that he had not been to gay bars or saunas in Malaysia, but “he went to only normal ones because there were no gay bars in Malaysia.”
(b) The Tribunal found that it was not credible that if the Applicant were gay and had a two year gay relationship in Kuala Lumpur that he would be completely unaware of the existence of gay bars in Malaysia (at [12]).
(c) In support of this finding the Tribunal referred to two websites as “independent country information” (at [12]) which, inter alia, indicate that homosexuality is illegal and that there is only a small gay scene in Malaysia; that the scene primarily stems from the increase in international visitors; that there are only a handful of gay bars and clubs but the biggest nights were held at straight’ bars and clubs; and that while ethnic Malay customers may be arrested for attendance at local gay businesses, foreigners will not generally be detained.[9]
[9] Applicant’s application filed 27 April 2018 at page 2.
This ground relates to the tribunal’s findings that the applicant was not gay and could not have been gay.
The tribunal stated that it had considered the applicant’s claims carefully but that it did not consider him to be a credible witness.[10] The tribunal then set out the reasons for this finding as to credit. The first two dot points relate to the applicant’s claims relating to having borrowed money from ‘loan sharks’ and the treatment he received when he could not repay the money. The last two dot points relate to his claims regarding being gay and consequent fears flowing from that fact.[11]
[10] Court book pages 253 to 254 at paragraph [12].
[11] Court book pages 253 to 254 at paragraph [12].
First, the tribunal referred to the fact that the applicant only made reference to his concerns arising from his homosexuality in the statutory declaration filed the day before the second hearing. After setting out the background to this aspect, the tribunal stated:
I do not consider it plausible or credible that the applicant would not have raised this matter either in his protection visa application or his first hearing with the Tribunal if he was actually gay. I find this significantly detracts from his credibility (emphasis added).[12]
[12] Court book page 254 at paragraph [12].
The tribunal then addresses the applicant’s evidence in relation to the existence of and his attendance at gay bars or saunas in Malaysia and the country information to which the tribunal had access in relation to this issue. The tribunal referred to that country information.[13]
[13] Court book page 254 at footnote 3.
The tribunal noted:
…I do not accept as credible that if the applicant was gay and had a two year gay relationship in Kuala Lumpur that he would be completely unaware of this and I find it further detracts from his credibility (emphasis added).[14]
[14] Court book page 254 at paragraph [12].
The tribunal then went on to make certain findings of fact on the basis of these credibility findings, that it did:
…not accept that the applicant is a homosexual or that he has ever been in any gay relationship in Malaysia or Australia or that he will wish to engage in homosexual activities upon his return to Malaysia. The applicant has presented pass-outs from two gay saunas in Melbourne, but these do not overcome the highly significant concerns set out above that I have about his credibility.[15]
[15] Court book page 255 at paragraph [14].
It was conceded that to make out a claim of jurisdictional error on the grounds of illogicality or irrationality, the applicant must establish something more than just that a different decision-maker having regard to the same information may have come to a different decision.
As noted by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; 84 ALJR 369; 266 ALR 367; 115 ALD 248 (“SZMDS”):
Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.[16]
[16] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; 84 ALJR 369; 266 ALR 367; 115 ALD 248 at [135].
It was submitted on behalf of the applicant that there was no logical connection between the evidence relied upon by the tribunal, namely, the two websites referred to in the tribunal’s reasons for decision, and the inference drawn that there were many gay bars in Kuala Lumpur and it was not credible that a person in a gay relationship would be unaware of that. It was argued that on this basis the tribunal’s finding was irrational in the sense described in SZMDS.
The Minister submits that the impugned finding, which is a finding “
on the way” to the ultimate credibility finding[17] concerning the applicant’s sexuality claim was one that could have been made, or involved reasoning which could have been taken by a reasonable or rational person.[17] Court book page 254 at paragraph [12].
As noted in SZWCO v Minister for Immigration & Anor [2015] FCCA 1760, Wigney J relevantly stated:
[62] … It is clear that in SZMDS, Crennan and Bell JJ did not restrict their consideration of alleged illogicality or irrationality to the end result, being the conclusion about the state of satisfaction required by the prescribed criteria of the visa in question. Rather, they had regard to whether (at [132]) “findings on the way to that conclusion revealed illogicality or irrationality amount to jurisdictional error….
