Duh16 v Minister for Immigration

[2019] FCCA 156

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUH16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 156

Catchwords:
MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Act) in relation to decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – whether Tribunal made finding that applicant knew a document he had submitted to the Tribunal was forged on the basis of no probative evidence – whether Tribunal was required to give to the applicant particulars of the inquiries made by the Department of Foreign Affairs and Trade to a third person that elicited a response from the third party particulars of which the Tribunal had provided to the applicant – whether the Tribunal failed to consider mental condition in not accepting the applicant’s explanation for not maintaining a sexual relationship with his partner – no jurisdictional error.

Legislation:

Evidence Act 1995 (Cth), s.35
Migration Act 1958 (Cth), ss. 420, 424A, 476

Cases cited:

Minister for Immigration and Citizenship v SZLFX [2009] HCA 31
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 174
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Walker v Walker (1937) 57 CLR 630

Applicant: DUH16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3499 of 2016

Judgment of: Judge Manousaridis

Hearing date: 1 December 2017

Date of Last Submission: 1 December 2017

Delivered at: Sydney

Delivered on: 1 February 2019

REPRESENTATION

Counsel for the Applicant: Mr I Chatterjee

Solicitors for the Applicant: HIV/AIDS Legal Centre

Counsel for the First Respondent: Ms N Laing

Solicitors for the First Respondent: HWL Ebsworth Lawyers

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3499 of 2016

DUH16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of the Republic of Cameroon, applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).

2. Given the nature of the grounds on which the applicant relies, it would be useful to set out not only the applicant’s claims for protection and the Tribunal’s reasons for rejecting those claims, but also the course of the proceeding before the Tribunal.

Claims for protection

1. In his form of application for a Protection visa the applicant claimed the government of Cameroon would kill him because he is a homosexual, and being a homosexual is against the law in Cameroon. The applicant claimed that his partner (P) was killed “because we were caught making love and because of us being homosexuals”.[1] The applicant claimed that in January 2011 P came to the applicant’s home where they watched a soccer game on television. After drinking wine the applicant and P decided to make love. The applicant’s fiancé (F), who was in an adjoining room, heard some noises, opened the door, noticed the applicant and P making love, and started to scream and cry. Before the applicant or P could do anything, a mob rushed in and started beating them. F poured hot water over P’s face. P died from the injuries he sustained from the beatings. The applicant was locked up in gaol without any trial or judgment for two years and six months. While in gaol he was raped and sexually abused by other prisoners on several occasions; he was starved, eating rice once a day; and he slept on the floor. The applicant’s uncle helped the applicant escape, and he told the applicant the authorities are searching for the applicant.[2]

   [1] CB9

   [2] CB168, [14]-[16]. I have relied on the Tribunal’s summary of what the applicant claimed in the form of application. Pages 7 and 8 of the form of application have not been included in the court book.

2. The applicant provided two documents in support of his application for protection.[3] One is a purported original warrant for arrest dated 15 August 2013, and an English translation of that document.[4] The purported warrant stated there “is cause to actively search, on the whole of the territory, for the” applicant, being a person who is being sought for his “[h]omosexual practice” and “[e]scaping from prison”. The other document is a “criminal record” purportedly issued by the “Court of Appeal of the Court of First Instance” of the Republic of Cameroon.[5] The document, which is headed “Bulletin No.3”, describes itself as an “[i]nformation sheet on imprisonment not expunged by amnesty or Rehabilitation and on penalties related to traffic offences Sect. 581(1)(c)”.

   [3] CB170, [30]

   [4] CB39-40

   [5] CB35

3. The applicant gave further details of his claim to the delegate when interviewed on 24 September 2014.[6] The applicant initially stated that, after he and P had been beaten, the police came and took P to the hospital and the applicant to the police station. The applicant later said the mob took him to the police station. The police did not question the applicant about what had happened, but he was made fun of. The applicant was held at the police station for one month and then taken to the local prison. The applicant’s uncle, who was an inspector in the police force working at the airport, arranged for the applicant’s escape. A guard woke up the applicant at night and took him to a car with a driver. The applicant spent a month at the home of a friend of the applicant’s uncle, and he then left Cameroon for Paris. The applicant spent one month in Paris, but he did not claim protection in France because there were demonstrations against gays in response to plans to change the marriage law.

   [6] CB169-170 [20]-[26]

Proceeding before the Tribunal

1. In support of his application the applicant provided to the Tribunal the following documents:

   a)A letter dated 10 January 2016 purportedly from Mr Y in his capacity as executive director of an association known as “Alternatives Cameroon”.[7] The letter sates Mr Y has always worked with associations defending the rights of sexual minorities; s.347a of Cameroon’s Criminal Code “condemns any person having sexual relations with another person of the same sex”, and provides a sentence of between 6 months and five years, although the Minister for Justice “is using his influence to carry out a reform of the Criminal Code” to increase the sentence to 15 years imprisonment; any person who is, or who is suspected of being gay runs the risk of imprisonment, rejection by family, or even death; through one of the Alternatives Cameroon’s members “we learned of the arrest of two alleged homosexuals, the said [applicant] and [P] caught in the act of making love”, that in the night of 22 to 23 January 2013 “they were the victims of mob violence and [P] succumbed to his injuries”, and the applicant’s “life was saved when the law enforcement services intervened but he was then thrown into prison without judgment”.

