ESH19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1438
•19 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ESH19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1438
File number(s): SYG 3104 of 2019 Judgment of: JUDGE GOODCHILD Date of judgment: 19 December 2024 Catchwords: MIGRATION – Application for an extension of time to make an application reviewing a decision of the Administrative Appeals Tribunal (the Tribunal) – whether there was a reasonable explanation for delay in filing – whether in the interests of administration of justice to grant extension – extension of time granted – Protection visa – a refusal to grant protection visa under section 65 of the Migration Act1958 – the Tribunal affirm delegate’s decision – applicant’s claim for protection grounded on claim to be member of particular social group, being homosexual – judicial review – jurisdictional error – whether reasonably open to find that the applicant has given inconsistent evidence – whether decision by Tribunal involved assumptions pre-conceptions or prejudgments – materiality of reasoning – writ of certiorari issued – writ of mandamus issued. Legislation: Migration Act 1958 (Cth) ss.36, 65, 477.
Statutory Declaration Act 1959(Cth).
Cases cited: ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83
AWU16 v Minister for Immigration and Border Protection [2020] FCA 513
CBY15 v Minister for Immigration and Border Protection [2020] FCA 878
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175
Djokovic v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Duwai v Minister for Immigration and Border Protection [2014] FCA 1141
ETA067vTheRepublic of Nauru (2018) 92 ALJR 1003
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Border ProtectionvSZMTA (2019) 264 CLR 421
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
MZZJOvMinister for Immigration and Border Protection [2014] FCAFC 80
Singh v Minister for Immigration and Border Protection [2017] FCAFC 195
Sundararaj v Minister for Immigration & Multicultural Affairs [1999] FCA 76
SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638
SZLIH v Minister for Immigration and Citizenship [2009] FCA 108
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319
SZTSU v Federal Circuit Court of Australia [2015] FCA 224
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 243 Date of last submission/s: 9 April 2024 Date of hearing: 9 April 2024 Place: Brisbane Counsel for the Applicant: Mr Silva Solicitor for the Applicant: Bassan Lawyers & Associates Solicitor for the Respondents: Mr Gao, Solicitor of HWL Ebsworth Lawyers ORDERS
SYG 3104 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ESH19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOODCHILD
DATE OF ORDER:
9 APRIL 2024
THE COURT ORDERS:
1.That the application for an extension of time is granted.
2.That the application be allowed.
3.That a writ of certiorari issue, directed to the second respondent, quashing its decision made 22 October 2019.
4.That a writ of mandamus issue, directed to the second respondent, requiring it to determine the applicant’s application to review the decision of a delegate dated 6 August 2019 according to law.
5.That the first respondent pay the applicant’s costs of the proceeding.
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 GOODCHILD:
INTRODUCTION
By an amended application dated 29 February 2024, the applicant seeks judicial review of the decision of the second respondent being the Administrative Appeals Tribunal (“the Tribunal”) made on 22 October 2019. The Tribunal’s decision affirmed a decision of a delegate of the first respondent being the Minister of Immigration, Citizenship and Multicultural Affairs (“the Minister”) made on 6 August 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (“the Act”).
The applicant’s original review application was filed on 27 November 2019. This was 36 days after the decision and one day outside the 35-day time limit imposed by s.477(1) of the Act. The applicant seeks an extension of time for the filing of that original application for review.
For the reasons that follow, the application for an extension of time will be granted. For the reasons set out below, the applicant’s amended application seeking judicial review of the decision of the Tribunal made on 22 October 2019 will be granted.
RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The applicant was born in Perak, Malaysia on 10 August 1975. He is a citizen of Malaysia, who first arrived in Australia on 16 October 2006 as the holder of a Subclass 976 Visitor visa. He was 32 years of age when he arrived in Australia.
The applicant became an unlawful non-citizen on 17 January 2007. The applicant was located by the Australian authorities on 12 June 2019 and detained at Villawood Immigration Detention Centre.
The applicant applied for a protection visa on 28 June 2019.
The applicant participated in an interview with a delegate of the Department of Home Affairs, (“the delegate interview”) on 17 July 2019 in relation to his claims. The applicant was represented by his migration agent. A transcript of the audio recording of the delegate interview was adduced into evidence in these proceedings on the applicant’s behalf.
On 6 August 2019, the delegate refused to grant the applicant’s Protection visa on the basis that the applicant did not satisfy s.36(2) of the Act which required that the applicant be a non-citizen of Australia in respect of whom Australia has protection obligations and is not a person in respect of whom Australia has protection obligations.
On 13 August 2019, the applicant filed an application with the Tribunal for a review of the delegates decision to refuse to grant the applicant a Protection visa under s.65 of the Act.
The applicant appeared before the Tribunal on 11 October 2019 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Punjabi language. The applicant was represented by a migration agent. A transcript of the audio recording of the Tribunal hearing was adduced into evidence in these proceedings on the applicant’s behalf.
On 22 October 2019, the Tribunal affirmed the delegate’s decision not to grant the Applicant a Protection visa.
PRELIMINARY ISSUE – EXTENSION OF TIME TO LODGE THE APPLICATION FOR JUDICAL REVIEW
The decision of the Tribunal was made on 22 October 2019. The applicant filed his application for judicial review on 27 November 2019. This was 36 days after the decision and one day outside the 35-day time limit imposed by s.477(1) of the Act.
The Affidavit of the Applicant’s former solicitor dated 27 November 2019, which was lodged with the Court at 4:57pm (AEDT) on 26 November 2019, provides (at [3]) that:
3.The application was filed within the 35day period; however, the court has considered that it is an out of time applicant on the basis that it was filed after 4.30apm on the 26 November 2019.
The principles applicable to the Court’s exercise of discretion to grant an extension of time are well established.
Pursuant to s.477(2) of the Act, the Court may extend the time for the making of an application if satisfied that it is necessary to do so in the interests of the administration of justice.
It is only if the precondition that the Court is satisfied that an extension of time is “necessary” in the interests of the administration of justice that an order for extending time should be made: (see: SZTSU v Federal Circuit Court of Australia [2015] FCA 224 at [2]-[3] per Mortimer J).
Whether or not it is in the interests of the administration of justice for time to be extended can be informed by a ‘myriad of facts and circumstances’: (see; Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (“Katoa”), at [12]).
It is a discretionary matter for the Court, taking into account the following considerations (see; SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 at [46]-[48]):
47.…
(a)Whether there has been a reasonable and adequate explanation for the applicant’s delay;
(b)Whether there is any prejudice to the Minister;
(a)Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.
The Court, however, should not exercise its discretion to extend time, even for a short period, if the application has no prospects of success. The substantive application should have such prospects of success so as not to render the extension of time as an exercise in futility.
The Court is not required to establish that the application will succeed at final hearing. The grounds of review should be examined on a reasonably impressionistic level to see whether there are reasonable prospects of success: (see; Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [21]).
The applicant submitted that there is an explanation for the delay. The affidavit filed by the applicant’s former solicitor and explains that the time the application was filed, was on the day of the deadline. The notice of filing of the application lists the following date and time; 26 November 2019 at 4:57:23 PM AEDT.
The applicant submitted that there would be no undue prejudice to the first respondent, because there was no delay, or any delay was inconsequential, and it is reasonable to make such a submission. The applicant submitted that at an impressionistic level it is apparent that there is merit in the application.
The first respondent’s contention regarding the extension of time is that the Court should refuse to grant the application for an extension of time, and that the applicant should be ordered to pay costs.
It was conceded by the first respondent that the length of the delay, being one day, was not substantial, and that there is no relevant prejudice to the Minister.
The first respondent submitted that if the applicant is purporting to plead ignorance, without further justification, that is not a satisfactory explanation for delay, especially for a litigant who was represented at the time the Application was lodged: (see; SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [38] per Foster J). Additionally, the applicant has the onus of making proper inquiries as to any applicable time limit, including the time by which documents may be accepted for filing on a business day: (see; SZLIH v Minister for Immigration and Citizenship [2009] FCA 108 at [33] per Cowdroy J; Duwai v Minister for Immigration and Border Protection [2014] FCA 1141 at [7] per Edmonds J).
It was submitted on behalf of the first respondent that the matter of delay should be weighed against a grant of an extension of time.
The first respondent’s contention regarding the extension of time is that the Court should refuse to grant the application for an extension of time on the grounds that the amended application is weak.
SHOULD AN EXTENSION OF TIME BE GRANTED
The delay, if there really is one, is minor, which is explained. There is no prejudice to the Minister.
However, it is well-settled that the most critical factor for consideration when determining whether an application for an extension of time will be granted, is whether the proposed application for judicial review has any merit.
The question before the Court is whether the grounds are ‘arguable’, ‘reasonably arguable’, ‘sufficiently arguable’ or has ‘reasonable prospects of success’: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63] per Mortimer J.
The applicant here advances one ground of review in his Amended Application dated 29 February 2024 as follows:
Ground 1
The Tribunal committed jurisdictional error in that it found that the applicant was not a homosexual and that he has not had a homosexual relationship in Malaysia with a person called Dan, and that he was not harmed in Malaysia, by using a flawed credibility assessment process which failed to understand the applicant’s unique case presented by the applicant’s evidence given in its context in a linguistically difficult, culturally alien environment and also in an environment which is insensitive to the sufferings and difficulties usually encountered by same sex persons, and therefore its findings were not open, or that it was unreasonable for the Tribunal to make those findings.
Particulars
(a)At CB179 [73] the Tribunal made conclusionary adverse credibility findings against the applicant.
(b)The Tribunal had dealt with the following credibility findings unreasonably:
(i)At [64] the finding of inconsistency between what he said in his written claims and later in his oral evidence, about the dates and the duration of the relationship and when he realised, that he was gay;
(ii)At [65] the finding of inconsistency in evidence about the nature of the beating and threats he experienced;
(iii)At [66] the finding of vagueness about the progress of his homosexual relationship with Dan;
(iv)At [67] adverse finding about how he felt when he realised he was gay;
(v)At [68] how it used adversely his absence of homosexual relationship in Australia and whether he disclosed to anyone of his homosexuality;
(vi)At [69] a finding of inconsistency in evidence about his relationship with his family;
(vii)At [70] a finding of inconsistency about dates of events; and
(viii)At [72] how it used the fact that the applicant did not disclose to the Department about his fear due to homosexuality when he was detained.
The parties agreed to proceed to determine the substantive application as that would determine the extension of time.
SUBSTANTIVE JUDICIAL REVIEW APPLICATION
In opening submissions, Counsel for the applicant stated that the foundation of the applicant’s case is that he was harmed, and he will be harmed in Malaysia because he is a homosexual.
Pointing to the Tribunal’s decision at [73] of its reasons, Counsel for the applicant submitted that once the Tribunal formed the opinion that the applicant was not a homosexual the applicant’s case was doomed because all of the protection claims appeared to the Tribunal as manufactured. Paragraph [73] is as follows:
73.Overall, the Tribunal has formed the view that the numerous inconsistencies about significant issues cast serious doubt on the applicant’s claims to be homosexual and to have been in a homosexual relationship with Dan in Malaysia. The Tribunal does not accept these claims. It has formed the view the applicant has manufactured claims to be homosexual and to have had a homosexual relationship with Dan for the purpose of making a protection visa application. It does not accept he will identify as homosexual or have homosexual relationships if he returns to Malaysia.
