SZOAY v Minister for Immigration
[2010] FMCA 400
•11 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOAY v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 400 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether apprehension of bias – whether Wednesbury unreasonableness and illogicality – Tribunal’s treatment of psychologist and psychiatrist reports – consideration of “expert opinion” on homosexuality – Fuduche distinguished – Tribunal entitled to place more weight on certain reports than others – Tribunal rejected applicant’s claimed homosexuality on credibility grounds – well informed lay observer would not reasonably apprehend bias – findings reasonably open to Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 65, 476 Statutory Declaration Act 1959 (Cth) Administrative Decisions (Judicial Review) Act 1977 (Cth) |
| Re Refugee Tribunal; Ex parte H [2001] HCA 28 Fuduche v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 503; (1993) 45 FCR 515 Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 179 ALR 296 NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 SZJKU v Minister for Immigration and Citizenship [2008] FCA 308 Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 Bushell v Repatriation Commission (1992) 175 CLR 408 |
| Applicant: | SZOAY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2912 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 29 March 2010 |
| Date of Last Submission: | 29 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 11 June 2010 |
REPRESENTATION
| Appearing for the Applicant: | Mr M Jones |
| Solicitors for the Applicant: | Michael Jones, Solicitor |
| Counsel for the Respondents: | Ms L Clegg |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 27 November 2009 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2912 of 2009
| SZOAY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 27 November 2009 under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 23 October 2009, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
The applicant is a national of Lebanon who arrived in Australia as a visitor on 4 November 2008 (see Court Book – “CB” – CB 14). He applied for a protection visa on 3 February 2009 (CB 1 to CB 47 with annexures). He was assisted by a registered migration agent – Mr Sam Issa of Firmstone & Associates (CB 35).
Claims to Protection
The applicant’s claims to protection were set out in a statutory declaration annexed to his protection visa application (CB 38 to CB 40).
The applicant claimed to have been involved in a number of homosexual relationships in Lebanon which were kept secret. They were all casual and of relatively short duration because of the associated risks.
In 2003, the applicant married an Australian citizen in an attempt to appease his family. They lived together for approximately two months before the applicant’s wife returned to Australia. The marriage broke down after approximately one year, when the applicant discovered that his wife had been involved in a long term relationship with his brother in Australia, and that she was pregnant with his brother’s child.
The applicant claimed that in Lebanon he could not live openly without interference from family and others hostile towards homosexuals. He could not rely on the authorities for protection as they were also hostile towards homosexuals and the law made it impossible for gay couples to maintain relationships.
In support of his initial application the applicant provided two reports from psychologists (D Hamburger, CB 43 to CB 47, and C Proberts, a forensic psychologist, CB 54 to CB 56). His adviser also provided general information, and other Tribunal decisions (CB 66 to CB 114, CB 133 to CB 134, CB 153 to CB 208, CB 251 to CB 252, CB 256 to CB 259, CB 261 to CB 310, CB 321 to CB 322).
The Delegate
The applicant was interviewed by the delegate (CB 125). The delegate accepted the applicant’s claim to be homosexual (CB 125). While the delegate accepted the possibility that the applicant’s family and community may ostracise him, the delegate did not consider that this would constitute Convention based persecution (CB 126).
The delegate noted that the applicant did not claim to have suffered any harm or mistreatment in Lebanon on the basis of his sexual orientation, and that although the applicant stated he did not live an “open” lifestyle he had regularly attended “gay venues” for over 7 years (CB 126). The delegate did not accept that the applicant feared “direct” harm from the authorities (CB 126 and CB 130), and was not satisfied that the applicant faced serious harm at the hands of his family or community such as to amount to persecutory treatment (CB 126 to CB 127).
Further, the delegate considered relocation within Lebanon to be an option reasonably available to the applicant (CB 131).
The Tribunal
The applicant applied for review of the delegate’s decision on 4 May 2009 (CB 136 to CB 139). He continued to be represented by the same migration agent (CB 137).
Before the Tribunal:
1)The applicant’s adviser submitted further general country information and other Tribunal decisions (CB 152 to CB 208).
2)The applicant appeared at a hearing before the Tribunal on 8 July 2009 and gave evidence, as did his sister on his behalf (CB 209). His adviser participated by telephone. The Tribunal’s account of what occurred is set out in its decision record ([37] at CB 333 to [54] at CB 335).
3)By letter dated 28 July 2009 the Tribunal wrote to the applicant, pursuant to s.424A of the Act, inviting his comment on “adverse” information (CB 215 to CB 216). The “information” was said to be inconsistencies in the applicant’s claims which were said to go to his credibility (see also [55] at CB 335).
4)Through his adviser the applicant submitted a third psychologist’s report (Ms C Madigan) (CB 226 to CB 228).
5)Through his adviser the applicant submitted a psychiatric report by Dr M McArdle (CB 233 to CB 235 and [58] at CB 336).
6)The applicant appeared at a second hearing before the Tribunal on 18 September 2009 (CB 253 and [62] at CB 337 to [68] at CB 338).
7)On 18 September 2009 the applicant’s adviser provided further general information (CB 255 to CB 310), and further written submissions on specific matters arising during the course of the review (CB 311 to CB 322).
The Tribunal accepted that, if the applicant were homosexual, he may face a real chance of serious harm if he were to return to Lebanon ([93] at CB 344). However, the Tribunal found the applicant was not a homosexual ([103] at CB 345). The Tribunal reasoned that a person claiming to be a homosexual from Lebanon, with the applicant’s claimed sexual activity profile, would have been able to provide relevant information and some corroborative evidence. The applicant did not do so ([94] at CB 344).
The Tribunal also found that the applicant’s marriage had been contrived for migration purposes, and that the applicant’s continued denial as to this gave “considerable weight against the credibility of his core claims” ([99] at CB 345). The Tribunal gave reasons for this ([97] – [98] at CB 344). The Tribunal did not consider the applicant’s sister to be a credible witness given her involvement in what is described as the contrived marriage ([101] at CB 345).
The Tribunal had regard to reports provided by three psychologists and a psychiatrist. The Tribunal noted that none of these professionals were aware that the applicant knew, prior to his marriage, that his brother was in a relationship with his ex-wife, and regarded this as undermining the weight that could be given to their conclusions ([100] at CB 345).
Further, the Tribunal disregarded conduct undertaken in Australia, namely visiting gay clubs, pursuant to s.91R(3) of the Act.
The Tribunal therefore affirmed the decision under review on the basis that it did not accept the applicant’s core claim to be a homosexual.
Application to the Court
The application to the Court contains the following sole ground:
“1. The Tribunal’s finding that the Applicant is not homosexual was based on assumptions about motivation that reflect apprehended bias on the part of the Tribunal.
Particulars
A reasonable observer could have concluded that the Tribunal’s use of its findings that the Applicant’s marriage was contrived for migration purposes to conclude that he was not a homosexual, while dismissing cogent professional evidence supporting his claims, indicated an unwillingness or inability on the part of the Tribunal to properly assess the evidence before it.”
Before the Court
At the hearing before the Court the applicant was represented by Mr M Jones. Ms L Clegg of counsel appeared for the first respondent.