   b)A document containing information about Alternatives Cameroon.[8] It states Alternatives Cameroon was founded in 2006 and has “been working with gay and bisexual people who have been subjected to arrest and to other violation [sic] of their human rights because of the fact that homosexuality is considered a crime in this country”. The document also refers to Alternatives Cameroon having been awarded the human action prize (2013 International Prize-Winner) given by Human Rights Watch and the Canadian HIV/AIDS Legal Network.

   c)A purported letter from a Mr D on behalf of an organisation known as “Association Freedom Life” (AFL) to the Asylum Centre for Migrants in Australia.[9] The letter states the applicant and P were caught making love and as a consequence of which the applicant and P were attacked resulting in P’s death; the applicant was imprisoned but managed to escape; the applicant is wanted by the police and his life is in danger because in Africa in general, and Cameroon in particular, “politicians and the population have no mercy for homosexuals who are exposed to public condemnation”.

   d)A purported death certificate of P issued by the Department of Public Health.[10] The certificate states P died on 23 January 2011“[f]ollowing an [sic] homophobic assault”.

   e)A purported death certificate of P issued by the “Civil Status Registration Centre”.[11]

   f)An email sent on 16 February 2016 from “ACON” to the applicant thanking him for registering to take part in volunteer opportunities in connection with the Sydney Mardi Gras.[12]

   g)A document issued by “ACON” confirming the applicant was registered as a volunteer with ACON on 22 February 2016 and that he “has been a valued member of our team working during fundraising events and as part of a resource distribution initiative”.[13]

   h)A letter from a psychologist stating that the applicant began counselling on 29 January 2016 attending “weekly to fortnightly sessions”. The letter stated the applicant was experiencing post traumatic stress disorder symptoms. The letter set out the symptoms which included difficulty in recalling incidents in a sequential manner, difficulty in focusing for a prolonged period, and difficulty focusing in a perceived stressful situation.

   [7] CB89

   [8] CB90

   [9] CB98

   [10] CB88

   [11] CB99

   [12] CB121

   [13] CB120

2. By letter dated 4 July 2016 the Tribunal invited the applicant to appear before it on 16 August 2016 to give evidence and present arguments.[14] By letter dated 11 July 2016 sent by email, the Tribunal informed the applicant that the Tribunal would like to hear evidence from the applicant’s uncle, noting that it would be in a position to take evidence from the applicant’s uncle by telephone from Cameroon.[15] The Tribunal requested the applicant inform it by 22 July 2016 whether the applicant wished his uncle to give evidence on his behalf and, if so, whether the applicant’s uncle is able to give evidence at 1 am Cameroon time or at 6am or 8am Cameroon time.

   [14] CB102

   [15] CB105

3. On 27 July 2016 an officer of the Tribunal telephoned the applicant and asked him about a response to the Tribunal’s letter of 11 July 2016.[16] The applicant said he agreed to the Tribunal taking evidence from his uncle, but the applicant said he did not know his uncle’s mobile telephone number. The applicant said he could find out on the weekend, and said that it would be better if the applicant’s uncle was called between 6am and 8am Cameroon time. The Tribunal officer also said the Tribunal intended to make inquiries of Alternatives Cameroon and the AFL. The applicant said he had no problems with that. The Tribunal confirmed these matters by letter to the applicant dated 27 July 2016.[17]

   [16] CB109

   [17] CB111

4. By email sent on 31 July 2016 the applicant informed the Tribunal that he contacted his uncle, and that his uncle was aware that he will be contacted by the Tribunal between 6am and 8am Cameroon time.[18] The applicant, however, said that Alternatives Cameroon and the AFL “are not as operational as they used to be” because the applicant had “recently been made to understand that, the Government of Cameroon has been persecuting members of this [sic] associations and as a result, most of their members have been locked up in jail”.

   [18] CB113

5. By letter dated 1 August 2016 the Tribunal invited the applicant to appear before it on 16 August 2016, being the same day the Tribunal notified the applicant in its letter of 4 July 2016, but in the afternoon.[19] The letter attached a “Response to hearing invitation – MR Division” which the applicant completed and returned to the Tribunal.[20] In that document the applicant requested the Tribunal take oral evidence from two people, Mr H (whom the applicant described as a friend), and Mr Y (whom the applicant described as the president of a particular association in Australia).

   [19] CB116

   [20] CB118-119

6. On 9 August 2016 the Tribunal sent an email to the applicant stating that the Department of Foreign Affairs and Trade (DFAT) had advised the Tribunal that before it could make enquiries of Alternatives Cameroon and the AFL the applicant had to agree to the following:[21]

   I consent to the use and disclosure of my personal information to DFAT for the purpose of DFAT making enquiries with Alternatives Cameroun [sic] and Association Freedom Life in Cameroon, to ascertain whether the supporting letters are genuine and to ask whether they would be willing to be contacted by telephone by the DFAT reviewer in relation to the supporting statements.

