SZEOP v Minister for Immigration
[2005] FMCA 443
•29 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEOP v MINISTER FOR IMMIGRATION | [2005] FMCA 443 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.91R, 91R, 91X, 424, 424A, 424B, 425, 427, s.427(6)(a), 474
Judiciary Act 1903 (Cth), s.39B
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1994) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Applicant S395 of 2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALD 224
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
SZDWF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 56
Luu v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 369
Minister for Immigration & Ethnic Affairs v Surjit Singh (1997) 74 FCR 553
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Cassim (2000) 175 ALR 29
Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82
Muin v Refugee Review Tribunal (2002) 190 ALR 601
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126
Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362
Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] 90 FCA 247
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
| Applicant: | SZEOP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG3092 of 2004 |
| Delivered on: | 29 April 2005 |
| Delivered at: | Sydney |
| Hearing date: | 11 February 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| Counsel for the Applicant: | Mr S E J Prince |
| Counsel for the Respondent: | Ms V A Hartstein |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3092 of 2004
| SZEOP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 24 September 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 13 August 2004 to refuse to grant the applicant a protection visa.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZEOP”.
The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 14 January 2001. On 9 August 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 13 August 2004 the delegate refused to grant a protection visa and on 20 August 2004 the applicant applied to the Tribunal for a review of the delegate’s decision.
The applicant’s protection visa application indicated he was born in Dhaka in September 1973. He lived in the city of Chittagong from 1988 to 2001, although he also stated he attended University in Dhaka from 1992 to 1995. The applicant claimed he completed fourteen years of education and worked in Chittagong as an assistant electronics engineer from a 1997 to 2000. The applicant arrived in Australia January 2001, having travelled legally and without incident on a Bangladeshi passport. The applicant studied at Charles Sturt University, Wagga Wagga for approximately one year until February 2002.
In a handwritten statement attached to his visa application, the applicant listed the following reasons for leaving Bangladesh:
a)Political activities: half-way through the applicant’s four year electrical engineering course in Dhaka, the applicant became involved in politics, namely the Awami League. In October 1995, he addressed a student gathering, calling for “Western world political activities” society and politics. He spoke out in favour of religious tolerance, and practices such as prostitution and gay marriage. His pro-gay comments made people furious.
b)The applicant began to realise his attraction for other men. He spent some time with foreign students and had a sexual encounter on one occasion. After this, he had some casual relationships with men. This led to confusion in his mind, and the realisation that he could never marry a woman.
c)The applicant began to speak out in favour of gay rights and other human rights, and sought a political or social organisation to sponsor him. No-one would support him; they rather saw him “as the Devil”.
d)After he received death threats from Muslim fundamentalists, the applicant had to interrupt his studies and leave secretly for his home city. After a year in hiding, he found work in a marine electronics company.
e)In 2000 fundamentalist Muslims found the applicant in Chittagong. They threatened his family and gave him an ultimatum to leave the country within three months.
f)The applicant decided to leave for abroad and was accepted into Charles Sturt University (Court Book pp.28-30) (“CB”).
The Tribunal’s findings and reasons
The Tribunal’s decision under the heading “Findings and Reasons” stated:
“On the basis of all the evidence before it, the Tribunal finds that the Applicant travelled to Australia in the hope of finding a better future, and not because of any past or prospective persecution which he might face. The applicant did not manage to meet his financial and study obligations, and has since sought to remain in Australia on various bases. The current claim originated from his exchanges whilst in detention.” (CB pp.187-188)
Despite arriving in Australia in 2001, the Tribunal noted that the applicant had not made any refugee claims prior to his lodgment of a protection visa application whilst in detention in August 2004 (CB p.184). The Tribunal also held that:
“On all the evidence before it, the Tribunal is not satisfied that the applicant is in fact homosexual or would be so perceived, or that he is a member of that or any other particular social group for the purposes of the Convention.” (CB p.186)
The applicant’s claimed homosexuality was dismissed by the Tribunal on the following bases:
a)The internet page to which the applicant made reference at the Tribunal hearing did not contain pictures which would suggest the applicant was homosexual (CB p.186).
b)The inconsistency between the applicant’s claim to have been concerned about fellow Bangladeshi students at his University discovering his homosexuality and his claim to have posted photographs of himself on the internet which illustrate his homosexuality (CB p.186).
c)The “brief (almost dismissive) account” of Bandu, a social welfare society which runs a major HIV/AIDS program for MSM (men who have sex with men) in Bangladesh (CB p.186).
d)The lack of detail of media coverage provided by the applicant in respect of having spoken out in favour of human rights, prostitution and gay marriage at the Bangladesh University freshman’s day in 1995 (CB p.186).
e)The applicant’s delay in applying for a protection visa and claiming he feared persecution, notwithstanding his ability to speak English (CB pp.184-185).