In addition to the Court Book, the Court had before it the Minister’s Response, and written submissions filed on behalf of the applicant and first respondent.
At the hearing before the Court Mr Jones confirmed that the applicant pressed only the sole ground as pleaded in the application.
Transcripts of the two hearings before the Tribunal were prepared by the applicant, however Mr Jones did not press that they be read into evidence. Ms Clegg, however, sought this on the basis that in matters of an apprehension of bias the transcript of the Tribunal hearing may provide a “fuller picture”. Leave was granted for the transcripts to be read into evidence (“T1” and “T2”).
The Applicant’s Complaint and Submissions
The applicant’s complaint is that in coming to the belief that the applicant was not a homosexual the Tribunal displayed an error of law in that a “reasonable person would apprehend” that the Tribunal did not bring an open mind to the resolution of the question to be decided.
The applicant relied on what was relevantly said by the High Court in Re Refugee Tribunal; Ex parte H [2001] HCA 28 (“Ex parte H”) at [27] – [28]:
“[27] The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of ‘a fair-minded lay observer’ when, as is the case with the Tribunal, proceedings are held in private.
[28] Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.” [Footnotes omitted.]
Mr Jones emphasised that the relevant test is one of possibility rather than probability, and that the hypothetical fair-minded lay person “might” reasonably apprehend that the Tribunal did not bring an open mind to the resolution of the questions as to the applicant’s credibility.
The applicant takes issue with the Tribunal’s treatment of the three psychological and one psychiatric reports before it. Mr Jones submitted that the Hamburger report is of little assistance and that the McArdle report, being prepared by a psychiatrist, was not “on the topic of homosexuality”.
The applicant’s case therefore rests on the Tribunal’s treatment of the remaining two reports. The applicant contends that both the Proberts and Madigan reports were prepared by persons (one a forensic, the other a clinical psychologist) who were within their area of expertise in unequivocally assessing the applicant as being a homosexual.
The submission was that the Tribunal’s failure to take this into account, its rejection of the expert professional opinions, leads to the possibility that the hypothetical lay observer might reasonably apprehend that the Tribunal did not bring an open mind to the question of the applicant’s credibility.
Mr Jones also sought to illustrate the Tribunal’s error by relying on Fuduche v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 503; (1993) 45 FCR 515 (“Fuduche”) per Burchett J, particularly at [34]:
“I should emphasize that none of these matters has anything to do with the exercise of discretion which would follow the establishment of a ground. If a discretion had been exercised, the delegate could not properly have left out of account the indirect effects of his decision upon the husband and three young children of Mrs Longhurst, all of whom must suffer (the children probably very greatly) if her depressive illness is significantly aggravated. I have been concerned with the assessment of the facts (medical and other), upon which the delegate acted. That assessment is so at variance with the material before the delegate as to fall within the rare category of cases to which the principle of Wednesbury unreasonableness applies. It is not a question of mere error in findings of fact, a form of error that would not disclose any legal defect in the decision. Here, no reasonable person could have come to such conclusions. Indeed, counsel for the Minister was constrained to concede in argument that, although the recommendation at one point professes to accept Dr Kaplan's opinion, and nowhere acknowledges that it is really departing from the doctor's views, ‘the decision-maker doesn't accept it (i.e. Dr Kaplan's opinion) to the extent that Dr Kaplan states, because if he had he'd have come to a different opinion (i.e. he would have reached a conclusion in favour of the applicant).’ In other words, the decision was admittedly unreasonable, on the basis of the doctor's report. Yet there was no evidence upon which it was open to the delegate to make medical findings different from those suggested by the report.”
Mr Jones referred the Court in particular to the Tribunal’s analysis at [95] to [100] (at CB 344 – CB 355), in particular [98]:
“Second, the applicant not only persists in claiming that the marriage was genuine but he had factored it in as part of the story of (and therefore as evidence supporting) his homosexuality. He claimed that – against his nature – he was pressured by his family and had internalised social pressures to marry and have a family, but that because of his sexual orientation he could not have a satisfying sexual relationship with her and shortly wanted to return to his old life, and that he was relieved when it turned out he had been ‘deceived’ because it gave him a plausible exit from the marriage and the sympathy of his parents. None of this, except for the pressure to marry, is true. The marriage was not consummated because it was not genuine. The reason the applicant is not the father of his ex-wife’s fourth child is not that he was unable to ejaculate but because he did not have sexual intercourse with his de facto sister-in-law.”
Mr Jones emphasised that the applicant did not seek to challenge the findings of fact in this part of the Tribunal’s analysis. The thrust of the argument, as I understood it, was that the whole of the reasoning in this paragraph was irrelevant to the question as to whether or not the applicant was homosexual. The Tribunal relied on a finding dealing with the applicant’s prior (contrived) marriage, yet this had nothing to do with his claim to be a homosexual.
While I understood the applicant’s case to be argued essentially from a position of unreasonableness, Mr Jones also submitted that one aspect of the Tribunal’s reasoning as set out at [98] and linked to the rejection of the psychologists’ report (at [100]) was illogical or without logical foundation.
The submission was that only two inferences can be drawn from the Tribunal’s findings. First, that the applicant was prepared to enter into a contrived marriage to achieve residence in Australia. Second, that the applicant entered into the marriage at the bidding of his family to deflect the tension from his homosexuality. In this scenario the wife’s prior sexual behaviour is irrelevant because of the applicant’s sexual orientation.
The submission was that the first inference does not say anything about the applicant’s sexual orientation. Therefore the Tribunal’s finding (at [100]) that his failure to tell the psychologists about the marriage “destroys” the value of their assessments is illogical. I understood this illogicality not to be put as a separate ground of complaint, but rather as part of the unreasonable analysis of the Tribunal leading to the apprehension of bias.
Mr Jones’ submission was that the Tribunal found that the applicant had been untruthful in the past (in relation to the “contrived” marriage) and therefore nothing that he subsequently said was to be believed.
The Tribunal’s treatment of the two psychologists’ reports therefore was unreasonable because the psychologists were not assessing the applicant’s truthfulness, but assessing his sexual orientation. These were professional assessments about his psychological state.
The argument was that the Tribunal determined the applicant’s case in a “narrow” way. That is, that at one time he attempted to enter Australia through a contrived marriage, and that this “destroys” his claim to be a homosexual even though two expert opinions specifically say that he was. This was said to be unreasonable in the Wednesbury sense (Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223) and would therefore give rise to the apprehension of bias.
The Response
The Minister also accepted the relevant test as being as set out in Ex parte H.
Ms Clegg, however, while noting the applicant’s submission that focussed on the word “might” (as in might not bring an open mind), submitted that Mr Jones did not also focus on the hypothetical lay observer being a reasonable person. A point supported by other authorities on which the Minister relied (see Ex parte H at 434-5, Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 179 ALR 296 at [15] and per Kirby J at [53] – [65] and [89] – [95], NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 per Allsop J at [21], and SZJKU v Minister for Immigration and Citizenship [2008] FCA 308 per Emmett J at [36]).
The relevance of this, particularly given the attack on the Tribunal’s reasoning, is that a reasonable lay person would not scrutinise the Tribunal’s decision in minute detail, but look at the material as a whole and come to a view as to whether the Tribunal had a closed mind.
