CFV17 v Minister for Immigration, Citizenship & Multicultural Affairs
[2022] FedCFamC2G 943
Federal Circuit and Family Court of Australia
(DIVISION 2)
CFV17 v Minister for Immigration, Citizenship & Multicultural Affairs [2022] FedCFamC2G 943
File number(s): MLG 1089 of 2017 Judgment of: JUDGE TAGLIERI Date of judgment: 14 November 2022 Catchwords: MIGRATION – protection visa application – application for judicial review – whether the Tribunal made a finding that the applicant was not homosexual without properly considering the evidence before it – whether Tribunal member was biased – finding that the Tribunal’s finding about the applicant’s sexual orientation was illogical and unreasonable – jurisdictional error established – application for review granted Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 476 Cases cited: AAE16 v Minister for Immigration [2017] FCCA 2667
AMF15 v Minister for Immigration and Border Protection [2015] FCCA 1307
BRT19 v Minister for Home Affairs [2020] FCA 449
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146
DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Ngu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 21
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253
SCAA v Minister for Immigration [2002] FCA 668
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089
Tesic v Minister for Immigration and Border Protection [2016] FCA 1465
VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102
WABC of 2002 v Minister for Immigration [2002] FCAFC 286
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
WZATH v Minister for Immigration and Border Protection [2014] FCCA 612
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
United Nations High Commission Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992
Division: Division 2 General Federal Law Number of paragraphs: 71 Date of hearing: 15 September 2022 Place: Hobart For the Applicant: In person Counsel for the First Respondent: Mr Taylor Solicitor for the First Respondent: Mills Oakley ORDERS
MLG 1089 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CFV17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE TAGLIERI
DATE OF ORDER:
14 November 2022
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the second respondent dated 30 March 2017.
2.A writ of mandamus issue directed to the second respondent as constituted by a different member to reconsider and determine the applicant’s application for review according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
On the 25 May 2017, the Applicant filed an application in the Court for a review of a decision of the Administrative Appeals Tribunal, Migration and Refugee Division, (“the Tribunal”) dated 9 May 2017, which affirmed a decision not to grant a Protection visa. The application enlivens this Court’s jurisdiction pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”).
BACKGROUND
The Applicant is a non-citizen who applied for a Protection visa on 9 June 2016, which was refused by a delegate of the First Respondent on 6 September 2016. The Tribunal conducted a hearing on 8 May 2017.
On 9 May 2017, the Tribunal affirmed the decision of the First Respondent’s delegate to refuse the Applicant’s Protection visa.
The application to review the Tribunal’s decision came before me on 15 September 2022 for hearing. The Applicant represented himself, and a Malay interpreter was also in attendance to assist him. The First Respondent was legally represented.
Basis for the tribunal decision
The Applicant did not assert any jurisdictional error in these proceedings on the basis of the Tribunal’s conclusions concerning the claims based on his bankruptcy and involvement in rallies.
Instead, it is apparent and I clarified with him at the commencement of the hearing that he relies on purported jurisdictional error based on the Tribunal’s determination of his claims based on his homosexuality and sexual orientation.
Accordingly, this judgment focusses on the basis for jurisdictional error in respect of the claim of homosexuality and sexual orientation.
At [28] to [33] of the reasons for decision, the Tribunal addressed what it described as a “new claim introduced at the hearing”, based on the Applicant’s homosexuality and that he could not hide it any longer (“the new claim”).
In respect of the new claim, the Tribunal stated as follows in its reasons for decision:
(a)At [34], it said it has significant concerns regarding the evidence of the Applicant, such that the Tribunal does not consider him to be a truthful witness. It did not accept that the Applicant would not have raised his claim at the first instance if it were true;
(b)At [36], that the Applicant's actual evidence regarding his sexual identity in Malaysia was “vague and limited”; and
(c)At [37], it elaborated on difficulties it had with accepting the Applicant’s evidence and then concluded that while it accepted that the Applicant may not have wanted the person who assisted him in completing the protection visa application to know about his claim of homosexuality, it did not accept that the Applicant himself would not include the claim if it was true, given his opportunity to do so.
