SZIGI v Minister for Immigration - [2006] FMCA 1800

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIGI v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1800

MIGRATION – RRT decision – Algerian claiming fear of persecution as homosexual – Tribunal not satisfied that homosexual – no failure to consider claims – decision not arbitrary and capricious – no jurisdictional error found.

Migration Act 1958 (Cth), ss.425, 425(1), 474(1), 476(1)

Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1
Applicant WAFV of 2002 v Refugee Review Tribunal (2003) 125 FCR 351
Buck v Bavone (1976) 135 CLR 110
Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
Minister for Immigration & Multicultural Affairs v Eschetu (1999) 197 CLR 611
Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121
Wu v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 123 FCR 23

Applicant:

SZIGI

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG345 of 2006

Judgment of:

Smith FM

Hearing date:

20 November 2006

Delivered at:

Sydney

Delivered on:

20 November 2006

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Eddy Neumann Lawyers

Counsel for the First Respondent:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG345 of 2006

SZIGI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 3 February 2006 under s.476(1) of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) dated 8 December 2005 and handed down on 10 January 2006. The Tribunal affirmed a decision of a delegate made on 7 September 2005, which refused to grant a protection visa to the applicant.
The Court’s jurisdiction under s.476(1) is “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474(1), so that I do not have power to send the matter back to the Tribunal unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed, nor whether he qualifies for a protection visa.
The present applicant arrived in Australia on a one month temporary business visa in July 2005. He subsequently told the Tribunal that he obtained the visa with a party of other Algerian men to attend a Tae Kwon Do event in Australia. However, he and at least one other member of the group stayed in Australia and claimed protection from return to their country of nationality, Algeria. An application for a protection visa was lodged on 11 August 2005. Although the application does not disclose an agent helping the applicant, the application was witnessed by a solicitor, and the applicant informed the Tribunal that he had been assisted by a “legal person”.
The application attached a brief typed statement, in which the applicant claimed to belong to a “very conservative rural Berber family. My father is devout Moslem”. The applicant claimed that while at school “I started having feelings for other boys there. … I had some relationships”. He said:
4.At the age of 21 I met and fell in love with B. We lived in the same village and knew each other. Our relationship started when we were at the Tae Kwon Do association.
5.We started a relationship together and we have been together ever since.
6.B and I would spend all our free time together. We had to pretend we were interested in women but earlier this year rumours began about us. We had been together for over twelve years and I don’t know why the rumours only started this year.
7.In January 2005 this year people started approaching us and asking if it was true about us. In the middle of the café we would be asked if it was true we were homosexual.
8.Our families learned of the rumours. Our fathers called us together for a meeting. They asked if it was true about B and me. B denied it was true but I admitted it was because I thought they would find out sooner or later. So B admitted it too.
9.Our fathers were outraged and demanded we leave the village immediately and never set foot there again. They said we weren’t their children any more.
10.We understood that if we stayed our families would kill us. They are very traditional. It was great shame for them that we are homosexual and they believe they have a duty to kill us. It is an act of cleansing for them.
11.The same day B and I went to Algiers and stayed where I worked. Every evening we spoke of trying to leave Algeria.
12.We couldn’t go to the police about our families because they would arrest and imprison us. Homosexuality is forbidden by the Algerian criminal code.
13.People in Algeria judge and are judged according to the Koran. There is nowhere it would be safe to be homosexual in Algeria.
14.In about March this year we received an email from M, our Tae Kwon Do trainer, asking us if we wanted to come to Australia for a Tae Kwon Do event. B and I accepted straight away and planned to ask for asylum when we both arrived in Australia.
No supporting evidence was presented to the Department, nor on appeal to the Tribunal, in relation to the claimed relationship with B or the events referred to.
A delegate refused the application on 7 September 2005, giving reasons which I do not need to examine.
The applicant appealed, and attended a hearing to which he was invited by the Tribunal on 4 November 2005. It seems that the same Tribunal member listed a similar appeal by his friend, B, to commence immediately after the conclusion of the hearing in relation to the applicant. The applicant had initially indicated in his “Response to Hearing Invitation” form that his friend B would be giving “evidence about our relationship”. However, at the end of the hearing the applicant became equivocal about this. The transcript shows:
Q181.… I believe that you wanted to call Mr B as a witness.
A(Int)Can I call him now?
Q182.Yes. I have to explain one thing and that is immediately after this I’m going to be going into a hearing with Mr B. However, this is your hearing now so if you want Mr B to come in and give evidence in your hearing we can do that.
A(Int)It’s up to you.
Q183.O.K. Is there anything in particular you would like me to ask Mr B now?
A(Int)I haven’t understood.