Central to the respondent’s argument was that whether or not the opinions provided on behalf of the applicant were expert or otherwise was irrelevant. Whatever the circumstance the Tribunal was required to come to its own view about the applicant’s claim to be a homosexual.
Ms Clegg sought to distinguish Fuduche, the case relied on by the applicant, to make out an apprehension of bias on the basis of unreasonableness, particularly on the basis that in the current case the applicant’s sister’s evidence contained “new” facts not before the opinion givers, that is, the psychologists and psychiatrist.
This was to be distinguished from the situation in Fuduche where the decision maker did not accept the relevant opinion of the psychiatrist in circumstances where nothing “new” had emerged before the decision maker.
Ms Clegg also submitted that the Tribunal’s reliance on what it found to be the applicant’s contrived marriage to his de facto sister-in-law was relevant to the question of the credibility of the applicant’s claim to be a homosexual.
The argument is that the applicant’s factual history was relevant to the assessments by the experts. She referred the Court to the Hamburger (CB 44.2), Proberts (CB 54.6), Madigan (CB 226.4) and McArdle (CB 233.5) reports and submitted that they were all variously prepared for the purpose of supporting the applicant to remain in Australia on the basis of the applicant’s claim to be a homosexual.
In particular she also referred to the McArdle report (CB 234.8), under the heading of “Relevant Personal History”, and to the applicant’s reported statement that his marriage: “… was to please family and that he found the relationship and sex unsatisfying”. The submission was that the marriage relationship and the applicant’s factual history was relevant to the assessment of his sexuality made by the “experts”, contrary to the applicant’s submissions now.
Ms Clegg emphasised that once the Tribunal had before it the sister’s evidence the issue of the contrivance of his marriage became a live, relevant issue. The Tribunal’s subsequent conduct in convening another hearing for the applicant to discuss this issue, and further the opportunity then provided to him to make written submissions, of which he availed himself, would present to the lay observer as the conduct of a Tribunal displaying an open mind.
The submissions also emphasised that an additional reason for the Tribunal finding adversely to the applicant’s credit was his persistence in claiming that the marriage was “genuine” in light of the other evidence before the Tribunal.
Further, that the transcript of the hearing, far from providing any basis to impugn the conduct of the Tribunal, reveals that the Tribunal member’s conduct was “impeccable”.
In all, the Minister’s position is that there is nothing in the conduct or reasoning of the Tribunal to reveal that it did not bring an open mind to the proceedings or that its reasoning was so unreasonable such that no reasonable decision maker could have come to the decision as to the applicant’s core claim. A decision based on findings reasonably open to it.
Consideration
The applicant’s formal pleading to the Court is that the Tribunal’s finding that the applicant was not a homosexual was based on assumptions about the applicant’s motivation in claiming to be homosexual and was made while dismissing expert evidence as to his homosexuality, such as to give rise to an apprehension of bias.
The references to a “reasonable observer” in particulars and the applicant’s written and oral submissions reveal that the applicant relies on the relevant test enunciated by the High Court in Ex parte H (see [24] above). In submissions the applicant asserts that the Tribunal’s conduct was so unreasonable that no reasonable decision maker could have arrived at it, relying on the tests enunciated in Fuduche and Wednesbury.
Dealing first with the applicant’s submissions in relation to the four “expert” reports and the Tribunal’s treatment of them. The applicant submitted that the Hamburger report was of little assistance and that the McArdle report was not on the topic of homosexuality given that it was prepared by a psychiatrist and not a psychologist.
I understood the submission in part to attack the Tribunal’s reference to the reports in its reasoning (at [100]). This was that it noted that Mr Hamburger does not express a conclusion that the applicant is homosexual and that Dr McArdle was “cautious” in the expression of the applicant’s homosexuality. The submission was that the Tribunal should not have done so. Instead the Tribunal should have had regard to the Proberts and Madigan reports which did express an opinion as to his homosexuality. This was said to be part of the “unreasonableness” element important to both tests relied on by the applicant now.
The first response is that this submission ignores the fact that all these reports were submitted to the Tribunal by the applicant himself at the instigation of his adviser, and through his adviser, specifically for the purpose of supporting his application for asylum and to remain in Australia (CB 44.2, CB 54.5, CB 226.3 and CB 233.5).
The question that immediately arises is: if the Hamburger and McArdle reports were of “little” assistance and not relevant on the issue of homosexuality, that is, not relevant to the issue before the Tribunal, why did the applicant, and more pointedly his migration agent and adviser, submit them to the Tribunal?
If there were deficiencies or omissions in any of the reports in relation to the relevant issue or issues then the option was always there not to have submitted the reports, or to have made submissions explaining why they were relevant and, if necessary, those parts on which the applicant sought to rely. After all, this is the very heart of the reason that applicants pay to engage migration agents. That is, to engage their expertise in these matters to assist in the proper submission of their evidence and claims and to advise on the processing of their application.
In relation to the McArdle report this was provided to the Tribunal in September 2009. It was commissioned by the applicant’s agent (who is also a solicitor) some four months after the application for review was made, specifically for the: “… purposes of a Refugee Review Tribunal hearing on 4 September 2009” (CB 233.5). It clearly made reference to the applicant’s claim to be a homosexual.
The Hamburger report appears to have been provided at or about the same time as the application for a protection visa. The report begins (Items 1.1 and 1.2 at CB 44) and ends (Item 11.8 at CB 47) with references to the applicant seeking asylum and to remain in Australia because of his homosexuality.
It is quite clear that the applicant now would have preferred the Tribunal to have given greater weight to what was said by Proberts and Madigan, and not to have also taken into account what was said by Hamburger and McArdle. But in my view the Tribunal was perfectly entitled to note what was said in the other two reports. The applicant’s claim to protection was based squarely on his claim to fear persecutory harm in Lebanon because of his claimed homosexuality. These reports, given by the applicant himself as part of his application, and to the extent that they dealt with his claimed sexuality, were clearly relevant to the live issue before the Tribunal.
The lay observer would not reasonably apprehend bias on the part of the Tribunal for noting these reports. Nor was it so unreasonable of the Tribunal to have done so.
The applicant also complains that the Proberts and Madigan reports were prepared by psychologists who gave an “expert” opinion based on their assessment of the applicant that he was of homosexual orientation. It was unreasonable of the Tribunal not to have preferred these assessments, being expert opinions, over its own assessment.
In relation to the matter of the status of these “opinions” I note that both Mr Proberts and Ms Madigan are psychologists, described as forensic and clinical respectively. The Proberts opinion is encapsulated in the report at CB 56.7. The relevant opinion is that the applicant: “… is homosexual and that his statements and claims are genuine…”
The relevant Madigan opinion is that contained in the concluding “Diagnosis” that the applicant: “… is a single Muslim, Lebanese man who is homosexual” (CB 226.8).
I have some difficulty with that part of the applicant’s submission that asserts that these opinions were expert, and in that sense, given their status, that the Tribunal’s error arises from its failure to take them into account as such. That is, to accept the value of what was opined. Its rejection of them enters into the scope of unreasonableness with reference to both the relevant authorities relied on by the applicant.
