SZEOP v Minister for Immigration
[2006] FMCA 1707
•7 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEOP v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1707 |
| MIGRATION – RRT decision – Bangladeshi claiming fear of persecution as homosexual – Tribunal found he was not homosexual – reference to long delay in claiming protection – whether relevance of delay was sufficiently explained in s.424A notice – whether Tribunal’s reasoning was rational – no jurisdictional error found. |
Migration Act 1958 (Cth), ss.414, 415, 422B, 422B(1), 424A, 424A(1), 424A(1)(a), 424A(1)(b), 424B, 476(1)
Elrifai v Minister for Immigration (2005) 225 ALR 307
Kim v Minister for Immigration & Multicultural Affairs [2006] FCAFC 64
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
Minister for Immigration & Multicultural Affairs v SZGMF [2006] FCAFC 138
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214
| Applicant: | SZEOP |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2105 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 16 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 7 December 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Prince |
| Counsel for the First Respondent: | Ms R Pepper |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2105 of 2006
| SZEOP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 28 July 2006 under s.476(1) of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 2 July 2006 and handed down on 3 July 2006. The Tribunal affirmed a decision of a delegate made on 13 August 2004 which refused to grant a protection visa to the applicant in response to an application lodged on 6 August 2004.
The applicant was in immigration detention at the time when he made his visa application, and appears to have remained in that position until shortly before the hearing of the matter before me (but I note that he has not notified the Court as to any changed address for service). Although decision‑makers and courts at all levels have attempted to address his refugee claims expeditiously, his detention became protracted by processes of judicial review and appeal. These resulted in the first decision made by the Tribunal on 24 September 2004 being set aside on appeal by the Full Court of the Federal Court on 24 February 2006 in one of the five cases addressed in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 (“SZEEU”). The present decision was made by a different member of the Tribunal, after affording the applicant a second hearing.
The applicant’s application to this Court contained contentions of jurisdictional error which were plainly inadequate. It alleged that the Tribunal “failed to understand my claims and failed to consider relevant matters”, without any particulars. Allegations that “I was not accorded natural justice”, that the Tribunal failed to provide explanations under s.424A(1)(b), and that the Tribunal “refused to grant my protection visa application without any proper grounds and proper investigation” were also left unexplained. The application contained no specific criticism of the Tribunal’s decision. The draftsperson of the application appears to have appreciated its inadequacy, since it said “further particulars to be provided”, in relation to some of its contentions.
The applicant was represented at the first court date on 30 August 2006 by the same counsel who had appeared for him in the previous proceedings in this Court and in the Federal Court. The applicant was also present, and did not need the assistance of an interpreter. By consent, I made orders granting leave to the applicant to file and serve an amended application and evidence before 6 October 2006. I ordered the applicant to file and serve a short written outline of submissions and list of authorities 14 days before the hearing which I fixed for 16 November 2006. However, nothing was filed by the applicant, even after the first respondent’s counsel served written submissions which pointed out her inability to respond to the application in the absence of any particulars of the arguments intended to be presented. Enquiries by my associate to the applicant’s counsel, were answered by a message that counsel “has simply not had time to put the applicant’s submissions in writing”. At the start of the hearing counsel appeared to be unconcerned that neither the Court nor the respondents had been given any notice of the arguments he intended to present. This attitude, and the disregard of the Court’s directions, are not acceptable to the Court.
At the start of the hearing, I attempted to elicit and to reduce to writing the particulars of the grounds of the application. The resulting document is on the file. Counsel for the applicant did not seek any adjournment of the hearing, nor opportunity to supplement his oral arguments with a written submission. At the conclusion of his submissions, counsel for the Minister said that she had difficulty responding immediately to his arguments, and I was undecided whether I needed to call upon her. I therefore made orders which would have allowed the Minister to lodge a further written submission after considering the transcript of the arguments presented by the applicant’s counsel. This would have required a lengthy adjournment, since the applicant’s counsel said that he would be unable to make any submission in reply until February 2007.
After further reflection upon the arguments presented for the applicant, I have decided that I do not need to call upon the Minister’s counsel for any submissions additional to those already presented in her written submission. I have arrived at clear opinions against the arguments presented for the applicant, and I consider that it would be a more efficient use of my time and the resources of the Court and of the Commonwealth for me to publish my judgment without incurring the extra expense and delay which would otherwise have resulted.
The arguments of the applicant’s counsel seeking to establish jurisdictional error by the Tribunal focused upon two aspects of its procedure and reasoning. The first concerned an invitation for comments sent by the Tribunal to the applicant under s.424A on 8 June 2006. It is argued that the Tribunal failed in its obligation under s.424A(1)(b) to “ensure, as far as is reasonably practicable, that the applicant understands” the relevance of information revealing a long delay by the applicant in making a claim that he feared persecution in Bangladesh on the ground of his homosexuality. In particular, it is argued that the Tribunal’s letter did not warn him that the Tribunal might consider that the delay supported a finding that he was not homosexual. It is also argued that the letter should have been sent before, rather than after, the hearing.