Q184.I will talk about all of Mr B’s claims with him in just a few minutes but before I call this discussion to a close I have to offer you the opportunity to just say do you want him to come in to your hearing and say anything right now?
A(Int)Yes.
Q185.What is it that you’d like him to – is there anything in particular you want to ---
A(Int)Mr B?
Q186.Ah hmm.
A(Int)I’ve got nothing to ask.
Q187.O.K. I will cover the same material with him in his separate hearing and if there is anything that I need to check I’ll write to you.
Hello, it’s room three here, could we please call this hearing to a close? Thank you. …
A full transcript is in evidence before me and I have carefully read that transcript. To understand the flavour of the hearing and some of the arguments presented to me, it is necessary to read the whole of the transcript, which it is not feasible to set out in full in this judgment.
I note that at the commencement of the hearing the applicant was asked whether he had any problems understanding the interpreter in the French language who was provided, and the response was “No, I understand him very well”. The interpreter confirmed that fact.
Throughout the hearing it is clear at many points that the applicant had no trouble understanding most questions which were put to him and responding in a direct manner. However, there are other passages where the applicant responded by claiming not to understand a question. For example, when the Tribunal sought to elicit corroborative details of the claimed relationship and shared life of the applicant and B:
Q80.So tell me what was the occasion – what were the circumstances that led you two to be more than just friends?
A(Int)We fell for one another.
Q81.Was there a particular day when – friends are friends but at a certain point maybe you realised he was becoming more and you had perhaps sexual contact. I’d like to know was there any particular occasion that you remember? You can say, the example might be the time of day, it might have been the location, the situation.
A(Int)I haven’t understood.
Q82.O.K. I‘ll repeat it. I’d like to know if there was a particular occasion, it may have been when you had sexual contact or when you declared to each other that you were more than friends. I’d like to hear if there’s an occasion when you realised this was not just a friendship but that it was something more.
A(Int)It revolved around the association when we were practising Tae Kwon Do. We were always meeting there.
Q83.But you met a lot of men there, so I’m asking how did you realise that this was something more?
A(Int)We had the same mentality, similar mentality.
Q84.O.K. We’ll come back to this if you like but I’m finding your answers are very general. What I’m interested to know and I’m afraid I have to ask these questions or similar information, is if there is any particular occasion that you want to tell me about that will show that you were more than friends, when it moved in to something different.
A(Int)Yes, I’m not really understanding the question. Was there an occasion.
Q85.That’s my question. Let’s move on to something else. Do you know Mr B’s birthday?
A(Int)I know it but I’ve forgotten about it.
At subsequent points when the applicant was questioned about his life with B in Algeria, the applicant claimed not to remember details or not to understand questions. For example:
Q142I want to ask you something about that incident. I don’t quite understand why you told your parents that you’re homosexual but you don’t seem to have told anyone else.
A(Int)That’s correct.
Q143.Can you help me understand how that came about?
A(Int)I haven’t understood the question.
Q144.Let me explain. Sometimes people if they’re from a small village and they have to, either because they’re homosexual or something else that they know their family will not accept, will instead go to the big city or they’ll talk to other friends, tell other people and try to hide it from their parents. I’m not saying for one moment you should hide it from anyone, but what I am wondering is why having told your parents you hadn’t told anyone else, not in Algiers, not in your Tae Kwon Do team, nowhere else.
A(Int)I kept that inside myself for twelve years but in the end I had to tell the truth to my father. This I did to assume the responsibilities.
Q145.Have you told any of your – you’ve mentioned that you work in Algiers, then you obviously know a few people there, have you told anyone there?
A(Int)No.
Q146.Have you ever seen any places where homosexuals gather or meet in Algiers?
A(Int)Never.
Q147.Is there anyone in Algiers who would be able to confirm for me that you had a confrontation with your family?
A(Int)I don’t believe so.
Q148.The reason I ask is because I thought someone from your village had known that you and your family had had a disagreement.
A(Int)I’m not sure I’ve understood the question well. If you could repeat it.
Q149.You said that sometime after January of this year your father asked you about all these rumours, then you had a confrontation with him and then you told him the truth.
A(Int)Yes.
Q150.Is there anyone who’d be able to confirm for me that you had a dispute with your father at this time?
A(Int)B will confirm.
Q151.Your partner?
A(Int)Yes.
Towards the end of the hearing, the Tribunal tried to explain to the applicant the relevance of its questions, seeking to obtain circumstantial details which might give substance to the claimed relationship, and generally to invite the applicant to provide better evidence supporting his claim. It said:
Q162.Is there anything else that you’d like to tell me at this stage?
A(Int)Regarding what?
Q163.Well, to make my question clear, I’ll say I’ve asked you now – I’m afraid I’ve taken up thirty perhaps forty minutes of asking various questions concerning your private life and I have to be frank with you your answers have been rather vague. So I don’t want to be simply asking questions that are not the right questions, I’d like to invite you now to think of anything that you would – that I may have overlooked that would demonstrate that your claim to be in a relationship with Mr B and to be homosexual is a genuine one.
