SZRHT v Minister for Immigration
[2012] FMCA 1030
•19 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRHT v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1030 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal obliged to speculate that its doubts about the genuineness of a statement made by the applicant could have been wrong. |
| Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 Minister for Immigration and Citizenship v SZNSP and Another (2010) 184 FCR 485; [2010] FCAFC 50 Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559; [1997] HCA 22 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6 Minister for Immigration and Multicultural Affairs v Rajalingam and Others (1999) 93 FCR 220; [1999] FCA 719 N1202/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 403 VWBF v Minister for Immigration & Anor [2005] FMCA 1334 |
| Applicant: | SZRHT |
| First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 711 of 2012 |
| Judgment of: | Barnes FM |
| Hearing date: | 19 October 2012 |
| Delivered at: | Sydney |
| Delivered on: | 19 October 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Michael Jones, Solicitor |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 711 of 2012
| SZRHT |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal dated 30 January 2012. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of Egypt, arrived in Australia in April 2007. He applied for a protection visa in August 2010. In a statutory declaration of 2 August 2010 he claimed to fear persecution on the Convention ground of belonging to a particular social group of homosexuals (the first statutory declaration). He also submitted photographs said to have been taken at a named gay venue in Australia.
The application was refused by a delegate of the first respondent. While the delegate accepted that the applicant had engaged in activities that in Australia would be classified as homosexual, the delegate was not satisfied that he would be harmed in Egypt as a result. The applicant sought review by the Tribunal.
The applicant provided the Tribunal with a statutory declaration sworn by him on 29 November 2011 (the second statutory declaration) in support of his claims. He attended a Tribunal hearing on 12 December 2011. The only evidence before the Court of what occurred in that hearing is the Tribunal’s account in its reasons for decision.
On 13 December 2011, the applicant’s migration agent provided further written submissions. Subsequently two statutory declarations were provided from other named persons, one of whom described himself as a friend of the applicant, each stating that the applicant had told them that he was homosexual. Also provided was a copy of a document in Arabic and a translation of the document headed “Divorce Certificate”.
In its reasons for decision the Tribunal set out at some length the applicant’s claims made in the first statutory declaration provided to the Department, the decision of the delegate and the claims made by the applicant to the Tribunal, including in the second statutory declaration. In a relatively lengthy account, the Tribunal also set out the evidence given at the Tribunal hearing. In the course of that account, the Tribunal recorded issues that it raised with the applicant about various matters to which I will return. The Tribunal also summarised the post-hearing material it received.
In its findings and reasons the Tribunal expressed its understanding that the claim relied on by the applicant was a claim of membership of a particular social group of homosexual men in Egypt, that he claimed to be homosexual and feared that he would be harmed or killed by his family members and by radical Islamists and the Egyptian authorities if he returned to Egypt. I note that these claims were made in the first statutory declaration provided to the Department.
The Tribunal addressed a number of issues. It considered first the applicant’s past unlawful status in Australia, including the fact that the applicant came to Australia in 2007, his visitor visa expired in January 2008, but he did not hold any valid visa until he applied for protection in August 2010. It considered the explanation that the applicant had given for the delay and his unlawful status during that time, that he was “uncomfortable with raising the issue of his homosexuality due to his lack of English ability and his fears of his sexuality becoming known”.
The Tribunal found that while these reasons “might plausibly account for a delay in a person seeking protection”, however, it found it implausible, given the long term presence of family members in Australia as migrants, the applicant’s experience with visitor visa processes and his awareness that he needed a valid visa to remain here lawfully, that he would not have sought legal advice about regularising his status on any basis (not just on the basis of protection) at any time prior to August 2010. The delay led the Tribunal to “question seriously whether the applicant’s protection visa claims [we]re genuine, rather than contrived to achieve a migration outcome”.
The Tribunal had regard to the fact that in his first statutory declaration provided to the Department, the applicant claimed he had been encouraged by a trusted friend to apply for protection on the basis of his homosexuality. However it found that his account to the Tribunal was that this friend did not know of his homosexuality and claimed that he had “gleaned information indirectly from this friend that the protection application process was confidential”. The Tribunal found that this was a material inconsistency in the applicant’s account that led it to doubt its reliability and did not accept this explanation.
The Tribunal also addressed the fact that in the applicant’s first statutory declaration (referred to as a written statement) he claimed that he proceeded with the protection visa application once his representative assured him of confidentiality. However the Tribunal found that there was no plausible account offered by the applicant of how, after more than two years of unlawful residence in Australia, he overcame his stated concerns about public knowledge of his homosexuality claims in order to approach a legal representative for advice about his situation.