The second aspect of the Tribunal’s decision which is challenged is the Tribunal’s conclusion that the applicant was not homosexual. The legal sufficiency of this finding is challenged, in particular, due to its treatment of evidence from a witness, Ms NM, who in June 2006 gave an opinion that “he cannot hide his gayness” based on meeting the applicant during her recent visits to the Villawood immigration detention centre.
To understand these contentions, and to put the s.424A letter and the evidence of Ms NM into its context, it is necessary to recount the history of the matter while it was before the Tribunal.
The applicant came to Australia in January 2001 on a student’s visa, and pursued studies here until 2002. At the end of 2002 he was taken into immigration detention after the cancellation of his student visa. He made no claims at that time to fear persecution if he returned to the country of his nationality, Bangladesh. He was released in January 2003 after obtaining a bridging visa on the basis of a review proceeding, but this soon expired, and he remained illegally in Australia. On 29 June 2004 he was again taken into immigration detention. On 27 July 2004 he requested assistance to present a protection visa application, and this was lodged by solicitors on his behalf on 6 August 2004. A delegate refused the application on 13 August 2004, and the applicant appealed.
The applicant’s refugee claims are sufficiently summarised in the judgment of Moore J in the Full Court:
[56]The appellant is a national of Bangladesh. He attended the University of Dhaka from 1992‑1995. Halfway through his four‑year engineering course he became involved in politics, more specifically, with the AL. In October 1995 he addressed a student gathering. Amongst other things, he spoke out in favour of religious tolerance and practices such as prostitution and gay marriages. His pro gay comments made people furious. The appellant had begun to realise his attraction for other men. He had a sexual encounter on one occasion with a foreign student. After that he had some casual relationships with men. This led to confusion in his mind and the realisation that he could never marry a woman. He spoke in favour of gay rights and other human rights and sought a political or social organisation to sponsor him. No one would support him. He received death threats from Muslim fundamentalists. He then interrupted his studies and left secretly for his home city. He was in hiding for a year. He then worked in a marine electronics company. In 2000, fundamentalist Muslims found the appellant in his home city. They threatened his family and gave him an ultimatum to leave the country within three months. The appellant then decided to leave Bangladesh and was accepted into Charles Sturt University.
Before the Tribunal as first constituted, the applicant was represented by a solicitor from the Legal Aid Commission. She presented a further statement by the applicant, and general information in relation to Bangladesh. No corroborative evidence of the applicant’s claimed sexuality was presented to the Department or the Tribunal prior to, or at, a hearing held by the Tribunal on 17 September 2004. His solicitor did not attend, but subsequently listened to the tapes. She then gave the Tribunal a website which the applicant claimed contained “a photo of him with another man”. She also presented a brief unsworn statement by a person, Mr SW, who said:
I met [the applicant] about 7 months ago at the Rose hotel in Erskinville. We used to meet up in North Sydney where he used to live. [The applicant] and I knew each other well as we used to have casual meetings, and because of this I can clarify that he is a homosexual.
The statement of reasons handed down on 24 September 2004 by the first Tribunal contains a description of the hearing. The applicant told the Tribunal that neither the people with whom he had resided, nor his Bangladeshi friends, knew that he was homosexual, and gave vague accounts of his contacts with homosexual people in Sydney. An attempt by the Tribunal during the hearing to verify a claimed encounter with a barman at the Rose Hotel was unsuccessful. The website, to which the Tribunal was referred, only contained four photos of the applicant “alone”.
It is plain that, in the course of the hearing held on 17 September 2004, the Tribunal drew the applicant’s attention to the problem facing the acceptance of his refugee claims, including “the veracity of his recent new claims to be a homosexual”, arising from the lapse of time between the applicant’s entry to Australia and his claiming protection. Its statement of reasons described how it did this:
The Tribunal expressed surprise that he was not aware of the availability of protection in Australia if, as he claimed, he feared for his life in Bangladesh. It noted that this issue was widely covered in the press, and would be familiar to the Bangladeshi community as well as the people the Applicant met during his period of detention in late 2002. The Applicant said that the possibility had not been raised previously. He had not realised that his circumstances could give rise to a refugee claim. It was only during the latest period in detention that people told him about the possibility of a refugee claim; he went through the Convention, and realised that he could be subject to murder and discrimination on Convention grounds.
The Tribunal invited the Applicant to provide detail of any instances – prior to the lodgement of his protection visa application – when he had expressed a fear of returning to Bangladesh for reasons of persecution. The Applicant indicated that he had spoken to people about difficulties in Bangladesh generally. His contacts with the CSU Medical Centre and the International Student Adviser had focussed on immediate medical problems, and on health and financial issues, not the reasons which lay behind them. He did not have any other evidence to indicate that he had previously articulated concerns for his safety in Bangladesh for this or any other reason. His conduct suggested that there were in fact none. The Applicant was provided an opportunity, through open‑ended questions, to provide detail or other evidence to demonstrate the veracity of his recent new claims to be a homosexual and to fear prospective persecution in Bangladesh for that reason.
