SZJHA v Minister for Immigration

[2007] FMCA 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJHA v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 2011

MIGRATION – Review of Refugee Review Tribunal decision – adverse credibility finding – no failure to consider claims or integers of claims – no error in the Tribunal’s consideration of claims and integers of claims – no failure to consider a claim – no jurisdictional error – application dismissed.

Migration Act 1958, ss.424A, 65, 36(2), 422B

NAISv Minister for Immigration and Multicultural and Indigenous Affairs (2005) ALR 171; [2005] HCA 77 Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 333 Minister of Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Applicant A169/2003 v Minister of Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 WAEE vMinister of Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 Paul v Minister of Immigration and Multicultural Affairs (2001) 113 FCR 396; [2001] FCA 1196 Minister of Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Kopalapillai v Minister for immigration and Multicultural Affairs (1998) 86 FCR 547 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437 NABE v Minister of Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1; [2004] FCAFC 263 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2

Applicant:

SZJHA

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2434 of 2006

Judgment of: Nicholls FM

Hearing date: 18 July 2007

Date of Last Submission: 23 August 2007

Delivered at: Sydney

Delivered on: 6 December 2007

REPRESENTATION

Counsel for the Applicant: Mr J R Young (Submissions only)

Solicitors for the Applicant: Nil

Counsel for the Respondents: Mr J Mitchell

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The reference to the first respondent be amended to read “Minister for Immigration and Citizenship.”

2. The application made on 31 August 2006, and amended on 29 March 2007, is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2434 of 2006

SZJHA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 31 August 2006, and amended on 29 March 2007, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 2 August 2006 and handed down on 3 August 2006, which affirmed the decision of a delegate of the respondent Minister which refused the grant of a protection visa to the applicant.

Background

1. The first respondent has filed a bundle of relevant documents in this matter (the Court Book (“CB”)) from which the following background can be discerned. The applicant is a citizen of Bangladesh who arrived in Australia on 10 December 2005. The applicant applied for a protection visa on 22 December 2005 (reproduced at CB 4 to CB 46). When this application was refused the applicant sought review by the Tribunal on 21 March 2006 (CB 362 to CB 365).

2. The applicant appeared at a hearing before the Tribunal on 28 June 2006. The Tribunal’s decision record of what occurred at the hearing is reproduced at CB 452 to CB 455. In addition to the applicant a witness (“SH”) gave evidence on the applicant’s behalf (CB 445.82 to CB 456.4). Also in addition to various submissions made to the Tribunal through his then migration advisor, the applicant also responded to the Tribunal’s letter (sent by facsimile transmission on 29 June 2006) inviting the applicant to comment on information which the Tribunal said may be the reason, or part of the reason, for deciding that he was not entitled to a protection visa (CB 422 to CB 425). The applicant’s response is reproduced at CB 468 to CB 476.

Applicant’s claims to protection

1. The applicant sought protection in Australia because he claimed to fear persecution in Bangladesh because of his homosexuality. The applicant gave evidence of the problems that this caused with his family, that he had been blackmailed while studying in Singapore when his homosexuality was discovered by another Bangladeshi student, and further, in support of his claims, that he was in a homosexual relationship in Australia.

The Tribunal

1. The Tribunal was not satisfied that the applicant was a homosexual or that he had been in homosexual relationships as claimed (CB 462.7 to CB 464.4). Nor was the Tribunal satisfied that the applicant had been threatened with harm by his family as he had claimed (CB 464.4 to CB 465.3). As a result, the Tribunal was not satisfied that there was a real chance that the applicant would suffer harm in Bangladesh because of his sexual orientation should he return (CB 466.5). The Tribunal’s lack of satisfaction in this regard was based on its view of the applicant’s lack of credibility, which in turn arose from discrepancies and inconsistencies in the applicant’s claims.

Application to the Court

1. An amended application prepared with the assistance of solicitors (Notice of “Ceasing to Act” filed on 5 July 2007) and filed for the applicant on 29 March 2007 put forward four grounds:

   “1.The Tribunal made jurisdictional error in that it constructively failed to exercise jurisdiction or alternatively to complete its jurisdictional task.

   Particulars:

   At CB 463.8 the Tribunal noted inconsistencies between the evidence of the applicant and that given by a witness.  The Tribunal made no finding as to which evidence it preferred.  It gave no consideration as to whether the witness may have had reason not to be truthful on the subject being asked.  At CB 464.1 the fact of the inconsistency was relied upon by the Tribunal as part of its reason for finding that the applicant had never had a homosexual relationship with the witness.