A(Int)I haven’t understood.
Q164.O.K. I’ve paid close attention to what you’ve written and I understand your claim to be in a relationship and to be homosexual. I’ve asked you many questions now, some direct and some less obvious, to satisfy myself that what you are saying is correct. I’m simply telling you now that your answers have been rather vague and so I’m wondering does anything else at all occur to you that would help demonstrate that what you’re saying is the truth?
A(Int)I don’t know how to demonstrate.
Q165.I was hoping in asking you the sorts of questions that I have, about the Internet, doctors, about your friends, about your social life, that you might think of something that helps me be satisfied, yes, he’s obviously – that supports your claim to be in this relationship and to be homosexual.
A(Int)No. May I ask a question?
Q166.Yes.
A(Int)Could the doctor prove I am homosexual?
The applicant had told the Tribunal that, in the party of men with whom he was living in Sydney, nobody other than B knew that he was a homosexual person. He told the Tribunal that he had not spoken to anyone in Australia about being homosexual apart from the lawyer who helped him make the visa application. In that context, the Tribunal sought to explore how he had become aware that his sexuality could provide a ground for obtaining a protection visa. The following exchange occurred:
Q168.When you went to your lawyer, I think it was in September, after not having told anyone else at all that you’re gay, what prompted you to mention to this person that you’re homosexual?
A(Int)Which person?
Q169.The lawyer who helped you with your refugee application.
A(Int)I didn’t know the procedure about lodging my application.
Q170.But where did you learn that you could get – that homosexuality was relevant?
A(Int)How as it relevant. I haven’t understood your question.
Q171.You’ve told me that apart from in January when you told your family you’ve told no none that you’re homosexual except for your – the person who helped you with your refugee application. What I’m wondering is did you and Mr B say, well, we haven’t told anyone else but let’s go and tell an Australian lawyer that we’re homosexual? How did this matter --
A(Int)We didn’t know anything about Australia and we had to tell the truth in order to be helped.
Q172.Where did you learn that your homosexuality was relevant to you getting refugee status?
A(Int)When we had the problem in Algeria we decided to leave the country and ask for refugee status, I believe that’s the way it happened.
The Tribunal then gave the applicant another general invitation to add anything which he wished to say:
Q176.That concludes my questions now. Is there anything you’d like to add?
A(Int)Regarding what?
Q177.Regarding your refugee claim which is what we’re here for today.
A(Int)This is the conclusion, is it?
Q178.No, because I’m now inviting you if you wish to say anything else.
A(Int)I’ve got nothing to add. You can ask questions and I will answer.
Q179.I’ve asked the questions which I wanted to but I wanted to make sure that if there was anything you wanted to add you had an opportunity.
A(Int)(No verbal reply)
I have set out all the above passages, since they were touched upon in the course of submissions by counsel before me.
In its statement of reasons, the Tribunal set out the applicant’s original visa claims accompanying his visa, summarised the evidence the applicant gave in the course of the hearing, and referred to the taking of evidence from B as I have set out above.
Under the heading “Findings and Reasons”, the Tribunal noted that the applicant had mentioned his Berber ethnicity and his secularism/atheism. However, it found:
The Tribunal cannot discern from these references any implied claim that the Applicant fears persecution for either or both of those reasons alone. It accepts, however, that they could be relevant factors in a real chance assessment of harm arising for reason of the Applicant’s claimed homosexuality.
No challenge is made to the Tribunal’s opinion that the basis which had been presented for protection was that the applicant “claims to fear persecution from his family and village inhabitants, and more generally from Islamic fundamentalists, for reason of his homosexuality”.
The Tribunal referred to its procedural situation, where the applicant had not sought to present B as a witness in his case, but had been aware that B would give evidence to the same Tribunal member in support of his own refugee claims immediately after the applicant’s hearing. It said:
The Tribunal notes that the Applicant also flagged in his response to hearing invitation that he wished to have B appear as a witness. At hearing, however, he declined the Tribunal’s offer to have him called to give separate oral evidence, in the knowledge that B was appearing before the current Member on the same day. B’s evidence was broadly consistent with that of the Applicant, and the Tribunal found nothing in it to materially affect its assessment of the Applicant’s claims as presented by him.
One of the submissions from counsel for the applicant was that the Tribunal in its subsequent reasoning did not refer to, nor give any weight to its finding, that “B’s evidence was broadly consistent with that of the Applicant”.
It was not argued that the Tribunal made any jurisdictional error by following the procedure shown in the above extract from the transcript. In particular, it was not contended that the Tribunal made any express or implicit promise to give any particular weight to B’s evidence, or to take that evidence into account in the present matter. Nor was it submitted that the circumstances shown in the transcript revealed that the Tribunal failed to give the applicant the opportunity required under s.425 in relation to calling B as a witness. (A different submission as to s.425 was made, which I shall address below.)