Counsel for the applicant submitted that, in forming its opinion that the applicant was not homosexual, the Tribunal’s decision was unreasonable and illogical. Counsel submitted that jurisdictional error arose because the state of non-satisfaction underpinning its decision was not reached lawfully as it was based on findings by inference not supported by logical grounds, and secondly, by the Tribunal’s miscommunication and misapprehension of the evidence.
Counsel submitted that the Tribunal made adverse credibility findings about every aspect of the claims made by the applicant, construing everything against the applicant, with no flexibility or understanding shown for any aspect of the applicant’s case. It is said by the applicant that this is the critical aspect that satisfied the criteria that no rational or logical decision maker could have concluded and that other rational or logical decision makers could have found adverse credibility findings on some matters, but none would have found adverse credibility findings of every claim made by the applicant.
ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The Tribunal’s reasons are over 15 pages and spans 83 paragraphs.
At paragraphs 3 to 21 of its reasons, the Tribunal records the applicant’s background and claims.
Under the heading “Hearing on 11 October 2019”, paragraphs 22 to 54 summarise the evidence the applicant gave during the hearing before a Senior Member of the Tribunal.
Paragraphs 55 to 59 of the reasons record the criteria for the issue of a protection visa.
At paragraphs 60 to 79 in its reasons, under the heading “CONSIDERATION OF CLAIMS AND EVIDENCE” the Tribunal stated (at [62]):
62.As set out in the delegate’s decision record, provided to the Tribunal by the applicant, there are number of inconsistencies in the applicant’s evidence. In the circumstances of this case, the Tribunal finds that those inconsistencies raise significant concerns as to whether the applicant’s claims are genuine. Having considered all of the evidence before it, for the following reasons, the Tribunal does not accept that the applicant is homosexual or that he has had a homosexual relationship in Malaysia, or Australia, or that he was beaten or threatened because of his sexual orientation or relationship in Malaysia, or Sikhism, or that he has a well-founded fear of persecution in Malaysia for one or more of the 5 reason set out in the Act.
At paragraph [63] of its reasons, the Tribunal noted that from time to time the applicant has explained inconsistencies by stating that there must have been interpretation mistakes. I will deal with this separately below.
It then gave eight reasons for the conclusion expressed at [62]. All of those reasons are separately challenged by the applicant, and I will deal with them in turn.
The finding at [62] led the Tribunal to reject every material aspect of the applicant’s narrative about his homosexuality in Malaysia, and about what happened to him as a consequence, which formed the foundation for his claims for protection.
At [73] the Tribunal summarised its view:
73.Overall the Tribunal has formed the view that the numerous inconsistencies about significant issues cast serious doubt on the applicant’s claims to be homosexual and to have been in a homosexual relationship with Dan in Malaysia. The Tribunal does not accept these claims. It has formed the view the applicant has manufactured claims to be homosexual and to have had a homosexual relationship with Dan for the purpose of making a protection visa application. It does not accept he will identify as homosexual or have homosexual relationships if he returns to Malaysia.
I will consider the eight particulars in the order they were presented in the Amended Application. After having done so I will address the materiality of the errors together.
INCONSISTENCIES IN EVIDENCE
Written Evidence – the Statutory Declaration
Before considering the particulars, it is necessary to say something about what is referred to by the Tribunal as “the written evidence” – a document titled “Statutory Declaration” signed by the applicant, dated 21 June 2019 and submitted with his protection visa application on 27 June 2019.
The Statutory Declaration of 34 numbered paragraphs is in English. It contains in script the last name of the applicant at the bottom of each page. This is presumably the applicant’s signature. There is no translation jurat at the foot of the document. There is no evidence the declaration was observed by a person prescribed for the purposes of the Statutory Declaration Act 1959 (Cth). It is dated on the last page. There is no evidence it was translated to the applicant before he signed it.
The Tribunal says this at [63]:
63.The Tribunal notes that from time to time the applicant has explained inconsistencies discussed below by stating that there must have been interpretation mistakes. It is prepared to accept that there might have been some difficulties arising from the use of a telephone interpreter during the detention interviews. However it notes that when it asked the applicant at the commencement of the hearing if his written statement made with his visa application was correct, he claimed that everything in the statement was true. Despite this his oral evidence to the Tribunal was clearly inconsistent with a number of those written claims. Overall while the Tribunal accepts that there might have been the occasional inconsistency arising because of an interpretation mistake, it does not accept that interpretation problems have been the cause of all of the inconsistencies in his case. It also notes the applicant has not made submissions about particular interpretation errors such that the Tribunal is prepared to accept they explain the problematic nature of his evidence, discussed below.
[Emphasis added]
The Tribunal then records the ‘problematic nature’ of the applicant’s evidence in eight discreet areas at paragraphs [64] to [72]. Of these eight areas, paragraphs [64], [65], [68], [69] and [70] reference the applicant’s written statement.
At paragraph [64] of the decision, the Tribunal formed the view that:
64. … the applicant was genuinely in a long-term homosexual relationship in Malaysia, he would remember the particulars of that relationship, or at least be reasonably consistent in his claims. The Tribunal finds it concerning that the applicant’s evidence regarding these claims is so inconsistent to be vague.
One of the points of comparison made by the Tribunal in drawing this “inconsistency” in paragraph 18 of the Statutory Declaration where the applicant states “My attraction to males first developed at the age of 14…”. During the Tribunal hearing the applicant denied saying that and said, “the 14 is wrong”. At paragraph 20 of the Statutory Declaration the applicant states he was in a relationship with a Muslim man which lasted approximately 10 years. Before the Tribunal the applicant states “... this thing about the years is wrong”. The applicant’s oral evidence concerning the duration of the relationship in the protection visa interview and before the Tribunal was four to five years.
At paragraph [65] of the decision, the Tribunal noted “the applicant’s evidence regarding beatings is inconsistent”, referring to the applicant’s evidence in writing where he indicated that he had been beaten “numerous times” and the clarification by Mr Chand that the applicant had been beaten once but had received numerous threats. The Tribunal formed the view that “these inconsistencies” concerning the number of times he was beaten and the threats, “cast serious doubts” on the applicant’s claim to have been beaten because of a relationship with Dan. The applicant’s oral evidence regarding beatings both in the protection visa interview and before the Tribunal was that he had been beaten once.
At paragraph [68] of the decision, the Tribunal referred to the applicant’s claim in his written application that he had not fully come out in Australia and “continues to conceal his sexual orientation from family and friends”. In his Statutory Declaration he did not say that he continues to conceal his sexual orientation from family and friends. He said at [25]:
25.Although I remain a homosexual man, I have not fully come out and continue to conceal my true sexual orientation amongst my family and relatives.
Mr Chand, the migration agent appeared for the applicant at the Tribunal hearing on 11 October 2019. Early on in the Tribunal hearing, the Tribunal Member inquired from the applicant who had made the statements about his claims in his visa application.
The Tribunal Member took the applicant to his statutory declaration and requested he confirm that the signature was his. Which he did. It was confirmed that Mr Chand had helped the applicant with his statutory declaration, that Mr Chand does not speak Punjabi, and that when the applicant gave his statement to Mr Chand, he gave it in English.
The applicant stated that he did not have very good English. The Tribunal Member asked the applicant if everything in the statement was true. The applicant is recorded to have responded “yes”.
This is the exchange:
SENIOR MEMBER: When I ask you a question if you don’t know the answer, just say I don’t know, but it’s me that you’re talking to today not your representative. Okay? And if you think you need to get the answer from your representative I’m not sure why that would be the case, but you tell me I think I need to talk to my representative. Okay? Who wrote your statutory declaration that you gave with your visa application? You gave a statement with your statutory declaration.
INTERPRETER: I gave the case manager, the case manager did that.
SENIOR MEMBER: The case manager wrote it?
INTERPRETER: No. No. No. They were asking me questions.
SENIOR MEMBER: All right. And so the information was put in a – came from you. Is that right?
INTERPRETER: I applied for the visa and they took the interview.
SENIOR MEMBER: Okay. So you provide evidence with the visa application. You made statements about your claims. Who prepared those written statements?
INTERPRETER: I did. My lawyer did.
SENIOR MEMBER: Your lawyer did. Is that Mr Chand who’s present today?
INTERPRETER: Yes. Yes.
SENIOR MEMBER: And did you talk to him in English or in Punjabi?
INTERPRETER: I don’t know much English. I know little, but I have a brother in the UK. I talk to him.
SENIOR MEMBER: When this statutory declaration was prepared to go with the visa application it’s written in English. Is that your signature there?---(Indistinct.) Did somebody read that to you before you signed it?---Yes. Yes. They did. Did they read it in English?---Yes. Yes.
INTERPRETER: When I did the visa application, even then I had a Punjabi interpreter.
SENIOR MEMBER: Right. And was it Mr Chand who helped you write that statement?
INTERPRETER: Do you speak Punjabi?
MR CHAND: No.
SENIOR MEMBER: So it was done in English?
MR CHAND: It was in English.
SENIOR MEMBER: With an interpreter?
MR CHAND: I got instructions from the client in English.
SENIOR MEMBER: Did you? Right. So Mr Chand says he got your instructions in English. Was an interpreter present?
INTERPRETER: Yes.
SENIOR MEMBER: Okay.
MR CHAND: Not at the time (indistinct words).
SENIOR MEMBER: Not at the time?
MR CHAND: Instructions.
INTERPRETER: When I applied for the visa I had a Punjabi interpreter then as well.
SENIOR MEMBER: When you filled out the form?
INTERPRETER: Yes
SENIOR MEMBER: Okay. But when you gave your statement, when you told Mr Chand about your claims he says you told him in English. Is that right?
INTERPRETER: But I don’t have much good knowledge of English.
SENIOR MEMBER: Is everything in that statement true?
INTERPRETER: Yes. The one that I gave first, yes.
[Tx 4.33 – 6.9]
This was a later exchange between the applicant and the Tribunal:
SENIOR MEMBER: ‘I have opted to have covert homosexual relationships in Australia since 2006. I have had multiple sort term sexual relationships with men’. You signed it, sir. It was prepared with the assistance of – you’re a lawyer, aren’t you?
MR CHAND: Yes.
SENIOR MEMBER: All right. So, an officer of the court admitted to the Supreme Court has assisted you with this. I have no reason to believe he would have fabricated this.
INTERPRETER: I don’t know. I didn’t see that thing, it was done via phone.
[Tx 43.21 – 43.31]
At the time of the hearing before the Tribunal, with respect to the Statutory Declaration, the Tribunal knew or ought to have known:
(a)The Statutory Declaration was in English;
(b)The language spoken by the applicant was Punjabi;
(c)The applicant is unable to read or write in English;
(d)The Statutory Declaration was drawn by the applicant’s migration agent over the telephone, in English, without an interpreter;
(e)The Statutory Declaration contains no evidence that the declaration was observed by a person prescribed for the purposes of the Statutory Declaration Act 1959 (Cth);
(f)There was no evidence the applicant read and understood the Statutory Declaration; and
(g)In a number of critical respects, the Statutory Declaration was inconsistent with the applicant’s oral evidence given at both the protection visa interview and before the Tribunal.