   [21] CB124

7. The applicant gave his consent by email sent on 9 August 2016.[22]

   [22] CB127

8. In response to the Tribunal’s letter dated 1 August 2016 the applicant appeared before the Tribunal on 16 August 2016. During the hearing the Tribunal took evidence from a person who claimed to be the uncle of the applicant. The Tribunal also asked questions of the applicant. The hearing, however, did not conclude. One reason was that DFAT had not yet reported to the Tribunal on its inquiries of the authenticity of the documents that had been purportedly issued by Alternatives Cameroon and the AFL.[23]

   [23] T32.5. The transcript is annexed to the affidavit of  S I Swart made on 31 July 2017

9. By letter dated 24 August 2016 the Tribunal invited the applicant to appear before it on 25 October 2016. Before the rescheduled hearing the applicant provided to the Tribunal a letter dated 2 September 2016 in which he repeated some of his claims, stated that he has been depressed for three years of his life, and he would prefer to kill himself in Australia rather than be sent back to Cameroon to be killed there.[24]

   [24] CB143

10. On 9 September 2016 the Tribunal received a response from DFAT. The Tribunal set out in its reasons what it described as the “relevant portion of the response from DFAT” which included the following:[25]

    Post contacted [Mr Y] at Alternative Cameroun and forwarded him attachment B of reftel [the supporting letter dated 10 January 2016]. [Mr Y] advised by email that he did not write or send the letter, and confirmed that the document was fake. He also said that neither he nor Alternative Cameroun have any knowledge of [the applicant].

    Post also contacted [Mr C] at Association Freedom Life who advised that he had no knowledge of the letter signed by [Mr D]  . . . . and requested that Post check with the coordinator [Mr D]. Post has been unable to contact [Mr D] who was to return to his home village as his father is unwell. [Mr C] advised that he was planning to see [Mr D] next weekend, and would request that [Mr D] contact Post.

    Post will report further should additional information be obtained from [Mr D].

    [25] CB180-181, [35]

11. Near the beginning of the hearing on 25 October 2016 the following was said:[26]

    Member:So what I am going to do now is put to you some problems and inconsistencies in your evidence including based on further information that I have obtained. And I am going to do this in a certain way under Australian law as I am obliged to do. So if there is adverse information that has been produced in a certain ways [sic] I am obliged to put it to you in a certain procedure to give you the maximum opportunity to comment and to put you on notice that it is adverse information. Do you understand?

    Applicant:I understand.

    Member:So we will be going through this process a number of times in relation to different issues. So, the first issue we will proceed with, so I am going to provide you with information that the tribunal considers that would be the reason or part of the reason to affirm the decision under review, that is to find that you are not owed protection by the Australian government. I am providing this information and seeking comment from you in accordance with section 424AA of the Migration Act. That information is information obtained from the Australian Department of Foreign Affairs dated 9 September 2016, indicating that [Mr Y] from Alternatives Cameroon, has indicated that he did not write or send a letter that you’ve provided in support of your application with him seeking to confirm your claims as to the death of your partner, and your detention in Cameroon, and that neither he or [sic] Alternatives Cameroon had any knowledge of you, so that information is relevant, because it would suggest that you have provided a forged document to the Tribunal, its relevant because it could potentially lead me to conclude that all your claims about, about potentially being gay, the death of your partner, and your detention in Cameroon are concocted, and the consequence of me relying on this information could be to disbelieve claims of the death of your partner, you being detained and claims you are homosexual. So I am seeking your respond [sic] to this information, and I can advise that you may seek additional time to comment or respond to the invitation. So you don’t have to respond now, you can go away and think about how you would like to respond, and provide a response in writing, or you can provide a response now. . .

    [26] T43.5-15

12. The applicant provided a response at the hearing. In short, the applicant said that he did not know Mr Y, and that it was the applicant’s uncle who had obtained the document.[27] The applicant said his uncle told him “he went to the association . . . I read the letter, the letter was consistent with my case because I thought it would support my case, because all this happened”.[28]

    [27] T43.30

    [28] T44.25

13. The Tribunal then referred to the document purportedly provided by Mr D of the AFL. The Tribunal said that DFAT contacted not Mr D but a contact person for the AFL; the contact person had no knowledge of the letters but said that Mr D should be contacted to get his view whether he wrote the letter; but DFAT was unable to contact Mr D.[29] The Tribunal said that the “fact that clearly a forged letter has been provided by Alternatives Cameroon leads me to strongly suspect that other document is also forged”.[30] The Tribunal put other matters to the applicant which it is unnecessary to set out.