In its statement of reasons, the Tribunal as first constituted made a factual finding that “the Applicant had not made any refugee claims prior to his lodgement of a protection visa application whilst in detention in August 2004”. It referred to its discussion of this information with the applicant, and concluded that “he in fact had no past experience of or fear of persecution in Bangladesh”, and that “his current claims arise out of discussions whilst in detention about the availability of such protection if he were to present such claims”.
The first Tribunal then separately examined each element in the applicant’s refugee claims, commencing with “the veracity of the Applicant’s recent claim to be homosexual”. In relation to this, the Tribunal pointed to the vagueness and evasiveness of the applicant’s evidence about his homosexuality, and aspects of his claims which “do not appear congruous with the Applicant’s other evidence”. It made a clear finding that “on all the evidence before it, the Tribunal is not satisfied that the Applicant is in fact homosexual or would be so perceived”. It was this finding which provided the reason for the rejection by the first Tribunal of this element in the applicant’s claims.
In my opinion, the significance of this finding by the first Tribunal must have been apparent to the applicant and his advisors. I therefore find it inconceivable that the applicant could not have appreciated that the issue of whether he was in fact homosexual would remain as a central issue for determination, if the matter were remitted to the Tribunal for further consideration.
I do not consider that the reasons for the Full Court’s remittal orders could have altered this assessment. A majority of the Court rejected all grounds of review which were argued, except the omission of the Tribunal to serve a s.424A(1) invitation in relation to the information that the applicant first claimed protection in August 2004 while in immigration detention. Moore J assumed that this was “prior” information, but found that the Tribunal had relied upon the applicant’s unpersuasive explanations for the delay rather than the delay itself. His Honour said:
… its decision was founded, in part, on the failure of the appellant to provide the Tribunal with an explanation for the delay in making the application for the protection visa which was reasonable, rational and consistent with the existence of a fear of persecution. (See SZEEU (supra) at [69])
Allsop J at [254], with whom Weinberg J agreed at [171], differed from this opinion. His Honour said:
Whilst it is undoubted that the Tribunal had regard to what it considered the unsatisfactory explanation for the delay in seeking a protection visa, a reading of the Tribunal’s reasons, and in particular p 14 thereof, reveals reliance on the fact that the visa was not applied for until 2004 in its conclusion that he held no fear of persecution. That fact was a part of the reasoning of the Tribunal.
The Full Court’s order was made on 24 February 2006. On 8 May 2006, the Tribunal invited the applicant to a hearing on 5 June 2006. It requested that he should “send us any new documents or written arguments you want the Tribunal to consider”. The applicant sought an adjournment, which the Tribunal declined. No challenge is made to this procedure.
The applicant did not present any further material to establish his claimed homosexuality, other than presenting a witness Ms NM. She gave the Tribunal a letter, which said:
I have been visiting [the applicant] at Villawood Immigration Detention Centre once a fortnight for the past twelve months. I met him when I was actually visiting another friend, but I couldn’t help but notice [the applicant’s] obvious gayness. I have been a part of the gay community all of my adult life, that is, for the last twenty six years.
[The applicant] is applying for refugee status on the basis of the persecution that gay people face in his Islamic country of origin, Bangladesh. The situation there, both in terms of the official legal sanctions against gay people, and the violence meted out in homophobic attacks which the officials turn a blind eye to, make it totally unsafe for any gay man, let alone someone as obviously gay as [the applicant].
Incarceration is not easy for anyone, but [the applicant] puts his energies into raising the spirits of his fellow detainees and the visitors, with a smile for everyone. He is passionate about freedom, democracy, peace and loves living in Australia. Australia, and Sydney in particular, has a thriving gay population as a vital part of our society and culture, and [the applicant] would be most welcome as part of this.
[The applicant] would be placed in fear of his life if he returned to Bangladesh. Like me, he cannot hide his gayness, and we cannot help but be who we are. In Bangladesh, if a gay person goes out to meet a partner, or tries to make contact with other gay people, they are very likely to be seized by police or killed by a mob. Many of us, like myself and [the applicant], cannot pass as something we are not, for we are betrayed by our walk, our way of standing, our expression, our body language and our nuances.
I urge you to consider with compassion and understanding [the applicant’s] application for refugee status.
(emphasis in original)
The Tribunal described her oral evidence in its statement of reasons:
The Applicant asked that I take evidence from Ms NM who gave me a letter in which she said that she had been visiting the Applicant at the detention centre once a fortnight for the past 12 months, that she had noticed the Applicant’s obvious gayness and that the Applicant was applying for refugee status on the basis of the persecution gay people suffered in Bangladesh. She said that the situation there made it totally unsafe for any gay man, let alone someone as obviously gay as the Applicant. She said that the Applicant was passionate about freedom, democracy and peace. She said that he could not hide his gayness or pass himself off as something he was not because he would be betrayed by his walk, his way of standing, his expression, his body language and his nuances.
