NAOX v Minister for Immigration
[2008] FMCA 1467
•31 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAOX & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1467 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – Protection (Class XA) visas – whether Tribunal decision was “a house of cards” – whether decision ‘based on’ unsupportable finding – credibility – merits review not function of judicial review – procedural fairness – weight to be accorded anonymous information and expert DNA evidence – whether anonymous information ‘credible, relevant and significant’ – whether anonymous information selectively withheld – applicants must make out own case – whether DNA expert should have been called as a witness – whether breach of s.424A of the Act – onus of proof – standard of proof – ‘Wednesbury unreasonableness’ – whether irrational, illogical reasoning process – whether actual and/or apprehended bias – whether bias demonstrated by Tribunal’s departure from findings of fact by earlier Tribunal. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 424, 424A, 474 |
| Minister for Immigration & Multicultural Affairs v Rajamanikkam [2002] 210 CLR 222 WADL v Minister for Immigration & Multicultural Affairs [2002] FCAFC 276 SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63 SZBYR v Minister for Immigration & Citizenship (2007) HCA 26 SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 Abebe v Commonwealth (1999) 197 CLR 510 Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 Kioa v West (1985) 159 CLR 550 VEALv Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72, 225 CLR 88 Chen Xin He v Minister for Immigration & Ethnic Affairs Federal Court of Australia, RD Nicholson J, 23 November 1995, (unreported) Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22 Attorney General for the State of NSW v Quin (1990) 170 CLR 1 VGAO v Ministerfor Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 68 Wecker v Secretary of the Department of Education, Science and Training [2008] FCAFC 108 Avesta v Minister for Immigration & Multicultural Affairs [2002] FCAFC 121 M111 of 2003 vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 97 SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 |
| First Applicant: | NAOX |
| Second Applicant: | SZFSG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 813 of 2008 |
| Judgment of: | Orchiston FM |
| Hearing dates: | 22 July & 5 September 2008 |
| Date of Last Submission: | 5 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 31 October 2008 |
REPRESENTATION
| Counsel for the Applicants: | Mr B. Levet |
| Counsel for the Respondent: | Mr D. Goodwin |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 4 April 2008 and the amended application filed on 14 July 2008 are dismissed.
The Applicants pay the First Respondent’s costs as agreed or as taxed in accordance with rule 21.02 (2)( c ) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 813 OF 2008
| NAOX |
First Applicant
| SZFSG |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) handed down on 11 March 2008 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant Protection (Class XA) visas to the applicants.
Background
The first applicant was born on 1 July 1973. The second applicant was born on 1 July 1953. Both claim to be nationals of Bangladesh and of Islamic (non-practising) faith.
The applicants arrived in Australia on 19 February 1999 on Bangladeshi passports issued in their own names.
The applicants lodged applications for protection visas on 4 March 1999 on the basis that they were beaten, tortured and persecuted in Bangladesh because of their homosexuality.
The delegate’s decision
I accept that the first respondent accurately summarises the delegate’s findings and reasons as follows :
The delegate reasoned that it was plausible that the applicants were homosexual as claimed, but, because of inconsistencies in the application concerning employment history and travel to India the delegate did not accept that the applicants had experienced the difficulties they claimed (CB51 for NAOX and CB118 for SZFSG). The applicants’ ability to leave Bangladesh legally also indicated that they had never been of adverse interest to the Bangladeshi authorities.
On 23 April 1999 the delegate refused to grant the applicants’ protection visas on the basis that the applicants were not persons to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).
The first Tribunal
On 17 May 1999 the applicants applied to a differently constituted Tribunal (the first Tribunal) for review of the delegate’s decision.
On 21 December 1999, the first Tribunal sent letters to the applicants inviting them to appear before it on 21 February 2000 to give oral evidence and present arguments.
On 22 February 2001 the first Tribunal handed down its decision. It was not satisfied that the applicants had a well-founded fear of persecution if they were to return to Bangladesh. I accept the first respondent further accurately summarises the findings of the first Tribunal, as follows:
The [first Tribunal] decision accepted that the applicants were gay men from Bangladesh, but rejected many of the claims by the applicants of mistreatment in Bangladesh said to have been caused by their being homosexual. In particular the RRT did not accept they had been attacked in July 1998 or that a fatwa was issued against them.
In rejecting the applicants’ claims of mistreatment in Bangladesh, the [first] Tribunal was influenced by numerous inconsistencies in the evidence of the applicants. These inconsistencies included -
a. Mr SZFSG’s contradiction of Mr NAOX’s claim that the people in Shantipura knew that he and Mr SZFSG were homosexuals because of the manner in which they dressed, that they were taunted and harassed in their home by these people and that they complained to the police.
b. Mr NAOX’s failure to mention he and Mr SZFSG were seen having sex in their home because they forgot to shut the door – a claim asserted by Mr SZFSG for the first time at the hearing.
c. The applicants’ evidence as to what happened to them after they were allegedly attacked in the street in July 1998 - Mr SZFSG said they went to hospital and then spent the night on the street, Mr NAOX said they caught the train to Dhaka.
d. The applicants’ accounts as to where they stayed in Dhaka after moving there from Mymensingh after returning from Australia in October 1998. These differing accounts were compounded when they claimed that they had not stayed together - thereby contradicting both former versions.
On 20 February 2002 the Full Federal Court dismissed the applicants’ appeal from the first Tribunal’s decision. On 9 December 2003 the High Court (in Applicant S395/2002 v The Minister (2003) 216 CLR 473) upheld the applicants’ appeal from the decision of the Full Federal Court and remitted the matter to the Refugee Review Tribunal (RRT) for re-determination.
The second Tribunal
On 30 September 2004, a differently constituted Tribunal (the second Tribunal) sent letters to the applicants inviting them to appear before it on 28 October 2004 to give oral evidence and present arguments.
On 14 January 2004 the second Tribunal handed down its decision. It was not satisfied that the applicants had a well-founded fear of persecution if they were to return to Bangladesh and it affirmed the delegate’s decision not to grant protection visas to the applicants.
I accept that the first respondent accurately summarises the second Tribunal proceedings, as follows:
The [second] Tribunal was particularly concerned to provide the applicants with the opportunity to explain some of the various inconsistencies in their evidence which had been identified in the [first] Tribunal reasons. The [second] Tribunal heard evidence from SZFSG first, and requested NAOX to wait outside. SZFSG was present during NAOX’s evidence.
Between the hearing on 16 September 2004 and the resumed hearing on 28 October 2004 the [second] Tribunal gained access to information about the applicants’ tourist visa applications in 1998 and 1999. In all of those applications the applicants marital status was given as “married”. Also, in a statement in support of the first visitor’s visa application, SZFSG’s brother referred to NAOX as a cousin of he and SZFSG. In a statement in support of the second visitor visa application, NAOX referred to SZFSG as his “friend”. These issues were raised by the [second] Tribunal with the applicants at the 28 October 2004 hearing. In a spouse visa application on 15 July 1998 SZFSG’s brother had advised DIMIA (the then current acronym for the Department) that SZFSG’s marital status was “married”.
The [second] Tribunal also received information that DIMIA had received two anonymous telephone calls asserting that the applicants were related and falsely claiming to be homosexuals. A further anonymous telephone call alleged the applicants’ Migration Agent, Sirajul Haque, had instructed the applicants to adhere to existing claims and not adjust them if questioned by the [second] Tribunal. DIMIA also advised the [second] Tribunal that SZFSG was a witness to the marriage of his Australian resident brother (SZFSG had alleged that all ties with his family were severed). The substance of the first two calls were raised by the [second] Tribunal in the presence of both applicants.
The [second] Tribunal sent the applicants a letter under s424A on 5 November 2004, raising 7 matters. The first matter was the information supplied by the applicants in their visitors visa applications. The second matter was the information in SZFSG’s brothers spouse visa application. The third matter was that an anonymous caller on 26 March 2003 had asserted that NAOX was engaged to a woman in Bangladesh. The fourth matter was that in a statement in support of the first visitor’s visa application, SZFSG’s brother referred to NAOX as a cousin of he and SZFSG. The fifth matter was the assertion by the anonymous caller that the applicants were related. The sixth matter was the assertion that SZFSG was a witness to the marriage of his Australian resident brother. The seventh matter was the allegation that the applicants’ Migration agent, Sirajul Haque, had instructed the applicants to adhere to existing claims and not adjust them if questioned by the [second] Tribunal.
The applicants’ adviser replied to the s424A notice by letter dated 30 November 2004. The letter attached two documents from a “Muslim Marriage Registrar” in Mymensingh stating that there was no record in that, or the neighbouring offices, of the applicants being married.
The [second] Tribunal found the evidence of the applicants concerning the period in which they were in a relationship to only be consistent as to when and where they met, where they lived and how happy they were together. However, the [second] Tribunal found many inconsistencies in the applicants’ evidence concerning the adversities they claimed to face as a result of their relationship. The [second] Tribunal also found that the contemporaneous documents revealed information which was at odds with the key claims of the applicants.
The [second] Tribunal did not accept as factual the claimed events of 12 July 1998 based upon the inconsistencies in the applicants’ versions. The [second] Tribunal found that the claim of a fatwa was a concoction- this was because there was no record of it – or any fatwa against alleged homosexuals -anywhere- and the applicants had supplied no supporting information. The second] Tribunal rejected the claims of the applicants that they were prevented from keeping their jobs on returning to Bangladesh in September 1998 as their evidence concerning this was inconsistent. The [second] Tribunal was more confident in rejecting the applicants’ claims of past persecution because they had failed to seek protection when they first came to Australia following the alleged July 1998 incident.
The [second] Tribunal then considered whether the applicants were members of a group defined by homosexual preference. The [second] Tribunal found that the evidence of the applicants was inconsistent in many respects and the applicants did not present as persons who discussed issues of mutual importance together. On the basis of the evidence in the applicants’ tourist visa applications and the information supplied to DIMIA by Mr SZFSG’s brother, the [second] Tribunal concluded that the applicants are close relatives who are, or who have been married. This conclusion was found to be at odds with the applicants’ claim that they met by chance and had lived together as a couple since 1994 and that they had an aversion to heterosexual marriage. The [second] Tribunal found that the applicants lied about being unmarried in their protection visa applications because it did not sit well with the purpose of those specific applications.
The [second] Tribunal expressly claimed not to have relied upon the anonymous calls in reaching these conclusions. The [second] Tribunal rejected a claim that the applicants had become refugees sur place because of their High Court proceedings and the publicity surrounding those proceedings. The [second] Tribunal could find no evidence that the appellants' names had been publicly linked to their claims.
The [second] Tribunal was not satisfied of the reasons the applicants gave for returning to Bangladesh after their first visit to Australia [Court Book] (CB) 270-271).