The Tribunal then concluded that the Applicant had concocted the claim that he is a homosexual in Malaysia.[1] It also found that the Applicant: [2]
…is not homosexual and does not have a real chance of serious harm or a real risk of significant harm arising from his sexuality.
[1] Tribunal reasons at [39].
[2] Final sentence of the Tribunal reasons at [39].
The balance of the Tribunal reasons dispose of the issues of whether the Applicant had satisfied the Tribunal of the statutory criteria for protection in s 36(a) of the Act or alternatively s 36(2)(aa) of the Act based on his political opinion or activity and his debt or bankruptcy. Those portions of the reasons are not relevant because of the limited basis of jurisdictional error relied upon by the Applicant as noted above.
GROUNDS OF REVIEW
The stated Grounds of application in the Application filed on 25 May 2017 are as follows:
1. The Tribunal did not make its decision on 9 May 2016 according to law in that:
2.The Tribunal commited [sic] jurisdictional error by taking indoor [sic] account irrelevant consideration.
3.The Tribunal has made its decision without looking at the evidence of the Applicant. I believe the decision was made purely on the beliefs of the member. To question my sexuality was made on his bias only. I guarantee that what I told the member was 100% true. I feel if I am retuned to Malaysia I feel emotionally unsafe. The Tribunal may check all the evidence on my phone regarding my sexuality.
Ground 1 is narrative which simply asserts that the tribunal decision was not in accordance with the law. On its own it does not legitimately identify a basis of potential jurisdictional error.
Ground 2 can be understood to assert jurisdictional error by taking into “account irrelevant consideration”, but it does not specify what “irrelevant consideration” is said to have been taken into account by the Tribunal.
Given the deficiencies noted in relation to Grounds 1 and 2, I consider that they can be dismissed summarily as they were not given any meaning or attention by the Applicant during the hearing.
JUDICIAL REVIEW HEARING
Applicant’s Contentions
For the purposes of Ground 3, the Applicant sought to rely on further evidence intended to be corroborative of his claims that he was and is homosexual. The further evidence is comprised of a letter dated 20 August 2022 attaching three photographs, said to be of the Applicant and another male. The letter refers to “pictures on my vacation visiting my ex-boyfriend in Scotland” and states “the member at my last hearing was biased and claimed that I'm just making a story. He had made an error of law in his decision…”.
The First Respondent objected to receipt of the letter and photographs in evidence. I proposed that I receive the letter and photos de bene esse, hear submissions on behalf of the First Respondent in respect of admissibility, and determine their admissibility at the same time of delivering judgment. The First Respondent agreed to that course and the letter and photos were marked as MFI-1.
The Applicant submitted that the member had said in his decision that the Applicant had made up the statements concerning his homosexuality, but that is not the case. He said he had always faced problems about his sexuality, had been abused and teased because of how he walked and talked, being softly spoken. He added that he was bullied by his older brother and at school for being different and was regarded as a troublesome child.
As a consequence the matters at [18], he said that he had bad anxiety and suffered panic attacks in Malaysia, but he has not had this issue since being in Australia. He said that he had showed the member a prescription for Xanax and another medication he had been on in Malaysia, which he was not needing to take anymore in Australia. He said that the member had not taken this into account.
The Applicant stated that the member was biased, asking him if he had a boyfriend at the time of the hearing, to which he had stated that he had been seeing a male friend for one or two months and that it was early in their relationship at the time. The member described this relationship as “platonic”. However, that is not what he says he meant and that his friend had helped him to draft the application to this Court. The Applicant continued, saying that the friend had provided free accommodation and it was not a platonic relationship.
The Applicant made further submissions emphasising the emotional instability that would result from treatment by his family to which he would be subject should he return to Malaysia because he could not hide his homosexuality any more.