At the hearing before me Ms NM said that she could tell that a person was gay by the way they walked or a glance of their eyes. She noted that people progressed through various stages in their lives: they might find greater freedom at university, for example, but when they started working they would come under pressure to conform. She said that when she had started working in the public service people had identified her as gay and had persecuted her. She said that coming out was a gradual and staggered process and she suggested that Bangladesh today might be where Australia had been 40 years ago with regard to the potential criminal penalties attaching to homosexuality.
Ms NM said that the Applicant should not be disbelieved just because his story was not 100 per cent consistent. She suggested that the Applicant would inevitably have problems if he did not marry and that if people picked up signals that he was gay this could lead to problems in Bangladesh. She suggested that he had been very lucky to have lived in Bangladesh for so long without anything happening to him. Ms NM said that she worked for [an AIDS council] as a coordinator of its outreach programme for sex workers and that she understood that prostitution was illegal in almost every country. She suggested that in Muslim countries the provisions of the law with regard to adultery were used against prostitutes. She said that people who grew up in homophobic societies internalised this homophobia just as white people internalised racism so that overcoming these feelings was not a linear progression. She suggested that it had been reasonable for the Applicant to go to a hotel in Erskineville on the basis that his chance of meeting a gay person there would have been better than at a hotel somewhere in ‘the Bible belt’.
Subsequent to the hearing she sent a further letter to the Tribunal. The Tribunal acknowledged reading this, and I find that it was also taken into consideration. It said:
Further to my letter of 4 June 2006, I wish to have the following statement considered with relevance to [the applicant’s] claim for protection as someone who would reasonably be in fear of his life if returned to his home country, Bangladesh.
Australia is far less homophobic than Bangladesh is now, although their society is not so different for gays than ours was twenty or thirty years ago. I speak as an obviously androgynous person, usually interpreted as “queer” by strangers, many of whom have offered me violence through the years. However, homophobia is no longer culturally endorsed here, and I am far less likely to be beaten to death by a gang of young men intent on proving their masculinity or group membership than I was twenty years ago. My description of how things were for me in young adulthood may seem an exaggeration, given that I still live, and was therefore obviously not beaten to death. I am, however, one of the few survivors of my generation of sexually diverse people, some of whom were in fact beaten to death by a gang of young men intent on proving their masculinity or group membership.
Not surprisingly perhaps, I have dedicated much of my life efforts to reducing the number of people living in fear or beaten to death simply because of the nature of their gender or sexuality, and I am grateful that Australian society has moved away from its old “poofter bashing” ways to embrace diversity and multiculturalism and the whole of the human family living here. Please, do not sentence one more young gay person to a possibly very short life of fear and violence, which is the very likely outcome of not granting this gay man protection against the homophobic persecution endemic to current day Bangladesh. Please, I beg you, for the love of humanity, grant [the applicant] this protection. He is not the sort of person who could live quietly and unnoticed in Bangladesh. For the sake of compassion and on the evidence indicating how he would be in fear of his life if returned, please grant him a full protection visa to resume his life in Australia.
The Tribunal also set out in its statement of reasons a lengthy description of the questioning of the applicant, at both hearings, about all aspects of his claims, including his homosexuality. Its description of the first hearing, conducted by the Tribunal as first constituted, is much longer than the description given in that member’s statement of reasons. It is clear, therefore, that the Tribunal listened to the tapes, and formed its own opinions on this evidence. No issue is taken in relation to this procedure.
At the second hearing, conducted by the Tribunal as reconstituted, the applicant was questioned about his contacts with Mr SW:
I asked the Applicant how he knew Mr SW. The Applicant said that he had met him a few times in Newtown, in a pub. I noted that Mr SW had said in his letter that he had met the Applicant at the Rose Hotel in Erskineville. The Applicant said that this was the pub to which he had been referring. He said that he had just been out for a drink. I noted that he had been living on the North Shore at the time. The Applicant said that he had had friends in Redfern and he had gone to Newtown to buy ingredients for cooking. He said that he did not know why he had gone to the Rose of Australia Hotel in Erskineville. He said that Mr SW was not of Bangladeshi background: he said that Mr SW was probably of Lebanese background but he had not asked.
I asked the Applicant what the nature of their relationship had been and the Applicant said that Mr SW was a friend and that Mr SW knew that he was gay. He said that Mr SW had visited him in North Sydney as well. I noted that the Applicant had been living in Gordon. The Applicant said that he had gone to North Sydney for shopping and for a drink. He said that Gordon was not good for shopping. He said that he had gone to Chatswood and North Sydney. He said that he had gone to the library although he said that there was a library in Gordon. He said that sometimes he had had to change trains at North Sydney station and on these occasions he had sometimes gone for a walk outside. He said that he had met Mr SW in the street in North Sydney, then that he could not remember where they had met because he had been in detention for almost two years and he was on anti‑depressant medication. He said that they had met when he had been going somewhere and Mr SW had been going somewhere. The Applicant said that he had not remained in contact with Mr SW or with any of his other friends. He said that none of them had visited him in the detention centre.
