SZODE v Minister for Immigration
[2010] FMCA 743
•30 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZODE v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 743 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal reasoning so unreasonable as to give rise to a jurisdictional error – whether apprehended bias. |
| Migration Act 1958 (Cth), ss.65, 91R, 424A, 425, 427 |
| Associated Provincial Picture Houses Ltd v WednesburyCorporation (1948) 1 KB 223 Minister for Immigration and Citizenship v MZXPA and Another (2008) 100 ALD 312; [2008] FCA 185 Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 and Another (2006) 231 CLR 1; [2006] HCA 53 WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597; [2003] FCAFC 188 |
| Applicant: | SZODE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 199 of 2010 |
| Judgment of: | Barnes FM |
| Hearing date: | 15 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 30 September 2010 |
REPRESENTATION
| Solicitor for the Applicant: | Michael Jones |
| Counsel for the Respondents: | Ms A Mitchelmore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 199 of 2010
| SZODE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal dated 30 December 2009 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of Lebanon, visited Australia from December 2006 to March 2007 as the holder of a visitor visa. On 14 March 2009 he again entered Australia on a visitor visa. On 14 April 2009 he lodged an application for a protection visa. The application was refused and he sought review by the Tribunal.
The Tribunal affirmed the delegate’s decision. The applicant then sought review by application filed in this court on 3 February 2010. He relies on an amended application filed on 2 June 2010. There were three grounds in the amended application. The solicitor for the applicant advised that ground three was not pressed.
The applicant claimed to fear persecution in Lebanon on the basis of his claimed homosexuality. His application for a protection visa was refused by a delegate of the first respondent who was not satisfied that he would face persecutory treatment in Lebanon because of his sexual orientation.
The applicant provided the Tribunal with supporting statements attesting to the fact that he was homosexual and with various items of country information in relation to the situation in Lebanon. The applicant’s solicitor/migration agent made a written submission dated 20 August 2009 addressing, in particular, the situation in Lebanon and the treatment of homosexuals in that country.
The applicant attended a Tribunal hearing on 24 August 2009. That hearing is discussed further below in relation to the grounds relied on in these proceedings.
After the hearing the applicant’s solicitor/migration agent provided the Tribunal with a copy of a psychologist’s report dated 28 August 2009. The report set out the applicant’s claims in relation to homosexuality, but concluded that he “appeared well, and was not reporting depressed affect”, found that he did not “appear to currently meet the criteria for Post traumatic Stress Disorder” and stated that he reported “no legal issues in Australia or Lebanon”. The psychologist observed that the applicant sought permanent residence on the basis of “sexuality discrimination”.
On 6 October 2009 the Tribunal wrote to the applicant inviting him to comment on apparent inconsistencies between his written statement provided in connection with his protection visa application and his oral evidence at the hearing about his experience of persecution at school and the period he was in the army in Lebanon.
On 12 October 2009 the applicant’s migration agent responded to the Tribunal’s letter. On 25 November 2009 the Tribunal invited the applicant to attend a further Tribunal hearing scheduled for 15 December 2009. The applicant attended together with his migration agent, brother-in-law and another person referred to hereafter as Mr W. The second hearing is also discussed further below.
Copies of the transcripts of the Tribunal hearings are in evidence before the court.
Tribunal decision
In its reasons for decision the Tribunal set out the applicant’s claims that he was homosexual and that he had a well-founded fear of persecution in Lebanon because of his membership “of a particular social group namely homosexual men in Lebanon” and also his claim that as a male hairdresser he was an “imputed member of a particular social group namely homosexual men in Lebanon”. It detailed his claims about past mistreatment, particularly at school and in the army.
The Tribunal considered as a “threshold fact” whether it was satisfied that the applicant was a homosexual. The Tribunal acknowledged that it was “particularly difficult to assess whether the applicant’s claim to be homosexual is genuine or merely contrived for migration purposes. It would be wrong to asses the applicant against a benchmark of stereotypical attributes and, as with aspects of other refugee claims that involve acts conducted in private, unreasonable to expect an applicant to produce witnesses to their homosexuality”.
However, the Tribunal found that “several aspects of the applicant’s evidence cast doubt on his claim to be homosexual”. It concluded that while none of these matters were determinative of themselves, considered in combination, the inconsistencies between the applicant’s evidence at the hearing and what he said in his protection visa application as to the extent of his mistreatment at school, his ignorance of the fact of the legal prohibition on homosexuality in Lebanon and his failure to apply for a protection visa during his first visit to Australia led it to conclude that the applicant had “contrived his homosexual orientation for migration purposes.”
The Tribunal had regard to the fact that in the statement attached to his protection visa application the applicant had claimed that he was “often the target of schoolyard gang bashing” which required medical attention, but that he had told the Tribunal that his fear only started when he was subjected to violence in the army and that he had been subjected to mostly “little things” at school and had required treatment on one occasion. The Tribunal found that the explanations proffered by the applicant in an attempt to resolve such inconsistencies (such as that “gang bashing” included physical intimidation, altercations and name calling and that medical treatment included first-aid assistance at school) were not truthful. It found it more probable than not that “the applicant’s claim in his first statement [that he was] “often”…“gang bashed” to the extent of requiring medical treatment on a “number of occasions”” was “fabricated to contrive a long history of brutal persecution”.
The Tribunal found that the “applicant’s willingness to provide misleading and untrue information to the Department diminishe[d] his credibility as a witness on the issue of harm and raise[d] doubt as to whether he [had] even suffered the one incident of serious physical harm” he claimed at the hearing, (bruising and a laceration to his arm). It found that the significant inconsistency in his claims also diminished the applicant’s credibility on the issues of his sexual orientation or whether he had suffered any harm by reason of his imputed sexuality by virtue of being a hairdresser.
The Tribunal’s findings in relation to what it described as the applicant’s “lack of awareness of the legal prohibition on homosexuality in Lebanon” are of particular relevance to the grounds relied on in these proceedings.
The Tribunal found:
The Lebanese Penal Code makes homosexual intercourse an offence, yet the applicant was not aware of it or even aware that homosexual intercourse is an offence under the civil law of Lebanon. Concerned that he might be confusing religious law with civil law, the Tribunal explained the difference. The applicant stated there are no written laws about homosexuality per se although he later stated that there were laws against indecency. When asked why he was not aware of the legal prohibition on acts of homosexuality, he stated that he was a simple person from a village leading a simple life and had no knowledge of the law.