In my view, that part of the applicant’s argument which states that it was unreasonable, or so unreasonable of the Tribunal to not consider expert opinions that the applicant was homosexual, is deficient in not providing evidence on which the Court could rely for the proposition implicit in the applicant’s submissions that the psychologists’ opinions in relation to the applicant’s claimed homosexuality were within the relevant area of expertise.
While such matters as, for example, “major depression” as referred to in the Madigan report (CB 227.9) clearly come within what can be understood to be psychological conditions, without relevant evidence, it is not possible to accept that sexual orientation falls within the same category of psychological condition or illness.
But, as Ms Clegg submitted, in the current case even if the opinion as to his homosexuality was accepted as an “expert” opinion it does not assist the applicant in showing an apprehension of bias. As is often the case, the outcome of this application requires a proper understanding of the Tribunal’s reasoning. In my view, for the reasons that follow, it was reasonably open to the Tribunal to conclude that the applicant’s claim to be a homosexual was not credible, even in the face of at least two “expert” opinions that said it was.
The Tribunal acknowledged that if the applicant’s claim to be a homosexual were true in the circumstances presented, he may face a real chance of serious harm if he were to return to Lebanon ([93] at CB 344).
The Tribunal concluded, however, that the applicant’s claim was not credible. While acknowledging the difficulties in providing corroborative evidence, the Tribunal found that if the applicant’s claim was true, particularly in circumstances where he claimed to have been sexually active in Lebanon, he would have been able to name some gay venues in Beirut and to have even submitted some corroborative evidence from “gay associates” ([94] at CB 344).
While the above was influential, the issue on which the Tribunal’s decision turned was a finding that the applicant’s marriage had been contrived so that the applicant could migrate to Australia. The Tribunal did not see this matter as being “peripheral” to the question of the credibility of his claimed homosexuality ([95]-[96] at CB 344).
The Tribunal reasoned that the applicant was, by virtue of going to the lengths of contriving a marriage relationship for migration purposes, strongly motivated to migrate. He had already been found to be willing to give “false information” to achieve this objective ([97] at CB 344).
Added to this was that the applicant persisted before the Tribunal in claiming that the marriage was “genuine” and in fact “factored” it in as part of his “story” supporting his claimed homosexuality. That is, that he was pressured into the marriage by his family and social “pressures”.
The Tribunal rejected critical aspects of the applicant’s factual account as to his claimed sexual relationship with his wife. Ultimately, the Tribunal rejected the applicant’s claim that the marriage ended when he found out that he had been “deceived” in that his wife had had a long term de facto relationship with his brother with whom she had a child. He claimed not to have originally known about this. Given the evidence before it, including the evidence of the applicant’s sister who had been involved in the contrivance of the marriage, the Tribunal did not accept the applicant’s explanation ([98] and [101]).
Critically, the Tribunal saw a link between the fact of the contrived marriage coupled with his continued denial of the contrivance in the face of evidence that the Tribunal found compelling and which led to it giving considerable weight to these factors as evidence against his “core” claim to be a homosexual ([99] at CB 345).
It was in this context that the Tribunal considered each of the “expert” reports. I should note that this is not a case where the Tribunal can be said to have failed to have had regard to any of the reports. It plainly did. Rather, the attack is that it was unreasonable of the Tribunal not to have accepted, or placed weight on, what was opined in two of the reports. That is, that the applicant’s claim to be a homosexual was credible.
Mr Jones submitted that the Tribunal’s reason for rejecting the professional reports put before it (in context I understood this to be a reference to the Proberts and Madigan reports) was based solely on its view of the applicant’s migration history. With reference to [100] (at CB 345) Mr Jones submitted that the only reason given by the Tribunal for rejecting the professional opinions was that they did not know that the applicant knew before he married that his brother was in a relationship, and had had a child with the woman he married.
Given what is set out above this is a simplification of the Tribunal’s reasoning. The Tribunal did not give weight to these reports not only because the authors were unaware of the critical aspects relevant to the applicant’s marital circumstances, but also because of his persistence before the Tribunal that the marriage was not contrived, the lack of corroborative evidence where some could have been expected, and the lack of credibility in his sister’s evidence.
Mr Jones submitted that the fact that the applicant was found to have entered into a contrived marriage to obtain a migration outcome was not relevant to the question of his sexual orientation.
I do not agree.
First, the fact of his marriage was an integral part of the applicant’s account of past events in Lebanon. In his statutory declaration said to have been made under the Statutory Declaration Act 1959 (Cth) the applicant declared that the information he provided in the declaration was true (CB 38 to CB 40). This included an assertion of the truth of his statement that he had married in 2003 under pressure to appease his family even though he was of homosexual orientation and had been involved in a number of homosexual relationships. While his spouse had returned to Australia he applied for migration “on spouse grounds”. He declared that the relationship broke down a year later when he discovered at that time that she had been involved in a long-term relationship with his brother and was pregnant with his brother’s child.
In my view this alone justifies the Tribunal then seeking to verify the truth of the applicant’s claim to have entered into a “genuine” heterosexual marriage in circumstances where he claimed to be homosexual. While plainly it is quite conceivable that men of homosexual orientation enter into heterosexual marriages and relationships, and would do so for all sorts of reasons, this alone would not disentitle the Tribunal from exploring and satisfying itself as to the circumstances of this applicant’s specific circumstances.
The applicant himself raised the issue of his marriage squarely in the context of his application for a protection visa (see Item 1 of his statutory declaration at CB 38) on the Convention ground of his belonging” “… to a particular social group, as I am a homosexual” (see Item 2 at CB 38).
In light of the way that the applicant’s case has been pleaded, the Tribunal’s subsequent approach and analysis must be assessed in terms of reasonableness. In my view the applicant’s declaration, submitted with his protection visa application which was lodged with the assistance of a registered migration agent, itself made the factor of his marriage relevant to his application. It was not unreasonable, or even so unreasonable, of the Tribunal to explore the credibility of the applicant’s own voluntarily provided factual account of past events.
If his marriage was not a relevant part of his factual account given in support of his application then the question remains why it was included in his statutory declaration. One obvious answer may be to pre-empt the very outcome that then ensued before the Tribunal. That is, the hope that disclosure and explanation of the circumstances of this marriage and his previous application to migrate to Australia, from the outset, would not lead to a questioning of his credibility on the basis of his protection visa application. That is, the credibility of his claim to be a homosexual. On this basis also, therefore, it was not unreasonable or so unreasonable of the Tribunal to explore this aspect of the applicant’s factual account.
That it was not unreasonable, or so unreasonable, of the Tribunal to link his previous migration attempt arising from his marriage to his later attempt can also be seen when regard is had to what the applicant told each of the authors of the reports that he submitted in support of his application and his claim to be homosexual.
Before the Court the applicant relied on two of the reports, Proberts and Madigan, to argue that they gave an expert opinion that he was homosexual, and that it was unreasonable of the Tribunal not to rely on the expert opinions as to the applicant’s claim. Further, it was unreasonable to find against the applicant because of the irrelevant finding that his marriage was contrived for migration purposes.