   2.The Tribunal made jurisdictional error by regarding inconsistencies in evidence (whether between the applicant and a witness or by statements of the applicant at different times) as necessarily connoting dishonesty.

   3.The Tribunal made jurisdictional error by failing to have regard to a relevant consideration, namely that as found by the Tribunal the applicant was being untruthful about having had a sexual relationship in Singapore with a man nicknamed Cork, it was likely that the applicant would invent an actual name for that person beyond a mere nickname.

   4.The Tribunal made a jurisdictional error by regarding the applicant as having giving inconsistent accounts of an incident by reason of his attribution at the Tribunal of a motive of jealousy to the actions of a person photographing the applicant in sexual activity with another male.  Such attribution of motive by the applicant was speculation as to the reasons for the actions of another and not part of the account.  It was therefore an error to regard it as being inconsistency in relation to the account of the incident.” (Errors in Original)

Hearing before the Court

1. At the hearing before the Court, the applicant appeared unrepresented. He was assisted by an interpreter in the Bengali language. Mr J Mitchell of Counsel appeared for the first respondent.

2. When given the opportunity to address the Court, the applicant stated at first that “he didn’t have anything to say,” and that everything that has been written “is true.” Following submissions by Mr Mitchell, the applicant complained that the Tribunal “took all the wrong decisions,” and that he took issue with the Tribunal’s findings. Towards the end of the hearing, the applicant indicated, through the interpreter, that he had a written submission that he wanted to give to the Court. The submission had been prepared by Counsel on the applicant’s behalf (it appeared that Counsel only had instructions in relation to the preparation of written submissions).

3. Despite the very late emergence of these written submissions (literally at the end of the hearing), and notwithstanding that the applicant obviously had had the benefit of advice at some point by solicitors, and more recently by Counsel, leave was granted for the filing of these submissions in Court. Leave was also granted to the Minister to file further written submissions, and these were subsequently received. The applicant also filed supplementary written submissions, again prepared by Counsel. Notwithstanding that no leave was granted for the filing of these supplementary submissions by the applicant, I have considered what was contained in them.

Ground One – Jurisdictional error

1. The applicant’s first complaint is that the Tribunal made jurisdictional error because it rejected his claim to be a homosexual, in part because it rejected his claim to have been in a relationship with “SH” in Australia, which in turn was derived from inconsistencies between the applicant’s evidence and the evidence of “SH” given to the Tribunal at the hearing.

2. The applicant’s submission is that the Tribunal made credibility findings based on upon the “mere factual inconsistencies” (see paragraph 10 of written submissions) of detail between the accounts given by the Applicant and a witness [SH]. The applicant submits that the Tribunal failed to make a finding as to which of the evidence it preferred, or even, whether the fact of the inconsistencies caused it to believe, or reject, the evidence of either the applicant or SH, or both (see in particular paragraph 7 of the applicant’s written submissions).

3. The applicant’s position is that it was not open to the Tribunal to treat what was described as the “mere fact of inconsistencies” (paragraph 10 of written submissions) to reject the evidence of both the applicant and his witness as to their claimed relationship, in the absence of consideration, and finding, as to which of the evidence it preferred. This was seen as a failure to consider all of the evidence and to make findings of fact in relation to all the evidence. The applicant’s submissions argue that just because the applicant’s evidence about the relationship was different to that of the witness, that it was then open to the Tribunal to reject all the evidence about the relationship only if the Tribunal were to make a finding that neither of the two parties’ evidence could be believed, or a clear finding that the Tribunal could not be satisfied about the evidence of either of the two.

4. The applicant relied on NAISv Minister for Immigration and Multicultural and Indigenous Affairs (2005) ALR 171; [2005] HCA 77 (“NAIS”) per Kirby J at [65] (with reference to Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 (“Abebe”) at 577–578 per Gummow and Hayne JJ) for the proposition that “falsehoods and embroidery” by an applicant do not lead to rejection of all of the applicant’s evidence, and that any remaining evidence which is not disbelieved or discredited must be considered. It was stressed, and further explained in supplementary written submissions (at paragraph 5), that the Tribunal did not find that it believed the applicant’s account, nor that the applicant’s account was discredited, but simply that the applicant’s evidence was not considered because the other person in the relationship gave a different account. This, the applicant says, is not “consideration” of the applicant’s evidence.