The Tribunal acknowledged that cultural and personal reasons for delay (as asserted by the migration agent) might generally be plausible as an explanation for a person’s delay in seeking protection in relation to homosexuality. However it found that it would only accept that such reasons were plausible in the applicant’s case if satisfied through other evidence that he was homosexual. The Tribunal went on to state: “I consider this further below”. What is said thereafter is to be seen in light of the Tribunal’s focus on whether it was satisfied that the applicant was homosexual.
Under the heading “The applicant’s knowledge of his Statutory Declaration dated 29 November 2011” the Tribunal addressed concerns about aspects of the applicant’s oral evidence at the Tribunal hearing. I note again that the Court does not have before it a transcript of the Tribunal hearing, but only the Tribunal summary of what occurred at the hearing. This part of the Tribunal decision is central to the ground relied on in these proceedings. Among other things, it contains an account of the applicant’s identification as homosexual, claimed homosexual practices in Egypt, and a description of his feelings and emotional state. The Tribunal recorded that when asked at the hearing about the contents of the second written statement provided about three weeks prior to the hearing, the applicant initially said he had no recollection of the statement. When the Tribunal expressed concern and asked a third time, he said he recalled making it.
The Tribunal found however that the applicant’s further responses suggested that the applicant thought the Tribunal was referring to the initial written statement to the Department. The Tribunal found that he “was unable to provide any detailed account of its contents”. The Tribunal recorded that when it raised this with the applicant he said it was due to the interpreter’s Lebanese accent, and that his representative “suggested there was a misunderstanding due to interpretation of the words statutory declaration or statement or affidavit”.
The Tribunal found however, that at no other time, and on no other issue in what was described as a “lengthy hearing”, did the applicant or his representative cite any other difficulties with the interpreter or the interpretation. Nor was any such issue raised in post-hearing submissions. The Tribunal also observed that the “interpretation of the applicant’s evidence on all other matters appeared fluent and unhesitating”. The Tribunal was satisfied that the record of claims and evidence “indicat[ed] that the applicant had a real and meaningful opportunity to provide evidence and arguments relating to the issues relevant to the review”.
Nonetheless, the Tribunal considered “whether the single, isolated claimed issue of interpretation of the word statement or statutory declaration or affidavit alone plausibly explain[ed] the applicant’s inability to initially recall the November 29 2011 Statutory Declaration provided to the Tribunal”. The Tribunal found, given the specific context and nature of its questions on this point at the hearing, that it was “implausible that the applicant would not infer that [the Tribunal] question related to something he instructed his representative on and signed in relation to his protection claims and his review application around three weeks prior to the hearing”. The Tribunal did not accept that the applicant’s “reasons for not recalling this [we]re due to interpretation of any specific word”. It remained “seriously concerned that the applicant was unable to readily recall or describe his second statutory declaration”. The Tribunal then stated:
I consider below whether the applicant’s oral account to the Tribunal of his circumstances dispels this concern.
Under the heading “The applicant’s stated marriage and divorce” the Tribunal then turned to the applicant’s oral and written account, and submissions that the applicant’s heterosexual marriage of 25 years was a cover for and did not preclude his homosexuality. The Tribunal accepted that the applicant’s past marriage did not preclude him being homosexual. The Tribunal also addressed the applicant’s claim that he divorced his wife in 2007, and the copy of a divorce certificate provided. However it also had regard to the fact that the applicant’s evidence was that he had not left Australia since 2007 and his failure to explain “how the divorce was made by a court in Egypt without his apparent presence or consent or representation by proxy from Australia”. The Tribunal attached “minimal weight to the divorce document as evidence that the applicant [was] divorced”. In any event it was of the view that there were a vast range of possible reasons for the applicant’s stated divorce. The Tribunal found that even if the divorce document were accepted, it would not indicate or determine the applicant’s sexuality in any way.
The Tribunal then dealt with the issue of the applicant’s “account of his sexuality”. In that context the Tribunal acknowledged that it could not “expect or demand material evidence in order to accept the applicant’s account of his circumstances”, but nor was it “required to accept the applicant’s account uncritically”. It also recognised that “refugee decision-makers ought to give the applicant’s account the benefit of the doubt unless there is good reason not to” do so.
The Tribunal stated that it had “careful regard to the applicant’s oral evidence about the process and progression of his personal identification and experiences of homosexuality”. It recorded that if this evidence was accepted, these matters would “lead [it] to accept the reasons for the timing of the protection application, and would accordingly dispel [its] concerns…that the applicant’s claims [we]re contrived”.