On 13 April 2006 the Federal Magistrates Court dismissed the applicants’ appeal from the decision of the second Tribunal. On
18 May 2007, the Federal Court, Emmett J presiding, allowed the appeal by consent and the matter was again remitted to the RRT for
re-determination (Court Book (CB) 299). The matter came before a third Tribunal (the Tribunal) whose decision is the subject of the present review.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (the Convention).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceedings
I accept that the first respondent accurately summarises the conduct of the Tribunal proceedings, as follows:
On 25 June 2007, prior to a hearing, the Tribunal issued an invitation to provide information and comment on information (CB307). The invitation to comment on information related to a google search conducted by the RRT in December 2004 in respect of the claims by SZFSG that a Fatwa had been issued against him. The applicants responded on 11 July 2007 (CB 312) and provided a large amount of documentary material for the purposes of corroborating their claim to be a homosexual couple.
The applicants gave oral evidence to the Tribunal on 2 August 2007. The applicants also relied upon oral evidence from SZFSG's brother, (the witness).
On 17 October 2007 the Tribunal issued an invitation to provide information (CB486) and comment on information (CB 489). The latter document related to 15 different areas of information arising from the hearings before the RRT and from documentation in the possession of the RRT concerning the applicants.
On 29 October 2007 the applicants’ adviser responded in part to the request for information (CB 501). An extension was given by the RRT for the response to be completed. A further response was provided on 22 November 2007 (CB505). This included a DNA test report (CB507).
The response to the invitation to comment was not made until 18 February 2008 (CB 585).
The Tribunal issued another invitation to provide information and comment on information on 14 December 2007 (CB 518). It related to claims by the applicants and the witness in various documents provided to the Department that the applicants were married. It also related to conflicts in the evidence concerning the claim of fatwas against SZFSG. It also related to further details of the anonymous information that had been received by the Department.
After receiving an extension of time, the applicants’ adviser responded on 21 January 2008 (dated 18 January 2008) (CB 565).
A further invitation to comment on information was sent on 10 January 2008 (CB528). This related to information concerning material which related to the addresses at which the applicants claimed to have lived in Australia. A further invitation to comment on information was sent on 16 January 2008 (CB537). This related to an analysis of the travel details of the applicants, the witness and the sister of SZFSG.
The applicants adviser responded to this request on 30 January 2008 (CB 578).
The applicants’ claims and evidence (CB 596-629)
The applicants claimed to be homosexuals and that they have been living together as a couple since October 1994. They claimed that their parents and neighbours disapproved of their relationship and so, in 1997, they moved to Kristopur. They claimed that there they were beaten and forcibly evicted from their flat. On 28 August 1998 they travelled to Australia on tourist visas but did not seek protection at that time.
The applicants returned to Bangladesh and claimed that a fatwa was issued against them by local fundamentalists ordering that they be killed by stoning. On 19 February 1999 they returned to Australia and applied for protection visas in March 1999. They claimed that if they were to return to Bangladesh they would be killed.
The applicants claimed to be presently living in a peaceful environment. The first applicant told the Tribunal that he was more open about his homosexuality in Australia as people do not ask him questions. He said however that he had fears that the Sydney Bangladeshi community would find out about their relationship. The second applicant said that the applicants try to hide their sexuality from their community, which hates homosexuality.
Both applicants stated that they were not related.
The Tribunal’s findings and reasons (CB 629–664)
I accept that the first respondent accurately summarises the Tribunal’s findings proceedings, as follows:
The Tribunal found that the applicants' claims were fabricated. The Tribunal found the applicants are not homosexual, nor that they have lived in a homosexual relationship. As the applicants' claims were based upon a fear of persecution in Bangladesh for reasons of their homosexuality, having rejected that they were in fact homosexuals, the Tribunal found that neither of the applicants is a person to whom Australia has protection obligations under the Convention.
The Tribunal rejected the applicants' claims because of their lack of credibility. The Tribunal also found the applicants' witness lacked credibility which led the Tribunal to reject his evidence as corroborative.
The reason the Tribunal rejected the applicants' evidence was because of the inconsistencies between their evidence given at the earlier Tribunal hearings and the evidence to the Tribunal, and because their evidence was inconsistent with documentary evidence. Where the applicants' evidence given to the first Tribunal was inconsistent with evidence given to the Tribunal, the Tribunal gave more weight to the earlier evidence on the basis that it was given at an earlier time when the applicants' memories were fresher.
Specifically, the Tribunal rejected the applicants' claims for the following reasons:
§In their tourist visa applications each applicant claimed to be married which was inconsistent with information in their protection visa applications that they were not married. The Tribunal rejected their explanation that they considered themselves married to each other and accepted they were not in fact married. The Tribunal found that the applicants had claimed to be married to better their chances of obtaining tourist visas, which led the Tribunal to consider the applicants were not credible witnesses.
§There were inconsistencies between the applicants' evidence that in 1996 they complained to the police about being taunted and threatened in the street because they were homosexuals. The inconsistencies led the Tribunal to conclude the threats did not occur and that no complaint was made to the police.
§There were inconsistencies between the applicants' evidence about the manner in which they dressed when they lived in Shantipura between 1994 and 1996. This led the Tribunal to conclude that their claims relating to Shantipura were fabricated and they were not in a homosexual relationship at that time.
§The applicants gave different histories as to what had happened to them after the 12 July 1998 attack. The differences in their evidence led the Tribunal to doubt the truthfulness of it. The Tribunal concluded the attack on the applicants on 12 July 1998 did not occur.
§Departmental records of the applicants' travel movements revealed that the applicants and the second applicant's brother (the witness) travelled together when they left Bangladesh for their holiday in Australia, and when they returned to Bangladesh and again when they departed Bangladesh for Australia. The pre planned travel was inconsistent with the applicants' claim to have returned to Bangladesh to take up a job offer under the protection of the second applicants' boss.
§The Tribunal rejected the applicants' evidence that a fatwa was issued against them. The second applicant's evidence was inconsistent with his evidence to earlier Tribunals in major respects including how many decrees were issued against them, who issued the fatwas and when the announcements were made. The Tribunal gave no weight to the witness's evidence that Mr SZFSG had received a lashing. The witness's evidence was inconsistent with the second applicants' evidence and the Tribunal considered that time and events, including being attacked and injured, may have clouded the witness's recollection.
§The Tribunal found that the applicants were not perfect strangers before they met, as claimed, nor did they become linked by their sexual attraction to each other. The Tribunal found the applicants knew each other as cousins once removed and were never a homosexual couple.
§The Tribunal rejected the applicants' evidence and their witness's evidence of where they resided in Australia, and whether they resided together and the circumstances in which they had moved around to live with various relatives. The inconsistencies between the applicants' evidence and that of their witness, which, in turn, was inconsistent with statements and information in the applicants' incoming passenger cards for travel to Australia in 1998 and 1999, led the Tribunal to conclude their credibility and truthfulness was in doubt. The Tribunal preferred the contemporaneous written applications which recorded the applicants' intended address on arrival in Australia where it was inconsistent with later evidence. The Tribunal found the applicants' evidence of their present domestic arrangements, such as a lease in joint names, did not establish they lived together in a homosexual relationship.
§The Tribunal made findings adverse to the applicants' credit because the applicants refused to answer questions about their personal life which was inconsistent with their offer to expose themselves to observation by third parties of their sexual acts.
The Tribunal noted whether the applicants may be considered to be homosexual in Bangladesh and whether they may face persecution if they were return to Bangladesh because of media reports and/or people talking. The Tribunal noted that in its decision there were clear findings that the applicants were not homosexuals. The Tribunal considered that, if there was talk or reports in the media, the Tribunal's finding (that they are not homosexuals) will be conveyed. On that basis that Tribunal found there was no real chance of persecution in Bangladesh for this reason.
The proceedings before this Court
The applicants filed the application in this Court on 4 April 2008 setting out 5 grounds of review of the Tribunal’s decision.
The applicants filed an amended application on 14 July 2008 setting out 5 grounds for review.
Mr B. Levet of counsel appeared on behalf of the applicants at the hearing before this Court on 22 July 2008 and 5 September 2008.
Mr Goodwin of counsel appeared for the first respondent.
Mr Levet confirmed that the applicants sought to rely only on the grounds of the amended application.
Grounds of amended application
Ground 1 of amended application
Ground 1 of the amended application states that:
That the following findings of the Tribunal were procedurally unfair to the extent of jurisdictional error
a)That the applicants are cousins once removed, such finding
i)Being contrary to unchallenged expert DNA evidence that the applicants were “unlikely to be related”; and
ii)Being based in part on a finding (“the sub finding”) that DNA evidence and in particular the cousins index was probative that the applicants are cousins once removed, the sub finding not being supported by or consistent with the unchallenged DNA evidence, and not being supported by any other evidence before the Tribunal.
iii)Being contrary to the evidence of each of the applicants and of the witness; and
iv)Being otherwise based wholly on anonymous information.
b)That weight be given to anonymous “dob-in” information.
c)That the applicants are not homosexual or in a homosexual relationship.
Ground 2 of amended application
Ground 2 of the amended application states that:
That the following findings of the Tribunal were “unreasonable” as that term is defined in Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223, and that such unreasonableness amounts to jurisdictional error:
a)That the applicants are cousins once removed, such finding
i)Being contrary to unchallenged expert DNA evidence that the applicants were “unlikely to be related”; and
ii)Being based in part on a finding (“the sub finding”) that DNA evidence and in particular the cousins index was probative that the applicants are cousins once removed, the sub finding not being supported by or consistent with the unchallenged DNA evidence, and not being supported by any other evidence before the Tribunal.
iii)Being contrary to the evidence of each of the applicants and of the witness; and
iv)Being otherwise based wholly on anonymous information.
b)That weight be given to anonymous “dob-in” information.
c)That the applicants are not homosexual or in a homosexual relationship.
Ground 3 of amended application
Ground 3 of the amended application states that:
That the following findings of the Tribunal jointly and severally demonstrate bias on the part of the Tribunal amounting to jurisdictional error:
a)That the applicants are cousins once removed, such finding
i)Being contrary to unchallenged expert DNA evidence that the applicants were “unlikely to be related”; and
ii)Being based in part on a finding (“the sub finding”) that DNA evidence and in particular the cousins index was probative that the applicants are cousins once removed, the sub finding not being supported by or consistent with the unchallenged DNA evidence, and not being supported by any other evidence before the Tribunal.
iii)Being contrary to the evidence of each of the applicants and of the witness; and
iv)Being otherwise based wholly on anonymous information.
b)That weight be given to anonymous “dob-in” information.
c)That the applicants are not homosexual or in a homosexual relationship.