5. I note by way of preliminary observation that the High Court’s consideration in NAIS was made in circumstances where there was “extraordinary delay” (see NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 333 per Hely J (at [2]) at first instance) or “inordinate” delay (see Gleeson CJ at [3]). In NAIS this delay was the time taken from the application for review, lodged on 5 June 1997, to the handing down of the Tribunal’s decision on 14 January 2003. In NAIS it was said that “a most significant consideration” was “the assessment of the truthfulness of the appellants as witnesses” (per Kirby J at [67]). Further (per Gleeson CJ at [8]):

   “[T]here were a number of examples of findings by the tribunal, adverse to the appellants, that turned on an assessment of their credibility in circumstances that must have been influenced by the tribunal’s observation of their demeanour.  Evidence that was not inherently improbable, or contradicted by objective facts, was rejected as ‘implausible.’  The fact that the third appellant (then aged 12) ‘displayed no signs of trauma or concern’ in her evidence at the second hearing (more than a year before the decision) was treated as indicating that account of an attack, in which her mother intervened, was fabricated.”

6. Plainly, no question of such delay applies in the case currently before the Court. The application for review was made on 15 March 2006, and the decision was handed down on 3 August 2006.

7. I do not agree with the applicant’s characterisation in written submissions of what the Tribunal has done. I agree with Mr Mitchell’s understanding of the authority of Abebe and NAIS. With respect to the comments of Gummow and Hayne JJ in Abebe to the effect that just because an applicant may embroider their claims (“…the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising” (at [191])), this does not necessarily mean that all of their claims should not be considered (Abebe at [193], per Gummow and Hayne JJ). Their Honours said (at [193]):

   “In this case the applicant maintained that she had been persecuted in the past. If that contention were disbelieved then, for the reasons just discussed, it did not mean that her claim to protection must inevitably fail. There would remain for consideration any other basis on which it was said that her fear of persecution was well founded. The contentions that were advanced in support of her application for prerogative relief must be examined in light of those considerations.”

8. Their Honours noted that while an applicant for refugee status may “yield to temptation to embroider an account,” they note that the role of the Court has its limitations (at [191]):

   “But those difficulties are to be confronted by the Tribunal in the execution of its tasks, not by a court that is asked to review the way in which the Tribunal reached its decision.”

9. In my view, what relevantly distinguishes the circumstances in the case currently before the Court from what was before the High Court in NAIS is that the Tribunal did not rely on any adverse finding as to the applicant’s credibility to ignore each or any integer of the applicant’s claims, and to overlook evidence in support of each integer, in finding that the applicant did not have a well-founded fear of persecution.

10. The applicant’s claim was that he feared persecution if he were to return to Bangladesh because of his homosexual orientation. The integers of the applicant’s claim were that firstly, he was of homosexual orientation, and secondly, that he feared harm from his family if he were to return to Bangladesh given his homosexual orientation, and that he would be killed by “his family, neighbours, police, brothers, ‘anyone’” (CB 452.3).  (See also paragraphs 4 and 5 of the applicant’s statutory declaration attached to his protection visa application, reproduced at CB 29)).

11. The case before the Court now is not comparable to the situation in NAIS because of some general assessment of the truthfulness of the applicant as it arose from one discredited aspect of the applicant’s claims, which then influenced the Tribunal to reject other aspects of the applicant’s claims without proper consideration of both the integers of the claim and the evidence in support.

12. In support of his claim that he was of homosexual orientation the applicant put before the Tribunal integers of this claim that he had engaged in homosexual activities and relationships in Bangladesh, Malaysia, Singapore and Australia. The applicant gave evidence, and provided evidence from other sources, in support of these aspects of his claim to be homosexual.

13. The Tribunal was not satisfied that the applicant was a homosexual (CB 462.7 and CB 466.4). This was said by the Tribunal to be because of significant inconsistencies and improbabilities in the accounts given of his relevant activities and relationships in Bangladesh, Malaysia, Singapore and Australia (CB 462.7 and CB 466.4). The Tribunal looked at each of these claimed instances of activities and relationships:

    1)It found in relation to a claimed relationship in Bangladesh that the applicant’s own evidence, given in an interview on 30 February 2006 with an officer of the first respondent’s Department, raised doubts as to the applicant’s claims. The Tribunal gave reasons for this (CB 462.10).  (Noting also that this issue was discussed with the applicant at the hearing with the Tribunal (CB 453.4) and was the subject of an invitation to comment on information he had provided in both his protection visa application and at an interview with the first respondent’s delegate (see CB 422.5).)

