SZEOJ v Minister for Immigration
[2006] FMCA 627
•6 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEOJ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 627 |
| MIGRATION – Refugee – original refugee claims based on political opinion and religion abandoned – fear of persecution based on subsequent claims of homosexuality – tribunal’s determination of subjective fear – failure to take into account a relevant consideration – finding that applicant had embellished claims – adverse credibility findings – based in part on inconsistent accounts presented by the applicant – jurisdictional error – no separate or independent basis upon which Tribunal’s decision could be supported– application allowed. |
| Migration Act 1958, ss.65, 36(2), 422B, 424A, 424A(3)(b), 424A(1) |
| Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437 SZDJQ & Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 415 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 MZWPK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256 SZEKY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1138 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 | ||
| Applicant: | SZEOJ | |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3077 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 21 November 2005 |
| Date of Last Submission: | 11 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 6 June 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr. B. Zipser (direct access) |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms. S. Mason |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Refugee Review Tribunal is joined as the second respondent in these proceedings.
A writ of certiorari issue quashing the decision of the Refugee Review Tribunal made on 29 April 2004.
The matter be remitted to the Refugee Review Tribunal, differently constituted, to redetermine the review application according to law.
The first respondent pay the applicant’s costs set in the amount of $3000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3077 of 2004
| SZEOJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 14 October 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 24 August 2004 and handed down on 21 September 2004 affirming the decision made on 23 January 2003 by a delegate of the respondent Minister to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings.
The applicant's claims to refugee protection are set out in his application to the first respondent's Department, reproduced at Court Book (“CB”) 1 to CB 26, and in his application for review to the Tribunal at CB 66 to CB 69. On 4 November 2003 a differently constituted Tribunal (the earlier Tribunal) handed down its decision affirming the delegate’s decision. Following an appeal to the Federal Court of Australia, orders were made on 23 March 2004, by consent, which quashed the earlier Tribunal decision, and returned the matter to the Tribunal to be determined according to law. The applicant's claims as put to the earlier Tribunal at a hearing before it (“the first hearing”), held on 25 September 2003, are set out in some detail by the Tribunal in its decision record at CB 243 to CB 244. A hearing was conducted by the Tribunal with the applicant on 3 June 2004. The Tribunal’s account of what transpired at that hearing is recorded at CB 247 to CB 257 in its decision record.
The applicant is a national of India. His claims to fear persecution were based initially on the ground of political opinion arising from his claimed membership, and active involvement, in the “All India Quami Ekta Committee”. He claimed to have been persecuted by “Shiv Sena Saniks” (a group that he claimed were radical Hindu extremists who commanded the support of the “ruling state and central Government of India”). He claimed that his father had died in “mysterious circumstances”, and further that he would be harmed and mistreated by the state and central governments of India because of his political opinion and religious background. He made reference in an interview with the first respondent’s Department to the fact that since arriving in Australia he had developed “a sexual relationship with an Australian male”. However, it was not until his application for review that the applicant raised the claim that he could not return to India because of his homosexuality. Although he maintained the earlier claims at the hearing before the earlier Tribunal, and in a submission by his adviser following that hearing, at the hearing before the Tribunal he abandoned those earlier claims, and pursued his application on the basis of harm that he claimed to have suffered because of his homosexuality, and the fear of further harm on this basis that may be suffered on his return to India.
The Tribunal found:
1)It did not accept the claim (CB 261.3) that he had a well founded fear of persecution based on the “mysterious circumstances” that surrounded his father’s death. This was derived from:
a)The absence of evidence to support the claim that his father had died as a result of a Convention reason or cause; and
b)The applicant’s admission at the hearing that the Tribunal conducted with the applicant, that he did not suspect that there was anything unusual about his father’s death.
2)The applicant made claims in his protection visa application that he was a member of the “All India Quami Ekta Committee” and this membership, and his Muslim religion, was the basis of his persecution. The applicant indicated at the hearing before the Tribunal that he made these claims because his uncle told him his life was in danger, and that the applicant had put in the protection visa application what his uncle had told him to write. In this regard the Tribunal found that:
a)Based on the responses that the applicant gave to the Tribunal at the hearing, he no longer wished to pursue the claims in relation to persecution on the basis of political opinion or religion. The applicant had indicated that politics never interested him, and that he was no longer claiming to be a refugee on this basis (CB 262.6).
b)Even accepting that these claims had been made at the applicant’s uncle’s direction and notwithstanding whether they were “true or false”, that the applicant wrote down everything that his uncle told him to write. The Tribunal concluded that the applicant had “deliberately embellished his claims” in order to enhance his claims for a protection visa, and found that this went to “the matter of his credibility” (CB 264.3). The Tribunal further found that given this admission by the applicant, the provision of the supporting documentation in his protection visa application was “in fact providing false and misleading information in contravention of his declaration given in response to question 16 of Part B of his protection visa application”, notwithstanding the penalties that may apply in these circumstances. This also went to his credibility (CB 264.7 to CB 265.1).
3)The first time that the applicant made claims based on his homosexuality was in his application for review by the Tribunal, and then in a statutory declaration of 25 May 2004 (submitted to the Tribunal). While the Tribunal accepted that the applicant was a homosexual male (CB 265.6) it noted that it was not required to uncritically accept everything the applicant claimed (Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437 (“Randhawa”).
4)The applicant claimed in his statutory declaration of 25 May 2004, lodged with the Tribunal, that he had been sent on a trip to Hong Kong and Thailand because of the threat to his safety in India after the death of his father. The Tribunal did not accept this interpretation of the events because at the hearing with the Tribunal the applicant indicated that he had no idea why he was offered the trip to these countries (CB 266.5).
5)Further, in relation to this trip, that if the applicant had a well founded fear of persecution in India for whatever reason, that he would not have chosen to return to India, only three months before coming to Australia to seek protection (CB 266.6).
6)Whatever experiences the applicant had because of his homosexuality, that these were not his motivation for coming to Australia, which the applicant himself claimed was at his uncle’s instigation (CB 266.7). Further, that even if he could not have applied for protection (in the other countries that he had visited) for some “undisclosed reason” as an “intelligent well-educated English speaker he would have at the very least mentioned this in making his protection visa application” (CB 267.4).
7)Other than his claim to be homosexual, the Tribunal did not accept any of the claims above, gave reasons, and found that “this goes to the matter of his credibility”. The Tribunal’s analysis examined the specific claims made by the applicant, and further rejected details of his claims regarding, in particular, the claim that his uncle did not know that he was “gay”, did not accept that he had been discriminated against, and did not accept that his family had turned against him and reported him to police for being a homosexual in circumstances where it found that he had a close involvement with his family who supported him (CB 268.4). In all, the Tribunal again found that these matters went to the applicant’s credibility.
Having accepted the applicant was a homosexual male the Tribunal went on to consider (as it said, “notwithstanding” its previous findings) whether he had a well founded fear of persecution if he returned to India now or in the foreseeable future. In this regard the Tribunal:
1)Considered material provided by the applicant’s adviser, and in addition considered independent country information available to it which it ultimately said (at CB 269.1) was “more specific and relevant” to the applicant’s particular circumstances. The Tribunal referred specifically to the website “Gay Bombay” which amongst other things described Mumbai as “India’s gay capital”. This website also indicated that: “For gay residents and visitors alike, Bombay is the most hospitable, exciting and indispensable city on the subcontinent.”
The Tribunal noted that the applicant’s adviser, on 7 June 2004, submitted comments in relation to this website to the effect that this site did not reflect the “actual” situation in Mumbai.
2)The Tribunal, notwithstanding these submissions, accepted “that the contemporary position on the treatment and tolerance of homosexuals in India is as contained in that site”, and that this was supported by other independent country information (CB 270.5).
3)In relation to the applicant’s claim that homosexuality was illegal in India, the Tribunal referred to, and accepted, independent country information that relevant provisions (s.377 of the Indian Penal Code) are rarely invoked (CB 272.3).
4)In relation to the applicant’s claim (put before the Court following the earlier Tribunal decision) that he was persecuted not just for being a homosexual, but for being a Muslim homosexual, the Tribunal found that the applicant would not have be subjected to greater problems in India (as for example he would have been because of Shariah law if he had been a Muslim in Pakistan) because of his religion. The Tribunal also noted that the applicant did not elaborate on this claim at the hearing despite being given the opportunity to do so (CB 272.8).
5)In relation to the applicant’s claim that he was unable to find a job, the Tribunal could not be satisfied that the essential or significant reason for this was Convention based (CB 274.2).
6)In relation to the applicant’s claim that he could not adopt a child, the Tribunal accepted that India is a long standing Parliamentary democracy and that such matters are rightly for the executive and judiciary in India to decide (CB 274.8). The Tribunal was unable to be satisfied that any subjective fear that the applicant may have was a well founded fear of serious harm for a Convention reason.
7)In view of all of the above, the Tribunal found there was not a real chance the applicant would face harm amounting to persecution because of his “homosexual orientation”, or any other Convention reason, and found that any subjective fear that he may have about returning to India was not well-founded and therefore found he was not “a refugee”.