[63] Second, it is clear from the judgement of Crennan and Bell JJ in SZMDS that not every lapse in logic will give rise to jurisdictional error. If particular findings or reasoning “on the way” to the ultimate decision are challenged on the basis of illogicality and irrationality, it must be shown that the finding was not one that could have been made by, or reasoning that could not have been employed by, a reasonable or rational person. Emphatic disagreement does not suffice. If the finding of fact or reasoning might differ, it cannot be concluded that the finding or reasoning was illogical or irrational.[18]
[18] SZWCO v Minister for Immigration & Anor [2015] FCCA 1760 at [62]-[63].
Similar comments were made by the Full Court of the Federal Court (McKerracher, Griffiths and Rangiah JJ) in CQG15 v
Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496; 70 AAR 413. In reference to SZMDS, the Full Court noted:Crennan and Bell JJ stated that if reasonable minds could differ as to the conclusions to be drawn from the evidence, illogicality or irrationality or unreasonableness could not arise simply because one conclusion had been preferred to another possible conclusion.[19]
[19] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; 84 ALJR 369; 266 ALR 367; 115 ALD 248 at [59].
A fair reading of the material before the tribunal makes reference to the fact that there are some gay clubs in Malaysia whilst noting that they are “still mostly underground.”[20]
[20] Court book page 254.
There is, in my view, a logical connection between the country information referred to and the findings made by the tribunal. That information provided a sufficiently logical and probative basis for the findings made by the tribunal “on the way”[21] to its ultimate conclusions as to the credibility of the applicant and his sexuality claims. The fact that a different decision maker reviewing the same information may have come to a different conclusion is not the point.
[21] SZWCO v Minister for Immigration & Anor [2015] FCCA 1760 at [62].
It is also relevant that in this case, the finding made in relation to the applicant’s knowledge (or lack thereof) of gay bars in Malaysia was not the only ground on which the tribunal concluded that it did not believe the applicant’s claim that he was gay. Indeed, this factor was said to have “further detract(ed) from his credibility.”[22] This was in addition to the applicant’s delay in raising this claim which the tribunal said “significantly detracts from his credibility.”[23]
[22] Court book page 254 at paragraph [12].
[23] Court book page 254 at paragraph [12].
The tribunal’s finding in this regard were not ‘irrational’ or ‘illogical’ in the sense contemplated in SZMDS.
For this reason, ground one is not made out.
Ground two
There is no ground two.
Ground three
The third ground of review is:
The Tribunal’s refusal to exercise its discretion to adjourn the hearing was unreasonable.
Particulars
(a) After attending the first hearing on 18 April 2016, the Applicant was sent on 23 April 2016 a request for him to attend a further hearing on 13 May 2016.
(b) On 4 May 2016 the Applicant wrote to the Tribunal to request that the hearing be postponed on the basis that a short adjournment would afford him an opportunity to place all relevant and important information before the Tribunal. The Applicant explained that he had sought legal advice from the Asylum Seeker Resource Centre (ASRC) legal clinic, who indicated that they would be able to assist him to draft a statement as to his claims; and that he had an appointment with a psychologist who was overseas until 20 May 2016 who may be able to provide evidence to support his claims.
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(c) The Tribunal refused the request to postpone the hearing in a letter dated 5 May 2016.
(e) After attending the hearing on 18 May 2016, (sic) the applicant was afforded the opportunity to provide further documentation from his psychologist. On 25 May 2016 the Applicant emailed the Tribunal seeking an extension of 2 weeks to provide this information on the basis that the psychologist was unable to prepare the material in the timeframe allowed.
(f) The Tribunal refused the request for additional time to provide a psychological report and affirmed the decision subject to review 5 days later.
(g) The Tribunal’s refusal to postpone the hearing or allow additional time to provide a psychological report was unreasonable and prevented the Applicant from having a real opportunity to present his arguments and claims.[24]
[24] Applicant’s application filed 27 April 2018 at page 4.
It is common ground that a discretionary power must be exercised reasonably. A failure to do so can amount to a jurisdictional error.
In Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332; 87 ALJR 618; 297 ALR 225; 139 ALD 181 (“Li”), the applicant requested an adjournment to allow her review application in respect of her skills assessment to be determined before the tribunal made its final decision.[25] The tribunal refused the request for an adjournment on the basis that:
a)Ms Li had had sufficient time to present her case; and
b)the tribunal was not prepared to delay the matter any further.
[25] Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332; 87 ALJR 618; 297 ALR 225; 139 ALD 181 at [63].