The Tribunal had regard to the fact that the delegate has accepted that the applicant had had same sex casual relationships in the past, and recorded that it had discussed the applicant’s self-identification as a homosexual and his stated homosexual practices and experiences in Australia and Egypt at the hearing at length and in detail.
It had raised a number of specific concerns about aspects of his account of his sexuality. It recorded that it had considered carefully his responses, and that it had told him at the end of the hearing that its concerns remained, and that it had to consider whether it accepted his account of his circumstances, including whether he was homosexual, The Tribunal referred to the post-hearing written submissions from the representative on this issue. It concluded that the applicant had had a real and meaningful opportunity to provide evidence and arguments relating to the issue of his homosexuality.
The Tribunal then addressed the applicant’s “experiences in Egypt”. It referred first to the applicant’s written claims to the Department. He claimed that he had his first homosexual experience in Egypt at the age of 17, and that “his sexual experimentation with males developed into a “deep burning sexual desire” for men”. In that statement he also claimed to have had “casual sexual relationships and also paid male prostitutes” including during his marriage. He claimed he maintained the “cover” of his marriage but that he was “deeply emotionally scarred because (he) was suppressing his sexuality”.
However, the Tribunal recorded that at the hearing, the applicant told the Tribunal that “his first male sexual interactions took place at school, in toilets with mutually-interested boys”. He said twice that this occurred when he was 17, but, when asked, could not recall when he had left school. When the Tribunal put to him that “his protection visa application indicated [that] he had eight years education, ending in 1972” he agreed that this was the case. The Tribunal found that on the applicant’s own account he was born in 1958. Hence he was aged 14 in 1972 when his schooling ended.
On this basis, the Tribunal found that the applicant’s account was internally inconsistent. In considering whether this was material the Tribunal accepted that the events occurred a long time ago, and that asylum seekers could not be reasonably expected to recall all details accurately. However, in circumstances where the applicant’s age at the time of his first stated homosexual experience had consistently and repeatedly been put forward in written and oral evidence as 17, the Tribunal found that “this inconsistency [could] not plausibly be attributed to poor memory or the hearing environment”.
The Tribunal found that “[a]lone this inconsistency [did] not determine [the Tribunal’s] core findings”. However it “attach[ed] significant weight to it, when taken together with [its] strong concerns (expressed elsewhere below) about the applicant’s apparent lack of knowledge of his written claims to the Tribunal”. These two things led the Tribunal to question the reliability of the applicant’s account of his early homosexual experiences.
The Tribunal found (in paragraph [80]) that at the hearing the applicant’s description of his same-sex practises in Egypt was generally consistent with the written claims. However it found that that description was “narrow and repetitive”, and was concerned that it was rehearsed. The Tribunal referred to repetition of some of the expressions that the applicant used in describing his homosexuality such as he “exercised these things and got hooked” and his repeated references to having “identified sex partners through cinemas and cafés and to have had sex in bushes and toilets – regardless of the question posed”. The Tribunal continued at [81] that it “found the applicant’s responses at the hearing to be vague, basic, inflexible and repetitive in relation to questions of his feelings about his sexual identification”. It gave examples of his inability to go beyond claims of being “emotional comfortable” or “emotionally hurt” when “asked to describe his emotional process in identifying as homosexual”, and expressed concern that when asked about his emotional state during those times, the applicant had “constantly reverted to talking about factual events”. It gave the example that when asked how he felt about identifying clearly as a homosexual when it was (by his account) rejected by Islam “he responded with a factual account of how he practised caution to avoid detection”.
In paragraph [82] the Tribunal found overall that “the applicant seemed inflexible in diverting from the basic framework set out in his written claims, and [that] he appeared unable to speak instinctively or emotionally about his experiences”. In the context of over 20 years of claimed homosexual identification and practice, the Tribunal was “concerned that the applicant’s oral evidence was rehearsed and that he was not speaking from genuine experience”.
The Tribunal continued (at [82]):
Additionally, I find that the language of the applicant’s Statutory Declaration of 29 November 2011, which refers for example to “ignominy and fretfulness” and “the vice of solitude”, seems entirely mismatched to the applicant’s ability to articulate his circumstances at the hearing. I attach very significant weight to the assessment in this and the preceding two paragraphs in assessing the applicant’s claims, and this leads me to significant doubts that the applicant is homosexual.
The Tribunal also had regard to the fact that at the hearing it had “raised with the applicant the plausibility of his account of casual same-sex practices in Egypt, which involved regular unsolicited approaches to men in cinemas and cafés over a twenty-year period, with no more than around two rejections, and with no adverse consequences”. The Tribunal accepted that the applicant may have been lucky to escape adverse attention from the authorities, but did not accept his explanation that he was rejected only twice because he was “skilled in identifying sex partners”. The Tribunal found this response did not plausibly explain this matter. Given the other significant doubts about his account of the sexuality it had described, it did not accept the applicant’s account of his casual same-sex practices in Egypt.