    2)The applicant was unable to provide evidence to confirm that the person with whom he claimed to have had a relationship in Malaysia had in fact been enrolled in the educational institution as claimed, as this person appeared to be the same person that the applicant had claimed to have been in a relationship with in Bangladesh. The Tribunal similarly found that there were doubts about the applicant’s claims to have been involved in this relationship (see in particular CB 462.10 to CB 463.3).

    3)The applicant also claimed to have been in a sexual relationship in Singapore with a Chinese student named “Cork,” and gave evidence that he had been discovered in this relationship by another Bangladeshi student who had blackmailed him: “Russell”. For reasons which it gave, the Tribunal was not satisfied that the applicant was in a homosexual relationship with this Chinese student when he was living in Singapore (CB 463.7).

    4)The applicant claimed to have been in a homosexual relationship in Australia with SH. Ultimately, the Tribunal found inconsistencies between the evidence of the applicant and the evidence of SH, and said it was not satisfied as to the truth of this claim and it rejected the applicant’s claims that he was in such a homosexual relationship (CB 461.1).

    5)The applicant also claimed to be in a homosexual relationship in Australia with another person, “HW.” The Tribunal also, for reasons which it gave, was not satisfied as to the truth of this claim (CB 464.3).

14. In relation to the applicant’s claims of threats of harm in the past, and how these contributed to his fear of persecutory harm should he return to Bangladesh, the Tribunal made the following findings:

    1)It was not satisfied with the applicant’s claim, made for the first time at the hearing before it, that he would have omitted to state that his family had lodged false cases against him in Bangladesh, and had told his friends in Singapore to beat him up. It was not satisfied that if the family’s claimed hostility had genuinely taken on “this additional and dramatic form” that “such a highly relevant fact” would have been omitted “from his detailed protection application or other submissions prior to the hearing” (CB 464.6).

    2)It was not satisfied as to the credibility of the applicant’s later assertion that he had lied at an interview on arrival at Perth airport to explain an inconsistency in relation to support from his family, and inconsistencies between what he had said at that interview and what he had subsequently put to the Tribunal (CB 464.8).

    3)It was not satisfied with the applicant’s claim that he had received considerable financial support from a Chinese friend in Singapore (CB 464.9). It found that this was “an invention advanced by the applicant at the hearing in response to doubts expressed to the Tribunal as to the truth of his claims about his sources of income” (CB 465.1).

    4)It was not satisfied as to the applicant’s claim that the death of his parents had a “causal connection with his alleged homosexuality” (CB 465.3).

1. The Tribunal also considered submissions made by his then advisor on 2 August 2006, and did not accept that the arguments advanced by the advisor resolved its doubts and lack of satisfaction about the credibility of the applicant’s claim that he was a homosexual, and that he had homosexual experiences in Bangladesh, Malaysia, Singapore and Australia, that he was blamed by his family for the death of his parents, or that his parents or anybody else would wish to harm him on return (CB 465.5).

2. The applicant also submits that unless evidence is disbelieved or discredited, it must be considered, and the Tribunal did not find that it disbelieved the applicant’s account of his claimed relationship with SH, it merely found inconsistencies between the evidence of the applicant and SH. The applicant submits therefore that the Tribunal did not consider his evidence, and that this failure reveals jurisdictional error.  The applicant through submissions contends that while the Tribunal noted differences between his evidence and the evidence of SH, it did not state which evidence it preferred, or whether the fact of the inconsistencies caused it to disbelieve or to reject the evidence of either or both (see paragraph 7 of written submissions and paragraph 5 of supplementary submissions).

3. I do not agree with the applicant’s submissions whether the relevant characterisation on what was before the Tribunal is said to be claims (or integers of claims) or evidence. (Noting also that a Tribunal is not required to deal with each piece of “mere” evidence before it (Minister of Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 (“Yusuf”) at [68], [73]-[74] and [91], Applicant A169/2003 v Minister of Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 (“Applicant A169”) at [24], WAEE vMinister of Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 (“WAEE”) at [47], Paul v Minister of Immigration and Multicultural Affairs (2001) 113 FCR 396; [2001] FCA 1196 (“Paul”) at [79]).)

