ELU17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 1059
Federal Circuit and Family Court of Australia
(DIVISION 2)
ELU17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1059
File number(s): SYG 3073 of 2017 Judgment of: JUDGE LAING Date of judgment: 20 December 2022 Catchwords: MIGRATION – whether the Tribunal denied the applicant procedural fairness by requesting the applicant respond to certain questions in English despite an interpreter being present – whether the Tribunal made findings without evidence – whether the Tribunal’s reasoning was illogical and/or irrational – whether the Tribunal failed to give requisite consideration to evidence – whether the Tribunal erred by failing to obtain further evidence – application dismissed. Legislation: Migration Act 1958 (Cth) ss 424AA, 425 Cases cited: ALV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 122
Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184; (2017) 256 FCR 235
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441
Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6
SZMJM v Minister for Immigration and Citizenship [2010] FCA 309
The Republic of Nauru v WET040 [No 2] [2018] HCA 60; (2018) 93 ALJR 102
Division: Division 2 General Federal Law Number of paragraphs: 62 Date of hearing: 20 October 2022 Place: Sydney Counsel for the Applicant Mr A. Munro (Counsel) Solicitor for the Applicant Ray Turner Immigration Lawyers Counsel for the First Respondent Ms C. Roberts (Counsel) Solicitor for the First Respondent Australian Government Solicitor ORDERS
SYG 3073 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ELU17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
20 DECEMBER 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING
INTRODUCTION
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).
background
The applicant is a citizen of Jordan who arrived in Australia on a Visitor (FA 600) visa in November 2014. That visa was valid until 14 February 2015.
On 11 February 2015, the applicant applied for a protection visa.
The Delegate refused the applicant’s application on 12 August 2015. On 18 August 2015, the applicant applied to the Tribunal for review of the Delegate’s decision. The applicant attended a hearing before the Tribunal on 6 July 2017, assisted by an interpreter in the English and Arabic languages.
On 28 July 2017, the Tribunal affirmed the Delegate’s decision.
the tribunal’s decision
The Tribunal concluded that the applicant was not a “reliable, credible or truthful witness”. It found that he had fabricated his claims in order to be granted a visa (at [40]).
In reaching this conclusion, the Tribunal expressed that there had been several instances in which the applicant’s credibility had been found wanting. This included the applicant’s evidence regarding his finances. The applicant had given inconsistent evidence regarding his claimed inability to access Jordanian bank statements but then doing so. He had also provided inconsistent evidence regarding his total funds and the transfer of them into Australia (at [41]-[43]).
The Tribunal concluded that the applicant’s claims to identify as a homosexual and face harm on this basis were fabricated. The Tribunal did not accept that the applicant had a homosexual relationship with the owner of a salon at which he claimed to have worked full-time. In a previous visa application there had been no mention of him working at a salon. Instead, the applicant had claimed to have worked as a marketing assistant in a market. He had also produced a supporting letter to this effect (at [44]-[45]).
The Tribunal considered it implausible that the applicant would have been employed at the salon without qualifications. Even if taught on the job, the Tribunal considered it implausible that he would have been allowed to come and go as he pleased, allowing him to devote days of his time at the markets. The Tribunal placed little weight on post–hearing letters he had provided in this regard. Little weight was also placed upon evidence of undated and unverifiable messages that were provided by applicant (at [46]-[48]).
The Tribunal similarly placed limited weight upon:
(a)photographs provided by the applicant. This was because the veracity of those photographs depended on the applicant’s credibility, which the Tribunal had found lacking. Photographs showing someone cutting hair and people sitting in a salon did not verify the identity of the people in the photographs, nor the context in which the photographs were taken (at [49]).
(b)tickets to a Gender Trailblazers show. The Tribunal considered that the applicant’s description of the production did not match what it had viewed nor how the production had been characterised in the press. The Tribunal also had doubts about the applicant’s ability to understand the production, given his limitations in English (at [50]-[51]).
(c)emails the applicant provided, that were not written to him. Whilst one indicated a way to contact the “scene for Arabic speaking gays”, the applicant took no action to follow this up. His evidence was considered vague about why he did not do so, other than saying he did not want people to know he was gay. The Tribunal found this difficult to reconcile with the applicant’s claimed willingness to tell certain family members he was gay and go to gay nightclubs and productions (at [52]).