In considering an application for judicial review on the basis that in refusing the request for an adjournment the tribunal had acted unreasonably, Hayne, Kiefel and Bell JJ noted that:
It may be accepted that the Tribunal is to act with some efficiency …but such a consideration would again have to be weighed against the countervailing consideration of the purpose of s 360 and Div 5.[26]
[26] Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332; 87 ALJR 618; 297 ALR 225; 139 ALD 181 at [80].
It was argued by counsel for the applicant that the countervailing considerations in a protection visa context weighed even more heavily in favour of the applicant’s request for an adjournment, given the consequences to the applicant of being returned to a place in which they held fears of persecution. It was argued by the applicant that for reasons similar to those in Li, in this case there was no reasonable basis upon which to refuse the requested adjournment, given that the request for an adjournment was for a specific purpose:
a)namely to allow the applicant to meet with his psychologist and provide a report;
b)to be able to obtain some legal assistance; and
c)to enable the applicant to put forward all the relevant evidence.
Section 425 of the Migration Act 1958 (Cth) (“the Act”) relevantly provides:
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it…
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
On 18 January 2016, the tribunal wrote to the applicant acknowledging receipt of his application. That correspondence relevantly stated:
If you wish to provide material or written arguments for us to consider, you should do so as soon as possible.[27]
[27] Court book page 126.
The applicant was invited to attend a hearing on 18 April 2016. The applicant filed a response to this request dated 14 March 2016, indicating that he wanted the tribunal to take oral evidence from two witnesses, ‘John’ and ‘Vijay’.[28]
[28] Affidavit of Sarah Ainslie Thompson filed 28 March 2018, annexure SAT-1 at page 6 and page 15.
The transcript of this hearing was in evidence before this court.[29] During the hearing on 18 April 2016, the applicant mentioned both ‘Vijay’ and ‘John’ in the course of discussing his concerns regarding the
‘loan sharks’;[30] however, the tribunal did not take evidence from either of those individuals or otherwise discuss whether such evidence would be taken.
[29] Affidavit of Sarah Ainslie Thompson filed 28 March 2018 at annexure SAT-1.
[30] Affidavit of Sarah Ainslie Thompson filed 28 March 2018, annexure SAT-1 at page 6.
At the end of the hearing on 18 April 2016, the following exchange occurs between the tribunal member and the applicant:
Interviewer: So I have to produce a written record of the decision in your case.
…
… I can’t say exactly when it will be but I will attempt to make a decision as soon as I can.
…
Interpreter: So shall I just wait for that?
Interviewer: Well it will be in writing and it will be sent to you.
…
Interpreter: Do you want me to send more evidence to you, email to you any detail?
Interviewer: Well what would you be wanting to provide?
Interpreter: Videos.
…
Photo that’s come out about me.
Interviewer: A photo that’s come out? What photo?
Interpreter: John told me that the photo’s out, that’s what.[31]
[31] Affidavit of Sarah Ainslie Thompson filed 27 April 2018, annexure SAT-1 at page 23 at lines 7 to 28; and at page 24 at lines 2 to 6.
There then followed a brief exchange as to whether the applicant still had the photo and if he still had contact with ‘John’. It seems that his responses, although not entirely clear, suggest that he had some but minimal contact with ‘John’.
There was no further discussion in the course of the 18 April 2016 hearing regarding the tribunal taking oral evidence from ‘John’ or ‘Vijay’.
It was against this background that by letter dated 22 April 2016, the applicant was then invited to a further hearing on 13 May 2016. That correspondence makes it clear that the purpose of that hearing was to allow the tribunal to take evidence from the witnesses which the applicant had nominated: that is, from ‘John’ and ‘Vijay’.[32] In response to this further invitation, the applicant filed a further ‘Response to hearing invitation – MR Division’ form dated 28 April 2016, in which he:
a)indicated that he was seeking medical attention for stress related issues in response to the question on the form as to whether there were, “any issues that may affect your ability… to take part in the hearing…”; and
b)nominated ‘Vijay Kumar’ as a witness that he wanted the tribunal to take oral evidence from.[33]
[32] Court book page 177.
[33] Court book page 183 to 184.