At paragraph [63] of its Reasons, the Tribunal noted that from time to time the applicant explained inconsistencies in his evidence by stating that these must have been interpretation mistakes. This is not strictly true. This ignores the clear evidence as to the circumstances of the preparation of the Statutory Declaration. What is clear is that the instructions for the Statutory Declaration were given by the applicant in English to his migration agent. The Tribunal having the applicant then affirm if this written statement was correct, absent ensuring that the statement had been translated to the applicant, goes nowhere to “cure” the obvious unreliability of the Statutory Declaration.
The Tribunal was clearly aware of the circumstances of the preparation of the Statutory Declaration. It was aware that the applicant stated that he did not see the document as it was done by phone; that it was not prepared by him, but by his lawyer; that it was prepared in English in circumstances where he had limited English skills; that it was not translated to him. At the early stages of the Tribunal hearing, the Senior Member, despite being made aware of the circumstances of the preparation of the written statement, sought from the applicant his agreement that everything in the statement was true, which he gave. However, the statement was not translated to him before he gave that agreement. It is reasonable to assume that if he was aware that his written application contained incorrect information, such as the duration of the relationship, he would not have agreed that the written statement was true.
I will further consider the circumstances of the preparation of the Statutory Declaration later in these reasons.
RELEVANT LEGAL PRINCIPLES
The task for this Court is to review the lawfulness or legality of the Tribunal’s decision. The Court does not consider the merits of the decision, and it is not able to remake the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [17]. The merits of the applicant’s claims are for the repository of the relevant power alone (in this case the delegate and the Tribunal): Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
Relief can only be granted to the applicant if he establishes that the Tribunal’s decision is affected by jurisdictional error. The High Court recently explained jurisdictional error in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 (“LPDT”) at [2] as a “breach of an express or implied condition of a statutory conferral of decision-making authority” such that “it is “in law … no decision at all” and is in that sense “void””. The High Court noted jurisdictional error can take many different forms and that the categories are not closed. Examples of breaches by a statutory decision-maker of a condition in making a decision were identified by the High Court at [3] as including; misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; failing to observe some applicable requirement of procedural fairness.
By his eight particulars, the applicant contends jurisdictional error in that the Tribunal made adverse credibility findings against the applicant unreasonably.
The principles applicable to determining whether there has been jurisdictional error in respect of an impugned finding on credit were summarised by the Full Court (Kenny, Kerr and Perry JJ) in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 (“DAO16”) at [30]:
30. …
(1)While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146 (CQG15) at [37]–[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration & Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2)Without derogating from the case specific nature of the inquiry, 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 (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:
135.… 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 decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(Emphasis added)
(3)By way of example, in SZRKT at [78], Robertson J considered that 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. Furthermore, as Flick J explained in SZVAP v Minister for Immigration & Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]narranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].” Equally jurisdictional error may 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”: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].
(4)Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical, or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration & Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:
56.An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…
(citations omitted)
(5)A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]–[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “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” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].
In AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 (“AVQ15”) at [27] the Full Court made a number of statements of principle concerning the use of inconsistencies in an asylum seeker’s evidence in assessing the person’s credibility.
The Full Court observed that a decision-maker is entitled to rely upon inconsistencies in assessing a visa applicant’s credibility, but it is important that the process be conducted fairly and reasonably, taking into account that the assessment of the reliability and credibility of accounts given by asylum seekers is well recognised as involving a number of particular features and considerations and calls for a careful and thoughtful approach. Differences in accounts may arise from the kinds of factors to which the Full Court referred in AVQ15 at [24] and [25]. Appropriate attention has to be given by a decision-maker to all relevant material in making a finding of inconsistency which then underpins an adverse credibility assessment [26].
Further, the Full Court observed at [27], the term ‘inconsistency’ should be used with appropriate caution and an appreciation of the danger of using labels or formulae which mask of the need for deeper analysis.
The Full Court said this at [28]:
28.Thirdly, even where it is reasonably open to find that a person has given inconsistent evidence, the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it. This requires consideration of, for example, the significance of the inconsistency having regard to the person’s case as a whole and whether the inconsistency is on a matter which is central to the person’s case or is at its periphery and involves an objectively minor matter of fact. It also requires the decision maker to remain conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given. Consideration should also be given to whether there is an acceptable explanation for the person having given inconsistent evidence such that the fact of the inconsistency should attract little, if any, weight.
Their Honours summarised the general principles guiding judicial review of adverse credibility findings at paragraph [41], in the following terms:
41. …
(a)The issue whether or not an administrative decision is affected by jurisdictional error requires a careful examination of the relevant statutory framework, with a particular emphasis on provisions which determine the decision-maker’s powers, procedures, functions and obligations.
(b)While findings as to credit are generally matters for the administrative decision-maker, they may be amenable to judicial review on several grounds including legal unreasonableness, reaching a finding without a logical, rational or probative basis, failure to perform the required statutory task of review, and failure to take into account material critical to the formation of the requisite state of satisfaction.
(c)Whether or not a credibility finding is affected by jurisdictional error is a case specific inquiry, and should not be assessed by reference to fixed categories or formulae. Merely because a decision-maker has ignored “relevant material” does not always give rise to jurisdictional error in the present context. The importance or cogency of the material, its place in an assessment of the appellant’s claim and in the performance of the statutory task are matters of fundamental importance in a protection visa case. Those matters inform an assessment of the seriousness or gravity of the error.
(d)Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result (such as, for example, where it is but one of several findings that independently may have led to the ultimate decision).
(e)Merely because there is no reference in the decision-maker’s reasons for decision to particular material does not necessarily give rise to an inference that the material was not considered. Nonetheless, in the case of the Tribunal, which is required by s 430 of the Act to make a written statement setting out its reason for decision and its findings on material questions of fact, and to refer to the evidence on which such findings were based, a failure to refer to evidence that on its face bears on a finding may indicate that that evidence has not in fact been considered and, in some cases at least, disclose jurisdictional error in the decision-making.
(f)Considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review.
(Footnote omitted).
See also the relevant principles summarised in ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271 at [39] – [45]; AWU16 v Minister for Immigration and Border Protection [2020] FCA 513 at [19] and CBY15 v Minister for Immigration and Border Protection [2020] FCA 878 at [85] – [87].
I adopt the approaches set out in those decisions in the resolution of this application.
In order to properly assess the fact-finding process embarked upon by the Tribunal, although lengthy, it is convenient to reproduce in full the dispositive paragraphs of the Tribunal’s reasons the subject of the particulars of the ground of review and also to reproduce the accounts given by the applicant from the relevant parts of his written evidence, the delegate interview and the Tribunal hearing.
CONSIDERATION
Particular (i): At [64] the finding of inconsistency between what he said in his written claims and later in his oral evidence, about the dates and the duration of the relationship and when he realised that he was gay.
Paragraph [64] of the reasons is as follows:
64.First, the Tribunal finds the applicant’s evidence regarding his first awareness of his attraction to men to be inconsistent. In his written application he indicated that he first developed an attraction to men at age 14. In his oral evidence to the delegate he indicated that it was in 2000 2001 (age 25 or 26), although he also said it was when he was 28 or 29. He indicated to the Tribunal that it was when he was 26 or 27 and it was while he was working on the farm. In his written claims he indicated that he was in a relationship with Dan for 10 years. In his oral evidence to the delegate he indicated that he was in the relationship for 4 ½ years. However, he told the Tribunal that he first met Dan in 2004 2005 and they had a sexual relationship for 4 or 5 years. He then indicated that he met him in 2004. He clarified later and indicated he met him when he was 25 or 27 (2000 2002) but also indicated that he met him when he was 24 or 25, or 26 or 28. When it was put to the applicant that his evidence about meeting Dan and the duration of the relationship was inconsistent, he merely indicated that it was a long time ago. The Tribunal is of the view that, if the applicant was genuinely in a long-term homosexual relationship in Malaysia, he would remember the particulars of that relationship, or at least be reasonably consistent in his claims. The Tribunal finds it concerning that the applicant’s evidence regarding these claims is so inconsistent to be vague …
Paragraph [64] of the reasons highlight purported inconsistencies of the applicant’s evidence as to the dates concerning his first awareness of his attraction to men, when he first met Dan and the duration of his relationship with Dan. The Tribunal made an adverse credibility finding against the applicant because it was of the view that if the applicant was genuinely in a long-term homosexual relationship in Malaysia, he would remember the particulars of that relationship or at least be reasonably consistent in his claims.
I have referred earlier in these reasons to my concern with respect to any reliance upon or weight to be attributed to the applicant’s Statutory Declaration. Those concerns are equally applicable here.
This is what is recorded in the in the Statutory Declaration:
18.My attraction to males first developed at the age of 14, however given the extremely conservative views towards homosexuality, I feared coming out. All accusations of homosexuality that were made against me were strenuously denied.
…
20.Despite my fears of coming out I maintained a covert homosexual relationship with a Muslim man named Dan Mohamad, which lasted approximately 10 years.
In the delegate interview the applicant gave this evidence:
(a)With respect to how long he and Dan were together:
Q&A 59 … four and a half years
Q&A 70 … 4-5 years
Q&A 109 … more than 4.5 years
(b)With respect to when he was attracted to men:
Q&A 113 … 2000,2001
Q&A 114 How old were you then? Twenty-nine, twenty-eight, 2000. 2001, 2002, 2001
Q&A 115 – I think I forgot (indistinct) but it was long time now and I don’t remember.
Q&A 116 …When I was around 28 or 29.
Q&A 128 …when you fell in love with Dan, is that the first time you realised that – that you liked men? Yes
In the Tribunal hearing the applicant gave this evidence:
(a)With respect to how long he and Dan were together:
SENIOR MEMBER: Did you actually ever have a sexual relationship with Den?
INTERPRETER: yes. For (sic) or five years. Yes
[Tx 23.19-23.22]
(b)With respect to at what point in his life he thought he was a homosexual:
SENIOR MEMBER: At what point in your life did you think I’m a homosexual? …26, 27 [Tx20.7]
(c)With respect to when he met Dan:
SENIOR MEMBER: And when did you first meet him? It’s been a long time but 2004, 2005 [Tx 22.20]
SENIOR MEMBER: Well you’ve given different dates. In the written application you said that you were in a relationship with Dan for 10 years. In your evidence to the delegate it was four years. Today you told me you met him in 2004-2005. But you came to Australia in 2006. So the longest you could have been with him was two.
INTERPRETER: I’m not saying 2004 2005. I’m just saying I met him when I was 25-26 years old – 25-27 years age time.
[Tx 37.41]
SENIOR MEMBER: All right. So the delegate set out some inconsistencies in your evidence. The delegate noted that in your written claim you claimed to first be attracted to men when you’re about 14. However, in your oral evidence to the delegate you said it was around the time of 25 or 26. In your written claims you claim to have---
INTERPRETER: The 14 is wrong. I never said that.