4. I do not see that this Tribunal found the claimed relationship between the applicant and SH to be untruthful because of some general rejection of the applicant’s claims. I cannot see that the Tribunal relied on the fact of having found the applicant to have embroidered or fabricated some of his claims and to have therefore relied solely on that in rejecting the specific aspect of the applicant’s claims which relied on his claimed relationship with SH. The Tribunal rejected the claim that such a relationship had occurred by comparing the applicant’s own evidence with the evidence of SH, who gave evidence on the applicant’s behalf by telephone (CB 455.8 to CB 456.4).

5. The applicant’s submissions (see for example paragraph 5 of the supplementary submissions) assert that the Tribunal did not find that it disbelieved the applicant’s account. This is plainly at odds with the Tribunal’s decision record. The Tribunal plainly stated that it was not satisfied as to “the truth of the applicant’s claims that he has had a homosexual relationship with [SH] or has ever done so” (CB 464.1). The Tribunal was plainly required, and obliged, to consider the applicant’s claim or, relevantly, this integer of the applicant’s claim. That is that he had a homosexual relationship with SH. This it did. It considered the applicant’s evidence as set out at CB 463.7 to CB 464.2. It also considered the evidence given by the applicant’s witness who was the other claimed party to this relationship.

6. The Tribunal found (not unreasonably in my view given the evidence before it), but certainly in a finding that was open to it to make, that the evidence of the two protagonists to this claimed relationship was at variance on key details. For example, when the relationship was said to have started, and whether SH met the applicant at the airport on arrival in Australia, or not, and the applicant’s claim that he never discussed SH’s application for a protection visa, as opposed to SH’s evidence that this was discussed “in detail.” When this evidence was looked at in the context of the applicant’s omission of this claimed relationship in his protection visa application, or indeed its absence from the lengthy submission that the Tribunal received from his advisor on 9 February 2006, the Tribunal found that it was not satisfied that this omission was as a result of the relationship with SH developing only “slowly.” Given the applicant’s other evidence, the Tribunal therefore found implausible the claimed circumstance of having begun “a physical sexual relationship with the witness within a few days of moving in with him.”

7. In looking at this evidence, the Tribunal was required to make findings as to what it saw as being material to the decision it made (see Yusuf per Gleeson CJ at [68]). In my view it was plainly open to the Tribunal to find that the inconsistency in the evidence of the only two people who were involved in the relationship was a matter that was relevant, and material, to an assessment of the applicant’s credibility. A plain reading of the Tribunal’s decision record reveals, contrary to the applicant’s submission, that the Tribunal did make a finding that it disbelieved the applicant’s account (see CB 464.1).

8. In my view, the Tribunal on a plain reading of its decision record did make a finding as to the credibility of the applicant’s evidence in relation to this claimed relationship, and found adversely to the applicant, given that the applicant had omitted any reference to this “significant relationship,” both in his protection visa application and even in subsequent submissions given to the Tribunal in writing, and given the inconsistencies in the accounts of the applicant and “SH.” This is not to ignore the applicant’s evidence, but to have considered and compared his evidence with other evidence provided or given on his behalf. I fail to see what more the Tribunal could have done in the circumstances of the way that the evidence was presented to it.

9. The applicant’s submissions appear to imply that it was not open to the Tribunal to rely only on the inconsistency. But in my view this is to seek merits review of the Tribunal’s decision and the way in which the issue of the applicant’s credibility was considered. (See Minister of Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”), particularly at [282].) Ultimately, the Tribunal acted within its jurisdiction making findings of fact, including a finding in relation to the applicant’s credibility (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 (“Durairajasingham”)).

10. Having compared, relevantly, the two sets of evidence that were put before it in relation to the claimed homosexual relationship in Australia, it formed the view, partly because of inconsistencies in the two accounts, that it could not be satisfied as to the truth of the applicant’s claims. Nor, as is asserted at paragraph 6 of the supplementary submissions, is it a fair characterisation of the Tribunal’s decision record to say that the Tribunal gave a reason for not considering the applicant’s account, that is, that there were inconsistencies between the two accounts.

11. In supplementary submissions, the respondent submits that where a Tribunal makes general findings that subsume all of the applicant’s claims, it is not required to make findings on each piece of evidence before it (with reference to Yusuf at [68], [73]-[74] and [91], Applicant A169 at [24], WAEE at [47] and Paul at [79]).

12. In my view, the Tribunal did make a specific finding in relation to the applicant’s evidence, that is, it was not satisfied as to the truth of his claims arising from his evidence that he had a homosexual relationship with SH. The Minister appears to be responding to a case, and argument, put up by the applicant that is itself not reflective of the Tribunal’s decision record.