The Tribunal accepts that the applicant is not a lawyer and should not be expected to be conversant in the law. The Tribunal also has no reason to doubt that he was raised in a traditional Islamic household where issues of homosexuality would not be discussed. The Tribunal nevertheless considers that the applicant’s ignorance of the legal prohibition is an anomaly in light of the account the applicant has given of his experience as homosexual male in Lebanon. One would expect, if the applicant’s evidence about his experiences was true, that he would have become aware of the legal prohibition which is the tool of State repression and persecution of homosexuals in Lebanon. The applicant claims to have been subjected to ongoing abuse as a homosexual, traumatised in the army and lived in constant fear of persecution as a homosexual in Lebanon. In his first statement he referred to raids by the police on venues frequented by homosexuals “most of these venues are often raided by police and patrons arrested and subjected to gross human rights abuses. Those who can afford it usually pay a large bride (sic bribe) to guarantee their release … The police are also very hostile towards homosexuals. We remain extremely vulnerable members of society in Lebanon with no police protection in the event that we may be threatened with physical harm. A person who had endured a lifetime (since his “early teens”: first statement) of humiliation and physical and psychological abuse, speaking with that authority on the subject of police exploitation of homosexuals and the plight of the homosexual community at the hands of the police would at least be aware, if not of the actual paragraph in the Penal Code or the name of the Statute, at least of the fact that acts of homosexuality are against the civil law in Lebanon rather than merely subsumed within the laws against indecency. Yet at the hearing he stated that homosexuality was not specifically prohibited by law - the prohibition was cultural/religious and that Islamic factions do not tolerate homosexuality.
There is tension between the applicant’s claim to have been living in fear of persecution as a homosexual since he was a schoolboy on the one hand and his ignorance of existence of the law that allows the police to specifically exploit homosexuals and force homosexuals to hide their sexual orientation on the other.
The applicant’s ignorance of the legal prohibition (the fact of legal prohibition rather than the detail of the legal provision making it illegal), as with his false claim to have been subject to multiple incidents of gang bashing requiring medical treatment on multiple occasions, also raises the concern that his claims to have been forced to live discreetly are fabricated for migration purposes. The applicant’s ignorance of the legal prohibition also raises doubts about about (sic) his assertion that he is homosexual.
Whilst, viewed in isolation, in itself this ignorance is not determinative of the outcome of the review, having viewed the ignorance in combination with the inconsistency in the applicant’s evidence about his experience as a schoolboy and his delay in applying for protection (discussed below), the Tribunal concludes that the applicant has contrived his homosexual orientation for migration purposes.
The Tribunal then addressed the fact that while the applicant had first visited Australia between December 2006 and March 2007, he did not lodge an application for protection until his second visit in April 2009. It noted that his claim was not that conditions for homosexuals had worsened in Lebanon after March 2007. The Tribunal considered the applicant’s explanation for failing to apply for protection on his first visit to Australia (“that he was worried about the impact…on his sister and brother-in-law” and their reactions), but was of the view that if the applicant had a well-founded fear of persecution as he claimed, it was reasonable to expect that he would have sought protection as soon as possible. The Tribunal accepted that a person from a conservative family which disapproved of homosexuality “would feel some reticence and anxiety, possibly considerable anxiety”, about revealing to his family that he was homosexual. However it had regard to the fact that the applicant claimed to have experienced a fear of life-threatening persecution since was about 14 and to have suffered “ongoing serious physical abuse” and “almost daily” threats since that time. It was of view that if the applicant had such a fear he would have overcome any reticence about telling his family in Australia. It also found that the fact that the applicant “returned to his family and job in Lebanon” in March 2007 undermined his claim to have been genuinely fearful and the credibility of his claims to have suffered persecution in Lebanon, including the specific claims he made about having been subjected to taunts, physical abuse and living in fear of persecution.
The Tribunal was of the view that had the applicant been subjected to taunts and physical abuse, lived in fear of persecution and been forced to live as a “closet gay” (as his agent had submitted) “he would have sought protection or at least made inquiries of the Department or community or welfare agencies about the possibility of seeking haven in Australia as soon as possible” after his first arrival. The Tribunal found that the applicant’s “inexplicable failure to seek protection as soon as it was reasonably possible to do so”, in combination with the inconsistency in his claims about the incidents of physical assault at school and his ignorance of the legal prohibition on homosexuality led it conclude that the applicant was not homosexual and did not fear persecution.
The Tribunal stated that it had had regard to all of the evidence, including the applicant’s claims to be homosexual, the psychologist’s report and all the other material lodged in support. It noted that:
…a claimed sexual partner, Mr [W], attended the second hearing to attest to the applicant’s claim to be homosexual. However, if the applicant’s claims were true, it is expected that he would have given broadly consistent evidence about his experiences at school, been aware that homosexuality was illegal under the civil law of Lebanon and lodged an application for protection during his first visit to Australia. Put another way, the cumulative effect of the above mentioned concerns has left the Tribunal unsatisfied of the truth of the applicant’s claims, including his claim to be a homosexual.
The Tribunal concluded that “[i]n light of the combined effect of the inconsistencies, ignorance of the prohibition and delay in lodgement” it was not satisfied that the applicant was homosexual and found that he had “contrived his homosexual orientation for migration purposes”. It was therefore not satisfied that he had a well-founded fear of persecution based on “his sexual orientation or membership of a particular social group (homosexuals) in Lebanon”.
Further, the Tribunal found that its adverse credibility findings left it “unsatisfied that the applicant’s claimed involvement with Mr [W] in Australia [was] otherwise than for the purpose of strengthening his claim to be a refugee” and stated that for that reason it disregarded the applicant’s conduct in Australia pursuant to s.91R(3) of the Migration Act 1958 (Cth) (the Act).
The Tribunal concluded that as it had found that the applicant was not homosexual, it was not necessary to “consider whether, as a homosexual man, he would be exposed to a real chance of persecution on that basis”.
The Tribunal also found that while it accepted that the applicant had suffered some taunts as a male hairdresser in Lebanon, it was not satisfied that there was a real chance that he would suffer “serious harm” constituting persecution within s.91R of the Act by reason of being a hairdresser.
The Tribunal affirmed the decision not to grant the applicant a protection visa.
Unreasonableness
The first ground relied on by the applicant is that “[a]n aspect of the Tribunal’s reasoning concerning [his] claim to be homosexual was so unreasonable that no reasonable person could have so reasoned”. The particulars to this ground are as follows:
The Tribunal doubted the Applicant’s claim to be a homosexual for the reason that he appeared unaware of whether or not homosexual activity was illegal in Lebanon. There was no evidence before the Tribunal of the Applicant’s general level of knowledge of the law (except that he was not a lawyer). No reasonable person could have concluded, as the Tribunal did, that the Applicant’s level of legal knowledge could cast doubt on his credibility.
It appears that the Tribunal’s reasoning in issue was based on what occurred at the first hearing. After a discussion of the applicant’s claim about being in a homosexual relationship in Lebanon that ended in 2003, the applicant told the Tribunal that thereafter he had no further relationships. His explanation was as follows (transcript page 12):
Applicant:In Tripoli we were living in an Islamic society which does not permit such a thing to be carried away, and so I did not want to take any further risks or expose myself to persecution or to expose my family to such a thing. And it’s a very closed circle over there. If people – if one person knows about it, it will be spread through the community and will be myself and my family in deep trouble.
The Tribunal then asked what the applicant did to express his sexuality and if he went to homosexual night clubs and “things like that”. The applicant claimed it was “not an open society over there” and he “did not want to expose any of that” (transcript page 12).
When asked again if he went to homosexual night clubs and other social activities where homosexual men would go, the applicant responded (transcript pages 13 – 14):
Applicant:No, there are no such things in orthodox Lebanon. They are very strict and very on ethics. There is no such clubs as you say.