    [29] T44.30

    [30] T44.30

14. Near the end of the hearing the Tribunal gave the applicant time to provide a statutory declaration by his uncle explaining the circumstances in which the documents from Alternatives Cameroon were obtained. The applicant provided a statutory declaration purportedly from the applicant’s uncle.[31] The declarant states he is “well and truly the sender of the document dated 10 January 2016 sent to [the applicant] in Australia”; the “said document was drawn up by the “ONGF Alternatives Cameroun” (Cameroon NGO Alternatives)”; and that Mr Y “is, unequivocally, the author of the said document”. The applicant also provided to the Tribunal a letter.[32] The applicant there stated that his current state of mind “is very unstable”; he is very disappointed with Mr Y “for lying that he is not the one who wrote the testimony in support for me”, noting that the applicant’s uncle had made the applicant understand that “it is possible that most of the archives of Alternatives Cameroon has been destroyed due to continuous police repression”; and the applicant was disappointed the head of ACON had indicated he was not aware of the applicant’s existence.[33]

    [31] CB159

    [32] CB150

    [33] The Tribunal noted in its reasons that it “has no information before it of such a claim by ACON” (CB187, [87])

Tribunal’s reasons

1. The Tribunal was not satisfied the applicant “is a trustworthy or truthful witness”.[34] The Tribunal relied on a number of matters and findings:

   [34] CB186, [79]

   a)The purported letter from Alternatives Cameroon dated 16 January 2016 “is clearly a forged document”,[35] and the applicant “is fully aware that the document is not genuine”.[36] In making these findings the Tribunal relied on DFAT’s report that Mr Y did not write the purported letter,[37] independent evidence that confirmed that Alternatives Cameroon has existed for a decade, and the implausibility of the applicant’s claim that Mr Y lied when he informed DFAT that he did not write the letter.[38]

   b)The applicant had given inconsistent evidence about the circumstances of P’s death. Before the delegate the applicant said that after he and P were attacked, P was taken to the hospital and the applicant to the police station, and the applicant was told of P’s death two days later when the applicant was still being held in the police station.[39] Before the Tribunal, on the other hand, the applicant said that after he and P were attacked, both the applicant and P were briefly taken to the hospital for about one hour, and then taken to the police station where they were both placed in a cell with others; and that P died at the police station as a result of infections caused by the burns inflicted when F poured hot water over P.[40] The Tribunal did not accept the applicant’s explanation for the inconsistency, namely, that he was suffering from trauma and details had escaped him.

   c)The applicant had given inconsistent evidence about who took him to the police station after he and P were attacked. Before the delegate the applicant initially said the police took the applicant to the station but then said the mob had taken him to the police station. Before the Tribunal the applicant said the police took the applicant and P to the hospital for a brief period and then took the applicant and P to the police station.[41]

   d)The applicant’s uncle’s evidence about the time the applicant had spent in gaol was inconsistent with the evidence the applicant had given about that topic. The uncle said the applicant was not detained for more than six to seven months after the applicant and P were attacked in January 2011 whereas the applicant said he was in gaol until one month before he left Cameroon in 2013.[42]

   e)The applicant had given inconsistent evidence about the circumstances in which he obtained the photograph which he used for what the applicant claimed was the fraudulent Portuguese passport the applicant used to leave Cameroon and enter France.[43] The Tribunal considered this to be a “minor and tangential issue”, but nevertheless found that the inconsistencies on that issue “buttresses other more central credibility concerns”.[44]

   f)There was inconsistent evidence about whether the applicant’s uncle had visited the applicant while he was in prison. Before the Tribunal the applicant said that his uncle visited him once about three months after the applicant was imprisoned. The applicant’s uncle, on the other hand, said that while he had visited the prison in which the applicant was detained on official business, he did not visit the applicant in prison “because of how this would be appear”.[45]

   g)The applicant had given inconsistent evidence about whom he met when he escaped from prison. Before the delegate the applicant said he was taken from the prison to a car that had a driver arranged by the applicant’s uncle. Before the Tribunal, on the other hand, the applicant said that his uncle had met him at the prison and taken him to Douala.[46]

   h)The applicant gave inconsistent evidence about visits by his mother while the applicant was in prison. Before the delegate the applicant said his mother was not allowed to visit him, but before the Tribunal the applicant said that his mother visited him soon after he was imprisoned.[47]

   i)There are no media reports or reports from non-government organisations or human rights groups concerning the death of P.[48]

   [35] CB182, [45]

   [36] CB183, [50]

   [37] CB182, [46]

   [38] CB182-183, [49]

   [39] CB183, [51]

   [40] CB183, [52]

   [41] CB184, [57]

   [42] CB184, [59]

   [43] CB185, [65]

   [44] CB185, [67]

   [45] CB185, [68]

   [46] CB185-186, [71]

   [47] CB186, [73]

   [48] CB186, [77]

1. The Tribunal concluded that “the credibility concerns are so significant that they make it difficult for the Tribunal to be satisfied as to any of the applicant’s substantive claims”.[49]

   [49] CB186, [80]

