DXP19 v Minister for Immigration
[2021] FCCA 595
•25 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DXP19 v MINISTER FOR IMMIGRATION & ANOR | [2021] FCCA 595 |
| Catchwords: MIGRATION – Protection visa application – where applicant has repeated convictions and served periods of imprisonment – where notice of intention to cancel visa issued – where visa not cancelled – where applicant claims to have acted as informer – where applicant returned to Iraq and participates in arranged marriage – where applicant again imprisoned upon return to Australia – where applicant subject to mandatory cancellation of visa – where Federal Court set aside cancellation and differently constituted Tribunal set aside cancellation decision, Refugee visa reinstated and applicant released from detention – where, in interim, applicant applies for Protection visa – where delegate refuses application – where applicant raises new claims and evidence not before delegate at time of primary decision – where applicant required to satisfy Tribunal of reasonable explanation for why new claims and evidence not before primary decision-maker – where Tribunal otherwise required to draw adverse inference against new claims and evidence – where Tribunal does not accept new claim – whether Tribunal failed to consider evidence of two witnesses – whether Tribunal’s decision affected by legal unreasonableness – applicable principles – decision affected by jurisdictional error – whether relief should be refused on discretionary grounds – directions given. |
| Legislation: Migration Act 1958 (Cth), ss 4, 5AAA, 29, 36, 51A, 54, 55, 65, 422B, 423, 423(A), 427(2), 430, 501(A) |
| Cases cited: Anees v Minister for Immigration and Border Protection [2020] FCAFC 28 Attorney-General (NSW) v Quin, (1990) 170 CLR 1 AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83 Ballas v Department of Education (2020) 102 NSWLR 783 BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54 BHD18 vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 151 BTF15v Minister for Immigration and Border Protection [2016] FCA 647 BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 263 FCR 292 CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 CVV16 v Minister for Home Affairs [2019] FCA 1890 CXS18 v Minister for Home Affairs [2020] FCAFC 18 DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 FCFY v Minister for Home Affairs (No 2) [2019] FCCA 1990 Gardiner v Taungurung Land and Waters Council [2021] FCA 80 Hossain v Minister for Immigration and Border Protection v (2019) 264 CLR 123 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Home Affairs v HSKJ [2018] FCAFC 217 Minister for Home Affairs v MZYTS (2013) 230 FCR 431 Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99, ALR 572 Minister for Immigration and Ethnic Affairs v Wu Shiang Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs; Ex parte applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 Montenegro v Sec, Department of Education [2020] FCAFC 210 PQSM v Minister for Home Affairs [2020] FCAFC 125 Re Minister for Immigration and Multicultural Affairs; Ex parte applicant S20/2002: [2003] HCA 30; (2003) 198 ALR 59 SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; (2003) 77 ALD 402 SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 |
| Applicant: | DXP19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 367 of 2019 |
| Judgment of: | Judge A. Kelly |
| Hearing date: | 11 May 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 25 March 2021 |
REPRESENTATION
| Counsel for the Applicant: | Mr. M. Guo |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Ms. C. Symons |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The amended application dated 3 April 2020 be allowed.
Direct the parties to confer and indicate whether they consent to the issue of relief being decided on the papers.
By 4.00pm on 15 April 2021, the first respondent file and serve any further affidavit, agreed fact and submissions respecting the grant or withholding of relief on discretionary or other grounds and upon any issue of costs.
By 4.00pm on 29 April 2021, the applicant file and serve any further affidavit, agreed fact and submissions respecting the grant or withholding of relief on discretionary or other grounds and upon any issue of costs.
The costs of this application be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
ADG 367 of 2019
| DXP19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application dated 3 April 2020, the applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 1 October 2019 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Protection visa pursuant to s 65 of the Migration Act 1958 (Act).
For the reasons which follow I have concluded that the application should be allowed. In summary, I have concluded that the decision was tainted by jurisdictional error in the circumstance that the Tribunal failed in the requisite sense to have regard to the evidence of two witnesses, being evidence which was corroborative of the applicant’s claim to be homosexual. Further, the reasoning, which was otherwise comprehensive in its attention to detail was affected by illogicality in its treatment of certain evidence on this topic.
As to the utility, or withholding, of relief, the parties were agreed that they be afforded an opportunity to make further submissions on this issue, in light of the fact that the applicant currently holds another visa.
Background
The applicant, a male citizen of Iraq aged 30 years, first came to Australia on 4 March 2010 holding a Refugee (Subclass 200) visa (Refugee visa). The applicant, together with his mother and two sisters, had been recognised as a refugee in 2010 by the United Nations (in Turkey), and so he did not need to apply in Australia so as to establish his refugee status.
On 15 August 2011, the applicant was convicted of 12 charges including aggravated burglary, stealing and criminal damage for which he was fined and sentenced to a term of imprisonment for a head sentence of three years.
On 30 January 2012, the applicant was given a notice of intention to cancel his visa upon character grounds. On 7 May 2012, in the circumstances described below, a decision was made not to cancel the visa.
The applicant claimed that after his arrival in Australia he came to recognise his homosexuality following the formation of a relationship with a barman, Joe, at a night club which he frequented in Perth, Western Australia.
In his evidence before the Tribunal, the applicant stated that in early 2014 he had been charged with further serious offences but that as a result of his acting as an informer upon some drug dealers, certain of his charges were withdrawn. He stated that the police provided him with monies that he used to travel to Iraq, doing so on the basis police had warned him that if he was present at the time of the police raid upon the drug dealers, he too would have to be arrested. The applicant stayed with an aunt and her husband (a General in the Iraqi Army) and, while there, became married as a result of a wedding that had been arranged without his knowledge by his mother. He claimed that he was still in his relationship with Joe and that the relationship was of two years duration.
On the 13 April 2014, the applicant departed Australia and on 18 May 2014 he re-entered Australia. The applicant stated that when he returned to Australia, some of the charges against him were withdrawn but he was convicted of impersonating a public officer and perverting the course of justice. He was sentenced to an 18-month intensive supervision order.
On 27 June 2016, the applicant was convicted on six counts of criminal conduct including possession of prohibited drugs with intent to sell or supply (methamphetamine) and reckless driving whilst being pursued by police and for which he was to be imprisoned for 12 months.
On 9 February 2017, the applicant’s Refugee visa was subject to mandatory cancellation under s 501(3A) of the Act and on 25 July 2017 a delegate made a decision not to review such cancellation which decision was affirmed by the Tribunal and the subject of an application to the Federal Court of Australia. On 6 July 2018, an order was made setting aside the Tribunal’s decision and remitting the application for reconsideration.
Upon remittal, on 13 February 2020, a differently constituted Tribunal set aside the cancellation decision made on 9 February 2017. The applicant’s Refugee visa was reinstated, he was released from detention and upon the Minister’s submission, he continues to hold a Refugee visa.
In the interim, on 23 May 2018, while in detention, the applicant made an application for a Protection visa. None of the claims for protection set out in this application are of any relevance to the present application. However, it may be noted that reliance is placed upon the fact that the applicant presently holds a Refugee visa and that upon this basis, even if error be demonstrated in the present application, relief should be refused on discretionary grounds.
On 4 June 2018, the applicant was requested to attend an interview to discuss his visa application. The interview was conducted by telephone and although the assistance of an interpreter was provided, the applicant preferred that the interview be conducted in English.
On 18 September 2018, a delegate of the Minister made a decision to refuse the application, doing so upon grounds which are immaterial.
On 19 September 2018, the applicant applied for a review of the delegate’s decision. In December 2018, the applicant appointed a lawyer to represent him in his application for review and a freedom of information application was made. Thereafter, on 15 March 2019, the applicant’s legal representative lodged a written submission which addressed in detail the following: background; protection claims; credibility; country information; risk threshold; harm; modification of behaviour, and; relocation. A summary of the factual basis for the applicant’s claims were set out at pp. 4-5 of that document. Included as the penultimate claim was the following:
He is a homosexual man. Prior to being incarcerated in 2015, he was in a sexual relationship with a man named Joe Nachef.