The Tribunal referred to the applicant’s very basic knowledge about laws against homosexuality in Egypt and his lack of knowledge about HIV/AIDS. However it attributed no weight to this lack of knowledge, given the situation in Egypt and the applicant’s lack of English language ability.
The Tribunal then addressed the fact that in the applicant’s written statement to the Department he had claimed that his family would not hesitate to cause him serious harm if they became aware of his homosexuality and that he feared being harmed by radical Islamists and the Egyptian authorities, which were both said to “loath homosexuality”. However, it recorded that when asked at the hearing about his fears in returning to Egypt, “the applicant said [that] if he went back there would be fear and worry and he would not be able to deal with it, and that he would face poverty, fear and worry”. When asked what he feared exactly, the applicant said he was scared of the “risk of them knowing about me” and referred to the health risks in unhygienic casual sex practices. The Tribunal observed that “the applicant did not refer specifically to his written claims that he feared harm or persecution by his family, and did not refer at all to any fear of Muslim radicals”.
The Tribunal recorded that earlier in the hearing, prompted by Tribunal questions, the applicant had indicated awareness that the police could detain and harm homosexuals, but said he was not personally aware of any such cases and that he had avoided such harm in Egypt from the 1970s to 2007 “because he was cautious and skilled in his covert homosexual activities”. However, when later “asked specifically about his fears later on [the applicant] did not link this awareness to any personal fear or any specific harm in returning to Egypt”.
The Tribunal continued:
For the reasons in the above paragraphs, I found the applicant’s articulation of his fears at hearing to be vague and in parts mismatched to his written statement on this matter. This leads me to doubt that he has a genuine subjective fear of the harm as described in his written statement to DIAC.
Under the subheading, “The applicant’s experiences in Australia”, the Tribunal stated that it had “considered further whether the applicant’s account of his experiences in Australia would support a finding that he [wa]s homosexual”. It discussed his claims about attendance at a particular gay venue. It accepted that that venue, Kingsteam, marketed itself as a gay spa and sauna in Sydney. However it had regard to the fact that while in his written statement of August 2010 he claimed he had attended a number of gay saunas and clubs, he told the Tribunal that this one venue, Kingsteam, was the one venue he had attended and that he went there for the first time around 10 months or a year before the Tribunal hearing (that would be around December 2010 to February 2011). He also claimed that he had stopped attending because of a medical condition for which he had received treatment in October 2011. The Tribunal accepted that the medical condition existed and that it might preclude him from attending Kingsteam from late 2011. However it was concerned that his account was “internally inconsistent as to the broad timeframe for his attendance at Kingsteam”, in particular, the fact that he “was unable to place his attendance at Kingsteam as occurring broadly before the time of his protection visa application”.
The Tribunal found that this concern, taken with its significant concerns about the reliability of the applicant’s account of his sexuality, led it not to accept that the applicant attended the Kingsteam club or had sexual relationships there.
As to a photograph of the applicant wearing a towel with what was said to be the Kingsteam insignia, the Tribunal accepted this was a photograph of the applicant, but found it could have been taken anywhere. It attached “no weight to it as evidence it was taken at Kingsteam, or as evidence that [the applicant was] homosexual”.
The Tribunal also addressed the applicant’s oral evidence about two friends the applicant claimed knew of his homosexuality. While the applicant and his migration agent said they had wanted to come to the hearing, but were unable to attend, the Tribunal did not accept that as they had not been listed on the Tribunal hearing response form. It addressed the letters of support, finding that both were “very basic in detail” and both were “based on self-reporting”. Hence it attached “only very minor weight to the letters as evidence that the applicant [wa]s homosexual”. The Tribunal found that “they [did] not counterbalance or outweigh [its] significant concerns…that the applicant’s account of his sexuality was unreliable”.
The Tribunal addressed the submissions as to cultural and personal reasons why the applicant had only limited homosexual interactions in Sydney and why he had no current, ongoing homosexual relationship. The Tribunal reiterated that it did not accept that the applicant had attended or had casual relationships at the Kingsteam club. It drew no adverse conclusion from his account that he had not attended any other venue or been in any past or current ongoing same sex relationship as determinative of his sexuality. However, the Tribunal stated that it was its assessment of the evidence before it, and “not any adverse presumption as to which evidence ought to be before [it]”, which was the basis of this decision. Given its strong cumulative concerns that the applicant was not homosexual, the Tribunal was “not willing to accept uncritically his assertion that, but for the constraints of his health, age, personality and culture, he would be (or would like to be) in a homosexual relationship”.