2. The Tribunal referred to other matters. One concerned the documents on which the applicant relied, and in particular the purported arrest warrant, the document from AFL, “Bulletin No.3”, and the death certificates. The Tribunal gave no weight to these documents, given its finding that the applicant forged documents from Alternatives Cameroon, and the credibility concerns the Tribunal had already identified.[50] The second matter the Tribunal considered was whether the applicant was homosexual. The Tribunal was “inclined to accept” the applicant has been involved in the gay community while in Australia, including volunteering with ACON, and being involved in the Sydney Mardi Gras;[51] but it did not accept the applicant was homosexual. The Tribunal relied on its credibility concerns it had already identified and the evidence of a Mr H, a homosexual, to the effect that he was in a non-sexual relationship with the applicant.[52] The Tribunal referred to Mr H’s evidence that Mr H and the applicant were not having sex because of the applicant’s trauma, but the Tribunal did not accept that was the reason for the applicant and Mr H not being in a sexual relationship because the Tribunal “does not accept the past trauma suffered by the applicant as claimed”.[53] The Tribunal found, therefore, that the applicant would not identify as homosexual on return to Cameroon, or that he would act in a way such that he would be perceived to be homosexual.[54]

   [50] CB187, [82]

   [51] CB187, [86]

   [52] CB187-188, [88]-[90]. Mr H’s evidence is at T19.600

   [53] CB188, [89]

   [54] CB188, [91]

Grounds of application

1. The applicant relies on an amended application which contains six grounds, but the applicant only relies on the grounds stated in paragraphs 1(a), 1(b), 2, and 4.

Grounds 1(a) and 1(b)

1. Given the application relies on the same particulars for grounds 1(a) and 1(b), it will be convenient to consider the grounds together. They are as follows:

   1.a.The Second Respondent fell into jurisdictional error by making findings for which there was no evidence by relying on third party representations in relation to a matter of serious or grave consequences without having evaluated the factual foundation of a fact that was central to the decision to be reached.

   1.b.In the alternative by relying on third party representations in relation to a matter of serious or grave consequences without having evaluated the factual foundations of a fact that was central to the decision to be reached the Second respondent fell into jurisdictional error by making findings which were legally unreasonable.

   Particulars

   a.The Applicant provided a letter to the Second respondent from Mr [Y] the executive director of Alternatives Cameroun dated 10 January 2016.

   b.The Second respondent requested that the Country of Origin Information Services Section of the Department of Immigration and Border Protection cause enquiries [sic] to be made by the DFAT post servicing Cameroon to verify the authenticity of the letter from [Mr Y].

   c.DFAT informed the second Respondent that: “[Mr Y] advised via email that he did not write or send the letter, and confirmed that the document was fake.”

   d.The email from DFAT to [Mr Y] was never provided by DFAT to the Second Respondent nor the Applicant.

   e.The email from [Mr Y] to DFAT was never provided by DFAT to the Second respondent nor the Applicant.

   f.The Second respondent found that the letter from [Mr Y] was ‘clearly a forged document’ and took ‘as credible and authoritative the indication by [Mr Y] to DFAT that the supporting letter provided in relation to the applicant was not written by home nor authorised by Alternatives Cameroon.’

   g.On the strength of the information provided by DFT to the Second respondent in relation to [Mr Y] the Second respondent made key findings as to the Applicant’s credibility.

Ground 1(a) – no evidence

1. In his written submissions counsel for the applicant submitted that:

   a)a finding or the drawing of an inference in the absence of probative evidence is an error of law, and “a decision so made is amenable to review on the basis of jurisdictional error”;[55]

   b)the Tribunal’s findings that the document purportedly issued by Alternatives Cameroon was a forgery, and the applicant was aware it was a forgery, were made on the basis of information that did not constitute probative evidence, that information being DFAT’s communication to the Tribunal of what Mr Y said (relied-on information);

   c)the relied-on information was not probative evidence because it was “hearsay, being representations as to the contents of communications from a third party”, and it lacked the “necessary context to construe the statements purported to be those of [Mr Y], in that it does not identify the “question” to which [Mr Y] purportedly replied”.[56]

   [55] Applicant’s Outline of Submissions, [22]

   [56] Applicant’s Outline of Submissions, [18]

2. In oral address counsel for the applicant submitted that a decision-maker will make a jurisdictional error where the decision-maker makes a finding of fact that is not based on admissible evidence. Counsel relied on the following passage from a well-known text book:[57]

   When considering the review grounds as they relate to allegations of factual error, it is important to remember that the courts . . . have always reserved the term “evidence” for material which either would be legally admissible in a court or which was proved in a forum following the rules of evidence. “Other material” is the term used to describe proof not qualifying for the term “evidence”.

   [57] M Aronson, M Groves, G Weeks, Judicial Review of Administrative Action and Government Liability Sixth Edition, Lawbook Co. 2017, [4.610]

3. There are two matters to note about counsel’s reliance on this passage. First, even if (which is doubtful) the passage accurately describes the use by courts of the word “evidence” and the expression “other material”, that does not imply that courts apply a rule to the effect that an administrative decision-maker can only rely on admissible evidence in making findings of fact. On the contrary, the passage assumes a decision-maker can rely on material that is not admissible evidence. The point of the passage is that courts describe such material as “other material” rather than as “evidence”. The second matter to note is that the meaning of “evidence” is broader than the meaning of “admissible evidence”. That is apparent from the adjective “admissible” which qualifies “evidence”, necessarily implying that “evidence” is a subset of the broader set of “evidence”. Third, the word “evidence” is used extensively outside the context of litigated cases.[58] Fourth, s.420(a) of the Act provides that the Tribunal, in reviewing a Part 7-reviewable decision (such as the delegate’s decision refusing to grant the applicant a Protection visa) “is not bound by technicalities, legal forms or rules of evidence”. For these reasons I do not accept counsel’s submission that an administrative decision-maker makes a jurisdictional error only because the evidence on which he or she relies for making a particular finding does not constitute “admissible evidence”.

