SZOZF v Minister for Immigration & Anor
[2011] FMCA 364
•25 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOZF v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 364 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Lebanon as a homosexual – applicant disbelieved in key respects – Tribunal reaching different findings of fact to the delegate in relation to the circumstances of the applicant’s travel to Saudi Arabia – whether the Tribunal’s findings were illogical or unreasonable or whether the Tribunal breached s.425 of the Migration Act 1958 (Cth) by not ensuring that the applicant understood the essential or significant issues on which the review would turn considered. |
| Migration Act 1958 (Cth), s.425 |
| Commissioner of the ACT Revenue v Alphaone (1994) FCR 576 Minister for Immigration v SZMDS (2010) 266 ALR 367 SZBEL v Minister for Immigration & Anor [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515 |
| Applicant: | SZOZF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 201 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 18 May 2011 |
| Date of Last Submission: | 9 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 25 July 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones Michael Jones, Solicitor |
| Solicitors for the Respondents: | Ms N Johnson Sparke Helmore |
ORDERS
A writ of certiorari shall issue removing into this Court the record of the decision of the Refugee Review Tribunal made on 5 January 2011, for the purpose of quashing it.
A writ of mandamus shall issue requiring the Refugee Review Tribunal to redetermine the application before it, according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 201 of 2011
| SZOZF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”) made on 5 January 2011. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Lebanon and had made claims of persecution based upon his asserted homosexuality. The following statement of background facts is derived from the submissions of the parties.
The applicant first arrived in Australia 27 January 2008 on a subclass 679 visa. He departed Australia on 25 April 2008 and travelled to Saudi Arabia on 18 September 2008. On 23 September 2008, the applicant’s brother lodged an application for another subclass 679 visa on the applicant’s behalf. This application was rejected as the applicant’s work reference did not confirm that he had three months leave to visit Australia. On 28 August 2009, a further subclass 679 visa was lodged on the applicant’s behalf. This application was refused on 21 September 2009 on the basis that the applicant had submitted a fraudulent work reference. Another subclass 679 visa was lodged on 14 December 2009 and the applicant was granted the visa on 24 April 2010: court book (“CB 65”).
The applicant most recently arrived in Australia on 1 May 2010 (CB 34) and applied for a protection (Class XA) visa on 7 June 2010: CB 1-25. The applicant appointed a migration agent to assist him in connection with that application (CB 26-29) and provided copies of pages from his passport: CB 30-52.
The applicant claimed to be homosexual and feared harm in Lebanon from his family if they become aware of his sexuality. He claimed that he had been in a homosexual relationship in Lebanon with a man named Mohammed and was involved in a gay activist group called “Helem”. He travelled to Saudi Arabia with a prince who organised travel documents and work references for him. The applicant began a relationship with the prince but was sent back to Lebanon after the prince discovered the applicant having sex with another man who worked at the palace (Khaled). When he returned to Lebanon he was unable to find work or contact Mohammed and came to Australia to live with his brother. After his arrival in Australia, the applicant attended a gay night club in Melbourne: CB 53; CB 124-127, [34]-[50].
The delegate’s decision
On 22 July 2010, a delegate of the Minister invited the applicant to attend an interview scheduled for 10 August 2010: CB 59-60. The applicant attended this interview and gave evidence in support of the claims made in his protection visa application: CB 66.9; CB 122-123 [23]-[29].
In a decision dated 16 August 2010, the delegate refused to grant the applicant a Protection visa: CB 62-79. The delegate found that the genuineness of the applicant’s claims to fear persecution in Lebanon were undermined by the “multiple inconsistencies” in his evidence about his employment, his first homosexual relationship, and his circumstances immediately prior to his travel to Saudi Arabia: CB 71-74. The delegate accepted that the applicant travelled to Saudi Arabia and had sex with the prince in return for financial and material support but did not accept that they were engaged in a “genuine homosexual relationship”: CB 74.5-6.
