MZAIU v Minister for Immigration
[2019] FCCA 2987
•21 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAIU v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2987 |
| Catchwords: MIGRATION – Application for protection visa – delay of two years and three months in application for the protection visa being made after the applicant’s previous student visa had expired – adverse credibility findings made against applicant based on a number of grounds – no jurisdictional error established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 91R(1)(c), 499 |
| Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 |
| Applicant: | MZAIU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 674 of 2016 |
| Judgment of: | Judge Egan |
| Hearing date: | 11 September 2019 |
| Date of Last Submission: | 11 September 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 21 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Aleksov |
| Solicitors for the Applicant: | Clothier Anderson Immigration Lawyers |
| Counsel for the Respondents: | Mr J. Maloney |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The amended application for review filed on 30 August 2019 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the proceeding to be agreed or failing agreement to be taxed pursuant to rule 21.11 of the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 674 of 2016
| MZAIU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of India of Tamil ethnicity. He arrived in Australia on 15 June 2009 on a student visa that ceased on 11 August 2010. He claims to fear persecution should he be returned to India by reason of his being a gay man.
Notwithstanding that his student visa expired in August 2010, the applicant did not apply for a protection visa pursuant to the provisions of s. 65 of the Migration Act 1958 (Cth) (the Act) until 12 November 2012.
On 8 March 2013 the delegate refused to grant the visa.
On 30 June 2014 the Refugee Review Tribunal affirmed the decision of the delegate.
On 29 July 2015 the decision of the Refugee Review Tribunal was quashed by order of the Federal Circuit Court. The matter was remitted to the Tribunal for review.
The applicant appeared before the Administrative Appeals Tribunal (the Tribunal) (differently constituted) on 11 February 2016. At that time he was represented by a registered migration agent and he gave evidence and presented arguments.
On 25 February 2016, Refugee Legal on behalf of the applicant provided post-hearing submissions to the Tribunal. [1]
[1] CB pages 313 – 322 inclusive.
On 15 March 2016 the Tribunal affirmed the decision not to grant the applicant a protection visa.
On 4 April 2016 the applicant filed an Originating Application for Review. On 30 August 2019 the applicant filed an amended application for review. At the hearing before this Court, the applicant relied upon four (4) Grounds of review which were as follows:
“Grounds of application
1. [Not relied upon]
2. The Tribunal constructively failed to perform its statutory function, and/or otherwise acted unreasonably or illogically, in finding that there was an inconsistency in the applicant’s evidence regarding ‘contact’ with the ‘gay community.’
3. Further, or in the alternative, the Tribunal acted unreasonably/illogically in finding that any inconsistency in the applicant’s evidence regarding ‘contact’ with the ‘gay community’ was such that it undermined his credibility as a whole.
4. The Tribunal failed to carry out its statutory function by failing to provide reasons in support of the finding that the applicant had not plausibly explained the ‘delay’ in lodging his Protection visa application, and/or acted unreasonably in so finding.
5. The Tribunal acted unreasonably/illogically in finding adversely in relation to the applicant’s credit, on the basis that he had not had ‘more’ contact with the ‘gay community.’ ”
At [6] – [19] inclusive of its reasons, the Tribunal carefully set out the relevant refugee assessment criteria and complimentary protection criteria as provided for under the Act.
At [20] of its reasons, the Tribunal recorded that it had taken account of policy guidelines PAM3 in accordance with Ministerial Direction No.56 made pursuant to the provisions of s.499 of the Act, and of relevant country information assessments. It recorded the material before it at [21] of its reasons.