(d)a threatening email claimed to have been received by the applicant. This was in circumstances where the applicant did not refer to the email during the hearing, the email was undated and could have been written by anyone (at [55]).
The Tribunal observed that the applicant had no social media presence indicating “any embracing of a gay identity”, whether under his own name or otherwise (at [53]). Photographs presented at hearing simply showed people socialising with no indication of sexual intimacy or shared sexual identity. Limited weight was also given to a telephone interview with a witness claiming to know that the applicant was gay. This was in circumstances where the Tribunal could not verify the accuracy of what that person had said and was inclined to place greater weight on the applicant’s credibility issues (at [54]).
The Tribunal observed that a s 438 certificate appeared on the file. The Tribunal did not consider that the certificate was valid. The Tribunal relied upon elements of the underlying document relating to the applicant’s employment in Jordan. It gave the applicant the opportunity to comment on that information pursuant to s 424AA of the Migration Act 1958 (Cth) (Act) (at [56]).
As the Tribunal did not accept that the applicant was homosexual, it did not accept that he would be harassed on return to Jordan or that his family would seek to kill him as he had claimed. As the applicant had raised no other claims to protection, the Tribunal found that Australia’s protection obligations under the Act were not enlivened. The Tribunal therefore affirmed the Delegate’s decision (at [57]-[63]).
proceedings before this court
The applicant commenced proceedings in this Court by an application filed on 5 October 2017. The following grounds were contained within a further amended application filed on 21 October 2022:
1.The second Respondent (Tribunal) denied the Applicant Procedural Fairness
Particulars
a. The Tribunal insisted that the Applicant answer questions in English when he had requested the services of an interpreter and there was an interpreter present.
b. The Applicant nominated two people to be called as witnesses but the tribunal only called one of them.
2.The tribunal based its decision on findings in respect of which there was no evidence before it.
Particulars
a. The tribunal made findings in relation to banking and business practises in Jordon in respect of which it had no evidence.
3.The tribunal ignored relevant evidence
Particulars
a. The tribunal found that the Applicant was unable to provide any evidence that he had worked in a salon. The Applicant provided evidence that he worked in a salon.
4.The tribunal based its decisions on reasoning that was irrational and/ or illogical
Particulars
a. The tribunal's finding at CB249 [50] had no rational or logical foundation
5. The Tribunal erred in:
(a) Failing to give real, genuine and proper consideration to relevant material before it;
(b) Failing to make an obvious enquiry about a critical fact, the existence of which was easily ascertained;
(b) Engaging in illogical and/or irrational reasoning.
Particulars
A. The Tribunal Member viewed video footage on YouTube, of excerpts of the Gender Trailblazers performance held in 2016 (the 2016 Footage): see Reasons at [33]; Exhibit “A”;
B. The 2016 Footage was contained on the YouTube channel of a user named CarmenRupe Memorial Trust;
C. The Tribunal did not accept that the 2016 Footage showed any singing, or any actors: see Reasons at [33], [50];
D. The Tribunal found that the applicant’s description of what occurred at Gender Trailblazers performance was inconsistent with the 2016 Footage: see Reasons at [33];
E. Embedded on the YouTube page of the user CarmenRupe Memorial Trust containing the 2016 Footage, was a link to video footage being “part 1 of Gender Trailblazers 2015” (the 2015 Footage): see Exhibit “B”;
F. The 2015 Footage included part of the Gender Trailblazers performance, held on 21 February 2015: see Affidavit Sai Sivalohan dated 23 September 2022, annexure “A”, ‘part 1’;
G. The applicant attended the Gender Trailblazers performance, held on 21 February 2015: see Court Book page 96 (tickets);
H. Contrary to the findings at [33] of the Reasons, the 2015 Footage does show that, at the Gender Trailblazers performance in February 2015:
i. there was singing;
ii. there were actors.