It was in this context that the applicant wrote to the tribunal on
4 May 2016 asking for the hearing on 13 May 2016 to be postponed. The reasons given for the requested adjournment were as follows:
a)to allow him to properly put his case forward including all claims and supporting information;
b)that he had commenced seeing a psychologist and had an appointment on 20 May 2016; and
c)to allow the applicant to obtain pro bono assistance from the Asylum Seeker Resource Centre (“the ASRC”).
Although the applicant did not expressly state how long he required, he asked for a “short adjournment.”[34]
[34] Court book page 187.
Also on 4 May 2016, an email was received from the ASRC on the applicant’s behalf indicated that it was providing him with limited
pro bono assistance and that he had a meeting with them the following Wednesday, 11 May 2016.[35]
[35] Court book page 188.
On 5 May 2016, the tribunal responded to the applicant’s request for a postponement of the hearing scheduled for 13 May 2016.[36] This correspondence simply stated that the member had considered the request ‘carefully’ but decided not to postpone the hearing. No reasons were given.[37]
[36] Court book page 190.
[37] Court book page 190.
On 12 May 2016, the ASRC filed on the applicant’s behalf a statutory declaration in support of his application for the visa.[38] The statutory declaration did not, in its terms, seek any additional time to provide any further information. Moreover, it is in this statutory declaration that the applicant, for the first time, made reference to his sexuality as a basis for his claim for the visa. The statutory declaration also made reference to the fact that the applicant had commenced seeing a psychologist as a result of the stress caused by the ‘loan shark’ attacks he had endured in Malaysia and that he had an appointment on 20 May 2016.[39] The applicant also provided further articles and documents relating to the treatment of homosexuals in Malaysia.[40]
[38] Court book page 196 to 199.
[39] Court book page 197.
[40] Court book page 200.
The hearing proceeded on 13 May 2016, and the applicant, in the course of that hearing, again referred to the fact that he was seeing a psychologist on 20 May 2016. The tribunal member asked if the applicant wanted to put evidence from the psychologist before the tribunal, and when the applicant answered in the affirmative, the tribunal member agreed to allow him until 27 May 2016 to provide that report.[41]
[41] Affidavit of Sarah Ainslie Thompson filed 28 March 2018, at annexure SAT-1, at page 37.
Before the conclusion of the hearing on 13 May 2016, the following exchange occurred:
Interpreter: …you suspect me about my gay relationship
Interviewer: …yes, I do have doubts
Interpreter: Yes so can I bring gay evidence for this to prove?
Interviewer: Well you have … until the 27th of May you can provide whatever evidence in writing that you want.[42]
[42] Transcript page 37 at lines 13 to 16.
The applicant then sought an extension of two weeks to provide the psychological report which he had not been able to obtain.[43] It is not clear whether a response was received to this request, but in any event, the applicant in fact obtained the report from his psychologist on
25 May 2016 and provided that to the tribunal on that same day.[44] The applicant also provided two further letters which attested to him being homosexual and further, to his honesty and reliability.[45]
[43] Court book page 238.
[44] Court book page 239.
[45] Court book page 246 and page 248.
The tribunal had regard to this post hearing material.[46]
[46] Court book page 255 at paragraphs [17] to [18].
The applicant did not have the benefit of legal representation in the hearing before the tribunal on 18 April 2016. He had limited legal assistance in preparing for the second hearing.
It was argued on behalf of the applicant that had the adjournment been granted, he would have had the benefit of being able to provide his psychiatrist’s report to the tribunal before the second hearing. It was further submitted on behalf of the applicant that the tribunal made reference to limitations of the psychiatrist’s report on the basis that the applicant had only had one consultation with the psychiatrist. The applicant submitted that had this occurred, the applicant could have had the benefit of being able to address any concerns the tribunal member had about the psychiatrist’s report and/or called the psychiatrist to give evidence. It was submitted that this amounted to a failure to provide the applicant with a meaningful hearing as required by section 425 of the Act.
In response, the Minister stated that the refusal of the adjournment request arose in the context of:
a)there already having been one hearing;
b)the applicant being told on numerous occasions of the need to put forward his complete case;
c)the purpose of the second hearing as far as the tribunal was aware at the time the adjournment request was received and determined was to hear evidence from two witnesses which the applicant had nominated to give evidence;
d)in circumstances where the applicant’s meeting with the ASRC was scheduled to occur before the scheduled time for the second hearing, it was reasonable to assume that he could be assisted within that timeframe; and
e)to the extent that the applicant referred to seeing a psychologist, this was not in the context of a request to submit a report from that psychologist as was presently suggested.