   [58] See the entries for “evidence” in the Oxford English Dictionary, one of which is: “Grounds for belief; facts or observations adduced in support of a conclusion or statement; the available body of information indicating whether an opinion or proposition is true or valid. With for, of (the thing proved), from, of (the source of the facts).” See also D A Schum The Evidential Foundations of Probabilistic Reasoning, John Wiley & Sons, 1994, at page 1: “We commonly use the term evidence with reference to observable phenomena upon which we base inferences about matters of interest and importance to us.”

4. The question, then, is whether the relied-on information was probative evidence; that is, whether the relied-on information was reasonably capable of supporting the findings the Tribunal made that the purported letter from Alternatives Cameroon dated 16 January 2016 was forged and the applicant was aware the purported letter was forged. The applicant relies on two matters for contending that the relied-on information was not probative. One is that it is hearsay. That by itself, however, does not deny it probative value because hearsay evidence is capable of having probative value. That is apparent from the law of evidence, both at common law and under the Evidence Act 1995 (Cth), which provide many exceptions to the rule against the admission of hearsay evidence. Moreover, it has been held that even inadmissible hearsay evidence that has been admitted into evidence for want of objection or for some other reason is capable of having probative value. That is illustrated by the judgments in Walker v Walker. [59] In that case a magistrate compelled counsel to put into evidence as part of his client’s case a document containing inadmissible hearsay.[60] One of the questions the High Court considered was whether the magistrate was entitled to treat the hearsay statements contained in the document as having probative value, even though the hearsay evidence was otherwise inadmissible. A majority of the High Court held the magistrate was so entitled. Dixon J (as his Honour then was) said that if the document “contains statements of fact in relation to relevant matters, then it becomes a medium of proof to which such weight may be attached as circumstances warrant”.[61] Evatt J denied “the proposition that, merely because the document was “hearsay” and therefore inadmissible, it is necessarily deprived of probative value”, and observed that it “may have considerable probative value”.[62]

   [59] (1937) 57 CLR 630.

   [60] The rule by which counsel in that case was compelled to into evidence was abolished by s.35 of the Evidence Act 1995 (Cth)

   [61] (1937) 57 CLR 630, page 636

   [62] (1937) 57 CLR 630, page 638

5. The second matter on which the applicant relies is that the relied-on information lacks the context necessary to construe the statements DFAT recorded Mr Y made because it does not identify “the “question” to which [Mr Y] purportedly replied”. I do not accept that submission. The extract from the DFAT response which the Tribunal reproduced in its reasons for decision unambiguously sets out the substance of the question DFAT asked Mr Y and the response Mr Y gave to the question. The extract shows DFAT provided to Mr Y the purported letter from Alternatives Cameroon dated 16 January 2016 and Mr Y responded by stating he did not write or send the purported letter. Even if, however, it be assumed that the question Mr Y is recorded as having answered cannot be inferred from the DFAT response alone, there is other material on the basis of which the question can be identified. Here I am referring to the applicant having consented to DFAT “making enquiries with Alternatives Cameroun [sic] and Association Freedom Life in Cameroon, to ascertain whether the supporting letters are genuine and to ask whether they would be willing to be contacted by telephone by the DFAT reviewer in relation to the supporting documents”.[63]

   [63] CB124

6. It was reasonably open to the Tribunal to consider that the relied-on information was probative of Mr Y’s having made a representation to an officer of DFAT that Mr Y is not the author of the purported letter from Alternatives Cameroon dated 16 January 2016; and, having accepted that Mr Y did make such representation, it was reasonably open to the Tribunal to consider Mr Y’s having made such a representation to be probative evidence of the truth of the matter Mr Y represented, namely, that Mr Y is not the author of the purported letter from Alternatives Cameroon dated 16 January 2016. In short, it was reasonably open to the Tribunal to consider that the relied-on information is probative evidence that the purported letter from Alternatives Cameroon dated 16 January 2016 was forged and to rely on that information to find that the purported letter was forged.

7. Counsel for the applicant submitted that even if the relied-on information was probative evidence that the purported letter from Alternatives Cameroon dated 16 January 2016 was forged, it was not probative evidence that the applicant was aware the letter was forged. There would be force in counsel’s submission if the relied-on information were considered in isolation; but the probative value of the relied-on information must be assessed in context; and here there are two matters that are relevant. First, it is the applicant who submitted the purported Alternatives Cameroon letter dated 16 January 2016. That is a rational basis for inferring that the applicant would have knowledge of the provenance of the document. Second, as I have already noted, in response to the Tribunal’s informing that the letter was forged, the applicant asserted that his uncle had obtained the letter without the applicant’s knowledge, and the Tribunal gave the applicant an opportunity to provide a statutory declaration by his uncle explaining the circumstances in which the documents from Alternatives Cameroon were obtained. Although the applicant provided a statutory declaration purportedly made by his uncle, it does not set out the circumstances in which the uncle had obtained the purported Alternatives Cameroon letter dated 16 January 2016. The statutory declaration went no further than baldly asserting that Mr Y was the author of the Alternatives Cameroon letter dated 16 January 2016. In those circumstances it was reasonably open to the Tribunal not to accept the applicant’s explanation that it was his uncle who had obtained the purported Alternatives Cameroon letter dated 16 January 2016, and instead find that it was the applicant alone who had procured the letter and submitted it to the Tribunal; and, given it was reasonably open to the Tribunal to find the purported Alternatives Cameroon letter dated 16 January 2016 was forged, that the applicant was aware the letter was forged.