He has been diagnosed with Post-Traumatic Stress Disorder, depression and anxiety. He has committed acts of self-harm in detention, most recently in January 2019, and he sees mental health professionals in detention.
The applicant thereby advanced a number of new claims to fear persecution, including that he feared harm by reason that he was homosexual.
The submission foreshadowed that the applicant would provide a statutory declaration with further details of his claims. A detailed declaration was provided by the applicant which addressed the following topics: protection visa interview; family and background; decision to leave Iraq; life in Jordan and kidnapping; move to Turkey; travel back to Iraq from Turkey; return to Iraq in 2014; sexuality; reasons for not raising sexuality earlier; mental health, and; fears on return to Iraq. The applicant’s mother also provided a statutory declaration made on 18 March 2019.
As concerned his sexuality, the applicant deposed to his homosexuality, a fact he had not realised until after his arrival in Australia. He recounted confusion as to his sexuality in his late adolescence and of his increasing awareness of an attraction to men including the formation of a relationship with a barman in Perth, Joe, with whom he had his first homosexual relationship and which continued until the applicant was imprisoned in 2015. He explained that “Joe and I broke up because we couldn’t be together while I was imprisoned; I did not want him visiting and people knowing I was gay and he needed to move on with his life.” The applicant stated that he had not wanted other prisoners to know of his sexuality and likewise did not want his family to know of it either. He stated that he had not disclosed his sexuality in previous appearances before the Tribunal or in criminal courts by reason that his family had been present or it had not been relevant. The declaration stated that a photo of Joe and himself was attached. Several photos were provided.
In responding to his hearing invitation, the applicant advised he would call as a witness, Ms Dunster, a friend, who would provide evidence in relation to the applicant’s sexuality. In due course, the applicant furnished a statutory declaration by Ms Dunster made on 15 March 2019.
It appears certain medical records were produced to the Tribunal in support of the applicant’s claim of his mental health. Included in these records was a psychiatric diagnosis of Cluster B personality disorder and a record that some weeks after his arrival in detention, the applicant had been very unhappy with a medical assessment that there was no sufficient indication supporting his being prescribed certain medication and that he had threatened to swallow razorblades if that medication was reduced. Further, it appears that the applicant had done so on two occasions. Also provided was a statement from the NSW Mental Health Association in relation to Personality Disorders and describing the traits of a Cluster B personality disorder as including antisocial, histrionic and/or narcissistic tendencies.
On 29 July 2019, the Tribunal provided the applicant’s lawyer with two certificates, each dated 23 May 2019, issued pursuant to s 438 of the Act and expressing its view that the certificates were valid. At the Tribunal hearing, the applicant’s lawyer stated that the documents, the subject of those certificates, were in his client’s possession and that he did not wish to make further submissions in relation to their contents.
On 14 August 2019, the applicant appeared before the Tribunal to give evidence and present arguments, doing so with the assistance of both an interpreter and his legal representative. Shortly afterwards, the applicant’s lawyer requested, and was supplied, a recording of the hearing (a transcript of which recording was provided on judicial review).
At the Tribunal hearing, the applicant gave evidence and provided photographs of himself and his now-ex male partner ‘Joe’ and various social media posts that were said to support his claim that he was gay.
On 2 September 2019, the applicant’s lawyer lodged a post-hearing submission with the Tribunal in which: his claims for protection were restated; further evidence was supplied in relation to the mental health claim, and in particular, the supply of information regarding Cluster B Personality Disorders; the following issues that had arisen during the hearing were addressed: (i) the applicant’s sexuality; (ii) the applicant’s work for contractors of the US Army in Iraq; (iii) the applicant’s Facebook profile; (iv) the applicant’s work as an informant for the police in Western Australia. The submission expanded upon each of these issues in detail and provided further country information bearing upon issues as to the risk of harm and reasonableness of relocation. Amongst the several annexures to this submission were further photos. An annexure to this submission was a character reference from Ms Ducey dated 6 August 2015 which was addressed to a court and spoke of the effect which the applicant’s drug use had had upon him.
On 4 September 2019, the applicant’s lawyer supplied a letter by a friend of the applicant, Ms Ashin.
On 5 September 2019, the applicant’s lawyer made a further submission respecting the applicant’s mental health.
On 1 October 2019, the Tribunal affirmed the delegate’s decision, which is the subject of the present application for review.
Procedural history
On 10 October 2019, the applicant filed an application for judicial review of the decision made on 1 October 2019. The applicant also filed an affidavit to which he exhibited a copy of the Tribunal’s reasons for its decision (Reasons) but which adduced no further evidence in the application.
By a response filed on 21 November 2019, the Minister sought an order for the dismissal of the proceeding on the basis that the decision under review was not affected by jurisdictional error.
On 3 April 2020, the applicant, who was now legally represented, filed an amended application by which two grounds of review were advanced and by which the original grounds of review were abandoned.
On 20 April 2020, the applicant’s lawyer made an affidavit to which she exhibited a copy of the transcript of the Tribunal hearing. The applicant’s lawyer deposed that having obtained an audio-recording of that hearing, she had “listened to extracts of the audio-recording of the hearing and cross-checked pages 17, 72, 73 and 76 of the transcript with the recording and can confirm the accuracy of those sections of that transcript.”
On 11 May 2020, the parties filed a document entitled “Agreed Fact” recording that “the applicant was granted the subclass 200 visa on the basis that he met cl 200.321 as a member of the family unit of his mother.”
Ground 1 – failure to consider evidence
Ground 1, as amended, reads:
The Tribunal erred by failing to consider the evidence of witnesses that was material to the applicant’s claim that he was a gay man.
Particulars
The evidence that the tribunal did not consider was that of Betty Ashin (at CB 365), and the specific evidence of Rinnah Dunster that she ‘did see them [the applicant and his gay ex-partner] kiss’ (at CB 185)
Applicable principles
The applicable principles were essentially common ground.
A protection visa applicant has the responsibility to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations: Act, s 5AAA. Further, in respect of claims made after 2015, where an applicant raises a claim that had not been raised in the application before the primary decision-maker, or presents evidence that was not presented at that time, absent a reasonable explanation as to why the claim was not raised, or the evidence not presented, the Tribunal is required on merits review to draw an inference unfavourable to the credibility of the claim or evidence: Act, s 423A. These provisions may not foreclose a conclusion that jurisdictional error may be established where it is concluded that serious adverse credibility findings had been made upon central issues in circumstances where a decision-maker had overlooked evidence: AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83, [40]-[44].
Sub-division AB of Pt 2 of the Act, which provides a Code of procedure for dealing fairly, efficiently and quickly with visa applications, comprises ss 51A-64 and is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals: Act, s 51A(1); see also ss 422B, 423. In deciding whether to grant or refuse to grant a visa, the Minister must have regard to all of the information in the application which includes any additional information that is given up to the point where a decision has been made: Act, ss 54(2)(c), 55. The obligation to consider an applicant’s claims is a Tribunal’s core function of merits review. For that reason, the Tribunal must provide a written statement which sets out its decision, the reasons for the decision and, relevantly, findings on any material questions of fact with reference to the evidence or any other material on which those findings of fact were based: Act, s 430(1).
Accordingly, the absence of reference to evidence in the reasons of a decision-maker may support an inference that that evidence had not been considered or had not been considered to be material to the claims being made and so support an inference of jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [1], [34], [68], [44], [69]; Minister for Home Affairs v MZYTS (2013) 230 FCR 431, [48]-[52]; Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67, [33]-[34]; Minister for Home Affairs v HSKJ [2018] FCAFC 217, [42]-[47].
The conclusion that a decision-maker has failed to consider a matter, including relevant material, does not of itself justify a finding of legal error. Failure to consider relevant material in the course of administrative decision making that is sufficient to justify a conclusion of jurisdictional error will arise where the material was of central importance to the subject of the review: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99, [97], [102], [112]. There Robertson J held that in the evaluation of whether a Tribunal was obliged to consider corroborative evidence, factors to be taken into account included the cogency of the evidentiary material and the place where that material was properly located in the assessment of an applicant’s claims.