The applicant’s originating application to this Court, filed on 14 October 2004, takes issue with the Tribunal’s “attack” on his credibility. Essentially, it does not rise above a mere request for impermissible merits review. In any event, the applicant filed an amended application on 28 January 2005:
“1) The Tribunal found (at CB 264.3) that the applicant had deliberately embellished his claims and (at CB 265.1) that the applicant had knowingly and wilfully provided false and misleading information and claims in his protection visa application, and that these matters went to the applicant’s credibility. Given the applicant’s explanation as to the history of these claims, the Tribunal fell into jurisdictional error in making these findings.
2)The Tribunal found (at CB 266.7) that the fact that the applicant chose to return to India three months before coming to Australia meant that he did not have a genuine fear of persecution for reason of his homosexuality. The Tribunal fell into jurisdictional error in making this finding.
3)The Tribunal found (at CB 267.4) that, because the applicant did not apply for international protection when he left India in August 2002 and because he did not make claims on the basis of his homosexuality in his protection visa application in December 2002, various specific claims made by the applicant concerning his homosexuality were not true. The Tribunal fell into jurisdictional error in making this finding.
4)The Tribunal, in finding that “the contemporary position on the treatment and tolerance of homosexuals in India” was as contained in a website titled “Gay Bombay”, ignored country information provided by the applicant to the Tribunal. On this basis, the Tribunal fell into jurisdictional error.”
At the hearing before me the applicant was represented by Mr. Zipser of Counsel and the respondent by Ms. Mason of Counsel. I also have before me written submissions on behalf of the applicant and respondent. Subsequent to the hearing Mr. Zipser provided a reference to SZDJQ & Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 415 (“SZDJQ”) at [27] to [29] as relevant to the applicant’s claims before the Court. I note the respondent’s subsequent written submissions in this regard, and deal with this below. Further, following the hearing, but before Judgment could be handed down, the Full Federal Court handed down its decision in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 (“SZEEU”). I gave the respondent in particular the opportunity to make any further written submissions and subsequently submissions were filed.
At the hearing before me Mr. Zipser indicated that he would not be pressing ground one in the amended application.
The applicant’s second ground of complaint is based on the Tribunal’s finding at CB 266.6:
“Moreover, the Tribunal is satisfied that the Applicant chose to return to India only three months before coming to Australia when other options were available to him if he had a well founded fear of serious harm in India for any reason whatsoever, and is satisfied that he would not have done so if he thought there was a real chance that he would be subjected to serious harm amounting to persecution for a Convention related reason, and particularly his homosexuality.”
The applicant complains that the Tribunal fell into jurisdiction error in making this finding. Mr. Zipser’s submission was:
1)That the relevant question for the Tribunal was whether the applicant had a subjective fear of persecution at the time of the Tribunal's decision (August 2004), and not at the time that the applicant returned from Hong Kong and Thailand to India (August 2002). Mr. Zipser emphasised that the applicant's change in circumstances in the intervening period (that is, that he had developed his homosexuality in Australia by having a relationship with a man) underlined the need for the Tribunal to focus on the date of decision in determining the issue of subjective fear, and not an earlier date.
2)That the Tribunal's finding that the applicant returned to India from Hong Kong and Thailand in August 2002 when “other options were available to him” indicated that the applicant did not fear returning to India. The Tribunal failed to explain the meaning of “other options”, but if the Tribunal meant by this that the applicant could apply for asylum in Hong Kong or Thailand, Mr. Zipser put forward two complaints. The first was that the Tribunal gave no consideration to whether the applicant could apply, as a practical matter, for asylum in those places, and secondly that the Tribunal's reasons for its decision indicate that it did not raise with the applicant its concern that the applicant could have availed himself of “other options” in order to give him the opportunity to comment. In these circumstances, he stated, this was a denial of procedural fairness.
In submissions at the hearing before me, Mr. Zipser appeared to concede that there was some doubt whether the part of the Tribunal’s decision record relied on (CB 266.6) was a finding by the Tribunal. That is, a finding that the applicant did not have a subjective fear of persecution. However, Mr. Zipser’s submission was that it was clear that the Tribunal was considering whether the applicant had a subjective fear of persecution at the time that he chose to return from his short trip to Hong Kong and Thailand to India in August 2002. He further submitted that the Tribunal appeared to find that he did not have a subjective fear of persecution at that time. The critical factor, as Mr. Zipser saw it, was that in the intervening period between August 2002 and August 2004, the development of the applicant's homosexual relationship in Australia impacted on the applicant’s subjective fear of returning to India. His claim was that while the Tribunal expressly referred to this particular claim, it did not refer to this matter in the context of considering whether the applicant had a subjective fear of persecution at the time of its decision.
Mr. Zipser sought to rely on a decision of Barnes FM; SZDJQ (as I have already indicated, he provided the citation following the hearing), and specifically paragraphs [27] and [29]. His submission was that in that case the Tribunal made a finding that at the time the applicant left the country of claimed persecution he did not have a subjective fear of persecution. However, this occurred some four to five years before the time of the making of the Tribunal's decision. He stated that in that case, the respondent Minister sought to rely on that finding, as it related to an earlier time, and that Barnes FM had found that this course was not open to the respondent. His argument was that where a Tribunal makes a finding that an applicant does not have a subjective fear of harm the Tribunal is obliged to then take into account the relevant circumstances of the applicant at the time of making its decision.
The respondent’s position by way of subsequent submission is:
1)That in SZDJQ the relevant Tribunal finding is that the applicant did not have a subjective fear, and that this is distinguishable from the case before me now.
2)In its “Findings and Reasons” as set out at CB 275 the Tribunal addressed the applicant’s fear of persecution, and whether this fear was well-founded. At CB 275.2:
“[T]he Tribunal finds that there is not a real chance that the Applicant would face serious harm amounting to persecution because of his homosexual orientation or for any other Convention related reason if he were to return to India, now or in the foreseeable future.”
3)That the Tribunal strictly complied with the High Court decision in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 in assessing the “well-founded” aspect of the applicant’s claims.
4)That what the Tribunal was required to do was to consider the applicant’s circumstances and his subjective and objective fears. It decided that such fears were not well founded. This was the extent of what it was required to do.
It must be said that on a first reading of the Tribunal's decision record it can be seen that it was certainly open to Mr. Zipser to argue that there was some doubt as to what exactly the Tribunal was doing in this regard. The Tribunal appears to use the words “findings”, “satisfied” and “accepts” in an interchangeable fashion. In some parts of its decision record it appears to state that it makes a “finding” when in reality, and read in context, it is clearly noting the applicant's claim. In other parts (and particularly relevantly at CB 266.6) it states it is “satisfied” which leaves open the question of whether this is a clear finding, a finding made on balance, or even a finding made with some level of attendant doubt.
With respect to the Tribunal, I should state for its benefit that it is trite to say that the issue of satisfaction, or otherwise, derives from the relevant legislative scheme for protection visas found in s.65 and s.36(2) of the Migration Act 1958 (“the Act”). That being, for a protection visa to be granted, in fact where it must be granted, the decision maker must be “satisfied” that the applicant relevantly, given s.36(2), falls within the definition of refugee as set out in Article 1A(2) of the Refugee Convention. The Tribunal's satisfaction, or otherwise, is derived from its findings, including findings on credibility, which in turn are made from its analysis of the circumstances that the applicant has put forward, any supporting information put forward, and on any other information relevant to the Tribunal's consideration. This Tribunal's approach to the use of the concept of “satisfaction”, when it is plainly engaged in the process of making findings, can only serve to raise doubt about what in fact the Tribunal was doing as Mr. Zipser, in my view quite rightly, pointed out.
In any event, Tribunal decisions should not be read with an eye attuned to error or to over zealously focusing on one word or one small extract (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shang Liang”)). The part of the Tribunal's decision record relied on by Mr. Zipser in support of his submission on this ground, must be seen and understood in the context of the totality of the Tribunal’s decision record. The Tribunal's “Findings and Reasons” are reproduced at CB 261.3 to CB 275.3. The decision record reveals (CB 261.3 to CB 264.3) that the Tribunal dealt with a number of claims originally made by the applicant, and in particular the claims relating to the fear of persecution on political grounds, or his Muslim religion. The applicant ultimately, in effect, withdrew the claims at the hearing before the Tribunal. In reviewing these matters, the Tribunal found (CB 264.3) that the applicant had deliberately embellished these claims, in order to enhance his claims for a protection visa and found “that this goes to the matter of his credibility”. The Tribunal continued its analysis of these issues, particularly in relation as to how his initial claims were put forward. Again it found that these issues (CB 265.2) went to the applicant's credibility.
While having formed what, in context, appears to be an adverse view of the applicant's credibility, the Tribunal (“notwithstanding these findings” CB 265.2) then proceeded to look at the applicant's “new claim” to protection on the basis of a well founded fear of persecution in India because he is a homosexual male:
1)While the Tribunal accepted that the applicant was “a homosexual male” it then plainly, with reference to the approach to be taken where there may be some concerns about the applicant's credibility, proceeded to consider this claim in light of a number of factors arising from the circumstances before it.