In all of these circumstances, I am not satisfied that the tribunal’s decision not to postpone the hearing or not to allow additional time for the psychiatrist to provide his report was unreasonable. I am satisfied that the applicant was provided with sufficient time to present any material he wanted the tribunal to have regard to. The decision to refuse the adjournment application was “within the range of possible acceptable outcomes which are defensible in respect of fact and law.”[47]
[47] Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332; 87 ALJR 618; 297 ALR 225; 139 ALD 181 at [105] per Gageler J.
This case is distinguishable from the facts in both Li and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437; 308 ALR 280; 139 ALD 50 (“Singh”). In Singh, the court noted:
Without active consideration of the adjournment request, on its merits, and in context at the time it was made, the refusal cannot be said to be a legally reasonable exercise of power.[48]
[48] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437; 308 ALR 280; 139 ALD 50 at [66].
In Singh, the applicant sought a short adjournment to allow a re-mark of an assessment which, if resulting in a favourable outcome would mean that the applicant would meet the criteria for the student visa. In those circumstances, the court stated:
… There was no prejudice to anyone from a short adjournment of the review, but there was significant and inevitable prejudice to the first respondent if the adjournment were refused. His application for review would be doomed to failure.[49]
[49] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437; 308 ALR 280; 139 ALD 50 at [76].
By contrast, in this case, the applicant was not precluded, by virtue of the tribunal’s decision not to adjourn the 13 May 2016 hearing, from putting before the tribunal such information as he considered relevant to his case. The tribunal allowed him that opportunity at the hearing itself and indeed had regard to the information submitted after the hearing. The prejudice referred to in Singh and Li did not arise in this case.
To the extent that the applicant now argues that if he had been permitted to provide the psychiatrist’s report to the tribunal before the second hearing, he could have addressed any concerns or requested that evidence be taken from the psychiatrist directly, I make the following observations.
a)the limitation that the psychiatrist only had one session with the applicant and therefore could not make a diagnosis would not have been remedied; and
b)notwithstanding this observation, the tribunal accepted on the basis of the psychiatrist’s report that the applicant had mental health issues.
The approach adopted by the tribunal in this regard, did not, in my view, impact on the applicant’s ability to have the benefit of a hearing as contemplated by section 425 of the Act.
On the contrary, the applicant had two hearings, was given the opportunity to, and did provide further material both pre- and post- those hearings and the tribunal considered all of that information in coming to its findings.
For these reasons, this ground is not made out.
Ground four
The fourth ground of review is:
The decision of the Second Respondent is affected by jurisdictional error because it was made in circumstances where there was a reasonable apprehension of bias.
Particulars
(a)The Tribunal did not believe and was not open to be persuaded that the applicant was gay.
(b)The Tribunal openly mocked the applicant’s claim to be able to tell that his roommate was gay, asking the applicant, “am I gay?’.
(c)The Tribunal’s questioning presupposed that the applicant was pretending to be gay, asking questions such as “how long after arriving here did you start to act as a gay person?”[50]
[50] Applicant’s application filed 27 April 2018 at page 4.
The applicant filed with the court a transcript of both interviews with the applicant.[51] The Minister tendered an audio recording of the second interview on 13 May 2016.[52] The applicant did not object to the tendering of the audio recording.
[51] Affidavit of Sarah Ainslie Thompson filed 28 March 2018 and affidavit of Sarah Ainslie Thompson filed 27 April 2018.
[52] Exhibit B.
A decision will be affected by jurisdictional error for apprehended bias where a hypothetical, fair-minded lay person who is properly informed as to the nature of the proceedings and the matters in issue would apprehend that the tribunal member did not bring an impartial mind to the resolution of the issues.[53]
[53] Re Refugee Review Tribunal and Anor; Ex Parte H and Anor [2001] HCA 28; 179 ALR 425 at [27]-[28].
The applicant argued that the manner in which the tribunal asked questions of the applicant during the hearing on 13 May 2016 and the ‘mocking’ way in which the tribunal member asked the applicant if he thought he (the tribunal member) was gay, would lead such a fair-minded lay observer to conclude that there was nothing that the applicant could say or do to change the tribunal’s preconceived bias that he was lying about being gay.
It was submitted on behalf of the applicant that in this case as in
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 872; 131 FCR 102; 77 ALD 23 (“VFAB”), the questioning of the applicant gives rise to a reasonable apprehension of bias.