The facts of SZRKT are instructive. A Pakistani citizen had been found by the Tribunal not to be a credible witness on the substantive basis that it found he had been untruthful in relation to his studies, and regarded his claim to have studied Persian to be implausible. As Robertson J observed, SZRKT was not a case where the Tribunal had taken “a more nuanced approach to questions of credit by considering whether its disbelief of the applicant in one respect nevertheless did not mean that it disbelieved him generally: rather, the Tribunals approach was to disbelieve the applicant generally”: [119]. Nowhere in the course of the hearing or in the reasons had the decision-maker referred to the applicant’s academic transcript which established the fact of his studies in Persian.[1] The principal significance of the appeal was the rejection of the Minister’s submission that it could never be a jurisdictional error to ignore corroborative evidence: [40], [60], [122].
[1] Achieving a score of 87/100.
His Honours analysis demonstrates that where corroborative material has not been taken into account, the legal consequences of such failure “is a case specific enquiry and is not one which should be analysed by reference to fixed categories or formulas”: [77]-[78]. By way of illustration, reliance upon an adverse finding of credit upon an objectively minor matter in rejecting the entirety of an applicant’s claims and evidence would be erroneous. Robertson J reasoned by reference to Yusuf, that if a decision-maker ignored relevant material and its exercise of power was thereby affected, such error of law constituted jurisdictional error which would invalidate its decision and stated: “Thus, merely to ignore ‘relevant material’ does not establish jurisdictional error”: [97], [122]. His Honour also cited the Full Court’s reasoning in Applicant WAEE v Minister for Immigration and Multicultural Affairs, [2003] FCAFC 184 , [46], (2003) 236 FCR 593, that it was plainly not necessary for a decision-maker to refer to every piece of evidence and every contention made. Robertson J held that no clear distinction existed between claims and evidence and that the “fundamental question must be the importance of the material to the exercise of the Tribunals function and thus the seriousness of any error.” His Honour held that “whether the tribunal is obliged to consider a document or documents will depend upon the circumstances of the case and the nature of the document”: [111]-[112].
Special leave to appeal SZRKT was refused. His Honour’s reasoning has been endorsed on many occasions: see, e.g. BHD18 vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 151, [45]; CXS18 v Minister for Home Affairs [2020] FCAFC 18, [38].
In light of the obligations in s 430 of the Act to set out the findings on material questions of fact and the evidence on which those findings were based, an inference may be drawn that a matter not mentioned by a decision-maker was not considered, or not considered to be material. Inferential reasoning by this process is not mandatory and may be displaced where contrary indications are properly available: Anees v Minister for Immigration and Border Protection [2020] FCAFC 28, [53]. Yet, in some cases the inference may be appropriate to draw, particularly where a decision-maker’s reasons are devoid of any consideration of a submission that is central to a party’s case: FCFY v Minister for Home Affairs (No 2) [2019] FCCA 1990, [91]; Montenegro v Sec, Department of Education [2020] FCAFC 210, [43]. Nor does the accepted approach to reading the reasons of an administrative decision-maker require a court on judicial review “to assume that a vital issue was addressed when there is no evidence of this”, particularly where the general thrust of the reasoning suggests an issue had been overlooked: SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9, [26]; Ballas v Department of Education (2020) 102 NSWLR 783, [79].
Those principles should be understood as providing a rational boundary upon the settled principle that the reasons of a decision-maker are not to be read with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shiang Liang (1996) 185 CLR 259, 271-272.
Submissions
The applicant emphasised that the evidence which the Tribunal had not considered was that of Ms Ashin and a part of Ms Dunster’s evidence.
It was submitted that the absence of reference to evidence in the Reasons permitted the court to infer that the evidence was not considered, or that the decision-maker considered the evidence was not material to the applicant’s case and that in either case, such an inference indicated jurisdictional error.
Although the applicant accepted that there was no obligation for a decision-maker to engage in a ‘line by line refutation’ of all of the evidence put forward, reliance was placed upon the principles stated above as providing a rational boundary upon the manner in which the Reasons should be read.
The Minister submitted that the Tribunal had in fact considered Ms Dunster’s evidence but found, for reasons that were open, that her evidence should be given little weight. It was submitted that the finding should not be construed as involving a rejection of Ms Dunster’s credibility.
The Minister accepted that the Reasons did not expressly advert to Ms Ashin’s evidence but highlighted that the Tribunal had recorded that it had “carefully considered the totality of the applicant’s evidence” but that it did not find the applicant’s claim that he was a homosexual male convincing or persuasive. It was further said to be ‘open’ to conclude the general statement at [88] of the Reasons comprehended that Ms Ashin’s evidence had in fact been considered.
Reliance was placed upon the principles stated above in submitting that even where a conclusion was reached that a Tribunal had failed to consider some matter, this did not immediately justify a finding of legal error and that a failure to consider relevant material did not of itself constitute an error of law. The Minister correctly submitted that it would only do so where the material was centrally important to the review, with the correlative consequence that the error was sufficiently serious to justify a conclusion that the Tribunal had failed to exercise jurisdiction or denied procedural fairness to an applicant.
Tribunal’s decision
The Tribunal provided detailed reasons for its decision and identified the issue on review as whether the applicant was owed protection obligations, relevantly, because he was a homosexual male: [12]. It examined in detail each of the applicant’s substantive claims.
As concerned the new claim to be gay, the Tribunal recounted the applicant’s evidence as described above from the point of his adolescence to his realisation in Australia when he had first had sex with Joe in 2013. The Tribunal recounted the relationship with Joe and identified the photographs that had been tendered. The applicant’s imprisonment in 2015 was also addressed: [39]-[45]. Consideration was given to the applicant’s reasons for having not earlier raised his sexuality: [46]-[49].
The Tribunal then considered this claim and the evidence. In assessing the claim to be gay, the Tribunal identified DFAT country information which stated that gay persons faced a high risk of official and societal discrimination and violence on the basis of their sexual orientation and gender identity and, for that reason, were unlikely to be able to live an openly gay life in Iraq: [61].
The Tribunal identified as a relevant issue in the case whether the applicant was homosexual and it had regard to the applicant’s evidence as to why he had not disclosed his sexuality when making his visa application: [62].
With reference to s 423A of the Act, the Tribunal noted that, absent a reasonable explanation, it was required to draw an unfavourable inference respecting the credibility of a new claim or evidence which had not been put forward before the primary decision maker. At the same time, it was acutely aware of the difficulty for many people to openly discuss matters such as their sexuality in a formal hearing: [63]-[64]. The Tribunal noted the claim had first been raised in March 2019 (after the delegate had refused his visa application): [83]. Contextually, the new claim had been raised in the applicant’s statutory declaration dated 18 March 2019 in circumstances where the first scheduled hearing before the Tribunal was proposed to take place on 31 January 2019 and where it was adjourned at the applicant’s request to 19 March 2019 (and subsequently adjourned on a series of later occasions). The applicant also agreed that his claim had not been raised during his protection interview (an event about which his recollection was vague). Nor had it been raised when: his Offshore Humanitarian visa had been cancelled on character grounds; he had appealed the cancellation decision to the Tribunal in 2017: [84]. Having regard to those matters, the Tribunal noted the power to revoke the cancellation decision may engage Australia’s non-refoulement obligations and in those circumstances considered the applicant’s failure to raise his sexuality as being inconsistent with his claim to fear harm as being gay: [85]. The Tribunal took account of the applicant’s explanations for having not raised the claim earlier and found the applicant would have been expected to raise the claims had he held a genuine subjective fear of harm in Iraq because he was gay: [86]-[87].
The Tribunal concluded that the applicant’s evidence to be homosexual was vague, inconsistent and not credible: [65].