Application for review of the Tribunal’s decision
On 15 October 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). The applicant attended a directions hearing before me on 29 October 2004 and by consent to Short Minutes of Order agreed to file and serve an amended application giving full particulars of each ground of review relied upon by
30 January 2005. The applicant was further required to file and serve any written submissions with supporting affidavit material or transcript of the Tribunal hearing to be relied upon prior to the hearing. On
4 February 2005 the applicant filed an amended application containing the following grounds:
“1.The RRT fell into jurisdictional error, and the exercise of its jurisdiction and power was affected in that the Prosecutor was denied procedural fairness.
i)The Tribunal did not make any or any adequate attempts to inquire into the whereabouts of [Mr A N] who was identified by the applicant to the Tribunal as a person whom it could contact to corroborate his claim to be homosexual.
ii)The Tribunal failed to take any steps or any adequate steps to inquire into the whereabouts of [Mr A N] notwithstanding that it had created a legitimate expectation in the applicant that it would undertake such inquiries.
iii)The Tribunal undertook to itself a duty to inquire into the whereabouts and or evidence of [Mr A N] and did not discharge that duty.
iv)The hearing was not conducted with procedural fairness in that an inquiry was made of one person who was identified by the applicant (namely “Alan”) but not of [Mr A N]. The Tribunal failed to inquire into material which may have exonerated the applicant.
v)The hearing was not conducted with procedural fairness in that the hearing proceeded in the absence of the applicant’s representative.
vi)The hearing was not conducted with procedural fairness in that the hearing proceeded in the presence of guards employed by the private security firm contracted to operate the Detention Centre at Villawood.
vii)The hearing was not conducted with procedural fairness in that the applicant was interviewed in an environment which was not conducive to his being able to fully and freely discuss the details of his homosexuality.
viii)The decision was attended with a denial of procedural fairness in that alleged incongruity between the letter from [Mr S W] and the applicant’s version of events was not put to the applicant for comment.
ix)The Tribunal did not discharge its duty to inquire into any concerns it had about the letter from [Mr S W] either by contacting the applicant’s representative or by contacting [Mr S W].
2.Further and in the alternative, the RRT fell into jurisdictional error, and the exercise of its jurisdiction and power was affected in that the Tribunal did not comply with the requirements of s.424A, 424B or 425 of the Migration Act in that:
a)The alleged incongruity between the letter from [Mr S W] and the applicant’s version of events was not put to the applicant for comment
3.Further and in the alternative, the RRT exercised its power in a manner which was so unreasonable that no reasonable decision maker would have exercised the power in that way, in that the RRT:
a)The Tribunal did not make any or any adequate attempts to inquire into the whereabouts of [Mr A N] who was identified by the applicant to the Tribunal as a person whom it could contact to corroborate his claim to be homosexual.
b)The Tribunal did not inquire into any concerns it had about the letter from [Mr S W] either by contacting the applicant’s representative or by contacting [Mr S W].
4.The RRT failed to exercise the jurisdiction conferred on it by the Migration Act in that it did not consider the substance of the applicant’s claims.”
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
The hearing
Counsel for the applicant, Mr Prince, and for the respondent, Ms Hartstein, both filed written submissions prior to the hearing. Counsel for the applicant applied for an affidavit of Hazel Popp sworn on
28 January 2005 (“the affidavit of Ms Popp”) to be admitted into evidence. Attached to the affidavit and marked Exhibit “HP1” was a transcript of the Tribunal’s hearing held on 17 September 2004.
A Court Book prepared by the respondent solicitors was filed and served on 2 November 2004. The applicant Counsel also applied for the affidavit of the applicant sworn on 31 January 2005 (“the affidavit of the applicant”) to be admitted into evidence.
The applicant gave evidence and was cross examined during the hearing. The applicant was cross examined extensively in respect of the answers he gave to the Tribunal member during the hearing on
17 September 2004. Any significant issues that arose from the cross examination were referred to in the submissions or the reasons that follow.
Applicant’s submissions
Mr S E J Prince of Counsel, filed written submissions prior to the hearing which were supplemented during the hearing. Counsel for the applicant’s main contention was that the applicant claimed to fear persecution on the basis of his homosexuality which is a basis for persecution in Bangladesh: Applicant S395 of 2002 v Minister for Immigration & Multicultural Affairs. Counsel contended that the Tribunal did not appear to have turned its attention as to whether the applicant’s claims, if found to be credible, would have constituted a well-founded fear of serious harm for the purposes of the Refugee Convention and Protocol and ss.91R and 91S of the Act. It must be assumed that if its findings as to credibility concerning the applicant’s claims were affected by jurisdictional error, then the entire decision was affected by that jurisdictional error and the writs should have issued.
In respect of the Tribunal’s duty to enquire and the failure to attempt to contact [Mr A N], the Tribunal stated:
“In order to ascertain the veracity of the applicant’s recent claim to be homosexual, the Tribunal provided him with ample, open-ended opportunities to provide specific information. The applicant’s evasiveness concerning his time in Sydney – particularly his work and social activities – reduced the Tribunal’s scope to enquire as to whether these circumstances supported his claims.” (CB p.185)
In regard to this issue, Counsel further contended:
a)The Tribunal had taken on the responsibility of enquiring into any specific information which would support the applicant’s claims. The applicant certainly understood that the Tribunal had taken the task upon itself and relied on that legitimate expectation. The questioning of the applicant suggested that the Tribunal would take it upon itself to make inquiries in respect of people nominated by the applicant who may have been able to corroborate his claims to homosexuality. The Tribunal went on to attempt to contact one of the two men whose names were provided by the applicant during an adjournment of the hearing (CB p.181).
b)In stark contrast to the Tribunal’s attempts to locate “Alan” (whose last name the applicant could not recall) at the Rose of Australia Hotel, the Tribunal made no attempt to contact [Mr A N] in respect of whom very precise details were given including his degree, the school in which he was enrolled, the boarding school in which he could be found, the profession to which his degree would lead and the University in which he was enrolled as well as the cities (either Canberra or Wagga) in which he was likely to be found. The evidence of [Mr A N] would have been critical to the question of credibility given the very strong conclusion the Tribunal had apparently reached that the applicant’s delay in making a claim for asylum based on his homosexuality undermined his credibility and tended to show he was not in fact a homosexual. In that type of reasoning process, as with the outdated requirements for corroboration of sexual assault claims, evidence of an earlier claim of homosexuality, prior to the applicant’s student visa problems, would be critical.