The delegate also did not accept that the applicant genuinely feared harm from his family, either in Lebanon or Australia, given the ongoing close proximity to his family in Australia (CB 75.4). The delegate found further that there was no evidence that the applicant had been targeted in Lebanon because of his homosexuality or that he was denied state protection: CB 75.7. The delegate did not accept that the applicant had been involved in the gay community in Australia (CB 77.1) and found that the credibility of his claims were undermined by his delay in applying for a protection visa after first arriving in Australia: CB 77.5
The delegate was therefore not satisfied that the applicant had a well‑founded fear of harm if he returned to Lebanon: CB 78.
The Tribunal proceedings
On 6 September 2010, the applicant lodged an application for review with the Tribunal to review the delegate’s decision: CB 81-84. He appointed an agent to assist him in connection with the review before the Tribunal: CB 82.
By a letter dated 27 September 2010, the Tribunal invited the applicant to attend a hearing before the Tribunal scheduled for 4 November 2010: CB 91-93.
The applicant accepted the invitation (CB 94-96) and attended the hearing and gave evidence on 4 November 2010: CB 105-106; CB 123-127, [32]-[50]. In particular, the Tribunal questioned the applicant about his experiences in Lebanon and in Saudi Arabia and discussed its concerns about his alleged relationships with Mohammed and Khaled: CB 124-126, [37]-[43]. The Tribunal recited without comment the applicant’s evidence regarding his reasons for travelling to Saudi Arabia given at the hearing as follows:
The applicant was in a relationship with Mohammed until he left to go to Saudi Arabia. They had been in a relationship for six years. They had a fight because the applicant wanted to go to Saudi Arabia and he did not want the applicant to go because he wanted the applicant to stay close to him in Lebanon. The applicant wanted to leave Mohammed and go to Saudi Arabia because at that time the Saudi prince liked him very much. Mohammed did not know about the Saudi prince and the applicant told him he was just going to Saudi Arabia for a visit. He did not suggest that Mohammed come as well because the applicant had a special visa that had been given by the prince. Mohammed would not have been able to get a visa like that; he could only get a visa for Saudi if he had work there or was going on a Hajj. The applicant was in regular contact with Mohammed by telephone when he was in Saudi Arabia. The prince’s name was … . The visa was translated by the interpreter who indicated that it stated it was valid for three months and the applicant’s profession was host or waiter. The purpose of the visit was to visit [the] Prince and accompany him. The length of the visa was for 90 days. It was a one trip visa and he was not permitted to work. The prince gave him the work references because he loved him so much and thought that they would be useful for him to use in the future. The applicant did not work in Saudi Arabia. The applicant had never worked at the places mentioned in the references.
Prior to the hearing, the applicant provided to the Tribunal independent information (and an English translation) on homosexuality in Lebanon (CB 97-102) and a letter of support from Adnan Messede: CB 103-104. Post-hearing, the applicant also provided a further letter from Adnan Messede (CB 108), a supporting letter from Georges Nemer (CB 109), and a second translation of the independent information previously provided to the Tribunal: CB 111-115.
The Tribunal’s decision
The Tribunal accepted that homosexual men in Lebanon were a particular social group within the meaning of the Convention (CB 128, [58]) but found that there were a number of inconsistencies in the applicant’s claims and evidence and that he had fabricated his claim to be homosexual: CB 133, [73].
The Tribunal found that the evidence submitted by the applicant indicated that he was able to travel to Saudi Arabia because he was employed by the prince’s company, rather than because he was the prince’s lover: CB 129, [60]. The Tribunal reached this view on the basis of its assessment of the applicant’s evidence, namely his passport and visa to Saudi Arabia, the work references which he provided and his oral evidence that he came from a very strict family who monitored him closely: CB 129, [60]-[61]. The Tribunal also had regard to the other “concerns” it had about his account of what allegedly occurred in Saudi Arabia. These included its rejection of the applicant’s claim that he would have risked having a sexual relationship with one of the prince’s friends in the palace, the coincidence of being caught by the prince when having sex with Khaled for the first time, and his unconvincing evidence about when and how he left the palace and returned to Lebanon: CB 129-130, [62]-[63]. For these reasons, the Tribunal did not accept that the applicant was in a homosexual relationship with the prince or one of his friends: CB 130, [63].