Ground 4 of amended application
Ground 4 of the amended application states that:
That the decision of the Tribunal taken as a whole is demonstrative of bias on the part of the Tribunal amounting to jurisdictional error;
Applicant’s submissions on Grounds 1, 2, 3 and 4
Mr Levet dealt with grounds 1, 2, and 3 together; and then with Grounds 3 and 4 together, in his submissions. His submissions, in summary, include that:
·the Tribunal’s finding of the applicants’ adverse credibility was based on a cumulation of the numbered sections, [1 to 15 at CB 634-663] contained in its Findings and Reasons
·if any one of those numbered sections “falls at the hurdle”, then it must necessarily be that that “the reasoning as a whole is inadequate”, or “the link in the chain argument - are each of these findings of fact supportable and are they findings of fact that are open to the Tribunal”. If one of the findings of fact is not open to the Tribunal, then it follows that the findings as a whole as to the truthfulness and credit of the witnesses cannot be supported, given that the Tribunal has expressed its findings as being on a cumulative basis
·if the finding that the applicants were cousins [once removed] is insupportable, the Tribunal’s overall findings of adverse credit are likewise insupportable
·the findings of fact as to cousins [once removed] comes from only two pieces of information, namely:
· from the “dob-in” information [anonymous phone calls to the second Tribunal including that the first applicant was engaged at the time to a woman in Bangladesh and that the applicants were related as cousins]; and secondly from
· the statement in support of the original protection visa application by the Australian resident brother of the second applicant [the witness in the present Tribunal proceedings] in which the brother “variously described the applicants as married and had also described them as cousins”
·the Tribunal preferred these two pieces of evidence to:
· the sworn testimony of each of the applicants that they were unrelated persons in a homosexual relationship; and
· the sworn testimony of the brother that the applicants were unrelated and in a homosexual relationship and his disavowal of his original statements (explaining the cultural reasons for his discretion in his original statements, that “married” meant to each other, not to women, and that he could not recall how the references to brother and cousin came to be included in his original statement)
·the Tribunal then asked the applicants, after the Tribunal hearing, to provide proof that they were, in effect, not siblings, [the Tribunal letter to the second applicant: Invitation to provide Information in Writing CB 680, point 8). The applicants provided two documents in response:
· photocopy of a passport [of the other person with the same name as the first respondent]; and
· the DNA analysis (at CB 507), (but which Mr Levet concedes does not exclude matrilineal cousins)
·one of the integral parts to coming to the finding that the applicants are not homosexual, is a finding that they are cousins and, if that finding is without foundation, then, “given the way that the thing is structured, everything else falls by the wayside because it's an integral part of the reasoning and, in particular, it's an integral part of the reasoning as to why they're not homosexual”
·the “dob-in” information cannot be tested and should not “form the basis of actual information that can be accorded any realistic weight”. The fact that the Tribunal was prepared to consider that information was “evidence of some degree of bias” on its part
·the Tribunal made no attempt to re-constitute the hearing to permit the applicant to bring the DNA expert before it, nor did the Tribunal make any effort to obtain evidence of a contrary nature
·the DNA report comes from “a scientist of repute … who tells you the basis on which he has got to … his ultimate conclusion” that “the applicants are not likely to be related. Further than that, he says, "It doesn't support evidence of any genetic relationship between them”
·the Tribunal had already been asked to disqualify itself on the basis of bias on a number of occasions, yet it undertook an exercise outside the hearing room as part of its judgment where it “attempts to deconstruct the DNA evidence … This deconstruction by a non-expert person, the Tribunal Member, then takes place”
·the Tribunal managed to go through “contortions … to deconstruct “ the DNA evidence, (see Court transcript, 22/7/08, pp27- 34), including that:
Because the “dob-in” claimed that the applicants are cousins once removed [which is] defined in the Macquarie Dictionary [as] the son or daughter of one's first cousin, the second applicant allegedly being the first cousin to the first applicant's mother, then the Tribunal finds there is a strong likelihood that the DNA result supports the “dob-in” information in the context that the first cousins index was 0.63.
… that's an outrageous proposition in circumstances where that hasn't been put to the preparer of the report. The preparer of the report says, "The relationship testing results and mismatches on the Y chromosomes do not support evidence of any genetic relationship between the applicants. We consider this evidence that the applicants are not likely to be related."
And the Tribunal, who has already been asked to disqualify himself for bias on a number of occasions, finds there is a strong likelihood that the DNA results support the “dob-in” information in the context that the first cousins index was 0.63.
What he’s doing is combining two obnoxious things. He's combining “dob-in” information which my clients can't test and he's making a totally unwarranted assumption about the status of a piece of evidence relying on the fact that … the relationship index, the first of the two tests that were done … the cousins index is 0.63, less than one, which is inconclusive of the cousins index of a relationship as first cousins.
He's taken that part of it and he's taken “dob-in” information in circumstances where you can't test the “dob-in” information, where - perhaps not what the expert said at all. So, my client has the problem of meeting that and it's not a case that's been put to him in any of the correspondence. He hasn't been asked to explain that, hasn't been put in a position where he can go back to the expert and say, "Well, you know, this is what is concerning the Tribunal Member. What do you say about that?" Not given that opportunity at all …
None of the letters from the Tribunal is, "Look, I've got this concern. Can you please have your expert address it for me?"
It is not for my clients to prove and to prove beyond reasonable doubt as in a criminal case that they are not cousins. The relevant standard of proof for a decision-maker is proof on the balance of probabilities, exclusion is not the test …
[The applicants] put up a case, "Here's our DNA analysis. Here's our scientific report that we're not likely to be related”, and “dob-in” information is preferred to that. How do they deal with that in circumstances where they say there is already a biased Tribunal?
·the second Tribunal on its face “does not rely on the evidence of the anonymous caller to DMIAC." However, “reliance is emphatically placed on it” by the present Tribunal [which] is different from the second Tribunal. The present Tribunal, on its face, accepts the anonymous information, the “dob-in” information, and prefers it both to the sworn evidence of the three witnesses and to the DNA
·the applicants put to the Tribunal by letter of 18 January 2008 that in regard to the “dob-in” material”:
it is improper for a Tribunal to use anonymous information against the applicants. It cannot be tested by cross-examination. Without knowing the identity of the anonymous informant, it is hard to discredit the information or provide any motive for the informant having supplied it. The anonymous information should not have been supplied to any Tribunal Member at all. Having been supplied to the Tribunal, the Member should simply have disclosed its existence to the applicants, then advised the anonymous information would not be further considered or used as a basis for any decision. What's of more concern than the existence of anonymous information, however, is the manner in which it's apparently being used by successive Tribunals. At page 6 of your letter of 14 December, you reveal greater detail of the anonymous information than was revealed to the applicants by the second Tribunal or by the third Tribunal at its old hearing of the matter. If this matter is to be relied on by the Tribunal, why wasn't it disclosed to the applicants months/years earlier? Why did parts of the anonymous information appear to have been selectively withheld by the second Tribunal? Is there any further anonymous information that is being held by the third Tribunal? What is the legal basis for placing any form of reliance on anonymous information? If the anonymous information is not to be relied on, is there any point in the third Tribunal asking questions based on it? The applicants are not able to deal with the anonymous information simply because it is that, anonymous. The continued attempts by the second and third Tribunals to base questions on it and apparently to have selectively withheld parts of it regrettably has continued to reinforce a belief by the applicants that the Tribunal is either incapable or unwilling so far as their case is concerned to discharge its responsibilities in a fair and impartial manner.
·Notwithstanding the above, the applicants were still consistently asked by the Tribunal to provide some motivation for why someone would have given the anonymous information. The applicants supplied two possible motivations. The Tribunal found that “without some supporting evidence, it is unable to accept either of them”. This amounts to:
…a nice little twist around on the burden of proof. There is information which is anonymous that they are cousins. He who asserts must prove. If it's asserted by the Minister that they're cousins, the Minister needs to prove that and needs to prove it on the balance of probability because that's what his case against them … It's a well-known legal maxim that … he who asserts much prove … In effect, it has reversed the onus of proof. They are being asked to disprove on the balance of probabilities, the anonymous information. They're being told, in effect, "You've got to prove some motivation why this anonymous information shouldn't be used against you."
·In conclusion, Mr Levet submits that:
… the Tribunal … is a biased Tribunal. Why is it a biased Tribunal? … you go back to the first Tribunal. Three findings of fact: they're gay, gays can't live opening in Bangladesh, number 2, gays can live discreetly in Bangladesh. It's gone all the way up to the High Court and the High Court has taken away from them number 3: "You can't impose that discretion test." So, the first Tribunal has two findings: they're gay, gays can't reside openly in Bangladesh.
The Tribunal can't really withdraw from that finding of the first Tribunal because that's what the independent country information says: gays can't reside openly in Bangladesh. How does it get around it? It's simply expedient to find that they're not gay.
the [present] Tribunal makes it quite clear that it relies on the cumulative basis of the numbered sections. It relies on - cumulatively its findings. Without its findings or without a significant finding, then it has failed. It can't find they are people to whom … they don't owe Convention obligations if one of those cumulative or a significant of those cumulative findings is not made out and we say, your Honour, that the one that they can't make out - well, we say ultimately objection is taken to the finding that the applicants are not homosexuals.
But, specifically, the way they have got to that is this finding that they are cousins and we say that that is so overwhelmingly against the evidence it totally ignores that finding at page 509 [re the DNA report], the unchallenged finding, in terms of it's not put to them that, you know, "We might be finding this. Would you like to get your expert to comment on the cousins once removed bit?" But the unchallenged finding that the relationship testing results and mismatches on the Y chromosomes do not support evidence of any genetic relationship between the applicant, we consider this evidence that the applicants are not likely to be related."
On the one hand, you have three people on their oath saying that these people are not related. You also on their side of the balance sheet have this unchallenged report. On the other side of the balance sheet you have the witness having (indistinct) a visa application that it was his brother and his cousin in circumstances where that's now disavowed and some explanation is given as to why it was said and anonymous “dob-in” information that simply cannot be tested.
… But, in essence, what we've got is we've got, at the end of the day, this finding that they're cousins which is based on a disavowed visa application. A disavowed and explained visa application filled out by the witness, not by either of the applicants but by the witness and we've got “dob-in” information that they simply cannot test and, on the other hand, we have their sworn evidence, all three of them, and we have that piece of evidence, the DNA testing with the conclusions with no suggestion, "Look, would you like to comment on whether it's first cousins once removed or anything else?"
No suggestion of that at all. So you have a positive finding here that they're cousins. You have a positive finding that anonymous information is to be preferred over that, over the evidence, not only of the witnesses but that anonymous information is to be preferred over DNA evidence and that is the case for these applicants.
Consideration of Grounds 1, 2, 3 and 4
Each of grounds 1, 2 and 3 rely on identical particulars and have been conveniently dealt with together by the applicants in their submissions. Likewise, whilst the Court has made some use of sub-headings, the matters raised under each sub-heading, so far as they are relevant, should be taken to form part of the reasoning of each of the other grounds.
Grounds 1, 2 and 3 relate, in particular, to the matters discussed by the Tribunal at that part of Point 14 of its Findings and Reasons which dealt with the ‘family relationship’ “dob-in” material (at CB 658-662). They must also be considered in the particular context of the applicants’ claims to be complete strangers, and unrelated to each other, before they became involved in a homosexual relationship.
Further, these grounds must be considered in the context of the Tribunal’s Findings and Reasons as a whole, not just that part of
Point 14 which provides their focus. Highly pertinent in this regard, is the careful assessment by the Tribunal of the evidence regarding the applicants’ claims set out in the series of 15 points, (at CB 634 to 663), and its findings on each.