The following exchange then occurred (transcript page 13) :
Tribunal Member: But they’re in Beirut?
Applicant:Yes, in there was an open society, but our society, our surrounding is very closed and very fanatic and very illegal, it is not legal.
Tribunal Member: When you say it’s not legal, are you familiar with the particular law that makes it illegal? Will you remember this, Mr Interpreter?
Applicant:Yes, perhaps we will just stop there now, because – well, in Lebanon there are no such written rules. It’s only the society that they make the rules. In Lebanon there are so many different sects of religion, from extremes to different sort of things. There are criminal … and this is sort of, that sort is not acceptable, and any of the sexes, they know that I am gay, I will be exposed to maybe being killed, as simple as that.
Tribunal Member: Is there any written law that makes it illegal to be homosexual?
Applicant:There is no such written law that I know of. All I know, even there in the nightclub in Beirut for homosexual, that place will be monitored by police because it’s not allowed whatsoever. There’s no mention of anything, whether yes or no in that area.
Tribunal Member: So you are saying it’s more a question that it’s culturally unacceptable to be homosexual and that it is strongly disapproved of by Lebanese people but also in particular the fact that Lebanon is a Muslim country which frowns upon homosexuality?
Applicant:Yes, there are so many factions, Islamic factions, that they are very fanatic and they will not permit such a thing to happen whatsoever.
Tribunal Member: But you’re not aware of any particular law – sorry, you’re not aware of any particular law that’s written down in the law books of Lebanon that says it’s illegal to be a homosexual?
Applicant:No, I have not read of any law, but I only hear what people say.
Tribunal Member: Yes, there is a law. It’s set out in the law books. It’s article 534 of the Lebanese Penal Code. Now, I know you’re not a lawyer, and I’m not expecting you to have a great familiarity with legislation in Lebanon. However, I would have thought that as someone who has been living in fear of their homosexuality being discovered, that if you really were homosexual you would know about the law in relation to homosexuals, that you would have picked that up by now.
Applicant:The police does not protect us gay people in that … even if they find out that there is a nightclub or a meeting place for gay people, they will surround the place, charge them with indecency, penalise them with money, and they are not the ones who are going to protect us even though.
Tribunal Member: All right. You didn’t respond to my question so I will repeat it, clarify it. Are you concentrating?
Applicant:Yes, it’s the same question that you are asking me I’m answering it. Would you please repeat then the question?
Tribunal Member: I understand you’re nervous and that may be affecting the way you’re listening and comprehending, so I take that into account. So I will ask you this way, and hopefully it’s a simpler way of asking it. Your ignorance of article 534 of the Lebanese Penal Code casts some doubt on the truth of your claim to be homosexual because someone who had been living with this terrible secret since they were a young person and had been forced to have a relationship in hiding, and then had been too scared to have any other relationships after that one, and is now what, 26 years old, who is claiming to be a refugee on the basis that … homosexual, would, I imagine, be aware of the very law that makes it illegal.
Applicant:We are very simple citizens, you know, who come from a village. I have no knowledge of all this what you’re telling me now. We don’t interfere with the laws in Lebanon. We don’t find things which are clear, just simply – a simple life.
It was contended for the applicant that the Tribunal’s inference that he was unaware that homosexual activity was illegal in Lebanon was not one that a reasonable person could have drawn from his responses at the hearing and that by assuming that the applicant should have known that there was a statute prohibiting homosexual acts, the Tribunal was assuming that the applicant had some understanding of how laws were made and enforced in his country.
The solicitor for the applicant submitted that the applicant’s responses during this exchange to the effect that it was “very illegal”, “not legal”, “not acceptable”, that he could be killed for it, that “it’s not allowed whatsoever”, that the factions in society would not “permit such a thing to happen whatsoever” and that the police would “charge them with indecency, penalise them with money” were all ignored by the Tribunal, which was said to have appeared incapable of imagining a person who did not have an understanding of how laws were made, despite having no evidence before it as to the level of civic education of an average Lebanese citizen with the same background as the applicant.
It was submitted that the Tribunal’s reasoning was unreasonable in the sense of Wednesbury unreasonableness (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223), consistent with the approach taken by the High Court in Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16.
In SZMDS Crennan and Bell JJ accepted as correct the view that while not every instance of illogicality or irrationality in reasoning could give rise to jurisdictional error “if illogicality or irrationality occurs at the point of satisfaction (for the purposes of s 65 of the Act) then this is a jurisdictional fact and a jurisdictional error is established” (at [119]). After discussing principles in relation to illogicality and irrationality as a ground for judicial review, their Honours stated at [130]:
In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
The applicant acknowledged that Crennan and Bell JJ went on to state at [131]:
… If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
However it was submitted that in this instance the conclusion preferred by the Tribunal was not one that logical or rational or reasonable minds could have drawn from the evidence.
The applicant also acknowledged that the Tribunal’s finding on this issue was only one of the three elements that led it to its conclusion that it was not satisfied that the applicant was homosexual. While the applicant did not contend that the Tribunal’s findings on those other matters were sufficiently unreasonable or illogical to fail what was acknowledged to be the very strict test in SZMDS, it was contended that if there was jurisdictional error in relation to the Tribunal’s finding on the element of knowledge of the law then there would be no basis for denial of relief, since it could not be safely assumed that the combined effect of the two other elements on their own would have been sufficient to satisfy the Tribunal that the applicant’s claims were false.
The first respondent submitted that it was open to the Tribunal to consider that the applicant’s ignorance of the fact of a legal prohibition in the civil law (as opposed to the religious law) was anomalous, in light of the account he had given of his experiences as a homosexual male in Lebanon.
The ground relied on is expressed in terms of Wednesbury unreasonableness, although in submissions reliance was placed on SZMDS which considered circumstances in which “irrationality” or “illogicality” would give rise to jurisdictional error. In the course of reaching their conclusion in relation to illogicality and irrationality Crennan and Bell JJ referred to the difficulty of setting a test for identifying those discretionary decisions which are unreasonable (at [121]) and to the approach taken in Wednesbury per Lord Greene MR to the effect that a decision which “is so unreasonable that no reasonable authority could ever have come to it” may be set aside (at [123]).
As their Honours pointed out at [133], “the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it”, bearing in mind that what is in issue is not simply whether there was a lapse in logic but whether the Tribunal’s opinion as to its lack of satisfaction under s.65 of the Act was one that could be formed by a reasonable person (SZMDS at [131] per Crennan and Bell JJ).
In this instance, the questions asked by the Tribunal about the applicant’s knowledge of the law on homosexuality at the first hearing followed questioning about what he had done in Lebanon to express his sexuality. The part of the transcript relied on by the applicant reveals that the Tribunal interpreted the applicant’s responses as focussing on the cultural and religious condemnation of homosexuality as opposed to the State proscription of that conduct. This is clear from the proposition the Tribunal put to the applicant in what appears to be an attempt to clarify this issue. The Tribunal asked him if he was saying that it was more a question that it was “culturally unacceptable to be homosexual” and that it was “strongly disapproved of by Lebanese people” and “in particular the fact that Lebanon is a Muslim country which frowns upon homosexuality”. The applicant acceded to this proposition. The Tribunal then put the law about homosexuals to the applicant and the issue of whether a person who claimed to having been living in fear of their homosexuality being discovered would have known that it was illegal. Again the applicant responded tangentially. The Tribunal again clarified its concern. The applicant did not claim any knowledge of the law, but rather reiterated his lack of knowledge.