Similarly, the Tribunal found that the applicant had given inconsistent evidence about whether he was in contact with Mohammed after he left for Saudi Arabia and that his claim that he was unable to contact him when he returned from Saudi Arabia did not “ring true”: CB 130, [65]-[66].
The Tribunal also found the applicant‘s evidence that there were not any gay night clubs in Lebanon to be inconsistent with the accepted independent country information: CB 130, [67]. Similarly, the Tribunal found his evidence regarding the activities of Helem to be inconsistent with the information the Tribunal obtained from Helem’s website: CB 132, [68].
The Tribunal also found that the applicant had fabricated his claim that he attended a gay night club in Australia: CB 132, [69]. The Tribunal considered the two letters from Mr Messede dated 3 and 8 November 2010, respectively, as well as the letter from Mr Nemer dated 8 November 2010. However, the Tribunal found that the applicant was unable to explain in his oral evidence what gay groups Mr Messede was purportedly involved with or what assistance he had provided to the applicant: CB 132-133, [70]-[71]. Consequently, the Tribunal placed “little weight” on these two letters: CB 133, [71]. The Tribunal also placed “little weight” on the letter from Mr Nemer because it was unable to discuss with him the circumstances in which he met the applicant or how he allegedly knew that the applicant was gay: CB 133, [72].
The Tribunal concluded that the applicant had “fabricated many aspects of his claims” and was not satisfied that he was of homosexual orientation: CB 133, [73]. The Tribunal considered whether the applicant would be imputed with being homosexual by reason of any conduct engaged in by him in Australia, but found there was no real chance that the he would be harmed for this reason if he returned to Lebanon: CB 133, [74]. Accordingly, the Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations: CB 133, [75].
The judicial review application
These proceedings began with a show cause application filed on 9 February 2011. The applicant now relies upon an amended application filed by leave on 1 June 2011. The grounds in that application are:
1.The Tribunal fell into jurisdictional error because its determination that the applicant did not have a well-founded fear of persecution was based on findings that were illogical and unreasonable to the extent that reasonable minds could not differ in respect of those findings.
2.The Tribunal failed to accord procedural fairness to the applicant by not giving him an opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review, as required by s.425(1).
The evidence and submissions
I received as evidence the court book filed on 21 March 2011. I received as an exhibit a bundle of documents before the Tribunal provided by the applicant in support of his claims which were not included in the court book. I also received as an exhibit a transcript of the hearing conducted by the Tribunal.
The applicant’s submissions in relation to ground 1 centre upon the Tribunal’s reasons for finding that the applicant was not in a sexual relationship with the Saudi prince during the period of six months he spent in Saudi Arabia with the prince. The submissions centre in particular on the Tribunal’s finding that the applicant went to Saudi Arabia to work notwithstanding the applicant’s evidence that he travelled on a visa to which a “no work” condition was attached. The applicant contends that the Tribunal’s finding that the applicant travelled to Saudi Arabia for the purposes of employment is perverse.
In relation to ground 2, the applicant contends that the Tribunal breached s.425(1) of the Migration Act 1958 (Cth) (“the Migration Act”) by not putting the applicant on notice that, in contrast to the decision of the delegate, the Tribunal might find that the applicant had not had a sexual relationship with the Saudi prince at all, rather than a finding that he had had not a genuine sexual relationship (in the sense of being unpaid).
In relation to ground 1, the Minister contends that the conclusions reached by the Tribunal were open to it on the material before it.
In relation to ground 2, the Minister contends that there was no breach of s.425. The Minister contends that there was no difference in substance between the reasoning of the delegate and that of the Tribunal in rejecting the applicant’s claimed reason for travelling to Saudi Arabia. The Minister further contends that, in any event, the issue of the reason for the applicant’s travel to Saudi Arabia was discussed with him at the Tribunal hearing. The Minister contends that the applicant was sufficiently on notice that his reason for travel to Saudi Arabia was an issue in the review before the Tribunal.