In my view the relevance of the issue of the marriage to his claim to be homosexual can also be seen from what the applicant is reported to have told both these psychologists.
Amongst other matters the applicant gave Mr Proberts an account of the circumstances of his marriage (see CB 55.4). This account explained that he lived with a woman, but there had been no wedding. Implicit in this was that he did this to appease his parents who were “pushing for them to marry”, and then the woman “married his brother”.
In coming to the opinion that the applicant’s “claims are genuine and reasonable” Mr Proberts took into account, as well as his assessment of the applicant’s “body language and meta-language” that the applicant could not tell “his ex-wife and his family of his situation”. That is, that he was a homosexual.
What relevantly arises is that, contrary to the applicant’s submissions now, “his situation” involved, amongst other things, his relationship with his ex-wife, his family reasons for taking up with her and the impact on his situation of being a homosexual. Again the link and relevance was created by what the applicant himself told Mr Proberts and what Mr Proberts made of it in reaching his conclusion that the applicant was genuine in his claims to be a homosexual.
The applicant told Ms Madigan, in part in contrast to what he told Mr Proberts, that he had married an Australian divorcee in 2003. He met this woman through his sister and married her because of pressure from his parents. She left him after one month. They had sex three or four times. He could not ejaculate. He then is reported as saying: “… she later became romantically involved with one of his brothers. He told his sister he was homosexual after the marriage had broken down” (CB 226.6).
Again, when the Madigan report is read as a whole the conclusion that the applicant “is homosexual” and appeared to be experiencing some “psychotic symptoms” was based on the background, family, and relationship history presented by the applicant. A history that included a reference to his marriage in 2003 and the nature of that relationship.
I should note for the sake of completeness that even in the Hamburger report the applicant is reported as saying that he married his ex-spouse but that he did not engage in intercourse with her (another inconsistency). That he married her because he felt pressure from his parents. Importantly, and relevantly, he is reported as saying that: “… he decided to marry even though he did not love the female. Marrying her would remove any possibility of his family suspecting that he was gay” (CB 44 – Item 1.7).
Mr Hamburger did not present any conclusion as to the applicant’s sexuality. But the matter to note is that on the applicant’s report of relevant events as to why he feared harm in Lebanon based on his homosexuality (the report was commissioned for this purpose) he gave an account of his marriage and the link to his circumstances in the past in Lebanon. That is his account of his marriage was squarely linked to his account of his life in Lebanon as a homosexual who felt pressure from his traditional Muslim family.
In the Madigan report the applicant is reported as saying that he (at CB 226.7):
“… married an Australian, Muslim, 28 year old divorcee who had four children in 2003. He met this woman through his sister who lives in Australia and stated that he married her because of pressure from his parents to marry. [The applicant] said that they were together for one month before she left him. During this time they had sex only three or four times and he reported that he could not ejaculate, [the applicant] said that she later became romantically involved with one of his brothers. He told his Australian sister he was homosexual after the marriage broke down.”
Any plain reading of this report reveals that what was set out in the “Diagnosis & Recommendations” (CB 227.9), that part of the report containing the psychologist’s apparent acceptance that the applicant is homosexual, reveals that what the applicant said about his family and his marriage was inextricably linked to the issue of his homosexuality and, importantly, was an integral part of the situation in Lebanon giving rise to his fear of persecutory harm.
The “diagnosis”, in part, is that:
“[The applicant] is a twenty seven year old, single Muslim, Lebanese man who is homosexual. He is under pressure from his family to marry and believes that his life will be in danger in Lebanon if he is discovered to be homosexual.”
I note also that there is an illustration of the difficulty with the applicant’s reliance on the psychologists’ reports as being “expert opinions”. The statement that the applicant “is homosexual” appearing under the heading “Diagnosis & Recommendations” raises the interesting question of whether this statement was meant to be a “diagnosis” of some psychological illness or condition meriting a “recommendation” as to treatment.
In my view, however, what was meant was that based on the acceptance of the applicant’s perception of himself as a homosexual who was under pressure from his family, Ms Madigan diagnosed certain resultant possible psychological conditions (“may have Major Depression…”, “… appears to be experiencing some psychotic symptoms…”) and recommended therefore that he consult a doctor and psychologist for a “thorough assessment”.
In my view what Ms Madigan was saying was not, as the applicant now submits, some expert opinion that he was telling the truth that he was homosexual. Rather, it was that based on his claim, and what he also “reported” to her, he may have some psychological or psychiatric conditions that may require treatment, but that this should be further investigated.
The Tribunal was therefore accurate in my view, and it was certainly open to the Tribunal to see that, at its highest, all that could relevantly be taken from the Madigan report was that: “… Ms Madigan… believed the applicant to be homosexual” ([100] at CB 345).
The applicant also told Dr McArdle (CB 234.9):
“He was, also, married for a brief time. He says this marriage was to please family and that he found the relationship and the sex unsatisfying”.
Again, in the “Summary and Closing Comments” Dr McArdle specifically stated (CB 235.7):
“His expressions of fear regarding harm from others appeared real and believable. His brief marriage did not seem inconsistent with a man coming to terms with his sexual identity, particularly in a culture that represses homosexuality and a religion that condemns it. Therefore, whilst I cannot attest to the validity of [the applicant’s] claims, there is nothing from my assessment that would contradict his story or give me cause to doubt him. On the contrary, his statements and behaviour seemed consistent with such an account.”
That is, that relevantly to the extent that Dr McArdle made a positive assessment about the applicant’s credibility, and while he could not definitively state that the applicant’s claims to be homosexual were true, there was clearly a link between his assessment, the seeming consistency of his statements and behaviour with his account which plainly included a link, made by Dr McArdle on what was put to him, between the applicant’s “brief marriage” and his “sexual identity”.
The simple, but critical, point made by the Tribunal in relation to all of the psychologists’ and psychiatrist’s reports submitted by the applicant were that they were all based on what the applicant told them about his relevant history and observations and assessments of him during the respective sessions with the psychologists and psychiatrist. Their conclusions and opinions were therefore based, in part, on what he said about his marriage. It was, as the Tribunal correctly noted in my view, “factored in as part of his story of (and therefore as evidence supporting) his homosexuality” ([98] at CB 344).
The applicant complains now about the Tribunal’s conclusion in relation to the reports ([100] at CB 345):
“… None of these professionals were aware that the applicant knew – well before he married – that his brother was in a relationship with and already had a child with the woman the applicant married…”
This submission is that the Tribunal’s finding was without logical foundation and therefore can be seen to be part of the unreasonableness of its analysis and conduct. The applicant’s position appears to accept that, when the applicant was said to have known about his brother’s relationship with the woman whom he married, that this was a finding open to the Tribunal on what was before it, but concentrates the attack on the reasonableness of what the Tribunal then did with this finding.
The first element of the attack on the “logic” employed by the Tribunal is to argue that, even if it was open to the Tribunal to find that the applicant entered into a contrived marriage to obtain residence in Australia, this says nothing about the applicant’s sexual orientation and therefore could not have affected the experts’ opinions as to his homosexuality.