2)At CB 266.3 the Tribunal accepted the applicant's claim made about his visit to Hong Kong and Thailand (a claim that was made at the hearing) over the “unsubstantiated claim” made in an earlier statutory declaration dated 25 May 2004 (which had been submitted to the Tribunal for the purposes of the review) that he had been sent to those places for a few days for his safety after the death of his father. The Tribunal clearly did not accept this latter claim.
3)The Tribunal proceeded (at CB 266.4) to stress (“importantly”) that it “finds” that the applicant did not claim that having left India for Hong Kong and Thailand in August 2002 he sought international protection there. Ms. Mason submitted, even though the Tribunal said it “finds”, that this was not really a finding by the Tribunal, but rather that the Tribunal was pointing out, in effect noting, that there was no such claim made by the applicant.
4)The Tribunal then continues and states that nor did the applicant claim that he did not want to return to India because he had a well founded fear of serious harm because of his homosexuality or for any other reason.
5)In leading into that part of the Tribunal decision relied on by Mr. Zipser (CB 266.6), the Tribunal continues with this theme when it “opens” that part of its decision record with “moreover”. While again the Tribunal uses the word “satisfied”, it is clear that in context (on at least a beneficial reading, if not a fair reading) the Tribunal makes findings that the applicant's action in choosing to return to India after he had been outside India at a time that was only three months “before coming to Australia”, was not the action of someone who thought that there was a real chance that they would be subjected to serious harm because of their homosexuality if they were to return to India.
6)The Tribunal continues with this analysis (at CB 266.7) and, with reference to the applicant’s motive for leaving India for Australia, states that it accepted that whatever experience the applicant had in India because of his homosexuality, that he did not feel a need to leave India because of it, and that this was not his motivation for coming to Australia. Clearly, while the Tribunal uses the word “accepts” it is a finding made by the Tribunal, partly based on what precedes it, but also based on the applicant’s new claim that his journey to Australia was at “his uncle's instigation”. It rejected the applicant's other claim that there was nothing about his sexuality in his protection visa application because he was under the impression that this was the way he was “to do things”. It said it was satisfied that if, as the applicant claimed, as a homosexual he had had a long history of discrimination, humiliation and torture in India, that he would have applied for international protection when he left India in August 2002 and that further, if for any undisclosed reason (that is undisclosed by the applicant) he could not do so, that it would have been expected that at the very least he would have mentioned this when he made his protection visa application on 12 December 2002. The Tribunal therefore, in rejecting some specific aspects of the applicant's claims (although still accepting that he was a homosexual), found that this also went to the matter of the applicant’s credibility (CB 267.5).
7)In considering the applicant’s situation, the Tribunal then went on to examine the applicant's claims in the context of having met a man after arrival in Australia with whom he established a relationship (CB 267.5). It looked at this in the context of the applicant's claims that his family had turned against him, and that they had “reported him to police for being homosexual”. The Tribunal did not accept this and gave reasons. It further found that the applicant had a close involvement with his family who continued to support him even after they became aware that he was a homosexual (CB 268.3). The Tribunal rejected this claim, and again stated that this also went to the matter of the applicant's credibility (CB 268.5).
8)At this point of its consideration, the Tribunal plainly states that having accepted that the applicant was a homosexual adult, it had to consider “that notwithstanding all its previous findings (including about his previous experiences as a homosexual male in India)” (CB 268.6), whether the applicant had a well founded fear of serious harm amounting to persecution because he is a homosexual male if he were to return to India at the time of the Tribunal's decision, consequent upon the Tribunal's decision, or in the foreseeable future.
9)The Tribunal then proceeded to consider this question in light of the independent country information available to it about the treatment of homosexual males in India. The Tribunal stated that this information was provided by the applicant’s adviser, and from other sources. This analysis begins at CB 268.8 and continues until the end of the “Findings and Reasons” at CB 275.3.
To some extent I accept Ms. Mason's submission in relation to the extract at CB 266.6 complained of by Mr. Zipser. When viewed in the context of the decision record as a whole, what the Tribunal was seeking to do was to deal with each specific aspect of the applicant's claims flowing from his assertion that he was a homosexual male (which the Tribunal accepted), and also other claims made previously (many of which were subsequently abandoned by the applicant). In the analysis set out at CB 261.3 to CB 268.5 the Tribunal was clearly focused on dealing with the applicant's original claims, in the circumstances put forward by the applicant. Having essentially rejected the different aspects of these claims, and finding that these issues also went to the applicant's credibility, the Tribunal recognised that this was not the end of its task, and in this regard clearly and plainly set out that the question that it needed to address (“notwithstanding the previous findings”) was whether the applicant had a well founded fear of serious harm amounting to persecution if he returned to India now or in the foreseeable future because he was a homosexual male.
In dealing therefore with each of the matters raised by Mr. Zipser as they arise from his reliance on the extract from the Tribunal's decision record found at about CB 266.4 to CB 266.6:
1)When read in context, I cannot see that this is a finding that the applicant did not have a subjective fear of returning to India in the sense as put forward by Mr. Zipser (that is that the Tribunal misdirected itself as to the timing of when the fear of persecution, whether subjective or objective, should be addressed). As I have set out above, the Tribunal was focused on dealing with each of the applicant's claims as they had been put before it by the applicant. In this part of its consideration the Tribunal records the applicant’s statement that he had been sent to Hong Kong and Thailand “for his safety” after the death of his father. The Tribunal looked at this claim, both as it stood on its own, and in the context of the applicant's other claim (that he feared harm because he was a homosexual male) and found that it preferred the applicant's subsequent statement at the hearing that he did not know why he had been sent to those countries. Again, clearly in the context of dealing with the applicant's ultimate complaint (that as a homosexual male he feared harm in India) it noted that the applicant made no claims for international protection when he was in a situation where he could have applied for international protection. Further, that even if for any undisclosed reason he could not do so, then he would have at least mentioned this issue in making his protection visa application. The Tribunal noted that he had not done so. I do not see that the Tribunal was focused on the issue of subjective fear as such at this point in its analysis, certainly not as a primary focus. What the Tribunal was doing was engaging in a process of examining the specific claims made by the applicant, and “sorting out” what it could and could not “accept”.
2)Further, I cannot see that the extract complained of is, in itself, a finding that the applicant did not have a subjective fear of returning to India at that time. I agree with Mr. Zipser that there could be some doubt, and that this may be implied, particularly given the way the Tribunal has chosen to express itself. The Tribunal's statement at CB 266.6 however, does need to be read in context. For example, when taken in combination with the Tribunal's finding at CB 267.5, relating to the issue of the possibility of applying for protection at the earlier time, findings which went to the applicant's credibility, then it is clear its focus was in dealing in a systematic way with each of the applicant’s claims.
3)But even in the event that this could be characterised as a finding by the Tribunal (that the applicant did not have a subjective fear of returning to India in 2002) the Tribunal clearly and subsequently did address the proper question in its analysis commencing at CB 268.5. In particular, I note that at that point in its decision record the Tribunal stated “notwithstanding all its previous findings”. If it had indeed found that there was no subjective fear in 2002, in any event, it did focus subsequently on the relevant question as to whether there was a well founded fear, for a Convention reason, at the time of the making its decision, and in the reasonably foreseeable future.
4)Mr. Zipser also complained, in relation to the Tribunal's finding that the applicant returned to India from Hong Kong and Thailand in August 2002 and did not make claims when “other options” were available to him, that the Tribunal did not explain the meaning of “other options”. If what it meant was that the “other options” were his applying for asylum in either Hong Kong or Thailand, the Tribunal gave no consideration to whether the applicant as a “practical” matter could apply for asylum in Hong Kong or Thailand. Mr. Zipser relied on Randhawa to submit that the Tribunal should have considered whether Hong Kong and Thailand were signatories to the Refugee Convention, and whether homosexuality is permitted and tolerated in those countries. In other words, it should have given greater thought and analysis to the “reasonableness of relocation” of the applicant to those countries.
5)In my view, it is not necessary in the circumstances of this case to consider the issue of relocation in the context of Randhawa. Clearly in that case, the Full Federal Court was considering the circumstances of relocation within the country of claimed persecution, in circumstances where it was understood that the purpose of determining refugee status (when a person is outside their own country) is to provide international protection where protection is not available in the applicant's country as a whole. Clearly, a person is not in need of international protection if such protection is available in another part of their country.
6)However, this is not the issue as found in the circumstances before me, such as to have caused the Tribunal to have considered whether it was reasonable for the applicant to have “relocated” to Hong Kong or Thailand. In the case before me, I cannot see that the Tribunal was making a “relocation finding” in the sense as now put forward by Mr. Zipser. I accept Ms. Mason's submissions in this regard that what the Tribunal was doing was, firstly, to deal with the applicant's specific claims as put by the applicant himself and to have done this in the process of its assessment, including the credibility, of these claims. The applicant himself put forward two different reasons to the Tribunal for having gone to Thailand and Hong Kong. In one version (in his statutory declaration dated 25 May 2004 submitted to the Tribunal) the applicant said that he had been sent there for his safety, and in the other version (at the hearing before the Tribunal) the applicant stated that he had no idea why he had been sent there by his uncle. The Tribunal plainly rejected the claim that he had been sent there for his safety and, for the reasons given, preferred the applicant's later version that he did not know why he had been sent there.