However, it was submitted that, in the Tribunal’s subsequent factual assessment of the applicant’s claim, its failure to refer to its finding that “B’s evidence was broadly consistent”, was one of several particulars showing that the Tribunal’s decision was “arbitrary and capricious” in its assessment of the evidence.
I shall below assess the other particulars supporting that argument. However, at this point it is convenient for me to express my opinion that the submission misunderstood what the Tribunal said at this point in its reasons. I am unable to read the Tribunal’s reference to B’s evidence taken in B’s case, as indicating that the Tribunal found in that evidence support for the applicant’s claims which it did not take into account. As I shall indicate, the Tribunal found many reasons for being unable to be persuaded as to the truth of the applicant’s asserted relationship with B, and I can find no more in its statement that “B’s evidence was broadly consistent with that of the applicant”, than that the Tribunal found that B gave evidence of a similar content and effect as the applicant. I do not read the Tribunal as saying that it believed B’s evidence to be true, nor that it found it to be corroborative of the truth of the applicant’s evidence. Rather, the Tribunal appears to be saying that it found B’s evidence neither inconsistent with the applicant’s evidence, nor particularly supportive of his evidence.
In the absence of evidence before me as what, in fact, was B’s evidence, and as to how it was assessed by the Tribunal in his own refugee claim, I am not able to find that there was evidence given by B which was unfairly excluded from consideration by the Tribunal, or that the Tribunal acted “arbitrarily” or “capriciously” in not discussing that evidence further with the applicant.
The Tribunal’s assessment of the applicant’s own evidence about his relationship with B was (numbering added):
1.Claims about sexual orientation may be easy to assert, but difficult for applicants to substantiate and for decision‑makers to evaluate. In relation to claims based on other Convention grounds, including other particular social groups recognised for the purposes of the Convention, an applicant may be able to demonstrate his or her claimed association through knowledge of an organisation, personalities and/or relevant concepts, or through participation in relevant activities. Claims relating to sexuality may be largely a matter of one’s self‑identity and involve difficult personal issues over a period of time. Furthermore, social, cultural and religious attitudes to homosexuality in countries such as Algeria are such that an applicant may fear expressing his or her sexual identity even in environments – such as Australian cities – where there would appear to be ample opportunity to do so. The Tribunal therefore explored the widest possible range of circumstances – including self‑identity, sexual and social contacts, awareness of and involvement with the gay community, instances of self‑disclosure, others’ perceptions and incidental evidence – which might support the Applicant’s claims.
2.The Applicant was a correct, but not a forthcoming witness. His answers were often clipped and/or vague, and his evidence marked with memory lapses and frequent requests for repetition of questions. The Tribunal appreciates that this may in part reflect poor preparation, lack of familiarity with the Tribunal setting, nervousness and/or instances of genuine confusion. It also notes that cultural or social constraints, particularly on matters of sexuality, may inhibit some applicants. It takes these into account in evaluating the Applicant’s evidence. However, the Tribunal is satisfied that there were no interpretation problems, and that the Applicant was given a full opportunity to present his claims. Striking was that he seemed indifferent to the Tribunal’s attempts to explore with him lines of enquiry which might assist his case, and reluctant to have his oral assertions tested.
3.For the following reasons, the Tribunal is not satisfied that the Applicant is homosexual; or that he has a genuine relationship with B; or that he identifies or will be perceived by anyone as such.
4.The Tribunal alerted the Applicant at hearing that he had provided minimal material beyond his brief oral assertions to substantiate his claims. In the Tribunal’s opinion, the Applicant’s account of his claimed self‑identity as a homosexual was presented without conviction or real engagement. He relied almost exclusively on the alleged relationship with B. The Tribunal’s efforts to gain a better understanding of this relationship yielded little information, beyond recitation of their ‘similar mentality’ and sexual encounters. There was no sense of intimacy or lasting commitment which would distinguish this from a friendship. For instance, the Applicant appeared to accept with equanimity that they were not able to sleep together in their Sydney accommodation, and to have given no thought to a future together. This also did not appear to be a matter of particular concern to him.