At [22] – [27] inclusive of its reasons, the claims of the applicant were set out by the Tribunal as follows:
“[22] The applicant's claims can be summarised as follows. He was born in Reddipatti, Namakkal, Tamil Nadu, India in 1986. The applicant realised he was gay when he was 14 years old. He began a relationship with a man called Vasu. He could not tell his parents because they were strict Hindus. In 2001, a neighbour saw the applicant and Vasu making love. His father beat him and he became unconscious. He woke up in the home of his local Hindu priest, who also beat him and locked him in a dark room for two days. He was then taken to live with one of his father's friends called Udyamoorthy in lngur. He lived with Udyamoorthy from 2001 to 2006. His father did not want anything to do with him as he believed he shamed the family.
[23] The applicant later met Vasu again about three years later. They started dating secretly and hid their relationship and affection. A group of villagers saw the applicant and Vasu kissing and tried to attack them. However, the applicant and Vasu rode away on their motorbike. Because they were going so fast, they were in an accident and he was knocked unconscious and woke up in hospital. After he was released from hospital, they went to the police to make a complaint against the villagers, however the police refused to assist them and threatened them not to return to their village. Udyamoorthy's house was damaged by people who found out about the incident and the applicant told Udyamoorthy about the incident. Udyamoorthy said he could not stay there any longer. The applicant moved to a town (Coimbatore) 100 kilometres away. Vasu was going to meet him in Coimbatore, however Vasu never arrived and his phone was disconnected. Upon calling Vasu's workplace to inquire about his whereabouts, the applicant discovered Vasu's sexuality had become known to his employer. The applicant did not hear from him again and fears that Vasu was killed though he hopes to be with him one day.
[24] In 2003, the applicant was visiting his parents and was hit by a rickshaw. When the driver recognised the applicant (whom he knew was a homosexual) he became angry and stated that if he saw the applicant again he would aim his rickshaw at him.
[25] The applicant applied for a student visa to the United Kingdom but it was refused. In 2009 he was granted a student visa to come to Australia.
[26] The applicant fears that people will assume he has HIV/AIDS and treat him as a pariah. He fears he will be forced to marry a woman to appear to be a heterosexual.
[27] It is submitted that the applicant is at risk of harm due his membership of particular social groups consisting of "Indian gay men” and/or "Indian gay men of Tamil ethnicity", "gay men of Tamil/Indian origin without any family support or social networks and "gay men of Tamil/Indian origin without any family support or social networks suffering from post-traumatic stress disorder".”
At [29] – [37] inclusive of its reasons, the Tribunal carefully considered the applicant’s claims relating to his homosexuality. At [29] the Tribunal found that the applicant was not a credible witness. It is important that the reasons for doing so are set out. They are as follows:
“[29] I have considered carefully the applicant’s claims but I do not consider him a credible witness. I do so for the following reasons:
·The applicant gave significantly inconsistent evidence on a number of important matters. At the hearing when he was asked whether he had made any contact with the gay-community in Australia he said "no", and confirmed that it was "nothing at all" . However, this was inconsistent with his later evidence that he went to two gay events in the city. When this was put to him, he agreed that he had said he had no contact with the gay community. He also told the Tribunal that he did not try to establish contact with the gay community in any other way.· However, this was inconsistent with his interview with the delegate where he had stated that that he had went to a gay club in Richmond. When this was put to him, he agreed he had told the delegate this and then later said he had forgotten about it and that he had attempted suicide and forgot about it (as referred to in the delegate's decision, a copy of which was submitted to the Tribunal). I have considered his response, but I not accept that he would not be able to recall visiting a gay club or having any contact with the gay community if he actually had. I find these inconsistencies detract substantially from his overall credibility.
·In the applicant's protection visa application, he stated that from 2003 to 2006 he had worked in the fields as a cowboy and that he had lived in lngur in from June 2001 to June 2006. He stated he lived in Coimbatore from June 2006 to June 2009. However (as referred to in the delegate's decision, a copy of which was submitted to the Tribunal). in his student visa application made in 2009 (which he signed), he stated that he was employed in a company called Shri Jayyamurgan Agencies based in Namakkal since 2003 and that his then current address was in Namakkal. When this was put to him, he stated he did not complete the application form. He said his mother's relative and others contacted an agent and they did all the paperwork. I have considered this explanation but I do not find it credible that he did not know what was in the student visa application given he had signed it. Namakkal and Coimbatore are 153kms apart and the information in the student visa application contradicts his claims to have had to move to and live in Coimbatore due to the claimed gay relationship with Vasu. I find this matter detracts substantially from his overall credibility.