I. The 2015 Footage was relevant material that was before the Tribunal, in that it was contained within and was accessible by a link on the page containing the 2016 Footage viewed by the Tribunal;
J. Further, or in the alternative, the 2015 Footage was material the existence of which was easily ascertained by the Tribunal, in that it was contained within and was accessible by a link on the page containing the 2016 Footage viewed by the Tribunal;
K. In the premises:
i. the findings of the Tribunal at [33] and [50] were not open to the Tribunal and/or were illogical and/or irrational;
ii. the findings of the Tribunal at [33] and [50] were inconsistent with the Tribunal having given real, genuine and proper consideration to the contents of the 2015 Footage or to the applicant’s evidence at the hearing in respect of the Gender Trailblazers performance, held on 21 February 2015;
iii. the applicant had provided a credible account of his attendance at the said performance;
iv. the Tribunal’s reliance on the alleged inconsistencies was material to its exercise of power and resulted in jurisdictional error.
L. Further, or in the alternative, had the Tribunal:
i. Made the obvious enquiry, being a viewing of the 2015 Footage; and,
ii. Ascertained the critical fact, being that at the said performance there was singing, and there were actors; then,
iii. A different result may have been that Tribunal accepted that the applicant attended the said performance, such that there was a realistic possibility the Tribunal could have reached a different conclusion on the applicant’s claim.
However, Mr Munro for the applicant advised that particular (b) of ground one and ground three were not pressed by the applicant.
Ground one
Ground one contended that the applicant was denied procedural fairness because the Tribunal insisted that he answer questions in English despite an interpreter being present at the hearing at his request.
Attention was drawn by Mr Munro to the following parts of the transcript in evidence (emphasis taken from the applicant’s submissions):
Q31I have your protection visa application including your statement of claim and these tickets to - what is this gender trailblazers?
A (INT)That was when I first came to Australia it was around the 1st of the 12th I went to a - to the city to a party at February 1.
Q32But what is it?
A (INT) It’s a play and it talks about the people who change - transgender.
Q33 Do you know who was there?
A (INT)There was an old lady, I don’t know her name but I was new in the country so I didn’t quite understood the English.
Q34How many - I mean, how many people were there presenting?
A (INT)About five, six.
Q35Five or six people presenting?
A Yeah.
Q36Do you remember any of their names?
A (INT)No.
Q37And what was the format of it, of the show?
A (INT)It was like a play and they were performing things related to transgender and there were people from America. And some ..... (00:22:55) he was singing there.
Q38So there was like a play, was there, with actors and people singing?
A (INT)Exactly.
Q39And do you speak English?
A Little bit.
Q40 How much? So could you carry on a conversation with me? Sorry, could you explain in English what happened at this gender trailblazers, for instance?
A (INT) I understand everything.
A ..... (00:24:05).
Q41So if I was to ask you how many people were on the stage and how many scenes there were in that play, you understand what I’m asking you?
A Yeah.
Q42 So can you answer?
A Six people ..... (00:24:29).
Q43 Rightio. O.K. And why did you go to that? Why did you go to that event?
A (INT) I went to have a look, to watch, I was new and I wanted to see what people do, what sort of activities are there.
Q44 But, I mean, it seems a strange thing seeing you don’t understand English to go to a performance two months after you arrive.
A (INT) I went because I wanted to learn and I wanted to listen to the language so that I can learn from them.
Q45 How are you going to learn from a play? It seems a bit strange.
A (INT) Not learn but to listen and to know what sort of activities are there.
The Tribunal referred to the applicant’s evidence in this regard at [13]-[15] of its decision (errors in original):
13.… He was asked about the tickets he had to 'Gender Trailblazers' and he claimed when he first came to Australia he went to a party in the city in February. It was a play that talked about people who changed gender. Asked if he knew who was there, he said there was an old lady but didn't know her name - he didn't really know English.
14.There were about five or six people presenting but didn't remember any of their names. The show was like a play performing things related to transgender, a person from America and someone was singing. He said he knew some English and was asked to explain to the member in English what occurred at the show; he said he understood everything but couldn't speak well. He was asked into explain in English what occurred at the play but was unable to do so.
15.Asked why he went to the event, he claimed that he went to watch - he was new and wanted to see what sort of activities were there. It was put to him that it was strange that he chose to go to an English-language performance two months after coming to Australia given he didn't understand English. He said he wanted to go to listen and learn English. Asked how he would learn English from the play, he claimed he didn't mean to learn tut to know what activities there were out there.
A number of issues were raised by Mr Munro for the applicant in respect of the above. Mr Munro contended that:
(a)The Tribunal’s interpretation at [14] that the applicant “understood everything but couldn’t speak well” did not mirror the sequence in which this evidence was given at A39 to A40. This may be so, but it does not mean that the Tribunal’s summary of the evidence was relevantly closed to it.