Addressing his marriage and the Tribunal reasoning at [31], he said that he had been married twice, but neither had lasted as his heart was not there for women. He stated that if he returned to Malaysia he would be pushed into remarrying; I infer this to mean married to a woman. The Applicant stated that the member confined his assessment to whether he would be physically harmed and failed to consider the emotional harm upon him returning to Malaysia as a homosexual.
Respondent’s submissions
Counsel appearing for the First Respondent noted that much of what the Applicant had submitted and referred to in Ground 3 of his application went to the merits of the decision of the Tribunal. Accordingly, it was said that the Applicant had failed to establish jurisdictional error.
The First Respondent specifically addressed Ground 2, submitting that the Applicant had not identified the “irrelevant consideration” and for that reason alone the ground has no merit and can be dismissed.[3]
[3] WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60], upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
The First Respondent submitted that the submissions by the Applicant about the extent of emotional harm he would suffer in Malaysia as a homosexual person was not supported by the materials before the Court. Referring to the submissions about the prescriptions the Applicant needed in Malaysia, the First Respondent contends that there is no evidence of the Applicant needing prescription medication or being on it for emotional or psychological distress either in the reasons for decision of the Tribunal or in the Court Book.
Expanding on the submission at [25], it was said that it is noteworthy that the only documents the Applicant brought to the Tribunal hearing are those identified at page 83 of the Court Book, which are addressed at [19] of the reasons for decision. These documents were relevant to the claim for protection connected to bankruptcy, and no mention of medical documents or prescriptions appears in any of the materials before the Court.
According to the First Respondent, it was only at the Tribunal hearing that the Applicant raised such a claim for the first time. Counsel noted that the Applicant had four years to provide documents corroborating a claim that such information had been provided to the Tribunal, but yet there was no corroborative evidence.
Addressing the bias submissions involved in Ground 3, Counsel for the First Respondent submitted that the fact that the Tribunal disbelieved the Applicant does not show bias.[4]
[4] VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration [2002] FCAFC 286 at [3].
Further, the First Respondent submitted that the Tribunal gave clear reasons for rejecting the Applicant’s evidence and disbelieving him, so there is no jurisdictional error shown on the basis of bias.
Regarding the admissibility of the photographic evidence, the Court was referred to three authorities.[5] The First Respondent submitted that on a judicial review by this Court, new evidence of the nature sought to be relied upon by the applicant, being MFI-1, cannot be adduced because it cannot show jurisdictional error.
[5] Tesic v Minister for Immigration and Border Protection [2016] FCA 1465; BRT19 v Minister for Home Affairs [2020] FCA 449; DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158.
It was submitted that new evidence may be admitted to determine the existence of a jurisdictional fact, but not to examine the merits of fact-finding by the Tribunal on the basis of evidence that was not before it.
The First Respondent submitted that the Applicant appeared at the hearing before the Tribunal, had an opportunity to discuss with the member and say everything he wished, and that nothing pleaded by the Applicant demonstrates jurisdictional error on the part of the Tribunal in its decision.
The Applicant sought to reply to the First Respondent’s submissions. Referring to the submissions about the documents that had been taken by him to the hearing, he submitted that the member did not ask him about other documents and only took what he wanted to choose from a number he had with him. He maintained that he had shown the member both the receipt for the prescriptions as well as the documents concerning the bankruptcy.
Issue arising
I expressly raised with Counsel for the First Respondent whether it accepted that I was not constrained to consider whether there was jurisdictional error on the part of the Tribunal by reference to the grounds as formulated by the Applicant.
Counsel acknowledged that I was not so constrained, but submitted that the reasons for decision did not demonstrate any recognised jurisdictional error. I was asked to identify possible bases for such error in the Tribunal reasons, to enable submissions to be made.
I raised whether the basis upon which the Tribunal had approached making its credit findings about the Applicant claiming to be homosexual revealed a basis for jurisdictional error. The crux of what I raised was that, although the member had identified the relevant legal principles to the approach to be taken by the Tribunal in assessing credit, the reasons of the Tribunal may demonstrate that the member did not proceed according to the principles and what instruction they provide.