·The applicant arrived in Australia on 15 June 2009 on a student visa that ceased on 11 August 201 0 (as referred to in the delegate's decision, a copy of which was submitted to the Tribunal). However he did not apply for his protection visa until 12 November 2012 despite his claims to fear harm as a gay person in India and to have suffered very serious incidents of harm. At the hearing, the applicant commented that when he arrived in Australia, he went to school and did not know the rules. He told the delegate (as referred to in the delegate's decision, a copy of which was submitted to the Tribunal) that he did not know he could apply for protection until he was told by a friend. It was submitted by his agents that he had instructed that he had never heard of protection visas until he was referred to the Asylum Seeker Resource Centre. I have considered these explanations but I do not consider them to be plausible or credible. The applicant speaks English and he told the Tribunal that he did not contact the Department of Immigration about his circumstances. The applicant told the Tribunal that he was under the impression that his student visa lasted for two years but he did not properly read it. However, a long period of time elapsed between the expiry of his student visa and his application for the protection visa (and would have been even if he thought the student visa application was valid for two years) and I do not find his explanations at all plausible or credible. I find these matters detract substantially from his credibility.
·The applicant arrived in Australia in June 2009, yet. on his own (inconsistent) evidence, he has only had very limited contact with the gay community and has not had any gay relationships and did not know anybody who is gay. The applicant commented that there was no necessity for him to do that and his culture was different. He later said he did not easily mingle with others and gets scared when he sees a crowd. He claimed that when he attended a gay event in the city, sexual advances were made to him and he did not feel comfortable contacting the gay community in Australia. At the interview with the delegate, (as referred to in the delegate's decision, a copy of which was submitted to the Tribunal) he stated that he had not made any contact with the gay community in Australia as he was waiting for the right man and hoped to be reunited with Vasu one day. I have considered these comments and the agent's submissions concerning statements in the UNHCR Guidelines on International Protection based on Sexual Orientation and a UK Home Office report on Sexual Orientation Issues in Asylum Claims. I have taken into account that the social and cultural background of an applicant may affect how the person self identifies and that the focus for decision-makers should be on a person's identity and not whether that identity is manifested in sexual acts. I have taken into account decision-makers should not rely on stereotypical or cultural inappropriate assumptions and that an applicant may be fearful of acting on his sexual orientation. I have also taken into account the agent's submission at the interview with the delegate that the applicant had developed avoidance towards loud environments after being traumatised witnessing the harm of a gay man in his village. I have also taken into account that the applicant has been diagnosed with chronic PTSD with Comorbid Major Depression. However, the applicant has now been in Australia for a very long time and on his own (inconsistent) evidence, taken at its best, his contact with the Australian gay community has been very limited. He has not made any effort to seek the assistance, contact or involvement with the gay community or its support agencies which can be done without going into noisy environments. His claimed relationship with Vasu, ended a decade ago. I consider these matters detract from his credibility to be a gay man.”
The Tribunal found, at [36] of its reasons, that the applicant did not face a real chance of persecution on account of membership of any particular social group consisting of “Indian gay men”, “Indian gay men of Tamil ethnicity” or any other group comprising gay men. It also considered the issue of the applicant having in the past suffered from post-traumatic stress disorder, finding that he did not face a real chance of persecution on account of that.
The Tribunal at [37] of its reasons, found that the applicant did not have substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India that there was a real risk that he would suffer significant harm based on his claims.