c)Indeed, the evidence of any person who knew the applicant whilst he was a student at the Charles Sturt University in Wagga (and on a valid visa) would have been far more probative than any corroboration from sources in Sydney (after the applicant’s visa had been revoked). It was submitted that the Tribunal took upon itself a duty to enquire. The applicant acknowledged that ss.424 and 427 of the Act do not necessarily impose on the Tribunal an obligation or duty to exercise such a power: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB at [43]. Further, the applicant also acknowledged that the Tribunal had no general duty to make its own inquiries in order to make out the applicant’s case: Abebe v Commonwealth of Australia per Gummow and Hayne JJ at [187]. However, in Prasad v Minister for Immigration & Ethnic Affairs (“Prasad”) Wilcox J suggested that where it was obvious that material was readily available (and it was submitted that [Mr A N] was as readily available as “Alan”), which was centrally relevant to the decision to be made, then to proceed to a decision without making any attempt to obtain that information may be properly described as an exercise of a decision making power in a manner so unreasonable that no reasonable person would have so exercised it: SZDWF v Minister for Immigration & Multicultural & Indigenous Affairs (“SZDWF”); Luu v Minister for Immigration & Multicultural & Indigenous Affairs (“Luu”) at [28] and [56]-[57]; Minister for Immigration & Ethnic Affairs v Surjit Singh at 558 and Minister for Immigration & Multicultural Affairs v Eshetu at [137].
d)In SZDWF at [37], citing Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Cassim (“Cassim”) at [12]-[14], it was stated:
“The failure to make inquiries may, albeit in limited circumstances, be an exercise of power in an unreasonable manner and hence a constructive failure to exercise jurisdiction or be a breach of the rules of natural justice, whether or not it renders the ultimate decision ‘unreasonable’.”
It was submitted that the inquisitorial nature of the proceedings made the requirement for even-handedness in undertaking inquiries even more important: Re Refugee Review Tribunal & Anor; Ex parte Aala at [76]; Muin v Refugee Review Tribunal at [18].
e)In the present circumstances the Tribunal assumed an obligation to enquire into the evidence which could be given by [Mr A N] or at least an attempt to contact him. Like a passer-by who assumes a duty which they would not otherwise have, the Tribunal contacted “Alan” and asked for specific details for [Mr A N]. There was an expectation by the applicant that the Tribunal would attempt to contact [Mr A N]. The Tribunal was aware of the applicant’s stated difficulty in contacting people whilst in detention and did not seem to question that concern. The probative value of the evidence of [Mr A N] was likely to be decisive to the central facts as to whether the applicant had recently invented his claims of homosexuality to advance his claim for a protection visa. It was a very serious finding for the Tribunal to make in the absence of any positive evidence and the Tribunal should have been slow to make that finding absent any inquiries as to the availability of [Mr A N] or the nature of the evidence he could give. It appeared that the Tribunal had reached its conclusions from the exchange that occurred in the transcript (“HP1”) at p.73.
In respect to whether the Tribunal failed to put to the applicant its rejection of the evidence of [Mr S W], the applicant contended:
a)Shortly after the hearing the applicant’s adviser subsequently forwarded material sent to her by the applicant including a letter from [Mr S W] who had met the applicant at the Rose of Australia Hotel at Erskinville purporting to corroborate the applicant’s claims (CB p.167). The adviser told the Tribunal that the applicant had difficulty in contacting other people by telephone from the Detention Centre. The adviser also gave details of a web site with four photographs of the applicant.
b)The evidence in the Court Book was highly relevant (CB p.167) and it was a document which involved corroboration of the applicant’s claimed homosexuality. The document contained contact telephone numbers from [Mr S W] and was corroborative of some of the specific evidence given by the applicant. In contrast to the way in which the Tribunal conducted itself in respect of “Alan”, the Tribunal did not record any attempt to contact [Mr S W] in its decision. At the conclusion of the Tribunal hearing, it indicated to the applicant that it had asked all of its questions and understood the claims and it would have to reflect on the evidence. The Tribunal told the applicant that it would hear from the applicant’s adviser and then proceed to a decision.
c)Ultimately, the Tribunal rejected the evidence of [Mr S W] on the basis that it “[did] not appear congruous with the applicant’s other evidence” (CB p.185-186). The Tribunal did not give any particulars of the way in which the applicant’s evidence was not congruous. The Tribunal did not give the applicant an opportunity to respond to its concerns about any perceived inconsistencies between his evidence and the statement of [Mr S W], which was not before the Tribunal at the hearing. The perceived inconsistencies in respect of the statement were not given to the applicant although it was personal to the applicant and the type of information contemplated by s.424 of the Act.
d)In any event, it was submitted, that as a matter of procedural fairness, if the information is of a type not contemplated by s.424 of the Act, the Tribunal ought to have put to the applicant its concerns about any perceived inconsistencies with his own evidence. Particularly in circumstances where the Tribunal indicated that if any matters were outstanding after receiving the adviser’s comments, then it would go through the adviser. If the Tribunal thought that the information was unreliable, it ought to have enquired of [Mr S W] to seek clarification from him of the evidence in the letter.