The applicant was again questioned about his delay in claiming protection under the Refugees Convention:
I asked the Applicant why he had not applied for a protection visa earlier and he said that he had not known about protection visas at all. He said that because he had been illegal he had been scared to approach the Department of Immigration because he had thought that they would put him in detention. He said that before this he had thought that he would apply for skilled migration. I noted that on the basis of what the Applicant had said at the previous hearing he had been detained in November 2002, he had been released on a bridging visa in January 2003 but he had not pursued his appeal to the MRT against the refusal to revoke the cancellation of his student visa and his bridging visa had been cancelled two months later, in around March 2003. I noted that he had obviously known that his status in Australia was then unlawful since he had referred at the previous hearing and again at the hearing before me to being afraid that he would be detained again by the Department of Immigration.
I put to the Applicant that he had not made any attempt to regularise his status despite his claimed fear of returning to Bangladesh until he had been detained by the Department. The Applicant said that he had not been able to afford a lawyer. I noted that he had said at the previous hearing that he had borrowed $3,000 from friends. The Applicant said that this had not been all at once but $200 or $300 at a time and it had been for his living expenses. I put to the Applicant that his behaviour suggested that he had hoped to remain in Australia illegally rather than attempting to regularise his status. The Applicant said that he had been confused and scared.
I noted that the way of life he had described at the previous hearing in [town] and more particularly in Sydney – visiting friends, doing his shopping, visiting pubs, visiting the library, using the Internet, including logging on to gay chatrooms – did not suggest that he had been confused and scared. The Applicant said that the people whom he had known had been students: he had not known anyone who had applied for refugee status. I noted that despite his claimed fear of returning to Bangladesh he had made no attempt to find out how he might be able to remain in Australia. The Applicant said that he had just been waiting. He said that he had wanted to find a lawyer but lawyers were expensive.
In my opinion, it must have been apparent to the applicant from this questioning that the present Tribunal member was concerned that his conduct might appear inconsistent with the truth of all elements in his refugee claims.
Compliance with s.424A(1)
The Tribunal sought to comply with its obligations under s.424A(1), in accordance with the Full Court’s judgment. The subsection provides:
(1)Subject to subsection (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on it.
The first half of the Tribunal’s s.424A(1) letter of 8 June 2006 identified elements in the applicant’s evidence to the Tribunal which might appear inconsistent with his claim to have lived “in hiding” in Chittagong, and that his life had been in danger from fundamentalists, extremists or terrorists. No issue is taken in relation to this part of the letter, nor with the Tribunal’s subsequent reasoning which relied upon these inconsistencies when disbelieving the applicant’s claims.
The letter then presented information concerning the applicant’s delay in claiming refugee protection in Australia:
You arrived in Australia on a student visa in January 2001. At the hearing in September 2004 you said that your visa had been cancelled and the Department had told you to make arrangements to depart Australia in around October 2002. You said that you had been detained for the first time in November 2002. You said that you had been released on a bridging visa as a result of a decision by the Migration Review Tribunal in January 2003. You said that you had not pursued your application for review of the decision refusing to revoke the automatic cancellation of your student visa because the MRT had not granted you a waiver of the application fee and you had not been able to afford a lawyer. You said that two months after you had been released from detention – that is, in around March 2003 – your bridging visa had been cancelled. You have indicated that you were aware that your status in Australia was then unlawful because you have said that you were afraid to approach the Department of Immigration for fear of again being detained. However you did nothing to regularise your status until you were again detained by the Department which you said at the hearing in September 2004 had been in June 2004.
You have said that you did not apply earlier for a protection visa, despite your claims regarding the problems you would face if you were to return to Bangladesh, because you planned to complete your studies in Australia and to apply for skilled migration. However it is clear that by the time your bridging visa was cancelled in around March 2003 you knew that you had no prospect of completing your studies in Australia and applying for skilled migration. Nevertheless, despite your claimed problems in Bangladesh, you did not apply for a protection visa until 9 August 2004. Your delay in applying for Australia’s protection is relevant because it casts doubt on the genuineness, or at least the depth, of your claimed fear of being persecuted if you return to Bangladesh.
You are invited to comment on this information. Your comments are to be in writing and in English. They are to be received at the Tribunal by 15 June 2006.
Counsel for the applicant submitted that the Tribunal’s statement: “your delay in applying for Australia’s protection is relevant because it casts doubt on the genuineness, or at least the depth, of your claimed fear of being persecuted if you return to Bangladesh” did not satisfy the requirements of s.424A(1)(b). In particular, it did not warn the applicant that the Tribunal might treat the delay as reflecting upon the truth of his claim to be homosexual. Counsel argued that the possibility of a specific finding which rejected this element in the applicant’s claims was required to be drawn to the applicant’s attention.
