SZQYU v Minister for Immigration & Anor & SZQYV v Minister for Immigration & Anor
[2012] FMCA 1114
•3 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQYU v MINISTER FOR IMMIGRATION & ANOR and SZQYV v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1114 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decisions – visa – protection visas – refusal. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decisions affected by jurisdictional error by reason that it failed to consider corroborative evidence, failed to consider in one review evidence only adduced in another and failed to satisfy the applicants’ legitimate expectations. ADMINISTRATIVE LAW – Failure to consider evidence. |
| Migration Act 1958, ss.424, 424A, 427, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 |
| Applicant: | SZQYU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2886 of 2011 |
| Applicant: | SZQYV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2887 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 5 November 2012 |
| Date of Last Submission: | 5 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 3 December 2012 |
REPRESENTATION
| Counsel for the Applicants: | Mr J. King |
| Solicitors for the Applicants: | Parish Patience |
| Counsel for the First Respondent: | Mr G. Kennett SC with Mr T. Reilly |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
SYG 2886 of 2011
A writ of certiorari issue directed to the second respondent quashing its decision dated 17 November 2011.
A writ of mandamus issue directed to the second respondent requiring it to determine according to law the application for review dated 15 June 2011.
SYG 2887 of 2011
A writ of certiorari issue directed to the second respondent quashing its decision dated 17 November 2011.
A writ of mandamus issue directed to the second respondent requiring it to determine according to law the application for review dated 15 June 2011.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2886 of 2011
| SZQYU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
SYG 2887 of 2011
| SZQYV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants, who are citizens of Bangladesh, allege that they are in a homosexual relationship. In 2010 they lodged separate applications for protection visas with the Department of Immigration and Citizenship, alleging that they feared persecution in Bangladesh because of their sexual orientation. On 30 May 2011 their applications were refused by a delegate of the first respondent (“Minister”). The applicants then applied to the second respondent (“Tribunal”) for a review of their respective departmental decisions. They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decisions.
In each of these proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the Tribunal’s decisions will be set aside and the matters remitted to be determined according to law.
Background facts
SZQYU first arrived in Australia in December 2006 as the holder of a student visa. He departed Australia for periods in 2007 and 2009 and lodged his application for a protection visa on 6 October 2010.
SZQYV arrived in Australia as a student on 11 July 2007. He applied for protection on 2 August 2010.
Protection visa application – SZQYV
In a statutory declaration declared on 22 November 2010 SZQYV claimed that:
a)he first had sex with a boy when he was fifteen years old. After that, he had sex “with another guy”. He hid his sexuality from his strict Muslim family and from society;
b)his partner, SZQYU, picked him up from the airport when he arrived in Australia. Initially, they lived at SZQYU’s place which the latter shared with other people. They decided later that they needed more privacy and rented their own apartment. Some bills were in his name and some were in SZQYU’s name;
c)he and SZQYU kept their relationship a secret from the Bangladeshi community as their community would not accept it;
d)since arriving in Australia he felt free to have sex with other men. Sometimes when he went to a club he would meet people and have sex; and
e)homosexuality was forbidden in Bangladesh. If he returned and his homosexuality was discovered, he would not be accepted. He might be verbally or physically abused, arrested or even killed by religious people and the police.
SZQYV provided a second statutory declaration which essentially repeated these claims. He also provided, relevantly, various photographs of him and SZQYU and a letter from the ANZ bank stating that the two of them had opened a joint bank account on 19 August 2010.
SZQYV was interviewed by the delegate on 25 November 2010 at which point he also claimed that:
a)when he was fifteen years old he had sex for the first time with a boy in Bangladesh. This was the only relationship he had had in Bangladesh and he did not express his sexuality in any other way;
b)he met SZQYU through a mutual friend in 2005 and they developed a good friendship. Later, SZQYU told him that he was going to apply to study in Australia and suggested that he come too. SZQYV decided to do so. Although he initially planned to return to Bangladesh, he and SZQYU fell in love and he decided to stay in Australia; and
c)he and SZQYU went to the Mardi Gras and regularly attended gay clubs. On one occasion he and SZQYU had sex with a man whom they met while clubbing.
On 24 February 2011 SZQYV submitted a report dated 31 January 2011 by a Dr Paul Andrews, a mental health social worker. In his report Dr Andrews indicated that he had interviewed the applicants on 18 January 2011 and had viewed a compact disc of photographs of them having sex. He also indicated that SZQYV had told him that he had had his first sexual experience with a boy when he was fifteen years old and had had sex with “one other man” in Bangladesh before he came to Australia. SZQYV also told Dr Andrews that he met SZQYU in 2005 (in Bangladesh) and that, while they were physically affectionate and would often kiss, they did not have sex with each other until about three months after his, SZQYV’s, arrival in Australia. Dr Andrews concluded that SZQYV and SZQYU were homosexual and in a homosexual relationship.
Review application – SZQYV
After lodging his review application, SZQYV submitted a statutory declaration declared on 21 July 2011 in which he stated, amongst other things, that he had changed his attitude and appearance since acknowledging his homosexuality and that this could lead to him being harassed in Bangladesh.
SZQYV also submitted the following statutory declarations in support of his review application:
a)a statutory declaration from Md Fazle Rabbi, the applicants’ flatmate. Mr Rabbi claimed that in April 2011 he walked in on the applicants engaging in “sexual activities”. He claimed that because he knew that homosexuality was not accepted by Bangladeshi society or by Islam, he promised the applicants that he would not tell anyone about their relationship;
b)a statutory declaration from Mohammad Sarwar, SZQYU’s work colleague. Mr Sarwar claimed that he had seen the applicants kissing and cuddling each other at work. He claimed that he invited them to his daughter’s birthday party in February 2011 and that, on that occasion, they had disclosed to him that they were in a homosexual relationship; and
c)a statutory declaration from Redoyan Hossain, who claimed to have met the applicants for the first time on 4 July 2011 at a dinner organised by Trikone, a South Indian gay community organisation. He saw them again on 14 July 2011 at a Trikone meeting. Mr Hossain stated that he believed that the applicants were in a genuine homosexual relationship.