In respect to the presence of the Detention Centre guards at the Tribunal hearing, it was submitted:
a)The day prior to the hearing, the applicant was told by his adviser that she would not be present at the hearing. The applicant was very distressed that he would be attending the hearing without representation which he believed he would have. At the hearing the Tribunal member invited one of the Detention guards (who is employed by a security contractor and not the Department) to come into the hearing room to observe the hearing.
b)The Tribunal member told the applicant during the introduction to the hearing that the guard would not be divulging any of the information revealed in the hearing. However, there was no acknowledgment by the guard of this obligation nor any oath or affirmation that he would maintain confidentiality of the proceedings as would normally be given by an interpreter. The applicant gave evidence he was scared of being known to be homosexual within the closed environment of the Detention Centre. The applicant gave evidence that his experience was that the guards at the Detention Centre naturally gossiped with other detainees.
c)The applicant did not feel free to talk about his homosexuality in detail in the environment in which he had no representative present and he was afraid that what he said in front of the Detention Centre guards would be circulated amongst the other detainees. It was submitted that there were no personal issues with the guards present and it was not a reflection on the guards but it was inappropriate for the hearing to occur in the presence of the guards. It was the usual practice of the guards to wait outside during the course of the Tribunal hearing. The course adopted by the Tribunal in this instance appeared to have been adopted because of the absence of a representative or interpreter. This approach did not assist the process but prevented the applicant from a fair hearing as he was in an environment where he felt unable to discuss his homosexuality. Accordingly, it was submitted the applicant had been denied natural justice in that regard.
Respondent’s submissions
Ms V A Harstein of Counsel, appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:
Grounds 1 and 3 relating to [Mr A N]
a)Sections 424, 425 and 427 of the Act do not impose any duty on the Tribunal to make inquiries to assist the applicant to obtain evidence to support his case. The case of Minister for Immigration & Multicultural & Indigenous Affairs v SCAR at [36] states:
“It is clear that s.425 of the Act does not require that the Tribunal actively assist the applicant in putting his or her case, nor does it require the Tribunal to carry out an inquiry in order to identify what that case might be: Chen v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 1671.”
In Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (“Foxtel”) per Wilcox J at 417 it states:
“It will be a relatively rare case in which a statutory decision is vitiated because of the decision-maker’s failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored.”
b)The applicant was unable to tell the Tribunal where [Mr A N] was to be found, what his address or telephone number was, and whether he was in Canberra or Wagga or elsewhere. The relevant material was not readily available to the decision-maker. The applicant could have had no legitimate expectation that the Tribunal would make inquiries because that was not required by legislation nor was it stated by the Tribunal at the hearing that such inquiries would be made.
c)The Tribunal indicated it would attempt to contact “Alan” and then advised the applicant of the inquiries it had subsequently made. By making some inquiries, the Tribunal cannot be said to have undertaken to find evidence which was unable to be produced by the applicant but rather to assist where the means of inquiry were readily available. At the conclusion of the Tribunal hearing, the applicant made it clear he would attempt to find other people who could provide evidence for him. From this, it was apparent that he had no expectation that the Tribunal would attempt to find evidence for him.
Ground 1 – relating to the absence of the applicant’s representative
d)There was no unfairness to the applicant in his not being represented at the hearing because:
i)the Tribunal had no duty to ensure that an applicant will be represented and s.427(6)(a) of the Act explicitly provides that a person is not entitled to be represented before the Tribunal;
ii)the applicant did not request an adjournment;
iii)the applicant spoke very good English and clearly understood the Tribunal member’s questions;
iv)the applicant did not indicate that he could not proceed in the absence of his representative; and
v)the applicant’s adviser had not asked for an adjournment, but had requested an opportunity to review the interview tapes at the conclusion of the hearing (CB p.178).
Ground 1 – relating to the presence of the Detention Centre guard
e)The applicant did not indicate to the Tribunal member that he was uncomfortable talking about his homosexuality in front of the guard. The transcript of the hearing showed the applicant provided full answers to the Tribunal member’s questions. His vagueness was not in respect of his homosexuality but about the names of those who could confirm his homosexuality.
f)The applicant was given an assurance that the matters discussed at the hearing would be confidential and that applied to the Detention Centre guard who escorted him from the Centre. The applicant was given ample opportunity to ask questions or make comments immediately following the Tribunal member’s assurance that the hearing would be confidential.
g)The submissions presented by the applicant’s representative to the Tribunal after the hearing did not include the issue of the presence of the Detention Centre guard. Prior to the handing down of the Tribunal’s decision, the applicant did not complain that he been unable to speak freely at the hearing.
Grounds 1, 2 and 3 – relating to the letter from [Mr S W]
h)The Tribunal’s views concerning the letter from [Mr S W] were not information within the meaning of ss.424A or 424B of the Act. It is a general rule that an adverse conclusion not obviously open on the material known to the applicant must be put to him to give a meaningful opportunity to respond: Luu. In this case the adverse conclusion was obviously open on the material known to the applicant for the following reasons:
i)the only material to which the Tribunal had to compare was the applicant’s own evidence at the hearing;
ii)the applicant never mentioned [Mr S W] by either of his names;
iii)the applicant repeatedly said that his Bangladeshi friends did not know he was gay;
iv)the applicant did not mention [Mr S W] when asked to tell the Tribunal about friends in Sydney who could demonstrate that he was gay. In the transcript the applicant stated he was too depressed when in Sydney to find a boyfriend and then later said he had looked for a boyfriend but could not find one; and
v)the applicant only mentioned one person he had met at the Rose of Australia Hotel which was “Alan” the bartender/waiter.
i)[Mr S W]’s letter obviously contradicts the applicant’s own evidence in the above respects (CB p.167).