Further, grounds 3 and 4 have been conveniently dealt with together by the applicants. Ground 3 deals with a specific issue of alleged bias by the Tribunal on the basis of common particulars to grounds 1 and 2. Ground 4 alleges “global” bias on the part of the Tribunal. The applicants have incorporated their submissions on ground 4 under ground 3 on the basis that the same findings “jointly and severally” demonstrate bias on the part of the Tribunal. The Court has dealt with these grounds in like manner.
Whether Tribunal decision is a “house of cards”
Mr Levet submits that “this is a case about a house of cards”. He points to “the cornerstone and foundation” of the Tribunal's case which he submits is set out by the Tribunal at CB 663-664, as follows:
The Tribunal's series of findings set out in numbered sections above lead it to find that the applicants are not homosexual, that they were not in a homosexual relationship and that they fabricated their claims to protection. The Tribunal rejects all the applicants' claims, including claims as to how they met, their claims as to their relationship and their claims relating to persecution.
He further argues that:
When I say it's a cornerstone, one thinks of the parable of the house built on rock and the house built on sand. This is a house of cards, and it's built on very shifting sand … there are a series of findings, but, ultimately, the decision is, are these people homosexual. That is the bottom line. That is what the Tribunal has to find against them on to reject their claims to a Convention obligation. What is it based on? It seems to be based on two things. It seems to be based on an assertion that they are cousins, and … that assertion is made in two ways: by “dob-in” information and as a result of something that one of the applicants’ brother put previously on a visa application. That is the total basis for that assertion. What else is it based on? It's based on a rejection of expert evidence that is put forward by and on behalf of the applicants.
… [the] “dob-in” information … is untested. It is untestable, and the applicants don't know who it was that dobbed them in … Assertions have been made about them, who they are, where they live, what various nicknames are … it does not as a matter of logic follow that because a “dob-in” got their names right or their address right or the nicknames of certain persons right, it does not as a matter of logic follow that when the “dob-in” says they are not homosexual, they are cousins, that that is accurate. It simply cannot be tested.
In essence, Mr Levet asserts, given the Tribunal’s clear statement of their cumulative effect, that if any one of the above 15 Points relied on by the Tribunal in its finding of the applicants’ adverse credibility is found to be unsupportable, then its adverse credibility findings as a whole fall over and with them the Tribunal’s finding that neither of the applicants is homosexual and its ultimate conclusion that neither is a person to whom Australia has protection obligations.
On this basis, Mr Levet has sought to attack the Tribunal’s finding, based on that part of the “dob-in” information in Point 14 of the Tribunal decision that the applicants are cousins once removed, and hence are not in a homosexual relationship. If this finding falls, then he contends that the whole decision must fall with it, given its cumulative foundation.
In reaching this conclusion at Point 14 that the applicants were related (and hence not total strangers initially to each other, as they assert), the Tribunal based its finding on the dual information of the “dob-in” material and on an earlier written statement by the witness who gave evidence at the Tribunal hearing, (namely, the brother of the second applicant), that the applicants are cousins.
Mr Levet asserts that the Tribunal’s finding of cousins once removed is “so overwhelmingly” against, in particular, the sworn oral testimony of the applicants to the contrary; against the witness’s disavowal of his earlier statement that they were cousins in any relationship sense; against the expert DNA evidence that the applicants were “not likely to be related” (CB 509); and made in the face of the Tribunal’s rejection of the applicants’ offer to engage in “an embarrassing and humiliating public act” to prove their homosexuality.
I do not consider that such an argument is borne out from a fair reading of the Tribunal decision.
There is no doubt that the Tribunal’s ultimate findings of adverse credibility, and of fact, (at CB 663-664) are expressed to be on a “cumulative basis” of a series of findings in regard to Points 1 to 15 of its decision. I note, however, that the above-quoted passage from the Tribunal decision to which Mr Levet refers as the “cornerstone and foundation” of the Tribunal case, should be read in the context of the first paragraph below which precedes it:
Overall, the Tribunal finds that the applicants are not truthful and lack credibility. This finding is based on the series of findings regarding these issues, and inconsistencies which have been set out in numbered sections above. On the same cumulative basis the Tribunal also finds that the witness was not truthful, credible, nor reliable.
The Tribunal’s series of findings set out in numbered sections above also lead it to find that the applicants are not homosexual, they were not in a homosexual relationship, and that they fabricated their claims to protection. The Tribunal rejects all the applicants’ claims, including claims as to how they met, their claims as to their relationship and their claims relating to persecution.
This statement must also be considered within the overall structure and context of the decision as a whole.
First, so far as is relevant, the Tribunal has set out the legal basis for placing reliance on the anonymous information:
The legal basis for placing reliance on anonymous information has its roots in the decision of Brennan J in Kioa v West where his Honour expressed the view that procedural fairness ordinarily requires that an applicant should be given an opportunity to deal with adverse information which is ‘credible, relevant and significant’. Accordingly, what is ‘credible, relevant and significant’ information must be determined by a decision-maker before the final decision is reached. That determination will affect whether the decision-maker must give an opportunity to the person affected to deal with the information. More recently, the High Court unanimously held in Applicant VEAL of 2002 v MIMIA that procedural fairness required the Tribunal to inform the applicant of the existence of a “dob-in” letter’, or its contents, before it decided to affirm the decision of the delegate refusing to grant the applicant a protection visa ([2005] HCA 72 (Gleeson CJ, Gummow, Kirby, Hayne & Heydon JJ, 6 December 2005)) (CB 629).
Secondly, the Tribunal both recognised and addressed the applicants’ concerns about the apparently evolving way in which the anonymous information was provided to the applicants to which Mr Levet points in his submissions. The Tribunal explained that:
With regard to the claims of the applicants’ adviser that increasingly more information has been provided by the Tribunal regarding the “dob-in” information, it is noted that the Tribunal first obtained the original notes of the “dob-in” conversations in late September 2007. Prior to that point in time it had relied on a summarized version of the “dob-ins” which was made available to it. The original notes provided further details which the Tribunal then considered should be provided to the applicants for comment. This is why further “dob-in” material was provided to the applicants (CB 630).
Thirdly, the Tribunal gave detailed consideration to each of the
15 Points in turn, making adverse credibility findings, as relevant, in regard to each applicant and to the witness. It is helpful in considering the context of the decision as a whole to take into account the cumulative effect of the Tribunal’s findings on each of these thirteen Points, prior to its reaching Point 14, as follows:
·Point 1: re claims in various applications that the applicants were married:
The Tribunal finds that the applicants have provided inconsistent evidence, and they have also provided false information. The Tribunal also finds that the applicants are willing to give false information in order to obtain an Australian visa. The Tribunal finds that the applicants are willing to provide false information in order to better secure a migration outcome. These findings lead the Tribunal to the findings that the applicants are not truthful and they are not credible witnesses (CB 636-637).
·Point 2: re whether the applicants reported attacks on them to police:
The Tribunal would expect that persons in similar circumstances to the applicants would recall whether they reported such matters to the police. The Tribunal finds inconsistencies in the applicants’ evidence as to whether they reported their harassment (because they were homosexuals) by going to the police. As a result, the Tribunal finds that the claimed taunts and threats did not occur. The Tribunal further finds that neither one nor both of them, went to the police. This brings the applicants’ truthfulness into doubt (CB 638).
·Point 3: re what happened to the applicants after the claimed attack on them in July 1998:
The Tribunal finds that the applicants provided different histories as to what had happened to them after the 12 July 1998 attack. The histories were almost completely different, in every respect … The Tribunal also finds that the applicants changed their stories as to whether they were together when the inconsistencies in their individual evidence were brought to their attention. As a result, the Tribunal finds that they gave inconsistent evidence. In summary, the Tribunal finds that the applicants’ evidence as to what they did after the attack on 12 July 1998 is contradictory and inconsistent, and brings the applicants’ truthfulness into doubt. The Tribunal finds that the claimed events, including the attack on 12 July 1998, did not occur (CB 639).
·Point 4: re with whom the applicants stayed when they returned to Bangladesh from Australia:
The Tribunal has considered the response, but finds the applicants’ evidence contradictory … The Tribunal also finds the evidence provided when they were brought together in the hearing room to be inconsistent with the evidence they had previously provided. The Tribunal finds that the above findings bring the applicants’ truthfulness into doubt (CB 640).
·Point 5: re why the applicants went back to Bangladesh:
The Tribunal finds the evidence that the applicants have given is contradictory and inconsistent. This leads the Tribunal to find that the claimed events in Bangladesh, before they left the first time, did not occur. Further, the Tribunal finds that any events which the applicants have claimed to be persecutory, which occurred after they returned to Bangladesh, and which have their genesis in the claims occurring before they left Bangladesh, did not occur. The Tribunal finds that the above findings bring the applicants’ truthfulness into doubt (CB 641).
·Point 6: re why the second applicant was dismissed from his employment in 1981:
The Tribunal finds that because the claim of ‘rape’ was raised for the first time at the Tribunal hearing, it finds that the second applicant fabricated the incidents with the view of advancing his claims to protection. This is supported by the inconsistency in the second applicant’s evidence as to the frequency and nature of the incidents . The Tribunal finds that the above findings bring the second applicant’s truthfulness into doubt (CB 642).
·Point 7: re whether the applicants lived together as a couple in Shantipura, Bangladesh (1994-1996):
The Tribunal finds that the evidence given by the applicants is contradictory … the Tribunal finds that the claims relating to Shantipura have been fabricated, and the applicants were not in Shantipura together, and they were not in a homosexual relationship at that time. The Tribunal finds that the above findings bring the applicants’ truthfulness into doubt (CB 643).
·Point 8: re evidence from the second applicant that fatwas had been issued against him:
Having regard to all these considerations and the other more obvious inconsistencies in the evidence as to the number of decrees issued, and when they were issued, leads the Tribunal to conclude that no decrees were issued, and the second applicant is not a truthful nor a credible witness. Because the claimed fatwas were apparently issued because of the second applicant’s claimed homosexuality, and in 1998 at least, because of a claimed homosexual partnership between the applicants, the Tribunal disregards the claimed fatwas as supporting claims that the applicants were in a homosexual relationship at the time (CB 645-646).
·Point 9: re exchange of gifts at the second applicant’s recent birthday:
The Tribunal finds that the applicants gave inconsistent evidence regarding the exchange of gifts … Further, the first applicant’s evidence was not internally consistent … The Tribunal finds that the above finding brings the applicants’ truthfulness, and the nature of their claimed relationship, into doubt (CB 646).
·Point 10: re the Tribunal question put to the first applicant as to whether lubricant was used (following the applicants’ offer in writing to engage in an act of homosexual intercourse in the presence of an adult witness):
The first applicant refused to answer the question at the hearing. Because the applicant had indicated, by making the offer of performing a homosexual act, that he was not shy, the Tribunal expected that he should be able to answer this otherwise basic question, irrespective of cultural issues, which the Tribunal finds were otiose having regard to the applicant’s invitation. However, he did not answer the question. This effectively denied the Tribunal the opportunity to check his response with the second applicant in order to assess whether their responses were consistent. The Tribunal finds that this question is one which practising male homosexuals in a relationship together for over a decade, and who perform homosexual intercourse, would have no problem in answering. It is a question which goes to the heart of the question whether the applicants are in a homosexual relationship …Because of the refusal to answer the Tribunal’s question, and the lack of a cogent response, the Tribunal finds that the first applicant is not a truthful or credible witness…
… the Tribunal would expect a gay couple in similar circumstances, having lived and worked in Sydney from 1999, to have credible, reliable witnesses come forward to support their claims with oral and/or written evidence. The Tribunal places some considerable weight on the fact that this has not occurred (CB 648-649).