(b)A40 was open to multiple interpretations. Again, this may be so, but it does not demonstrate that the interpretation by the Tribunal was relevantly closed.
(c)It was the interpreter, rather than the applicant, who said the words “I understand everything” (at A40). In support of this, the applicant relied upon the audio of the Tribunal hearing indicating that the interpreter’s articulation of this did not occur immediately after the applicant had spoken in a way that was audible on the recording. However, I accept Ms Roberts’ contention for the Minister that this did not mean that the interpreter was not conveying a communication from the applicant regarding his English ability (whether one that was inaudible in the recording, or from an earlier but still contextually relevant communication). Without knowing the Arabic words that were spoken, I am unable to conclude that these words were solely attributable to the interpreter.
Mr Munro also submitted that the applicant’s difficulty in communicating in English rendered the Tribunal’s persistent request that he do so, despite apparent limitations, impermissible. Mr Munro relied upon cases such as Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 and ALV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 122.
However, in the present case the applicant was not denied an interpreter. The applicant was generally provided with the assistance of an interpreter throughout the course of the hearing. The Tribunal’s query as to whether the applicant was able to explain a matter in English was for a limited purpose i.e. to test the applicant’s communication abilities in English. This was in circumstances where the Tribunal had concerns about the applicant’s claimed motivations in attending an English language performance when he was unable to understand English (at [15]).
As the purpose of the exercise was to test the applicant’s English abilities, rather than to elicit other information from his response, it is difficult to see how the exchange denied the applicant procedural fairness or the opportunity to present his evidence. The applicant was given the opportunity to comment, and did comment, on the matters in issue (including his language abilities and the reasons he had attended the performance).
It is also difficult to see how any error in this regard could be said to have been material, in the sense considered in cases such as MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441. The applicant gave other evidence regarding his limited English, including that he “didn’t quite understood the English” in the Gender Trailblazers production. This and other evidence given by the applicant regarding his language abilities informed the Tribunal’s findings at [50]-[51] as follows (footnote omitted):
50.I also place little weight on the tickets to the Gender Trailblazers show he produced (folios 96-98). To begin with he described it as a play with actors and singing whereas the press described it as a 'conversation between actress/musician Calpernia Addams and trans-activist and musician Paige Phoenix as Gender Trailblazers.'
51.I also do not accept that a non-English speaking Jordanian would be able to understand much if anything of a two-hour on-stage discussion in English with a transgender American musician/activist. I am therefore not satisfied that he attended, or was asked to attend such a production. This lack of English language skills was mentioned several times as a barrier to his interacting more closely with the gay community in Sydney, yet he has made no attempt to attend English language classes in his two and a half years in Australia. It seems anomalous that if this was such a barrier that either learning English to interact with English speaking gays, or going to Arabic-speaking gay venues wouldn't have been a high priority in order to allow him to give expression to his alleged homosexual identity.
Mr Munro suggested that the applicant may have given more fulsome or forceful evidence if he had not been asked to answer questions in English, and if he had been given the opportunity to answer them in Arabic. However, as set out above, the answers the applicant was asked to provide in English were very limited, and for a limited (and articulated) purpose. Immediately after the applicant gave the limited answers that he gave in English, he reverted to speaking through the interpreter. I do not accept that he was denied the opportunity to say what he wished to say about the Gender Trailblazers production in Arabic.
Having regard to the above, I am not satisfied there is a realistic possibility that the Tribunal’s findings could have been different, to the extent of potentially resulting in a different outcome on the review, had the Tribunal not asked the applicant to respond to limited questions in English.
I am therefore not persuaded that ground one is able to succeed.
Ground two
The second ground relied upon by the applicant contended that the Tribunal made findings in relation to banking and business practices in Jordan without evidence.
In this regard, the applicant relied upon various parts of the transcript before the Court indicating that the applicant was questioned about his bank accounts. Those exchanges were summarised as follows at [18]-[19] of the Tribunal’s decision, with which the applicant took issue in his first set of written submissions:
18.It was put to him that his bank in Jordan would have notified him if they were going to close his account and he claimed he didn't know. He was asked to contact his bank and provide evidence. He claimed there were no pay slips in Jordan and only paid in cash. It was put to him that they would pay into a bank account and he claimed that only government employees or people working in companies were paid into their accounts.