7)In looking at different aspects of the applicant’s claims, and as they related to credibility, the Tribunal also noted in support of its preference for one version over the other, that there was no claim by the applicant that he did not want to return to India, which clearly would have gone to the issue of his having been sent out of the country for his safety and that, “moreover”, the Tribunal found that the applicant further acted in a way the Tribunal found to be inconsistent with one version, and consistent with the other in choosing to return to India from those countries in circumstances where the Tribunal said it was satisfied that he would not have done so, if he had thought there was a real chance that he would have been subjected to serious harm.
8)The Tribunal clearly was not focused on whether adequate protection would be available for the applicant in Hong Kong or Thailand (it did not need to), but was clearly focused on the one version of the applicant's claims (in comparing competing explanations for his actions) that he had been sent to these countries for his safety, that he did not claim that he did anything further while in those countries to secure any further protection, but in fact returned to India, the country where he claimed to fear harm. Clearly this is not a “relocation finding”, but it is an assessment of the specific claims put forward by the applicant. The Tribunal’s finding that it preferred the applicant's version that he did not know why he had been sent to those countries, was in my view clearly open to it on what was before it. Further, it was open for it to find that the applicant had put forward two different versions, and that this issue went to the applicant's credibility. Clearly, there was no need for the Tribunal to give consideration to relocation in any Randhawa sense.
9)Mr. Zipser relies on the Tribunal's decision record to ground this complaint, but given what I have said above, I cannot see that it will assist his case. The Tribunal was not focused on the applicant availing himself of other options, as such, or what those options may have been, even though it makes reference to a UNHCR office or diplomatic mission in the countries the applicant visited. However, on a fair reading these were put forward as examples of what the applicant could, or might have said that he had done, but did not do. They were not put forward as examples of avenues or instruments of international protection that would have been available to the applicant. There is a clear distinction between the Tribunal dealing with the applicant's claim, in general, and his making no claim that he had taken any steps while in those countries, as being a factor that supports its finding to prefer one version of events (as to the reason for the trip) over the other, and clearly not as an example of what would be available to the applicant by way of international “relocation”.
10)As set out above, subsequent to the hearing and following Mr. Zipser’s reference to SZDJQ, I received further written submissions from the respondent in this regard. I am of the view that in the circumstances of this case, that particular case does not assist the applicant. That case relevantly was premised on the Tribunal's finding that the applicant did not have a subjective fear of persecution at the time that he departed his country of origin, and the respondent before the Court in that case sought to rely on that finding in the context of submitting that this was an answer to the Tribunal not focusing on the issue of subjective fear as it existed at the time of decision. That is not the situation in the case before me.
11)However, whether or not the extract at CB 266.6 is a finding by the Tribunal as to the applicant's subjective fear as at August 2002, it is clear that the Tribunal did go on to consider the question of the applicant's fear both on a subjective and objective basis as at the time of the making of its decision. I have already referred to the Tribunal’s specific focus on the issue of well founded fear at CB 268.6. Ultimately, the Tribunal found, based on the analysis that followed in its decision record (CB 274.9 to CB 275.2) that:
“In view of all the above, and based on the claims made by the Applicant, the Tribunal has not been able to satisfy itself that any subjective fear the Applicant may have on this basis is a well-founded fear of serious harm amounting to persecution for a Convention reason. In view of the all above, the Tribunal finds that there is not a real chance that the Applicant would face serious harm amounting to persecution because of his homosexual orientation or for any other Convention related reason if he were to return to India, now or in the foreseeable future. Accordingly, the Tribunal is satisfied that any subjective fear the Applicant may have about returning to India is not a well-founded fear of serious harm amounting to persecution for a Convention reason, and finds he is not a refugee.”
In all, this complaint as put by Mr. Zipser does not succeed.
12)The further claim by Mr. Zipser, that the Tribunal should have put this issue (that is the subjective fear issue) to the applicant for his comment, also does not succeed in all the circumstances. The Tribunal’s adverse thought processes in this regard, do not need to be put to the applicant in the circumstances of this case.
13)The application for review was made on 20 February 2003 and postdates the introduction of s.422B to the Act. To the extent that s.422B makes Division 4 of Part 7 of the Act the exhaustive statement of the matters that part deals with, then s.424A sets out the “information” to be put to the applicant for comment (that is information which is relevant and adverse to his claims). The Tribunal’s adverse thought processes are not “information” for the purposes of this section (see SZEEU per Allsop J. at [206]). In any event the information on this issue (the subjective fear issue) on which the Tribunal relied in drawing its conclusion as set out above, was information which the applicant gave to the Tribunal for the purposes of the review and would come within the exception set out in s.424A(3)(b) from the requirement set out in s.424A(1) of the Act.
14)Nor however, on any common law principles of procedural fairness, can I see that the applicant would succeed in this complaint. The Tribunal was clearly comparing two different versions of events given by the applicant himself to the Tribunal for the purposes of the application for review.
15)I further note the Tribunal’s report of the claims made at the (second) hearing (CB 247 to CB 257). The Tribunal record shows (CB 247.5) that it asked the applicant about travel outside India and the applicant claimed that he had been to Hong Kong and Thailand in August 2002, and gave as the reason for that visit that it was soon after his father died and that he had gone there because his uncle had told him to do so, and that he had no idea why he was offered the trip. The Tribunal reports that further into the hearing (as recorded at CB 248), in the context of a discussion where the applicant was asserting that he always did as his father told him, that he had been sent to a Madrasa (a religious school) and that he had returned there after his “visit to Hong Kong and Bangkok”. The Tribunal clearly made reference to the applicant's statutory declaration of 25 May 2004, and while there was no reporting of any specific reference as to the issue of the contradictory claim in that statutory declaration, it is quite clear that the applicant would have known what he had put in his earlier declaration, and would clearly have known that he had contradicted that statement by his subsequent statement made at the hearing. In all the circumstances, I cannot see that this would amount to a denial of procedural fairness.
The third ground of complaint in the amended application was described by Mr. Zipser in submissions as the “rejection of principle [sic: principal] claims issue”. Mr. Zipser’s submission was that the applicant had put before the Tribunal that he had suffered discrimination and harm on the basis of his homosexuality, in that he was teased about his feminine behaviour at school, was humiliated in his class, could not get a part-time job after school and after university because he appeared to be homosexual, and that after an incident on 1 October 2001, when he was seen kissing a male friend in public, he was assaulted by two police officers and forced to have sex with them. Further, that following this his father and uncle beat him up. Mr. Zipser submitted that the Tribunal did not accept these claims, and the reason (as set out at CB 267.4) was because the Tribunal said that if he had experienced these incidents he would have applied for international protection when he was in Hong Kong or Thailand, and further that if he could not do so, he would have at the very least mentioned this in making his protection this application on 12 December 2002. Further, that because the applicant did not apply for international protection or mention the above matters, that this suggested that the claims were not true.
Specifically, Mr. Zipser’s complaints on behalf of the applicant were:
1)That in relation to not mentioning these incidents in the protection visa application, the applicant gave a specific explanation as to why he did not mention the claims, which was that his father had a political career, that the applicant’s father had received threatening telephone calls, and that the applicant’s uncle arranged for the applicant come to Australia in order to send the applicant to a safe place (CB 245.8). Following the applicant’s arrival in Australia his uncle told him to apply for a protection visa, and told him what to write in the application. The claims based on political opinion, and the persecution as a result, derived from what his uncle told him to write. Mr. Zipser submitted that while the Tribunal rejected the applicant’s claims concerning his political opinion, and his involvement with the “All India Quami Ekta Committee”, it did not reject the applicant's claims concerning the threatening phone calls received by the applicant's father, and the reason the applicant’s uncle arranged for the applicant come to Australia. Mr. Zipser argued that the mere fact that an applicant does not mention a claim in a protection visa application does not mean the claim is not true, and that it is necessary for the Tribunal to evaluate the applicant’s explanation as to why he did not mention the claim in the protection visa application. He relied on Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 557 and WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 (“WAIJ”) at [30]. Simply, the submission is that in the present case the applicant gave an explanation, but the Tribunal did not properly evaluate the explanation and on this basis it fell into jurisdictional error.
2)Another reason the Tribunal rejected the applicant's claims was because he failed to apply for international protection when in Hong Kong or Thailand and this finding suffers from the same defects as outlined in relation to the ground above.
3)The most significant incident claimed by the applicant to have occurred was his abuse at the hands of two police officers on 1 October 2001, and that there was country information before the Tribunal indicating that police abuse of homosexuals was not uncommon in India, and that the Tribunal's reasons for decision suggest that it failed to have regard to this information and that this failure gives rise to jurisdictional error.