For the reasons set out above I do not agree with this submission. The applicant’s account of his life as a homosexual in Lebanon included an explanation for his failed relationship with a woman that was ultimately presented as evidence in support of his claim to be homosexual. The applicant himself by the way he presented his claims made his marriage and the state of his marriage say much about his sexual orientation. That is, the marriage was a relevant factor in his claim to be a homosexual.
The second attack is that another inference from the Tribunal’s finding about the reports is that the applicant entered into the marriage at the bidding of his family to deflect attention from his homosexuality, but was not concerned with matters that a heterosexual man from his community might have considered important. The attack is that such an inference provides support to the applicant’s case.
The Tribunal accepted that the applicant had felt pressure to marry and that this pressure came from his family ([98] at CB 344.9). But the Tribunal distinguished this pressure to marry from the other claims made by the applicant concerning the actual marriage with his brother’s de facto wife.
On one reading, the Tribunal’s findings as set out at [98] of its decision record may be seen as containing some inconsistency. The family’s pressure to marry was presented as an integral part of the applicant’s explanation as to why, as a homosexual, he entered into a heterosexual marriage. The Tribunal does not explain why it accepted that he was pressured to marry, but rejected the credibility of the rest of the applicant’s evidence surrounding the marriage.
However, on a fair reading of the whole of the Tribunal’s analysis, the preferred view of the Tribunal’s reasoning begins with its finding that the marriage was contrived for the purposes of migrating to Australia. The Tribunal gives reasons for this ([95] at CB 344).
What follows is the Tribunal’s dealing with relevant aspects of the applicant’s evidence and explanations as to why the marriage was not contrived for migration purposes.
The Tribunal noted the issue of the marriage was not peripheral to the applicant’s claims to be homosexual ([96] at CB 344).
One reason for this, in its analysis, was that his propensity to take part in a contrivance and to provide false information reveals a strong motivation to migrate, and that the applicant had been prepared to lie in the past to achieve this. The Tribunal rejected the applicant’s explanation that if that were the case he would have persisted with the spouse migration visa application on the basis of the substantial obstacles that this would have entailed, particularly as it would ultimately have been difficult to hide the fact that his wife was also his “de facto sister-in-law”.
The finding that the applicant had been prepared to lie on one occasion to achieve a migration outcome was relevant to, and not just peripheral to the question of whether he was again lying on this subsequent occasion to achieve the same outcome.
The second reason given by the Tribunal for finding that the contrived marriage was not peripheral, but relevant to the applicant’s current claim (based on his claimed homosexuality) was that the applicant persisted in light of the strong evidence to the contrary that the marriage was genuine. The fact that the applicant also “factored” in this claimed genuine marriage as part of his account and evidence supporting his claim to be a homosexual supported the view that the contrived marriage was not peripheral to the central question before the Tribunal.
In this context the Tribunal rejected the applicant’s explanations as to why, for example, he did not have sex with his wife, and his relief at having been “deceived” by her.
When read in this, at least, fair way the Tribunal’s reasoning was logical and the findings were reasonably open to it to make on what was before it. Importantly, it answers the applicant’s complaint that the finding subsequently made at [100] of its decision record (relating to the expert reports) had no logical foundation.
The Tribunal found that the applicant’s marriage was contrived, that the credibility of his persistence that it was not contrived was at issue, and that the matter of the marriage being contrived for a migration purpose was relevant and not peripheral to his current claim (all findings reasonably open to it on what was before it). Contrary to the applicant’s submissions now this provided the logical foundation for the Tribunal to find that none of the professionals in formulating their opinions, opinions based in part on the applicant’s account to them of his marriage, were aware at the relevant times that the applicant knew before he married that his brother was in a relationship with the woman he married and had had a child with her. This latter, in part, was derived from the evidence of the applicant’s sister and the Tribunal’s subsequent finding that, in light of her evidence, it was simply not believable for the applicant not to have known of this.
In all these circumstances it was therefore reasonably open to the Tribunal to find that the applicant’s suppression of relevant information undermined the weight that could be accorded to the expert opinions.
The applicant’s submission now that an inference to be drawn from the Tribunal’s central finding about the expert opinions, was that the applicant entered into the marriage at the bidding of his family to deflect attention from his homosexuality ignores, or misrepresents, the Tribunal’s actual finding and the context within which it was made.
The Tribunal found that the applicant had not entered into the marriage to deflect attention from his homosexuality. This finding, as set out above, was reasonably open to it. He had entered into it in an attempt to secure a migration outcome. Given the Tribunal’s clear finding, the applicant’s submission that an inference can be drawn from the Tribunal’s finding that supports the applicant’s claim to be homosexual can itself be described as a contortion of logic. It is at least a misrepresentation of the Tribunal’s actual reasoning as a whole and the constituent findings in this reasoning. It does not provide support, collateral or otherwise, to the applicant’s claim to be homosexual.
While the Tribunal accepted that the applicant had been subject to pressure by his family to marry, when read in context of the material before the Tribunal, it does not necessarily follow that his entering into this marriage was to deflect attention from his homosexuality.
The applicant’s own statutory declaration, submitted with his protection visa application, states (CB 38.9):
“8. Since the age of 18 my parents have been placing alot of pressure on me to become married in accordance with our Islamic traditions. My parents or relatives in Lebanon are not aware of the fact that I am a homosexual.
9. In 2003, I met my ex spouse [the name of the ex spouse] who is an Australian citizen. in an effort to appease my family I agreed to marry her.”
The applicant relevantly told Mr Proberts (on whose opinion he now relies) (CB 55.4):
“… He stated that he met a woman named [the woman’s name] in 2003 in Lebanon. He stated he did not marry her even though his parents were pushing for them to marry as in the Muslim community people are expected to get married at an early age. He stated that there was not a wedding but they lived together…”
[Incidentally I note that this was in contrast to what he told other psychologists and contrary to his evidence before the Tribunal that they had married.]
He relevantly told Ms Madigan (on whose opinion he also now relies) (CB 226.6):
“… that he married an Australian, Muslim, 26 year old divorcee who had four children in 2003. He met this woman through his sister who lives in Australia and stated that he married her because of pressure from his parents to marry…”
The applicant’s evidence before the Tribunal was (T1 3, line 36 to line 40):
“… I got married because the pressure my parents put on me, like I got to the age they like me to get married earlier, so I got to that age when they said you should get married now and have a family and this girl went to Touranon for a visit and I met her and I was under that pressure, like looking for someone to get married…”
What is clear from the applicant’s evidence and what he reportedly told the experts is that his parents and relatives in Lebanon did not know he was homosexual. Nor is there anything in the material before the Tribunal to suggest that they may have suspected him to be a homosexual.
Quite clearly the evidence was that he was under pressure to marry and had been under such pressure since he was 18 (in 2000) because that was what was expected of him as a person who was part of a traditional Islamic family and Lebanese culture. In context, therefore, this would have been expected of any heterosexual male in the same tradition and culture. The Tribunal’s finding that he had been under pressure to marry must be seen in light of the evidence before it. He was under pressure to marry because of his family’s traditional Islamic and cultural outlook. There was nothing to suggest that the pressure exerted by his family was to cover up his homosexuality or that they even suspected he was homosexual.