In its reasoning, the Tribunal regarded it as concerning (and inconsistent with a person having, since 2013, identified as gay and lived in Australia as such), that the applicant had said he was willing to undergo a medical examination to prove his homosexuality: [66]. It was also concerning to the Tribunal that it had had to prompt the applicant to recall his partner’s name where he had misstated it notwithstanding the relationship had been of two years duration: [67]. When considering the photographs and Facebook evidence, including the applicant’s evidence that he had not been able to access some older sites, the Tribunal attributed little weight to this evidence: [68]-[69].
As concerned Ms Dunster’s evidence, the Tribunal provided an account of her statement including her history of: having known the applicant since late 2013 or early 2014; having not been in contact with him for several years; having recently re-established contact via Facebook; having not been told by the applicant that he was gay; having seen the applicant with Joe; and:
She assumed they were in a relationship based on mannerisms. The Tribunal has had regard to the evidence but also finds it of limited assistance.
The substantive complaint made respecting this reasoning was the Tribunal’s omission to have referred in the Reasons to Ms Dunster’s evidence that she had seen the applicant and Joe ‘kiss’.
When asked by the Tribunal why he could not provide a statement from Joe, the applicant responded that when he was imprisoned in 2015, the relationship had broken down: [71].
As concerned a character reference by Ms Ducey dated 6 August 2015, the Tribunal stated that it had considered her letter but was concerned it had only been provided in a post hearing submission in circumstances where Ms Ducey had not provided a statement for the purposes of the visa application and attached little weight to the applicant’s claim to be homosexual: [72]-[74].
The Tribunal accepted nonetheless that the applicant had known a person called Joe and they may have attended gay venues together and posted photos of themselves on social media. In light of its expressed concerns, it did not consider those matters established the applicant’s homosexuality: [75].
The Tribunal noted the applicant had travelled to Iraq in 2014 and, in the circumstance of having entered his first homosexual relationship in April 2013, found it surprising “the applicant provided no evidence of the impact his marriage had on his relationship with Joe at the time”: [76]. It regarded the applicant’s marriage as inconsistent with his claim to be homosexual. While accepting that arranged marriages were not uncommon in Iraq, it did not accept the applicant’s evidence that he did not know his family had arranged the marriage before he departed Australia in 2014: [77]. When questioned further as to this issue, the Tribunal found the applicant to be non-responsive and that he ultimately “conceded that he took part in Islamic wedding ceremonies and presented his wife with gold jewellery which his family arranged for him in Australia.” It did not accept he had been forced into the marriage and found it had involved his cooperation in travelling from Australia: [81]-[82].
Equally, the Tribunal expressed surprise that if he had feared persecution, the applicant returned voluntarily to Iraq in 2014 and regarded the explanation for doing so as far-fetched. At the same time, it accepted the leniency of his sentence as being indicative of having cooperated with police: [78]-[81].
Having carefully considered the totality of the applicant’s evidence the Tribunal did not find the applicant’s claim to be homosexual either convincing or persuasive. In reaching that conclusion it took account of the applicant’s personality disorder and the nature of that condition: [88]. When expressing its conclusion, the Tribunal stated at [89]:
To be clear it is only after the cumulative consideration of all the above evidence and noting the Tribunals concerns about his credibility detailed above, the Tribunal finds the applicant is not a homosexual male. The tribunal finds that the applicant manufactured this evidence so that he could strengthen his claims to remain in Australia in circumstances where his protection visa application was refused by the Department.
Resolution
In Attorney-General (NSW) v Quin, (1990) 170 CLR 1, 35-36 Brennan J, stated:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
These principles have been repeatedly endorsed: see e.g., Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, [82].
The Reasons dealt comprehensively with each of the applicant’s claims.
The Tribunal recognised that the applicant bore the onus of satisfying it that he had a reasonable explanation as to why the claim to be homosexual, and evidence relied upon, had not been raised before the primary decision was made. While it could have done so, as I read the Reasons, the decision-maker did not reach an express conclusion as to whether a reasonable explanation had been provided for why this new claim (and supporting evidence) had not been raised earlier. Implicitly, part of the reasoning included criticism why particular evidence had only been supplied in a post-hearing submission. In other parts, criticism was levelled at the failure to adduce more cogent evidence including that the evidence from Ms Ashin and Ms Dunster had been expressed quite briefly and at a high-level of generality. Moreover, the failure to call evidence from Joe was also the subject of comment. Cumulatively, those matters might have supported a conclusion that s 423A was not met.
Instead of making an express finding whether the applicant had provided a reasonable explanation as to why this claim and supporting evidence had not been made before the delegate’s decision, the Tribunal evaluated the evidence, finding it to be vague, inconsistent and not credible and concluded that the claim had been manufactured so as to strengthen his claim to remain in Australia following the delegate’s refusal of the application.
As relevant to Ground 1, it is clear that the Tribunal recognised each of the subject claims: [12]. The Tribunal made a finding that it did not accept the applicant’s claim to be homosexual and provided extensive reasons for doing so: [39]-[49], [60]-[89]. At this level, it cannot be concluded that the Reasons were devoid of any consideration of the claim. For at least that reason, the present case is not one in which a reflexive inference should be drawn that the Tribunal had not considered the corroborative evidence.
Nor was this one of those rare cases in which the Tribunal concluded that the applicant’s evidence was poisoned beyond redemption: Re Minister for Immigration and Multicultural Affairs; Ex parte applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59, [49], cf [12]-[14], [93]-[95]. There was nothing erroneous in the decision-maker’s approach of first evaluating the credibility of the applicant’s evidence before turning to other evidence and, in light of its assessment of the applicant’s credibility, to consider what weight should be given to the corroborative evidence: cf Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485.
In the circumstances of this case, the Tribunal could not ignore the allegedly corroborative material or fail to consider it in an intellectually active way: BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 263 FCR 292, [45]; WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74, [27]. As stated in BZD17:
A finding that a visa applicant’s evidence is not credible may not of itself provide a logical or rational basis on which to dismiss all of the corroborative evidence and, once the corroborative evidence is considered, it may at least raise a doubt about whether the whole of an applicant’s claims should in fact be rejected, thereby enlivening the obligation to consider the alternative scenario that the applicant’s claims might be correct
Accordingly, in the discharge of its core function of review, here the Tribunal was obliged to consider the information before it: WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74, [27]. To do otherwise would expose the decision to the taint of jurisdictional error upon a failure to determine the merits of the application according to law.
The ‘information’ included the corroborative evidence of both Ms Ashin and Ms Dunster. The substantive basis for Ground 1 was framed in terms of a failure to consider their evidence which was corroborative of the applicant’s claim to be homosexual. Counsel for the applicant correctly distinguished the corroborative evidence in this case from those in which the provenance of the corroborating evidence was entirely uncertain or doubtful: cf Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485; CVV16 v Minister for Home Affairs [2019] FCA 1890, [74]-[75]. In the case of Ms Ashin, her statement included both a mobile phone and email address. In the case of Ms Dunster, her statutory declaration had been signed and witnessed with the contact details of the witness being provided.
As noted, following the hearing, on 4 September 2019, the applicant’s lawyer supplied to the Tribunal a copy of Ms Ashin’s letter dated 2 September 2019. In her letter, Ms Ashin stated that when, in October 2018, she made her own affections known to the applicant he had disclosed his homosexuality to her and said how he missed ‘Joey’. In her signed statement, Ms Ashin wrote:
. . . [the applicant’s] mum whom I have met, very lovely lady, does not know about his relationship with Joey as this goes against their religious and cultural beliefs and it would break his mothers heart to know he was gay.
In her declaration made on 15 March 2019, Ms Dunster stated that she had known the applicant since late 2013 or early 2014 and that they would see one another at nightclubs or parties on most weekends. Mr Dunster stated that she had lost contact with the applicant for a time but, after reconnecting on Facebook, they again spoke regularly. She also declared as concerned ‘Joe’:
Most of the times I would see him he was with a guy called Joe. They weren’t that physically affectionate with each other because I would see them in public. But I did see them kiss and I assumed that they were in a relationship. [DXP19] and I did not discuss that he was gay, but I just assumed it from his mannerisms and because of the way he was with Joe.
While these statements were probative of the applicant’s claim to be a gay man, the generality and brevity of the corroborative evidence was also notable.