·Point 11: re the first applicant’s application for a visa to travel to the US in 1999:
The Tribunal finds that the first applicant intended to travel to the USA without the second applicant (CB 649).
·Point 12: re travel arrangements to Bangladesh:
The Tribunal finds, that the applicants’ travel to Bangladesh was coordinated, and indicative of a purpose other than for the second applicant to return to take up employment, accompanied by the first applicant.
Overall, the findings immediately above, and those made in considering point 5 in this decision record, lead the Tribunal to conclude that the applicants were not persecuted prior to them leaving Bangladesh on the first or the second occasion. The Tribunal finds that there was no offer of a job and protection. The Tribunal makes adverse findings in relation to the applicants’ credibility and truthfulness. Together with other findings made in this decision, this leads the Tribunal to find that the applicants were not persecuted in Bangladesh.
The Tribunal also finds that the evidence of the witness which he provided in another matter is not correct, in that he has omitted information from his ‘Statutory Declaration’ that he had returned to Australia … Further, he could not have lived in Bangladesh for ‘almost 11 months’ in the circumstances to which he referred in his ‘Statutory Declaration’. This leads the Tribunal to find that the credibility and truthfulness of the witness have been severely compromised. As he has made false statements in his application, the Tribunal finds that he is capable of doing the same thing with regard to the applicants’ claims for Protection visas. The Tribunal concludes that the witness is not a truthful witness, and it accords little or no weight to the evidence he has provided in this matter. This adds further reason to the finding that the applicants’ claims for protection are false (CB 651-652).
·Point 13: re where the applicants lived on return to Australia:
This leads the Tribunal to find that notwithstanding possibly unreliable evidence of the witness at the third hearing due to the possible after effects of a bashing, the Tribunal also finds that his evidence given in the letter dated 30 November 2004 is not truthful, and that he is not a credible or reliable witness.
The next comment made by the witness was that he could not just put the applicants anywhere, to live. The assumption in this statement is that the applicants were living with him. As it has now been determined, this was not the case. This again places the credibility and truthfulness of the witness into doubt.
The Tribunal accepts that the witness was assaulted, as his evidence indicates. In these circumstances, the Tribunal does accept that his memory may have been affected adversely. The Tribunal finds that this makes his evidence unreliable at the third Tribunal hearing. Further, the Tribunal has shown that other evidence provided by the witness in relation to this matter is inconsistent. For example, he had stated previously that the second applicant had cut off all family relationships, except with the witness. This has since been shown not to be true. The Tribunal therefore finds, on the evidence, that the witness was largely inconsistent and unreliable in his evidence.
All the findings made about the witness lead to the Tribunal’s overall finding that he is not truthful or credible.
The Tribunal finds that the reason that they were able to return to the same accommodation in Australia upon their return is because it was always their intention to return to Australia, and there was an ongoing arrangement for them to live at that address upon their return. The Tribunal finds this places in doubt their claims that they returned to Australia because of persecution in Bangladesh during the period from September 1998 to 19 February 1999. This leads the Tribunal to find that the applicants’ credibility and truthfulness are in doubt.
Having regard to these findings and previous findings, the Tribunal concludes that the applicants and the witness are not truthful, and the Tribunal accords little weight to their evidence [emphasis added] (CB 656-658).
The Tribunal thus gave clear and well-articulated reasons for rejecting the evidence of the applicants and the witness, as relevant, on each of the issues raised in Points 1 to 13. I consider that each of these findings was open to the Tribunal on all the evidence and material before it.
Thus, prior to the Tribunal turning its mind to the relevant Point 14, it is clear that, already on the basis of its findings on Points 1 to 13, it had reached the conclusion (in emphasis above) that both applicants and the witness lacked credibility. I accept the submission by the first respondent on the point that:
although it is a cumulative basis, there's no doubt that the first 13 issues were regarded [as] the basis upon which the Tribunal found that the applicants were not to be believed … they can stand independently of [Point 14] and they also are sufficient to support the ultimate finding that the applicants don't have the sexual orientation they claim and aren't in the relationship they claim …
… that's the Tribunal's reasoning before it gets to the “dob-in” information, before it gets to the DNA evidence, the fact that the witness was comprehensively disbelieved and that the applicants were comprehensively disbelieved … that's the position of the evidence at the time that the Tribunal then comes to consider the DNA report and the “dob-in” information.
From the above analysis of the structure and context of the Tribunal decision, it is evident that the finding that the applicants were not in a homosexual relationship, is not based solely upon Point 14 of the Tribunal decision, let alone that part of Point 14 where the Tribunal found that the applicants were cousins once removed. I consider that this provides a cogent argument against the so-called ‘house of cards’ argument. In these circumstances, I find no support for the proposition advanced by the applicants that if Point 14 itself is flawed, the whole Tribunal decision “falls like a pack of cards”. Indeed, the Tribunal found (at CB 662) that:
The findings that the applicants are cousins once removed is at odds with the claims of how the applicants became acquainted and why they remain so, including their claim of cohabitation, particularly in Australia. The Tribunal finds in association with all the other related findings in this matter [emphasis added] that the applicants were not perfect strangers before they met, nor that they became linked by their sexual attraction to each other. Rather, the Tribunal finds that they knew each other at cousins once removed. They're not homosexuals, they were never a homosexual couple. The Tribunal further rejects all the applicants' claims …
I accept the submission by the first respondent that the words “in association” in the context of the above-quoted passage demonstrate that:
… all of those other matters are used to support its conclusions. It's not a house of cards; it's a conclusion based on very many elaborately reasoned conclusions based on all the evidence as to whether various of the claims made by the applicants could be believed.
There are separate bases, [Points 1 to 13 of the Tribunal’s Findings and Reasons], for rejecting all the past history of the applicants in relation to homosexuality. It was found to not be credible in relation to what they said they did in Bangladesh, in relation to what they said they came to Australia, when they returned to Bangladesh and where they've been living since they came to Australia. So, so far as the past facts are concerned, the Tribunal has already disbelieved all the past facts at this stage, at the stage before it got to the question as to whether they were cousins or not.
The question as to whether or not they are cousins was not the ultimate question for the Tribunal. It was just another factual finding to add to all of those other factual findings dismissing their claims as to past events. It's … simply a factual finding the Tribunal makes in addition to all of those other findings. It's not the question for the Tribunal, are these particular applicants cousins. That's not the question by statute it is required to answer. It is required to answer do they have a well‑founded fear of persecution for a Convention reason. The Convention reason they give is their sexuality. One of the factual findings the Tribunal makes for saying that they won't be persecuted because of their sexual orientation is it doesn't believe that they are homosexual because it believes they have a family relationship as second cousins. That is just one other factual finding to support all the other factual findings in relation to their credibility generally …
To say that having regard to that finding … that this is a house of cards and that if you pull out this last card, the rest fall, … reading the Tribunal's reasons as a whole, it just doesn't follow.
… even if the applicant does demonstrate … that that last finding in relation to cousins itself was not supportable… including the way the DNA evidence was treated, et cetera, the whole of that finding, … let's just label it finding 14, because that's the number that the Tribunal gives to it, is defective, not only does the way the Tribunal expresses itself in its reasons lead to the conclusion that that doesn't cause the decision of the Tribunal to fall over, but also authority does.
The first respondent points in support of this proposition to the authority of the High Court in Minister for Immigration & Multicultural Affairs v Rajamanikkam [2002] 210 CLR 222, which was applied by the Full Federal Court in WADL v Minister for Immigration & Multicultural Affairs [2002] FCAFC 276, as examples of cases where cumulative findings were made by a Tribunal for disbelieving an applicant and his or her claims, and where some of the reasons for disbelief had not stood up to judicial review, yet the ultimate decision had still been found to be supportable by the other findings. The first respondent concedes that, whilst both cases related to the ‘no evidence’ ground, (set out in the now repealed Part 8 of the Migration Act), nonetheless, it submits that the reasoning employed in each is directly applicable.
In Rajamanikkam, the reason the Tribunal was not satisfied that the applicant in that case had a well-founded fear of persecution involved a number of elements, including its lack of belief of his story of his arrest. That disbelief in turn was based on eight cumulative reasons, two of which were found to be in error. Gaudron and McHugh JJ stated, at [58], that:
Whether a decision would or would not have been made without a particular factual finding depends on indications to that effect in the decision, the reasons for decision or the decision making process. And unless it is possible to say on a proper analysis of the decision, the reasons for decision or the decision making process that, had a particular finding not been made, the decision in question would not have been reached, it is, in our view, impossible to say that the decision was based on that finding [emphasis added]; (and see Callinan J at [161]).
The first respondent further points to the remarks of Gleeson CJ at [26] that:
The requirement is to "base [a] decision on evidence"; a requirement as to the way the decision-maker is to go about the task of decision-making. The distinction between judicial review of administrative decision-making upon the ground that there has been an error of law, including a failure to comply with the requirements of procedural fairness, and comprehensive review of the merits of an administrative decision, would be obliterated if every step in a process of reasoning towards a decision were subject to judicial correction. The duty to base a decision on evidence, which is part of a legal requirement of procedural fairness, does not mean that any administrative decision may be quashed on judicial review if the reviewing court can be persuaded to a different view of the facts [emphasis added].
Likewise, the first respondent submits that, in the present case, even if the Court were to find that any of cumulative findings of the Tribunal, in particular at Point 14 of its decision, were defective and not based upon the evidence, nevertheless, the Tribunal decision itself as to whether the applicants had well-founded fears of persecution was not “based on” those alleged defective parts of the cumulative credibility finding. It submits that the applicants are, in effect, seeking to erroneously “get into one small part of one step of a whole number of steps that led to the ultimate conclusion”. I accept the submissions of the first respondent on these matters.
I am thus satisfied that the applicants’ submission based on the ‘house of cards’ analogy must fail. In any event, even if I be wrong in this regard, I consider that, contrary to the applicants’ contention, the findings of the Tribunal at Point 14 of its Findings and Reasons in regard to the issue of ‘family relationship’, (being the “pivotal card” in the applicants’ argument), are supportable for the reasons set out below.
The “pivotal” card: Point 14
Point 14 deals generally with the issue of the “dob-in” information. The relevant part of Point 14 for the purposes of the applicants’ argument is the Tribunal’s assessment of the “family relationship” issue based on:
·the “dob-in” information indicating that the applicants are cousins once removed on their maternal lineage
·an earlier statement by the witness (the second applicant’s brother) that the applicants are cousins
·the sworn evidence of the applicants that they are not related
·the sworn evidence of the witness disavowing his earlier statement that the applicants are cousins
·an expert DNA Report stating that the applicants are “not likely to be related” (CB 509).