There is no inconsistency therefore in the Tribunal finding that he was under pressure to marry, but that this did not necessarily support his claim to be homosexual. The applicant’s submission now, that the Tribunal’s finding as to the expert opinions leads to the only inference that he entered into the marriage at the bidding of his family to deflect attention from his homosexuality, is not supported by the evidence. Quite clearly, there is at least another inference to be drawn.
The Tribunal’s finding that he was subject to family pressure to marry at least can also lead to the inference that he did so as a heterosexual male also subject to pressure from traditional parents. This was clearly the finding, in context, made by the Tribunal when it said it was true that he was under pressure to marry. A finding that was reasonably open to it on what was before it, and that was not inconsistent with its finding that he was not homosexual. The applicant may indeed have told the Tribunal that he entered into this marriage to deflect from his homosexuality, but the evidence before the Tribunal, given his parents’ ignorance of his homosexuality, was not to appease them to deflect from his homosexuality, but to appease them because getting married was what was required of him by his traditional Islamic family.
The Tribunal’s finding that the experts did not know that the applicant knew before he married that the woman he married had been in a relationship with his brother and had had a child with him does not in the circumstances before the Tribunal, lead to any inference supporting his claim to be a homosexual.
In fact, given the findings made by the Tribunal as to the timing of his knowledge, which Mr Jones accepts were open to the Tribunal to make, the inference to be drawn, and at least an inference logically and reasonably open to the Tribunal to draw, was that while he was subject to pressure to marry for Islamic and cultural traditional reasons, he in fact married for the purposes of attempting to achieve a migration outcome.
That the applicant was not concerned with matters that a heterosexual male from his community might have considered important, for example, that his wife had been in a relationship with his brother and had had a child with him, still does not make the Tribunal’s view of the opinions illogical or without foundation or involving unreasonableness.
It was still perfectly open, given all the evidence before it, for the Tribunal to find that the applicant entered into the marriage for a migration purpose. The fact that the experts did not know that the applicant knew of his wife’s relationship with his brother before he married her, a finding which Mr Jones agrees was open to the Tribunal, only serves to underscore the Tribunal’s concerns about the applicant’s credibility.
On what was before it, the Tribunal’s finding that this lack of knowledge about such a critical matter undermines the weight that can be given to the expert opinions is a finding open to the Tribunal which, after all, is the arbiter of weight to be given to evidence before it.
The Tribunal’s assessment was not without logical foundation. Nor was it unreasonable or so unreasonable. Ultimately the applicant’s attack now can only be seen as a challenge to findings of fact made by the Tribunal which were reasonably open to it to make. Such an attack cannot succeed.
As Ms Clegg submitted, the jurisdictional fact about which the Tribunal needed to be satisfied was whether the applicant had a well founded fear of persecution in Lebanon for a Convention reason. That involved whether the applicant was telling the truth about the basis of his claim to fear persecutory harm, that is, his claimed homosexuality.
In this context the Tribunal considered the applicant’s own evidence, that of his sister, who after all gave evidence on the applicant’s behalf and at his request, his claims as set out in his statutory declaration and submissions, and importantly the reports submitted by the applicant through his adviser and commissioned for the purpose of supporting his application for a protection visa and his application for review.
The relevant test set for the Tribunal in this task is that to be found in s.65 and with reference to s.36(2) of the Act. That is, it is required on balance to reach a requisite level of satisfaction that the applicant does, on an objective basis, have a well founded fear of Convention related persecution. That is, that he meets the Convention definition of “refugee”.
The Tribunal looked at all the relevant material and formed the view that, having lied once in seeking to achieve a migration outcome, the applicant lied again on the occasion before it. It found the connecting factor to be his strong motivation to migrate. Further, the Tribunal took an adverse view of the applicant’s persistence that his marriage was genuine in circumstances where there was ample evidence to show that it was not, including the evidence given by his sister.
It reasoned that, given the interweaving of his marriage and his claim to be a homosexual (“… it was factored in as part of the story…” – [98] at CB 344), a factoring that the applicant himself presented not only to the Tribunal but to the experts who provided the opinions, the failure to tell these experts a critical fact in his “story”, namely that he knew before he married his wife (noting that he told Mr Proberts that they had not married, just lived together) that she was in a relationship with his brother and had had a child with him, seriously undermined the basis on which the experts formulated and presented their opinions. Noting of course that Mr Hamburger expressed no opinion that the applicant was homosexual and Dr McArdle was “cautious” in expressing such a view.
Mr Jones submits the Tribunal’s reasoning was so unreasonable in the Wednesbury sense as explained in Fuduche, that jurisdictional error is revealed on the basis that an apprehension of bias is revealed.
There are obvious differences between Fuduche and the current circumstances. That that was a case involving a Ministerial delegate’s decision and an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the AD(JR) Act”) can be put to one side.
The principal ground argued before the Court was that the decision was unreasonable in the Wednesbury sense, because the decision maker failed to take relevant matters into account.
Mr Fuduche had applied for permission to remain in Australia permanently under relevant migration provisions that enabled those who satisfied the requirements of a “special need relative” of an Australian citizen to do so. In that case the Australian citizen was his sister who, amongst other things, suffered from severe depression.
I note the following relevant circumstances:
1)A consultant psychiatrist, Dr Kaplan, provided a medical report on the sister’s medical condition. In it he expressed an “opinion” about the cause of her medical condition and the importance to her mental and emotional health of her brother, Mr Fuduche.
2)This was seen to be: “… expert evidence from a highly qualified specialist that the relationship (with her brother) has been of ‘significant’ benefit to her medically, and that its disruption would be likely to affect her depression adversely…” (at 522).
3)The information for this report was obtained to a large extent before the migration issue arose (at 518).
4)The decision record (in the circumstances, a document setting out, with reasons, recommendations to the decision maker) contained no indication that any doubt was cast on the sister’s account of events leading to her depressive state. An account accepted by professional psychiatrists, including Dr Kaplan (at 520).
5)No mention was made in the decision record of relevant material provided by the sister’s husband (at 521).
6)In the circumstances there was no basis on which the medical evidence would be rejected (at 522).
7)“Where, upon a medical issue, medical science is unable to offer a conclusion on the probabilities, it may sometimes be open to a lay decision-maker to rely on ordinary human experience in order to bridge the scientific gap to a practical decision. But where medical science offers an answer, it is simply not rational for a lay person to brush that answer aside in favour of some theory of his own: see Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 at 564, 569-570; and cf Bushell v Repatriation Commission (1992) 175 CLR 408 at 414-415, 430. In the latter case, Brennan J said (at 430):
“‘Although s.120(3) entrusts the determination… to the decision-maker, the decision-maker is bound to have regard to its own want of scientific expertise in comparison with the expertise of a responsible medical practitioner…’”
8)The decision record (decision maker) accepted Dr Kaplan’s opinion that the relationship between the two siblings played an integral part in her emotional stability and that the disruption of the relationship “will” have an adverse affect on the sister (at 523).
9)Notwithstanding this, the decision maker preferred his own speculation over the clearly articulated “professional opinion” (at 523).
10)The reasoning employed in the decision was internally inconsistent (at 525).