Consideration
The applicant’s claim for protection was based upon his asserted membership of the particular social group of homosexual men in Lebanon. While the delegate had concerns about the credibility of the applicant’s claims, the delegate’s ultimate reasoning was that the applicant’s fear of persecution in Lebanon as a homosexual was not well-founded. The delegate accepted that the applicant may have sexually experimented with a friend in Lebanon as a young man but was not satisfied that this was a genuine ongoing homosexual relationship (CB 74). In relation to the applicant’s travel to Saudi Arabia, the delegate said:
I find that the applicant’s account of his time in Saudi Arabia and the nature of his relationship with the Saudi emir generally plausible. I accept that the applicant travelled to Saudi Arabia and had sex with his visa sponsor in return for financial and other material support. The applicant’s willingness to trade sex for material reward is not, in itself, evidence of his intrinsic sexual orientation. In my view the relationship between the applicant and his Saudi visa sponsor is most probably closer to that of employer-employee, than of a genuine homosexual relationship.
…
On the information before me I am satisfied that the applicant travelled to Saudi Arabia fundamentally for economic reasons and was prepared to have sex with his visa sponsor in order to extend his stay. I am also satisfied that there was a falling out between the sponsor and the applicant which necessitated the applicant’s return to Lebanon.
The delegate rejected the applicant’s claims of a fear of harm from his family and also rejected the applicant’s claims of fear of harm from the Lebanese state.
The Tribunal reached different conclusions to the delegate on the applicant’s claims in relation to his experiences in Saudi Arabia. The Tribunal found at [60]-[63] of its reasons (CB 129-130):
There were some aspects of the applicant’s evidence which caused the Tribunal some concern. In relation to his relationship with the Saudi prince, the Tribunal notes that the evidence before it points more to the applicant being employed by the prince’s company in Saudi Arabia, rather than travelling there as the prince’s lover. The visa on which the applicant entered Saudi Arabia indicated that he had been hosted by the prince. The work references that were on the immigration file indicated that the applicant had been employed at a resort that was owned by the prince who had hosted or sponsored him to Saudi Arabia. If the applicant was going to Saudi Arabia to work for the prince’s company, the Tribunal would have expected the prince to be his host or sponsor on the visa. The Tribunal acknowledges that the initial visa indicated that there was a no work condition on the visa but also notes that there are other stamps in the applicant’s passport that indicates he was subsequently granted a residents visa. The visa could also mean that the applicant was not permitted to work for anybody other than the prince. The applicant claimed that the references that he had been provided from the Sunset Beach Resort were all fake. And they were given to him as a gift by the prince so that they would assist him to gain employment in the future. However the applicant also claimed that these references were not recognised at least in Beirut and probably outside Saudi Arabia, which means there would be little reason for the prince to provide these references to the applicant. Further one is dated three months after he arrived in Saudi Arabia and another one is dated shortly before he left which would coincide with him finishing his employment and getting a work reference.
Another factor which suggests the applicant was in Saudi Arabia to work was the fact that he had claimed that his family was very strict, they had controlled whether he attended or completed his studies, they would not let him stay out overnight and they closely monitored him. Yet he was claiming that they let him travel to Saudi Arabia with a stranger to apparently do nothing for six months. The applicant’s explanation for his family’s attitude was that he told them he wanted a change of scenery. This appears at odds with the strictness of his family who would want to know what he was doing in Saudi Arabia. However it would be consistent that they would be prepared to let him go to Saudi Arabia for work experience.
There are other aspects of the applicant’s account in Saudi Arabia that cause the Tribunal some concern. The applicant claimed that he went to Saudi Arabia because he was having a sexual relationship with the prince and residing with him. However he left Saudi Arabia because the prince discovered that he was having a sexual relationship with one of the prince’s friends, Khaled. The applicant had described how the prince provided everything for him in Saudi Arabia; he lived in the palace as the prince’s guest. It seems odd that the applicant would put all of this at risk by having a sexual relationship with one of the prince’s friends. Further the applicant’s claim that he didn’t think it would cause a problem, or he didn’t think that the prince would mind did not ring true. In addition the applicant claimed he had a sexual relationship with the prince’s friend at the palace where he was discovered by the prince. The applicant did not provide any reason why they did not go to Khaled’s premises other than his answer that Khaled always came to the palace. Further it was very unfortunate for the applicant that on the first occasion that he had had a sexual relationship with Khaled they were discovered by the prince.