In these circumstances the Tribunal’s conclusion that it was anomalous for the applicant (who claimed to have a longstanding fear of persecution on the basis of his homosexuality), to have no knowledge of the fact that homosexuality was legally proscribed under the civil law of Lebanon (and I note that the Tribunal conclusion related to the ignorance of the fact of prohibition not ignorance of the legal provision in question) could not be said to be so unreasonable that no reasonable decision maker would have reached that view.
The reasoning of the Tribunal in issue was based on an assumption that a person who claimed to have experience as a homosexual male in Lebanon with a longstanding fear of persecution on that basis, would have become aware of and have some knowledge of the fact of the legal prohibition on homosexuality (not, importantly, the “detail of the legal provision making it illegal”). While reasonable minds might differ on the relevance of such a factor, it has not been established that the Tribunal’s conclusion in this respect was not open on the evidence before it or that its opinion as to whether it was satisfied as required under s.65 of the Act was one which no reasonable decision maker would have reached on the evidence. That is so despite some possible ambiguity in the applicant’s references to homosexuality being “very illegal” and “not legal”, given the Tribunal’s attempted clarification of whether the applicant was addressing cultural and/or religious mores or legal prohibitions and his responses in that respect. The Tribunal’s inference that the applicant was unaware that homosexual activity was illegal in Lebanon was open to it on the applicant’s evidence. It did not reach its decision on the basis of the applicant’s ignorance of the actual legal provision or particular statute applicable but rather, notwithstanding its attempted clarification, based on his (apparent) ignorance of the fact of legal prohibition.
As to the assertion that there was no evidence before the Tribunal of the applicant’s general level of knowledge of the law (except that he was not a lawyer), that does not establish that there was no probative material on which the Tribunal’s reasoning could have been based (insofar as that was intended to be contended). As counsel for the first respondent observed, in its findings and reasons the Tribunal acknowledged that the applicant was not a lawyer and that he “should not be expected to be conversant in the law” and found no reason to doubt that the applicant had a traditional Islamic upbringing where issues of homosexuality would not be discussed. The Tribunal referred to the applicant’s claims to have endured “a lifetime…of humiliation and physical and psychological abuse, speaking with that authority on the subject of police exploitation of homosexuals and the plight of the homosexual community at the hands of the police”. It also referred to the tension between his “claim to have been living in fear of persecution as a homosexual since he was a schoolboy on the one hand and his ignorance of… the law that allow[ed] the police to specifically exploit homosexuals and force homosexuals to hide their sexual orientation on the other”.
It has not been established that no reasonable person could have concluded on the evidence before the Tribunal either that the applicant was ignorant of the fact of legal prohibition (rather than the detail of the legal provision making it illegal) or that such ignorance was a factor that cast doubt on his credibility having regard to his claimed fear of persecution as a homosexual. Nor has it been established that in reaching that view the Tribunal ignored the applicant’s evidence as to the manner in which homosexuality in Lebanon was regarded from a social and religious perspective insofar as this was contended. It was open to the Tribunal, despite this evidence, to take the view that the applicant should also have known that homosexuality was proscribed by the State. While other decision makers may have given the former factor greater weight, that does not mean that the Tribunal’s reliance on the latter was unreasonable in the sense considered in Wednesbury or SZMDS. As Bell and Crennan JJ pointed out in SZMDS (at [131]), a decision cannot be said to be unreasonable simply because one conclusion has been preferred to another possible conclusion. In this case the Tribunal’s reasoning was not so devoid of plausible justification that no reasonable person could have taken that course (see Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 at 290; [1995] HCA 20).
Ground one is not made out.
Apprehended bias
The second ground in the amended application is:
On the basis of the same particulars [to ground 1] and those below the Tribunal’s reasons were such that a reasonable observer could have formed the view that the Tribunal was unwilling to consider any evidence in favour of the Applicant’s claims, thus giving rise to an apprehension of bias.
The further particulars are that:
The Tribunal’s conclusion that its findings about minor inconsistencies in the Applicant’s evidence outweighed credible and compelling professional evidence and the first hand evidence of a sexual partner of the Applicant could have led a reasonable observer to form the view that the Tribunal was unwilling to consider any evidence in favour of the Applicant’s claims, thus giving rise to an apprehension of bias.
The Applicant asked the Tribunal to hear from a witness who testified that he was in a homosexual relationship with the Applicant in Australia. The Tribunal made no attempt to elicit any evidence of that relationship from the witness and summarily dismissed him.
In written submissions the applicant referred to the oft-quoted remarks in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 of Gleeson CJ, Gaudron and Gummow JJ at [27] – [28]:
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.
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.
The test is an objective one, determined from the perspective of the hypothetical fair-minded and informed person and whether such person might reasonably apprehend that the Tribunal might not have brought an impartial mind to bear on its decision (see Minister for Immigration and Citizenship v MZXPA and Another (2008) 100 ALD 312; [2008] FCA 185). An allegation of bias, whether actual or apprehended, must be firmly established. North and Lander JJ stated in Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 at [18]: “It is a rare case in which a Court will find that a decision maker has breached the natural justice hearing rule by exhibiting bias based simply upon the decision maker’s reasons” and “[o]rdinarily a party would need to show some conduct on the part of the decision maker, apart from the decision maker’s expression of the decision maker’s reasons, which would indicate that the decision maker has been guilty of pre-judgment or was in any way biased”.
It is necessary to consider the assertion of apprehended bias, having regard both to what occurred in the Tribunal hearings (including the discussion of the legality or otherwise of homosexuality in Lebanon and in relation to the witness Mr W) and to the Tribunal’s reasons for decision.
The solicitor for the applicant submitted that, based on an objective test of possibility, a hypothetical fair-minded lay observer in the circumstances of this case might reasonably apprehend that the Tribunal might not have brought an impartial mind to resolving the question of the applicant’s credibility. It was contended first that a reading of the part of the transcript of the first hearing relied on in relation to the first ground left the distinct impression that the Tribunal was leading the applicant to a point at which it could justify its conclusion that he was not a homosexual. In response to the Tribunal’s question: “Is there any written law that makes it illegal to be a homosexual?” the applicant had stated: “There is no such written law that I know of. All I know, even there in the nightclub in Beirut for homosexual, that place will be monitored by police because it’s not allowed whatsoever. There’s no mention of anything, whether yes or no in that area.” It was submitted that this was ambiguous as the answer could be interpreted to mean that he did not know of any such law or that he did not know the details of the law, but that the Tribunal’s interpretation of the response was strongly leading, as well as grammatically confused. The Tribunal put to the applicant: “So are you saying it’s more a question that it’s culturally unacceptable to be homosexual and that it is strongly disapproved of by Lebanese people but also in particular the fact that Lebanon is a Muslim country which frowns upon homosexuality?”. It was submitted that this was a “confused suggestion” and that the applicant had taken up the second part in his answer: “Yes, there are so many factions, Islamic factions, that they are very fanatic and they will not permit such a thing to happen whatsoever”.