In particular, counsel for the applicant says that the tribunal repeatedly asked the applicant when he started to “act in a gay way” and “how long after arriving here did you start to act as a gay person?”[54] In addition, counsel for the applicant pointed to the exchange with the tribunal member in which it is said that the tribunal member mocked the applicant by repeatedly asking “Am I gay?”[55]
[54] Transcript page 22 at lines 45 to 46.
[55] Transcript page 23 at lines 14 to 15.
I do not propose to set out the relevant parts of the transcript of the hearing on 13 May 2016. However, having heard the audio recording of the second interview it is apparent, and I find that the tribunal member was polite and courteous throughout. In dealing with the applicant’s claims that he was gay, the tribunal member commenced by asking open questions of the applicant when seeking his evidence and appropriately asked for clarification where required. The applicant was assisted by an interpreter and it is apparent from the audio recording that the member allowed the interpreter sufficient time to interpret and listened to the applicant’s responses and asked follow up questions as appropriate.
This is distinguishable from the case in VFAB. In that case, as is evident from the decision and the excerpts of the transcripts, the member was argumentative and was at times clearly frustrated and sarcastic at times speaking over the applicant in an aggressive tone. None of those qualities were apparent in this case.
It is apparent from hearing the audio recording that at the point at which the question “Am I gay?”[56] was asked by the member, it was not asked in a derogatory, dismissive or mocking manner. Rather it was responsive to the conversation which had preceded it. I find that the tribunal member was not ‘mocking’ the applicant. The tribunal member was at all times measured and courteous in his discussions with the applicant. It is evident that the material that was the subject of discussion was of a personal and intimate nature and therefore some level of awkwardness is not entirely surprising. However, a fair minded observer would not conclude from the manner in which the tribunal member conducted the interview on 13 May 2016 that he had brought a closed mind to the issue.
[56] Transcript page 23 at lines 14 to 15.
Rather, a fair minded observer, having sufficient knowledge of the process that the tribunal was required to undertake would conclude that the tribunal was seeking information from the applicant that could support his claims and putting to the applicant for comment any concerns that he had about the evidence the applicant had given. That the tribunal did this appropriately is clear from the following exchange between the tribunal member and the applicant just prior to the conclusion of the hearing:
Interpreter: He’s just asking one thing, you suspect me about my gay relationship.
Interviewer: Oh, I do have … yeah I do have doubts.
Interpreter: Yes, so can I bring gay evidence for this to prove?
Interviewer: Well you have … up until the 27th of May you can provide whatever evidence in writing that you want.
Interpreter: Ok[57]
[57] Transcript page 37 at lines 13 to 16.
It may well have been the case that the tribunal had formed a preliminary view of the applicant’s claim to be gay on the basis of the material before him. This is not unusual having regard to the fact that an applicant is only invited to a hearing such as the one which occurred in this case under section 425 of the Act if the tribunal is not satisfied on the basis of the material before it that the applicant meets the criteria for the visa. Having said that, I am not satisfied, having regard to the material before this court that a reasonable lay observer would conclude that the tribunal member was not open to be convinced by the applicant.
To the extent that the tribunal member asked the applicant “how long after arriving here did you start to act as a gay person?”,[58] I find that this was appropriate in the context of the series of questions that the tribunal member had been asking the applicant; namely, when he first became aware of his sexuality, whether he had had any homosexual relationships whilst in Malaysia and then how his homosexuality manifested itself once he arrived in Australia. I find that the tribunal’s exploration of these issues was appropriately handled in all of the circumstances. This is particularly so given that the applicant raised for the first time his homosexuality as a basis for his claim for the visa in the statutory declaration filed the day prior to the second hearing.
[58] Applicant’s application filed 27 April 2018 at page 4.
Whilst the tribunal’s choice of words “how long after arriving here did you start to act as a gay person?”[59] taken out of context could be interpreted as inappropriate, when regard is had to the new claim made by the applicant, and the tribunal’s approach to the interview as a whole, it does not in my view evidence any proper basis for a finding of apprehended bias by the tribunal.
[59] Applicant’s application filed 27 April 2018 at page 4.
For these reasons, this ground is not made out.
Ground five
There is no fifth ground pressed.
Ground six
The sixth ground of review in the application is:
The Tribunal failed to comply with the procedure in s 426(3) of the Migration Act in that it failed to have regard to the applicant’s wishes to obtain oral evidence from the witnesses nominated by the applicant.