The applicant claimed that when they were discovered the prince immediately expelled him from Saudi Arabia. He appeared quite nonplussed at the hearing when he was asked where he stayed until he left for Lebanon. He claimed that he left immediately. It was put to the applicant that he would not have been able to get on a flight, book tickets, get to the airport and organise his travel immediately. He then stated that he was able to remain at the palace until the next morning when he arranged to leave. For all of the above reasons the Tribunal does not accept that the applicant was in a homosexual relationship with the prince or that he had a sexual relationship with one of the prince’s friends.
The Tribunal concluded at [73] (CB 133):
The Tribunal has found that the applicant has fabricated many aspects of his claims. Although acknowledging the difficulties in assessing whether a person’s sexual orientation, the number of inconsistencies in the applicant’s claims and the number of matters that the Tribunal finds the applicant has fabricated has led it to the conclusion it is not satisfied that the applicant is of homosexual orientation. The Tribunal is not satisfied that the applicant is a homosexual or a homosexual in Lebanon. He therefore is not a member of the particular social group of [homosexuals] in Lebanon. The Tribunal finds that as the applicant is not a member of the particular social group of homosexual men or homosexual men in Lebanon, he does not face a real chance of persecution for this reason and that any fear of persecution is not well founded.
I accept the Minister’s submissions in relation to ground 1.
This ground appears to make reference to the “test” for illogicality propounded by Crennan and Bell JJ in Minister for Immigration v SZMDS.[1] For their Honours, the test for illogicality or irrationality is to ask:
whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. 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.[2]
[1] (2010) 266 ALR 367
[2] Minister for Immigration v SZMDS, op. cit., at [130] per Crennan and Bell JJ
In his written submissions, the applicant takes issue with the Tribunal’s assessment of a particular piece of evidence given by him in support of his claims; namely, the visa which entitled him to travel to Saudi Arabia. However, as Crennan and Bell JJ in SZMDS make clear, not every lapse in logic will give rise to jurisdictional error.[3] Rather, “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.[4]
[3] Minister for Immigration v SZMDS, op. cit., at [130]
[4] Minister for Immigration v SZMDS, op. cit., at [130]
I do not accept that this was a decision in respect of which logical or rational or reasonable minds might not adopt different reasoning. The delegate found that the applicant had experimented sexually before going to Saudi Arabia and further found the applicant’s account of his experiences in Saudi Arabia to be plausible. The Tribunal found that the applicant had fabricated his claims to have engaged in homosexual relationships in both Lebanon and Saudi Arabia: CB 130-132, [63], [66] and [68]. The Tribunal also found that he had fabricated his claim to have visited a gay night club in Australia: CB 132, [69]. Both decision makers were dealing with essentially the same evidence. There was, in my view, nothing “irrational” or “illogical” in the Tribunal finding that it was not satisfied that the applicant was homosexual: CB 133, [73]. A decision is not illogical simply because one conclusion has been preferred to another possible conclusion.[5]
[5] Minister for Immigration v SZMDS, op. cit., at [131]
Further, the assessment of the applicant’s visa was an issue of fact upon which different minds might reach different conclusions.[6] There is no error in the assessment of such evidence where reasonable minds might come to different conclusions and the weight to be given to this evidence was a matter solely for the Tribunal to determine.[7]
[6] Minister for Immigration v SZMDS, op. cit., at [131]
[7] Minister for Immigration v SZJSS (2010) 273 ALR 122 at [35]
Nor was there a lack of “logical connection” between the evidence before the Tribunal and the reasons of the Tribunal in finding that the applicant went to Saudi Arabia for reasons other than his claimed homosexual relationship with the prince.[8] The Tribunal reached this conclusion not only on the basis of the ‘no work condition’ in the applicant’s visa but also by having regard to the other stamps in the applicant’s passport, the work references which he provided and his evidence to the effect that he came from a strict family: CB 129, [60]-[61]. The Tribunal also had regard to the other “concerns” it had about his account of what allegedly occurred in Saudi Arabia, including its rejection of his claim that he would have risked having a sexual relationship with one of the prince’s friends in the palace, the coincidence of being caught by the prince when having sex with Khaled for the first time, and his evidence about when and how he left the palace and returned to Lebanon: CB 129-130, [62]-[63]. I accept that there was “probative evidence” before the Tribunal on which its decision was based.