The solicitor for the applicant submitted that the applicant’s repeated claim that he was aware that homosexuality was in some manner against the law was ignored by the Tribunal, which instead made what was said to be “a second leading suggestion”, narrowing the focus to the question of the applicant’s knowledge of the statute law of Lebanon, in that it asked: “But, you’re not aware of any particular law – sorry, you’re not aware of any particular law that’s written down in the law books of Lebanon that says it’s illegal to be a homosexual?”. The applicant’s response was: “No, I have not read of any law, but I only hear what people say”. It was contended that this response “should not be read as if it had been carefully composed by a professional grammarian” and that at best a reasonable observer would allow for the possible interpretation that the applicant had “not read” the law rather than “not read of” it. It was submitted that there was no evidence before the Tribunal that the applicant was a person who read a great deal on any subject.
The applicant also submitted that the Tribunal had “sought to create a class straw man” in putting to the applicant that it “would have thought” that a person who had been living in fear of their homosexuality being discovered would know about the law in relation to homosexuals. It was said that there was no explanation as to why the Tribunal would have thought this and no evidence before it of the applicant’s level of understanding of the legal system.
It was submitted that the Tribunal’s questioning led only to the one conclusion and disregarded the applicant’s clear evidence that he was aware of homosexuality being “illegal”, “not legal”, “criminal”, “not permissible”, “not acceptable”, “not allowed whatsoever” and that he could be charged, stood over for money and even killed for it.
The solicitor for the applicant submitted that insofar as the Tribunal had regard to the fact that the applicant apparently was not aware of the legal prohibition that, according to the Tribunal, was the “tool of State repression and persecution of homosexuals in Lebanon” as a reason for disbelieving him, that was factually wrong, as at line 10 of page 13 of the transcript the applicant had said “… our surrounding is very closed and very fanatic and very illegal, it is not legal”. It was submitted that while the Tribunal was being told quite clearly by the applicant that he was aware that homosexuality was illegal, the Tribunal had not listened to this. This was said to suggest that the Tribunal had fixed on the view that the applicant must be aware that there was an actual prohibition in the Lebanese Penal Code and that if he was not aware of that prohibition, he was not a homosexual.
The applicant submitted that in taking this approach the Tribunal was closing its mind to what the applicant was really saying and that the contention that the Tribunal had fixed its mind on something which it considered to be in all cases an absolute minimum requirement was consistent with the fact that in its findings and reasons it drew a distinction between the need for a person in the position of the applicant to be at least aware of the fact that “acts of homosexuality are against the civil law in Lebanon rather than merely subsumed within the laws against indecency”. The applicant submitted that while the Tribunal did not claim to have any personal experience of living as a homosexual in a repressive society in which the state or the civil laws were not the primary tools of social control, by stating that it would have thought, or that “[o]ne would expect”, the Tribunal was effectively projecting itself (with its own background and prejudices) into the position of the applicant. In doing so the Tribunal was said to have failed to exercise its jurisdiction to hear the applicant’s case.
In short, the applicant submitted that the assumption by the Tribunal that the applicant should have known about such laws in this way was demonstrative of the Tribunal imposing its own framework or its own prejudices or prejudgment seen from the perspective of an informed observer who could reasonably apprehend that this was the case, particularly in circumstances where, according to the solicitor for the applicant, the applicant had said in the hearing that he knew that homosexuality was “illegal”. It was submitted that for the Tribunal to ignore this and to in effect say that it wanted the applicant to refer to the Penal Code or to a specific prohibition on homosexuality (albeit this was not the approach taken in the decision) was such that a reasonable person might or could apprehend that the Tribunal was not really listening to the case before it or that it was prejudging it.
However, as counsel for the first respondent submitted, a fair reading of the exchange relied on by the applicant and the exchange that preceded it indicates only that the Tribunal was interested in ascertaining the applicant’s knowledge of the law and in raising issues of concern with him. The applicant’s responses focussed on his knowledge of the cultural and religious position. Although some ambiguity in the applicant’s responses can be identified and there are points in the exchange at which he may be taken to have been saying that homosexuality was not legal in Lebanon, this does not establish that the manner in which the Tribunal sought to clarify this issue by asking further questions would give rise, in the mind of a hypothetical fair minded lay observer, to a reasonable apprehension that the Tribunal was not bringing an impartial mind to the resolution of the application before it or was unable or unwilling to evaluate all the material before it fairly (Re Refugee Review Tribunal; Ex parte H), whether considered alone or in conjunction with the other particulars relied on under this ground.
Considered in context the Tribunal’s method of questioning on this issue is not indicative of a closed mind, but rather of an attempt to clarify the applicant’s claims and his knowledge about the existence of any legal prohibition on homosexuality in Lebanon. The fact that aspects of his answers were ambiguous and that the Tribunal may have interpreted such responses in one way rather than another is not, given its attempted clarification by further questioning and explanation of its concerns, indicative of a closed mind. Contrary to the applicant’s submissions the questioning is not such as to establish that the Tribunal was leading the applicant to a point at which it could justify a conclusion that he was not homosexual. The Tribunal did not ignore the applicant’s responses. It endeavoured to explain why it was of concern that a person with a claimed fear that his homosexuality would have been discovered did not know about the law in relation to homosexuality. It was not indicative of bias for the Tribunal (which is not a court) to engage in probing questioning or to express doubts in the manner that it did (see NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 at [19] per Allsop J).
Even if the Tribunal made a factual error about what the applicant’s evidence was in this respect, given that there was a lack of clarity and some ambiguity in the applicant’s responses, this is not indicative of a mind not open to persuasion from the perspective of the hypothetical fair minded lay observer.
It was not indicative of bias for the Tribunal to attempt to clarify its questions in this respect. It is clear from the transcript that the Tribunal was concerned that the applicant may not have understood its questioning. It is not clear that the mode of questioning adopted by the Tribunal was indicative of a closed mind. Even if the applicant’s evidence might be open to an interpretation other than that taken by the Tribunal when the hearing is considered as a whole its questioning is not supportive of a conclusion of a closed mind having regard to the perspective of what the fair-minded informed lay observer might reasonably apprehend. I have borne in mind that the hypothetical fair-minded and informed person would be aware of the Tribunal’s review functions, that it is inquisitorial and that it is not required uncritically to accept an applicant’s claims (see Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559 at 596; [1997] HCA 22). Moreover apprehended bias is not demonstrated by “the selection and administration of a series of highly specific questions, even if they take on the appearance of an examination” (as Buchanan J pointed out in SZJBD v Minister for Immigration and Citizenship and Another (2009) 179 FCR 109; [2009] FCAFC 106 at [82]).