5.The Tribunal’s doubts are compounded by the Applicant’s evidence about others’ perceptions of the relationship and his sexual identity. Having allegedly informed his family and confirmed the suspicions of village neighbours about his sexuality, a decision that was fraught with risk given attitudes in rural Algeria to homosexuals, he has not told anyone else other than those involved in his current application. The Applicant appeared to be comfortable with that situation, and did not seem to be aware of or concerned about there being a gap between what people saw and what he was inviting the Tribunal to accept. Furthermore, he has not only not taken advantage of Australia’s more liberal environment, or thought of how he, as a homosexual man, might benefit from such circumstances – he appeared to show no interest in such matters.
6.The circumstances of the protection visa application reinforce the Tribunal’s concerns. On the one hand, the Applicant claimed not to have known about Australia before leaving Algeria, or to have the motivation or tools to take advantage of Australia’s liberal environment now that he is here. On the other hand, he claims that he and B decided in Algeria to seek protection on arrival in Australia, and to have taken the initiative to raise the subject on arrival in Sydney. Despite the Tribunal’s efforts to elicit relevant information, he failed to explain how he came to broach the subject of his sexuality with refugee advocates. These inconsistencies suggest that the issue only emerged when the Applicant started looking for a basis to stay in Australia.
7.The Tribunal is not satisfied on the material before it that the Applicant’s assertions regarding the nature of his relationship with B and his sexual identity are genuine. The Applicant’s evidence and conduct at hearing indicate that he advanced this particular refugee claim in the expectation that his statements would be accepted without substantiation or effort, that enquiries to test their veracity could be fended off and that he could obtain refugee status and permanent residency on this basis.
8.It follows that the Tribunal is also not satisfied that the Applicant has suffered harm, in the form of harassment, discrimination and threats from his family and village neighbours, for reasons of his sexuality; that he faces prospective harm from these persons and potentially also Islamic fundamentalists and Algerian authorities; and that the State will deny him protection, on a selective and discriminatory basis due to his now‑dismissed homosexuality, from such harm as might befall him, whether Convention‑related or not.
The applicant’s original application to this Court was filed without any apparent involvement of a lawyer. It contains three grounds which it is unnecessary for me to address. I note, however, that it includes an allegation of reasonable apprehension of bias, which has been withdrawn and is no longer put to the Court.
The applicant was represented at the hearing by counsel, instructed by a solicitor. He presented an amended application and addressed arguments to the following grounds:
1.The Tribunal failed to consider the applicant’s claim as to his homosexuality in the terms in which that claim was made; that is on the basis of the applicant’s alleged relationship with his named partner.
2.The decision was arbitrary and capricious (and therefore was not a lawful decision as to the Tribunal’s satisfaction), in that,
(a)The Tribunal substituted its own ideas on what constituted homosexuality for the basis upon which the applicant made his claim, that is on the basis of the applicant’s alleged relationship with this named partner,
(b)The Tribunal found that the partner’s evidence was consistent with that of the applicant, but then found that the partner’s evidence did not materially affect its assessment of the applicant’s claims,
(c)The Tribunal found adversely to the applicant because he failed to answer questions that he did not understand, and
(d)The Tribunal drew impressionistic conclusions from how it believed that the applicant should have acted, and how he should have given his evidence.