Grounds 3 and 4 – relating to unreasonableness
j)It can be seen from both the transcript and the Tribunal’s decision that the Tribunal carefully considered all of the applicant’s claims. The Tribunal set out in detail the reasons why it was unable to accept the applicant’s credibility (CB pp.184-186). The Tribunal’s adverse findings on credit were open to it on the evidence and were a “legally proper rejection of credibility of an applicant”: Sellamuthu v Minister for Immigration & Multicultural Affairs (“Sellamuthu”); Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (“Durairajasingham”).
k)In the applicant’s written submissions it was submitted that the applicant was not questioned about the inference conveyed by the Tribunal that the claim was one fabricated whilst in detention with the benefit of advice from other detainees. The applicant was in fact questioned about the fabrication of his claim and the inference was clearly put to the applicant (HP1 p.24 at [382]).
Reasons
A substantial element of the applicant’s case was that his credibility could have been verified if the Tribunal had made contact with [Mr A N] who was identified by the applicant as the person the Tribunal could contact to collaborate the applicant’s claim that he was homosexual. Counsel for the applicant made submissions with regard to the hearing which identified [Mr A N] and the reasons why he was probably the most significant witness to verify this claim. Those details were set out in paragraphs 16 (b) and (c) above. Counsel for the applicant acknowledged that ss.424 and 427 of the Act do not necessarily impose on the Tribunal an obligation or duty to make these enquiries. Counsel also acknowledged that the Tribunal has no general duty to make its own enquiries in order to make out an applicant’s case and quoted the relevant authorities that supported this principle.
In regard to the Tribunal making contact with the individual identified as [Mr A N], Counsel for the applicant relied on a line of authority that noted an exception to the general provisions referred to above because of special circumstances. The first of those circumstances was that it was obvious that the identification, location and contact with this person was readily available and the authority for that contention was found in Prasad, which, in summary, stated:
“Where it is obvious that material is readily available which is centrally relevant to the decision to be made then to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it.”
The dispute in Prasad concerned a permanent residence visa that had been refused as the husband was judged to have contracted a marriage for the purpose of claiming residence in Australia and where a genuine ongoing marriage relationship did not exist. A Departmental review was sought and the couple submitted eight statutory declarations and the personal observations of a community worker concerning the couple’s marriage. It was subsequently found on review that this material together with a recorded interview with the couple had not been taken into account by the Immigration Review Panel. It is noted that the subject material was all within the possession of the review body but had been ignored.
The next case in that same line of authority is SZDWF per Barnes FM at [37] where Her Honour Cassim at [12]-[14] where it was stated:
“The applicant contended that the Tribunal had denied him natural justice by failing to investigate his claims that he had worked in the resort in the Eastern province and that the police letters were authentic. He asserted that the Tribunal’s failure to exercise its powers under s415(1), s424(1) and s427(1)(d) of the Act was a denial of natural justice. These provisions of the Act give the Tribunal wide discretionary powers to investigate the claims of an applicant.
Decisions and dicta in the Federal Court of Australia indicate that a failure by the Tribunal to make inquiries about the claims or the evidence of an applicant may sometimes be a breach of the rules of natural justice or render the decision unreasonable. Even if that proposition is valid, those cases and dicta recognise that the Tribunal has no general duty to make inquiries about an applicant’s claim. They declare that ordinarily the Tribunal should only make inquiries if the material is “readily available”.
Consistently with those decisions and dicta, the Tribunal had no duty to make inquiries to see whether in Sri Lanka or elsewhere there was evidence which would support the applicant’s claim for a protection visa. The powers conferred by s415(1), s424(1) and s427(1)(d) of the Act are discretionary, not mandatory. Although the applicant asked the Tribunal to contact two persons in Sri Lanka, there was no evidence - apart from the applicant’s assertions - that they were independent and reliable. Nor was there evidence that reliable, independent corroborating evidence was “readily available”. Moreover, other evidence (including the documents in the application for a student visa) gave the Tribunal good reason for thinking that the applicant’s case for refugee status was concocted and that the police letters were forged. Nothing in the evidence indicated that in Sri Lanka or elsewhere there was “readily available” reliable evidence which would support his claims that he had worked in the Eastern province and that the police letters were genuine.” (citation omitted)
In that case the material that was not considered by the Tribunal was the initial interview tape recorded at the airport when the applicant first arrived in Australia. The applicant had requested a copy of that tape but it was not provided to him. In this matter the tape was in the Department’s possession but, for whatever reason, was not provided to the applicant in the appropriate application.
The next matter in that same line of authority was Luu per Gray, North and Mansfield JJ at [28]:
“The learned judge at first instance then addressed the claims that the decisions of the respondent were unreasonable, both because he had failed to make certain inquiries which he should have made, and because the decisions were so unreasonable that no reasonable person could have made them. After referring to the limited circumstances in which a decision maker is required to make inquiries: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170 per Wilcox J, his Honour noted that any duty on the decision maker to inquire is generally restricted to material that is readily available. He did not think that the inquiry for which the appellant contended, namely inquiries about the appellant’s risk of re-offending and about the risk of flight if released from immigration detention, readily fell within that class of inquiry. The inquiries suggested on behalf of the appellant involved a process of interviews and assessment about the appellant’s behaviour and possible propensities. His Honour therefore reached the view that the respondent was not required to initiate investigations into the appellant’s behaviour and actions, particularly having regard to the fact that he was at material times represented by solicitors: see the remarks of Toohey J in Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 at 170-171. His Honour, having regard to the reasons for the decisions, did not consider that the decisions were so unreasonable that no reasonable person would have made them.”