SENIOR MEMBER: Okay. He said in your written claims that you are in a relationship with Dan for 10 years. In your oral evidence to the delegate you indicated that it commenced in about 2000 2001. Have you got any comment about that inconsistency?
INTERPRETER: Okay, the 2001 is wrong. Okay, this thing about the years is wrong. I said like the ages between 26 and 28.
SENIOR MEMBER: So you’re saying now 26 and 28.
INTERPRETER: So I didn’t tell them about Dan. I don’t know where they got the 2001 from. And I’ve said 25 to 27 years.
SENIOR MEMBER: So when you say 25 to 27 years, is that the period of the relationship or is that when you met him?
INTERPRETER: It was my age, 26-27-26 to 27, that’s the age when I met him. But the memory-I don’t have much memory because I can’t find all the details and give you.
SENIOR MEMBER: …
INTERPRETER: I wasn’t in 2004 2005, I was saying 25-24-25.
SENIOR MEMBER: 24-25 now. Now we’ve got-now today we’ve got 24-25. We’ve also got 26-27 and we’ve also got 26-28. So there’s a big difference. When I’m asking ---
[Tx40.37 – 41.40]
Applicant’s submissions
Counsel for the applicant referred the Court to Sundararaj v Minister for Immigration & Multicultural Affairs [1999] FCA 76 at [5] where Burchett J said as follows:
5.Although, in this case I have concluded that the central question of the credibility of the applicant’s story, including the importance of his demeanour, must have ultimately dictated the decision, and that no error of law actually affected it, I think in the circumstances the applicant was well entitled to seek the only form of review open to him. The Tribunal should understand that any rational examination of the credit of the story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
Counsel for the applicant submitted that it may be expected that when in a Tribunal hearing an applicant may change evidence, it would be to bolster their case, but in this applicant’s case, the evidence he was providing was weakening his case, because it was the truth.
Counsel for the applicant submitted with respect to the Tribunal being particular about dates and submits that this should not be about memory, it should be about the sequence of events rather than the years. Counsel submitted that the Tribunals significant focus on the inconsistencies with the dates was unfair given the events occurred many years ago.
Counsel referred the Court to the Tribunal Migration and Refugee Division Guidelines on the Assessment of Credibility which provides that the Tribunal should consider the overall consistency and coherence of an applicant’s account.
Respondents’ submissions
The solicitor for the respondents submitted that it was not legally unreasonable for the Tribunal to rely upon the inconsistencies to find that the applicant was not a credible witness.
Resolution
At paragraph [64] of the Tribunal’s decision, the Tribunal forms the view that if the applicant was genuinely in a long-term homosexual relationship in Malaysia, he would remember the particulars of that relationship or at least be reasonably consistent in his claims. The Tribunal was concerned about what it labelled as “inconsistencies” in the applicant’s evidence concerning:
(a)The date the applicant developed an attraction to men; and
(b)The duration of the relationship with Dan.
With respect to the date he developed an attraction to men, the Tribunal drew as a point of comparison what was stated in the applicants Statutory Declaration, that he developed an attraction to men at “the age of 14”. This statement was then compared with the applicant’s oral evidence given both to the delegate (25 or 26; 28 or 29; when he fell in love with Dan) and to the Tribunal (26/27).
As referred to earlier in these reasons [52], the applicant strongly disavowed that he said he first developed an attraction to males at the age of 14. He said, “The 14 is wrong”. Any finding of inconsistency had to take into account what the applicant said to the Tribunal about the circumstances of the Statutory Declaration.
There was no assessment by the Tribunal of the nature of the inconsistency. There was no consideration given by the Tribunal to the circumstances of the Statutory Declaration such that the fact of the inconsistency may be explained. The evidence given in the protection visa interview and before the Tribunal reflect a reasonable consistency of evidence such that if the evidence in the Statutory Declaration was given limited or no weight a finding of inconsistency of evidence may not have been available.
It was unreasonable for the Tribunal to rely upon what was recorded in the Statutory Declaration as a point of comparison in light of what was known about the preparation of the Statutory Declaration and that the applicant had strongly disavowed the accuracy of the document in crucial respects.
Similarly, with respect to the applicant’s evidence concerning the duration of the relationship with Dan, the Tribunal drew as a point of comparison what was recorded in the Statutory Declaration – that he was in a relationship with Dan for 10 years. This statement was then compared with his oral evidence to the delegate (four and a half years; four-five years; more than four and a half years) and his evidence before the Tribunal (four or five years; that he first met Dan in 2004 or 2005). Again, when what was contained in the Statutory Declaration was put to the applicant by the Tribunal, the applicant said “Okay, this thing about the years is wrong”.
The Tribunal gave no assessment of the weight to be given to what was recorded in the Statutory Declaration. This the Tribunal did not have regard to the circumstances of the preparation of the Statutory Declaration to consider if there was a reasonable explanation for the inconsistency and to consider whether or not the fact of the inconsistency should attract little if any, weight.
If the evidence contained in the Statutory Declaration was discounted and regard was had by the Tribunal for the applicant’s case as a whole, the applicant’s evidence on three separate occasions was he told the delegate he was in a relationship with Dan for four and a half, four-five years, four and a half years, he told the Tribunal “four or five years” – that he met Dan in his mid to late 20s and they had a relationship for four-five years.
Particular (i) succeeds.
Particular (ii): At [65] the finding of inconsistency in evidence about the nature of the beating and threats he experienced.
This ground is directed at the Tribunal’s finding of ‘inconsistency’ in evidence casting serious doubt on the applicant’s claim to have been beaten because of a relationship with Dan.
Paragraph [65] is as follows:
65.Second, the Tribunal notes the applicant’s evidence regarding beatings is inconsistent. In writing he indicated that he had been beaten numerous times. This was clarified by the representative at the end of the interview when he told the Department that the applicant had only been beaten once but had received numerous threats. The Tribunal notes however that the applicant’s evidence regarding the threats is inconsistent. He initially told the Tribunal that he’d been threatened once or twice but later told the Tribunal had been threatened 4 or 5 times. The Tribunal also notes that in his written statement he claimed to have reported the beatings to the police but to no avail. However in his oral evidence he claimed that his mother advised him not to report to the police, to explain why there is no police report. The Tribunal also notes that when it asked about the timing of the beating he indicated it was in 2006 or 2007 but also when he was 26 or 27 (2001 or 2002). The Tribunal is of the view these inconsistencies cast serious doubt on his claim to have been beaten because of a relationship with Dan.
In the Statutory Declaration the applicant gave this evidence:
Persecution on account of my Sikh identity:
12.It is a well-established fact that Sikhs and other religious minorities in Malaysia have been subjected to persecution at the hands of the majority Muslim population.
13.In my case, I have been targeted by Muslim gangs in my area. They targeted me on account of the fact that I am a Sikh and have subjected to numerous beatings including incidents where I was stabbed and cut during knife attacks.
14.I still bear the scar of these knife attacks all over my body.
15.Reporting such incidents to the local police would have been to no avail given the fact that they remained largely indifferent to sectarian motivated violence. It is also a well-known fact that the local police in Malaysia usually try to avoid confronting hardline Muslims for fear of further fuelling sectarian strife.
16.Over many years I was subjected to ongoing violence at the hands of these Muslim gangs, and my situation was made even worse by the fact that I was suspected of being a homosexual.
In the delegate interview the applicant gave this evidence:
Q 44.
A… I had to leave that way because the Muslim gangs were after me and they (indistinct).
…
Q 46.
A… because I was fearful about my life,
Q 57.Okay. Now, in your claims you mentioned being attacked by Muslims in your area, can you tell me about the first time this happened?
ASo it was in 2005.
Q 58. M’mm, and what happened?
ASo I was having a Muslim boyfriend - - -
Q 59. M’mm. But you mentioned you were attacked, what - tell me about what happened, from the beginning to the end?
AHe’s says that I was having a boyfriend and I had a relationship with him four and a half years and when his family, that family is Muslim family and they are – they were - they are from Pakistan and when they came to know that we have a relationship they were against our advances and they had – they had fights with my family. They attacked me to my family. They came to my place.
Q 60.We'll talk about that in a little while but did you say, in your claims, that you were attacked because you were a Sikh, by people with knives?
AYes.
…
Q 64.Sure, but what – tell me about the time – you – you said something, you were attacked by Muslims with knives, can you tell me about that?
AOkay. Okay, so around 8.30, 9 o’clock in the nighttime and I was going and it – it was dark and I was passing in the village.
Q 65.M’mm.
ASo then I was going but the (indistinct) they stopped me.
Q 66.They stalked you, did you say? Ah, stopped you.
AStopped me, yes.
Q 67.Stopped you, yes, and then what happened?
AOkay. There was people, four or five people, they surrounded me, they attacked me with a knife and they told me that if you again see my cousin, cousin being Mohammad(?), then you will have – you will have it, they (indistinct) and they attacked me four or five times and they - and I was down on the floor, and bike got on me, and they thought that I'm no longer alive and they left. But there were people, other people, who were passing by, they saw me there and they took me to the hospital, (indistinct) hospital.
Q 68.Okay. Did this happen in your village?
ANo, it is 3 or 4 kilometres away from my village.
Q 69.Okay. What year did this happen, or when did it happen?
ASo he’s saying now I've forgotten, it was around, in the month of March or April 2005.
Q 70. Okay. And these people, why did they attack you?
AOkay. He’s saying because I was having a relationship with Bin Mohammad and it was continuing four and a half years and no one was aware about our relationship but when his family came to know about our relationship then they were angry and because of that, on that day they attacked on me and they told me that you shouldn't be meeting each other, you cannot go bike together, you cannot have any relationship anymore. That his why they attacked on me. Before that they gave us warning also with attack over telephone, having tea, coffee, yes.
…
Q 79.Okay. So you went - so - how many times were you attacked like this? Just once or many times?
AOkay, one or two times then (indistinct) and given me warnings.
Q 80.Yes?
AOver the telephone.
Q 81.Okay. And - and how many times were you attacked or hurt?
AOnly one time.
…
Q 87.Okay, hang on. So I'm a bit confused because in your written application you say that you were attacked many times, but today you're saying you've only been attacked once, is that right?
AOkay. Many times they were threatening over the telephone. So we were having coffee at that time, they threatened me and over the telephone also.
Yes.
…
Mr Chan, would you like to add anything?
AGENT: Yes, I believe (indistinct) to clarify the reason for the attack was a dual (indistinct). One, he was a homosexual man having an affair or having a relationship with Dan Mohammad, so he was attacked by associates of Dan Mohammad's family. They disapproved of him being both gay and - as well as a Sikh man. So it wasn't attacked just because he was Sikh but because he was a Sikh homosexual man. Dan Mohammad's family wanted their son to marry a Muslim girl or, rather, a Muslim man, as opposed to a Sikh man, and that's the reason for the attack, just to clarify.
INVESTIGATOR: No, that's fine, I actually ended up jotting down here, both reasons, or dual reason, so that's fine. Sure. Anything else?
