CCC15 v Minister for Immigration
[2016] FCCA 2335
•15 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CCC15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2335 |
| Catchwords: MIGRATION – Application for protection visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by not inviting the applicant to comment upon information – whether the Tribunal’s decision was affected by an apprehension of bias – whether the Tribunal adversely prejudged the matter – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.424 |
| Cases cited: Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28SZBYR v Minister for Immigration& Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 [18] SZNVM v Minister for Immigration & Citizenship [2010] FCA 261 VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123 |
| Applicant: | CCC15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2780 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 10 August 2016 |
| Date of Last Submission: | 31 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 15 September 2016 |
REPRESENTATION
| The applicant appeared in person. |
| Solicitors for the Respondents: | Mr J Pinder, Minter Ellison |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2780 of 2015
| CCC15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Lebanon who arrived in Australia as a student on 23 February 2008. On 18 June 2013 he applied for a protection visa. That application was based upon the applicant’s claim that he was bisexual and that if he were to live openly as such in Lebanon, he would be harmed by his family or people in the community, might be arrested by the Police and possibly beaten or raped.
On 18 July 2014, a delegate of the Minister made a decision not to grant the applicant a visa and the applicant applied to the Refugee Review Tribunal for review of that decision. On 1 July 2015 the functions of the Refugee Review Tribunal were taken over by the Administrative Appeals Tribunal and that Tribunal continued the review of the delegate’s decision.
The applicant attended a hearing conducted by the Tribunal on 4 August 2015. The Tribunal made its decision on 21 September 2015 affirming the decision of the delegate. The applicant seeks judicial review of that decision. He argues that the Tribunal failed to consider his claims and that its conduct of the hearing revealed either that it was actually biased or that there was a reasonable apprehension of bias. For the reasons that follow, neither of those arguments succeeds and the application will be dismissed.
The applicant’s claims
In a statutory declaration lodged in support of his visa application, the applicant made the following claims:
a)he had his first sexual experience at the age of 17 or 18 with a male friend who lived in his neighbourhood;
b)they continued to see each other regularly in a sexual way for around 4 to 5 years;
c)this was the only man he had had a sexual relationship with in Lebanon;
d)they had to keep their activities secret because if people had found out they would have regarded what they were doing as a “big sin” and tried to harm him;
e)he had also heard that homosexuals were beaten up and arrested and that in prison, homosexuals were often raped; and
f)for that reason the applicant always made sure that they were together late at night at a place where they would not be seen, such as in a forest or they would go to the friend’s house when they knew that his parents were not at home.
The applicant claimed that he had his first sexual experience with a girl at the age of 19. He claimed that he was confused as he “felt equally attracted to men and women” and “did not feel able to make a choice”. He had a relationship with both the woman and the man in Lebanon until he left for Australia.
In Australia the applicant has not had any relationships with men because he is scared of telling anyone that he is bisexual. The applicant claimed that his friends were strict Moslems and would not accept him if they knew that he was attracted to men and he was also scared that his family in Australia would find out about him and then reject him.
In December 2012, shortly before one of his brothers in Australia was to be married, another of the applicant’s brothers was seriously hurt in a shooting incident. While the applicant’s mother took his injured brother back home to Lebanon, his father stayed in Australia for about six months and returned to Lebanon on 26 May 2013. His father constantly harassed the applicant about getting married until finally the applicant revealed to him that he was bisexual. His father then told him he would not support him anymore and a few weeks later went home to Lebanon. His father had not told anyone else about the applicant’s bisexuality because it would be very bad for his own reputation in the family and community.
The applicant claimed that since that had happened he was unable to focus on his studies and he became anxious and depressed. On 30 May 2013, fearing that he might harm himself, he admitted himself to the Emergency Department at Canterbury Hospital. While the applicant was in hospital he was told where he could obtain legal advice and as a result of that, he came to know about applying for a protection visa.
The applicant claimed that if he went back to Lebanon he would be forced to live as a bisexual in secret and, if he lived openly, he would be harmed by his family or people in the community. He also claimed that he could not go to the police in Lebanon because it was against the law to have sex with another man and he could possibly be beaten or raped.