At the Tribunal hearing on 4 August 2011 SZQYV submitted photographs of the unit he shared with SZQYU, photographs taken at Mardi Gras in 2011, emails from Trikone and his membership card for a club called the Taxi Club. He also produced the disc of photographs viewed by Dr Andrews but subsequently informed the Tribunal that he did not want its contents to be viewed.
SZQYV made the following additional claims at the hearing:
a)whilst they were in Bangladesh, he and SZQYU touched and kissed. He considered kissing to be sex;
b)after they kissed, he and SZQYU realised that they would have to go abroad to be free to live together so they decided to come to Australia to start a new life;
c)the only sexual experience he had had, apart from his experience with SZQYU and with the boy in Bangladesh when he was fifteen years old, was when he and SZQYU had sex with a man whom they met while clubbing in Australia;
d)he became involved with Trikone about ten months earlier;
e)he did not feel comfortable mixing with the Bangladeshi community in Australia because he felt that he would not be accepted;
f)he and SZQYU chose Mr Rabbi as their flatmate because he was the first person to respond to their notice. He then said that as a Bangladeshi person Mr Rabbi would be more compatible because they ate the same food, had the same lifestyle and “would not have sex with girls”; and
g)he did not seek protection earlier because he and SZQYU were studying and they wanted to see what would happen after they completed their studies. They did not think of applying for protection because they were happy but then realised that they needed to do so if they wanted to stay together.
The Tribunal also took oral evidence from Mr Rabbi.
After discussing the claims made by SZQYV and the evidence before it, the Tribunal found that it was not satisfied that SZQYV was a person to whom Australia had protection obligations the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)SZQYV provided inconsistent evidence about his sexual experiences in Bangladesh. At the departmental interview SZQYV stated that the only sexual relationship/experience he had had in Bangladesh was with a boy when he was fifteen years old. Specifically, he stated that they had sex and that he did not express his sexuality in Bangladesh in any other way. In contrast, Dr Andrews’s report stated that in addition to this experience SZQYV also had sex with “one other man” in Bangladesh and was physically affectionate and often kissed SZQYU before they came to Australia. SZQYV claimed that the “other man” was a reference to SZQYU but the Tribunal did not consider it plausible that SZQYV would refer to him “as another man” rather than by his name, given that SZQYU was said to have been his partner for a number of years and the purpose of the interview with Dr Andrews was to assess their relationship. The Tribunal also considered it significant that Dr Andrews was, in the relevant part of his report, recounting the sexual experiences which SZQYV and SZQYU had had with each other as well as with other men. Further, if SZQYV equating kissing with sex as he claimed, the Tribunal expected that he would have mentioned kissing SZQYU during his interview with the delegate when asked about his sexual experiences in Bangladesh;
b)SZQYV gave no indication in the two statutory declarations he submitted with his protection visa application that he and SZQYU shared any sexual experiences in Bangladesh. In those statutory declarations SZQYV stated that he met SZQYU in Bangladesh and referred to their friendship but gave no indication that they had had any physical contact prior to coming to Australia. Given that SZQYV also stated in his statutory declarations that he had had sex with a boy and with “another guy”, the Tribunal expected that, if he equated kissing with sex and had kissed SZQYU in Bangladesh, SZQYV would have mentioned this in his statutory declarations;
c)SZQYV also provided inconsistent evidence about his sexual experiences in Australia. SZQYV stated in one of the statutory declarations submitted in support of his protection visa application that he felt free to have sex with other men in Australia and that he met people at clubs and had sex. In the Tribunal’s view, this implied that he had had sex with more than a number of men in Australia in addition to SZQYU. However, at the hearing SZQYV said that he had only had sex with one person other than SZQYU, a man whom he and SZQYU met while at a nightclub. In his post-hearing comments SZQYV did not explain this contradiction;
d)SZQYV claimed that he feared his homosexuality would be discovered in Bangladesh and that he had had little contact with the Bangladeshi community in Australia because he did not feel accepted due to his homosexuality. In the circumstances, the Tribunal did not find it credible that SZQYV would choose another Bangladeshi to share his flat with SZQYU. The Tribunal did not consider it plausible that SZQYV could not have found a compatible flatmate who was not Bangladeshi and would risk his homosexuality being discovered by a Bangladeshi person if he feared persecution as he claimed;
e)SZQYV provided inconsistent evidence about his intentions when leaving Bangladesh. During his interview with the delegate, SZQYV stated that he came to Australia to study to improve his job prospects in Bangladesh and that it was only in 2008 that he and SZQYU decided to stay in Australia permanently to start a new life together. However, at the Tribunal hearing SZQYV said that he came to Australia because homosexuality was permitted here and he wanted to start a new life with SZQYU. He then appeared to change his evidence when questioned by the Tribunal about why he did not apply for protection sooner, saying that he and SZQYU were studying and were “going to see” what would happen after they finished their studies;
f)if SZQYV came to Australia to start a new life with SZQYU then it was not credible that he would have delayed seeking protection for three years. SZQYV explained that he and SZQYU were “going to see” what would happen after they completed their studies but it was not clear what he was waiting “to see”. Indeed, there was nothing in SZQYV’s evidence to suggest that the situation in Bangladesh had changed while he was in Australia. The Tribunal found that SZQYV’s delay in seeking protection was not consistent with his claimed fear of persecution in Bangladesh for reasons of his homosexuality;
g)the Tribunal noted that SZQYV presented confidently at the hearing, had studied and lived in Australia for years and had elected not to have an interpreter during his interview with the delegate or at the hearing. Further, at no point did he indicate, nor did it appear to the Tribunal, that he was having difficulty understanding or communicating. For these reasons, the Tribunal did not accept that the inconsistencies in SZQYV’s evidence could be attributed to his shyness or lack of English language skills;
h)having found that SZQYV was not a credible witness, the Tribunal gave no weight to the statutory declarations made by Mr Rabbi, Mr Sarwar and Mr Hossain or to Mr Rabbi’s testimony at the hearing. In relation to the report by Dr Andrews, the Tribunal noted that it had had the opportunity to take detailed oral evidence from SZQYV since that report was prepared. The Tribunal found that Dr Andrews’s report did not overcome its concerns about SZQYV’s evidence. As for the documentation and photographs, the Tribunal noted that while they supported an assertion that SZQYV and SZQYU lived together, they did not indicate that they were or had been in a homosexual relationship;
i)the Tribunal accepted that SZQYV attended the Mardi Gras, was a member of the Taxi Club, may have attended other gay clubs in Australia and may have attended events organised by Trikone. The Tribunal also accepted that SZQYV opened a joint bank account with SZQYU after his protection visa application was rejected by the delegate. However, due to SZQYV’s lack of credibility, the Tribunal was not satisfied that this conduct was otherwise than for the purpose of strengthening his claim to be a refugee. The Tribunal therefore disregarded it;
j)in light of these matters, the Tribunal did not accept that SZQYV was homosexual or that he had had sex, sexual experiences or a homosexual relationship with SZQYU or any other males in Bangladesh or in Australia. Further, the Tribunal did not accept that SZQYV’s attitude or appearance had changed for reasons of his homosexuality or that he would be perceived as a homosexual if he returned to Bangladesh. The Tribunal concluded that there was not a real chance that he would be persecuted for reasons of his sexuality were he to return to Bangladesh.