13. The Tribunal is required and obliged to reach a requisite level of satisfaction consistent with the statutory obligation imposed upon it (ss.65 and 36(2) of the Act) that the applicant is a person to whom Australia owes protection obligations (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]-[16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4]-[5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).

14. To the extent that the applicant relied on a homosexual relationship with SH in Australia as part of his claim that he was a homosexual who would be subjected to persecution if he were to return to Bangladesh, the Tribunal was “not satisfied as to the truth of the applicant’s claims” because of the omission of any mention of this “significant relationship” in his protection visa application and in subsequent written submissions to the Tribunal. Further, the Tribunal was not satisfied because of inconsistencies between the applicant’s evidence and the evidence of the other person in this claimed relationship, SH. The Tribunal made a factual finding that was within the exercise of its jurisdiction that it could not be satisfied as to the truth of the applicant’s claims and it gave reasons for this. This Court cannot intervene to substitute its own factual finding as to the credibility of the applicant’s claim in this regard (Wu Shan Liang).

15. There was no obligation on the Tribunal in the circumstances to consider whether SH may have reason not to be truthful, as is suggested in the wording of the ground as pleaded. The fact that the Tribunal relied in part on inconsistency between the applicant’s evidence and the evidence of SH does not, in the plain circumstances of what the Tribunal records as its analysis of this claim, reveal that it ignored or failed to consider the applicant’s evidence. This evidence was considered, it was compared and found to be lacking both for the reason of its omission until a late stage of the applicant’s claims before the Tribunal, and for reason of inconsistency.

16. In all therefore, this ground does not succeed.

Ground Two – Error in regarding inconsistencies as indicative of dishonesty

1. The applicant’s second pleaded ground arises from the same circumstances as ground one. The complaint is that the Tribunal made jurisdictional error by regarding inconsistencies in evidence as necessarily connoting dishonesty.

2. Further, to what is set out above in relation to ground one, the Tribunal’s conclusion that the applicant’s claims in this regard were not truthful, was a factual conclusion which was open to it for the reasons that it gave. This was, as was set out above, a finding of fact and a matter for the Tribunal as the “decision-maker par excellence” (Durairajasingham per McHugh J at [67]).

3. No error is demonstrated given that the Tribunal’s finding in this regard was open to it. (Kopalapillai v Minister for immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559. See also W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679, per Tamberlin and Nicholson JJ at [64]-[69].) The Tribunal’s findings were open to it for the reasons that it gave. The applicant’s submissions seek impermissible review of the merits of this aspect of the Tribunal’s decision (see Wu Shan Liang at [272]).

Ground Three – Failure to consider a relevant consideration

1. In ground three the applicant complains that the Tribunal fell into jurisdictional error by failing to have regard to a relevant consideration. This was said to be that the Tribunal found the applicant was being untruthful about having had a sexual relationship with a man “nicknamed” “Cork” in Singapore, and that it was likely that the applicant would invent an actual name for that person beyond just the nickname.

2. The applicant’s submissions direct attention to the Tribunal’s consideration of the applicant’s evidence of his relationship with Cork (CB 463.3). The submission is that the Tribunal stated that it was not satisfied that the applicant had a homosexual relationship with Cork because of the applicant’s inability to state “Cork’s full Chinese ethnic name”. Paragraph 18 of written submissions appears to misstate that the Tribunal is “obliged to accept uncritically all of the applicant’s claims”. In light of well-settled authority, I read this as containing a typographical error, and that the Tribunal is not obliged to accept uncritically all of an applicant’s claims (see Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437).

3. I understood the applicant’s submissions, therefore, to be that in spite of the proposition immediately above the Tribunal is required to have regard to both favourable and unfavourable inferences or hypotheses arising from the applicant’s circumstances. In this case the Tribunal did not give consideration to the possibility that the applicant stated that he did not know the real name of his sexual partner in Singapore because he may have been giving truthful evidence. The submission is that the Tribunal did not consider such a hypothesis, and that if a person was manufacturing such claim, it would be likely that such a person would invent a name for a non-existent sexual partner. The submission is that it was capricious of the Tribunal to ignore any such benign or helpful conclusion in relation to the applicant’s case.