Particulars
(a) The Tribunal caused a hearing invitation to be sent to the applicant on 10 March 2016.
(b) The applicant sent a written response to the notice, in accordance with s 426(2), nominating two witnesses, “Jhon” and “Vijay” and providing telephone numbers.
(c) There was no mention in the first Tribunal hearing on
18 April 2016 of the Tribunal’s considering whether to call evidence from “Jhon” or “Vijay”.
(d) The applicant was sent a second hearing invitation on
22 April 2016.
(e) The applicant sent a written response to the notice, in accordance with s 426(2), nominating a single witness, “Vijay Kumar”, with a different telephone number and description to those of the “Vijay” mentioned in the first response.
(f) The Tribunal took telephone evidence from Vijay Kumar in the second hearing.
(g) There is no reference in the Tribunal’s decision record to the consideration of the applicant’s wishes to call evidence from “Jhon”.[60]
[60] Applicant’s application filed 27 April 2018 at page 6.
As stated above, section 425 of the Act provides that the tribunal must invite the applicant to a hearing in certain circumstances. Section 425A then specifies what needs to be included in any such notice. Relevantly, section 426 of the Act requires that the notice to the applicant under section 425 must include a notice to the applicant that he or she may, within 7 days after being notified, give the tribunal written notice that the applicant wants the tribunal to obtain oral evidence from a person or persons named in the notice. Section 426(3) of the Act provides:
If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.[61]
[61] Migration Act 1958 (Cth), s 426(3).
It is argued on behalf of the applicant that in his first notice dated
14 March 2016, the applicant nominated two witnesses from whom he wanted evidence taken by the tribunal, ‘Jhon’ and ‘Vijay’. In the applicant’s second notice dated 28 April 2016, the applicant nominated a ‘Vijay Kumar’. The tribunal took oral evidence at the second hearing from ‘Vijay Kumar’.[62]
[62] Court book page 184.
Accepting that there may be some ambiguity in the evidence before this court that the ‘Vijay’ referred to in the first notice and ‘Vijay Kumar’ in the second notice are the same person, it is said on behalf of the applicant that the tribunal did not have regard to the applicant’s wishes to have evidence taken from ‘Jhon’.
It is said on behalf of the applicant that this amounts to a jurisdictional error. In support of this proposition, the applicant relied upon the decision of the Full Court of the Federal Court in
Minister for Immigration & Multicultural Indigenous Affairs v Maltsin[2005] FCAFC 118; 88 ALD 304 in which the court had to consider whether the tribunal gave genuine consideration to the notice given by Mr Maltsin under section 361(2) of the Act. Section 361(3) of the Act is in similar, although not identical, terms to section 426(3) of the Act. Kenny and Lander JJ, with whom Spender J agreed, noted the following:
By virtue of s361(3), the Tribunal is obliged to have regard to any notice given by an applicant under sub-ss361(2) or (2A) of the Act. This means that the Tribunal must genuinely apply its mind to the contents of the notice and, in particular, to the question whether it should take the oral evidence of the nominated individuals in accordance with the applicant’s wishes. The Tribunal must not merely go through the motions of considering the applicant’s wishes as expressed in the notice. … It follows that the consideration that the Tribunal gives to the wishes of the applicant concerning the evidence to be taken at the hearing must also be genuine. The Tribunal must not decline to comply with the applicant’s wishes capriciously, but must take account of such relevant matters as the relevance and potential importance to the outcome of the review of the evidence that could be given by a nominated witness. … the sufficiency of any written evidence that has already been given by a witness, and the length of time that would afford the applicant a fair opportunity to put his or her case before the Tribunal.[63] …
[63] Minister for Immigration & Multicultural Indigenous Affairs v Maltsin [2005] FCAFC 118; 88 ALD 304 at [38].
It was submitted that in this case, the tribunal gave no consideration to the applicant’s wishes either before or during the first hearing.
The applicant conceded that evidence was taken from ‘Vijay Kumar’ at the second hearing, but went on to say that there was no discussion in the second hearing as to whether evidence should be taken from ‘Jhon’ or ‘Vijay’ nominated by the applicant in his first response to hearing form.
Counsel for the applicant submitted that the failure by the tribunal in its reasons to deal with the decision not to take evidence from ‘Jhon’ or ‘Vijay’ gives rise to the inference that no such consideration was given to this issue. [64] It was submitted that the failure by the tribunal to consider the applicant’s request to have evidence taken from ‘Jhon’ and ‘Vijay’ gives rise to a jurisdictional error.