At [57] the position taken by the Judge of first instance is supported by the Full Court as follows:
“This is not a case where there was no material upon which the respondent could have been satisfied of those issues. The material upon which he based his decisions is referred to, and the reasons for decision given. It is true that the material is largely historical, that is what the appellant had done in the past or was perceived to have done in the past, and that there was no real new information with respect to those critical matters acquired in the period July 2000 to March 2001. There may be circumstances when the administrative decision-maker acting in part on information of some antiquity in the face of the elapse of time might fall within the “Wednesbury unreasonableness” principle. But in this matter we are not persuaded that the judge at first instance erred in concluding in all the circumstances that the decisions of the respondent did not fall within that principle. Indeed, in the circumstances, to accede to the propositions put in that regard on behalf of the appellant would amount to intervening in the merits of the decision and to substitute for the decisions of the respondent a view on the merits of the case. The Court is not entitled to do that: see Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36-37.”
The circumstances in this case are unlike those in Prasad and SZDWF. In both those cases the disputed material was in the possession of the reviewing body or an organisation that was closely associated with it and from which it could be readily accessed. The material in this case is more aligned to the material that would have to be obtained in Luu. The relevant material in Luu was not the historical material in the possession of the reviewing body or its associates but was material that had to be located and obtained by interview or similar mechanisms.
The extent of the Tribunal’s knowledge of [Mr A N] as conveyed by the applicant during the Tribunal hearing was set out in the following extracts from the transcript attached to the affidavit of Ms Popp:
Transcript (Questions/Answers 467-477)
Tribunal:Now did you come did you mention at all to anyone at university that you feared for your life in Bangladesh?
Applicant:Yes my friends. Few of my friends I told three of my friends.
Tribunal:Which friends?
Applicant:One Australian friend, actually two Australian friends.
Tribunal:Who are they?
Applicant:Alan
Tribunal:Alan?
Applicant:Alan used to live just beside my room.
Tribunal:OK What was his surname?
Applicant:[N]
Tribunal:[A N]
Applicant:Yes
Transcript (Questions/Answers 554-562)
Applicant:My, my both friends in university they know that I’m homosexual but in Sydney.
Tribunal:Which friends at university because you mentioned to me that.
Applicant:[A N] knows that and
Tribunal:Sorry?
Applicant:[A N]. He’s not gay but he’s my friend here and I told another friend [J] and [F] they were gays.
Tribunal:Just refresh my memory Alan is in Wagga is he? What does he do there?
Applicant:He’s student.
Tribunal:He’s still a student?
Applicant:He’s still a student probably.
Transcript (Questions/Answers 563-567)
Applicant:He was one year
Tribunal:And he’s in what department?
Applicant:He’s in boarding school. Biomedical Science.
Tribunal:Biomedical Science.
Applicant:That’s probably 5 year course. I’m not sure.
Transcript (Questions/Answers 718-126)
Applicant:Yes And Alan would be able to confirm as well.
Tribunal:Alan …
Applicant:Engineer
Tribunal:Where is he living now?
Applicant:He’s basically, he’s from Canberra.
Tribunal:Right.
Applicant:He’s student or maybe he went he finished his course.
Tribunal:So you don’t really know?
Applicant:Yes, I don’t really know maybe in Wagga maybe in Canberra.
Transcript (Questions/Answers 990-992)
Applicant:Well, I can look try to contact to my friends but from inside it’s really difficult.
Tribunal:I understand so where does Alan. You don’t know where Alan
Applicant:I used to Alan all the time
The identification of [Mr A N] was not quite as straightforward as was suggested by the applicant. The only consistent and reliable material in relation to this person was the identification of his first name and surname but there was no address, telephone number or contact details provided. He was believed to be a student at the Charles Sturt University however it was unclear whether he was at the Canberra or Wagga Wagga campus and in which of those two cities he was residing. If that link to the University was broken at any time subsequent to the last contact with the applicant, the identification and location of this person was not immediately straightforward and the type of enquiries that would have to be undertaken were more in the nature of those performed in Luu.
In Foxtel per Wilcox J at 417 it was stated:
“It will be a relatively rare case in which a statutory decision is vitiated because of the decision-maker’s failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored.”
An argument that the relevant material was readily available to the decision maker cannot be sustained. In the authorities of Prasad and SZDWF set out above, the material had been collected under a prior independent process and the material was available but ignored by the decision maker which is very different from the proposition being promoted here. It was not a matter of merely placing a phone call to a pre-determined number. Access to student records of the Charles Sturt University may reveal contact details but this was not assured. The person appeared to be a student living between campuses on a student rental basis and may not be easily located or contacted. The comment contained within the Tribunal’s decision noted that the applicant did not have contact details for this person, or the sort of information that would permit the Tribunal to initiate its own enquiries.