Counsel for the First Respondent submitted that the Tribunal’s reasons ought not be scrutinised with the perception of finding error and needed to be read fairly. He submitted that the member had stepped out the oral evidence given by the Applicant and noted that the first time the Applicant made a claim based on sexuality was during the hearing.
It was submitted that the member comprehensively dealt with the evidence given by the Applicant, but rejected the claim that the Applicant was a homosexual because he had raised this for the first time during the hearing. Contrary to what the Applicant stated, it was not a “minor detail”,[6] and secondly, because the evidence given by the applicant was “vague and lacking in detail”.[7]
[6] Tribunal reasons at [35].
[7] Tribunal reasons at [36].
Counsel for the First Respondent submitted that it was for the Applicant to make out his case and it was open for the Tribunal to reject the claim that the Applicant was homosexual because of the lack of detail about this and also because of the lateness of the claim.
I asked whether there was an obligation on the part of the Tribunal to consider the alternative hypothesis that the claim of homosexuality had a factual basis and the delay in expressing it was reasonably explained. Counsel submitted, in effect, that there was no such obligation.
EVALUATION
It is unnecessary to make a ruling in relation to the admissibility of the documents referred to at [16] of these reasons,[8] as will be evident from the determination below.
[8] MFI-1.
The purported basis for jurisdictional error relied upon by the Applicant concerns his claim relating to his homosexuality which the Tribunal characterised as a “new claim” introduced at the hearing (“the claim”).[9]
[9] Tribunal reasons at [28].
The Tribunal decision addressed three potential claims that may have satisfied the statutory criteria for protection. At [17] to [20] the Applicant’s past bankruptcy is discussed and it is evident that the Applicant did not seek protection on the basis of the past bankruptcy. It is also consistent with the position adopted in the judicial review hearing.
At [21] and following of the Tribunal reasons, the member addressed what was included in the Visa Application about the Applicant participating in anti-government rallies and protests.
It appears, from the context of the Tribunal’s reasons overall, that the Applicant expressly vocalised his claim of homosexuality while discussing the content of his Visa application with the member,[10] after he had already stated at the commencement of the hearing that he had some extra detail to give about the information in the written Visa Application.
[10] Tribunal’s reasons at [29] and [30].
The additional information about homosexuality which the Applicant gave the Tribunal was given as evidence on affirmation.[11] It is set out in various parts of the Tribunal’s written reasons at [29] to [33]. The manner in which it is expressed in the Tribunal reasons, in my view, reflects the member’s formulation of what was stated by the Applicant and is not verbatim. I have formed this view on the basis of the style of expression used in the Visa Application when compared to the expression used in the written reasons, which are markedly different.
[11] Court Book at page 80.
The Tribunal’s formulation of the Applicant’s evidence was:
(a)He was homosexual and cannot hide it any longer and this was the main reason he could not return to Malaysia;
(b)He did not want his family, including his daughter, to know of his sexual persuasion;
(c)He had not included the statements about (a) and (b) in the Visa Application because he was in a hurry to lodge it;
(d)He had assistance in drafting the Visa application from a person on a farm where he was working;
(e)He was shy and did not want to disclose information about homosexuality to the person who helped him with the Visa application;
(f)The Applicant had been married in Malaysia and had a child who was 13 years old at the date of hearing;
(g)The woman whom he married was a Pakistani citizen and had filed for divorce in 2009;
(h)The marriage was arranged to cover the fact he was gay;
(i)A nephew had asked him questions about the marriage recently because he had found compromising pictures of the Applicant. The Applicant was concerned he would be really embarrassed and he did not what his daughter to know of his sexual identity;
(j)The Applicant had a male partner in Malaysia in 2004 who left him after he became bankrupt;
(k)In 2007 he had been at a disco when it was raided and he had been held with others overnight by police, but released the next day without charge;
(l)On occasions other than the one referred to above, he had fled the nightclub after tipoffs the club would be raided;
(m)The Applicant was depressed in Malaysia hiding his identity and had been on medication for this and also because of his debt issues; and
(n)He had met a person (presumably male) in Australia, but they were not lovers.