It has not been shown that it is possible that a fair-minded, well-informed lay observer might reasonably suspect that the Tribunal rejected or failed to have regard to the applicant’s evidence in this respect independent of its intrinsic worth, as it was otherwise dissatisfied with his credit (cf SZIEW v Minister for Immigration and Citizenship and Another (2008) 101 ALD 295; [2008] FCA 522).
I note also that as Buchanan J stated in SZJBD at [82] the “critical issue” is the use made of responses to the Tribunal’s questions, taking into account “the latitude allowed to administrative decision makers and to the nature of the process undertaken” by the Tribunal. The Tribunal conclusions in this respect do not support the assertion of apprehended bias. While minds may well differ on the Tribunal reasoning (having regard to the applicant’s evidence and the information before it about the precise nature and wording of the provision of the Penal Code applied in relation to homosexuality), the Tribunal’s fact-finding in this respect is not such that it can be described as “in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way” in the sense considered by Allsop J in NADH at [115]). The Tribunal provided an explanation for its reasoning and drew a distinction between ignorance of the fact of legal prohibition and ignorance of the detail of the legal provision (with which it was not concerned). Even if the Tribunal were to be seen as having misunderstood an aspect of the applicant’s evidence on this issue, it has not been established that this is such as to give rise to an apprehension of bias.
In addition, the applicant submitted that what occurred in the second hearing was also indicative of apprehended bias. The applicant brought a witness, Mr W, to that hearing. In its reasons for decision the Tribunal “note[d]” that Mr W had attended the hearing “to attest to the applicant’s claim to be homosexual”. This was ultimately the issue on which the case turned. It was submitted that in its reasons for decision the Tribunal’s view appeared to be that the evidence of this witness was outweighed by the “cumulative effect of the above mentioned concerns”. It was acknowledged that it would be open to a Tribunal to make such a judgment provided that the Tribunal had in fact given real consideration to the witness’ evidence. However it was submitted that it was apparent from the transcript of the second hearing that the Tribunal did not give any real consideration to Mr W’s claims.
It appears that reliance is placed both on the Tribunal’s failure to attempt to elicit any evidence of the claimed relationship from Mr W (it is said to have “summarily” dismissed him) and also the Tribunal’s findings that inconsistencies in the applicant’s evidence (and other concerns) outweighed what the further particulars in ground two described as “credible and compelling professional evidence and the first hand evidence of a sexual partner of the Applicant”. It was submitted that this “could have led a reasonable observer to form the view that the Tribunal was unwilling to consider any evidence in favour of the applicant’s claim”.
However, in considering the claim of apprehended bias it is relevant to have regard to the overall context and what occurred before Mr W gave evidence. Towards the end of the first hearing in August 2009, the applicant’s solicitor/migration agent had suggested to the Tribunal that the applicant may like to advise the Tribunal about his activities in Australia that he had not been asked about, if the Tribunal saw that as relevant, on the basis that “he’s living a gay lifestyle in Australia may be relevant to the applicant’s credibility.”
The Tribunal said to the applicant “…your agent has just suggested that I ask you about your activities in Australia. What would you like to tell me about those? When did you arrive in Australia the last time?”.
The Tribunal also asked the applicant what he had done “in terms of expressing your freedom and so on”. The applicant talked about going to a gay club or night club once or twice a week (which he named). The Tribunal asked him if he had formed a relationship with anyone. In response the applicant referred to one incident of physical conduct with a male while dancing with a club but stated that he “couldn’t build a relationship as such, a permanent relationship, because I have no place to go, and then if I’m going to sleep my sister [with whom he stayed] will be annoyed with me.”
When asked if there was anything else he wanted to say about what he had done in Australia, the applicant told the Tribunal about going to another named gay bar or nightclub. The Tribunal then ended the first hearing.
Subsequently, the Tribunal scheduled a further hearing for 15 December 2009. This hearing was arranged by the Tribunal. It was not done at the request of the applicant. There is no evidence or suggestion that the applicant or his migration agent told the Tribunal that there was any further information or evidence that the applicant wished to put before the Tribunal beyond post-hearing submissions, documentary evidence (including a psychologist’s report and independent information) and a response to a s.424A letter of 6 October 2009. The applicant did not ask the Tribunal to take oral evidence from any other person in the response to hearing invitation form completed in relation to the December 2009 hearing.
However the applicant attended that hearing with his solicitor, his brother-in-law and Mr W. It appears from the transcript that at the start of the second hearing the Tribunal either asked whether or observed that Mr W and the applicant’s brother-in-law were there as witnesses. The Tribunal asked them to wait outside. The Tribunal asked the applicant if there was “anything you want to tell me before I start asking you questions?” to which he responded “No”.
The Tribunal then explained that it had invited the applicant to a further hearing to give him an opportunity to elaborate on what he had told it at the last hearing and in response to the Tribunal’s s.424A letter. It summarised his claim to fear persecution in Lebanon as a homosexual and asked:
Tribunal Member: The reason why I invited you to a further hearing was because I thought I should you give (sic) an opportunity to elaborate a little bit on what you told me at the last hearing and in response to your letter – in response to the Tribunal’s letter.
Applicant:Thank you for that.
Tribunal Member: Now, so far you’ve told me about how you’re a homosexual and you’ve been persecuted because of your homosexuality, and that you’re fearful that if you return to Lebanon you will face further persecution.
Applicant:That’s right.
Tribunal Member: Is there anything that you want to add to what you’ve already told me, either through your statements in writing or through your evidence at the last hearing? Is there anything further you want to add about the persecution you’ve suffered?
Applicant:Yes, I’ve got something to add.
Tribunal Member: Okay. What would you like to say?
Applicant:It’s just simple. In Lebanon, we are a religious family. I am from a Muslim family. My parents are believers and they have great faith in their Islamic religion and being a homosexual is against religion. It also makes the family dishonoured, like, it’s a dishonour to have someone like that in the family. They will be ashamed, and I haven’t been treated in the family like anyone of my siblings. Like, my parents never treated me as they treat my siblings and as I like to be treated.
Tribunal Member: Go on.
The applicant elaborated on a claim that his parents did not treat him like his siblings, which he attributed to his appearance and, when asked, said he had not dared to tell them he was homosexual.
The Tribunal then asked the applicant questions relevant to the issue of whether he had suffered any persecution as a result of being a member of a particular social group (male hairdressers) in Lebanon. Subsequently he was given a further opportunity to elaborate on problems he faced in Lebanon as a result of being homosexual. The following exchange then occurred:
Tribunal Member: How many relationships have you been in?
Applicant:One in Lebanon.
Tribunal Member: What was the person’s name?
Mr H:…
Tribunal Member: How long did that relationship go on?
Applicant:Three years.
Tribunal Member: All right. Was there anything else you wanted to tell me?
Applicant:I wake up every morning with a feeling of fear remembering all those things that happened to me. So my life in Lebanon was always like that, remembering all the bad things that are happening to me every day.
Tribunal Member: Now, you’ve brought along Mr [A] and Mr [W]. Why did you bring them to the hearing?
Applicant:Mr [A] is my brother in law and he dropped me here because I don’t know how to get to places, and Mr [W] is my friend. We spend usually every Tuesday together and today is a Tuesday, so he came back with – he came here with me.