At [42] of its reasons, the Tribunal found that based on country information there was not a real chance that any of the problems which might be faced by the applicant in accessing mental health care in India would be due to any systematic and discriminatory conduct by any actor for a reason under the Convention as then required by s. 91R(1)(c) of the Act, but would rather be due to the poor economic situation in India and the lack of resources in the Indian public health system.
Grounds of Review
As to Grounds 2 and 3 of the application for review, recourse ought be had to relevant parts of pages 10 – 12 inclusive of the transcript of the hearing before the Tribunal, which is as follows:
“MEMBER CORRIGAN: And how did you get the money to study in Australia?
(APPLICANT): My mother's older sister's son and Udyamoorty helped me.
MEMBER CORRIGAN: Okay. So you came to Australia in June 2009.
(APPLICANT): I came in 2009, but I don't remember the month.
MEMBER CORRIGAN: Have you had any gay relationships in Australia?
(APPLICANT): No.
MEMBER CORRIGAN: Have you attempted to have any gay relationships?
(APPLICANT): Until now, no.
MEMBER CORRIGAN: Have you made any contact with the gay community in Australia?
(APPLICANT): No.
MEMBER CORRIGAN: Nothing at all?
(APPLICANT): No.
MEMBER CORRIGAN: So do you know anybody in Australia who's gay?
(APPLICANT): No.
MEMBER CORRIGAN: And you came here a long time ago, like - what's that five and a half, maybe six and a half years, whichever way you look at it. I mean, that's a long period of time not to have had any sort of contact with the gay community or expressed your sexuality in any way. Why haven't you had any contact with the gay community or tried to start any relationships?
(APPLICANT): There is no necessity for me to go to such a community to find a person and my culture is different and I am more into a oneonone person. I have been to two such events, but what I understood was whoever is here, they intend to immediately get into a sexual relationship rather than - so I didn't prefer that.
MEMBER CORRIGAN: So what were those two events?
(APPLICANT): About three years ago I had been to something called an equal love and also I went to another event, but I don't remember the name of it.
MEMBER CORRIGAN: Okay. So this equal love event, tell me about that?
(APPLICANT): In front of Melbourne central, they had something like a parade, so when I went there, when I was talking to one of the people there, after about five or 10 minutes of conversation, their question was, "Where can we go to today?" So which I didn't like.
MEMBER CORRIGAN: Did these people say where they were from?
(APPLICANT): One was from Brisbane and the other one was from Adelaide.
MEMBER CORRIGAN: Were they the only two people you spoke to?
(APPLICANT): Yes.
MEMBER CORRIGAN: And what about this other event? Can you tell me about that?
(APPLICANT): No, I just went and had a look and came out.
MEMBER CORRIGAN: Where was it?
(APPLICANT): It was also in the city, something like a parade.
MEMBER CORRIGAN: Did you speak to anybody?
(APPLICANT): No.
MEMBER CORRIGAN: And when was this event?
(APPLICANT): About two, three years after that first event.
MEMBER CORRIGAN: So how long ago from today?
(APPLICANT): About one to one and a half years.
MEMBER CORRIGAN: And other than these two events, you had no other - you didn't try to establish any other contact with the gay community. Is that right?
(APPLICANT): No.
MEMBER CORRIGAN: It's just that when you were interviewed by the delegate, you said you'd gone to a gay club in Richmond. That seems very different to what you’re now saying.
(APPLICANT): Yes.
MEMBER CORRIGAN: And earlier when I asked you had you had any contact with the gay community, you said, ''No, nothing at all." That seems inconsistent with what you later said.
(APPLICANT): Yes.”
It was submitted on behalf of the applicant that at [29.1] of its reasons, the Tribunal was wrong to think that there was necessarily an inconsistency between the applicant first saying that he had not made “contact” with the gay community, and his later saying that he had twice attended a gay event and once attended a gay nightclub. It was submitted that it was not inconsistent that the applicant had denied having made contact with the gay community, but admitted having attended events or places where gay people were present. There is no force to such submission.