I have set out the Reasons above as relevant to this ground of review.
Jurisdictional error may be demonstrated by a decision-maker having not mentioned and given no weight to the evidence of an independent witness whose evidence otherwise appeared to be credible: Re: Minister for Immigration and Multicultural Affairs; Ex parte applicant S20/2002: [2003] HCA 30; (2003) 198 ALR 59, [94]-[95], (Kirby J).
The Reasons contain no reference to any aspect of the Ashin evidence. Putting aside the belated making of the claim to be gay, such claim had been made expressly. While the discharge of the Tribunal’s core function of review required that the merits of the claim including all of the information that was before it was considered in an active intellectual way, by contrast the Tribunal was, relevantly, only obliged to include in its reasons for the decision the findings on any material questions of fact and referring to the evidence or any other material on which those findings were based. A material question of fact arising from the new claim was whether the applicant was a homosexual.
In contrast with the omission to refer to Ms Ashin’s evidence, the Tribunal gave detailed attention to other evidence before it: [67]-[89]. Ms Ashin’s letter was supplied to the Tribunal on 4 September 2019, after the hearing had been conducted and, a matter of weeks before the decision affirming the delegate’s decision was given on 1 October 2019.
Once it is accepted that the applicant’s evidence had not been destroyed beyond redemption, the Tribunal was obliged to consider all of the corroborative evidence (albeit in light of an assessment of the applicant’s credibility). I am prepared to infer that the Tribunal had not considered the Ashin evidence, or not considered it to be material to the applicant’s claims. As counsel for the applicant submitted, either way, there was an error. That is because the Ashin evidence was not peripheral to the applicant’s sexuality claim, but rather, had been provided to corroborate it. This evidence was necessarily material to the claim to be gay. Once Ms Ashin’s had been considered it may have raised a doubt about whether the claim to be homosexual should be rejected. Regardless of how it was characterised, the omission of any reference to the Ashin evidence indicates jurisdictional error.
Ms Dunster’s statutory declaration contained three substantive paragraphs. As counsel for the applicant submitted, the Reasons at [70] were conspicuous in referring to every aspect of these substantive paragraphs – save for the critical line that Ms Dunster ‘did see them kiss’. Ms Dunster’s evidence of observing the applicant and Joe to have kissed was capable of corroborating his claim to be a gay man. However, it did not feature in the Reasons.
Counsel correctly submitted that this observational evidence was qualitatively different from the other evidence before the Tribunal. Once it is recognised that the Tribunal referred, in effect, to all other aspects of Ms Dunster’s evidence, the appropriate inference is that the decision-maker had read the whole of it. This means the decision-maker was aware of Ms Dunster’s evidence that she had observed the applicant and Joe to have kissed. Viewed from this perspective, the absence in the Reasons of that part of her evidence distinguishes the present case as one in which complaint is made of a failure to have engaged in a ‘line by line refutation’ of this evidence.
Instead, the Tribunal appears to have simply ‘skipped over’ that evidence and so indicates that the observational evidence was not seen by the Tribunal as being material.
Upon that basis, it cannot be concluded that the Tribunal gave proper, genuine or realistic consideration to this claim by the application of an active intellectual process of this corroborative evidence: BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 263 FCR 292, [35]-[36], [39], [45], [50]; Gardiner v Taungurung Land and Waters Council [2021] FCA 80, [260]. Expressed in other terms, this omission supports a conclusion that the Tribunal’s mind was not brought to bear upon that part of Ms Dunster’s evidence which was not addressed in the Reasons. In my view, it was no answer to those complaints to contend that the Tribunal simply found her evidence to be of ‘limited assistance’ having regard, in particular, to its content and scope. The difficulty in that approach was that it did not confront the explicit failure to deal with the evidence that was not mentioned.
The claim to be at risk of harm because of his sexuality was expressly made before the Tribunal. It was supported by the applicant’s statutory declaration, the corroborative evidence and the detailed submissions that had been filed.
In my opinion, the information upon which Ground 1 depended could properly be regarded as being substantial or consequential in the sense explained in SZRKT. Regardless of the weight which may ultimately have been attached to it (and passing over whether the applicant had a reasonable explanation for having not raise the claim earlier), the evidence was potentially of importance to an evaluation of the claim. In those circumstances, I regard the failure as constituting jurisdictional error in the circumstances of this case.
Materiality
The parties advanced competing submissions in relation to materiality but accepted materiality was a question of fact upon which the applicant bore the onus of proof: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, [45]-[46]. To constitute jurisdictional error, any failure to consider evidence must be material to the decision, in the sense that it deprived an applicant of the realistic possibility of a different outcome on his or her merits review of the visa application: Hossain v Minister for Immigration and Border Protection v (2019) 264 CLR 123, [24], [31].
It was submitted for the applicant that had the Tribunal considered either piece of evidence, it may have ‘at least raise[d] a doubt about whether the whole of [the] applicant’s claims should in fact be rejected’: BZD17, [39].
Counsel for the Minister submitted that whether viewed through the prism, or objectively outside, of those Reasons, the material from Ms Ashin was not of a nature that it would have dislodged the Tribunal’s firm view that the applicant’s claims about his homosexuality were lacking in credibility. It was fairly submitted that the references to the applicant’s homosexuality were somewhat general in nature.
In this respect, and as the Reasons as identified above reflect, the Tribunal was concerned as to the veracity of this claim having regard to a number of considerations, including those such that the applicant had to be prompted to recall his partner’s name, this being a concern of a different character that rationally would not be redressed by the material from Ms Ashin.
The same cannot be said of Ms Dunster’s evidence of having observed a ‘kiss’ between Joe and the applicant. Had that evidence, together with Ms Ashin’s evidence been considered, it may at the least have raised a doubt whether the claim to be homosexual should have been rejected.
In my view, it cannot be said that the evidence the subject of the present application was so insignificant that the failure to take it into account could not have materially affected the decision that was made to reject the claim.
Without intending any disrespect, the parties’ submissions did not explore in any depth the threshold upon which the test of materiality was to be applied. In a case such as the present, I proceed on the basis that “an error will be material, and so jurisdictional, only if there could realistically have been a different decision if the error had not been made”: PQSM v Minister for Home Affairs [2020] FCAFC 125, [138]-[139], [143]; see also Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, [30]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40, 46. Nor can it said to have been of marginal significance: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, [50], [70]-[72].
Ground 1 is accepted.
Ground 2 – legal unreasonableness
Ground 2, as amended, reads:
The Tribunal erred by making findings that were illogical, irrational and/or unreasonable.
Particulars
The findings that were illogical, irrational and or unreasonable were:
a.the findings that the photos and social media posts provided by the applicant ‘alone are not indicative’ of the applicant’s sexuality (at [68] of the Tribunal’s reasons);
b.the finding that ‘the evidence’ referred to at [70] was ‘of limited assistance’;
c.the implicit finding that either Katarina Ducey or the applicant had (or both of them had in concert) fabricated a signed statement addressed to the magistrates Court of Western Australia which contained evidence that the applicant had been in a same-sex relationship ([74]);
d.The finding that the fact that the applicant was married to a woman in 2014 ‘is inconsistent with his claim that he is a homosexual man’ ([77]);
e.the finding that the applicant’s failure to have raised in other proceedings his fear of harm because of his sexuality was inconsistent with him having such a fear ([84]-[85]); and/or
f.the finding that the applicant had manufactured his evidence about his sexuality ([89]).
Each of the findings were illogical, irrational and/or unreasonable in that they were not based on evidence that was rationally probative of the ultimate fact in issue.