It is clear that, when the Tribunal came to make its decision, it did base its decision to affirm the delegate’s decision upon information showing delay by the applicant in applying for protection. The Tribunal made a general finding:
I consider that the Applicant’s delay in applying for Australia’s protection is relevant to his application because it casts doubt on the genuineness, or at least the depth, of his claimed fear of being persecuted if he returns to Bangladesh.
I also accept that the reasoning of the Tribunal shows that it regarded the delay as supporting a finding, inter alia, against the truth of the applicant’s claim to be homosexual. The relevance of the delay was indicated in the Tribunal’s statement that there was a “surprising lack of evidence to support this claim, having regard to the length of time the Applicant has spent in Australia”. The Tribunal also expressly referred to this consideration, when explaining why it did not accept the opinion of Ms NM. It said:
I accept that Ms NM who gave evidence at the hearing before me is sincere in her belief that the Applicant is homosexual but as I have said I consider that the Applicant’s delay in seeking Australia’s protection casts doubt on that claim.
The Tribunal also explained other reasons for disbelieving the applicant generally, particularly as to what had happened in Bangladesh. In a series of concluding findings, which rejected all elements in the applicant’s refugee claims, it clearly found that he was not homosexual and would not be perceived to be homosexual if he returned to Bangladesh:
For the reasons given above I do not consider that the Applicant’s claims are credible. I do not accept that he is homosexual, as he claims, or that he delivered a speech to a student gathering in [city] in 1995 among other things calling for the legalisation of gay marriage. I do not accept that he was ‘in hiding’ from fundamentalists who wished to kill him when he was living at his family home in [location] from 1995 until he left Bangladesh in January 2001. I do not accept that he was kidnapped and bashed by five members of the Islami Chhatra Shibir when he attended a student reunion at his old college, [College], in October 2000, nor that his kidnappers then gave him three months within which to leave the country. I do not accept that the Applicant genuinely fears that he will be persecuted if he returns to Bangladesh because he is homosexual, because he is known to the mullahs as a non‑believer who has worked against them and their beliefs, because he is an atheist and does not pray or because he will be recognised as a ‘western attitude person’. As indicated above, I do not accept that the Applicant would have delayed for so long in making an application for a protection visa if he had genuinely feared being persecuted for any or all of these reasons if he returned to Bangladesh. I consider that the claims which the Applicant made in support of his application for a protection visa are a fabrication.
Since I do not accept that the Applicant is, as he claims, a homosexual, I do not accept that there is a real chance that he will be persecuted for reasons of his real or perceived membership of the ‘particular social group’ of homosexuals in Bangladesh if he returns to that country now or in the reasonably foreseeable future.
The issue to be decided in relation to the s.424A letter is, therefore, the sufficiency of the Tribunal’s warning to the applicant that: “your delay … casts doubt on the genuineness, or at least the depth, of your claimed fear of being persecuted if you return to Bangladesh”.
In my opinion, taking into account the full contents of the letter and the preceding history of the matter, this was a sufficient explanation of why the circumstances of the applicant’s delay were “relevant to the review”. The suggestion that the delay could cause the Tribunal not to accept that the applicant had “genuine” fears of persecution as claimed, encompassed a warning that the truth of all elements in his refugee claims was under consideration by the Tribunal. I do not accept that, in the present circumstances, it was necessary for the Tribunal to recite each element of the applicant’s refugee claims and to indicate that each might be disbelieved.
In my opinion, it must have been apparent to the applicant in the circumstances of the matter which I have narrated above, that the Tribunal was contemplating a possible finding that it was not satisfied that he was a homosexual. The Tribunal’s letter reasonably should have warned him that it remained concerned that his delay in seeking protection suggested that all his claims were of recent invention, were therefore not “genuine”, and might not be believed by the Tribunal. This should sufficiently have alerted the applicant to consider what submissions or additional evidence he could present to explain why a conclusion of recent invention should not be drawn. The “relevance” of the delay was, therefore, sufficiently warned. I therefore do not consider that the Tribunal was required specifically to warn the applicant that it might find that he was not homosexual, in part, because of the delay in making this claim.
I also reject the submission that the Tribunal was obliged specifically to warn the applicant that its inference from the delay might be a reason for it not being persuaded by Ms NM’s opinion that the applicant was “obviously gay”. In my opinion, the warning that the Tribunal might regard his homosexual claims as “not genuine” sufficiently indicated that it might not be persuaded by the evidence of the applicant and his witness.
There are now many authorities which have emphasised that the purpose of s.424A(1) is to allow an opportunity for an applicant to comment upon, and address, adverse information which might be relied upon by a Tribunal, rather than reasoning which might be followed by the Tribunal. While s.424A(1)(b) indicates that the Tribunal must ensure that the applicant understands the potential relevance of the information, this does not require it in every case to foreshadow the reasoning which might draw upon the information. The provision allows that the potential relevance of the information might be apparent to an applicant from the nature of the information, from the apparent issues before the Tribunal, or from explanations provided in or accompanying the Tribunal’s s.424A(1) notice, or from a combination of these matters.