4)If the applicant’s father and uncle had send the applicant to a Madrasa from October 2001 to August 2002 this would support the applicants claims concerning the events of 1 October 2001, and this was therefore an important matter for the Tribunal to determine in resolving the applicant's claims. However, the Tribunal made no finding that the applicant's father and uncle sent the applicant to the Madrasa and that this also reveals jurisdictional error.
In relation to the first complaint (20.1 above) Mr. Zipser, at the hearing before me, referred to the Tribunal's decision record at CB 263 where the Tribunal considers a number of issues, in sequence, arising from the applicant's claims, and can be seen to deal with each issue separately before moving on to the next issue. In this, while rejecting some of the applicant's claims, the Tribunal did find that it accepted (at CB 265.8) that the applicant was a homosexual male. The decision record reveals that it continued to consider further matters until CB 267.5 where it stated that it did not accept any of the claims arising out of the applicant’s general claim of a “long history of discrimination, humiliation and indeed torture”. This included the claim to have been raped and beaten by five men including two policemen in October 2001. Mr. Zipser argued that the reason that the Tribunal did not accept any of these claims was based on the Tribunal's finding that he failed to apply for international protection when he was in Hong Kong and Thailand, and that even if he could not do so he would at the very least have mentioned this in making his protection visa application. Mr. Zipser submitted that where a Tribunal has taken an adverse view of an applicant's delay in putting forward claims, that it is necessary to at least sympathetically consider the reason for any such delay. Ms. Mason's submission was that on the material before me, the applicant indicated, as the Tribunal records at CB 263.2 as a result of statements made at the (second) hearing before it, and after the applicant had resiled from claims made in the protection visa application, that everything he had said in his protection visa application, application for review and other statements (including his statutory declaration of 25 May 2004) were true and correct in every respect. The Tribunal records the applicant’s very clear response to this:
“…[T]he applicant replied that the contents of his first application were told to him by his uncle who had arranged for him to come to Australia and, on arrival, he asked his uncle what to do next and claims he wrote down what he is uncle wanted him to write.”
I do not agree with Mr. Zipser’s submissions:
1)That the applicant had put forward as an explanation for why he did not mention the claims in his protection visa application, that the applicant's father had a political career (CB 245.4) or that the applicant's father received telephone calls threatening the father and the applicant because he was forming a new political party which was opposed by his rivals (CB 245.5).
a)On any plain reading of the material before me, it is very clear that these two points were points made in a subsequent submission (that is subsequent to the first Tribunal hearing) put forward by the applicant's then adviser and contained in a statutory declaration of 25 May 2004 (CB 111 to CB 115). It was the applicant's statutory declaration, that amongst other things, made reference to his father's political career, and that his father had received threatening telephone calls. I cannot see how the claim that the applicant's father had a political career, or that he had received threatening telephone calls because he was forming a new political party, can be said to be explanations in themselves, as to why these claims were not put forward in the protection visa application. These issues do not appear to directly relate to the Tribunal’s subsequent finding at CB 267.4 that the list of claims which it sets out at CB 266.8 through to CB 267.4 would at the very least have been expected to have been mentioned in his protection visa application nor, for that matter, do these two issues represent a failure by the Tribunal to address a critical claim put forward by the applicant.
b)The applicant clearly resiled from any claims to fear persecution on the basis of any political issue, and to the extent that his homosexuality may be said to have impacted on his father and his political career, then the Tribunal clearly dealt with this issue. For example, in its decision record at CB 267.7, it did not accept that given all his claims about his upbringing and behaviour, that his family did not know that he was “gay”. It should be noted relevantly that the Tribunal specifically records that it invited the applicant at the (second) hearing to comment on this and explain how they [the family] did not know before.
c)Further, in its finding at CB 268.3, the Tribunal found that the applicant had a close involvement with his family who supported him even after they became aware that he was a homosexual. The Tribunal specifically rejected the applicant's claim that his family did not know he was homosexual until after he had arrived in Australia, and that it was only at that time that he had told his family he was gay.
2)That the applicant's further explanation as to why he did not mention the relevant claims at an earlier opportunity was that the applicant’s uncle arranged for the applicant to come to Australia in order to send the applicant to a “safe place”. This is with specific reference to the Tribunal’s decision record at CB 245.8.
a)What the Tribunal actually records at that part of its decision record (and again it should be noted that this is the Tribunal's reporting of what is in the applicant's statutory declaration of 25 May 2004) is:
“The applicant claims that ‘To send me to a safer place I was sent to Hong Kong and then to Bangkok which was a fairly short trip. On my part I acted as and how I was informed. I came back to India and then I was sent back to Jaipur in the Madrasa. In November my uncle arranged for me to come to Australia.’”
b)While it may be implied that the uncle sent him to Australia to come to a “safe place”, I still cannot see how this statement, in the applicant's statutory declaration, amounts to an explanation as to why he did not mention in his protection visa application the details of harm that he subsequently claimed to have occurred as a result of his homosexuality in India. In fact, the Tribunal's decision record at CB 263.3 specifically refers to the applicant's explanation that the contents of his “first” application (that is, the protection visa application) “was told to him by his uncle who had arranged to him to come to Australia and, on arrival, he asked his uncle what to do next and claims he wrote down what his uncle wanted him to write”. The Tribunal clearly addressed the applicant's relevant claims as they were clarified and developed during the course of the events leading up to and including the (second) hearing before the Tribunal. The claims of threatening phone calls to the applicant's father, and the applicant's political career, cannot on any plain reading be seen as an explanation for his failure to mention details of the harm arising from his homosexuality in his protection visa application. That the applicant’s uncle arranged for him to come to Australia was clearly encompassed in the Tribunal's consideration, and the Tribunal specifically noted in its analysis and its “Findings and Reasons” the applicant's explanation that he had been told by his uncle what to write in his protection visa application. The applicant did give an explanation and the Tribunal evaluated that explanation.
I cannot see any jurisdictional error in the way put forward now by Mr. Zipser.
c)Further, in relation to the reliance on WAIJ, that case involved an applicant and her two daughters who arrived on a vessel from Indonesia and who, at an initial interview by an employee of the first respondent's Department, had not put forward claims on which they subsequently relied and the Tribunal’s failure to take into account a various set of circumstances (which provided an explanation for the omission at the first interview upon arrival). In that case the mother was gravely ill (apparently with malaria), and for 8 to 9 days after her arrival was on an intravenous drip receiving medication. She was not an English speaker. An employee of the first respondent's Department assisted in the preparation of her claims. In all those circumstances, it can clearly be seen that the Tribunal needed to be properly understanding and sympathetic of an explanation as to why important claims were left initially omitted.
d)This is clearly not the situation in the case before me. The applicant is a well educated English speaker (CB 12) who in any event, as is evident from the Tribunal's decision record (CB 263), was taken through what he had put in his protection visa application, his application for review and other statements and further given the opportunity to provide the explanation as to why the protection visa application omitted a matter subsequently raised by him. His explanation clearly was that his uncle told him what to do. There is nothing in these circumstances that correlates to the circumstances as before the Court in WAIJ, which can be clearly distinguished on its facts. Further, in the case before me, unlike WAIJ, the applicant’s attention was specifically drawn to what was put in his protection visa application, and what had been put in subsequent material submitted to the Tribunal, and an explanation was offered, and considered by the Tribunal. This aspect of this ground is not made out.
e)However, an issue of advantage to the applicant does arise out of the circumstances of this complaint and this is dealt with below.
In relation to the second complaint under this ground, namely that another reason that the Tribunal rejected the applicant’s claims was because he failed to apply for international protection when he was in Hong Kong or Thailand, I have already dealt with this issue when dealing with ground 2 above and found no error in the Tribunal's approach.