If the applicant had misunderstood questions put to him by the Tribunal member as to what was meant by it when it asked whether he had made any contact with the gay community, one would have expected that the applicant might have asked the member what was meant by that question. Instead, the applicant three times was responsive in the negative upon being so questioned, the first two such times concerning the question of contact with the gay community, and the third relating to whether the applicant knew anybody in Australia who was gay.[2] When further asked about his contact with the gay community, the applicant responded – “I have been to two such events …”. Had the applicant not understood the question, which clearly related to “the gay community”, he would not have used the word “such” when describing his attendance at two events. [3]
[2] Pages 10-11 of Transcript – Annexure SV-1 to Affidavit of Sanmati Verma filed on 30 August
[3] Third paragraph on page 11 of Transcript.
It is also clear that during a later break in the proceedings before the Tribunal, the applicant conferred with his representatives. After the applicant returned to the hearing, he said that he had “totally forgotten about” a visit to a gay club in Richmond. [4] On its face, that constitutes a clear inconsistency, as did the applicant’s earlier relation of how he had attended an “equal love” social event held in front of “Melbourne Central” where the applicant said there had been a parade, and at which it would appear that the applicant had not welcomed his having been approached in a personal manner by someone then present. The applicant also referred to his having attended another unnamed event in response to the question about the gay community. [5]
[4] Page 21 of Transcript.
[5] Page 11 of Transcript.
The stated memory of the applicant in respect of his having attended a gay club clearly constituted “contact” with the gay community, irrespective of whether each and every person at such club was gay or not. The applicant himself had told the delegate about his having attended a gay club in Richmond, so he could not have been under any real misapprehension as to what the questions were directed to.
There is no merit to Ground 2 of the application for review. The finding of the Tribunal that the applicant had given inconsistent answers was open to it based on the evidence of the applicant before it. The contrary nuance which Counsel for the applicant invited the Court to adopt is inapt. The Tribunal dealt with the evidence before it in a careful and considered way. Its reasons for making findings should not be scrutinised “with an eye too keenly attuned to error” as was said by French, Sackville and Healy JJ in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]-[47] as follows:
“[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225 ; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
In respect of Ground 3, the weight given to finding an inconsistency in the applicant’s evidence regarding ‘contact’ with the gay community as a basis for undermining the applicant’s credibility as a whole was a matter for the Tribunal. The Tribunal had closely examined and considered the evidence before it and was not satisfied as to the applicant’s credibility based on a number of inconsistencies as referred to in its findings. Findings on credibility were a matter for the Tribunal par excellence.[6]
[6] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74
It was also said by McKerracher, Griffiths and Rangiah JJ in CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 when discussing the relevant principles relating to irrationality and illogicality at [60]:
“[60] In Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210, Wigney J collected the following relevant principles (at [52] and [54]-[56]):
52 As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “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”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
…
54 … The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].
55 Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, 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: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].
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: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.”
No jurisdictional error has been demonstrated by the applicant in respect of those two grounds.
As to Ground 4 of the application for review, the Tribunal noted at [29.3] of its reasons that there had been a long period of time – two years three months – between the time of the expiry of the applicant’s student visa and the time of his making an application for a protection visa. It is self-evident that the applicant could have earlier applied for a protection visa during the two year three month period of time when, presumably, he had remained in Australia on an expired visa. The Tribunal found that the time delay in making application for the visa detracted substantially from the applicant’s credibility, the clear inference being that if the applicant had in fact had a well-founded fear of persecution if returned India at any time then he would have earlier made application for a protection visa. The conclusions reached by the Tribunal were open on the evidence before it. As Thawley J said at [21] – [24] in CED15 v Minister for Immigration and Border Protection [2018] FCA 451:
“[21] In his written submissions, the appellant was more specific. The complaint centred on paragraphs [69] and [70] of the Tribunal’s reasons, which provided:
69. The applicant has consistently claimed that a Tamil family of four in his neighbourhood was killed and has provided a TamilNet news article referring to the murders, which took place in November 2008. The tribunal accepts that a family in the applicant’s neighbourhood was murdered at that time, along with Tamils in other villages.