Applicable principles
Again, the applicable principles were not in dispute
The making of a finding of fact by an administrative decision-maker which is a critical step in formulating the ultimate conclusion, and for which there is no evidential support, may constitute jurisdictional error: SZMWQ v Minister for Immigration and citizenship [2010] FCAFC 97; (2010) 272 ALR 59, [125]; SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; (2003) 77 ALD 402, [19]. By extension, a decision may be affected by jurisdictional error where it is irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
A number of principles relevant to adverse credibility findings may be summarised from BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94, [34] and DPI17 v Minister for Home Affairs [2019] FCAFC 43, 269 FCR 134, [34] as follows:
a)while findings as to credit are generally matters for an administrative decision-maker, this does not mean that findings as to credit are beyond scrutiny on judicial review;
b)the question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not to be assessed by reference to fixed categories or formulae;
c)adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis;
d)a decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision-maker does not come to that conclusion, or if the relevant decision was not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn;
e)jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims;
f)unwarranted assumptions by a decision-maker as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the decision-maker to disbelieve and disregard that evidence and may constitute a failure of duty to consider the question raised by the material put before it;
g)jurisdictional error may also be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”;
h)findings or reasoning along the way to reaching a conclusion by a decision-maker that are illogical or irrational may establish jurisdictional error subject to the significance of such an illogical or irrational finding.
In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, a Full Court stated at [45]:
Illogicality, irrationality or legal unreasonableness in the reasons for an administrative decision may establish jurisdictional error, as may a failure to give proper, genuine or realistic consideration to a significant matter. An illogical or irrational administrative decision, or an illogical or irrational finding of fact or reasoning along the way to making the decision, may establish jurisdictional error if, for example, the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. Making a finding on a fact or issue in the application by drawing an inference or a conclusion which lacks a logical connection with the evidence might also be described as failing to give proper, genuine and realistic consideration to the fact or issue. However, any such decision or finding will not involve jurisdictional error if a reasonable decision-maker could reach that decision or finding on the same material: SZMDS at [130]-[132] and [135] per Crennan and Bell JJ and at [78] per Heydon J. As Allsop CJ observed in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [21] the question is “whether a decision-maker could reasonably come to the conclusion” reached. If the conclusion is one upon which reasonable minds can differ, it will not be legally illogical, irrational or unreasonable. (emphasis added)
For those reasons, a high degree of caution must be exercised before finding that adverse findings as to credit expose jurisdictional error. To do otherwise may trench impermissibly upon merits review, a matter which the Court has no jurisdiction to do. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, it is said that “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”: Minister for Immigration and Citizenship v SZRKT (2013) 302 ALR 572, [148]. Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146, [61].
In SZMDS, Crennan and Bell JJ held that illogicality or irrationality sufficient to give rise to jurisdictional error must mean that the decision reached was one which no rational or logical decision maker could arrive at on the same evidence. Their Honours accepted that not every lapse of logic would give rise to jurisdictional error, observing that “If probative evidence could give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the reasons to be drawn from the evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”[2] Crennan and Bell JJ further held that the “correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning which it did engage in and to make the findings it did make on the material before it”: (2010) 240 CLR 611, [130]-[133]. Heydon J agreed in the result as found by their Honours. Although dissenting in the appeal, Gummow ACJ and Kiefel J emphasised that the critical question as to whether a decision was irrational, illogical and not based on findings or inferences of fact supported by logical grounds “should not receive an affirmative answer that is lightly given.”: (2010) 240 CLR 611, [40].
Submissions
[2] (2010) 240 CLR 611, [131].
The applicant submitted that six findings ‘along the way’ to the conclusion that he was not homosexual were illogical or irrational in the requisite sense as each of those findings lacked an intelligible justification, were not open on the evidence, and/or lacked a logical connexion to the evidence.
The Minister properly accepted that credit findings were generally matters for the Tribunal but that they, together with the Tribunal’s process of fact finding, may each be reviewed for jurisdictional error. Emphasis was placed upon the high degree of caution that must be exercised before concluding that adverse findings as to credit expose jurisdictional error. It was also properly submitted that the application of this caution served to ensure that the Court did not impermissibly embark upon a review of a visa applicant’s claims.
The Minister also accepted that the question of whether a credibility finding was affected by jurisdictional error was a case specific inquiry and was not assessed by reference to fixed categories or formula. Thus, in each case it is necessary to analyse in detail what the decision maker has decided. The court was warned against an overly fine scrutiny of the decision-maker’s reasons and to be cognisant of the “clear advantage in the Tribunal in having engaged with the [applicant] and considered his evidence as a whole”. To this may be added that the principles discussed in relation to Ground 1 at [43]-[44] above place rational boundaries as to the manner in which a decision maker’s reasons are to be read. The Minister submitted that Ground 2 countenanced precisely the type of merits assessment and strained reading of the Tribunal’s reasons that the authorities cautioned against.
Resolution
I approach Ground 2 without regard to the suggestion that an element of the test is that the illogicality or irrationality must be extreme in order for jurisdictional error to be made out. Instead, I prefer to adopt the settled caution that a high threshold is to be imposed in a challenge of legal unreasonableness.
It is well-established that findings made ‘along the way’ to reaching an administrative decision that are themselves illogical, irrational or unreasonable may establish jurisdictional error. The analysis should be focussed on whether the impugned findings were ‘rationally probative’ of the fact in issue, namely, whether the applicant was homosexual: BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54, [39(2)], [40]-[41]. I agree that the resolution of the present case similarly does not turn on whether there is any difference between illogicality, irrationality and unreasonableness.
It is convenient to consider each of the impugned findings in turn.
Photographs
The applicant drew attention to the Tribunal’s finding that the photos and social media posts provided by the applicant ‘alone’ were not indicative of the applicant’s sexuality: [69]. The Tribunal stated at [69] it had ‘considered the various photographs and social media posts’ provided by the applicant, but said that these ‘photos and posts alone are not indicative of the applicant’s sexual orientation’. Contextually, the Tribunal at [69] had examined the applicant’s evidence on this topic, the majority of which was concerned with explanations as to why his Facebook accounts were no longer accessible.
The applicant complained that this reasoning could not be understood in that it was not logically correct to approach the photographs and social media posts as if they were conclusive of the applicant’s sexuality. Counsel for the applicant urged that, self-evidently, they could not ever have been conclusive of his client’s sexuality but that they were at least capable of being probative of the claim. Of necessity, the applicant submitted that the impugned error was not a bare challenge to the weight afforded by the Tribunal to the photographs and posts. While the Tribunal stated at [69] that it gave the photographs and posts ‘little weight’, it was said that this could not be reconciled with the sentence that immediately followed, where it found that ‘the photos and posts alone are not indicative’ of the applicant’s claim to be gay.
Counsel for the Minister submitted that although the applicant disclaimed any suggestion that this claim had been a bare challenge to the weight afforded by the Tribunal to the photographs and posts, in truth that was the very nature of the challenge being made. Thus it was said to be was open to the Tribunal to give this evidence little weight for the reason explained by the Tribunal that it derived little assistance from the material. So much may be accepted.
However, I accept that the statement in the Reasons at [69] that it gave the photographs and social media posts ‘little weight’ could not be reconciled with the sentence that immediately followed, that the Tribunal ‘finds the photos and posts alone are not indicative’ of the applicant’s claim to be gay.
Even to read the reasoning at [69] with an eye that is not keenly attuned to error, I am satisfied that a decision-maker could not reasonably come to the conclusion expressed that “photos and posts alone are not indicative of the applicant’s sexual orientation.” Further, from another perspective, had each of the photos and posts were taken into account for a cumulative evaluation of the evidence being relied upon, those contemporaneous images could have been rationally probative of the question in issue; namely, whether the applicant was homosexual: BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54, [39]-[41]. The circumstance that the Tribunal approached its evaluation of the photos and media posts on the basis that they alone were not indicative of sexual orientation lends support to a conclusion that the Tribunal did not appreciate this evidence may, at the least, have been probative of the applicant’s new claim.
Ms Dunster
The applicant found Ms Dunster’s ‘evidence’ to be of limited assistance: [70].
Counsel for the applicant submitted that the difficulty with this finding is that it was expressed in conclusory terms and so was devoid of any explanation. Upon that basis it was said there was no ‘evident and illegible justification’ for the conclusion and that it was neither possible nor permissible to divine unstated reasoning for the finding, as that would be require the court to undertake an impermissible reassessment of the merits.