19.Ordinary workers didn't get paid this way, only in cash. It was put to him that he was a marketing manager, not a labourer. This was a serious job - he claimed he was paid via an envelope. Technology in Jordan was not that advanced. It was put to him that he must then have put his money into his account as he would have had to show evidence of funds in order to get his Australian visa. It was put to him that not much weight would be put on letters but account details from the bank such as a computer-generated bank statement that couldn't easily be fabricated would be required.
I accept the Minister’s submission that the Tribunal did not make any substantive findings in the above paragraphs and exchanges. Rather, it put its concerns to the applicant regarding his evidence about his Jordanian account in compliance with s 425 of the Act and invited the applicant to respond.
At [41]-[42], the Tribunal summarised evidence the applicant had given in relation to his bank accounts. At [43], the Tribunal took issue with what it found to be the “inconsistency between [the applicant] claiming not to be able to access Jordanian bank statements but then doing so, and also regarding the inconsistent claims of his total funds and his transfer of them into Australia”.
The applicant had initially claimed that he was unable to provide statements regarding his Jordanian account as it had been closed for inactivity. He claimed that he had contacted the bank but they could not give him written proof (A61 of the transcript). The applicant subsequently produced bank statements regarding this account, which was inconsistent with his evidence that he was unable to obtain them.
The applicant had also given evidence at hearing that he had withdrawn all of his money, amounting to JD 2,000 or AUD 3-4,000, in cash and brought it with him to Australia. The applicant gave evidence that he did not put it into a bank account “straightaway” because he initially “didn’t have a bank account” (at A70-A73). This was taken by the Tribunal to indicate that the funds were then deposited when the applicant opened his bank account in Australia. However, the applicant’s Jordanian account showed funds of around AUD 7,600 being withdrawn in November 2014. The applicant’s opening Westpac account balance in November 2014 was only 50 AUD and further funds (amounting to around AUD 2,000) were not deposited until February 2015.
It was the above apparent tensions or inconsistencies in the applicant’s evidence that informed the Tribunal’s credibility concerns at [41] and [43], rather than any finding regarding banking or business practices in Jordan.
Mr Munro submitted that the applicant’s evidence regarding his finances was not reasonably capable of informing the question of whether or not the applicant’s claims to face harm on account of his sexuality ought to be accepted. As a direct proposition, that is probably correct. However, evidence capable of undermining the applicant’s credibility in one regard was reasonably capable of informing the Tribunal’s credibility findings more generally. This is the sense in which the Tribunal appears to have dealt with this evidence.
Mr Munro also took issue under this ground with the Tribunal’s reasoning at [46]. In that paragraph, after noting that the applicant had made inconsistent claims regarding his employment in another visa application, the Tribunal stated:
46.Yet in his hearing he claimed that he worked full-time at the salon and worked at the markets when called which was about two days a week. He was unable to provide any evidence that he worked at the salon, never mentioned this employment to the embassy when applying for his visa and it appears implausible that he would be employed at the salon without qualifications and, even if he were taught on the job that they would allow him to come and go as he pleased, including devoting two days to work at the markets.
Mr Munro submitted that this involved unwarranted assumptions regarding employment practices in Jordan (namely, that someone would not work in a barber shop without qualifications and that it was implausible that the applicant’s employer would have allowed him to come and go).
However, on balance I accept Ms Roberts’ submission that the Tribunal’s reasoning at [46] involved logically available deductions from ordinary human experience: see The Republic of Nauru v WET040 [No 2] [2018] HCA 60; (2018) 93 ALJR 102 at [35]. Ordinary human experience would suggest some level of skill, training or other qualification for work in a salon or barber shop. The Tribunal’s reasoning in this regard did not necessarily contemplate formal qualifications. The Tribunal appears to have been prepared to countenance the possibility that the applicant had been “taught on the job”. Similarly, the Tribunal’s reluctance to accept that the applicant’s employer would have allowed the applicant to “come and go as he pleased” likely reflected the ordinary human experience of employers generally wishing (for obvious reasons) to know the availability of their staff.
For the above reasons, I am not persuaded that ground two ought to succeed.