In a case where the Tribunal presents information with a warning that it might cause the Tribunal to doubt the entire “genuineness” of an applicant’s refugee claims on grounds of recent invention, the applicant might not need to be warned that this includes each element of those claims. In the present case, I consider that the notice should sufficiently have warned the applicant that all his claims might be regarded as untrue and “fabricated”, due to the fact that they were first presented years after the applicant’s arrival in Australia and when he was facing deportation from an immigration detention centre. The applicant was then given the opportunity intended by s.424A to consider how he could further generally support all of his claims and explain his delay so as to avoid all inferences of recent invention.
Counsel for the applicant did not refer me to any authorities concerning the requirements of s.424A(1)(b). I have previously discussed its objectives in Elrifai v Minister for Immigration (2005) 225 ALR 307 at [34]‑[42]. The Full Court recently found a failure to comply with its requirements in a similar case (see Minister for Immigration & Multicultural Affairs v SZGMF [2006] FCAFC 138 at [38]‑[43]). In both cases, the courts were concerned that an applicant was not informed as to the particulars and relevance of adverse information sufficiently to be able to understand and answer an evidentiary issue which he was required to meet. The courts in both cases considered that the applicant had been given misleading particulars of the information obtained by the Tribunal, without any elucidating explanations, and in a situation where “the use that the Tribunal could make of the information as particularised was not self‑evident”. In my opinion, the present situation is clearly distinguishable.
A further criticism of the Tribunal’s s.424A(1) notice, which was made by counsel for the applicant, was that the letter was dispatched subsequent to the hearing, and not prior to the hearing. He argued that s.424A raised an implicit obligation on the Tribunal to serve a notice at the first occasion on which it “considered” that the information “would be the reason, or a part of the reason, for affirming the decision that is under review”, and not at a later time. He argued that, in the present case, the facts and relevance of the applicant’s delay must have been apparent to the Tribunal prior to the hearing held on 5 June 2006, so that its failure to serve a notice before or during the hearing resulted in jurisdictional error.
No reference was made to authority in support of this submission. Counsel also conceded that there was nothing in the section which expressly pointed to the s.424A(1) duty arising at any particular point of time before the Tribunal concluded its review by making a decision under ss.414 and 415. He accepted that the majority judgments in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 (“SAAP”) are against any implication arising from the sequence of the procedural code in Div.4 of Part 7. However, he argued that it would be consistent with the procedural fairness intentions of the section, to imply an intent that the duty should be performed as soon as the duty arose, i.e. as soon as the Tribunal formed the opinion implied in the words “that the Tribunal considers …”. His argument also required an implication that Parliament intended that any subsequent delay would result in the invalidity of the Tribunal’s substantive decision.
In my opinion, there are two difficulties facing acceptance of this argument. The first is that I am unable to find the implication which was argued in the language of s.424A. The object of the section is to allow an applicant the opportunity to respond which is closely defined in the legislation. This object would be met if a s.424A(1) invitation is served at any time prior to decision, provided that it allows the prescribed time for response under s.424B (c.f. SAAP (supra) per McHugh J at [60] and [71], Kirby J at [154], [164], Hayne J at [184]‑[185] and [208]). In my opinion, the effect of the construction taken in SAAP is that, while it is a jurisdictional requirement that the Tribunal may not validly conclude its review without performing its duties under s.424A(1), it is open to the Tribunal to satisfy a duty to serve a notice complying with ss.424A and 424B at any time prior to its making a decision.
The second difficulty facing the argument in the present case is that it requires me to make a factual finding that the present Tribunal in fact had arrived at an opinion satisfying the language of s.424A(1)(a) prior to or during the hearing held on 5 June 2006. Counsel did not take me to any evidence to establish this. On my own reading of the Court Book, I am ready to accept that the facts and potential relevance of the applicant’s delay in applying for protection were probably apparent to everyone – including the applicant and his advisors, from the inception of the matter before the Tribunal. Certainly, the potential relevance was obvious after the remitter of the matter by the Full Court. The discussion of the matter with the applicant by the reconstituted Tribunal at the hearing on 5 June 2006 confirms that it was still alive to the issue and its potential relevance.
However, I decline to make a finding that, prior to the sending of the s.424A(1) letter dated 8 June 2006, the Tribunal had in fact arrived at an opinion that the information as to the making of the applicant’s protection visa, which ultimately was used in its reasoning based on recent invention, “would be” a reason or part of a reason for affirming the delegate’s decision. On the evidence before me, it is more likely that the Tribunal suspended its opinions in relation to this until after it had the opportunity to discuss his delay with the applicant at the hearing. In my opinion, the Migration Act allowed it to do that, and I can find no jurisdictional error arising from the timing of the s.424A(1) letter.
Counsel for the applicant presented the timing of the s.424A(1) letter as being also a failure to afford procedural fairness under obligations implied into the Migration Act or arising at common law. However, he conceded that s.422B(1) applied to the application before the Tribunal. In my opinion, its provisions have the effect that s.424A(1) exhaustively covered all the Tribunal’s obligations in relation to the making and timing of an invitation to an applicant to comment upon adverse matters. There is a body of authority which establishes this (c.f. Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572 at [132] and [139], Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61, SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62, Kim v Minister for Immigration & Multicultural Affairs [2006] FCAFC 64), and counsel did not attempt to find any authority to support his submission.