Protection visa application – SZQYU
SZQYU made the following claims in his protection visa application and in a statutory declaration declared on 28 September 2010:
a)he realised that he was not interested in women when, at the age of seventeen, he entered into his first homosexual relationship. That relationship lasted three months;
b)he met his partner, SZQYV, through a mutual friend (while they were in Bangladesh). They had lived together in Australia since SZQYV’s arrival in July 2007;
c)his Muslim family did not accept gay people and would force him to marry if he returned;
d)homosexuality was illegal in Bangladesh. He hid his homosexuality from his family and the community because he was afraid that they would kill him or mistreat him if they found out;
e)he and SZQYV would be harmed by religious people and other Muslims if they returned to Bangladesh;
f)there was no work for homosexual people in Bangladesh; and
g)he had changed his behaviour and dress since coming to Australia.
SZQYU submitted various documents with his protection visa application, including bank statements and bills, which was said to evidence his relationship with SZQYV. Also included was a statement from SZQYV, essentially confirming their relationship. On 23 November 2010 SZQYU also provided photographs of him and SZQYV at various gay events in Sydney.
SZQYU was interviewed by a delegate on 25 November 2010. During that interview he relevantly claimed that he met SZQYV in 2005 when he (SZQYU) was nineteen or twenty years old. He later claimed that he had his first homosexual relationship when he was seventeen years old and that he left this boy two or three months later when he met SZQYV.
SZQYU also submitted Dr Andrews’s report of 31 January 2011.
Review application – SZQYU
SZQYU’s review application was supported by the statutory declarations of Mr Rabbi, Mr Sarwar and Mr Hossain.
At his Tribunal hearing on 4 August 2011 (which was conducted after SZQYV’s hearing), SZQYU made the following additional claims:
a)he and SZQYV touched and kissed each other on only one occasion in Bangladesh. Although they were “lightly” attracted to each other at the time, it was only after SZQYV came to Australia that their relationship flourished;
b)SZQYV studied at Dhanmondi in Bangladesh. He did not work;
c)he had only had two sexual experiences/relationships while in Bangladesh: with a boy his age when he was seventeen years old and with SZQYV;
d)he avoided members of the Bangladeshi community in Australia because homosexuality was deeply unacceptable. Also, if his relationship with SZQYV were discovered, word would get back to his family in Bangladesh; and
e)Mr Hossain, Mr Rabbi and Mr Sarwar were all very close to him and were not involved with the Bangladeshi community in Australia.
The Tribunal found that it was not satisfied that SZQYU was a person to whom Australia had protection obligations under the Convention. The Tribunal’s decision in SZQYU’s case was based on the following findings and reasons:
a)it appeared to the Tribunal that on numerous occasions SZQYU was giving rehearsed answers to the Tribunal’s questions rather then relaying actual personal experiences. Further, SZQYU responded in a vague manner to certain questions about experiences and events in his life, such as his attraction to males and his first sexual relationship when he was seventeen years old. It did not appear to the Tribunal that SZQYU was uncomfortable about giving such evidence but rather that he was not describing experiences and events he had lived;
b)SZQYU claimed that SZQYV did not work in Bangladesh as he had been a student at Dhanmondi College. This was inconsistent with the evidence provided by SZQYV at his own Tribunal hearing, which was that he had studied at Jagannath College until October 2005 and that when he knew SZQYU in Bangladesh, he had worked. SZQYU said, by way of explanation, that he had never asked SZQYV about his studies or employment and had simply assumed that SZQYV had studied at Dhanmondi College because that was where their mutual friend was studying. However, the Tribunal did not consider this explanation credible because, if it were true, SZQYU would have said something to that effect; instead, he testified in a direct manner without any hint of doubt or uncertainty that SZQYV had attended Dhanmondi College and had not been working during the time they knew each other in Bangladesh. The Tribunal also found it hard to believe that SZQYU had never at any time during their acquaintance asked SZQYV about his studies or employment or that SZQYV himself had never mentioned it in their conversations;
c)SZQYU claimed that he met SZQYV in October 2005 which, according to his date of birth, meant that he was about twenty years old at the time. However, he also claimed that he entered into his first homosexual relationship when he was seventeen years old and that that relationship ended two to three months later when he met SZQYV. That evidence therefore indicated that he met SZQYV when he was about seventeen years old. Given SZQYU’s claim that he had only had two sexual experiences and/or relationships in Bangladesh – namely with the boy and SZQYV – the Tribunal expected SZQYU to have a clear recollection as to whether he met the boy and SZQYV at about the same time or three years apart;
d)SZQYU described the nature of his relationship with SZQYV while they were in Bangladesh as more than a friendship. He said that they were “lightly” but not deeply attracted to each other and had touched and kissed on one occasion only. This was inconsistent with what SZQYU and SZQYV told Dr Andrews, i.e. that they were physically affectionate in Bangladesh and often kissed;
e)SZQYU claimed that he avoided contact with members of the Bangladeshi community in Australia because he feared that his homosexuality would be discovered. However, the Tribunal found that SZQYU’s actions were inconsistent with this fear in that he had disclosed his homosexuality and homosexual relationship with SZQYV to a Bangladeshi member of Trikone (Mr Hossain) and to a work colleague (Mr Sarwar) and had also secured a Bangladeshi flatmate (Mr Rabbi). The Tribunal did not consider SZQYU’s explanation that these men were not involved with the community and were very close to him believable because:
i)SZQYU’s evidence was that he did not know Mr Rabbi before he became his flatmate and thus SZQYU would not have known the extent of Mr Rabbi’s involvement with the Bangladeshi community;
ii)Mr Hossain stated in his statutory declaration that he had only met SZQYU and SZQYV on two occasions in July 2011; and
iii)Mr Sarwar indicated that he had known SZQYU for four years but did not describe himself as a friend or indicate that they had any social contact before he invited SZQYU to his daughter’s birthday party in February 2011;
f)the Tribunal found that the above matters, when considered collectively, indicated that SZQYU was not a credible witness. Consequently, the Tribunal gave no weight to the statutory declarations made by Mr Rabbi, Mr Sarwar and Mr Hossain;
g)in relation to the report by Dr Andrews, the Tribunal noted that it had taken detailed oral evidence from SZQYU since that report had been prepared and found that Dr Andrews’s earlier assessment did not overcome its concerns about SZQYU’s evidence. As for the documentary and photographic evidence, the Tribunal noted that while they indicated that SZQYU and SZQYV lived together, they did not indicate that they were or had been in a homosexual relationship;
h)the Tribunal accepted that SZQYU was a member of the Taxi Club, that he and SZQYV had opened a joint bank account and that SZQYU had attended Mardi Gras, events organised by Trikone and various gay clubs. However, due to his lack of credibility, the Tribunal was not satisfied that SZQYU had engaged in that conduct otherwise than for the purpose of strengthening his claim to be a refugee. The Tribunal therefore disregarded that conduct; and
i)in light of these matters, the Tribunal did not accept that SZQYU was homosexual or that he had had sex, sexual experiences or a homosexual relationship with SZQYV or any other males in Bangladesh or in Australia. Further, the Tribunal did not accept that SZQYU’s attitude or appearance had changed for reasons of his homosexuality or that he would be perceived as homosexual if he returned to Bangladesh. The Tribunal concluded that there was not a real chance that he would be persecuted for reasons of his sexuality were he to return to Bangladesh.
Proceedings in this Court
In his amended application SZQYV alleged:
1.The Tribunal committed jurisdictional error by failing to consider the applicant’s evidence.
Particulars
(a)In support of his application, the applicant relied on:
a. statutory declarations of Mr Rabbi, Mr Sarwar and Mr Redoyan Hossain (corroborative evidence); and
b. oral evidence of Mr Rabbi at SZQYU’s [sic] hearing (direct evidence).
(b)The Tribunal did not conclude that the applicant had fabricated his claims, or that his claims were so incredible that no amount of corroborative evidence could redeem them.
(c)It would not have been open to the Tribunal to reach the conclusions in paragraph (b).
(d)The provenance of the corroborative evidence was not reasonably open to question.
(e)In those circumstances, the Tribunal erred in failing to consider the corroborative evidence.
(f)Further and in the alternative, the Tribunal erred in failing to consider the direct evidence.
2.The Tribunal committed jurisdictional error by failing to observe the requirements of procedural fairness.
Particulars
(a)In or about August 2008, the Tribunal published a document titled ‘Guidance on the Assessment of Credibility’ (Guidelines).
(b)The applicant’s response to the Tribunal’s invitation under s 424A expressly relied on the terms of the Guidelines, including paragraph 5.1.
(c)Insofar as the Tribunal published the Guidelines and the applicant expressly relied on the Guidelines to the knowledge of the Tribunal, the applicant had a legitimate expectation that the Guidelines would be followed and applied by the Tribunal.
(d)The Tribunal departed from the terms of paragraphs 5.1 and 8.5 of the Guidelines by:
i. failing to consider the statutory declarations made by Mr Rabbi, Mr Sarwar and Mr Redoyan Hossain;
ii. failing to consider the oral evidence of Mr Rabbi; and
iii. failing to provide clear reasons for not accepting the conclusions or opinion of Dr Andrews that the applicant was in a homosexual relationship.
(e)The Tribunal did not notify the applicant of its proposed departure from the Guidelines.
(f)In so doing, the Tribunal failed to observe the requirements of procedural fairness.
3.The Tribunal committed jurisdictional error by failing to conduct its review in accordance with the rule of law, the principle of legality and the principle of equality before the law.
Particulars
(a)The Tribunal was under a statutory duty, in reviewing a decision, to act according to substantial justice and the merits of the case: s 420(2)(b), Migration Act 1958 (Cth).
(b)The duty to act according to substantial justice and the merits of the case required the Tribunal to adhere to the rule of law, the principle of legality and the principle of equality before the law.
(c)In the alternative, neither s 414 nor any other provision of the Act authorised the Tribunal to review decisions in a manner inconsistent with the rule of law, the principle of legality or the principle of equality before the law.
(d)Insofar as the Tribunal refused to accept the applicant’s claims unless he satisfied the Tribunal as to his sexual orientation, the Tribunal failed to adhere to the rule of law, the principle of legality and the principle of equality before the law.
4. The Tribunal’s decision was unreasonable.
Particulars
(a)Notwithstanding the independent evidence provided by the witnesses and the independent expert who has viewed the explicit photographs of the sexual relationship between the applicant and his partner [the other applicant] and on the basis of which together will [sic] other evidence before him he concluded that the applicant is a homosexual, the Tribunal found the applicant is not homosexual.
(b)The Tribunal misconstrued the evidence provided by the applicant and [the other applicant].