AGENT: The other issue is the reason for not reporting to the police in Malaysia is because there are laws against – there is a lot of discrimination against gays in Malaysia, especially by the police and there is country evidence that suggests that there is persecution or prosecution against gays as well.
INVESTIGATOR: Sure. Okay, I'll make that - - -
AGENT: (Indistinct).
INVESTIGATOR: All right, that's fine. Sure. Anything else?
AGENT: That's it, to clarify it.
INVESTIGATOR: Okay. Interpreter you - - -
AGENT: Sorry, the other thing was, the reference in the statement to the (indistinct) impacts was actually a reference, sorry, to there was one incident of this attack, which was followed by scars and stiches on the photos that we'll send through, but the other references to the attacks was - sorry, references to threats, rather than a physical altercation, threats to the family members and threats to the applicant's life.
In the Tribunal hearing this was the exchange:
…
INTERPRETER: They’re very bad people. Our religions don’t go together either.
SENIOR MEMBER: So when was it that they cut you and attacked you?
INTERPRETER: Before I came here.
SENIOR MEMBER: That’s a very vague answer, sir. Before you came here. You came here in 2006. You were born in ‘75. So you were 31 years’ old?---32 Or 32. Okay. In that 32 years when was it that you were attacked?
INTERPRETER: When they found out.
WITNESS:2006, 2007.
SENIOR MEMBER: 2006, 2007 they attacked you.
INTERPRETER: Yes. But I could not go to the police.
SENIOR MEMBER: Okay. And so when they attacked you, was it just once or was it many times?
INTERPRETER: Once they hit me fully on my body. They beat me a lot and they left me lying there. And one or two times they threaten me verbally. And also my mother received threats from them that if her son stays here they will kill him and send his body.
SENIOR MEMBER: Okay. Well I don’t understand how you could’ve been attacked in 2007. I think you were already in Australia in 2006.
INTERPRETER: I was just saying that at that time my age was 25, 26, 27.
SENIOR MEMBER: So it happened when you were 26 or 27?
INTERPRETER: Yes. That’s right. So I was not saying 2007, Member. I was saying that my age was 26 or 27. That’s when it happened.
SENIOR MEMBER: All right. It happened when you were 26 or 27, how old were you when you came to Australia?
INTERPRETER: I think I was 31- or 32-year-old.
SENIOR MEMBER: So you stayed there for about five years after it happened.
[Tx 31.13 – 32.11]
SENIOR MEMBER: Okay. The delegate also noted that in your written claims you said you’d been targeted by Muslim gangs and subject to numerous beatings and incidents where you’d been stabbed and cut during knife attacks. You were glad to clarify that there was only one occasion when you were attacked.
INTERPRETER: I said they attacked me once and four or five times I received threats. So the it’s reported, it’s wrong.
SENIOR MEMBER: Okay. And earlier today I think you told me that you received two or three threats after you were attacked.
INTERPRETER: Yes, two, three or up to four, yes. And the times when I’m not home my mother was threatened on the phone. I can find out. It might take a long time.
SENIOR MEMBER: I’m just not sure what you mean by, ‘I can find out’. I think if you’ve been threatened you should know when you were threatened, who you were threatened by and how often you were threatened. Why would somebody else be able to tell me - - -
INTERPRETER: Okay, I have the facts when I have been attacked. Now what more can you ask? Now what more can I tell you?
SENIOR MEMBER: Well, you can – my questions have been about how often something has happened and your responses have been different. They were also clarified in the interview, you said it was numerous times that you were threatened.
INTERPRETER: I said four or five times the threats when at home. And four or five people attacked me only once.
SENIOR MEMBER: Four or five people attacked you.
INTERPRETER: Yes.
SENIOR MEMBER: When was that?
INTERPRETER: When they found out?
SENIOR MEMBER: Yes. But when was that?
INTERPRETER: Before I came here.
SENIOR MEMBER: I know that it was – I know you’ve said it was before, but when? What month and year were you attacked?
INTERPRETER: I’m a bit confused. I don’t know. Before I came here, end of 2004 end, maybe sometime in 2005. Since I’ve come here I’ve forgotten everything.
SENIOR MEMBER: So you were attacked in 2004 or 2005. Is that what you’re saying?
INTERPRETER: Yes.
SENIOR MEMBER: But you don’t really remember. Is that what you’re saying?
INTERPRETER: I don’t remember fully.
[Tx 43. 38 – 45.04]
Applicant’s submissions
Counsel for the applicant submitted that, the applicant made clear to the delegate and the Tribunal that there was only one beating and a number of threats, which the solicitor also confirmed and clarified to the delegate.
Respondents’ submissions
The respondent submitted that the applicant provided evidence that he was threatened four to five times, which is what was recorded by the Tribunal. But the applicant told the delegate that he was threated two or three times. The respondent submitted that it was open to the Tribunal to rely on the matters it had identified in finding that the applicant had manufactured his claims.
Resolution
The focus of the Tribunal inconsistencies was in four factual areas; the beatings, the threats, the reporting to the police and the timing of the beating. It is convenient to deal with these separately.
The beatings
The Tribunal refers to the Statutory Declaration which records ‘numerous beatings’. The Tribunal then refers to the clarification given at the end of the interview by the applicant’s representative that the applicant had been beaten once and received numerous threats. The Tribunal goes no further with respect to the evidence concerning the beatings.
I have referred earlier in these reason to the circumstances of the preparation of the Statutory Declaration. Those observations apply in considering the purported inconsistency with respect to the ‘beating’ evidence. Given the known circumstances of the preparation of the Statutory Declaration, the disavowal by the applicant of the accuracy of that Statutory Declaration with respect to a number of crucial factual matters relevant to his claim, the Tribunal needed to assess the significance of any inconsistency and the weight to be given to it having regard to the case as a whole, and consider whether there is an acceptable explanation for the person having given in consistent evidence such that the fact of the inconsistency should attract little if any weight (AVQ16).
In the protection visa interview the applicant clarifies on two occasions that he was beaten “only one time” (Q&A 81 and 87). During the Tribunal hearing the applicant gives evidence on two separate occasions that he was attacked once (Tx 31:37 and Tx 43:44). He says “… it’s reported, it’s wrong” referring to the Statutory Declaration (Tx 43.45). The Tribunal does not refer to this evidence. The Tribunal does not explain why the narrative given by the applicant on four separate occasions is rejected.
The Tribunal does not refer to the entirely plausible narrative given by the applicant at the protection visa interview as to the circumstances of the one attack. He says that in the month of March or April 2005 at around 8:30 or 9 o’clock in the night time, in the dark, he was stopped by four or five people who surrounded him and attacked him with a knife. This occurred three or four kilometres away from his village. The attackers told him that if he sees Mohammed again, then he will “have it”.
A reasonable fact finder would have observed the identified inconsistencies were between a version given in the Statutory Declaration and the two separate and comparable versions given in the delegate interview and the Tribunal hearing.
Only one conclusion is open on the evidence. The applicant was beaten on one occasion and to find his evidence is inconsistent because of what appears in the Statutory Declaration is, in the circumstances, irrational.
The Threats
The evidence with respect to the “threats” requires close analysis. During the protection visa interview the applicant is recorded as saying that he was threatened many times including over the telephone, and whilst having coffee. He said his brother was threatened. He said “They threatened me to my family, they had my mum’s number”.
During the Tribunal hearing when the applicant references “one or two times they threaten me verbally” he is speaking of the time when he was attacked. He says this:
Once they hit me fully on my body. They beat me a lot and they left me lying there. And one or two times they threaten me verbally. And also my mother received threats from them that if her son stays here they will kill him and send his body. [Tx 31]
The Senior Member puts to the applicant that he told him that he received “two or three threats after” he was attacked. The applicant did not say he received “two or three threats after” he was attacked.
The applicant responds; “Yes, two, three or up to four, yes. And the times when I’m not home my mother was threaten on the phone”. [Tx 44.4]
He responds when the Senior Member says “… you said it was numerous times that you were threatened” – “I said four or five times the threats when at home. And four or five people attached me only once”. [Tx 44.21]
When correcting what was contained in his written claim, the applicant said this: “I said they attacked me once and four or five times I received threats”. [Tx 43.44].
In my view the evidence of the applicant did not warrant a finding of inconsistency with respect to the threats. The applicant’s evidence was that he was threatened both verbally and over the phone before the attack – he was given “warnings”, he was threatened when he was being attacked, that his mother was threatened, that his brother was threatened. The Tribunal failed to closely consider all of the relevant evidence in this regard.
Reporting to the police
With respect to the reporting of the beatings to the police, Tribunal says this at [65]:
65.… The Tribunal also notes that in his written statement he claimed to have reported the beatings to the police but to no avail. However, in his oral evidence he claimed that his mother advised him not to report to the police, to explain why there is no police report.
The applicant did not claim in his Statutory Declaration to have “reported the beatings to the police but to no avail”. Rather, he said this:
15.Reporting such incidents to the local police would have been to no avail given the fact that they remained largely indifferent to sectarian motivated violence.
In his protection visa interview the applicant said that he could not go to the police. He explained he could not seek the police helped because his mother, his brother and his sister “… they all. So because of me they will be infected”. He said that his mother and brother told him to go away, and his sister was about to get married. He said that if he had gone to the police and he was questioned and he was required to tell the truth that he was having a relationship with the boyfriend, he would be sent to jail.
There is no inconsistency here. The Tribunal got the evidence wrong.
The timing of the beatings
It was evident from the transcript of the Tribunal hearing that the applicant had considerable difficulty recalling dates when events occurred including how old he was when events occurred. The applicant was being asked to recall events in his life many years in the past. In 2019 it was 13 years previously when he left Malaysia and 17 or18 years previously when he was in a relationship with Dan.
The applicant told the delegate that he had forgotten when the attack happened, but then said it happened in 2005. The applicant told the Tribunal that the attack happened in 2006, 2007 which was clearly incorrect in circumstances where he came to Australia in 2006. He then referred to his age at the time of 25, 26, 27. He said that he did not remember fully.
It was open to the Tribunal to find the evidence given by the applicant concerning dates of the beatings is inconsistent. However, consistent with the authorities, what the Tribunal was required to do, and what it did not do, was to assess the significance of the inconsistent evidence and the weight to be given to it requiring consideration of the applicant’s case as a whole, whether the inconsistencies are on a matter central to the applicant’s case or on the periphery and involving objectively minor factual matters. Further, consideration was also to be given as to whether there is an acceptable explanation for the inconsistency (AVQ15).
A consideration of the applicant’s case as a whole exhibits a core consistency with the applicant’s claims. The applicant realised his attraction to men in his mid-to-late 20s. He fell in love with Dan Mohammad. This was his first and only relationship. They were in a relationship for four to five years. Not many people knew of the relationship. When Dan told his family that he wanted to marry the applicant, that was when the applicant’s family was threatened and that led to the attack on the applicant. He was beaten on one occasion. Prior to the beating he was threatened on numerous occasions. When the applicant’s family learned of the relationship, the applicant was told to leave Malaysia.
In the context of the applicant’s case as a whole, the inconsistencies regarding the dates are satisfactorily explained and, in the circumstances, attract little if any weight.