In summary, Mr Levet asserts that:
·the anonymous information cannot be tested, should not be accorded any weight, was not relied on by the second Tribunal, was gradually revealed in greater detail to the applicants thus appearing to have had parts selectively withheld, and where the Tribunal has reversed the onus of proof by constantly asking the applicants to disprove, on the balance of probabilities, some motivation for why persons would provide such anonymous information and why it should not be used against them.
·the sworn evidence of the applicants that they are unrelated, and that the evidence of the witness disavowing his earlier statement in the visa application that they were cousins, (and his reasons for using discretion in this regard, given the cultural sensitivities), should have been accepted by the Tribunal.
·the Tribunal dismissed the findings in the authoritative “unchallenged” DNA report without reconvening a Tribunal hearing to permit the applicants to call the expert before it; without the Tribunal itself obtaining its own expert evidence; where the Tribunal, as a non-expert, “deconstructed” the DNA evidence through a “contortious” exercise, and then made the “outrageous” finding that is “so overwhelmingly” against the evidence, by combining “two obnoxious things,” that there is a strong likelihood that the DNA result supports the ‘dob-in’ information on the basis that the first cousins’ index was 0.63; and in circumstances where the Tribunal has not put the matter in writing to either the applicants or to the expert for their comments or response. Mr Levet submits in this regard that:
… ordinarily, expert evidence is rejected after competing expert evidence is put on and after experts are cross‑examined. This has been rejected by the tribunal where there has been no request that the expert appear to be examined by the tribunal, where the tribunal has not sought to obtain its own evidence in relation to the matter. It has just simply rejected it. The evidence of the expert is that they are unlikely to be related. Purely and simply.
Amended ground 1: procedural fairness
Mr Levet concedes that the issue of whether the applicants were related was fairly put to the applicants and was “firmly flagged” (transcript, 22/07/2008, p 50). He asserts however that:
what is unfair in this sense is that expert evidence has been adduced that they are unlikely to be related at all and then that has been gone behind with this cousins once removed argument that hasn't been put to the expert as such and the expert hasn't been asked, "Well, does that detract from your overall finding that they're unlikely to be related?" … this first cousin once removed on a matrilineal line hasn't been put to the expert and he hasn't … been asked to comment on it.
I accept the submission in reply by the first respondent that procedural fairness in the SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63 sense, deals with “issues, not particular pieces of evidence”. In this respect, Mr Levet concedes that the issue of ‘family relationship’ was an issue in the review which was fairly put to the applicants.
As observed by the High Court in SZBEL at [47]-[48], procedural fairness does not require the Tribunal in this regard to disclose its mental processes and subjective appraisals:
… as Lord Diplock said in F Hoffmann-La Roche &Co AG v Secretary of State for Trade and Industry]:
“the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. if this were a rule of natural justice only the most talkative of judges would satisfy it” …
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
The Tribunal was also not obliged to put to the applicants in writing its concerns in regard to the DNA Report. It is clear that the word “information” in s.424A, upon a proper construction, does not extend to the Tribunal's subjective thought processes and appraisals of the evidence. As observed by the High Court in SZBYR v Minister for Immigration & Citizenship (2007) HCA 26 at [18]:
Finn and Stone JJ correctly observed in VAF v Minister for Immigration & Multicultural & Indigenous Affairs that the word “information”
does not encompass the Tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.
Likewise, in SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [27], the Full Federal Court commented that:
The proposition than an inference or deduction based upon two facts can constitute "information" for the purposes of sub 424A(1) does not fit easily into the structure of s.424A as a whole. In SZBYR the High Court stressed the distinction between the concept of "information" and the reasoning process leading to affirmation of the decision under review… The drawing of inferences and the assessment of their relevance are more appropriately described as part of the reasoning process than as information for the purposes of sub 424A(1).
In any event, the Tribunal was not obliged to put to the applicants in writing its findings in regard to the DNA Report since it was “information” that the applicants gave for the purpose of the application, and hence fell within the statutory exemption: s.424A(3)(b) of the Act.
Ultimately, the DNA evidence was just one piece of evidence that the Tribunal had to weigh up against the other pieces of evidence upon which it relied.
Further, contrary to the applicants’ contention, I do not consider that procedural fairness dictated that the Tribunal was bound to reconvene the hearing to call the author of the DNA Report to test his conclusions by putting to him other evidence before it. Whilst the Tribunal has the power under s.424(2) of the Act to “get any information that it considers relevant” and to “invite a person to give additional information”, these powers are permissive not prescriptive. As recognised by the Full Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]:
If his Honour meant that the Tribunal should have sought information from other sources available to it under s.424, the existence of such an obligation is denied by a substantial body of authority. See Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (with whom Gleeson CJ agreed) and at [124] per Callinan J; Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 561 and SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [8]; SJSB at [16].
Whilst the Tribunal may choose to exercise this information-gathering power (as well as its other investigative and information-gathering powers under s.426 and s.427 of the Act), it has no obligation to do so.
Furthermore, it is well settled that although the concept of onus of proof is not appropriate to administrative inquiries and decision making: Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at 288, the relevant facts of an individual case will have to be supplied by the applicants themselves, in as much detail as is necessary to enable the decision-maker to establish the relevant facts.
A decision-maker is not required to make the applicants’ case for them: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-70; SZBEL at [40]; Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57] and [1]; WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73]. As stated by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76]:
In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.
As also observed by the High Court in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
The Tribunal is not required to accept uncritically any and all allegations made by the applicants: Randhawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437 at 451.
In the present case, the Tribunal was thus not able to reach the requisite state of satisfaction on the material provided by the applicants, which included the DNA evidence. Having properly considered the evidence before it, it was thus under no obligation to conduct any further investigation or inquiry, or to invite any person, including the DNA expert, to give additional information, before concluding that the applicants did not have well-founded fears for a Convention reason. I thus detect no procedural unfairness on this basis.
Overall, the Tribunal rejected the applicants’ claims, in particular as to whether they were homosexuals and in a homosexual relationship on the basis of its adverse findings of credibility of the applicants' evidence and the witness’s evidence, after its close consideration of each of Points 1 to 15 of its Findings and Reasons.
Relatively, in this context, the issue of ‘family relationship’ formed just one part of the “dob-in” information under Point 14. It was dealt with after the Tribunal had already found most of the “dob-in” material to be credible and reliable. It was further dealt with after adverse findings of credibility of the applicants had already been firmly made by the Tribunal under Points 1 to 13. It thus formed but one part of the series of bases upon which the Tribunal rejected “all of the applicants’ claims, including claims as to how they met, their claims as to their relationship and their claims as to persecution”.
I also accept the submission by the first respondent that:
The applicants' credibility was undermined by the inconsistencies between their evidence, which, in turn, differed from their evidence given to previous Tribunals, and which was not corroborated by the documentary evidence, nor their own witness.
Procedural fairness deals only with the process of decision-making, not the merits of the decision. As relevantly stated in SZBEL at [25]:
what is required by procedural fairness is a fair hearing, not a fair outcome … It is, therefore, not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question is about the Tribunal's processes, not its actual decision.
This statement reflects the well-established case law that it is not part of the function of this Court to engage in fact finding concerning the merits of an applicant’s case: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]. The Tribunal’s adverse findings of credit in regard to each applicant, including at Point 14, were thus findings of fact par excellence, not open to review by this Court: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 at [67].
The Tribunal’s findings on that part of Point 14 which concerned the “family relationship” issue, (namely that the applicants were not perfect strangers before they met; that they did not become linked by their sexual attraction to each other; but rather that they knew each other as cousins once removed; that they were not homosexuals; that they were never a homosexual couple; and that the ‘dob-in’ information should be preferred over the DNA evidence), were ultimately matters for it alone to determine. I consider that these findings were open to the Tribunal on the evidence and material before it for the reasons set out below.
There was clear evidence in this case to support these findings. First, the applicants concede that the witness originally stated in a tourist visa application that the applicants were cousins. The Tribunal did not accept his sworn evidence before it where he attempted to explain this away. The Tribunal was entitled to find the original evidence of the witness more credible in the circumstances.
To the extent that the applicants complain that the “dob-in” material was selectively withheld, the Tribunal was fully cognisant of this issue. As stated above, it set out cogent reasons explaining why all the “dob-in” material had not been provided to the applicants at the outset:
With regard to the claims of the applicants’ adviser that increasingly more information has been provided by the Tribunal regarding the “dob-in” information, it is noted that the Tribunal first obtained the original notes of the “dob-in” conversations in late September 2007. Prior to that point in time it had relied on a summarized version of the “dob-ins” which was made available to it. The original notes provided further details which the Tribunal then considered should be provided to the applicants for comment. This is why further “dob-in” material was provided to the applicants (CB 630).
In these circumstances, I do not consider any procedural unfairness, or bias arises on this basis.
In respect to the “dob-in” information, the Tribunal adopted the test formulated by Brennan J in Kioa v West (1985) 159 CLR 550 at 628-629, and as applied by the High Court in VEALv Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72, 225 CLR 88 at 95, [15]-[19] in finding that “the ‘dob-in’ information has been found to be credible, relevant and significant” (CB 662).
The High Court in VEAL relevantly observed, at [17], that:
"Credible, relevant and significant" must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision … References to information that is "credible, relevant and significant" are not to be understood as depending upon whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached.
Where a Tribunal thus finds such adverse information to be “credible, relevant and significant”, procedural fairness dictates that the Tribunal must reveal this information to the applicants and give them an opportunity to respond to it before concluding its review. The applicants make no complaint in this regard, given that the ‘dob-in’ information was raised with them both at the Tribunal hearing and in a series of s.424A letters sent to them, as summarised at Point 14 of the Tribunal’s Findings and Reasons (CB 658-660).
Mr Levet sought to distinguish the decision of VEAL, in the present context, on the basis that:
In VEAL, there was “dob-in” information … It was by way of a letter, and it was not an anonymous letter, but it was a letter written confidentially. The writer did not wish his or her identity to be made known. As a result, … the “dob-in” information in VEAL, was not used as part of the information against that applicant … The Tribunal [was] unable to test the claims made in that letter, and, accordingly, gives it no weight [as opposed to the present case where] overwhelming weight [was given to] the “dob-in” information … it was a letter [in VEAL] on which the Tribunal simply did not rely. It didn't rely on it. In this case, the “dob-in” information, brief and cursory though it is, untestable though it is, has been relied on.
It is clear however that the Tribunal, in placing reliance upon anonymous information, applied the “general principles” (which found their legal basis in Kioa and VEAL) that procedural fairness ordinarily requires that an applicant should be given an opportunity to deal with adverse information which is ‘credible, relevant and significant’. As stated above, the Tribunal clearly approached its task on this basis, by ensuring that the applicants had ample opportunity to be on notice of the information, seeking their responses in a series of s.424A letters and carefully analysing in its decision whether each such piece of information was ‘credible, relevant and significant’, including the extent to which it was corroborated by other evidence, in particular from the applicants themselves. I find no error of law in this regard.