SZQYU’s amended application was pleaded in relevantly identical terms with the exception of para.1(a) which was expressed as follows:
1.The Tribunal committed jurisdictional error by failing to consider the applicant’s evidence.
Particulars
(a)In support of his application, the applicant relied on:
a. a statutory declaration of Mr Rabbi (corroborative evidence); and
b. oral evidence of Mr Rabbi at SZQYV’s hearing (direct evidence).
Ground 1 – failure to consider corroborative evidence
Applicants’ submissions
Corroborative evidence accorded “no weight”
It was alleged in both cases that the Tribunal had failed to consider Mr Rabbi’s statutory declaration and oral evidence. In SZQYV’s case, it was also said that the Tribunal had failed to consider the statutory declarations of Messrs Sarwar and Hossain.
Mr Rabbi said that he had seen the applicants “on the bed without clothes and engaged in sexual activities” and Mr Sarwar said that he had seen the applicants being physically affectionate. The applicants submitted that, particularly in Mr Rabbi’s case, this was first-hand evidence corroborative of their claim to be in a homosexual relationship. They said that the Tribunal gave no weight to that evidence, or to the corroboration also provided by Mr Hossain, because it found that they, the applicants, were not credible.
The applicants submitted that before the Tribunal could decide to give no weight to such corroborative evidence it had to do more than say that they were not credible witnesses. They submitted, by reference to WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568 at 574-575 [25]-[27], that a decision to give corroborative evidence no weight was not available unless their credibility had “been destroyed by stark findings of untruthfulness” or where there was “cogent material to support a conclusion that [they had] lied”. The essence of the applicants’ argument was that their evidence had not been shown to be so deficient, unbelievable or untruthful that their corroborative material should have been dismissed in the way the Tribunal dismissed it.
The applicants also submitted that the Tribunal rejected Mr Rabbi’s evidence out of hand without determining its credibility. In this regard they submitted that there was nothing in the Tribunal’s reasons to suggest that the “purportedly corroborative material itself [was] found, on probative grounds, to be worthless”: WAIJ at 574-575 [27]. They said that before rejecting what Mr Rabbi said, the Tribunal should have assessed the credibility of that evidence in its own right and not just in the context of their evidence. Further in this connection the applicants submitted that Mr Rabbi’s evidence was unchallenged and that it had not been put to him at the Tribunal hearing that he had fabricated or was mistaken about any part of his evidence.
Was Mr Rabbi’s oral evidence in one review also evidence in the other?
SZQYU submitted that in his review the Tribunal erred in a further sense because it did not take Mr Rabbi’s oral evidence into account, apparently because it was given at SZQYV’s hearing and not also at his hearing. It was submitted that this evidence was information which the Tribunal received pursuant to s.424 of the Act and which it had to take into account in the context of both cases, not just SZQYV’s. Section 424 relevantly provides:
424 Tribunal may seek information
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
SZQYU submitted that as the findings in both cases were inextricably linked, in that if the Tribunal found that either he or SZQYV had a well-founded fear of persecution for a Convention reason by reason of their homosexual relationship, then the same finding would have to be made in both cases. It was submitted that because of this reality, in both cases Mr Rabbi’s oral evidence was information governed by s.424 and thus information to which the Tribunal was required to have regard in his case as well as in SZQYV’s.
It is to be noted that the issue as argued differed from what had been alleged in SZQYU’s amended application.
Should the two reviews have been combined?
SZQYU also submitted that the failure to take Mr Rabbi’s oral evidence into account when deciding his review occurred because the Tribunal should have, but failed to, combine the two reviews pursuant to s.427(2) of the Act which relevantly provides:
427 Powers of the Refugee Review Tribunal etc.
…
(2) The Tribunal must combine the reviews of 2 or more RRT-reviewable decisions made in respect of the same non-citizen.
Consideration
Corroborative evidence accorded “no weight”
The applicants’ argument that the Tribunal erred in its treatment of the purportedly corroborative evidence raises three issues. The first is whether corroborative material should be treated as a particular category of evidence and treated in some way differently from other evidence. The second and third questions are: in what way did the Tribunal treat the purportedly corroborative evidence and did this disclose error?
In WAIJ, the court was concerned with whether the Tribunal had accorded WAIJ natural justice, in the sense of “acting judicially”, when it decided to give no weight to evidence purportedly corroborative of her claims because it had “problems” with her evidence which the purported corroborative evidence did not “overcome”. The majority said:
To act “judicially” and according to law the tribunal must carry out its decision-making function rationally and reasonably and not arbitrarily. (at 573 [21] per Lee and Moore JJ) (reference omitted)
Their Honours continued:
A determination based on illogical or irrational findings or inferences of fact will be shown to be a decision not supported by reason and to have no better foundation than an arbitrary selection of a result. It is because it is based upon such findings that the determination is an unreasoned decision. Such findings or inferences of fact become part of, and are not distinguishable from, the decision subject to judicial review. ... A review culminating in such a decision would be a process lacking practical fairness or justice and would not be a process conducted according to law. (at 574 [22]) (emphasis included)
To determine whether the Tribunal decision they were considering was affected in this way, their Honours examined a number of the intermediate findings of fact on which Tribunal’s ultimate decision was based. Amongst them was the Tribunal’s finding that purportedly corroborative documents did “not overcome the problems I have with the applicant’s evidence”. In that connection, their Honours said:
Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material: see S20/2002 at [49] per McHugh and Gummow JJ. Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the tribunal in assessing the credibility of an applicant’s claims. However, it will not be open to the tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225 at [82]–[85] per McHugh, Gummow and Hayne JJ. (at 574-575 [27])
Their Honours disagreed with many of the Tribunal’s factual findings on various aspects of WAIJ’s claims and concluded that the evidence on which those findings were based did not disprove her allegations or show them to have been so contradicted by commonsense that they could be dismissed. Their Honours said:
The tribunal engaged in speculation as to what it thought would have been a more likely course of events but it had no basis on which it could say that the events described by the appellant, and corroborated in the documents, could not have occurred. The tribunal may not have been persuaded that the events had occurred but the tribunal had no material on which it could convert such a doubt into a positive finding that the events had not taken place. (at 577 [40])
Their Honours concluded that the evidence in question was not strong enough for the Tribunal to have concluded that it could disregard evidence corroborative of WAIJ’s claims, they saying that in its
… state of non-persuasion the tribunal remained bound to consider the corroborative material provided by the documents, before it could determine whether it was possible that those events had occurred as claimed. (at 577 [39])
It was also found that the Tribunal’s analysis of the corroborative material was flawed.