3.The Tribunal failed to complete the exercise of its jurisdiction, in that it failed to give the applicant an opportunity to answer questions which he did not understand, and which were important in the context of the Tribunal’s decision.
Ground 1 is difficult to understand. Counsel for the applicant accepted that manifestly the Tribunal did identify and address the factual issues of whether the applicant “is homosexual”, and “has a genuine relationship with B”. As I understand his submission, it was that the Tribunal’s questioning of the applicant at the hearing, and its discussion of his evidence, reflected a misapprehension as to the issues which were required to be addressed, because the Tribunal sought to explore generally whether the applicant’s past conduct revealed that he was homosexual independently of his relationship with B. The submission implicitly was that the Tribunal had therefore showed a misapprehension of the applicant’s refugee claims so as to have committed the error identified in Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1.
However, I do not accept this submission. The Tribunal in my opinion at all times showed a proper appreciation of the claims which were before it. Its questioning of the applicant seeking to obtain circumstantial details which would allow it to be satisfied, both as to his sexuality and his particularly claimed relationship with B, were in my opinion entirely relevant and properly directed at the claims which were before the Tribunal. I can see no aspect of the applicant’s refugee claims which the Tribunal has failed to address.
Ground 2 was explained by the applicant’s counsel as seeking to make out jurisdictional error of the type referred to by Gummow J in Minister for Immigration & Multicultural Affairs v Eschetu (1999) 197 CLR 611:
[136]Later, in Buck v Bavone (1976) 135 CLR 110 Gibbs J observed, in the course of construing the powers conferred upon a board established under the Potato Marketing Act 1948 (SA), that it was not uncommon for statutes to provide that a decision‑maker shall or may take certain action if satisfied of the existence of certain specified matters. His Honour noted that the nature of the matters of which the authority is required to be satisfied often largely will indicate whether the decision of the authority can be effectively reviewed by the courts. His Honour continued [at 118‑119]:
“In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached.”
[137]This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision‑maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way. (emphasis added)
Although counsel for the applicant disclaimed arguing that the present Tribunal had not acted in good faith when purporting to conduct a review of the applicant’s refugee claims, on one view of the passage from Buck v Bavone quoted by Gummow J, acting “merely arbitrarily or capriciously” is only evidentiary of a general finding which is required of lack of good faith. This also seems to be the way in which the characterisation of reasoning as “arbitrary or capricious” has been applied in several authorities, for example, in relation to the Hickman exception (see, for example, the authorities discussed in Wu v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 123 FCR 23 at [56]–[61], and Applicant WAFV of 2002 v Refugee Review Tribunal (2003) 125 FCR 351 at [38]‑[54]).
In any event, I do not need to discuss the general principles of jurisdictional error in this case further, since in my opinion the Tribunal’s reasoning and decision can not be given the adjectives “arbitrary and capricious”, either in its entirety or in any particular part.
The applicant’s particulars upon which this conclusion was sought to be drawn are themselves expressed in terms of generality and impression rather than particularity. Counsel’s oral submissions to me did not provide much greater illumination.
As I understood his argument supporting particular (a), and as counsel conceded also particular (d) of this ground, it was argued that the Tribunal’s reasoning, for example in paras.2 and 4 of the extract above, showed the applicant’s evidence being assessed against a misconceived stereotype of homosexual conduct which had no basis in evidence of human experience, or the applicant’s evidence, or evidence otherwise before the Tribunal.
However I do not accept this submission. Nor do I accept that the questioning of the Tribunal in the transcript shows the application of a false stereotype or misconception of the applicant’s claimed homosexuality. The transcript shows the Tribunal properly attempting to elicit corroborative circumstantial details of the applicant’s life, and receiving responses which provided little assistance to the Tribunal’s task. I consider that the Tribunal, both in the transcript and in its reasoning, shows that it was aware of the range of conduct in which homosexuality might be expressed or identified.