The third complaint under this ground is that the most significant incident claimed to have been experienced by the applicant was the abuse that he said he suffered at the hands of two police officers on
1 October 2001 and that there was country information before the Tribunal indicating that police abuse of homosexuals was not uncommon in India, and that the Tribunal's reasons, and its decision, suggested it failed to have regard to this information. I will deal with this issue when I deal with the next ground of complaint which concerns country information.Mr. Zipser’s last complaint under this ground is that the Tribunal did not make a finding on whether the applicant's father and uncle sent him to the Madrasa. Further, that this was an important matter for the Tribunal to determine in resolving the applicant’s claims, it did not do so, and on this basis the Tribunal fell into jurisdictional error. This is particularly so, as the claim that he was sent to the Madrasa would support his claim concerning the events of 1 October 2001, that is, that he was detained by police. The Tribunal's decision record at CB 267.5 to CB 268.5 clearly shows that the Tribunal dealt with this issue consistent with the way that, ultimately, had been put forward by the applicant. The applicant had stated that his father and his uncle had beaten him up, and sent him to a Madrasa, where he was told that homosexuality was a sin. Clearly, the Tribunal dealt with the applicant's statement which appeared in his statutory declaration of
25 May 2004 in the context in which the applicant had subsequently presented his difficulties arising from his homosexuality and as he presented these at the (second) hearing before the Tribunal. This was in the context of his, amongst other things, relationship with his family and his claim that the family did not know of his homosexuality until he came to Australia, developed a relationship with the man, and told them of it. The Tribunal clearly dealt with the applicant’s claims in this context. That is, it looked at his statement in his statutory declaration in, amongst other things, the context of his relationship with his family. To the extent that the applicant’s claim that his family did not know of his homosexuality while he was in India formed the basis of the subsequent claim that they had reported him to police, and that he was fearful of the possible harm by the authorities, the Tribunal clearly reports that at the hearing it put to the applicant, specifically in relation to the claim that his father and uncle had beaten him up and sent him to a Madrasa, the question as to why if this was the case, following his being caught and attacked by police, his father was willing to pay a large amount of money to gain his release. It records that the applicant's response was that this was the reason his father and uncle beat him up and sent him to the Madrasa. What follows is the Tribunal's analysis, where it makes reference to the fact that it had already rejected that the applicant had been discriminated against, beaten and tortured because of his homosexuality, and accepted the applicant's own account that his family in fact was aware that he was homosexual, yet still funded his return visit to Hong Kong and Thailand and his subsequent visit to Australia. As the Tribunal noted, the applicant’s family had funded his undergraduate and postgraduate university education and supported him financially all of his life, and that he himself had said he had been “decently brought up financially”. This led the Tribunal to the finding that the applicant had a “close involvement” with his family who continued to support him even after they became aware that he was a homosexual. On this basis, the Tribunal rejected his claim that he had only informed his family that he was gay after he arrived in Australia, and that his family had turned against him and reported him to police for being a homosexual, or that the police or other authorities were after him. I cannot see any failure on the part of the Tribunal to properly deal with the applicant's claims as put by the applicant in this regard. I cannot see that this example (put forward by Mr. Zipser) supports the ground that the Tribunal failed to deal with the applicant’s claims. To the extent that the Tribunal did not accept some of these claims, and found that this, amongst other things, went to his credibility, then this clearly falls in the category of a finding that is within the scope of Tribunal's proper decision making role. In this sense the applicant's complaint in relation to this example does not appear to rise above a request for impermissible merits review (Wu ShangLiang).The fourth ground of complaint is that the applicant provided a significant amount of country information to the Tribunal on the experiences of homosexuals in India “indicating the discrimination against homosexuals in Indonesia” (clearly in context this is a typographical error and should read “India”).
The applicant's specific complaint is that the Tribunal failed to take into account the country information which had been provided to it in coming to the conclusions expressed at CB 270.5 and CB 275.2. This is a reference to the Tribunal's finding that the contemporary position on the treatment and tolerance of homosexuals in India was as contained in a web site titled “Gay Bombay”. On this basis the Tribunal found that “there is not a real chance that the applicant would face serious harm amounting to persecution because of his homosexual orientation”. In submissions before me, Mr. Zipser framed the issue as firstly, whether the Tribunal failed to take into account information provided, and secondly, whether the matter gives rise to jurisdictional error in relation to its ultimate finding.
He referred me to the Full Federal Court decision in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 (“VAAD”). His submission was that in that case the applicant had provided a document to the Tribunal, and that the Full Court came to the view that the Tribunal had overlooked, or disregarded this document, and found in these circumstances, given that the document was material, that there was as a consequence jurisdictional error on the part of the Tribunal. Mr. Zipser subsequently conceded that he was unable to find a particular case in which jurisdictional error was established because the Tribunal failed to take into account a particular country information document as opposed to a document specific to an applicant's claims. Clearly, in VAAD, the relevant document in that case was a letter from a political party in Sri Lanka going to the issue, and concerning, the applicant’s membership of a particular social group namely her being a member of a former President’s family. This letter was amongst letters sent in by a Member of Parliament to the Minister’s delegate who first dealt with the application for a protection visa in that case. Before the Full Federal Court the appellants claimed that it was an error in law and a jurisdictional error on the part of the Tribunal to have failed to have regard to that letter. Having conceded that factually the situation was different before me, Mr. Zipser nonetheless pressed that he would rely on the general principle that if the Tribunal ignores information before it, then there can be jurisdictional error.
He narrowed the complaint to the claim pressed by the applicant at the hearing before the Tribunal (and with reference to the Tribunal's decision record at CB 272.3) relating to s.377 of the Indian Penal Code which dealt with the making of homosexual acts in India unlawful. The applicant had claimed that this law was used to blackmail and extort money from homosexuals as well as (obviously) making the acts of homosexuality a criminal offence. The Tribunal accepted independent country information that the Indian Penal Code was formulated by the British Parliament for India in the 19th century and the statutes on homosexuality were “a relic of the Raj” and have not been changed since independence. However, and further, the Tribunal also relied on independent country information, which it accepted, that made it clear that these provisions are “now rarely invoked”. Accordingly, the Tribunal was satisfied that the chance of persecution of the applicant under s.377 of the Indian Penal Code was remote. Mr. Zipser framed the issue as whether the Tribunal in considering the complaint by the applicant, and his adviser, in considering s.377, erred in its application or ignored the country information. However, at the hearing he accepted subsequently that the mere fact that the Tribunal did not refer to a particular piece of country information did not give rise to jurisdictional error. Nonetheless, he pressed the applicant's position that if a “piece” of country information is important to an issue of consideration by the Tribunal, then the expectation would be that the Tribunal would refer to that piece of country information, or the matters contained within it, in its consideration of the matter.
In my view, the way it dealt with the independent country information put before it, both from independent sources, and by the applicant's adviser, is clear. I cannot see that the complaint can, on what is before me, be made out. At CB 268.5, the Tribunal had reached that part of its analysis where it said that having accepted that the applicant was a homosexual adult, it had to consider (“notwithstanding” its previous findings) whether the applicant had a well founded fear of serious harm amounting to persecution, because he was a homosexual if he returned to India now, or in the foreseeable future. The Tribunal looked at the particular claims put by the applicant, in particular that he had lived in Bombay, and considered the applicant's return to India as a homosexual adult. Further, it focused on whether there was a risk of harm. The Tribunal clearly said at CB 268.7:
“In considering this matter, the Tribunal has considered the independent country information about the treatment of homosexual males in India today both as was provided by his adviser and from other sources available to it.”
The Tribunal actually went on to say (at CB 268.8), with relevance to the complaint now that the Tribunal failed to take into account country information put forward by the applicant:
“The applicant's adviser provided the Tribunal with a wide range of useful documents on gay and lesbian issues which included some reference to the treatment of gay men in different countries, including India, although most of this material was provided to the Tribunal after the hearing under cover of his submission of 11 June 2004. The Tribunal considered this material along with the other independent country information put to the Applicant at the hearing which, by and large, the Tribunal finds is more specific and relevant to the Applicant’s particular situation”
What follows in its decision record is a lengthy account of what the Tribunal records as having put to the applicant at the hearing, in relation to independent country information available to it. In particular it made reference to the web site “Gay Bombay”, and information contained on that web site which amongst other things showed that there was a “new openness of homosexuality in India”. The applicant was given a specific opportunity to comment on this. Further the applicant's adviser provided to the Tribunal, on 7 June 2004, following a specific invitation from the Tribunal at the hearing to do so, submissions in relation to this web site which, clearly from its decision record, caused the Tribunal to give further consideration to this issue. Indeed it noted that “there are cautions contained in the web site such as the one quoted by the adviser”. Having considered the situation, the Tribunal however found that based on all of the information before it, it accepted that the contemporary position on the treatment and tolerance of homosexuals in India, and particularly Bombay, at the time of the Tribunal's making of its decision, is as contained in this web site, and that this was supported by other independent country information.
The Tribunal then went on to specifically address the issue of s.377 of the penal code, and the applicant's specific complaint that this law was used to blackmail and extort money from homosexuals. In relation to s.377 the Tribunal specifically reports that it had put to the applicant information the substance of which went directly to his complaint about the law being used to blackmail and extort money from homosexuals. This is at CB 270.8. It records that it specifically put to the applicant that a trust set up to advocate on behalf of gay issues in India (the “Humsafar” trust) had openly sought the advice of legal experts to challenge s.377 of the Indian Penal Code, and that cases of blackmail and extortion were being documented. The Tribunal also records that the applicant responded to what the Tribunal had put to it. In all the circumstances, I agree with the submissions made by
Ms. Mason that the Tribunal, in relation to this issue, has done what the Full Federal Court in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [11] said that it should do:“The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.”
The Tribunal clearly considered independent country information put to it by the applicant's adviser, and also had regard to other country information available to it. Given that, at the end, it said it preferred the other independent country information to the information provided by the adviser. Even though it regarded that information as being useful, this does not reveal any error on its part. It is as the Court said in NAHI, and as has been held in a number of other cases, that the weight the Tribunal gives to such information is a matter for the Tribunal itself. I cannot see any error in what the Tribunal has done in this regard.
The grounds put forward by the applicant in his amended application, as argued by Mr. Zipser, are not for the reasons set out above made out. However, one issue which arises from subsequent events to the hearing before me, does in my view assist the applicant. As mentioned above, following the hearing, but before Judgement was handed down, the Full Federal Court handed down its judgement in SZEEU. I provided the respondent, in particular, with an opportunity to make further submissions in light of the Full Court’s decision, and a number of other matters that were heard at the same time. The respondent’s further submissions were that the decision in SZEEU did not affect the Tribunal's decision in the matter before me. The issues to be considered, according to the respondent, were that:
1)The Tribunal amongst other things found that the applicant was not a credible witness.