4. Again in my view, this complaint is selective in its reference to and characterisation of what the Tribunal has done. The applicant raised his claim of the homosexual relationship in Singapore with Cork in his statutory declaration attached to his protection visa application (see paragraph 3). This claim amongst others was discussed with the applicant at the Tribunal hearing (CB 453.5 to CB 454.2).

5. In its analysis, the Tribunal found that there were significant inconsistencies between the applicant’s claims concerning the way in which Russel was said to have discovered his homosexual relationship with Cork. The Tribunal also found that the applicant’s claim that he lived with Cork “for three or four months as his sexual partner and was deeply involved with him emotionally” did not “sit well with his inability to state Cork’s full name”. The Tribunal was not satisfied with the plausibility of the applicant’s explanation that Cork’s full name was so difficult to pronounce, and so long, that the applicant never mastered it (Cork was said to be of Chinese ethnicity). The Tribunal also was not satisfied given the applicant’s alternative claim to have forgotten the name of this person given that the “close emotional involvement with him was said to have ended less than a year previously.” Given all these circumstances the Tribunal was not satisfied that the applicant was in a homosexual relationship with Cork in Singapore as he had claimed (CB 463.3 to CB 463.7).

6. Again, as in the case in relation to ground one, what the Tribunal was required to consider was, relevantly, the applicant’s claim to be a homosexual, and specifically relevant to this ground, the integer of this claim as it was said to arise from the claimed homosexual relationship in Singapore with the Chinese student named Cork.

7. The Tribunal did not make any finding that the name Cork was an invention. Nor was the issue of the “nickname” the sole reason for rejecting the applicant’s claim to have had such a homosexual relationship in Singapore. The Tribunal’s concerns arose out of inconsistencies between the applicant’s various claims as to how this relationship was discovered by another Bangladeshi student named Russel, whom the applicant claimed blackmailed him, and ultimately sent a photograph to the applicant’s parents showing him kissing Cork. A claim that was only made after “further prompting” at the hearing (CB 463.5). Further, the Tribunal was unable to be satisfied as to the existence of this homosexual relationship given the applicant’s claim that he lived with Cork for three or four months as his sexual partner, was deeply involved with him, and that “this did not sit well with an inability to state his full name.” The applicant then provided two alternative explanations for this inability. The first was that Cork’s real name, which was of Chinese ethnicity, was so difficult to pronounce, and so long, that the applicant never mastered it. Then in the alternative claim, that he had forgotten the name of this person.

8. As stated above, the Tribunal was obliged to consider the applicant’s claim to having a well-founded fear of persecution, including as it arose from these circumstances set out above. I cannot see however, as Mr Mitchell in my view correctly submits, that the Tribunal was obliged to speculate to the extent of divining “unarticulated claims” (see NABE v Minister of Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1; [2004] FCAFC 263 at [58]). Nor, even in circumstances where the Act does not specify the exact manner in which the Tribunal is to conduct its fact finding (see Wu Shan Liang at [282]), was the Tribunal obliged to speculate as to the applicant’s motives for giving the evidence in the way that he did.

9. In Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 (“Plaintiff S157”), the High Court was asked to consider whether ss.474 and 486A of the Act were invalid. The Court held unanimously that s.474 is valid, but that it did not apply to a decision that involved jurisdictional error. The Court held that s.474 (“the privative clause”) must be read to refer to decisions which involve neither a failure to exercise jurisdiction, as inferred by the Act, nor an excess in jurisdiction. The Court in Plaintiff S157 (per Gaudron, McHugh, Gummow, Kirby and Hayne JJ) gave the example of jurisdictional error as “a failure to discharge ‘imperative duties’ or to observe ‘inviolable limitations or restraints’” (at [76], citations omitted).

10. I cannot see that the relevant procedural code set out in Division 4 of Part 7 of the Act as to the conduct of the review (noting also that this is a case to which s.422B of the Act applies) required the Tribunal to conduct the kind of speculation put forward by the applicant now. The Tribunal’s rejection of the applicant’s alternative explanations as to why he could not give it any other name other than “Cork” was open to it on what was before it. The claim now that the applicant may have been truthful in both, or either, of his explanations for his failure to provide any other name than “Cork” constitutes the applicant seeking merits review of a Tribunal finding that was a finding made by it within the exercise of its function as the relevant decision maker (Durairajasingham at [67]), and a finding that is not open for this Court to review in terms of its correctness or even its fairness.