On 18 July 2014, a delegate of the Minister made a decision not to grant the applicant a visa. The delegate found that the applicant’s account of events at an interview conducted for the purpose of the application was vague, unconvincing and implausible, and that the applicant had difficulty in clarifying the timing of significant events. The delegate did not accept that the applicant feared being persecuted in Lebanon because of his sexuality. The applicant applied to the Tribunal for review of that decision.
The applicant was invited by the Tribunal to attend a hearing on 4 August 2015. A week before the hearing his agent, a solicitor and migration agent employed at the Refugee Advice & Casework Service, sent the Tribunal submissions together with a further statutory declaration by the applicant.
In this statutory declaration dated 27 July 2015, the applicant gave a different version of his sexual history. He said that his first sexual experience was at the age of 16 with an older cousin who was about 4 to 5 years older than him. There were approximately 3 to 4 sexual encounters with this cousin. The applicant said that at 17 years of age he had a sexual encounter with a younger cousin with whom he used to watch movies, sometimes pornographic movies. He continued to see his cousin regularly in a sexual way for around 4 to 5 years until he came to Australia. The applicant stated that he had not disclosed these things prior to that time because he was afraid that it would be discovered by his family.
The applicant also said that he had not had a sexual relationship with a girl. His first relationship with a girl was with a girl who he had met at a party when he was 18 but it was not sexual.
The applicant claimed that he had started to develop feelings for one man in Australia and, on one occasion went to hug him but this person reacted very badly and pushed him away. After the applicant explained that he was not gay and just wanted to hug him as a brother, the two remained friends. That incident made him more scared to reveal his sexuality to his friends.
The applicant’s agent also sent the Tribunal a letter dated 25 July 2015 from a clinical psychologist. Amongst other things, the letter stated that the author’s impression of the applicant was;
… initial presentation was a Major Depressive Episode reactive to multiple acute/ongoing stressors - posing extreme stress and possible traumatic stress (due to the politically/culturally-related sensitive nature of sexuality-related threat) as well as, in practical terms, major disruption to his academic/social/practical living conditions of unexpected and sudden nature to him.
…
The applicant attended a hearing conducted by the Tribunal on 4 August 2015. It will be necessary to consider the conduct of that hearing in some detail, later in the judgment.
After the hearing, the applicant’s agent sent the Tribunal further written submissions as well as a number of other documents. The submissions addressed a number of the concerns raised by the Tribunal at the hearing, including the inconsistencies between the applicant’s different statements and, the possibility that the applicant was not bisexual but that his application for a protection visa was only motivated by a desire to remain in Australia. There was no mention in the submissions of the conduct of the Tribunal at the hearing and no complaint that the Tribunal was either biased or appeared to have made up its mind.
The documents provided to the Tribunal with this submission included a discharge referral from Canterbury Hospital dated 30 May 2013. It stated that the applicant had presented with a four month history of depression and suicidal thoughts and noted that the applicant’s family had recently cut him off from financial support as he had refused to marry due to his sexual preferences. Another of the documents was a further letter from the clinical psychologist who confirmed that the applicant had presented to her practice with “subjective complaint of ‘fear of potential risks of harm from oppression in his home country due to his bisexual orientation’ ”.
The Tribunal made its decision on 21 September 2015 affirming the decision of the delegate not to grant the applicant a protection visa.
Tribunal’s decision
The Tribunal set out in some detail the medical evidence concerning the applicant’s depression and hospitalisation. It noted that it was striking that there was no mention in any of the medical reports or records, of the shooting of the applicant’s brother which occurred on 27 November 2012. It then recounted the applicant’s evidence from the hearing before finding:
[88]The Tribunal does not accept that the applicant’s account of his medical history to the hospital or to the clinical psychologist was consistent with what had actually happened to him. It does not accept that he was truthful in giving his history to those treating him but fabricated the claims about his sexuality and sexual history. That there is no identifiable reference to the shooting of his brother and the clear trauma it caused to the applicant and the consequences, including not being able to focus to study, is inconsistent with the applicant’s having given a genuine history. In making that finding, the Tribunal has taken into account the submission about the member’s “case theory” and the argument that he did not need to seek medical attention until after the conflict about his refusing to marry and the disclosure of his sexuality. However, the Tribunal does not accept that submission because it does not accept that the applicant’s evidence about his sexuality is credible.