8. For these reasons I do not accept the Tribunal’s findings that the purported Alternatives Cameroon letter dated 16 January 2016 was forged and that the applicant was aware of the forgery were made without any probative evidence. Ground 1(a), therefore, fails.

Ground 1(b) - unreasonableness

1. The ground based on unreasonableness relies “not only on the absence of any probative evidence from Mr [Y] before the Tribunal but also the absence of the necessary context to Mr [Y]’s purported response”.[64] The applicant submits there was a “lack of disclosure of the content of at least two and perhaps multiple communications between the relevant DFAT post”.[65]

   [64] Applicant’s Outline of Submissions, [27]

   [65] Applicant’s Outline of Submissions, [27]

2. The applicant does not explain how the Tribunal’s not disclosing the contents of email communications between DFAT and Mr Y rendered it unreasonable for the Tribunal to rely on Mr Y’s response, as recoded in the passage from DFAT’s response set out in the Tribunal’s reasons for decision. In my opinion, any non-disclosure by the Tribunal of the contents of the email communications did not render it unreasonable for the Tribunal to rely on Mr Y’s response.

3. Perhaps the applicant intends to submit that the Tribunal was obliged to disclose, or at least was required to consider whether it should disclose, to the applicant DFAT’s email communications with Mr Y. There are two things to say if that is the applicant’s complaint. First it assumes the Tribunal possessed the email communications between Mr Y and DFAT. There is no evidence, however, that the Tribunal did possess such communications.[66] Second, the applicant has not identified any ground on which the Tribunal was required to give greater disclosure, or to consider whether it should give greater disclosure than it did, of the communications with Mr Y; and in my opinion there is no basis for finding the Tribunal came under any such obligation. The applicant consented to the Tribunal asking DFAT to make enquiries with Alternatives Cameroun to ascertain whether the letters of support on which the applicant relied “are genuine”, and the Tribunal disclosed to the applicant that DFAT did contact Mr Y and that Mr Y said he was not the author of the purported letter from Alternatives Cameroon dated 16 January 2016. Further, the applicant did not request that the Tribunal should disclose to him the communications between DFAT and Mr Y thus indicating that the applicant needed no further information to understand the effect of what Mr Y had communicated to DFAT.

   [66] Paragraph (e) of the particulars positively asserts that DFAT did not provide to the Tribunal the email from Mr Y

4. The applicant also submits there is a “close similarity between the translated and original letters” as a consequence of which “a confusion in respect of which could have easily have led to Mr [Y]’s purported response”.[67] There is nothing in the evidence before me that could support this submission. It is not apparent whether DFAT provided to Mr Y a copy of the translated letter or not; and even if DFAT did also send a copy of the translation, it is not stated how the asserted similarities could have led Mr Y to be confused about whether he was the author of the purported letter from Alternatives Cameroon dated 16 January 2016, and how any such confusion could have led to Mr Y unequivocally stating he was not the author of the purported letter.

   [67] Applicant’s Outline of Submissions, [27]

5. The Tribunal did not act unreasonably by relying on the relied-on information. Ground 1(b), therefore, also fails.

Ground 2

1. Ground 2 is as follows:

   The Second Respondent failed to afford the Applicant procedural fairness by failing to give to the Applicant clear particulars of information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   Particulars

   (a)The Applicant provided a letter to the Second Respondent from [Mr Y] to the executive director of Alternatives Cameroun [sic] dated 10 January 2016.

   (b)The Second Respondent requested that the Country of Origin Information Services Section of the Department of Immigration and Border Protection cause enquiries to be made by the DFAT post servicing Cameroon to verify the authenticity of the letter from [Mr Y].

   (c)DFAT informed the Second Respondent by email that: “[Mr Y] advised via email that he did not write or send the letter, and confirmed that the document was fake.” (the DFAT Material).

   (d)The email from DFAT to [Mr Y] was never provided by DFAT to the Second Respondent nor the Applicant.

   (e)The email from [Mr Y] to DFAT was never provided by DFAT to the Second Respondent nor the Applicant.

   (f)The Second Respondent’s key findings as to the Applicant’s credibility rested on the finding that the letter from [Mr Y] that the Applicant had provided was forged.

   (g)The Second Respondent had the DFA material before them for approximately one month and a half prior to hearing.