[8] Cf Minister for Immigration v SZMDS, op. cit., at [51] per Gummow and Kiefel JJ
On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal: namely, that the applicant did not travel to Saudi Arabia to have a homosexual relationship with the prince.[9] Accordingly, the applicant’s description of the Tribunal’s reasoning as being “illogical” or “unreasonable” should be viewed as merely an emphatic way of expressing disagreement with it.[10]
[9] Minister for Immigration v SZMDS, op. cit., at [135]
[10] Minister for Immigration v Eshetu (1999) 197 CLR 611 at 626 [40] per Gleeson CJ and McHugh J
I prefer the applicant’s submissions in relation to ground 2.
In SZBEL[11] the protection visa applicant had claimed to be an Iranian of Muslim background who had converted to Christianity and feared persecution as an apostate. The Minister's delegate refused the application because he was not satisfied that the applicant had “a genuine commitment to Christianity”, and made no mention of the applicant's claim to have told friends in his home town of his conversion or of being called before the captain of his ship to explain this interest.[12]
[11] SZBEL v Minister for Immigration & Anor [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515
[12] Ibid, at [13].
On review, the Tribunal came to the conclusion that it did not believe that the captain of the ship intended to hand the applicant over to the authorities in Iran, and that it did not accept that the applicant was considered by the Iranian authorities to be an apostate or actively involved in Christianity prior to his arrival in Australia.[13]
[13] Ibid, at [20]
The Tribunal's finding was based on three aspects of the applicant's claims which it said collectively led it to find that the claims were not credible.[14]
[14] Ibid, at [18]-[20]
In relation to the Tribunal's finding, the High Court said at [21]:
The detailed exposure by the Tribunal of its reasoning processes was not criticised and represented in itself a praiseworthy method of fulfilling the duty to give reasons. The question is whether the issues to which those reasoning processes were directed had been adequately notified to the appellant.
The Court referred to s.425(1) of the Migration Act, which requires the Tribunal to invite an applicant to appear before it “to give evidence and present arguments relating to the issues arising in relation to the decision under review”.
The Court found that there were two determinative issues about which the Tribunal did not give the applicant a sufficient opportunity to give evidence or make submissions,[15] despite the fact that:
a)nothing in the delegate's reasons indicated that those aspects of his account were in issue; and
b)the Tribunal neither identified those aspects as important issues, nor challenged what the applicant had said, nor said anything itself which would have revealed to him that they were live issues.[16]
[15] Ibid, at [44]
[16] Ibid, at [43]
Describing the reference in s.425(1) to “the issues arising in relation to the decision under review” as important,[17] the Court said, at [34]-[36]:
Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language "arising in relation to the decision under review" is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise all the powers and discretions conferred by the Act on the original decision maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision maker will have given reasons.
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision maker identified as determinative against the applicant.
It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant's favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.