I am satisfied that the Tribunal erred in its assessment of ‘inconsistencies’ of evidence.
Particular (ii) succeeds.
Particular (iii): At [66] the finding of vagueness about the progress of his homosexual relationship with Dan.
This ground is directed at the Tribunal’s findings that the applicant’s evidence of the progress of the relationship, or the relationship itself was vague and lacking in detail thereby casting doubt on his claims that he was in an intimate homosexual relationship with Dan.
Paragraph [66] of the reasons is as follows:
66.Third, the Tribunal finds the applicant’s evidence regarding the relationship with Dan to be unpersuasive. When asked to describe the progress of the relationship after meeting Dan at the café, the applicant’s evidence was vague and lacking in detail. The Tribunal is not satisfied that the applicant’s description of the progress of the relationship, or the relationship itself, is reflective of a long-term homosexual relationship. It finds the applicant’s evidence regarding the frequency of their meetings at the Ipo hotel (‘whenever’) to be highly unpersuasive. Having considered the applicant’s evidence regarding the progress and nature of the relationship the Tribunal is of the view it casts doubt on his claims that he was in an intimate homosexual relationship with Dan.
In the 27 June 2019 Statutory Declaration, the applicant gave this evidence:
20.Despite my fears of coming out I maintained a covert homosexual relationship with a Muslim man named Dan Mohamad, which lasted approximately 10 years.
21.My closeness to Dan evoked suspicion amongst his family and hardline Muslim community. I was beaten and subjected to many death threats by Muslim gains who suspected what they viewed as being a morally abhorrent relationship.
22.Despite the accusations, threats and beatings which I was subjected to a was keen to maintain my relationship with Dan. We both loved each other but knew that our relationship would one day result in the certain death of one or both of us. Dan was also subject to the same level of physical harm as I was by his relatives and community.
23.The relationships between Dan and I ended after he married a woman which was merely an effort to shed the infamy of homosexuality. I have not maintained any contact with Dan since I fled Malaysia in 2006.
In the delegate interview the applicant gave this evidence:
Q 59… I was having a boyfriend and I had a relationship with him four and a half years and when his family, that family is Muslim family and they are-they were-they are from Pakistan and when they came to know that we have a relationship they were against our advances and they had-they had fights with my family. They attacked me to my family. They came to my place.
Q 70Okay. And these people, why did they attack you?
AOkay. He’s saying because I was having a relationship with Bin Mohammad and it was continuing four and a half years and no one was aware about our relationship but when his family came to know about our relationship then they were angry and because of that, on that day they attacked me and they told me that you shouldn’t be meeting each other, you cannot go bike together, you cannot have any relationship anymore. That his why they attacked me. Before that they gave us warning also with attack over telephone, having tea, coffee, yes.
Q 107 Um, when you are living in Malaysia, did you keep it a secret that you are homosexual, or did you tell everybody?
AIt was a secret. It was secret, not many people knew it.
Q 108 Okay. Did anyone know it? Did you tell anyone?
AMany people there saw they were having coffee and going together on the bike. Other people they came to know.
Q 109 Okay. Did they know or were they just-did people just have suspicions, were they just suspicious that you are homosexual?
ABecause we were together more than four and a half years, so they knew it.
Q 110 M’mm. so if you were together for four and a half years, why-why won’t you attacked any other times? Why did it happen-start-why did it happen this one time that they attacked you, near the end?
AHe’s saying that my boyfriend, when he told his family that he wants to marry with me, so that is why they-is family get hot angry and they call my family. They threatened me to my family, they had my mum’s number, and after they-the made attack on me. They gave our-yes.
Q 111 Okay. So did you ever telling one, in Malaysia, that you are homosexual, or you kept it a secret?
AOkay. He’s saying that me and him mostly kept it secret, but his family and my relatives, they saw me they saw us together and that is why that (indistinct).
Q 112 Sure. Did you say before, he told-your boyfriend told his family that he wanted to marry you?
AYes, he told me-he told me-not to my family.
…
Q 121 Okay did you ever tell your parents or your family members that you are attracted to men?
AOkay. He’s saying, when I told my mum they were very afraid that it might become a bit issue and she told me to leave this place or you die. You eat something and you die. At that time I left that house and just started living on (indistinct).
Q 126 So when you realised that you’re attracted to Dan, your boyfriend, how did you feel when you realised you are attracted to men?
AI was happy and I was feeling okay.
Q 127 Okay. You won’t-you won’t worried that all of a sudden you felt like you are attracted to men?
AI thought I was in love with him.
Q 128 Okay. When-when you fell in love with Dan, is that the first time you realised that – that you liked men?
AYes.
…
Q 133 Okay. So-so is Dan the only person you’ve ever had any-any-ever had a relationship with, romantically?
AYes, he-yes, he was my love.
This was the exchange with the Tribunal:
SENIOR MEMBER: You went on a bike together. You were happy together. Is that all there was? Well that – I don’t know why – I thought you were in (indistinct) relationship - - -
INTERPRETER: We slept together. Yes.
SENIOR MEMBER: Where did you sleep together?
INTERPRETER: We booked a room in a hotel.
SENIOR MEMBER: And you went into the room together, and the people in the hotel saw you do that, go in together?---Yes.
Where was the hotel?
INTERPRETER: Where the address that I gave you before.
SENIOR MEMBER: Well I don’t know which one you’re talking about.
INTERPRETER: I gave you the address.
SENIOR MEMBER: Of the hotel?
INTERPRETER: This area, we knew that area. There’s everything there. There are hotels and everything there, Ipoh area.
SENIOR MEMBER: The Ipoh area. And how often did you do that? How often did you book a room in a hotel?
INTERPRETER: Whenever.
SENIOR MEMBER: Whenever. Is that your only answer, sir; whenever?
INTERPRETER: (Indistinct), Member.
SENIOR MEMBER: Okay. It’s up to you today to give me the detail you want me to take into account when I’m considering your claims. When I ask you something like how often did you do something, and you say, ‘whenever’, it may raise concerns for me. So you say your mother knew about your relationship with Den. Who told her?
INTERPRETER: His family.
[Tx 26.31-27.25]
Applicant’s submissions
With respect to having told anyone in Australia that he “liked men”, the applicant is recorded to have stated in the Tribunal hearing:
SENIOR MEMBER: Okay. So when you were interviewed by the delegate you told him that you hadn’t told anyone in Australia that you were homosexual. Is that right?
INTERPRETER: Yes.
SENIOR MEMBER: So you’ve never told anybody. Stop looking at your representative. I’m asking you. I want to know what you think about these things.
INTERPRETER: Okay, I know one person. His name is Michael(?). I’ve known him for seven years. I don’t meet him regularly. But I know him.
SENIOR MEMBER: Yes. But when you were interviewed by the delegate you said you hadn’t told anybody.
INTERPRETER: Yes. At that time I didn’t.
SENIOR MEMBER: So you hadn’t told anybody when you were interviewed by the delegate.
INTERPRETER: Yes. At that time I didn’t tell. But when I had the application for protection visa my interview was for two hours. That’s when I told everything.
SENIOR MEMBER: So is that when you told Michael, after the interview with the delegate?
INTERPRETER: I didn’t ring him. But Michael said to me, ‘Don’t worry. You tell them I have known you for so many years’.
SENIOR MEMBER: When did you tell Michael that you were homosexual?
INTERPRETER: I met Michael – I’ve known him seven years ago but I think I told him about five years ago maybe. Because he would always ask me why you haven’t got married and you haven’t got any family or kids.
SENIOR MEMBER: So you have a very clear memory of meeting Michael seven years ago. Why is that? Why do you remember you met him seven years ago?
INTERPRETER: Because I went to his house and I did a lot of cleaning and gardening for him. And he also lives in Wollongong. But we don’t meet every day.
SENIOR MEMBER: So you were asked, this is the interview with the delegate, ‘While you’ve been living in Australia have you told anyone that you like men? I have not told anyone.
INTERPRETER: That’s when Michael told me that – and Michael told me that, “I’ll give you this letter. Why are you shy? Why are you scared? Just tell them everything.
SENIOR MEMBER: Well what I’m suggesting is that you haven’t been telling the truth when you’ve been asked questions. So what is it that you haven’t told anyone or that you told Michael five years ago? Which one is right?
INTERPRETER: I told Michael. I told Michael when we was pressurising me and saying why you don’t have a wife and children.
SENIOR MEMBER: Is Michael married?
INTERPRETER: He’s a family man, yes.
SENIOR MEMBER: And what did you actually say to Michael?
INTERPRETER: I told him I can’t marry a woman.
SENIOR MEMBER: Is that all you said? I can’t marry a woman.
INTERPRETER: Yes. Then he said – he realised. Then he said to me, ‘you’re gay’. And I said yes.
[Tx 35.38 – 37.16]
SENIOR MEMBER: So was he a good friend, a close friend?
INTERPRETER: Yes. Yes, in Australia he’s my close, good friend.
SENIOR MEMBER: And you confided in him that your homosexual.
INTERPRETER: Yes. He asked me a few times, was asking me ‘why are you not married? Why you don’t have children?’ That’s when I told him that I can’t marry.
SENIOR MEMBER: So you confided in him?
INTERPRETER: Yes.
[Tx 38.5 – 38.17].
Applicant’s submissions
The applicant submitted that he does not get any benefit from telling the delegate that he had not told anyone about his homosexuality. Counsel submitted that anyone lying would not do so to their detriment and rather would do so to their benefit. Counsel submitted that the applicant may not in the spur of the moment when asked if anyone knew, remembered that Michael knew, because of how he came to know of the applicant’s homosexuality.
Counsel for the applicant submitted that the crux of the question asked by the delegate was “Have you told people about it” and not “Have you told any particular person”. Therefore, if he were asked, he would have said no, because he has not told people about his homosexuality, only one particular person due to particular circumstances.
Counsel for the applicant submitted that the way in which the communication occurred, the applicant acknowledged that he cannot marry a woman, therefore the Tribunal cannot say “you’ve disclosed that to him and now you’re coming and telling lies”. Counsel submitted that these are matters which are not critical and are being used to found an adverse credibility finding against the applicant.
Respondent’s submissions
The respondent submitted that there are various reasons as to why an applicant may have provided inconsistent answers. The respondent submitted that the information may be manufactured, which can be cause for the inconsistency in answers – which is one of the routes the Tribunal undertook. The respondent submitted that it is open to the Tribunal to rely on the inconsistency with respect to the applicant claiming that he had not advised anyone of his sexuality.
Resolution
It is tolerably clear from the Tribunal’s reasons that it mis recorded the applicant’s evidence. The Tribunal begins its consideration of the ‘fifth’ inconsistency incorrectly recording the evidence. The reasons say this: “Fifth, the applicant claimed in his written application that he had not fully come out in Australia and continues to conceal his sexual orientation from family and friends”. This is not a correct record of the written evidence in the Statutory Declaration. The Statutory Declaration reads as follows:
25.Although I remain a homosexual man, I have not fully come out and continue to conceal my true sexual orientation amongst my family and relatives.
This is not an insignificant miss recording. It is unclear if anything turns on it.