The Tribunal then examined a number of other aspects of the applicant’s evidence and concluded, at [104], that it did not accept the applicant’s claims that he was bisexual or a homosexual and did not accept that he had told his father that he was bisexual or possibly homosexual, or that he feared harm from his family, the community or the police authorities in Lebanon for those reasons. On the basis of those conclusions, the Tribunal was not satisfied that the applicant met the criteria for the grant of a protection visa and so affirmed the decision of the delegate.
Consideration
First ground
The first ground in the application is that the Tribunal misunderstood the applicant’s claims and misapplied the law. There were no particulars of this ground and the applicant did not file any written submissions or make any oral submissions in support of it. In any event, it is patently incorrect. The applicant’s claim to be owed protection obligations was based entirely upon his sexuality. The Tribunal rejected the applicant’s claims about his sexuality. In light of that rejection, there was no foundation upon which the Tribunal could have been satisfied that the applicant met the criteria for the grant of the visa. The first ground is rejected.
Second ground
The second ground in the application is that the Tribunal Member was biased and rude. Before dealing with that, it is necessary to deal briefly with a ground raised by the applicant orally at the hearing. The applicant appeared unrepresented at the hearing although he told the court that he had had some assistance from a Mr Laba Sarkis. Mr Laba Sarkis was the deponent of the affidavit to which the transcript of the Tribunal hearing was annexed. The applicant argued that the Tribunal had erred because it failed to invite him to comment upon information, being the inconsistency in his evidence about the number of sexual incidents which had occurred in Lebanon. The argument, however, was misconceived. The Tribunal’s obligation in respect of adverse information was provided for in s.424(1) of the Migration Act1958 (Cth). That obligation does not apply to inconsistencies in evidence given by an applicant, whether it be in support of the protection visa application or the application for review of a delegate’s decision: VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [24], (2004) 206 ALR 471 at 476 to 477 per Finn and Stone JJ; SZBYR v Minister for Immigration& Citizenship (2007) 81 ALJR 1190 at 1196; [2007] HCA 26 [18] per Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ.
At the hearing of this matter the applicant submitted that the Tribunal Member was rude at the hearing and otherwise exhibited signs that she had already made up her mind. He stated that she spoke loudly, threw the papers that she was holding onto the desk, had bulging eyes and was arrogant. I explained to him that it would not be possible for me to accept his assertions simply on the basis of the transcript. The applicant told the Court that his agent, Mr Laba Sarkis, had filed the recordings of the hearing. Mr Laba Sarkis may well have told the applicant that he did file the recordings of the hearing but in fact, no recordings had been filed.
The applicant then proffered the discs of the hearing and also said that he wanted to rely upon the video recording of the Tribunal hearing. However, as the applicant said that he was not sure whether there was in fact a video recording, and I have never seen any indication that the proceedings of the Tribunal are recorded by video, I did not allow any further time for the applicant to obtain such evidence. Eventually, with the consent of the parties, I admitted the audio recording of the hearing (consisting of three compact discs), granted leave to the parties to file submissions in respect of that recording and indicated that I would listen to the audio recordings in chambers and make a decision without any further oral hearing.
Both the applicant and the Minister filed written submissions. The applicant’s submissions went beyond the leave granted and addressed further grounds of review. To the extent that they did so, I have given them no attention. I have listened to the audio recording of the hearing.
Although the applicant relied upon actual bias, as he was unrepresented, it is necessary also to consider whether there was a reasonable apprehension of bias by reason of the Tribunal’s conduct at the hearing. The bias contended for by the applicant was one of prejudgment.
Bias in the form of prejudgment requires a state of mind “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented:” Minister for Immigration & Multicultural Affairs v Jia Legeng; (2001) 205 CLR 507 at 532; [2001] HCA 17 [72] (“Jia”) per Gleeson CJ and Gummow J. For an allegation of actual bias to succeed it must be “distinctly made and clearly proved”: Jia at 531, [69] and “it is a heavy burden”: SZNVM v Minister for Immigration & Citizenship [2010] FCA 261 at [31].
As for apprehended bias, the question is whether a fair minded lay-observer might infer from the Tribunal Member’s conduct of the hearing that the Tribunal Member might be predisposed against the applicant and not open to persuasion: that there was nothing the applicant could say or do to change the Tribunal Member’s preconceived views: Charara v Commissioner of Taxation [2016] FCA 451 (“Charara”) (Wigney J) at [112] citing Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 at 435, [29] – 435, [31]; Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531, [71]; NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 at 268, [16] – 269, [19] (Allsop J, Moore and Tamberlin JJ agreeing); SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80.