11)The rejection of the expert medical opinion was not based on any contrary expert opinion (at 525). It was based on (in context) the decision makers own medical analysis as to the patient’s condition (at 526 to 527).
12)At 528 the Court said:
“… I have been concerned with the assessment of the facts (medical and other), upon which the delegate acted. That assessment is so at variance with the material before the delegate as to fall within the rare category of cases to which the principle of Wednesbury unreasonableness applies. It is not a question of mere error in findings of fact, a form of error that would not disclose any legal defect in the decision. Here, no reasonable person could have come to such conclusions. Indeed, counsel for the Minister was constrained to concede in argument that, although the recommendation at one point professes to accept Dr Kaplan’s opinion, and nowhere acknowledges that it is really departing from the doctor’s views, ‘the decision-maker doesn’t accept it (i.e. Dr Kaplan’s opinion) to the extent that Dr Kaplan states, because if he had he’d have come to a different opinion (i.e. he would have reached a conclusion in favour of the applicant).’ In other words, the decision was admittedly unreasonable, on the basis of the doctor’s report. Yet there was no evidence upon which it was open to the delegate to make medical findings different from those suggested by the report.”
What relevantly remains is that in Fuduche the medical opinion by Dr Kaplan was based on observation prior to Mr Fuduche’s migration matter arising. In the current case all of the reports, including the two reports specifically relied on by the applicant now, were created for the purpose of supporting the application for a protection visa.
This is an important distinction. As the reports were all created for a migration purpose, the failure by the applicant to at least honestly or perhaps more to the point appropriately explain his migration application history has a significant impact on the basis relied on by the applicant for obtaining a visa on this second occasion, namely, that he was a homosexual. The applicant’s account of his marriage included his motivation for it, his conduct during the marriage, and his claimed relief at its dissolution. These latter points were all said to support his claim to be homosexual. It was not so unreasonable for the Tribunal to find that, given this important omission in what he told these experts, their “expert” opinion that he was homosexual (at least in the case of Proberts and Madigan) was affected or qualified by this important omission.
In Fuduche the relevant decision maker accepted the medical opinion relating to Mr Fuduche’s sister and the importance and impact on her relationship with him. Having done that, the decision maker, inexplicably, then proceeded to conduct his own medical assessment and come to the opposite view of her mental condition, the importance of the sibling relationship, and the impact on her if Mr Fuduche were required to leave Australia. This was done where other relevant and critical evidence was acknowledged but ignored.
This initial acceptance, and the ignoring of critical contrary evidence material to the question at issue, was a critical part of the Court’s view that the delegate’s subsequent conduct or reasoning fell into the rare category of cases where the Wednesbury principle of unreasonableness applied. That is, that it was so unreasonable that it went beyond just an error in fact finding.
The circumstances of the current case go nowhere near this situation. The Tribunal did not accept then reject the expert opinions that the applicant was homosexual based on its own whim without probative evidence and in the face of other relevant contrary evidence.
In the current case the Tribunal reasoned a not so subtle point, denied by implication in the applicant’s submissions, that the value of the experts’ opinions was greatly diminished in circumstances where the applicant had omitted to tell them that the marriage in which he had entered, variously failed to consummate, did not enjoy the sex, or even could not ejaculate, and subsequently left with relief because he was a homosexual, and to which he had referred as support for his claimed homosexuality, was in fact a contrivance for migration purposes in circumstances where he knew that the woman was in a relationship and had had a child with his brother.
It was not so unreasonable of the Tribunal to find that the applicant had lied and that this lie affected the information on which the experts based their opinion and, ultimately, the value of the opinions themselves.
The applicant also relied on Ex parte H. Here, the test is clearly not the Wednesbury test, but as set out in particular at [27]-[30], and as further illuminated by the other authorities as set out in the Minister’s written submissions (see Ex parte H at 434-4; Epeabaka at [15] and per Kirby at [53]-[65], [89]-[95]; NADH per Allsop J at [21]; SZJKU per Emmett J at [36]).
I note particularly what was said per Kirby J in Epeabaka at [90]:
“First, it must be remembered that the test for disqualification in a case such as the present is not merely a sense of unease or a feeling that conventions of discretion and prudence have been breached. Something more is required. Although the law interposes the imputed consideration of a fair minded observer and speculates on whether that person ‘might’ (rather than ‘would’) entertain a reasonable apprehension of bias in the particular case, the serious consequences that necessarily attend the affirmative conclusion oblige that it should be ‘firmly established’. This reflects a recognition that decision-makers (whether in the judiciary, in adjudicative tribunals or elsewhere vested with public power) are human beings. They have foibles and personal characteristics that vary substantially, reflecting differences of view that also exist in the community at large. Being independent, such decision-makers, in their professional conduct and utterances, will often exhibit robust individuality that is characteristic of people who are obliged to make important and difficult decisions without fear or favour” [footnotes omitted].
[See also further at [37] – [65] and [89] – [94] of Epeabaka.]
The question then is: would the hypothetical fair minded well informed lay observer reasonably apprehend, on an objective test of possibility, not probability, that the Tribunal did not bring an open mind to the issue of the applicant’s claimed homosexual orientation? That is, that the inference could be made that the Tribunal was predisposed to a particular view and that there was nothing the applicant, or even the experts, could do to change the Tribunal’s mind?
As set out in Ex parte H, the test as formulated requires the fair minded lay observer to be properly informed, amongst other things, of the matters in issue and the conduct which is said to give rise to an apprehension of bias.
In the current case the matter in issue was whether the applicant was truthful in his claim to be a homosexual. More particularly, whether the hypothetical lay observer could reasonably apprehend bias because the Tribunal did not uncritically accept the conclusions of some of the experts as to his homosexuality.
What must be understood is, as set out above, the two experts’ opinions were not the only expert opinions, but more importantly were not the only evidence before the Tribunal on which it relied.
The Tribunal did not unreasonably reject the opinions or even reject them out of hand. It considered these opinions in light of what they reported as the basis of their opinions. That is, what the applicant himself told them, and in light of the applicant’s own evidence to the Tribunal, and in light of his sister’s evidence.
On the material before the Court, and as set out above, I do not comprehend that the fair minded observer, knowledgeable as to the facts, could reasonably apprehend that the Tribunal did not bring an open mind to the proceedings.
The test here is not whether the Tribunal was “correct” in its analysis and conclusions, but whether it would be seen to have acted reasonably such that there was no possibility of a predetermined outcome.
Each step of the Tribunal’s reasoning as set out above does not reveal any such possibility. Nor does its reasoning and conduct when looked at as a whole.
Ultimately questions as to the credibility of an applicant’s claims are ones for the Tribunal. The Tribunal had regard to the applicant’s relevant evidence, his sister’s evidence and the experts’ reports. It assessed the level of weight that could be given to the latter in light of what the applicant told them and in comparison to what ultimately came out before the Tribunal. None of this could be said to be unreasonable.
Conclusion
With the benefit of legal representation the applicant has put one ground before the Court to challenge the Tribunal’s decision. That ground does not reveal jurisdictional error on the part of the Tribunal. The application is therefore dismissed.
I certify that the preceding one hundred and sixty-nine (169) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 11 June 2010
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