I have considered above at [19] – [24] particular (b), concerning how the Tribunal dealt with the evidence of B, given in B’s case.
Counsel for the applicant also criticised the Tribunal for forming impressions as to the applicant’s evidence, and arriving at factual conclusions concerning his relationship with B, without seeing the two persons together, or taking further steps to obtain evidence from B specifically for the purpose of supporting the applicant’s claims. However, the transcript which I have extracted above shows in my opinion that the Tribunal sufficiently afforded the applicant an opportunity to present evidence from B.
There is authority that the Tribunal is under no obligation to tell applicants how best to present their case. As Graham J recently said in Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142 (“SZFDE”):
[198]It is important to remember that proceedings before the Tribunal are inquisitorial rather than adversarial (cf cases coming before adjudicators under s 19 of the Immigration Act 1971‑1999 (UK): MNM v The Secretary of State for the Home Department [2000] INLR 576 at [19] and Guideline 6 of The Surendran Guidelines referred to therein.)
[199]The Tribunal Member conducting an inquiry is obliged to be fair. However, the Tribunal is not in the position of a contradictor of a case being advanced by an Applicant. In a case such as that brought by the first‑named First Respondent under her application for review to the Tribunal, it was for her to advance whatever evidence or argument she wished to advance and for the Tribunal to decide whether her claim that she was a refugee, within the meaning of the Refugees Convention had been made out. The Tribunal was not obliged to prompt and stimulate an elaboration which she may have chosen not to embark upon (per Gummow and Heydon JJ in Re RUDDOCK (in his capacity as Minister for Immigration and Multicultural Affairs; Ex parte APPLICANT S154/2002 (2003) 201 ALR 437 at [57]‑[58]).
[200]It is no part of the Tribunal’s function to serve as an Applicant’s ‘nursemaid’ (see De Silva v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 364 at [8]; Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [36]; R v Criminal Injuries Compensation Board; Ex parte A [1999] 2 AC 330 at 345).
In my opinion, the Tribunal’s procedures or reasoning in relation to B’s evidence reveals no jurisdictional error. I do not accept that it reveals arbitrary and capricious procedures or reasoning.
This brings me to particular (c) of Ground 2, which is that the Tribunal’s questioning as shown in the transcript, including the passages I have set out above, showed the Tribunal assessing the evidence given by the applicant capriciously. It was argued that this was revealed, in particular, because the Tribunal failed to appreciate that the applicant genuinely had difficulty understanding the Tribunal’s questions.
However, I am not satisfied that the Tribunal drew arbitrary or capricious conclusions from the applicant’s responses. Indeed reading the transcript, I consider that the Tribunal’s general assessment of the applicant as a witness, for example in para.2 in the extract above, appears to be balanced and well supported. Moreover, the Tribunal’s assessment of the applicant’s evidence must have been influenced by its observations of him during the hearing, and properly so. Although the Tribunal did not expressly find that the applicant’s claims not to understand questions arose from motives of evasiveness, this would have been an inference open from some parts of the transcript. I am not satisfied that the Tribunal’s general conclusions about the applicant’s evidence could not have been properly drawn by the Tribunal.
Counsel for the applicant, as I understood him, as a further particular of arbitrary and capricious conduct by the Tribunal, also criticised the Tribunal’s reasoning in para.6 in the extract above, where the Tribunal referred to its questioning of the applicant as to how he became aware that homosexuality could provide a ground for claiming a protection visa.
However, in my opinion the Tribunal’s reasoning in that paragraph was rational. It was relevant and open to the Tribunal to conclude that the applicant had “failed to explain how he came to broach the subject of his sexuality with refugee advocates”. It was then in my opinion rational for the Tribunal to make the suggestion that the applicant had attempted to present a refugee claim which he was not able to elaborate.