In Charara, Wigney J explained at [116];
In the context of hearings in the (former) Refugee Review Tribunal, it has been held that robust and forthright testing of the visa applicant’s claims by the Tribunal does not necessarily sustain a finding of apprehended bias: SZOAF v Minister for Immigration and Citizenship [2010] FCA 431 at [17]; NAOX v Minister for Immigration and Citizenship (2009) 112 ALD 54 at 61[41]-61[43]; SZKLK v Minister for Immigration and Citizenship [2008] FCA 1125 at [47]; SZOEV v Minister for Immigration and Citizenship (2010) 117 ALD 324 at 527[18].
His Honour further said at [119]:
Momentary or occasional outbursts or displays of impatience, irritation or ill-temper will not alone give rise to an apprehension of bias: Galea at 279F-280A (Kirby ACJ), 283C (Priestly JA): R v Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225 at 230[20]; VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at [81]. Nor will strong language or harsh tones alone be sufficient: Penhall-Jones v State of NSW [2007] FCA 925 at [92] – [97]; SZNVM v Minister for Immigration and Citizenship [2010] FCA 261 at [31]. Those sorts of matters all have to be considered in the context of the entire hearing. Apprehended bias will not be established by cherry-picking statements made during a hearing and considering them in isolation: Dye v Commonwealth Securities Ltd (No 4) [2010] FCA 910 at [94].
The applicant relied on a number of specific complaints about the Tribunal’s conduct. Other complaints, such as, that the Tribunal was frightening and insensitive, were more general and appear to have been inferences drawn by the applicant from the specific complaints.
The first specific complaint was that the Tribunal Member spoke loudly during the hearing. There is no foundation for that complaint. The volume at which the Tribunal Member spoke was never louder than either the applicant or his adviser. On one or two occasions the Member’s tone changed slightly and briefly. I will return to those instances further below.
The second specific complaint was that the Member spoke with a rude or arrogant voice. Again, when the hearing is taken as a whole, there is no foundation for this complaint. Once again, I will return to the few occasions where that complaint might have some basis in the evidence.
The third complaint is that the Member banged her hand down on the table. There was no indication of that at the hearing. With the volume on the recording set at mid-level, the sounds of typing and paper shuffling were very clear. There was no sudden, loud or sharp noise that might suggest a hand banging on the table.
The fourth complaint is that the Member threw papers on the table. This complaint is baseless for the same reasons as the third complaint.
The fifth complaint is that the Tribunal had bulging eyes. The applicant’s submission was that this occurred at the point of the hearing appearing at line 18 of page 75 of the transcript (T75.18).
The context of that passage is important. It occurs at the time the Tribunal is asking the applicant about his evidence concerning his relationship with a girl in Lebanon. It will be recalled that the applicant’s first statutory declaration was to the effect that this relationship was sexual but that in his second statutory declaration he stated that it was not sexual. The questions on this topic start at T70.19.
The applicant gave evidence that the relationship was not sexual: T70.21; 70.26. He was then asked to explain what he meant by a relationship, and what he did with the girl: T71.1. A little later, the applicant states that he did not see it as a relationship: T71.14; T71.20. The Tribunal then asked him, again, what they did: T71.21. The applicant then gave some evidence about walking on the beach before the Tribunal turned to examine the inconsistency in his evidence about this topic.
First, the Member states: “You’ve signed I think two statutory declarations” (T73.20). She then asks whether the applicant had read the declarations before signing them and whether they were true: T74.1 – 74.16. The applicant at first says that they were both true. The applicant then apologises for first saying that there was a sexual relationship with the girl and the Tribunal replies: “Why did you sign the statutory declaration saying you had?” (T74.21).
At this point, the Member’s tone is a little exasperated[1] although her voice was not raised and there was no banging or other loud sounds of any sort.
[1] Refer to CD 2 at 39:06 – that is, 39 minutes and 6 seconds into the recording
Shortly after this, is the passage during which the applicant claims the Member had bulging eyes[2]:
Applicant:… I didn’t have any sexual relationship with my girlfriend because it’s something very big in my in my village to have a sexual relationship as well with my girlfriend.