It is again relevant in this context to note that the “dob-in” information on ‘family relationship’ was dealt with by the Tribunal after it had already made specific findings on each of the other pieces of “dob-in” information. Before turning to consider this piece of such information, the Tribunal had reached the position that:
… Having regard to other findings of the Tribunal regarding the “dob-ins”, the Tribunal gives this “dob-in” [that piece considered immediately prior to its consideration of the family relationship piece of information] some weight, having regard to the reliability of the “dob-in” information that has been found to be correct (CB 660).
The Tribunal also considered the extent to which the various “dob-in” conversations were independently corroborated by other evidence and found that a significant amount of it was so corroborated, including by the applicants’ confirmation in response to an open-ended question by the Tribunal in a s.424A letter that certain names or nicknames were given to various persons.
The Tribunal found that, based on all the findings regarding the “dob-in” information, it preferred the “dob-in” information that the applicants were cousins once removed, that is, that “the first applicant’s mother and the second applicant are first cousins” and that such a finding was “at odds with claims about how the applicants became acquainted and why they remain so, including their claimed cohabitation, particularly in Australia.” It concluded that:
The Tribunal finds that the “dob-in” information discussed above is relevant to the review as it is supported by independent information and analysis; or in the case of the second applicant having a girlfriend, it is incapable at this time of being determined. The “dob-ins” support a finding that the informant(s) who telephoned DIAC are familiar with close details of members of the second applicant’s family, the nature of the relationship between the first and second applicant, and other intimate aspects of this matter, both of a personal and legal kind. The Tribunal finds that the “dob-in” information has been shown to be credible, relevant and significant …
Overall, the applicants have put forward two possible motivations for the “dob-ins”. They are that they were made by a religious element of the local Australian Bangladeshi community which objects to the publicity given to the court case, ‘based as it was on their sexual preferences’, or it is material made up by the Department for the purpose of excluding them. The Tribunal has considered these possible motivations and without some supporting evidence, it is unable to accept either of them.
Overall, I consider that a fair reading of the Tribunal decision demonstrates that it went through a very careful analysis of all of the “dob-in” information in Point 14, (including the “family relationship” information), taking each piece of that information individually, reaching a conclusion on all the evidence and material before it on each piece, including each of the responses provided by the applicants to the series of s.424A letters sent first by the second Tribunal and then by the present Tribunal, in determining whether each piece could be accepted, and whether it should be accorded some or no weight (see CB 658-662).
I consider that it was open to the Tribunal to accept that much of the “dob-in” information was ‘credible, relevant and significant’. What weight the Tribunal accorded to it was a factual matter solely for it to determine.
I accept the submission by the first respondent that merely because the “dob-in” information cannot be tested, does not necessarily detract from its being potentially credible, relevant and significant. I further accept its submission that:
… as a prima facie proposition, you can’t just dismiss it … this Tribunal has gone to the trouble of assessing it and determining whether it should dismiss it and what weight it should give to it, and it has gone through a proper process of assessing whether it can be corroborated. It has found corroboration, and part of that corroboration is information the applicants have provided in response to queries made by the Tribunal … the first material supporting the finding they're cousins is the statement by the brother in his visa application, which is not denied by the applicants but tried to be explained away. The second is the “dob-in” information itself. Those are the two matters that the Tribunal relies on, and it is submitted that it was open to the Tribunal to rely on those matters to make the finding.
Equally, the Tribunal assessed the weight to be given to the DNA evidence, given, in particular, that the expert’s brief was to test for whether the applicants were brothers. Against this context, the Tribunal carefully set out its reasoning process for finding that a cousins index of less than 1 ruled out first cousins, but not the type of relationship referred to in the “dob-in” information of cousins once removed on the maternal side. The Tribunal stated in this regard that:
Whilst ‘cousins index’ may have some scientific meaning extending beyond that of ‘first cousins’, it is not apparent from the DNA Lab Report. The Tribunal prefers the common usage of the word ‘cousin’, to mean first cousins only, and unless stated otherwise, it does not mean relationships such as ‘second cousins’ and ‘cousin once removed.’ The Australian Pocket Oxford Dictionary (second edition, Melbourne, Oxford University Press) definition of cousin is the child of one’s uncle or aunt. The Macquarie Dictionary (third edition, The Macquarie Library) similarly refers to cousin as the son or daughter of an uncle or an aunt. The Tribunal finds that the DNA test was designed to provide (inter alia) an index showing evidence of a cousins relationship, limited to first cousins.
However, the applicants’ relationship is one step further removed from being cousins. Because the “dob-in” claimed that the applicants are cousins once removed (as defined in the Macquarie Dictionary as the son or daughter of one’s first cousin), the second applicant allegedly being the first cousin of the first applicant’s mother (emphasis added), then the Tribunal finds that there is a strong likelihood that the DNA result supports the “dob-in” information, in the context that the (first) cousins index was 0.63.
The Tribunal further set out its reasoning process in regard to
the findings in the DNA Report in regard to mismatches on the
Y chromosome test, the second test undertaken by the DNA Labs, which excluded a common paternal relationship. The Tribunal pointed out that this test was intended to establish if the applicants had a common male lineage, and hence was not relevant to the issue of whether the applicants were cousins once removed on the maternal side.
The Tribunal further pointed to what it perceived as the uncertainty in the Report’s conclusion (that the relationship index and the mismatches on the Y chromosome tests do not support evidence of “any genetic relationship”), as to whether this conclusion referred to both tests independently or to some combination of these test results so that “when put together the degree of certainty is greater than the results of each individual test” (CB 661-662).
On the basis of the above reasoning, the Tribunal concluded that:
The Tribunal accepts that the tests show that the applicants are not brothers. However, the tests which have been conducted do not exclude that they are cousins once removed.
Furthermore, DNA Labs have only been able to state in conclusion (after both tests) that the applicants are not likely to be related [emphasis added by the Tribunal].
Contrary to the applicants’ assertion, I do not consider that a fair reading of the Tribunal’s reasoning process discloses that it has engaged in “contortions … to deconstruct” the DNA evidence. Rather, it has undertaken a careful assessment of the Report and its findings, and in particular, the extent to which it deals with and covers matters raised in the “dob-in” material. The Tribunal rejected or gave little weight to the findings in the DNA evidence on the basis that the Report did not exclude the possibility that the applicants were first cousins once removed from a maternal lineage. It preferred the “dob-in” information to the DNA results, which it found inconclusive.
Its findings, in this regard, and the weight to be accorded to these findings are findings of fact for it alone to determine. I consider that these findings were open to it on all the evidence and material before it. As stated above, it is not the function of this Court to engage in impermissible merits review.
Merely because the applicants disagree with the Tribunal’s factual findings on these matters and its ultimate conclusion does not amount to an error of law: Chen Xin He v Minister for Immigration & Ethnic Affairs Federal Court of Australia, RD Nicholson J, 23 November 1995, (unreported) at [24]. Furthermore, there is no error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1998) 197 CLR 510 at 560 [137].
Overall, I consider that a fair reading of the Tribunal’s decision record makes it clear that the Tribunal understood the nature of, and set out a detailed and closely reasoned analysis of, the applicants’ claims; explored those claims with them at the hearing; identified the determinative issues and gave them sufficient opportunity to give evidence and make submissions on those issues at the hearing; gave to them in writing all concerns and information it had that may be part of the decision for affirming the decision under review; and had regard to all material provided in response. The Tribunal then made findings based on all the evidence and material before it.
I consider that its findings of fact, in particular as to the applicants’ adverse credibility, were open to it on the evidence and material before it; that it provided well-articulated and detailed reasons for rejecting the applicants’ claims; that it applied the correct law to those findings; and reached its conclusion that the applicants were not persons to whom Australia has protection obligations, based on those findings. In these circumstances, I am satisfied that the Tribunal accorded the applicants procedural fairness in the making of its decision and performed the task required of it in accordance with law.
Indeed, far from demonstrating procedural unfairness on the part of the Tribunal, the procedure adopted by the Tribunal in this case of making extensive efforts after the Tribunal hearing to provide potentially adverse information to the applicants in the series of ss.424A and 424 letters, inviting their response, and then carefully considering such responses, militates against any claim of procedural unfairness.
Onus and standard of proof
Mr Levet has variously asserted that:
… the relevant standard of proof for a decision-maker is proof on the balance of probabilities;
and that
… He who asserts must prove. If it's asserted by the Minister that they're cousins, the Minister needs to prove that and needs to prove it on the balance of probability because that's what his case against them …It's a well-known legal maxim that … he who asserts much prove … In effect, it has reversed the onus of proof. They are being asked to disprove on the balance of probabilities, the anonymous information.
First, contrary to the above submission the Minister has not asserted anything before the Tribunal.
Secondly, as stated above, it is well settled that although the concept of onus of proof is not appropriate to administrative inquiries and decision making: Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at 288, the relevant facts of an individual case will have to be supplied by the applicants themselves, in as much detail as is necessary to enable the decision-maker to establish the relevant facts.
Thirdly, it is also well-settled that the standard of proof, applicable to matters coming before a Tribunal, is not a balance of probabilities test in determining whether an applicant has a well-founded fear of persecution: Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 144 ALR 567; (1997) 71 ALJR 743. I accept that the Tribunal accurately set out the relevant law in this regard (atCB 596) that:
Fourth, an applicant’s fear of persecution for a Convention reason must be a “well-founded” fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a “well-founded fear” of persecution under the Convention if they have genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A “real chance” is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence.
Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Finally, nowhere in the Tribunal decision, whether in regard to Point 14 on the “family relationship” issue and the “dob-in” material, or elsewhere, does the Tribunal expressly state that it has adopted a balance of probabilities test in reaching its findings of fact. I further consider that a fair reading of the Tribunal decision does not disclose any implicit or inferential adoption of such a standard of proof. I consider that the Tribunal correctly applied the correct legal principles set out above in reaching its decision in this case. I detect no error of law on this basis.
Accordingly, for the reasons stated above, (and so far as they are relevant, under grounds 2, 3 and 4 below), Ground 1 of the amended application is rejected.
Amended ground 2: Wednesbury unreasonableness’
So-called "Wednesbury unreasonableness" provides an exception to the above principles that the merits or findings of fact of a decision are matters for the Tribunal alone to determine. It applies where it can be demonstrated that the factual conclusions reached by a Tribunal are so unreasonable and so unfair that no reasonable person could have made them. As stated by the High Court in Attorney General for the State of NSW v Quin (1990) 170 CLR 1 at 35:
Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power.
The High Court further observed, at 35, that:
Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined.