Tribunal Member: Excuse me for a minute. I’m just reading something.
Applicant:After I came here, I started to forget, but then some occasions brings (sic) those memories back to me. I now have a comfortable life here.
Importantly, the applicant made no claims about any sexual relationship with Mr W. This was the context in which the Tribunal then heard from the persons identified as witnesses. The applicant’s brother-in-law explained he was just there to support the applicant and had nothing to say. The following exchange then occurred between the Tribunal member and Mr [W]:
Tribunal Member: Mr [W], what did you want to tell the Tribunal?
Mr [W]: What would you like?
Tribunal Member: I don’t have any questions, but you’ve come along and you’re down as a witness. What was it that you wanted to tell me?
Mr [W]: Okay. Well, we’ve been seeing each other for about three months.
Tribunal Member: Right.
Mr [W]: Yes. We’ve met about three months ago and, yes, you know, we have fun and go out sometimes. We see each other a couple of times ago, grab coffee.
Tribunal Member: So are you friends or are you in a sexual relationship?
Mr [W]: We’re in a sexual relationship.
Tribunal Member: Okay. Was there anything else that you wanted to say.
Mr [W]: No, not really.
Tribunal Member: Okay. All right. Well, thank you for your attendance. Mr [H], I don’t have any further questions. …
The Tribunal member then told the applicant he had no further questions, but that he had rescheduled the hearing to allow the applicant to address him on persecution he had suffered as a hairdresser.
In submissions, the solicitor for the applicant took issue with the fact that this was the entirety of the exchange between the Tribunal and Mr W who was said to have been brought by the applicant to give evidence in relation to the central issue of whether or not the applicant was homosexual.
It was pointed out that the Tribunal was not an adversarial forum and that a witness attending a hearing may be not be represented or assisted in any way or cross-examined (s.427(6) of the Act). It was submitted that by “summarily dismissing” the witness without further investigation or challenge, the Tribunal must be assumed to have either accepted his claims or ignored them and that in either case any reasonable lay observer would have had the strongest apprehension that the Tribunal was not prepared to allow its judgment to be called into question by new evidence.
Reference was also made to the Tribunal findings in relation to this evidence. First, the Tribunal determined on the basis of inconsistencies, the applicant’s ignorance of the prohibition on homosexuality and his delay in making a protection visa application that it was not satisfied that the applicant was homosexual. It was submitted that faced with the evidence of Mr W claiming to be in a homosexual relationship with the applicant, the Tribunal in effect stated that it had already decided that he was not homosexual. It was submitted that this amounted to disregarding the evidence of Mr W because the Tribunal had already made up its mind on the things that went against the applicant and that this approach was such as to lead to an apprehension of bias.
It was said to be relevant that in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ had referred to the fact that the Tribunal is inquisitorial and suggested that it had an official duty to inquire, examine or investigate (at [18] – [25]).
Reference was also made to the decision of the Full Court of the Federal Court in WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597; [2003] FCAFC 188 in which the Tribunal had made adverse findings on an applicant’s credibility based on his demeanour and had discounted corroborative documentary evidence. The Court stated at [55]:
To make a bare assertion that the document was not genuine, that is to say, a forgery, would have been an arbitrary and unreasoned conclusion by the RRT unsupported by a scintilla of material. If the RRT had acted in such a manner it would have raised the perception that the findings made by the RRT in that regard had been moulded to support a particular conclusion. (See: Corporation of the City of Enfield v Development Assessment Commission (2000) 1999 CLR 135 per Gleeson CJ, Gummow, Kirby and Hayne JJ at [42].) If that were so the RRT would not have performed the duty imposed upon it by the Act and the purported decision would be set aside as one made in the absence of authority or jurisdiction.
It was contended that in this case the Tribunal had reached such an arbitrary and unreasoned conclusion in relation to Mr W’s evidence that its failure to inquire further gave rise to an apprehension that it had already made up its mind. It was submitted that a reasonable person would apprehend that the Tribunal had already made up its mind and was not interested in what Mr W had to say, notwithstanding that the s.91R(3) issue of motive should have led the Tribunal to inquire further in order to determine whether it was satisfied or not about the applicant’s motive.
Reference was made to the fact that in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 and Another (2006) 231 CLR 1; [2006] HCA 53 Gummow ACJ, Callinan, Heydon and Crennan JJ had pointed to the fact that the Court had said that “proceedings of the Tribunal [were] administrative in nature, or inquisitorial and that there is an onus upon neither an applicant nor the Minister” (at [40]) and to the fact that under s.427 of the Act a person appearing before the Tribunal to give evidence is not entitled to be represented or to examine or cross-examine any other person. It was submitted that in such a context the Tribunal had a responsibility in the course of the hearing with regard to the intended operation of s.91R(3) consistent with the statement in Minister for Immigration and Citizenship v SZJGV and Another; Minister for Immigration and Citizenship v SZJXOand Another (2009) 238 CLR 642; [2009] HCA 40 at [62] per Crennan and Kiefel JJ that: “The decision-maker who has found that a person had only the motive spoken of, in engaging in the conduct, will have at his or her disposal a finding which may be relevant to the person's credibility. Such a conclusion will have involved a rejection of the explanation tendered. It seems unlikely to have been intended that a decision-maker undertake the inquiry about the person's motive dictated by sub-s (3), reach a conclusion and then be required to put it out of his or her mind.”
It was suggested that it was implicitly recognised in SZJGV (at [82]) that s.91R(3) required the Tribunal to go further than just sitting back and listening to the evidence as it was presented by the applicant, particularly in a case where a witness attended and said that he was in a homosexual relationship with the applicant, where the applicant’s homosexuality was the central issue of the case and the Tribunal had to determine whether or not it was satisfied that the conduct was engaged in by the applicant for the sole reason of strengthening his refugee claim. The applicant submitted that if the Tribunal had not appeared to have made up its mind, it would have asked Mr W further questions relevant to the applicant’s motivation, and that the fact that it had not done so suggested that the Tribunal was not really interested in hearing from the witness and therefore it could be seen as having failed to give the applicant a proper opportunity to satisfy it that he had engaged in a homosexual relationship in Australia for purposes other than strengthening his claim to be a refugee.
The applicant submitted that the Tribunal could not make the finding that it did about the motivation for the conduct in question without fulfilling its inquisitorial function to at least elicit something from the witness relevant to the reason for the applicant’s conduct in issue under s.91R(3) of the Act. It was submitted that this was an obvious inquiry about a critical fact the existence of which was easily ascertained (although the ground relied on is apprehended bias and not a failure to inquire in the sense considered in Minister for Immigration and Citizenship v SZIAI).