Tribunal:And not as big as having a sexual relationship with two men.
Applicant:Yes there was like you know we are doing it in the shadow and I was pretty sure if I’m going to do it 100% safe [Tribunal member’s name] I’m telling you.
Tribunal:Well if it’s 100% safe you can go back and live in Beirut.
Applicant:No I can’t because where
Tribunal:And have secret sexual relationships.
[2] T75.10-23; CD 2 at 40:14 – 40:43
It is plausible that the Tribunal Member showed some signs of disbelief at this point of the hearing. Whether or not her eyes were bulging is not important. Even if they were bulging that would lend no support to the claim of bias, actual or apprehended. It is clear that the Tribunal was having some difficulties accepting the applicant’s evidence about his sexuality by this time. The Member was directing the applicant’s attention to the direct inconsistency in his evidence about his heterosexual experiences. The applicant first seemed to suggest that there was no inconsistency before apologising for the inconsistency. He then sought to corroborate his later evidence (that there was no sexual relationship with the girl in Lebanon) by saying that it was a big thing to have sexual relationships with a girlfriend in Lebanon. The Tribunal Member reacted with some incredulity to this suggestion in light of the claim that the applicant had had sexual relationships with two men.
The Tribunal’s task required it to raise important issues with the applicant and to ask questions directed at ascertaining what events had occurred in the past. The credibility of the applicant’s claims about what had occurred in Lebanon was an important issue: they were integral to the applicant’s claims and the delegate did not believe them. There is no contradicting party to ask these questions and it was up to the Tribunal to do so. In light of that, these passages do not establish any bias or support any reasonable apprehension of bias on the part of the Tribunal.
That said, in my view, the Tribunal’s comment that the applicant could return to Lebanon and have secret sexual relationships there did cross the line of what was appropriate. On one view, it showed a misunderstanding of the definition of a refugee (see, for example, Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71). On another view, it had very little to do with the applicant’s claims and was simply an expression of frustration.
However, it does not demonstrate any form or possibility of prejudgment. First, although the Member’s tone reveals that she was a little exasperated by the applicant’s evidence, there was reason enough for her to be so: his claims were plainly inconsistent and could be seen as illogical; secondly, the passage cannot be taken in isolation, or “cherry-picked”, but must be seen in the context of the hearing as a whole. The balance of the hearing was conducted in an even tone and, subject to three possible exceptions, without any other inappropriate comment or indications of exasperation.
The three possible exceptions are the following statements by the Tribunal Member:
Tribunal[3]: I’ve heard that a number of times I’m not really interested in hearing it again.
…
Tribunal[4]: Centrelink payments? How do you get Centrelink payments?
…
Tribunal[5]: I hear I hear you’ve told me that a number of times.
[3] CD 2 at 1:03.22; T88.23
[4] CD 2 at 1:04:17; T89.19
[5] CD 2 at 1:07:15; T90.26
…
The first and third of these statements were made shortly after the Tribunal had started asking questions about a new topic and the applicant started repeating his evidence about earlier topics. In addition, after the third comment, the Tribunal indicated to the applicant that she actually accepted what he was saying (T:91.2).
The tone of the Tribunal Member’s voice when making the second comment did show some surprise; however, it was neither rude nor unexpected. It would come as a surprise to many people to learn that a visa applicant was receiving social security payments.
None of these further statements change the tone of the overall hearing or the general impression from the level of the Member’s voice, her questions and reactions. The Tribunal Member was simply trying her best to give the applicant every opportunity to make his case and to answer her queries about it. The conduct of the hearing does not support the assertion that the Tribunal had, or might be perceived possibly to have prejudged the matter adverse to the applicant.
Further, I do not accept that the Tribunal’s conduct overall was either frightening to the applicant or insensitive. There was one period in which the applicant became emotional, but that was when he was recounting the injuries sustained by his brother when he and his companion were shot. At no other time did the applicant reveal anything other than equanimity in the face of the Tribunal’s questions. In any event, and more to the point, no reasonable observer of the proceedings could have come to the conclusion that the Tribunal was frightening or insensitive or drawn the connection between that and the possibility that the Tribunal had made up its mind.
The second ground is rejected.
Conclusion
There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 15 September 2016
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