In any event, even if it be established that one or more of the factual findings in Point 14 of the Tribunal’s Findings and Reasons, (in particular in regard to the expert DNA results), amongst many other factual findings, was unreasonable, illogical, or “neither cogent nor persuasive”, this does not ground a legal basis for review: VGAO v Ministerfor Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 68 per Allsop J at [54], with whom Wilcox and Cooper JJ concurred. Also, in the recent decision of the Full Federal Court of Wecker v Secretary of the Department of Education, Science and Training [2008] FCAFC 108, Greenwood J observed at [97]-[101] that:
Describing the process of reasoning adopted by the Tribunal as irrational, illogical or based upon an unsound approach to the assessment of a document (as the appellant contends) or that findings are not based on inferences of fact supported on logical grounds, may merely be an emphatic way of disagreeing with a finding of fact (Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per Gleeson CJ at [5]) …
… In the context of the particular statutory framework relating to protection visas under the Migration Act 1958 (Cth) and the role and duty of the Refugee Review Tribunal, Gummow and Hayne JJ (with whom Gleeson CJ agreed) in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 observed at [38] that although the question of whether protection obligations relevantly arose included a consideration of factual matters, ‘the critical question is whether the determination [by the Tribunal] was irrational, illogical and not based on findings or inferences of fact supported by logical grounds’ and ‘inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error’.
In Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411, Black CJ, von Doussa and Carr JJ at [25] observed that want of logic in drawing an inference will not of itself constitute an error of law. Their Honours also noted, however, that a want of logic ‘may sound a warning note to put one on inquiry whether there was indeed any basis for the inference drawn’: see also NAMM of 2002 v MIMIA [2003] FCAFC 32 per French, Lindgren and Finkelstein JJ; MIMIA v W306/01A [2003] FCAFC 208 per French, Hill and Marshall JJ; NACB v MIMIA [2003] FCAFC 235 per Tamberlin, Emmett and Weinberg JJ; W404/01A of 2002 v MIMIA [2003] FCAFC 255 per French, Lee and Carr JJ; NATC v MIMIA [2004] FCAFC 52 per Heerey, Sundberg and Crennan JJ; VWST v MIMIA [2004] FCAFC 286 per Kiefel, Marshall and Downes JJ, applying these principles. In Minister for Immigration and Multicultural Affairs v Al-Miahi 65 ALD 141, Sundberg, Emmett and Finkelstein JJ, said this:
The question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. That is because, before the inference is drawn, there is a preliminary question as to whether the evidence reasonably admits a different conclusion. Accordingly, in the context of judicial review, the making of findings and the drawing of inferences in the absence of evidence is an error of law. On the other hand, there is no error of law simply in making a wrong finding of fact. Even if the reasoning whereby the court reached its conclusion of fact were demonstrably unsound, that would not amount to an error of law. A party does not establish an error of law by showing that the decision-maker inferred the existence of a particular fact by a faulty process, for example by engaging in an illogical course of reasoning. Thus, at common law, want of logic is not synonymous with error of law. So long as the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place …
In any event, I detect no irrational, illogical process of reasoning in the present case. I consider that the findings are based on inferences of fact supported on logical grounds.
The first respondent further points to the proposition set out in the decision of the Full Federal Court in Avesta v Minister for Immigration & Multicultural Affairs [2002] FCAFC 121 at [16] that:
An attack on the correctness of the reasons for finding that the appellant was not believable is a challenge to the correctness and rationality of the reasoning process, and does not provide an available basis for review of the decision reached as a result of that reasoning …
The reasoning in Avesta was adopted by the Full Federal Court in M111 of 2003 vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 97 at [13]:
While opinions may vary about findings or specific claims and findings as to credit if the decision is open and not perverse there is no jurisdictional error: Avesta v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 121.
I am satisfied that far from there being any support for the contention that there was any serious failure in fact-finding on the part of the Tribunal in this case, the Tribunal made clear and well-reasoned findings on each integer of the applicants’ claims. For the reasons stated above, I further consider that its findings, including its adverse finding as to the credibility of the applicants and of the witness, were open to it on all the evidence and material before it. This is not a case, (and I note the remark by the High Court in Quin that “the limitation is extremely confined”), where the decision is such as to amount to “an abuse of process”, nor is it one where it can be shown that it was “so unreasonable that no reasonable repository of power” could have taken the decision. In these circumstances, I do not consider that this is a case where "Wednesbury unreasonableness" can be demonstrated.
I accept the submission by the first respondent on the point that:
The giving by a Tribunal of inadequate weight to certain matters and undue weight to others does not, itself, establish a case of unreasonableness of the kind recognised in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (Minister for Immigration v Eshetu 197 CLR 611).
Accordingly, for the reasons stated above, (and so far as they are relevant, under grounds 1, 3 and 4), Ground 2 of the amended application is rejected.
Amended grounds 3 and 4: Bias
Mr Levet submits, in essence, that the Tribunal is biased when one looks at the litigation history of the matter, namely the first Tribunal made three findings: that the applicants were homosexuals; that on the basis of independent information, they could not live openly in Bangladesh; and that homosexuals can live discretely in Bangladesh. Following the High Court ruling against the imposition of a discretion test by the first Tribunal, the matter was remitted to the RRT for rehearing.
Mr Levet says therefore that the second and present Tribunals could not withdraw from the second finding of the first Tribunal, (namely, that they could not live openly in Bangladesh), given that it was based on independent country information. Hence, he says, it was “simply expedient” to find that the applicants were not homosexuals. He asserts that the Tribunal’s treatment of the “family relationship” issue, including its acceptance of the “dob-in” information over the sworn testimony and expert DNA Report provides particular evidence of bias (ground 3). He points to the fact that the Tribunal had been asked to disqualify itself on a number of occasions during the proceedings.
Mr Levet further contends that the Tribunal decision as a whole demonstrates bias (ground 4).
The applicants have not provided the transcript of the evidence of the Tribunal hearing before the Court to identify precisely where they say the Tribunal demonstrated bias. Rather, they appear to be relying upon a general assertion, based on an inference to be drawn from the historical context, that the Tribunal was biased in reaching a different finding of fact to the first Tribunal on the issue of whether the applicants were homosexuals.
The Tribunal was not bound by the findings of the first Tribunal. Merely because a later Tribunal comes to a different result, often on the basis of different evidence and material being placed before it, (as in the present case where the first Tribunal did not have any of the anonymous “dob-in” information available to it which was available to the present Tribunal), does not constitute an error of law, let alone jurisdictional error. This “fresh” “dob-in” information was found by the Tribunal to be credible, relevant and significant factual material. Nor was the Tribunal bound to accord the same weight to such “dob-in” material as the second Tribunal. These are matters within the competence of the Tribunal alone to determine, on all the evidence and material before it.
At the very outset of its Findings and Reasons, (at CB 629), the Tribunal addressed the issue of bias raised by the applicants throughout the proceedings; their requests for the Tribunal to disqualify itself on this basis; the Tribunal’s concerns about such claims; and its careful consideration of the issues identified by the applicants’ adviser regarding possible apprehended and/or actual bias. I accept the submission by the first respondent that:
the Tribunal was acutely alive to the issue of bias. However the Tribunal was also alive to its statutory obligations and it reasoned that: “overall the Tribunal has procedural fairness obligations upon it in order for it to reach the necessary satisfaction in relation to the issues arising in the review” (CB 630).
It is well-settled that any allegation of bias must be “distinctly made and clearly proved”: SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 at [22]; citing Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531, [69]. This has not been done in the present case.
As correctly submitted by the first respondent, a finding of actual bias requires evidence of prejudgment in the sense that the decision-maker is “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented”: Jia Legeng at [69], [71]-[72], [127].
I further note the observations by von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision.” His Honour further relevantly observed at [38]:
The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion.
In order to establish bias or bad faith the applicant would need to demonstrate that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [56-59]. Again, this has simply not been demonstrated by the applicant. There is nothing disclosed on the face of the Tribunal decision record to support any assertion of actual bias on its part. Merely because the Tribunal came to a different finding of fact to the first Tribunal does not in itself provide a basis for bias.
I accept the submission by the first respondent that:
… for the reasons already given, the fact that this Tribunal sought to rely upon and did rely upon “dob-in” information cannot be seen as an indication of bias, given what the High Court has said in VEAL, [about] “dob-in” information being credible, relevant and significant, depending on the circumstances.
I am further satisfied that there is nothing on the face of the decision record to show that a “hypothetical fair minded lay observer who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias”, might reasonably apprehend that the Tribunal did not bring an impartial mind to the task of the decision making process: Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 at [28].
I am satisfied therefore that no allegation of bias, whether actual or apprehended, can be demonstrated on the face of the Tribunal decision record. Indeed, far from demonstrating bias on the part of the Tribunal, the procedure adopted by the Tribunal in this case of making extensive efforts after the Tribunal hearing by providing potentially adverse information to the applicants in the series of ss.424A and 424 letters inviting their response and then carefully considering such responses, militates against any claim of pre-judgment on its part or that it embarked on the task before it with a mind not open to persuasion.
Accordingly, for the reasons stated above, (and so far as they are relevant, under grounds 1 and 2), Grounds 3 and 4 of the amended application are rejected.
Ground 5 of amended application
Ground 5 of the amended application states that:
That contrary to section 424A (1) (a) of the Migration Act 1958 the Tribunal failed to supply to the applicants the following:
a)Clear details of the Google search alleged by the Tribunal in its letter of 25 June 2007 to have been conducted;
b)Clear (or any) particulars that it intended to rely on certain definitions contained in The Australian Pocket Oxford Dictionary (second edition, Melbourne, Oxford University Press) or contained in The Macquarie Dictionary (third edition, The Macquarie Library)
Mr Levet stated that the google search referred to in a) was “just there for completeness ... I think that’s self-explanatory and I don’t want to be heard further on that”.
The information in question related to a s.424A letter sent by the Tribunal on 25 June 2007 inviting comment on a google search conducted by the second Tribunal in December 2004 that there was no evidence of a fatwa against individual male homosexuals or male homosexual couples or the applicant.
I accept that the Tribunal specified the keywords it entered into the search, advised the applicants that the information was relevant to the review because it suggested that no fatwa was issued against the applicants, which may reflect negatively on their credit, and invited the applicants to comment or respond thereon in compliance with the requirements of s.424A (1) (a), (b) and (c) of the Act.
In any event, it is evident from the Tribunal’s Findings and Reasons that it did not, in fact, rely upon this information in reaching its conclusion on Point 8. It stated in this regard that: “[it] accepts that there may not be any written material available that demonstrates that a fatwa has been issued in Bangladesh” (CB 645).
In regard to b), Mr Levet submits that the Tribunal’s reference to the Australian Pocket Oxford Dictionary and the Macquarie Dictionary to provide evidence of the terms “cousins”, was never put to the applicants for their comment or response in breach of the Tribunal’s statutory obligations under s.424A of the Act.
In relation to (b) the Tribunal referred to dictionary definitions of the word "cousins" and "second cousin". This information falls clearly within the statutory exemption under s.424A(3)(a) to the Tribunal’s statutory obligations under s.424A(1), being information that is “not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”. Section 424A is not enlivened in this instance. I thus detect no breach of s.424A on this basis and am satisfied that the Tribunal accorded the applicants procedural fairness as required under the statutory regime.
Accordingly, Ground 5 of the amended application is rejected.
Conclusion
The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The application and the amended application before this Court are dismissed.
I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 31 October 2008
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