Having reviewed the evidence before the Tribunal and the observations and findings which the Tribunal made in relation to it, their Honours found in WAIJ that it had not been open to the Tribunal, acting judicially, to disregard documents it was otherwise bound to consider because it surmised that they could have been fabricated. Their Honours concluded that this amounted to a denial of procedural fairness which resulted in the Tribunal’s decision being affected by jurisdictional error. That is to say, the finding on the jurisdictional fact, whether or not the Tribunal was satisfied that WAIJ met the criteria for the grant of a protection visa, was erroneous because it was based on an intermediate finding concerning the weight to be given to the corroborative evidence which was logically flawed.
However, the statement in WAIJ at 574 [22], that a “determination based on illogical or irrational findings or inferences of fact will be shown to be a decision not supported by reason”, has subsequently been displaced by the reasons of Heydon J and Bell and Crennan JJ in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611. Questions of illogicality and irrationality are not relevant to intermediate findings of fact: Minister for Immigration & Citizenship v SZNPG (2010) 115 ALD 303 at 307-308 [20], but to the relevant jurisdictional fact: SZMDS at 647-650 [130]-[136]; SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 at 7 [15] per Rares J and at 23 [85] per McKerracher J, Reeves J agreeing. Consequently, it is no longer open to hold, as it was in WAIJ, that the Tribunal is guilty of jurisdictional error because a reviewing court disagrees with the logic by which it arrived at the intermediate findings of fact on which its decision was based or the weight it has given to particular evidence. As identified in SZMDS (at 632 [78], 649 [135]), the question is whether, on the probative evidence before the Tribunal, a logical or rational decision-maker could have come to the decision which the Tribunal reached.
Nevertheless, the Tribunal may not fail to have regard to evidence because it finds other, contradictory, evidence convincing. The Tribunal must consider an applicant’s claims in light of the facts as disclosed by the evidence in its possession at the time of deciding whether it is satisfied that the applicant meets the criteria for the grant of a protection visa. If the Tribunal fails to consider evidence which might have had a bearing on the outcome of the review, in that the evidence was not “so insignificant that the failure to take it into account could not have materially affected the decision”, and where such failure could possibly have deprived the applicant of a successful outcome to his or her application for review because the evidence might have persuaded the Tribunal that it was satisfied that the applicant had a well-founded fear of Convention-related persecution, then that amounts to a failure to conduct the review in the manner required by the Act and is properly characterised as a jurisdictional error: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Gibbs CJ at 30-31, Mason J at 40, 44-45 and Dawson J at 71; Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82]; Singh v Minister for Immigration & Multicultural Affairs (2001) 183 ALR 531 at 542 [49]; Lu v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 141 FCR 346 at 360-361 [64]-[69] per Sackville J, Black CJ and Sundberg J agreeing; VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [73]-[83]; SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389 at [72]; LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 289 ALR 244 at 274 [145]. In this regard, corroborative evidence is no different from any other evidence.
The error discerned in WAIJ was that the Tribunal appeared “to have considered that it could disregard documents that it was otherwise bound to consider if it surmised that it was possible that the documents could have been fabricated” (at 580 [52]). By this the court meant that the Tribunal had given no weight to the documents in question, not that they had not been considered at all. Thus that finding is similar to cases concerned with whether the Tribunal has given “proper, genuine and realistic consideration” to the evidence before it. As was said in that connection in Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164:
The Minister contended that the weight to be accorded to the letters, and the factual matters to which they gave rise, were entirely matters for the Tribunal as they concerned the merits of the application. It was submitted that the Federal Court employed the language of “proper, genuine and realistic consideration” to register the Court’s response to a weighing of the evidence with which the Court disagreed. This, it was said, does not amount to jurisdictional error of the kind discussed by this Court in Minister for Immigration and Citizenship v SZMDS.
The Minister’s submissions on the letters issue must be accepted as on a fair reading of the whole of the Tribunal’s decision, when the Tribunal said that it gave the letters “no weight” it was referring to the fact that it did not accept the letters as evidencing that the first respondent was in some danger from the Maoists in Kathmandu. This was in large part because of social and political changes which had occurred since the letters were written. The evidence given by the first respondent, including his evidence about the effect of those changes, undermined his claim of political and social activism, thereby contradicting the support which the letters gave to his assertion that Maoists were continuing to pursue him in Kathmandu. The weighing of various pieces of evidence is a matter for the Tribunal. (at 176 [32]-[33] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) (references omitted)
So it was here. In both of these cases the Tribunal summarised the statutory declarations made by the three corroborative witnesses and in SZQYV’s case it also referred to Mr Rabbi’s oral evidence. These references, together with the Tribunal’s explicit further reference to this evidence in its reasons for decision in the relevant decision records, satisfy me that it considered the purportedly corroborative evidence. The fact that that evidence was dismissed in the following terms:
As the Tribunal has found that the applicant was not a credible witness it gives no weight to the statutory declarations made by Mr Rabbi, Mr Sarwar and Mr Redoyan Hossain (SZQYU)
and
As the Tribunal has found that the applicant was not a credible witness, the Tribunal gives no weight to the statutory declarations made by Mr Rabbi, Mr Sarwar, and Mr Redoyan Hossain, and Mr Rabbi’s testimony (SZQYV)
does not alter this. If the Tribunal gives consideration to particular evidence, including corroborative evidence, but dismisses it as being of no value, without more, no reviewable error is disclosed. As the High Court said in SZJSS, the weighing of the evidence is a matter for the Tribunal. To the extent that the law is stated differently in WAIJ, it has been superseded by SZJSS.