The next issue related to the letter of [Mr S W] which was raised in grounds 1, 2 and 3 of the applicant’s pleadings. [Mr S W]’s letter which appeared at Court Book page 167 was forwarded to the Tribunal by the Legal Aid Commission of New South Wales. The solicitor for the Legal Aid Commission did not indicate how the letter came into that organisation’s possession and the only circumstance known about [Mr S W] was the information contained within his letter, which indicated that he had met the applicant at the Rose of Australia Hotel in Erskineville and that he sometimes met the applicant in North Sydney where he was residing at that time. The applicant during the Tribunal’s hearing was asked on a number of occasions of any people that could give details and confirm knowledge of the applicant’s homosexuality. This issue was put to the applicant at different times during the hearing but the applicant did not identify [Mr S W] as a person that was aware of the applicant’s homosexuality. The applicant advised the Tribunal of a number of people he had met in Sydney and the circumstances of those meetings but [Mr S W] was not among those individuals identified. The only person that the applicant identified at the Rose of Australia Hotel in Erskineville was the person identified as “Alan” and this was contrary to the information contained within the letter from [Mr S W].
The next issue that arose under Ground 1 related to the presence of the detention centre guard during the Tribunal’s interview with the applicant. The first element of this issue was whether there was any unfairness to the applicant because of the withdrawal of his representative on the day before the hearing, leaving him unrepresented during the hearing. On 9 September 2004 the Tribunal received a letter from the Legal Aid Commission of New South Wales to which was attached the Response to Hearing Invitation regarding the scheduled hearing on Friday, 17 September 2004. In that Response, the applicant had indicated that he wished to participate in the hearing and also indicated that he did not intend to include any family member, did not need an interpreter, did not intend to call on any witnesses and did not wish to bring anyone else to the hearing such as a relative, friend or migration agent. All of those options were ticked with “No” as the response. The Tribunal member would not have anticipated that the applicant would have anyone present. In the applicant’s submission (at paragraph 18(a) above) it was noted that the applicant was contacted the day before the hearing and was advised by his adviser that he would not be present during the hearing. Nothing was put to the Court that the adviser made any contact with the Tribunal.
It was the respondent’s submission that s.427(6)(a) of the Act specifically provides that a person is not entitled to representation before the Tribunal. If the issue was going to be raised with the Tribunal it could have only occurred by the applicant raising it with the Tribunal member at the commencement of the hearing. This clearly did not occur. I note the respondent’s submission that there was no request for an adjournment or any indication by the applicant that he could not proceed in the absence of his representative. The applicant clearly had no problem in understanding and speaking English and made no request for any interpreter service. The only request made by the applicant’s adviser was access to the interview tapes at the conclusion of the hearing for an opportunity to review the contents of the interview.
The other element of this ground related to the presence of the detention centre guard. At the beginning of the transcript the following exchange took pace in respect of this issue:
Transcript (Questions/Answers 2-5)
Tribunal:Before we begin today [Applicant] I’d like to take a few minutes to explain how we conduct today’s hearing. I’ll just confirm you sound to be very fluent in English. Do you understand everything I’m saying to you?
Applicant:Yes.
Tribunal:All right. If you have any problems let me know and I’ll explain myself in other words for you. Now I’ve asked a person from the detention centre simply to observe our discussion today because we would have your advisor or an interpreter and I think it’s useful to have someone else present in the room with us. He will not be divulging any of our conversation so you can feel free to speak frankly. Now before we get under way I need to take a few minutes to tell you what our discussion will be about. You’re here today because you applied to the Dept of Immigration for a protection visa and that was not granted.
Applicant:Yes, sir.
At this stage in the proceedings, nothing was said by the applicant to indicate that he objected to the guard’s presence or that it may affect the evidence that he was about to give the Tribunal.
More importantly, after the completion of the Tribunal’s hearing and prior to the decision, which was one week, the Tribunal was not approached by the applicant or anyone on his behalf noting this issue as a reason that may have affected the operation of the hearing.
I acknowledge that the applicant may not have the requisite legal skills to formulate an objection in the presence of the detention guard. However, the applicant made no reference to the issue during the hearing and there was no representation by his adviser subsequent to the hearing that this was an issue. If it had been an issue at the time of the hearing or immediately after a competent legal practitioner would have been aware of the avenues open to the applicant to raise this issue with the Tribunal prior to the publishing of its decision. No submissions in this respect were made to the Court.
Counsel for the respondent submitted that the transcript of the hearing showed the applicant provided full answers to the Tribunal member’s questions in respect of his homosexuality but there was evidence of vagueness when he was asked to identify those individuals who could confirm his homosexuality.
After the Tribunal’s hearing the Tribunal did receive a further submission from the applicant’s adviser on 21 September 2004 which stated that she had listened to the interview tapes and that there was “no further legal submissions I intend to make or further information I intend to provide”. The applicant provided further information which was unrelated to this issue and this unrelated material was provided as a result of the Tribunal hearing and was obviously held to be important by the applicant. However, there was no reference to the presence of the guard nor did the adviser raise this issue after reviewing the hearing tapes. I do not believe that this ground can be sustained.
In the applicant’s written submissions, it was submitted that the applicant was not questioned about the inference conveyed by the Tribunal that the claim was fabricated whilst in detention with the benefit of advice from other detainees. The transcript of the Tribunal’s hearing on 17 September 2004 revealed two questions which addressed this issue. On the first occurrence the applicant was questioned about the two months he spent in detention at Villawood on an earlier occasion.
Transcript (Questions/Answers 415-419)
Tribunal:So when you were in Villawood back in 2002 did anyone tell you about did you meet any refugees then.