2)That part of the reason for this finding was that the applicant’s protection visa application grounded his claim on the basis of alleged political and religious persecution (CB 264.5), whereas in his claims to the Tribunal the applicant put forward as the basis of this application his alleged persecution by reason of his homosexuality in India (CB 265.3).
3)The applicant's failure (omission) to include the homosexuality claim in his protection visa application, and the conclusion drawn by the Tribunal regarding that failure is not, in the view of the respondent, “information” for the purposes of s.424A because information does not encompass “the Tribunal’s subjective appraisals, thought processes or determinations”: VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471.
4)That this position was considered by Weinberg J., in SZEEU at [177]:
“There are variants of this position that give rise to difficulty. If the applicant has never at any stage said anything about the particular subject, and mentioned it for the first time at the Tribunal hearing, an inference might be drawn that his or her account was a recent invention. It is questionable whether there would be an obligation under s 424A(1) to invite comment upon the applicant’s previous silence since this may not relevantly constitute "information" within the meaning of s 424A(3)(b). Yet if the position is slightly different, and the applicant has given a detailed account of the matter on a previous occasion, omitting mention of a detail now raised for the first time in the hearing, there is some support for the proposition that this may constitute "information", and give rise to the s 424A(1) duty.”
5)The respondent’s submission was that the reference by the Tribunal to this “omission” does not constitute “information” as discussed in the first part of the distinction drawn by Weinberg J., because the applicant mentioned for the first time at the Tribunal hearing that his persecution was in relation to his homosexuality.
The respondent’s submissions that the applicant mentioned for the first time at the Tribunal hearing that his fear of persecution was in relation to his homosexuality is in plain contradiction to the material before me. It is clear that the applicant did not raise the issue of his homosexuality, and persecution in India in his application for a protection visa. However, the delegate’s decision record of 23 January 2003, reproduced in the Court Book before me (CB 64 to CB 65), clearly shows at (CB 64) that the applicant was interviewed by the Minister’s delegate in relation to his application, and that he indicated at that interview that he had formed a genuine sexual relationship with a young Australian man. The issue is dealt with by the delegate in the decision record under the heading of “Homosexuality” (CB 64.3). Further, the applicant specifically raised the issue of his fear of harm should he return to India, based on his being a homosexual, and that he had been subject to violence because of his sexuality in his application for review to the Tribunal made 23 February 2003 (CB 68). Further, the Tribunal itself in its decision record, at CB 265.1 noted that:
“…from the time of his interview with the Department on 15 January 2003, the Applicant essentially made a new claim that he was seeking a protection visa in Australia as he has a well-founded fear of persecution in India because he is [a] homosexual male.”
If for no other reason therefore, the respondent’s submission now that she relies on the factual situation in the case before me, as coming within what was discussed by Weinberg J. in the first part of the distinction set out in the extract above, [that the applicant never said anything about homosexuality until the hearing before the Tribunal] can be clearly distinguished. The applicant did not mention the homosexuality issue for the first time at the Tribunal hearing. It was mentioned some considerable time earlier. In any event, what the Tribunal really considered was not that the claim had been made at a later time but that given the “seriousness” of the claims, and given the applicant’s long history of claimed discrimination and humiliation, that it would have expected that the applicant would have at least mentioned this in making the protection visa application. In this regard the facts before me would, if anything, fall within the second and latter part of the distinction drawn by his Honour above. That is, that the applicant had not given a detailed account of the matter on a previous occasion, but nonetheless had omitted to mention detail raised at the hearing in his protection visa application. I also relevantly note that the extract of his Honour's Judgement relied on by the respondent now has, with respect, a degree of qualification. His Honour says an inference “might” be drawn, that it is “questionable” whether there would be an obligation and in the latter (and more relevant) distinction that “there is some support for the proposition that this may constitute information.” I also note that the paragraph from His Honour’s Judgment relied on by the respondent appeared in a block of paragraphs under the heading of “concluding observations” by Weinberg J. and also included relevantly, for reasons which are obvious, the following paragraph at [182]:
“However, since SAAP, fairness is no longer the touchstone. Indeed, it may be regarded as being only marginally relevant. The requirements of the section have been construed as being imperative, and accordingly, must be met, whatever the circumstances may be. The only limiting requirement is that the information in question be "a part of the reason" for affirming the decision. The causal connection must be real, but need not be great. It is not necessary to show that "but for" the information in question the result would have been different. It is sufficient simply to show that the "information" contributed in some way, which renders it an operative causal link, to the decision itself.”
The Minister makes no reference whatsoever in the further submissions to anything said on this issue by His Honour Justice Allsop in the same case. Allsop J., in considering this issue, relevantly said:
At [204]:
“The assessment whether the Tribunal has complied with s 424A(1) requires close attention to the reasons of the Tribunal, because it is the information that the Tribunal considers relevant that must be assessed in order to see whether, prior to the decision being made, it would be the reason or a part of the reason for affirming the decision.”
At [206]:
“Information does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: Tin at [54], Paul at [95] and VAF at [24]. In this respect, it is relevant to recall the root of the word ‘information’: that of which one has been told or apprised, or informed. The distinction can become fine: Paul at [95]. It is a distinction, nevertheless, to be maintained. Also, the fact that appraisal, thought processes and determination are not information does not mean they are not relevant to the operation of s 424A. The thought processes of the Tribunal may reveal the relevance of information for s 424A(1)(b) and may assist in understanding what the Tribunal must say or do to comply with s 424A(1)(a), (b) or (c).”
At [215]:
“In my view, in the light of SAAP, in circumstances where one is faced with a decision of the Tribunal with reasons and the complaint is a contravention of s 424A(1), the question to ask, by reference to the reasons of the Tribunal in the context in which one finds them (as revealing what would be the reason or a part of the reason for affirming the decision immediately prior to the making of the decision), is whether the information in question was a part (that is any part) of the reason for affirming the decision. To the extent that the reasons of the relevant majorities in Paul and VAF can be seen to require that the relevant part of the reason have a stature or importance, or be of a character, which would make it unfair not to invoke the procedures of s 424A, I think SAAP requires that such an approach be rejected. It is only necessary that the information be a part of the reason.”
In the case of SZBMI, which was heard with SZEEU, Allsop J. said:
At [221]:
“I do not regard the operation of s 424A(1) as limited to circumstances where the information imports some positive factual finding. To the extent that cases such as MZWPK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256 at [14] and SZEKY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1138 [19]-[23] say as much, in my respectful view, they limit too narrowly the operation of the section. That, of course, is one way that the information is a part of the reason. Another would be the inconsistency between the information and what was now being said. If the Tribunal considers that inconsistency relevant to the assessment of the claims, it may be that the information would be part of the reason. If a Tribunal says that it does not believe an applicant for reasons that can be seen to include the fact that one thing was said in the prior statement and another at the hearing, or the fact that if what is now being asserted at the hearing is true it would have been in the prior statement in that form, the information would be part of the reason. The information is the knowledge imparted to the Tribunal of a prior statement in a particular form. The significance given to it by considering it in the light of evidence is the product of mental processes. This significance and those mental processes are not information, but rather, are why the information is relevant for s 424A(1)(b).”
At [225]:
“If the Tribunal finds as relevant to its reasoning some inconsistency or incompatibility between earlier information and evidence to it as relevant to its reasoning that may well engage s 424A if such inconsistency or incompatibility can be seen to have been a part of the reason for affirming the decision.”
In the case before me, in the course of its analysis of the applicant's claims, the Tribunal amongst other things found (at CB 267.5) that the applicant did not mention in his protection visa application that he was a homosexual, and that he had a long history of discrimination, humiliation and torture so severe that it would have been serious harm amounting to persecution. Further it said, nor did he mention any of the specific incidents which he claimed occurred to him as a result of his sexuality. The Tribunal, while appearing to maintain its acceptance that the applicant was a homosexual, said that it did not accept any of the other claims made by the applicant which flowed from this. Further, it found that along with other matters (“again”) that this went to the matter of the applicant's credibility (CB 267.5).
In my view this fits squarely within what Allsop J. said in SZBMI at [221]. The Tribunal before me says that it does not believe the applicant, both in terms of the specific claims, and generally as to his credibility, because if what he subsequently asserted as being true was true, it would have been in the protection visa application. On what is Honour said in SZBMI the relevant information is the knowledge imparted to the Tribunal of the applicant's prior statement in the protection visa application form. The significance given to it in the Tribunal’s consideration is the product of its mental processes, those mental processes, and the significance, are not information. Nonetheless, the knowledge imparted to the Tribunal from what was in the original application, is information for the purposes of s.424A(1).