Further, as Gleeson CJ observed in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1 at 5 [14], although decision-makers often express their reasons sequentially, that does not mean that issues are considered in isolation from each other. As in Applicant S20/2002, in these cases I do not think that the Tribunal intended to convey in its reasons that it had made up its mind about the applicants’ evidence before taking account of the evidence of the witnesses said to corroborate them. But, having decided against the applicants on the totality of the evidence, the only finding to be made in relation to the corroborative witnesses was that their evidence was wrong or unreliable. This is what the Tribunal implicitly did when it said that it accorded that evidence no weight. As long as the Tribunal considered the evidence, the weight it was given was a matter for it.
The applicants also submitted that the Tribunal should have assessed the credibility of the corroborative evidence in its own right rather than in the context of the entirety of the applicants’ cases. However, that would be to do the very thing which the applicants complain the Tribunal did by, they say, considering the credibility of their evidence before considering the purported corroboration. Evidence of that sort cannot be considered in a vacuum and the credibility of one witness’s account may depend very significantly on the other evidence in the case. The Tribunal’s guidelines on the assessment of the credibility of evidence, relied on by the applicants in another context, recognise this at para.2.2.
The final aspect of the first aspect of the first allegation is the Browne v Dunne (1893) 6 R 67 complaint that at the Tribunal hearing in SZQYV’s case it was not put to Mr Rabbi that he had fabricated or was mistaken about any part of his evidence. However, as the Tribunal is an inquisitorial body the rule in Browne v Dunne does not apply to its hearings: Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at 449-450 [55]-[57] per Gummow and Heydon JJ, Gleeson CJ agreeing; Soliman v University of Technology, Sydney [2012] FCAFC 146 at [22].
Was Mr Rabbi’s oral evidence in one review also evidence in the other?
The fact that the two reviews were inextricably linked, in that success or failure by one applicant would lead to equivalent success or failure by the other, should not obscure the fact that they were separate reviews. In support of SZQYU’s submission that the Tribunal should have taken Mr Rabbi’s oral evidence given at SZQYV’s hearing into consideration in his review as well, he referred to s.424 of the Act. However, the relevant terms of that section show that the argument is misconceived. The section says that in “conducting the review, the Tribunal may get any information that it considers relevant” and if it does so, it must have regard to that information. It refers to information obtained when conducting the review in question, not information obtained when conducting a different review. Were it otherwise, the Tribunal’s operations would be a practical impossibility.
Should the two reviews have been combined?
Similarly, the terms of the statutory provision relied on by the applicant to say that their reviews should have been combined provides no basis for that submission. Section 427 relevantly states that the Tribunal “must combine the reviews of 2 or more RRT-reviewable decisions made in respect of the same non-citizen”. That is not these cases, which are two reviews in respect of different non-citizens.
Ground 2 – Tribunal’s failure to comply with its published guidelines
In their responses to notices which the Tribunal gave them pursuant to s.424A of the Act, each applicant said:
In August 2008, the Migration Review Tribunal-Refugee Review Tribunal in a publication entitled “the Guidance on the Assessment of Credibility” accepted that contradictions, inconsistencies and omissions may arise in the evidence before the Tribunal. It noted that the Tribunal should consider the overall consistency and coherence in the applicant’s account.
This was a reference to paras.5.1 and 5.2 of the Tribunal’s guidelines.
In these proceedings, the applicants submitted that once the Tribunal became aware that they would rely on the guidelines, procedural fairness required it to not depart from them. The applicants went on to submit that, without notice to them, the Tribunal had departed from the guidelines’ guidance on the assessment of credibility in relation to expert evidence and had thereby failed to accord them procedural fairness. They referred in this regard to para.8.5 of the guidelines which stated:
It is the Tribunal’s task, as the decision-maker, to weigh each piece of evidence and make appropriate findings of fact. The Tribunal should not substitute its own lay opinion for that of a reliable expert. If the Tribunal does not accept the conclusions or opinion of an expert or the information upon which the opinion is based, the Tribunal must provide clear reasons for the basis of the decision not to accept the evidence.
The applicants submitted that the Tribunal chose not to accept Dr Andrews’s opinion that they were in a homosexual relationship with each other notwithstanding that there was never any question that Dr Andrews was qualified to provide that opinion and in circumstances where there was no evidence of any other qualified expert contradicting him. The applicants submitted that because they had expressly relied on the Tribunal’s guidelines which required it to “not substitute its own lay opinion for that of a reliable expert”, fairness required it to give them notice of its intention to do just that.
Consideration
The applicants’ arguments appear to rely on the doctrine of legitimate expectation. Although the Minister formally submitted that that concept had no place in the law of procedural fairness, the statement of the law in Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 has not been overruled and so that particular submission must be rejected.
Nevertheless, in light of recent decisions it is difficult to see what work the concept of legitimate expectation has to do. It has been criticised as tending to direct attention to the merits of an administrative decision rather than to the interests which the exercise of power is apt to affect: South Australia v O’Shea (1987) 163 CLR 378 at 411 per Brennan J, as a doctrine for which there is no need: Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 27-28 [81]-[83] per McHugh and Gummow JJ, and as an unfortunate expression which should be disregarded: Plaintiff S10/2011 v Minister for Immigration & Citizenship (2012) 86 ALJR 1019 at 1033 [65] per Gummow, Hayne, Crennan and Bell JJ. In circumstances where the rules of procedural fairness apply to the exercise of a statutory power, the concept of legitimate expectation may usefully focus attention on the content of procedural fairness in a particular case but the question nevertheless is, what does fairness require in all the circumstances of the case: Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam at 27-28 [81]-[83] per McHugh and Gummow JJ; Plaintiff S10/2011 at 1033 [65] per Gummow, Hayne, Crennan and Bell JJ.
In these cases the applicants were entitled to procedural fairness, not to have their unprompted subjective expectations satisfied. Relevantly, procedural fairness required the Tribunal, when making intermediate findings of fact, such as whether the applicants were in the relationship they alleged, to make findings which were open on the evidence. The applicants did not submit that the Tribunal had failed to meet that standard. Rather, they submitted that Dr Andrews’s opinion should have been accepted because his was the only evidence purporting to be expert evidence. However, the Tribunal had before it evidence and information which had not been before Dr Andrews. In such circumstances, the Tribunal did not err when it took all the relevant information into account and concluded that Dr Andrews’s opinion was not persuasive.