In his evidence before the Tribunal reproduced above, despite a confusing exchange, it appears that after the delegate interview the applicant spoke with Michael Ayoub and Mr Ayoub told the applicant to “Tell them everything”.
On a strict reading of the applicant’s exchange with the Senior Member, he did not tell anyone “he liked men”, or “that he was homosexual”. His evidence was that he responded “yes” when Michael Ayoub said to him “you’re gay”. He told Michael Ayoub “I can’t marry”. The applicant’s submission that he provided an indirect acknowledgement of his sexuality is correct.
However, the evidence to the delegate was that “I have not told anyone”. It was open to the Tribunal to find that there was an inconsistency in the evidence regarding disclosures about sexuality in Australia.
The Tribunal records the applicant’s evidence that he had not applied for protection in the 13 years since arriving in Australia because he did not have any friends to assist him and characterises this evidence has inconsistent pointing to Michael Ayoub being a close friend and having another close friend, Mariana, and other friends in Australia. This is illogical. Absent any evidence that Michael Ayoub or Marianna or other friends knew that the applicant did not have a visa or were in the position to assist him with respect to his migration matters, there is no logical connection between having friends in Australia and the applicant’s evidence of not applying for a visa because he did not have friends to assist.
Overall, the Tribunal was not satisfied that the applicant told Michael Ayoub five years ago that he was homosexual and feared returning to Malaysia and gave the Ayoub Statutory Declaration no weight. It is not apparent from the Tribunal’s findings that the applicant’s credibility has been so weakened that the Tribunal may treat corroborative evidence as being of no weight because “the well is been poisoned beyond redemption”: SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638 at [23]–[24] and [27]. The applicant, however, does not challenge this finding.
Particular (v) fails.
Particular (vi): At [69], a finding of inconsistency in evidence about his relationship with his family.
At [69] the Tribunal said this:
69.Sixth, the applicant’s evidence regarding his contact with his family has been inconsistent. In written application he indicated that he was not in contact with relatives outside Australia. Initially during the hearing, he told the Tribunal that he has regular contact with his mother and brother and some contact with his sisters. However later in the hearing he indicated that his siblings are his “enemies”. When it was put to him that he had previously told the Tribunal that he was in contact with his family, he indicated that since he has been in Australia everything has been okay. The Tribunal finds this unpersuasive. It has formed the view that the applicant manufactured this evidence to overcome the inconsistencies in his evidence about his contact with his family.
At item 39 of the application for protection visa dated 24 June 2019, “Other family members not included in Part B”, in Part C, the applicant provides all requested details of his mother and father and two sisters and brothers including their dates of birth and their places of birth. He identifies his father as deceased.
In response to the question at item 41 “Are you in contact with relatives outside Australia?”, the box for “No” is ticked.
In the Statutory to Declaration the applicant said that his “parents and 3 siblings continue to reside in Malaysia”. He also declares:
25.Although I remain a homosexual man, I have not fully come out and continue to conceal my true sexual orientation amongst my family and relatives. My family and relatives would never accept my homosexuality.
26.I have had constant conflict with my family who demand that I return to Malaysia and get married in accordance with the accepted social and religious norms.
It is clear the applicant makes a distinction between “family” and “relatives”. An inference is available that he has been in contact with his family in the “demand” from them that he returns to Malaysia.
In the delegate interview, when asked by the delegate if he had to go back to Malaysia, was he worried that people will hurt him because he was homosexual, the applicant responded that his mother was very sick, seems very old and he did not want his family to deal with it (Q&A 140).
At the early stages of the Tribunal hearing the applicant was asked questions about his family and where they lived. He gave evidence that his mother is 70 years old, and she is sick and at that moment was in hospital in Malaysia in the city of Ipoh, district of Perak, that she is looked after by a young Indian lady carer from India who was arranged by his brother who lived in the United Kingdom. The applicant told the Tribunal that he is in contact with the brother. The applicant told the Tribunal that he has an older brother in Malaysia who works in security and his younger brother is in the United Kingdom is training to manage a gym club. He said he had two sisters living in Malaysia both of whom are married. His older sister teaches English to small children and his younger sister is a manager at KFC.
The applicant told the Tribunal that he was in contact with his older brother by telephone, speaking with him once or twice a week, that he would speak to his mother often, that he had a conversation with her two or three days previously, that during detention he would ring his mother constantly – sometimes two or three times a week. He said he was in contact with his sisters, that they have his number and that he has their numbers and sometimes they call him. He agreed that he had been able to maintain contact with his family in Malaysia since he had come to Australia.
In the later stages of the Tribunal hearing, when he was questioned about whom in his family knew about his sexuality and what they said when they found out, this was the exchange:
SENIOR MEMBER: Do your brothers know?
INTERPRETER: My family knows.
SENIOR MEMBER: Your brothers? Does your older brother, who’s in the security, does he know? ---Yes. Yes.
And what did he say? ---He said you run away to Australia, run away from the house.
And your brother in the UK? ---Nobody – nobody happy for that.
Does your brother in the UK know? ---Yes.
And what did he say? ---Same thing.
Run away from the house? ---M’mm.
Your sisters? ---Yes. Same thing.
INTERPRETER: They’re all my enemies now. I only talk to my mother.
SENIOR MEMBER: No. Where you told me earlier you have regular contact with your siblings. I asked you at the beginning of the hearing.
INTERPRETER: Since I have been here in Australia I have been talking to all my family. Yes.
SENIOR MEMBER: And that’s been 13 years. So regular contact with siblings doesn’t sound to me like they’re your enemies.
INTERPRETER: Not now. Because I’m here. But when I go to Malaysia their families will know that I am back.
Applicant’s submissions
Counsel for the applicant submitted that when a person is outed as homosexual, especially in a country like Malaysia, the whole family is in chaos – and in this case, the applicant’s mother received threats. Therefore, everyone was advising the applicant to “go away” from Malaysia, and his mother even went as far as advising the applicant to take something – poison – and die.
Counsel for the applicant submitted that the applicant has a love/hate relationship with his family, because they love him for who he is and hate him for what he is doing, and therefore, it is not as simple as “you said you had contact with them, now you say you don’t have contact”. Counsel submitted that in the circumstances a finding that the applicant manufactured his evidence with respect to the contact and relationship he has with his family, was unfair.
Respondents’ submissions
The respondent submitted that the objective inconsistency was the concern for the Tribunal.
It was submitted that at the beginning of the hearing, the applicant gave evidence that he was still keeping in contact with his family but then changed his evidence to say that they are all his enemies. The respondent submitted that it was open to the Tribunal to rely on that inconsistency in making an adverse credibility finding.
Resolution
The Tribunal formed the view that the applicant had manufactured evidence to overcome inconsistencies in his evidence about contact with his family. The resolution of this particular requires a consideration of whether the evidence given by the applicant was actually inconsistent and whether in the circumstances of assessing the applicant’s credibility, was it fair and reasonable for the Tribunal to have relied upon the purported inconsistencies identified regarding the applicant’s contact with his family.
A careful, fair and reasonable approach is required in the assessment of the relevant circumstances to avoid “a quest to disbelieve” or to avoid irrationality or unreasonableness. Further, appropriate attention has to be given by the Tribunal to all relevant material before making a finding of inconsistency. Close analysis of all of the available material is required.
Further again, the Tribunal needs to assess the significance of the purported inconsistency and the weight to be given to it requiring consideration of the applicant’s case as a whole and whether the inconsistency is on a matter central to the applicant’s case or on the periphery and involving an objectively minor factual matter.
Lastly, consideration also is to be given as to whether there is an acceptable explanation for the person having given inconsistent evidence such that the fact of the inconsistency should attract little if any weight.
In my view a ticked box for “No” in answer to a question on a form “Are you in contact with relatives outside Australia?” should not, without more, be identified as a reliable point of inconsistency in light of the applicant’s case as a whole. The visa application form distinguishes between “family” and “relatives” suggesting that “family” means immediate family and relatives refers to wider family. Item 39 and Item 41 seek different information. The visa application form was completed by the migration agent whilst the applicant was detained at Villawood Detention Centre. There is no context or timing contained in the question. The Statutory Declaration submitted with the visa application suggests the applicant distinguishes between “family” and relatives”. The Statutory Declaration suggests the applicant is in contact with his family because he speaks of “demands” for him to return to Malaysia.
The transcript of the applicant’s hearing before the Tribunal records the exchange between the Senior Member and the applicant leading up to the applicant’s description; “They’re all my enemies now. I only talk to my mother.”. The evidence preceding the comment was concerned with the circumstances of threats to his mother, his fear of going back to his home country, whom in the applicant’s family knew of his homosexuality and significantly, their reactions when they learned of his homosexuality.
I do not agree with the characterisation by the respondent that the applicant stating “they’re all my enemies now” is a change of evidence about contact with his family. In the context of the exchange and the clarification provided by the applicant “Because I’m here. But when I go to Malaysia their families will know that I am back”, provides an acceptable contextual explanation. The evidence that the applicant gave should be fairly and reasonably considered in its context. The Tribunal did not do that.
A further difficulty with the Tribunal’s finding of inconsistencies is that due regard was not given to the detailed narrative the applicant gave about the circumstances of his mother and the nature and frequency of the contact with various members of his family. Consideration of the applicant’s case as a whole was required.
Particular (vi) succeeds.
Particular (vii): At [70] a finding of inconsistency about dates.
Paragraph [70] of the reasons is as follows:
70.Seventh, in his written application the applicant indicated that he fears if he comes out in Australia’s family and relatives in Malaysia will find out. However, he is also indicated that his family in Malaysia already know. He told the Tribunal his family came to know about his relationship with Dan when they “got caught”. He indicated that after they got caught Dan’s family told his mother. The Tribunal asked when this occurred and he indicated it was when he was 25 or 26 (2000 or 2001). Yet he has also indicated that when Dan’s family became aware of the relationship he was beaten and had to flee Malaysia. The Tribunal notes that he also indicated that he was attacked in 2006 2007 so he came here. The Tribunal noted that the applicant was already in Australia in 2007. He indicated that he meant it was when he was 26 of 27 that he was attacked. The Tribunal noted he came to Australia when he was 31, suggesting that he was attacked several years before he came to Australia, casting doubt on his claim that he fled to Australia in fear. He then indicated he ran away and lived about nine hours away. The Tribunal is of the view the applicant manufactured the claim to have run away to overcome the inconsistencies in his evidence on this claim.
Paragraph [70] of the reasons highlights the inconsistency of the applicant’s evidence concerning the dates when his family became aware of his relationship with Dan, when he was “caught” and when he was beaten and had to flee Malaysia. The Tribunal formed the view that the applicant manufactured the claimed to have run away to overcome the inconsistencies in his evidence on this claim.
In the delegate interview the applicant gave this evidence:
(a)With respect to when the attack happened:
Q&A 69 … in the month of March or April 2005
In the Tribunal hearing the applicant gave this evidence:
(a)With respect to when the attack happened:
INTERPRETER: When I got caught the family came to know about it. So that’s when the big fight happened, or the argument happen.
SENIOR MEMBER: And when did you get caught?