After referring to the above evidence, the Tribunal stated it had significant concerns regarding the evidence of the Applicant and said it did not consider him to be a witness of the truth in regard to the claim of homosexuality.[12]
[12] Tribunal reasons at [34].
The Tribunal went further and said at [39]:
The Tribunal finds that the applicant has concocted the claim that he is a homosexual in Malaysia. The Tribunal considers that the applicant concocted the claim when his primary claims as presented were shown to have contrary country information. The Tribunal finds that the applicant is not homosexual. The Tribunal finds that the applicant will not be embarrassed by his nephew, or has any concern regarding his sexual identity being disclosed to his daughter. The Tribunal finds that the applicant does not have a real chance of serious harm or a real risk of significant harm arising from his sexual identity.
The Tribunal’s reasons for finding that the Applicant’s claim surrounding homosexuality was untrue and concocted appear at [35] to [39] and distil into the following propositions:
(a)That if the claim were true, it would have been raised in the Visa Application;[13]
(b)The claim was not a “minor detail” but the main reason the Applicant did not want to return to Malaysia;[14]
(c)The Applicant’s evidence regarding his sexual identity in Malaysia was vague and limited;[15]
(d)His relationship as disclosed was as a heterosexual male and not a homosexual hiding his identity;[16]
(e)No mention was made of fear of imprisonment, and the fear he referred to in his Visa application related to imprisonment and fine because of his involvement with the anti-government “campaign group” and there was no reference of any real detention by the authorities;[17]
(f)His reluctance to disclose information to the person who assisted him with the Visa application does not explain the absence of mention in his Visa application of arrest at the nightclub, as he could have added it without detailing why he had been detained;[18] and
(g)The Applicant was 48 years old, had good English skills and relevant employment experience in completing detailed information.[19]
[13] Tribunal reasons at [35] and [38].
[14] Tribunal reasons at [35].
[15] Tribunal reasons at [36].
[16] Tribunal reasons at [36].
[17] Tribunal reasons at [37].
[18] Tribunal reasons at [37].
[19] Tribunal reasons at [38].
Credit and Judicial review principles
A review by this Court is authorised by s 476 of the Act. In order to succeed and obtain the relief sought the Applicant needs to demonstrate jurisdictional error by the Tribunal. What constitutes jurisdictional error is usefully described in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].
Before addressing the Tribunal’s decision, it is necessary to highlight relevant authority that stands for the proposition that conclusions based solely on credit findings are not necessarily immune to judicial review.
A succinct and instructive summary of the relevant authority is given in the joint judgement in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [37] and [38].
The basis of jurisdictional error discussed in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089 concerned jurisdictional error founded on the basis of contravention of s 425 of the Act, by the Tribunal not putting a specific aspect relied upon to reject the Applicant’s claims that they were in a genuine spousal relationship, namely, that the representations made to corroborative witnesses were false.
In SZVAP, Flick J highlighted by reference to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [47], that what is required to afford procedural fairness and compliance with s 425 of the Act varies between cases.
Credit findings - jurisdictional error?
I consider that the Tribunal’s credit findings and reasoning disclose potential jurisdictional error on the basis of illogicality or unreasonableness concerning the credit findings.
The reasoning referred to in [50] above, detail why the Tribunal treated the claim of homosexuality as “new” and rejected it as true.
The reasoning is based on an inference that the Visa application did not allude to the claim at all, therefore the claim was concocted when the primary claims as presented were shown to have contrary country information.[20]
[20] Tribunal reasons at [39].
However, the Applicant had stated he wanted to provide more information before the member discussed what were characterised as the primary claims of bankruptcy and fear of persecution or significant harm based on involvement in political campaigns.
Further, the Applicant did not ever rely on the bankruptcy to found a claim for protection.[21]
[21] Tribunal reasons at [18]; Court Book at pages 32 to 34.