In light of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679 and SZEEU it cannot be said in the circumstances before me that the applicant gave the Tribunal this information (the information contained in the protection visa application in which excluded any mention of his claim to fear harm on the basis of his sexuality). For the purposes of the review conducted by the Tribunal, such as to bring this information within the exception contained in s.424A(3)(b), from the requirements set out in s.424A(1) of the Act. In his application for review to the Tribunal (CB 68) the applicant does not really say why he would be arrested and detained if he went back to India, but he does subsequently set out, albeit without detail at that time, that he would be persecuted because of his sexuality. It is clear that at the time of the hearing before the Tribunal, conducted on 5 May 2004, the applicant did not claim to be a refugee because of his political opinion or his Muslim religion, but that the critical issue was his fear of persecution because of his sexuality. Nor in summarising his claims on 1 June 2004 (CB 80 to CB 81) did his adviser, at that time, put forward anything other than claims arising out of the applicant's fear of harm because of his homosexuality. On what is before me therefore, it cannot be said that the applicant in any sense “republished” to the Tribunal (if indeed this is available to the respondent to now argue) such that it could be said that the applicant put his original claims (and later abandoned claims) before the Tribunal for the purposes of review. In all therefore, it would appear that the Tribunal's relevant finding (at CB 267.4 to CB 267.5) relies on the inconsistency and, perhaps more accurately, the incompatibility between earlier information provided in the application for a protection visa (being the totality of the applicant's claims as presented at that time), and the incompatibility with the evidence that the applicant essentially gave at the hearing before the Tribunal, and in subsequent written submissions.
The issue remains whether this incompatibility can be seen to have been at least a part of the reason for affirming the delegate’s decision. On the authority set out about above, if this answer is in the affirmative, it may well engage s.424A. I am mindful of what his Honour Allsop J. said as set out above, and in particular that the assessment of whether the Tribunal has complied with s.424A(1) requires close attention to the reasons of the Tribunal to determine whether the relevant information would be at least a part of the reason for affirming the decision (at [204] and [215]). I also note at [216] where His Honour states:
“…Merely because something is contained in the text of the reasons of the Tribunal which involves "information" does not conclude the question whether it was (and, in the relevant sense, would be) a part of the reason for affirming the decision…”
Further, I am also mindful that the relative importance of the information to the Tribunal’s reasoning process is not an additional requirement in determining whether the operation of s.424A has been engaged.
The applicant's ultimate claims before the Tribunal arose out of his claim that he was a homosexual, and that because of this a number of specific incidents of harm had occurred to him, and that he feared similar and other harm amounting to persecution on the basis of his homosexuality should he return to India.
The Tribunal looked at the applicant’s specific claims of incidents and events of harm that he said amounted to persecution, based on his homosexuality (CB 266.7 to CB 268.5). The Tribunal found that although it did accept that the applicant was a homosexual male, it was unable to accept any of the applicant’s specific claims of harm as a result of his homosexuality. This rejection was based on a number of factors, but in part, the Tribunal makes it clear that had he suffered such incidents of torture and harassment (CB 267.5) he would have “at the very least mentioned this in making his protection visa application”. As such, although accepting that the applicant was a homosexual male, in rejecting his specific claims of harm, the Tribunal relied (at least in part) on the failure to mention these claims in the protection visa application. As a result, the Tribunal relied, at least in part, on an inconsistency or incompatibility between the original protection visa application (not provided to the Tribunal for the purposes of review) and the review application, and this was information for the purposes of s.424A(1). For the reasons set out above the Tribunal’s decision record reveals on its face in this regard that the Tribunal has committed jurisdictional error.
The issue remains however whether this part of the Tribunal’s decision, this basis for the Tribunal’s decision as set out above, can be distinguished from another separate basis that could be said to be otherwise unimpeached, upon which the decision was reached, and therefore was not affected by any failure to comply with the requirements set out in s.424A (see VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 per North J). This question specifically is, can the Tribunal’s decision, more particularly the basis of the Tribunal’s decision, be separated out at a point in its decision record at CB 268.5 such as it can be said there is a basis to the Tribunal’s decision which is not infected with jurisdictional error. What preceds CB 268.5 in the decision record, in my view, does contain jurisdictional error as set out above. Is what follows up until the end of the decision record at CB 275.4 capable of constituting on its own, a separate, independent basis for rejecting the application?
One possible reading of what the Tribunal has done, from CB 268.5, is that it “drew a line” in its analysis at that point and “notwithstanding all its previous findings”, including findings about the applicant’s previous specific harmful experiences as a homosexual male in India, it considered whether the applicant had a well founded fear of serious harm amounting to persecution now (at the time of decision) or in the foreseeable future on the basis that he was a homosexual male. The Tribunal considered independent country information about the treatment of homosexual males, both as it was provided by the applicant’s adviser, and from other sources available to it. It is clear that the Tribunal formed its views based on independent country information that it said was to be relied upon. Clearly such information, as it was not personally about the applicant, fell within the exception contained in s.424A(3)(b) of the Act from the requirement pursuant to s.424A(1). To the extent that it gave weight to the independent country information provided by the applicant's adviser, such information clearly came within the exception, if not in s.424A(3)(a), then s.424A(3)(b). Such weight that the Tribunal gave to this information is a matter for the Tribunal (NAHI). The Tribunal considered in detail the information before it in relation to homosexual males in India and found that it could not be satisfied that the applicant, as a homosexual male in India (and I note that the Tribunal specifically considered that the applicant was a Muslim homosexual male), would have a well founded fear of persecution.
However, while it dealt extensively (see “below the line” at CB 268.5) with the general situation as it applied to homosexual males in this part of its decision record, what the Tribunal did not do (as it had rejected the applicant’s specific claims of harm in a way that ultimately, in light of SZEEU, involved a failure to discharge its statutory obligations under s.424A) was to examine the issue of a well-founded fear of persecution on the basis of the applicant’s homosexuality, in light of the applicant’s specific claims as they could be said to apply in the general situation applicable to homosexual males. (In one sense that is unsurprising, as the Tribunal had rejected those claims.) Even if “above the line” (at CB 268.5) the Tribunal had accepted the applicant’s specific claims of harm arising as a result of his homosexuality, it would still not have been enough for the Tribunal to ask only (if the separation argument were to hold) whether homosexuals in India had a well founded fear of persecution in India. Whether the Tribunal accepted or did not accept the applicant’s specific claim arising from his homosexuality, for the part of its decision record “below the CB 268.5 line” to be seen as a separate basis for its decision the Tribunal would still have needed the Tribunal in this part to have examined the question of fear of persecution based on the applicant’s homosexuality with reference to the applicant’s specific circumstances and as they related to the general circumstances applicable to his homosexuality in India. The failure to consider the issue of the applicant’s homosexuality with reference to the applicant’s specific claims renders the consideration of the applicant’s homosexuality claim, as a whole, incomplete. Clearly, the applicant's specific claims of harm arising out of his homosexuality were relevant to the question that the Tribunal, properly, posed for itself at CB 268.
In my view, on a plain reading of the Tribunal's decision record, at the paragraph where it makes reference to the fact that “notwithstanding its previous findings” it would now look at the issue of persecution “because he is a homosexual male”, the Tribunal was not seeking to exclude from its consideration the applicant's specific claims to fear persecution on the basis of his homosexuality, it was not seeking to exclude its previous findings in relation to some of those experiences, but was seeking to further consider another aspect, or context, of the applicant’s claims, namely his claims as set in the totality of information about the situation of homosexuals in Bombay and the future chance of harm.
In effect, in my view, a plain reading of the Tribunal's decision record is that what preceded that part of the decision record (at 268.5) were claims arising out of his homosexuality, and in particular, instances of specific harm that had occurred in the past. What follows is a consideration of the applicant's claims arising out of his homosexuality as they were to be assessed at the time of decision, and as against what could foreseeably occur in the future. On a plain reading of the Tribunal's decision, I cannot see that any real line can be drawn at CB 268.5 such as to say that what follows is a separate basis, otherwise unimpeached, upon which the decision was reached. Clearly the applicant's specific claims of harm arising out of his homosexuality are relevant to the question that the Tribunal, properly, posed for itself at CB 268. If the line were to be properly drawn the Tribunal would have needed to again reconsider the specific claims in the context of the general information. The absence of such reconsideration is indicative in my view, of the Tribunal’s intention not to “draw a line” but to further consider the claims in a context of the general country information before it.
The applicant’s specific claims of persecution, based on his homosexuality, cannot be separated from the basis for the ultimate conclusion reached by the Tribunal. At least a part of the reason for the Tribunal's ultimate decision were its findings that the applicant did not make the specific claims of harmful incidents in his protection visa application, in circumstances where “at the very least” he would have been able to have mentioned this in the making of that application. It used that finding as the basis to reject those claims, and further, to partially ground a finding that went to the matter of the applicant's credibility. Based on the authorities above, there has been a failure to observe the requirement set out in s.424A(1) of the Act. Further, I cannot see in the circumstances before me (and nor has it been argued) that there is any reason to withhold such relief in the exercise of the Court's discretion for the reasons set out by the majority in SAAP, and as referred to in SZEEU. I will make orders remitting this matter to the Tribunal for reconsideration.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date: 6 June 2006
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