INTERPRETER: Yes. I got caught at home. When my-when I was about 25, 26 the people at home, my home, found out that I was with this guy who is Muslim.
SENIOR MEMBER: What you were you born? --- 1975.
So you were 25, that was in 2000?
INTERPRETER: I’m not sure. It might be 26 or 27, member. I can’t even recall now. It’s been 12,13 years.
[Tx 25.5-25.19]
SENIOR MEMBER: So when was it that they cut you and attacked you?
INTERPRETER: Before I came here.
SENIOR MEMBER: That’s a very vague answer, sir. Before you came here. You came here in 2006. You were born in ’75. So you were 31 years old? ---32.
Or 32. Okay. In that 32 years when was it that you were attacked?
INTERPRETER: 2006, 2007.
SENIOR MEMBER: 2006, 2007 they attacked you.
INTERPRETER: Yes. But I could not go to the police.
…
SENIOR MEMBER: Okay. Well I don’t understand how you could have been attacked in 2007. I think you were already in Australia in 2006.
INTERPRETER: I was just saying that at the time my age was 25, 26, 27.
SENIOR MEMBER: So it happened when you are 26 or 27?
INTERPRETER: Yes. That’s right. So I was not saying 2007, Member. I was saying that my age was 26 of 27. That’s when it happened.
SENIOR MEMBER: All right. It happened when you are 26 or 27, and how old were you when you came to Australia?
INTERPRETER: I think I was 31 or 32 year old.
[Tx 31. 16 – 32. 8].
Applicant’s submissions
The applicant repeats his submissions with respect to the Tribunal being particular about dates and submits that this should not be about memory, it should be about the sequence of events rather than the years.
Counsel referred the Court to the Tribunal Migration and Refugee Division Guidelines on the Assessment of Credibility which provides that the Tribunal should consider the overall consistency and coherence of an applicant’s account.
Respondent’s submissions
The respondent accepts that should the Tribunal rely upon minor inconsistencies in the evidence, that could be a ground error. But that is not the case with respect to these inconsistencies as here the duration is years and as such it is not legally unreasonable for the Tribunal to form the view that the inconsistency in evidence casts doubt on the applicant’s claim.
Resolution
I have referred earlier in these reasons to the problems with respect to reliance upon or weight to be attributed to the applicant’s Statutory Declaration. Those concerns are equally applicable here. The applicant’s oral evidence is that his immediate family, his mother and brother and sisters were aware of his homosexuality. There is no oral evidence concerning knowledge of his sexuality amongst his broader relatives. There is no analysis by the Tribunal of the inconsistency and the significance of the purported inconsistency in the applicant’s case as a whole.
With respect to the applicant’s confusion concerning the date that he was attacked, in 2019 the applicant was being asked to recall events that occurred at least 13 years previously, just before he fled Malaysia and 17 or 18 years previously when he first had an awareness of his attraction to men and his first sexual relationship.
When asked by the delegate when the attack happened, he said “… in the month of March or April 2005”. The applicant gave evidence that his age at the time of the attack was 25, 26 or 27. It was open to the Tribunal to find that the applicant’s evidence concerning the dates of the attack or his age at the time of the attack, was inconsistent. But that is not the end of it.
As with Particular (ii) and in accordance with the authorities, what the Tribunal was required to do, and what it did not do, was to assess the significance of the inconsistent evidence and the weight to be given to it requiring consideration of the applicant’s case as a whole, whether the inconsistencies are on a matter central to the applicant’s case or on the periphery and involving objectively minor factual matters. Further, consideration was also to be given as to whether there is an acceptable explanation for the inconsistency (AVQ15). The core consistency of the applicant’s claims has neither been identified or assessed.
The Tribunal formed the view that the applicant ‘manufactured the claim to have run away” to overcome the inconsistencies in his evidence. The applicant gave evidence before the Tribunal that “To save my life I ran away”; “Because his family hit me and there was a lot of violence. That’s why I ran”; he “ran” to Australia. There is no logical connection between the applicant trying to overcome inconsistencies in his evidence concerning dates and the conclusion that he manufactured a claim to have run away.
Particular (vii) succeeds.
Particular (viii): At [72] how it used the fact that the applicant did not disclose to the Department about his fear due to homosexuality when he was detained.
Paragraph [72] of the reason is as follows:
72.The applicant has admitted to the Tribunal that he did not tell the Department, when first detained, that he feared returning to Malaysia because he was homosexual. When asked why he did not raise this fear when first detained he merely indicated that he did not tell them because he was not asked about it; he was just asked why he did not want to go back to Malaysia. The Tribunal is of the view that if the applicant was genuinely homosexual and fearful of returning to Malaysia because of his sexual orientation that he would have disclosed this when first detained. The Tribunal is of the view the fact that the applicant did not raise this with the Department when first detained cast significant doubt on the claim.
The applicant was located by New South Wales Police after coming into their custody for a domestic violence incident. He was charged and bailed to appear at a later date in Wollongong Local Court. He was detained by New South Wales Police and held at the Wollongong Police Station on 12 June 2019 for an interview.
In the Detention Client Interview held on 14 June 2019, in answer to the question – “Do you have any reasons why you cannot return to your country of nationality/residence?”, the response recorded is – “Does not want to return due to fear to Muslim community in Malaysia”.
In the Tribunal hearing, this was the exchange:
SENIOR MEMBER: I’m not talking about the protection visa. I’m talking about when you were first detained when you were interviewed, first taken into detention and interviewed. Did you tell them you were homosexual?
INTERPRETER: No.
SENIOR MEMBER: Why not?
INTERPRETER: I was not asked that question. I was just asked, ‘Do you want to go back to your country or stay’.
SENIOR MEMBER: But why wouldn’t you tell them? If you feared going back to Malaysia because of a homosexual relationship, why wouldn’t you tell the Australian authorities when you were detained?
INTERPRETER: Yes. They did ask. They just said to me that, ‘Do you want to stay or go back’. And when I said stay they asked me why. And I said I have – it’s a danger to my life.
SENIOR MEMBER: And I might form the view that if you were really homosexual you would have said, ‘I can’t go back to Malaysia because I’m homosexual’.
INTERPRETER: I didn’t know at that time whether I could say that or not. It was the first time I was detained.
Applicant’s submissions
Counsel for the applicant submitted that the second interview conducted on 14 June 2019 was conducted whilst the applicant was intoxicated. The respondent disagrees. The interview was conducted some hours after detention at 12:00pm on 14 June 2019. I agree with the respondent. There was no indication that the applicant was affected by alcohol.
Counsel for the applicant submitted that the applicant was only asked “Do you want to stay or go back”, he was not asked why he wanted to stay or go back. Counsel submitted that the applicant answered the question and did not go beyond because he was not asked to elaborate, and therefore holding this against him and saying, “why did you not tell them you can’t go back because you are homosexual?”, is not fair. Counsel submits that the environment did not allow for him to disclose that information, it was not asked of him, and the applicant was not aware at that point in time that this was an important factor.
Respondent’s Submissions
The solicitor for the Respondent submitted that the applicant did not refer to fear of returning to Malaysia because of his homosexuality until some 12 hours later during his interview with the department.
The solicitor for the Respondent submitted that, when the applicant was asked during the Tribunal interview, if he advised of his homosexuality when he was first detained, the applicant said “No”, his reasoning being that he was not asked the question, there is no error for the Tribunal to rely on the response provided by the applicant to make its finding.
The solicitor for the Respondent submitted that, dealing with a question of legal unreasonableness, reasonable minds may differ about the weight in which the Tribunal ought to have given certain evidence. But this is an available avenue to the Tribunal, and it does not make the Tribunal’s decision legally unreasonable.
Resolution
The applicant referred the Court to the decision of the Full Court in MZZJOvMinister for Immigration and Border Protection [2014] FCAFC 80, where North, Bromberg and Mortimer JJ said at [56]:
56.On the latter issue, some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling”. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.
The Detention Client Interview was held at Villawood Immigration Detention Facility and is recorded to have started at 12:13pm and concluded at 1:03pm. A Punjabi interpreter by telephone was made available. The undisputed evidence was that this was a female interpreter.
The applicant was not assisted by a legal representative or migration agent.
The Detention Client Interview Form was contained in the Court Book. The information sought at this interview was directed at eliciting information about the applicant’s identity including citizenship status and identification and passport details, medical issues, cultural or religious considerations, family support, education and employment history, financial circumstances and criminal history, applications and intentions with respect to migration matters including the sole question “Do you have any reasons why you cannot return to your country of nationality/residence?”. The question was answered by the applicant – “Does not want to return due to fear to Muslim community in Malaysia”.
There is nothing in the form to suggest that the applicant was asked anything else or was required to expand upon the source of those fears identified. It is noteworthy that the applicant’s behaviour attitude and willingness to cooperate was identified as “Cooperative”.
The Detention Client Interview is not a part of the visa process. It is clear from the nature of the questions and the brief answers recorded that this is an interview at a high level of generality and not intended to be a fulsome or definitive identification of the applicant’s claims.
It is clear from the applicant’s answer that he put his “claim” at this interview i.e. his fear of the Muslim community in Malaysia. Nothing in the Detention Client Interview was inconsistent with the applicant’s claims. It was this fear that founded the claim that the applicant subsequently pursued. When asked by the Tribunal why he did not inform the authorities when detained that he was homosexual, the applicant responds with a plausible reason. He was not asked. He did not know whether he could say that or not. It was the first time that he was detained. His response was not inconsistent with his claims.
In the above circumstances it was illogical for the Tribunal to form the view that the failure by the applicant not to have disclosed his homosexuality when first detained cast significant doubt on the claim.
Particular (viii) succeeds.
MATERIALITY OF ERROR
For the reasons given above on this review I am satisfied that seven out of eight of the applicant’s particulars succeed. Those were particulars are (i), (ii), (iii), (iv), (vi), (vii) and (viii).
It is necessary to consider whether the Tribunal’s erroneous reasoning deprived the applicant of the possibility of a successful outcome, whether the error was sufficiently significant that it could have made a difference to the decision made: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [29]-[31] per Kiefel CJ, Gageler and Keane JJ; Minister for Immigration and Border ProtectionvSZMTA (2019) 264 CLR 421 at [45] per Bell, Gaegler and Keane JJ.
In my view, the Tribunal’s erroneous reasoning was material. In context the erroneous reasoning was with respect to a not insignificant number of particular reasons why the Tribunal formed the view not to accept the applicant’s claims. The Tribunal formed the view that the applicant manufactured his claim to be homosexual and to have had a homosexual relationship with Dan for the purposes of making the visa application. The errors identified go to critical aspects of the applicant’s claims. This is not a case where the erroneous findings were trivial and the balance of the findings made by the Tribunal could be regarded as providing overwhelming support for the Tribunal’s ultimate conclusion.
CONCLUSION
The application for an extension of time is granted.
I make the orders sought by the applicant, quashing the Tribunal’s decision and issuing a writ of mandamus directing the Tribunal to determine the applicant’s application according to law.
The first respondent is to pay the costs of the applicant.
I certify that the preceding two hundred and forty-three (243) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild. Associate:
Dated: 19 December 2024
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