   (h)By not providing:

   a.notice of the DFAT material to the Applicant prior to the second hearing

   b.a copy of the DFAT material either prior to or following the hearing

   the Applicant did not have a real and meaningful opportunity to present arguments relating to the decision under review such as by affording the Applicant an opportunity to review the material prior to the hearing, or taking steps to arrange for [Mr Y] to attend the hearing as a witness by telephone.

   h.[sic] The Second Respondent further failed to take into consideration the limitation that the Applicant’s mental health had upon his ability to comment on the DFAT material when notified verbally at both the first and second hearing. From 18 August 2016 the Second Respondent had before them evidence that the Applicant suffered from post-traumatic stress disorder.

1. The claim is that the Tribunal was obliged, but failed, to provide to the applicant before the hearing of 25 October 2016 notice of Mr Y’s having represented to DFAT by email that he did not write or send the purported letter from Alternatives Cameroon dated 16 January 2016, or provide the applicant with a copy of Mr Y’s email. In the applicant’s written submissions, however, it is submitted the Tribunal failed to comply with s.424A of the Act. The applicant submits the Tribunal could not have satisfied its obligations under s.424A of the Act “without providing the particulars of the process by which information was purportedly obtained from” Mr Y. In oral address counsel for the applicant submitted that the applicant accepts he was provided with clear particulars of what purports to be an answer to a query, but he was not provided with any particulars of the query and, for that reason, he could not respond to an answer without being informed of the context in which that answer was given.[68]

   [68] T20.30

2. The outcome of this ground, at least as developed in the applicant’s written submissions and in the applicant’s oral address, depends on whether “the process by which information was purportedly obtained from” Mr Y or the communications from DFAT to Mr Y that induced the response from Mr Y is “information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”.[69] It has been authoritatively decided that “information” for the purposes of s.424A of the Act must be information that by its terms constitutes a “rejection, denial or undermining of” an applicant’s claim to be a person to whom Australia owes protection obligations.[70] The information particulars of which the applicant submits the Tribunal was required to give under s.424A of the Act, namely, the “process by which information was purportedly obtained from” Mr Y or the communications from DFAT to Mr Y that induced the response from Mr Y, is not information that by its terms constitutes a “rejection, denial or undermining of” an applicant’s claim to be a person to whom Australia owes protection obligations.

   [69] Section 424A(1)(a) of the Act

   [70] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, [22]; Minister for Immigration and Citizenship v SZLFX [2009] HCA 31, [22]; Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 174, [9]

3. Before I leave this ground, it is appropriate that I should note that the applicant had every opportunity to make inquiries of Mr Y and to request that the Tribunal take evidence from Mr Y. The applicant was on notice since at least 27 July 2016 that the Tribunal intended to make inquiries of Alternatives Cameroon and the AFL, and from at least 9 August 2016[71] the applicant was aware that the purpose of the inquiries was to determine the authenticity of the purported letter from Alternatives Cameroon dated 16 January 2016. The applicant’s initial response was to send an email to the Tribunal stating that he had “recently been made to understand that, the Government of Cameroon has been persecuting members of this [sic] associations and as a result, most of their members have been locked up in jail”.[72] Further, at the end of the hearing on 25 October 2016 the applicant was given a further opportunity to provide a statutory declaration from the person whom the applicant claimed procured the purported letter from Mr Y but, as I have already noted, the applicant did no more than provide a statutory declaration that did not disclose the circumstances in which the purported letter had been procured.

   [71] CB124

   [72] CB113

4. For these reasons, ground 2 fails.

Ground 4

1. Ground 4 is a s follows:

   Further or in the alternative the Second Respondent failed to consider the impact of the Applicant’s mental health on his ability to sexually engage with his partners.

   Particulars

   a.The Second Respondent found that as they did not accept that the past trauma claimed by the Applicant had occurred that it followed that the Applicant’s reasons for not engaging in a sexual relationship were false.

   b.The Second Respondent accepted that the Applicant has been diagnosed with post-traumatic stress disorder, yet disregarded the impact of the diagnosis on his ability to sexually engage with his partner.

   c.The Second Respondent failed to consider other factors, including his mental health, which may mean that the Applicant and his partner were not in a sexual relationship.

2. The difficulty with this ground is that although there was before the Tribunal a psychologist’s report to the effect the applicant had the symptoms of post-stress traumatic stress disorder (PSTD),[73] and that the applicant suffered from PSTD, none of the symptoms listed in that report related to the applicant’s ability or inclination to engage in sexual activity; and the report does not express an opinion or otherwise suggest that a consequence or potential consequence of the applicant’s suffering from PSTD is that he is unable or has lost the inclination to engage in sexual activity. The suggestion that it was due to trauma that the applicant has not entered into a sexual relationship with Mr H came from a non-medical source, the applicant or Mr H on the basis of what the applicant may have told Mr H. The Tribunal considered the applicant’s or Mr H’s stated reason for the applicant not having a sexual relationship with Mr H but, for reasons that were reasonably open to it, the Tribunal did not accept it.

   [73] CB137

3. Ground 4, therefore, also fails.

Conclusion and disposition

1. The applicant has not succeeded on any of the grounds on which he has relied. I propose, therefore, to order that the application be dismissed.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 1 February 2019