Counsel for the first respondent submitted first that one had to look at the overall context, including the fact that the witness was giving evidence at the conclusion of the second hearing that the Tribunal had convened because it was concerned that it had not given the applicant an opportunity to address a claim based on his membership of a particular social group of male hairdressers in Lebanon. It was acknowledged that the questioning of Mr W was brief, but submitted that it did not give rise to an apprehension of bias in circumstances where it was said to be clear from the Tribunal’s reasons that it had taken that evidence into account in determining the credibility of the applicant’s claims. The Tribunal noted that it had had regard to all of the evidence, including that a claimed homosexual partner had attended the second hearing to attest to the applicant’s claim. It was submitted that the Tribunal had taken into account Mr W’s evidence about a relationship of three months standing in relation to the applicant’s claims about having a long-standing homosexual preference and fear of persecution on that basis, but that it was not satisfied that such corroborative evidence was of sufficient weight to overcome the concerns it had about the applicant’s credibility by reason of other matters. The first respondent submitted that in such circumstances the manner in which the Tribunal dealt with the evidence of the witness was not indicative of the Tribunal having a closed mind.
The first respondent also submitted that the Tribunal’s disregard of that conduct accorded with the direction in s.91R(3) and that it was not the case that a fair-minded hypothetical lay observer might reasonably apprehend that the Tribunal was not bringing an impartial mind to the evidence. Moreover, contrary to the applicant’s contention that the exchange at the hearing indicated that the Tribunal was not prepared to allow its judgment to be called into question by new evidence, it was contended that the fact that the Tribunal relied on s.91R(3) to disregard the conduct, suggested that it may have accepted the truth of Mr W’s evidence as to the relationship that had developed between him and the applicant.
Counsel for the first respondent acknowledged that the Tribunal’s reasons were infelicitously expressed in that they referred to no more than the applicant’s “claimed involvement” with Mr W, but submitted that the better reading of the reasons was that the Tribunal was simply saying that if such conduct did occur the Tribunal would be obliged to disregard it under s.91R(3) of the Act.
It was also submitted that the question of an obligation to ask the witness questions about the applicant’s motives for engaging in conduct (as suggested for the applicant) did not arise as that was not a matter on which the witness could properly assist. It was contended that there was no positive obligation on the Tribunal to ask or elicit further information from the witness or from the applicant as to his s.91R(3) motivation, having regard to the fact that the Tribunal had considered the evidence in its decision on the basis that it corroborated the applicant’s claim, but ultimately found that it did not outweigh the Tribunal’s concerns in relation to the credibility of his claim to be a homosexual.
I note that no issue was raised with the applicant by the Tribunal about the genuineness of his conduct in Australia and its relationship to s.91R(3) of the Act. However in SZILQ v Minister for Immigration and Citizenship and Another (2007) 163 FCR 304; [2007] FCA 942 at [25] Buchanan J did not accept the suggestion that the Tribunal has a positive obligation to alert an applicant to the fact that it might conclude that it should disregard his conduct in Australia (at [25]), although his Honour went on to state (at [33]) that it seemed to be an essential premise of s.91R(3) that the applicant have a proper opportunity to satisfy the Tribunal that the conduct in Australia said to be relevant was not engaged in just for the purposes of strengthening a claim to be a refugee.
In this instance it is relevant to have regard to the overall context in which the evidence of Mr W was given. No evidence of any homosexual relationship in Australia was given by the applicant, notwithstanding that at the second hearing conducted in December 2009 the Tribunal member gave him an opportunity to add anything he wanted to about his claims generally as well as about the persecution he claimed to have suffered because of his homosexuality in Lebanon. When asked how many relationships he had been in, the applicant answered one in Lebanon for three years and when asked if there was anything else he wanted to say he spoke about waking up every morning with a fear of remembering all the things that had happened to him in Lebanon. He did not make any claim to the Tribunal about being in a homosexual relationship with Mr W. When asked why he brought Mr W to the hearing he said that Mr W was his friend and they spent Tuesdays together and as it was a Tuesday he came with him.
In all the circumstances, the fact that the Tribunal did not ask further questions of Mr W, or specifically invite the applicant to address Mr W’s evidence is not such as to establish apprehended bias. The Tribunal was not under an obligation to attempt to elicit further information from Mr W (particularly in relation to the applicant’s motivation in engaging in the claimed relationship). It has not been contended in these proceedings that the Tribunal did not afford the applicant the opportunity required under s.425(1) of the Act to give evidence and present arguments relating to the issues arising in relation to the decision under review in accordance with the principles in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63.
Further, while in its reasons for decision, the Tribunal did not clearly state whether or not it was satisfied that the conduct in question had occurred or whether it accepted the evidence of Mr W, it referred to the applicant’s “claimed involvement” with Mr W in Australia, initially had regard to Mr W’s evidence as part of all the evidence before it and referred to Mr W as a “claimed homosexual partner” who attested to the applicant’s claim to be homosexual, but found that the cumulative effect of a number of other matters left it unsatisfied of the truth of the applicant’s claims, including his claim to be a homosexual, the issue to which Mr W’s evidence went. The Tribunal’s further finding that its adverse credibility finding left it unsatisfied that the “claimed involvement” with Mr W in Australia was otherwise than for the purpose of strengthening his claim to be a refugee and that for that reason it disregarded the applicant’s conduct in Australia pursuant to s.91R(3) of the Act may have been unnecessary insofar as it rejected the applicant’s claim to be homosexual, but in any event, the Tribunal reasoning was not so arbitrary or unreasoned to raise the perception that its findings in this respect were “moulded to support a particular conclusion” (cf WAEJ at [55]). Importantly, there is no suggestion that the Tribunal fell into jurisdictional error in its application or consideration of s.91R(3) of the Act.
As the first respondent contended, given that the Tribunal initially had regard to the potentially corroborative evidence of Mr W as part of all the material in support of the application, but found that such material was outweighed by the matters that led to its adverse credibility finding, the Tribunal’s subsequent conclusion that it was not satisfied that the applicant’s claimed involvement with Mr W was otherwise than for the purpose of strengthening his claim to be a refugee is not such as to give rise to an apprehension of bias either of itself or when considered in the context of the other issues raised by the applicant about the Tribunal hearing and the Tribunal’s reasons. It is not such as to raise, from the perspective of the fair-minded observer, a reasonable apprehension that the conclusions of the Tribunal were reached with a mind not open to persuasion and unwilling and unable to evaluate all the material before it fairly, having regard to all the matters before the Tribunal, as well as the nature of the evidence in question and the circumstances in which it emerged.
Insofar as ground two refers to the Tribunal conclusion about minor inconsistencies outweighing credible and compelling professional evidence and first-hand evidence of a sexual partner, the weight to be given to items of evidence is a matter for the Tribunal. The Tribunal did not simply reject the applicant’s credibility based on inconsistencies. Further, the psychologist’s report merely recorded the applicant’s claimed homosexuality and experience and found that he “appeared well”, was “not reporting depressed affect” and did not “appear to currently meet the criteria for Post traumatic Stress Disorder”. The Tribunal had regard to this report and its failure to regard it as corroborative of the applicant’s claims such as to outweigh its credibility concerns is not indicative of apprehended bias.
Finally, insofar as the applicant’s submissions otherwise addressed the Tribunal’s treatment of corroborative evidence or whether the Tribunal had a duty to inquire, the ground relied on was apprehended bias. It is not made out.
As no jurisdictional error has been established on either of the grounds relied on by the applicant, the application must be dismissed.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 30 September 2010
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