[64] Minister for Immigration v MZYTS [3013] FCAFC 114 at [49].
In response, the Minister argued:
a)the review is not complete until the hearing(s) are complete, such to the extent that there may have been said to have been a failure to consider the issue of witnesses in the first hearing could be cured in the second hearing;
b)the purpose of the second hearing was to take witness evidence from the witnesses nominated by the applicant;[65] and
c)the applicant’s response to the second notice overtook events such that it was appropriate for the tribunal to take the view it did that the only witness the applicant wished to give evidence to the tribunal was ‘Vijay Kumar’ and this was confirmed with the applicant at the second hearing.
[65] Court book page 177.
This case is somewhat unusual in that a second hearing was called. It is clear from the invitation to the applicant to attend that second hearing on 13 May 2016 that the purpose of that second hearing was to permit the tribunal to take evidence from the two witnesses nominated by the applicant. So much is clear from the invitation itself. To that extent, I am satisfied that the tribunal gave proper consideration to whether to take evidence from the two witnesses nominated by the applicant as required by section 426(3) of the Act.
Had the tribunal concluded its process at the end of the first hearing, this ground may well have been made out, subject of course to the tribunal’s reasons on this point. No consideration was given during that first hearing as to whether or not evidence ought to be taken from the nominated witnesses. Whilst the two witnesses were referred to in the course of that hearing, there was no discussion about whether they would be permitted to give evidence.
However, this was remedied by the invitation to a further hearing on
13 May 2016 at which that evidence would be taken. Then there was an intervening event, namely the provision of a further response to the second hearing request, nominating only one witness, ‘Vijay Kumar’. As stated, on the basis of the evidence before this court it is not possible to say whether this is the same person as ‘Vijay’ nominated on the first response to hearing form. In any event, it is clear that ‘Jhon’ was not included on the second response to hearing form. This was apt to cause some confusion.
Quite appropriately, the tribunal member at the commencement of the second hearing, sought clarification of this in the following exchange:
Interviewer: Now you’ve listed a witness, Mr [Vijay] Kumar to provide evidence today to the tribunal.
…
Interviewer: Yeah. And I’ve got his …you’ve provided a letter from him as well.
Respondent: Ah
Interviewer: Which I’ll be taking that into account as well.
…
Interviewer: Now is … Vijay Kumar the only witness you want to give evidence today?
Respondent: Ah
Interviewer: Ok. Thank you. And does he … only know about your loan shark claims?
Interpreter: He knows only that loan shark.
Interviewer: Ok, so he doesn’t know about your subsequent claim about being gay?
…
Interpreter: He doesn’t know anything about that.
Interviewer: OK. Fair enough. OK. Well what I’m planning to do is probably just to ask you some questions about your claims now to be gay.
…
And then we’ll get some evidence off Mr Kumar.[66]
[66] Affidavit of Sarah Ainslie Thompson filed 28 March 2018, at annexure SAT-1, at page 5, at lines 18 to 28; and at page 6 at lines 1 to 22.
The applicant was assisted throughout both hearings by an interpreter. It is apparent from his participation in the hearings that he was able to understand what was being put to him and his answers were responsive to the questions asked. It is therefore reasonable to infer that if it was his intention to seek to have the tribunal consider evidence from ‘Jhon’, he would have raised the issue when specifically asked about witnesses at the commencement of the hearing.
I find that the tribunal did consider the applicant’s request for oral evidence to be obtained from possible witnesses and insofar as the applicant initially sought evidence to be obtained from ‘Jhon’ and ‘Vijay’ this request was granted and the intention was that that evidence would be taken on 13 May 2016. I also infer from the material before the court that the tribunal reasonably understood the second response to hearing form as being a change in the applicant’s request for oral evidence to be taken, and again the tribunal considered and raised this with the applicant and proceeded to take evidence from the witness identified in the applicant’s second response to hearing form.
I am therefore satisfied that the tribunal met its obligations under section 426(3) of the Act and its approach does not give rise to any jurisdictional error. The tribunal was simply responding to the claim as pursued by the applicant.
For this reason, this ground is not made out.
Conclusion
As none of the applicant’s grounds have been made out, the application should be dismissed with costs.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Mercuri.
Date: 30 August 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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