Counsel for the Minister submitted that the finding that Ms Dunster’s evidence was of limited assistance plainly reflected the Tribunal’s concern that it had limited probative value in informing the question of whether the applicant was, as claimed, a homosexual. Emphasis was placed upon the Tribunal having noted that the applicant had not told Ms Dunster that he was gay and that she had made assumptions based on what she had observed.
For the reasons given in relation to Ground 1, the treatment of Ms Dunster’s evidence is attended by difficulty in that it omitted any reference to her having observed the applicant to kiss his alleged former partner, Joe. It is settled that there is a considerable overlap between a ground of irrationality and a failure to give proper consideration to claims or evidence: CJE19 v Minister for Immigration, Citizenship, migrant Services and Multicultural Affairs [2020] FCA 1620, [63]. I do not accept that a decision-maker could reasonably have come to the conclusion that little weight should be attached to the evidence of a witness in circumstances where the reasoning discloses that evidence of potentially central importance – the kiss – had simply been left out of account.
Ms Ducey
The third finding which the applicant sought to impugn turned upon the collective effect of the reasoning at [74] and [89] where the Tribunal variously concluded that it attached little weight to Ms Ducey’s letter in circumstances where it had not been provided the purposes of the visa application (but predated it by some years and being a character reference to a Magistrates Court, presumably in relation to the applicant’s drug offending): [74]. Emphasis was then laid upon the conclusion at [89] where the Tribunal stated that it had only been upon a cumulative consideration of all of the evidence that it found the applicant was not a homosexual male and then stated:
The Tribunal finds that the applicant manufactured this evidence so that he could strengthen his claims to remain in Australia in circumstances where his protection visa application was refused by the Department.
Having regard to this reasoning, the applicant submitted that the Tribunal had made an implicit finding that the matters contained in Ms Ducey’s letter had been manufactured.
Even though [89] might have been framed in more careful language, I do not accept that it is an ‘inescapable conclusion’ that the Tribunal treated the matters in Ms Ducey’s letter as having been manufactured. Reading them fairly and as a whole, the Reasons clearly recognised that this letter predated the application for a Protection visa. The statement in the Reasons was focused upon the applicant having manufactured “this evidence so that he could strengthen his claims to remain in Australia”, the delegate having already refused the visa application. On a fair reading of the Reasons, I consider that the statement at [89] should be understood as reflecting a finding that the Tribunal considered the applicant had manufactured his new claim, one which had not been made at the time of the original application or before the delegate.
Marriage
The Tribunal found the applicant’s marriage in 2014 was “inconsistent with his claim that he is a homosexual man”: [77].
The applicant submitted that this finding was incapable of understanding.
Counsel submitted that there was no inconsistency in a heterosexual marriage and a party to such marriage being homosexual. On this basis it was submitted that to have moved from an adverse credibility finding immediately after having attached a label of “inconsistency” to an applicant’s evidence may be indicative of reasoning which was not rational or legally reasonable: ASB17 v Minister for Home Affairs [2019] FCAFC 38, [44]. There, a Full Court observed with respect to the question of inconsistencies that:
Some true “inconsistencies” may be objectively irrelevant to the fact-finding of a decision-maker. Some may be explicable, or excusable. Some may be critical to fact-finding. Some may reflect on the credibility or reliability of an applicant, and some may not. As the Full Court said in AVQ15 at [28], the decision-maker’s task requires her or him to “assess the significance of that inconsistency and the weight to be given to it”. Again, simply attaching the label “inconsistency” and moving immediately from the label to an adverse finding of credibility or reliability, may not be a rational or legally reasonable approach
Having acknowledged those principles, the applicant submitted that while it would have been one thing for the Tribunal to have harboured some doubt about the sexuality claim in light of having been in a heterosexual marriage, it was entirely different logic to saying that the two states of affairs are ‘inconsistent’ with each other.
The applicant submitted that the fact of having been in a heterosexual marriage was not probative of the applicant’s claim that he was gay.
For the Minister it was submitted that the Tribunal’s finding that the applicant had been married as being “inconsistent with being gay” was not incapable of being understood and that, read in context, it was entirely understandable. It was further submitted that properly construed, the Tribunal was concerned about the marriage for a number of reasons, including but not limited to, the Tribunal’s assessment of the applicant’s oral evidence on the topic of his wedding arrangements, which the Tribunal characterised as evasive, the applicant’s level of commitment to the marriage and the fact that the applicant had not applied for a divorce since arriving in Australia. Upon those bases, it was said that, considered in its proper context, the Tribunal’s finding of inconsistency was unremarkable.
It is settled that a decision-maker “must assess the significance of an inconsistency found to exist and the weight to be given to it, and give careful consideration to whether there is an acceptable explanation for the inconsistency such that the fact of the inconsistency should attract little if any weight”: BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189, [82] and cases cited. Where there is nothing to show that an assessment was made of the significance of the asserted inconsistency, or of the weight to be attached to it, it may be irrational or legally unreasonable to treat a minor difference as providing a “foundation for the serious finding” that an applicant had fabricated his claim: BJO18, [82].
It is beyond any sensible argument that the fact of homosexuality within an ostensibly heterosexual marriage is historically well-known. To suggest otherwise would be absurd. Reading the Reasons as a whole and in particular, [77], I do not think it is fair to the Tribunal to regard it as saying the fact of homosexuality within a heterosexual marriage was inconsistent per se.
To the contrary, the subject matter of [77] was concerned with the topic of the applicant’s marriage in 2014, an issue which had been addressed at [36] and from [76]-[82]. In this case, the Tribunal assessed the significance of the inconsistencies in the applicant’s evidence in a manner that was consistent with the authorities. Contextually, the Tribunal accepted that arranged marriages were not uncommon in Iraq but did not accept the applicant’s evidence that he did not know his family had arranged for him to marry before he departed Australia in 2014. As noted, the applicant conceded he had known of the arranged marriage: [81]-[82]. However, in my view, the very circumstance that it had been an arranged marriage where it was accepted that such arranged marriages were not uncommon made the fact of the marriage quite irrelevant to the question of the applicant’s sexuality.
I do not consider that a decision-maker could reasonably have come to the view that, on the facts of this case, it regarded the arranged marriage of which the applicant knew before leaving Australia and in which he participated as being inconsistent with the new claim to be gay despite him having introduced the claim by his submissions in March 2019. The Tribunal was not asserting that some persons, being a party to an ostensibly heterosexual marriage, were in fact homosexual. The Tribunals more specific finding was that it regarded the applicant’s 2014 marriage as being inconsistent with the claim 1 May 2019. I agree that the conclusion of ‘inconsistency’ was neither rational nor logical and unreasonable, in the sense that it lacked any intelligible justification.
Failure to raise sexuality earlier
The next impugned finding was that the applicant’s failure to have raised in other proceedings his fear of harm because of his sexuality was ‘inconsistent’ with him having such a fear: [84]-[85].
The applicant correctly emphasised the caution to be employed by decision-makers in the use of the term “inconsistency” and the associated danger that the adoption of such labels distracted or masked the need for deeper analysis: AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83, [27]. There, a Full Court accepted that a failure to have raised a claim earlier may well be relevant to credibility but such failure should not be correctly described as “an inconsistency”. The danger of conclusory labels is clear.
It was submitted on behalf of the Minister to be plain that the Tribunal’s concern was that the applicant had acted inconsistently in identifying a claim for homosexuality in one context (the present visa application) and not in another (the s 501 visa cancellation process) and more precisely because the claim to a fear of harm as being gay was capable of being relevant in each case. For those reasons it was said that the reasoning was rationally capable of informing the Tribunal’s assessment of whether the applicant’s claim to be a homosexual should be accepted.
During his evidence at the hearing, the Tribunal raised with the applicant, and he conceded, that he had not raised his claim to be gay either in answer to the cancellation of his Offshore Humanitarian visa or in his appeal of the delegate decision on cancellation as made to the Tribunal in 2017. The Tribunal correctly recognised that one consideration upon cancellation under s 501 of the Act was that Australia’s non-refoulement obligations may be engaged if a person was forcibly returned to a place where they would be at risk of harm. It was in those circumstances that the Tribunal found that “the applicant’s decision not to raise his sexual identity as a claim at that hearing seems inconsistent with his claim that he feared harm in Iraq because he is gay.”