Further in this regard, the applicants’ submission implied that the guidelines tied the Tribunal’s hands regardless of events which occurred after Dr Andrews’s opinion was expressed. They do not have that effect. Although the Tribunal would be very cautious about reaching an opinion different from that of an accepted expert if it had no more information than had been before the expert, if the facts have become clearer or fuller over time, the Tribunal is not required to accept an opinion which it believes has been superseded.
Ground 3
Ground three was not pressed.
Ground 4 – Unreasonableness
The applicants submitted that in light of the evidence of Dr Andrews and Messrs Rabbi and Sarwar, the Tribunal’s finding that the applicants were not homosexual was “Wednesbury unreasonable”. In this regard they submitted that the Tribunal unreasonably failed to give adequate weight to Dr Andrews’s opinion and to the evidence of Mr Rabbi and Mr Sarwar. The applicants submitted that their claims could not be disbelieved unless the Tribunal found that they and Messrs Rabbi and Sarwar had been lying and that Dr Andrews’s opinion was incorrect. It was further submitted that the Tribunal did not express its views of the applicants’ credibility with such confidence that it should not have asked itself whether its opinion might have been wrong.
Consideration
Manifest unreasonableness of the sort considered in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 is relevant only to decision-makers’ discretionary decisions: Applicant S20/2002 per McHugh and Gummow JJ at 18 [73] and [74] and Kirby J at 32 [142]. However, the matters which the applicants raised in the context of manifest unreasonableness were factual findings, not discretionary decisions, and so the relevant question was not whether they were reasonable in the Wednesbury sense but whether there was evidence to support them. The applicants did not submit that the findings were not open on the evidence.
As to the remaining point raised by the applicants, although a decision-maker who is uncertain of a matter of fact and makes a finding on the question should entertain the possibility that his or her conclusion might be wrong, this is not necessary if the decision-maker is in no real doubt on the question: Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220. In this case the Tribunal’s conclusion on the applicants’ credit did not demonstrate the sort of uncertainty which might have required it to ask itself whether it was wrong. As the summary of the Tribunal’s findings in both matters set out earlier in these reasons reveals quite clearly, it was not in doubt that it did not believe the applicants. In such circumstances, it was not required to question its view of their credibility.
Further issue
A further matter which was canvassed at the hearing of this application concerned the Tribunal’s treatment of evidence contained in Dr Andrews’s report, on which both of the applicants relied when before the Tribunal. In his report Dr Andrews said that the applicants had provided him with a compact disc which contained photographs depicting them having sex with each other. Based partly on this material Dr Andrews concluded that the applicants were homosexual and in a relationship with each other.
In SZQYU’s case the Tribunal referred to this evidence in the following way:
The Tribunal has considered Dr Andrews’ report and his view that the applicant is homosexual and that the photographs on the compact disc depict the applicant having sex with [the other applicant]. The Tribunal has taken detailed oral evidence from the applicant since Dr Andrews prepared his report and finds Dr Andrews’ earlier assessment does not overcome the Tribunal’s concerns about the applicant’s evidence.
The Tribunal said relevantly the same thing in its decision record in SZQYV’s case. In both reviews the Tribunal went on to reject Dr Andrews’s opinion and then to dismiss the applicants’ applications for review. In SZQYU’s case, it relevantly said:
In light of the above, the Tribunal does not accept that the applicant is homosexual, or has had sex, sexual experiences, or a homosexual relationship with [the other applicant] or any other males in Bangladesh or Australia.
The Tribunal made a relevantly identical comment when affirming the delegate’s decision in SZQYV’s case.
However, in neither case did the Tribunal say that it had considered the evidence contained in Dr Andrews’s report as material relevant to its decision. Specifically, it made no reference to the photographs of the applicants having sex beyond referring dismissively to Dr Andrews having a “view” that that was what they depicted.
Before it could find that the applicants were not homosexual the Tribunal had to deal, amongst other things, with their allegation that their relationship had a physical dimension. It did this by concluding that neither of them had ever had sex with a male, including each other. However, in order to reach that particular conclusion, it was necessary that the Tribunal consider the evidence before it relevant to that subject. The evidence of the applicants and Mr Rabbi was rejected on credibility grounds. The only other evidence on the subject was what Dr Andrews said was depicted on the disc but that was not discussed by the Tribunal except in the dismissive manner referred to above at [60].
The significance of Dr Andrews’s evidence about the photographs to the finding that the applicants had never had sex with any male, let alone each other, and to the consequent conclusion that they were not homosexual, was sufficiently great that the Tribunal’s reasons for rejecting or disregarding that evidence had to be disclosed lest it be inferred that it was not considered. In this case I am satisfied that the Tribunal’s failure to expose reasoning of this sort does reflect a failure to consider Dr Andrews’s observations concerning the photographs contained on the disc. It appears that the Tribunal treated this evidence as relevant only to Dr Andrews’s opinion, with which the Tribunal disagreed because it had information which Dr Andrews had not seen, and not to its own inquiry.
It may be that the Tribunal did not consider Dr Andrews’s evidence concerning the photographs because although the disc had been provided to the Tribunal at the commencement of SZQYV’s hearing, the applicants’ advisers later wrote, in both cases, asking the Tribunal not to view what it contained. However, the fact that the Tribunal was asked to not view the contents of the disc did not mean that Dr Andrews’s evidence on the topic had become a sort of nullity or could be ignored.
The evidence of what was contained on the disc might have had a bearing on the outcome of the reviews in that the Tribunal’s failure to consider it possibly deprived the applicants of a successful outcome to their review applications. A failure to consider such evidence amounts to a constructive failure to exercise jurisdiction and thus jurisdictional error.
Conclusion
In both of these matters the Tribunal’s decision was affected by jurisdictional error.
Consequently, the matters will be remitted to the Tribunal to be determined according to law.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 3 December 2012
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