The member has concluded that the Visa application did not mention the claim of homosexuality in any way and rejected the Applicant’s evidence given during the hearing as to why it was not explicitly mentioned.
However, the Applicant stated at the commencement of the hearing that he wanted to provide some additional detail and it is plausible that he was referring to a claim of homosexuality in the Visa application which had not been “spelt out” or explicitly stated. In arriving at this view, I am conscious of the difficulties and differences in manner of expression and demeanour of self-represented persons for whom English is not their first language and who are involved in unfamiliar legal processes. Similar difficulties and differences have been subject to judicial and other comment on many occasions.[22] The judicial comment about difficulties and differences that self-represented persons experience with legal process were observed in the context of Tribunal or court process. However, I consider they are equally applicable where an applicant to a Visa Application completes it without legal advice, as in this case.
[22] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; AMF15 v Minister for Immigration and Border Protection [2015] FCCA 1307; Ngu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 21; AAE16 v Minister for Immigration [2017] FCCA 2667; United Nations High Commission Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196 -197] and [203-204].
Further, the member concluded that the claim of homosexuality was false because the Applicant could have included information about his arrest without disclosing his homosexuality to the person who assisted him, [23] or alternatively he had good English skills and relevant employment in completing detailed information so could have included it himself.[24]
[23] Tribunal reasons at [37].
[24] Tribunal reasons at [38].
The Applicant may well have been referring to his detention overnight and fears of harm should he return to Malaysia based on his homosexuality given what is written in answer to question 94 and 96 of the Visa application. The member acknowledged the reference to “bad record”; they attribute that statement to evidence about the bankruptcy, but this seems illogical given the fact the Applicant did not claim protection on any basis connected to his past bankruptcy.
Further, the Tribunal reasoned that the Applicant was “experienced and used to dealing with detailed information” and relied on this to treat the absence of specific mention of the claim of homosexuality until the hearing as indicative that the claim was fabricated. However, in my view this too unreasonably ignores the judicial commentary and the recognised difficulty that applicants in seeking protection face.[25] Further, it factually implies that the member did not give the Applicant the benefit of the doubt and treat his evidence liberally when there was no evidence before the Tribunal contradicting the Applicant’s evidence that he was homosexual.[26]
[25] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 per Beaumont J in at [451].
[26] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; AMF15 v Minister for Immigration and Border Protection [2015] FCCA 1307; Ngu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 21; AAE16 v Minister for Immigration [2017] FCCA 2667; United Nations High Commission Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196 -197] and [203-204].
The Tribunal’s described the Applicant’s evidence at the hearing as “vague and limited”, but this seems unreasonable and unfair given the extent of the evidence discussed at [47] of these reasons, especially because there was no evidence contradicting the Applicant’s evidence.
Finally, the Tribunal relied on a finding that the Applicant disclosed his relationships in Malaysia to be heterosexual based on evidence of marriage to women and having a child, rather than as a homosexual hiding his identity. However, having been married and having had a child is not inconsistent with the Applicant’s evidence of the marriage being arranged and that he had been hiding his homosexuality. In short, there may be various ways in which a person publicly portrays themselves for the purpose of hiding homosexuality. I consider the Tribunal finding and reasoning to be unreasonable and illogical.
The basis upon which the Tribunal concluded that the claim of homosexuality was untrue and fabricated demonstrates jurisdictional error on the basis of illogicality and unreasonableness.
Conclusion
As will be apparent from the reasons above, the Tribunal made unreasonable or illogical findings about the credit of the Applicant on which it then relied to reject the proposition that the Applicant satisfied the statutory criteria for complementary protection pursuant to s 36(2)(a) and s 36(2)(aa) of the Act.
Given this conclusion, it is unnecessary to determine the question of admissibility of MFI-1. That evidence may arise for consideration on redetermination on remittal depending on how the Applicant conducts his case.
The Application for review is allowed and orders will be made to effect quashing of the Tribunal decision and remitting the matter for redetermination by a differently constituted Tribunal.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 14 November 2022
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