70. However, in his evidence to the department, the applicant merely claimed that the family were his neighbours and acquaintances. At the hearing the applicant claimed for the first time that the head of the family, Vinayakamoorthy, was his cousin. He claimed that he had previously mentioned this while he was “at the camp” however this significant detail is not mentioned in either his written statement or in the decision record summary of his evidence at departmental interview. The tribunal does not accept that, if this was true, the applicant would have failed to mention a familial relationship with the deceased Tamil family in either his written statement or at his departmental interview. Given the concerns the tribunal holds about the applicant’s credibility and his failure to mention his relationship with the Tamil family at key times during the processing of his application, the tribunal does not accept that the applicant previously mentioned that Vinayakamoorthy was his cousin while he was “at the camp”.
[22] The appellant submitted that the “later” evidence, given for the first time to the Tribunal, that the man killed by the army in 2008 was the appellant’s cousin was a detail of less importance than the horrific murder of the family and the appellant’s fear of the army because of his being a witness.
[23] It is not demonstrated that the Tribunal committed any jurisdictional error in reaching its conclusions in paragraphs [69] to [70]. The conclusions which the Tribunal reached were open on the evidence before it. Specifically, it was open to the Tribunal to conclude that the appellant would have mentioned earlier than he did that the head of the deceased family was his cousin if it were true. Reasoning which takes into account the time at which claims were, or were not, made is entirely orthodox.
[24] The fact that a different decision-maker may have reached a different conclusion on the evidence which was before it is not of itself a basis for concluding that there was jurisdictional error: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30].”
The findings of the Tribunal were logical and unremarkable in that regard. It was entitled to find the applicant’s claimed reasons for the delay were implausible. The Tribunal was not obliged to refer in its reasons to every aspect of the evidence placed before the Tribunal as to why the application for the protection visa had not been made earlier. [7] The Tribunal was entitled to look to the substantial period of time that it took for the applicant to make application for a protection visa when forming a view as to whether the applicant’s claims for protection were credible or not. There is no force to this ground of review.
[7] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALR 347.
As to Ground 5 of the application for review, it was asserted that the Tribunal acted unreasonably and illogically in relation to its finding that, in circumstances where the applicant claimed to be a homosexual, he had not had more contact with the gay community during his time in Australia. In that regard the Tribunal took into account the claims of the applicant that he did not like noisy environments when it found that such contact could have been made without going into a noisy environment. Combined with its other findings relating to the applicant’s lack of credibility, the Tribunal was entitled to make the finding it did. The Tribunal had made careful note of the applicant’s explanations as to why he had not expressed his sexual identity through contact with LGBTIQ organisations or other community groups. It had had regard to the UNHCR Guidelines on International Protection based on sexual orientation, and to a UK Home Office report on Sexual Orientation matters relating to asylum claims. It acknowledged the inappropriateness of relying on stereotypes or assumptions, and acknowledged that the applicant could have been fearful of acting on any sexual orientation.
Ground 5 is unfounded. The Tribunal closely examined all of the applicant’s claims. It did not accept the applicant’s claims as to the applicant’s sexual orientation. It was entitled to make such finding. It approached the decision making process in a reasoned and considered manner which was not tainted by illogicality or unreasonableness. As was said in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135] per Crennan and Bell JJ:
“[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. 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. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Further, it cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal, as was also said by Crennan and Bell JJ in SZMDS at [130]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.”
Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
When analysing the matters of relevance before it, the Tribunal did not fail to make any obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25]-[27] where it was said:
“[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.35 It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
[26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.
[27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”
The applicant has failed to demonstrate jurisdictional error on the part of the Tribunal.
The amended application for review is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 21 October 2019
2019. ALJR 405 at [67].
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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