Ground four
Ground four contended that the Tribunal’s reasoning at [50] of its decision was illogical and/or irrational. The impugned paragraph was as follows (footnote omitted):
50. I also place little weight on the tickets to the Gender Trailblazers show he produced (folios 96-98). To begin with he described it as a play with actors and singing whereas the press described it as a 'conversation between actress/musician Calpernia Addams and trans-activist and musician Paige Phoenix as Gender Trailblazers.'
At [51], the Tribunal stated:
51.I also do not accept that a non-English speaking Jordanian would be able to understand much if anything of a two-hour on-stage discussion in English with a transgender American musician/activist. I am therefore not satisfied that he attended, or was asked to attend such a production. This lack of English language skills was mentioned several times as a barrier to his interacting more closely with the gay community in Sydney, yet he has made no attempt to attend English language classes in his two and a half years in Australia. It seems anomalous that if this was such a barrier that either learning English to interact with English speaking gays, or going to Arabic-speaking gay venues wouldn't have been a high priority in order to allow him to give expression to his alleged homosexual identity.
Mr Munro contended that the Tribunal’s reasoning in this regard and associated questioning involved the following unwarranted assumptions:
(a)that a pre-cursor to attending an English language show is knowledge of the English language;
(b)that if one does not speak English, one would not attend an English language show;
(c)that attending a two hour English language show when one does not speak English is an element that may be relied upon to find that a person has fabricated their sexual orientation.
I do not accept that the Tribunal made “assumptions” in the terms suggested by Mr Munro. However, the Tribunal was concerned by the applicant’s motivations for attending the Gender Trailblazers production in circumstances where (a) it had generally been described as a conversational production in English, and (b) on the applicant’s own evidence, his limited ability to understand English had limited his ability to understand the production. In these circumstances, I consider that it was open to the Tribunal at least to query the applicant’s motivation for attending the production.
In response, the applicant gave somewhat varying explanations (at A43-45 of the transcript). Whilst he initially said that he wanted to “see what people do, what sort of activities are there”, he subsequently suggested that he “went because he wanted to learn” and “listen to the language so that [he could] learn from them”. When the Tribunal member queried how he would learn from the production, the applicant then corrected his evidence by saying “[n]ot learn but to listen and to know what sort of activities are there”.
I accept Ms Roberts’ submission that it was open to the Tribunal not to have accepted the applicant’s evidence in this regard, when considered together with the other issues the Tribunal had identified. This included the Tribunal’s concern that despite seeing his English ability as a barrier the applicant did not appear to have prioritised its improvement (at [51]). It also included the apparent tension between the applicant’s claimed attendance at a public performance and evidence that he had eschewed certain other contact with gay communities because he did not want people to know about his sexual identity (at [52]). Whilst another Tribunal member may well have reasoned differently, this is not sufficient to meet the high thresholds for grounds such as illogicality and irrationality: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [130]-[131] per Crennan and Bell JJ).
For these reasons, I am not persuaded that ground four is able to succeed.
Ground five
As set out above, the applicant relied on various particulars (and evidence) in support of ground five.
In essence, the ground contended that the Tribunal failed to give requisite consideration to the 2015 Footage and associated evidence. Alternatively, it was contended that the Tribunal erred in not seeking out or inquiring after the 2015 Footage. This was contended to have resulted in reasoning at [33] and [50] of the Tribunal’s decision that was illogical, irrational or otherwise not open to the Tribunal.
There are a number of difficulties with this ground.
Firstly, the ground relies upon an assumption that the Tribunal viewed the 2016 Footage but not the 2015 Footage. However, the Tribunal did not identify at [33] of its reasons or otherwise precisely which video(s) had been viewed. At [33], the Tribunal stated:
33.Under s 424AA it was also put to him that the member had viewed some video of 'Gender Trailblazers' that appeared to be an 'in-conversation' style production, yet he described a play with people singing and acting. This was inconsistent with his description which may call into question whether he ever went, as well as the question that going to a spoken two hour production when he didn't understand English may call into question how this revealed a proclivity for homosexuality. He claimed people were acting and one person came and sang.
The applicant relied upon an email chain with the Tribunal some years after the Tribunal’s decision, in which a hyperlink to the 2016 Footage was provided in response to a request for the footage that had been viewed (Exhibit A). However, this was provided with the caveat that the member could not recall which of the videos he would have viewed, which had been located “on the web”.