It is important to distinguish those authorities which caution against the danger of applying a label of “inconsistency” in relation to evidence that has been given, from those cases where it has not. The inconsistency to which the Tribunal drew attention here had nothing to do with the applicant having given evidence on two or more separate occasions, the content of which was contradictory or inconsistent. The Tribunals more fundamental concern was the failure of the applicant to have raised the fact of his sexuality as a ground on which to persuade the delegate, and in turn, the Tribunal, that his Offshore Humanitarian visa should not be cancelled. In my view, a decision-maker could very reasonably have come to the conclusion that it was inconsistent with the applicant’s desire to avoid being forcibly returned to Iraq for him not to have raised his asserted sexuality at that time and only to have done so now.
Manufacture of evidence
The final impugned finding was that the applicant had manufactured his evidence about his sexuality: [89].
The applicant’s substantive complaint was that the Tribunal did not find that the claim was ‘manufactured’, but rather, that the evidence supporting it was. Counsel for the applicant submitted that the Tribunal ‘did not need to go there’ and drew attention to the settled principles of the danger in making a finding that a person has lied: BTF15 v Minister for Immigration and Border Protection [2016] FCA 647, [56]. The applicant’s focus was upon the content of the Reasons at [89] which I have set out above. It was accepted that the making of a finding that a person is a liar did not necessarily, of itself, give rise to jurisdictional error, but said that what had occurred in the present case was that the Tribunal had found, in effect, not only that the applicant was lying, but that his corroborating witnesses had also manufactured their evidence.
Reliance was placed upon CGQ15 v Minister for Immigration and Border Protection (2016) 253 FCR 496, [66] and DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175, [39]-[40]. As those authorities illustrate, a Tribunal’s rejection of independent evidence, corroborating an applicant’s evidence may be legally unreasonable, particularly where the decision-maker had made no finding as to why those other witnesses had been prepared to fabricate claims on behalf of the visa applicant: DAO16, [39]-[40]. The applicant complained of a similar absence of any finding as to why Ms Ducey and Ms Dunster had been prepared to fabricate evidence.
It was submitted for the Minister that the Tribunal’s finding that the applicant manufactured evidence was plainly not material. It was said that the rejection of the applicant’s claim to be a homosexual male merely reflected the analysis in the paragraphs that preceded [89]. Furthermore, the Minister submitted that the Tribunal had not in fact made a finding that either Ms Ducey or Ms Dunster had fabricated their evidence. Rather, it was said that the Tribunal had taken the evidence of both individuals into account.
Although it was framed in terms that might have been expressed more clearly, I consider the reasoning at [89] should properly be understood as reflecting the Tribunal’s narrower finding that it regarded the new claim as having been manufactured. Upon consideration of the Reasons as a whole, read fairly, I do not see the decision-maker as having made adverse findings that the evidence from either Ms Ducey or Ms Dunster had been fabricated. Such a conclusion is directly undermined by the fact that their evidence was taken into account.
The evaluation of whether Ground 2 is made out includes that the Court should stand back from the matter and consider whether the cumulative effect of the impugned reasoning is such as to warrant a conclusion of irrationality, illogicality or unreasonableness. Based upon my assessment of the matters that out above, I conclude that the findings along the way in this matter led to a decision upon the new claim of homosexuality that was tainted by error.
Ground 2 is accepted.
Relief
Subject to what follows, the applicant would otherwise be entitled to relief including for an order in the nature of a writ of certiorari directed to the Tribunal quashing its decision dated 1 October 2019 in relation to application in Case No 1827500. The applicant would also be otherwise entitled to an order in the nature of a writ of mandamus directed to the Tribunal requiring it to determine, according to law, the application in Case No 1827500, upon the decision of a delegate of the Minister made on 18 September 2018 under s 65 of the Act refusing his application for a protection visa.
As noted at the outset, the Minister further submitted that irrespective of the demonstration of jurisdictional error, the application should be refused on discretionary grounds in the circumstance that the applicant held a permanent substantive refugee visa. As to this, it was an agreed fact that the applicant presently holds a permanent substantive refugee visa.
The Minister submitted that for this reason relief ought to be refused on the discretionary ground of futility. It was further submitted that even assuming a protection visa was granted on remittal, it was pointless for the applicant to be granted one protection visa in addition to another.
It is common ground that there will be cases where the discretion to relief should be exercised, including where “a reviewing court is persuaded that, despite the jurisdictional error, the visa applicant would inevitably have received the same outcome on review”: PQSM v Minister for Home Affairs [2020] FCAFC 125, [73]-[76].
In light of the basis upon which the matter was argued, I agreed that the parties should be afforded an opportunity to make further submissions on this issue.
However, it may be as well to make some observations in relation to relief.
The object of the Act is to regulate in the national interest coming into, and presence in, Australia of non-citizens. In the advancement of that object, the Act provides a scheme for visas permitting non-citizens to enter or remain in Australia. The intent of the Act is that it should be “the only source of the right of non-citizens to so enter or remain”: Act, s 4.
Division 3 of Part 2 of the Act provides for Visas for non-citizens and comprises ss 28 – 140. A visa is a right granted by the Minister to a noncitizen comprising a permission to either travel to and enter Australia and/or remain in Australia: Act, s 29. There are different kinds and classes of visa including, amongst others, special category and special purpose visas and protection visas (which may be either temporary or permanent in status). The criteria for the grant or refusal of a protection visa are provided by s 36: Act, s 65.
In the present case, the applicant’s visa history has been somewhat involved. However, for ease of reference, it will be recalled that the applicant first came to Australia on 4 March 2010 holding a Refugee (Subclass 200) visa and that following his various offending, that visa was the subject of cancellation, both in 2012, and again in 2017. As concerned the latter cancellation decision, on 6 July 2018 an order was made by the Federal Court, relevantly, remitting the application for reconsideration. Then, upon remittal, on 13 February 2020, a differently constituted Tribunal set aside the 2017 cancellation decision. As a consequence, the applicant’s Refugee visa was reinstated, he was released from detention and at the time of hearing, he continued to hold a Refugee visa.
As at May 2020, it was agreed that “the applicant was granted the subclass 200 visa on the basis that he met cl 200.321 as a member of the family unit of his mother.” Whether that fact remains operative is unknown.
Further, in the interim, by his application made on 23 May 2018, the applicant applied for a Protection (Subclass 866) visa. Counsel for the applicant correctly submitted that the further claims that had been advanced before the Tribunal for this visa had not actually been assessed.
Very little, if any, attention has been paid to the different rights conferred or inhering in a Subclass 200 visa and a Subclass 866 visa. For the purposes of the present application, I am cannot assume that the rights which inhere in a Subclass 200 and Subclass 866 visa (either when granted or at present), or the conditions to which they may be subject, from time to time, are uniform.
Counsel for the applicant drew attention to Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at [118]-[119] in which Heydon and Crennan JJ (Gleeson CJ agreeing) observed that several provisions of the Act all recognised the potential for a person to hold multiple visas under the Act, provided that the criteria for them were satisfied. As in the present case, so too Nystrom had a substantial criminal record. The complex questions of construction which fell for consideration in that appeal were not addressed in the present case and it is beyond the scope of these reasons to divine what substantive differences, if any, arise in relation to the applicant’s Subclass 200 visa and a Subclass 866 visas.
Finally, I note that by s 427(2) of the Act, the Tribunal is obliged in imperative terms to “combine the reviews of two or more Part 7-reviewable decisions made in respect of the same non-citizen.”
Conclusion
For the reasons above, the amended application should be allowed and the parties afforded an opportunity to make submissions on relief.
I certify that the preceding one hundred and fifty-eight (158) paragraphs are a true copy of the reasons for judgment of Judge A. Kelly
Associate:
Date: 25 March 2021
1