Applicant:Yes but that time I was not really interested in anything because I was thinking of the revocation of my student visa. But not in stage 3 I was put in such a stage so that all the people from that stage usually go back in a short time. So although they really were refugees no-one told me anything I was only writing letters to … from the student visa.
Tribunal:We’ll discuss your claims but I need to make an observation this is very strange because you’ve told me that. You’re clearly an intelligent person and your English is very good. You’ve told me that you found out this time you can apply for a refugee status but that when you were in detention for two months back at the end of 2002 you didn’t think.
Applicant:I just didn’t think of it.
Tribunal:Well I just need to let you know that if people fear for their life if people fear persecution in their country they certainly think about it and expect you to be exploring, or I’m surprised that you didn’t explore how your life would be save.
Applicant:Because my claim was different. I though I would finish my degree somehow I would go for skilled migration so it satisfies what I want. I didn’t really think about or explore about refugee application that much and this time I was really mentally because I couldn’t find out what to do and nobody could show me a way so before I even when I came down to detention one month no immigration officer came to take my interview and I was just staying and thinking what to do what to do then an officer and Virginia … I talked to Virginia … at Villawood she told me that you should go for a refugee application which helped me to this time.
The Tribunal returned to the issue later in the interview where the following is noted:
Transcript (Questions/Answers 949)
Tribunal:OK now before we wind I’d just like to as you once again. I think an important issue on this are the claims that you’ve ground about your sexual orientation. And I said to you before as I’ve mentioned to you. There are there are two things which surprise me. One is that this claim has come up after so many years in Australia the first time it has come to any official attention that this might be a source of concern for you, therefore I have to think carefully about the credibility of what you’re now saying. It would help therefore if you have any more specific information that you want to share with me that might satisfy that even though you didn’t mention it in that period that that it is in fact the case. So is there any are there names of any people who can? Have you thought any further about?
Counsel for the applicant pointed to another part of the transcript to explain the applicant’s knowledge of refugee applications which suggested the applicant gained knowledge of the availability of protection visas from sources other than fellow detainees. Counsel referred to the following section of the transcript:
Transcript (Questions/Answers 384-389)
Tribunal:A couple of observations then I’ll put the question. When you came to. No I won’t. I need to be discussing with you whether this issue had crossed your mind before you had been detained just last month. So you’ve said to me that you had that you that you did not know about the possibility of refugee application before a month ago is that right.
Applicant:Yes.
Tribunal:Explain to me how that comes about though because you speak excellent English. You’ve been here now for a number of years how is it you don’t know about refugees because
Applicant:I heard about refugees in the newspapers but like I didn’t know that for my case I could go for a refugee I just wanted to stay away from my country that was the only way to s[t]ay away from my country just to hang around in Australia and I don’t have a lot of refugee friends as well since I had all student friends and they’re really interested to talk about their studies and then how they’re getting the skilled migration so I just didn’t know or maybe to some extent I didn’t care that much because I was really hopeless that Australia is not going to give me let me just stay forever I just don’t want to stay forever I can’t really go back to my mother that’s why I am staying in Australia. Some sort of hiding you can say.
Tribunal:So do I understand. But you had heard of refugees.
Applicant:Yes I had heard of these things but when it came to detention the people told me that you have real trouble in Bangladesh so why don’t you apply for refugee application because if you go back now you’ll might be killed or murdered or you’ll be harassed.
None of these extracts make it absolutely clear whether the applicant was influenced by fellow detainees or acquired the information prior to his second detention period. However, it is clear that the subject matter was discussed on at least three occasions during the interview and it should have been obvious to the applicant that this was an issue the Tribunal member was exploring and was raising doubts in respect of the circumstances in which the applicant lodged his protection visa application. The Tribunal made the following statement in respect of this issue:
“The applicant had not made any refugee claims prior to his lodgement of a protection visa application whilst in detention in August 2004. Queried about this at the hearing, he variously claimed that he was not aware of the possibility of such protection, and that he had not realised that his circumstances could give rise to a refugee claim. The Tribunal finds neither of these explanations credible. The Applicant speaks and reads English, and has contacts among the Bangladeshi community and through his university studies. He spent at least two months in immigration detention at the end of 2002, where he successfully challenged a DIMIA decision not to grant him a bridging visa. The Applicant’s education, contacts and his experience with immigration matters make it implausible that he would not have known of the availability of refugee protection in Australia.” (CB pp.184-185)
The applicant claimed that the Tribunal’s finding was unreasonable.
If the primary decision maker has stated that he does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. In Durairajasingham per McHugh J at [67] it was noted “The Tribunal must give the reasons for its decision, not the subset reasons why it accepted or rejected individual pieces of evidence”. The Tribunal set out in detail the reasons why it was unable to accept the applicant’s credibility (CB pp.184-186). The Tribunal’s adverse finding on credit was open to it on the evidence before it and the rejection was a legal rejection of credibility of an applicant: Sellamuthu per Wilcox and Madgwick JJ at [24]:
“… In many other cases the sole substantial basis for judging whether a person falls within the Convention criteria of a “refugee” will be the information as to his/her supposed history and background furnished by an applicant. Upon legally proper rejection of the credibility of an applicant in such a case, there will be no basis for requiring that the RRT do more than forthwith reject the claim for refugee status.”
I do not believe that this element of grounds 3 and 4 can be sustained.
Conclusion
I have not been able to find that any of the grounds pleaded by the applicant in respect of jurisdictional error can be sustained. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 29 April 2005
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