The evidence before the Court is therefore insufficient to demonstrate the exact footage that was viewed by the Tribunal.
Secondly, the ground relies upon a construction of the Tribunal’s reasoning at [33] and [50] to the effect that the Tribunal did not accept that the footage viewed “showed any singing, or any actors”. However this is not what the Tribunal found. At [33], the Tribunal considered that the applicant’s general description of the production as a play with people singing and acting was inconsistent with what the Tribunal considered was the production’s general characterisation as “an 'in-conversation' style production”. This informed the Tribunal’s reasoning at [50] (footnote omitted):
50.I also place little weight on the tickets to the Gender Trailblazers show he produced (folios 96-98). To begin with he described it as a play with actors and singing whereas the press described it as a 'conversation between actress/musician Calpernia Addams and trans-activist and musician Paige Phoenix as Gender Trailblazers.'
The Tribunal’s reasoning at [33] and [50] did not depend upon any finding that no singing or acting occurred in the production. Rather, it identified a tension between the applicant’s general characterisation of the production as a play with singing and acting and what appeared to be the generally conversational format of the production. I find that it was open to the Tribunal to rely upon some footage of the production and the press article in forming this conclusion. This is so whether it was the 2016 Footage or the 2015 Footage that was viewed by the Tribunal. The evidence does not demonstrate that either depicted the exact version of the production that the applicant claimed to have viewed on 21 February 2015. However, both were potentially consistent with the Tribunal’s characterisation of the production.
In this regard, I accept Ms Roberts’ contention that this is a matter where reasonable minds may have differed and that it is not a matter in which there was no logical connection between the evidence and the inferences or conclusions drawn: SZMDS at [135]. The Tribunal’s characterisation of the production as an “'in-conversation' style production” was consistent with the description given in the 2015 Footage relied upon by the applicant. The opening voiceover of the 2015 Footage that was tendered characterised the production as “an evening of incredible conversation”, albeit one that was “interspersed with wonderful performances”.
For these reasons, even if the 2015 Footage was relevantly before the Tribunal, I would not have been persuaded that the evidence demonstrates that this was not considered by the Tribunal based upon (inter alia) Exhibit A, or the Tribunal’s reasoning at [33] and [55]. The Tribunal’s reasoning at [33] and [50] demonstrated active engagement with the footage that it viewed. It also demonstrated active engagement with the applicant’s evidence regarding the production.
Thirdly, in these circumstances, the ground is unable to meet the high thresholds imposed by a “duty to inquire” species of ground. There is no general obligation upon the Tribunal to seek out evidence, or to inquire. Whilst it has been accepted that “a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances” justify a finding of error, the cases in which this species of error may be found have been described as “rare and exceptional”: see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [25] and SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [30]. The mere fact that it may have been reasonable for the Tribunal to have made further inquiries is insufficient to demonstrate jurisdictional error: Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184; (2017) 256 FCR 235 at [33].
In order to succeed, the applicant would need to establish error on this basis. This is because the applicant has not demonstrated, on the evidence before me, that the 2015 Footage was relevantly before the Tribunal. Even if accessible through a link or electronic search (as suggested by a YouTube screenshot at Exhibit B), this would still have required some level of inquiry on the part of the Tribunal.
However, the applicant would also need to demonstrate that the Tribunal failed to make such an inquiry. This presents some difficulty, in circumstances where the evidence before the Court does not establish precisely what footage was viewed by the Tribunal.
Regardless, I am not persuaded that this is the type of “rare and exceptional” case justifying a finding that the Tribunal was obliged to make an inquiry of the nature contended. Within the context of the Tribunal’s reasoning, as discussed above, whether or not the production contained some singing or acting (or other elements that were arguably consistent with the applicant’s evidence) was not a “critical fact”. The Tribunal’s reasoning in this regard did not turn upon whether any such elements occurred at some point in the production. It turned upon what it considered to be the inconsistent general characterisation of the production by the applicant (as a play with actors and singing) and “an 'in-conversation' style production”.
Ground five is therefore unable to succeed.
conclusion
For the above reasons, the application before the Court must be dismissed.
I will hear the parties in relation to costs.
63 I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Laing.
Associate: Gillian Shaw
Dated: 20 December 2022
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