Section 422B also answers a contention by counsel for the applicant, that the applicant was entitled to be warned that the Tribunal might not accept the opinion of Ms NM that the applicant was “obviously gay”. The Tribunal’s implicit finding to this effect clearly was an assessment of Ms NM’s evidence, and did not take information from that evidence and use it as a reason for affirming the delegate’s decision, so as to give rise to any obligation under s.424A(1).
Moreover, I do not consider that any unfairness under general principles of procedural fairness occurred, in the absence of any such warning. As I have indicated above, the issue of whether the applicant was homosexual must have been plainly alive in the minds of the applicant and his advisors, as a result of the reasoning followed by the first Tribunal. Ms NM herself seems to have appreciated that her own opinion, based on her belief that “she could tell that a person was gay by the way they walked or a glance of their eyes”, could not be expected to be accepted as conclusive.
The Tribunal’s finding that the applicant was not homosexual
The Tribunal’s finding was attacked by counsel for the applicant under several grounds. He contended that it revealed a failure “properly” to consider the applicant’s claim that he was homosexual, that it failed to consider a relevant matter, being Ms NM’s evidence, that it was unsupported by rational reasoning, and that the finding was one which no reasonable Tribunal could have arrived at on the evidence.
I reject all of these characterisations of the Tribunal’s finding and decision. A significant part of the Tribunal’s reasoning appears in the following paragraphs:
Even if one accepts that when the Applicant initially came to Australia in January 2001 he hoped to remain here through skilled migration, it is obvious that by March 2003 he knew that this was no longer a possibility. Despite his claimed fear of being persecuted in Bangladesh he did not apply for a protection visa until 9 August 2004 and I consider that his delay in doing so clearly casts doubt on whether he genuinely fears being persecuted for a Convention reason if he returns to Bangladesh. As discussed at the hearing before me and as further dealt with as required in the Tribunal’s section 424A letter, I consider that there are further reasons for doubting that the Applicant is telling the truth about his claimed fear of being persecuted in Bangladesh. The Applicant claims to be homosexual but apart from his own assertions to that effect there is a surprising lack of evidence to support this claim, having regard to the length of time the Applicant has spent in Australia.
The Applicant named various names at the previous hearing and at that time he had the assistance of the NSW Legal Aid Commission in pursuing his application but in the event the only evidence which was produced in support of his claim was the letter from Mr SW who said that he could ‘clarify’ that the Applicant was homosexual. The Applicant had not named Mr SW at the previous hearing and at the hearing before me he said that he had not remained in contact with him and he was vague as to the nature of their acquaintance. The Applicant had referred to photographs posted in a ‘web album’ which he had said would corroborate his claims but as referred to above it appears from the submission of the Applicant’s then representative dated 21 September 2004 that this proved to be a dead end. I accept that Ms NM who gave evidence at the hearing before me is sincere in her belief that the Applicant is homosexual but as I have said I consider that the Applicant’s delay in seeking Australia’s protection casts doubt on that claim.
It is not correct, as counsel argued, that the Tribunal irrationally took into account the circumstances of the delay before the applicant claimed to fear persecution as a homosexual, when finding that he was not homosexual. As the above passage shows, it was the combined significance of the delay in claiming protection as a homosexual, and the weakness of the applicant’s evidence of homosexual conduct over that period of delay, which caused the Tribunal to make its adverse finding. In my opinion, this was reasoning which was rational, which identified and addressed relevant evidence, and which arrived at a finding which was open on the evidence.
The Tribunal plainly did take into account the evidence of Ms NM, and considered what evidentiary weight it should be given. I can see no jurisdictional error arising from its conclusion that “the Applicant’s delay in seeking Australia’s protection casts doubt on” her opinion, particularly given its inherent weaknesses arising from the circumstances of her acquaintance with the applicant and the basis upon which she formed her opinion.
A final argument of counsel for the applicant was that the Tribunal failed to consider whether, based on Ms NM’s opinion, the applicant had a well‑founded fear of persecution in Bangladesh on the ground of perceived homosexuality, even if he were not homosexual and might not engage in homosexual conduct. However, the Tribunal did make a finding against a real chance that “he will be persecuted for reasons of his … perceived membership of the ‘particular social group’ of homosexuals in Bangladesh”, and I am not satisfied that it did not take into account Ms NM’s opinion in relation to this issue. I would not draw an inference to the contrary from the absence of a fuller discussion of this issue, in circumstances where the applicant made no such claim (c.f. Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [28] and [31]).
For the above reasons, I am unable to identify any jurisdictional error from the arguments presented by counsel for the applicant. The Tribunal’s decision was therefore a privative clause decision, and I must dismiss the application.
I certify that the preceding fifty‑five (55) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 7 December 2006
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