Ground Four – Inconsistent accounts of the incident involving Russell

1. Ground four asserts jurisdictional error on the part of the Tribunal by regarding the applicant as having given inconsistent accounts of the incident involving “Russell” because the applicant attributed Russell’s motives to those of jealousy. The applicant contends now that such attribution of motive was speculation as to Russell’s reasons for what he did, and the Tribunal was in error in regarding it as an inconsistency in relation to the account of the incident. I assume that the “incident” referred to in this ground is the incident of the photographing of the applicant and Cork, and the subsequent claimed blackmail by Russell and claimed the sending of this photograph to the applicant’s parents.

2. The issue of Russell’s claimed jealousy first arose at the hearing before the Tribunal (see CB 453.8 to CB 454.2). Having given his evidence in relation to Cork, the applicant then stated to the Tribunal that a Bangladeshi neighbour named Russell had seen the applicant and Cork kissing through a window and had threatened to tell other people of what he had seen, and to show a photograph that he had taken of the applicant and Cork through the window to the applicant’s family.

1. In its letter sent to the applicant (said to be pursuant to s.424A), amongst other things (see CB 423.7 to CB 424.2), the Tribunal recounted the applicant’s evidence given by him at the hearing, including his answer to the question as to why Russell had acted in the way that he had done, and the applicant’s response that Russell was jealous of his relationship with Cork. It compared this with other evidence given by the applicant which appeared to be inconsistent with the applicant’s claims about Russell discovering his homosexual relationship with Cork and reporting this to his family. The Tribunal said that this inconsistency may cast doubt on the veracity of his claim that he had had a homosexual relationship with Cork which was then reported to his parents.

2. The applicant’s response to this, sent through his agent by way of letter dated 1 August 2006 (reproduced at CB 429-CB 437), does not address the attribution of motive by the applicant to Russell. The submission seeks to address why the applicant was only familiar with Cork by his nickname (see paragraph 4 at CB 429), and accepts that the applicant gave “different responses” in relation to how many times Russell saw him “through the window” (see paragraph 6 at CB 430.4).

3. The applicant’s submission now is that his attribution of motive to Russell was speculation as to the reasons for Russell’s actions and was not part of the account of the incident (presumably the incident of Russell having photographed him through the window). The applicant’s submission is that it was an error to regard this as being an inconsistency in relation to his account of the incident.

4. In my view, this again is a misrepresentation of what the Tribunal has done. The inconsistency which in part informed the Tribunal’s view of the applicant’s claimed relationship with Cork was the inconsistency in the applicant’s own evidence in seeking to explain why another Bangladeshi student described simply as “Russell” would seek to photograph the applicant through a window kissing another student described as “Cork,” and seek to blackmail the applicant in the way claimed.

5. It is important to note that this was not speculation by the Tribunal. Nor was it an explanation invented by the Tribunal. It was the applicant’s own evidence as to why Russell acted in the way that the applicant claimed. The applicant was put on notice by way of the Tribunal’s letter that amongst the many other things that the Tribunal had noted as inconsistencies in the applicant’s evidence, was the inconsistency in both the detail as to how many times Russell had seen him through the window, and as to his explanations as to why he believed Russell had done these things. The Tribunal did not reject the plausibility of the applicant’s claim because of the attribution of jealousy to Russell. But rather rejected his claim because this explanation was inconsistent with other explanations given by the applicant at the hearing as to Russell’s motives.

6. Further, it is important to note, as Mr Mitchell submitted at the hearing before the Court, that the Tribunal’s appraisal in this regard was made in the context of a number of inconsistencies and a number of other matters not raised by the applicant until he arrived at the hearing with the Tribunal, and further described a number of incidents in a manner inconsistent with the way they had been earlier described. It was the inconsistency in this explanation, and secondly, it having been raised for the first time at the hearing, that caused the Tribunal to form an adverse view, amongst other things, of the applicant’s claim to have had a relationship with Cork in Singapore. In these circumstances, the finding of inconsistency in the applicant’s explanation for the motives of Russell, and the finding that the explanation was raised for the first time at the hearing, was clearly open to the Tribunal to make on the evidence put before it by the applicant himself. As such, this finding does not reveal jurisdictional error on the part of the Tribunal.

Conclusion

1. In all, the applicant with some legal assistance, both by way of the amended application and in subsequent written submissions, has put before the Court four grounds for consideration. For the reasons set out above, none of these grounds reveal jurisdictional error on the part of the Tribunal.  This application is therefore dismissed.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  A Douglas-Baker

Date:  6 December 2007