[17] Ibid, at [33]
The Court found that the Tribunal had not accorded the appellant procedural fairness by failing to comply fully with s.425(1).[18]
[18] Ibid, at [44]
The Court went on to make three “further general points”.[19] The first of these was to the effect that the Tribunal may, through its statements or questions during a hearing, “sufficiently indicate to an applicant that everything he or she says in support of the application is in issue”. However, the Court added that “where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.”[20]
[19] Ibid, at [46]-[49]
[20] Ibid, at [47], emphasis in original
Secondly, the Court noted that procedural fairness “does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given”.[21] And finally, referring to a passage from the Full Federal Court judgment in Alphaone,[22] to the effect that procedural fairness would “ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material”,[23] the Court said that “there may yet be cases which would yield to analysis in the terms identified by the Full Court” in that case, and that it “would neither be necessary nor appropriate to now foreclose that possibility”.[24]
[21] Ibid, at [48]
[22] Commissioner of the ACT Revenue v Alphaone (1994) FCR 576
[23] Quote at op cit, [32]
[24] Ibid, at [49]
In the present case, on the basis of the applicant’s account and the delegate’s decision, there were two possibilities arising on the material that the Tribunal needed to consider. The first was that the applicant was a homosexual who might face persecution in Lebanon. The second was that the applicant, while not a homosexual, might face persecution in Lebanon as a perceived homosexual because of his same sex activities. The Minister's delegate found the applicant's account of his time in Saudi Arabia and the nature of his relationship with the Saudi emir to be “generally plausible”, and accepted that he had had sex with the visa sponsor “in return for financial and other material support”. However, this was not “in itself, evidence of his intrinsic sexual orientation” (CB 74).
The finding of the Tribunal in relation to the same evidence was that it “points more to the applicant being employed by the prince's company in Saudi Arabia, rather than travelling there as the prince's lover” (CB 129 [60]).
The Tribunal's interpretation of the evidence was fundamentally different to that of the delegate. On the delegate's view, the applicant was at least a person who was willing to, and had, engaged in same-sex practices, allowing for the possibility, considered but rejected by the delegate, that he would be persecuted by his family or others in Lebanon as a perceived homosexual if his behaviour became known. The delegate concluded that the applicant’s fears of harm were not well-founded. The Tribunal avoided the need to consider that issue by finding that the applicant had fabricated many aspects of his claims, in particular his claims of same sex activities.
At the hearing, the Tribunal told the applicant that it was going to ask him some questions about his experiences in Lebanon and his reasons for not wanting to return there (transcript “T” 3.17-18). In discussing the trip to Saudi Arabia, the Tribunal asked the applicant whether the work references the prince had given him were genuine (T 16.45 - 17.26), then discussed the trip more at length with questions concerning whether he had been in touch with his Lebanese lover while there, the circumstances surrounding the breakup with the prince and his departure from Saudi Arabia, and what his parents thought about his reasons for going there (T 19.31 - T 24.25).
At no point in its reasons does the Tribunal consider the possibility that the applicant might have been a paid sexual partner of the prince as found by the delegate, nor, did it question the delegate's finding at any time during the hearing or in any correspondence with the applicant. The Tribunal's alternative interpretation, that he was in Saudi Arabia to work as a waiter, was also not put to the applicant. The hearing before the Tribunal was characterised by the straightforward questions asked by the Tribunal and the absence of any indication by the Tribunal that the credibility of his claims, to the extent that they had been accepted by the delegate, were open to question.
On the basis of the delegate's decision, the applicant would have been entitled to assume that it was not in issue that he had engaged in same sex practices with the prince in Saudi Arabia. It follows that the applicant was also entitled to assume that the Tribunal would have considered whether he might be perceived as homosexual if the behaviour became known. Had the Tribunal made the applicant aware that it disagreed with the delegate’s interpretation, the applicant would have been aware that he needed to address that issue in argument and, if possible, evidence at the hearing.
In summary, the applicant's reason for travelling to Saudi Arabia and his activities while there were clearly issues in the review. The applicant was entitled to assume that the issues had been determined by the delegate on the basis that the applicant chose to go to Saudi Arabia as the prince’s companion and had sex with him there for money and other material support. The Tribunal failed to alert him to the fact that these issues remained live in the Tribunal's mind.
As was the case in SZBEL, the Tribunal in this case failed to accord procedural fairness to the applicant by not giving him an opportunity to give evidence and present arguments relating to the actual issues arising in relation to the decision under review, as required by s.425(1).
I conclude that the decision of the Tribunal is vitiated by jurisdictional error. The applicant should receive relief in the form of the constitutional writs of certiorari and mandamus.
I will hear the parties as to costs.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 25 July 2011
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