Turning to Ground 3 of the amended application, counsel submitted that passages in the transcript where the applicant gave responses to the effect that he did not understand significant questions, also revealed the Tribunal failing to afford an obligation required under s.425 of the Migration Act.
Section 425 required the Tribunal in the present case to invite the applicant to a hearing “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. There are suggestions in the authorities that this includes a “real and meaningful opportunity”, including an opportunity where an applicant is able to appreciate the questions which are being asked (c.f. Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 at [33], and NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 at [30]). There may be some uncertainty as to this implication (c.f. the opinions of the three Justices in SZFDE), but in this case I do not need to enter into a consideration of the differences of opinion in the Federal Court.
Counsel for the applicant also referred to Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1 (“Applicant NAFF”), which contains references to s.425(1) which seem to suggest that it is a provision requiring the Tribunal to do more than give an invitation to a hearing. For example, the High Court said:
[26]Although the Tribunal was obliged to provide an informal mechanism of review (s 420(1)), and although the Tribunal was not bound by ‘‘technicalities, legal forms or rules of evidence’’ (s 420(2)(a)), the Act established important requirements of a substantive kind, several of which were designed to ensure that applicants for review received procedural fairness. The duty of the Tribunal under s 414(1) to review the delegate’s decision (which arose once the appellant had applied for review) continued until one of the outcomes described in s 415(2) was arrived at, for example, the affirming, the varying or the setting aside of the decision.
[27]One aspect of the overall duty to review was the duty to invite the appellant to give evidence and present arguments: s 425(1). The duty to review therefore entailed a statutory duty to consider the arguments presented and in that way to afford the appellant procedural fairness. That implied that if the Tribunal thought that the arguments had been presented so inadequately that the review could not be completed until further steps had been directed and performed, it could not be peremptorily concluded by the making of a decision before that direction was complied with or withdrawn.
Counsel for the applicant sought to rely on the above passage in Applicant NAFF, in support of an argument that the present Tribunal was obliged to “direct further steps” to allow the applicant to understand its questions, and also to be given further opportunities to present evidence from himself and his claimed partner.
However, in my opinion these submissions misunderstand the authority of Applicant NAFF. That was a case where the High Court found a failure by the Tribunal to complete its review according to law, because it failed to consider whether to follow a procedure which it had suggested to the applicant at the end of the hearing, which would have involved it taking further steps to inquire into a factual matter. In the present case, there was no further inquiry which the Tribunal suggested that it would perform, and which it failed to perform before arriving at its decision. I can see no circumstances giving rise to any obligation on the Tribunal to ask further questions nor to follow any further procedures, arising out of the Tribunal’s questions of the applicant which the applicant claimed not to understand.
Moreover, I consider that this ground is based on a misreading of the transcript, and a misunderstanding of what the Tribunal has taken from those parts of the hearing where the applicant did not respond to its questions except by claiming an inability to understand. It was a matter for the Tribunal to decide whether those responses genuinely showed a lack of understanding, and to draw its own conclusions in relation to the responses that were given. The Tribunal has performed that task, and I do not consider that its questioning or its assessment of the responses reveals any jurisdictional error.
For the above reasons I have not been persuaded by any of the arguments presented to me today by counsel for the applicant. I have therefore concluded that the Tribunal’s decision is a privative clause decision within s.474(1) of the Migration Act, and I must dismiss the application.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 15 December 2006