Under the heading “Core Findings”, the Tribunal found on the cumulative evidence and for the cumulative reasons given that it did not accept the applicant’s account that he was homosexual or that he had a genuine subjective fear of harm in Egypt by reason of actual or perceived membership of a particular social group of homosexual men and hence that it followed he had no well-founded fear of persecution in Egypt for any Convention reason, either now or in the reasonably foreseeable future.
The Tribunal did not accept that the applicant’s failure to regularise his unlawful visa status related to the reasons put forward by the applicant or his representative. The Tribunal affirmed the decision not to grant the applicant a protection visa.
The applicant sought review by application filed in this court on 30 March 2012. He now relies on an amended application filed with leave of the court on 19 October 2012. The amended application contains one ground. It is that:
The Tribunal constructively failed to exercise its jurisdiction by not reasonably speculating that its doubts about the genuineness of the statement made by the Applicant in a statutory declaration before the hearing could have been wrong, and therefore that the Applicant’s central claim to fear persecution as a member of the particular social group of homosexuals could have been well-founded.
The particulars are:
The Tribunal expressed doubt about the genuineness of the Applicant’s claims based on what it said was a “mismatch” between the language of a statutory declaration and his oral evidence, without making a finding that he did not himself make or adopt the statement.
In submissions, the solicitor for the applicant referred to the fact that the Tribunal recorded that at the hearing it asked the applicant about the contents of his second written statement dated 29 November 2011, and the applicant’s lack of recollection and apparent confusion, and inability to provide any detailed account of the contents of the November 2011 statement. It appears to be claimed that the applicant “did not initially comprehend which document the Tribunal was referring to” (although, as described above, his initial response was said by the Tribunal to be an inability to recall making a statement in November 2011).
The applicant took issue with the fact that in paragraphs [80] to [82] the Tribunal attached significant weight to the nature of the applicant’s responses in that statement compared with at the hearing in assessing the applicant’s claims and that this led it to significant doubts that the applicant was homosexual. The applicant contended that this assessment was “based on” the “mismatch” between the applicant’s oral evidence and the applicant’s statutory declaration.
The applicant’s solicitor referred to the fact that the statement of 29 November 2011 was in the form of a statutory declaration made under the Oaths Act 1900 (NSW) and witnessed by a solicitor and that the applicant had given evidence at the Tribunal hearing that the statement was made at the solicitor’s office on his instructions and was read back to him before it was signed. It was submitted that despite not accepting the applicant’s reasons for not initially recalling or describing the second statutory declaration when asked at the Tribunal hearing, and its suggestion that it contained words or phrases that were a “mismatch” (which could be seen as the Tribunal stating that this did not genuinely reflect the applicant’s claims), the Tribunal had not challenged the applicant’s assertion that he adopted the words of the statement or made any finding that the applicant did not make the statement. In oral submissions it was contended that in these circumstances, where the Tribunal had expressed doubt about the genuineness of the applicant’s claims based on what was said to be a “mismatch” between the language of the second statutory declaration and his oral evidence, it was necessary for the Tribunal to proceed to make a finding that the applicant did not himself make or adopt the statement, or at least to consider “what if I am wrong”. It was submitted that the Tribunal had to go further than expressing doubt about the applicant’s statement and had to make a positive finding that the statement did not accurately reflect the applicant’s claims.
The applicant contended that the Tribunal’s finding that the words used at the hearing and those in the written statement were mismatched could only lead to the conclusion that the applicant was not telling the truth if the Tribunal was satisfied the words in the statement were not the applicant’s words, or that the applicant had not personally adopted the words of the statement by signing it after it had been read to him. However the Tribunal did not express such satisfaction.
Reliance was placed on the remarks of Sackville J in Minister for Immigration and Multicultural Affairs v Rajalingam and Others (1999) 93 FCR 220; [1999] FCA 719, in particular at [62] where his Honour made the oft cited remark in relation to whether a “decision-maker [was] satisfied as to whether alleged past events ha[d] occurred with certainty or even confidence”. His Honour stated that:
Where the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant’s claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant’s case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.
In oral submissions it was acknowledged for the applicant that this case was not on all fours with such cases in that it was not a question of whether past events, (for example, past events in Egypt) had occurred. However it was suggested that there was some comparability insofar as one could say that the past event was the past event of making the statutory declaration.
Reliance was also placed on the discussion of the concept of “what if I am wrong?” by the Full Court of the Federal Court in N1202/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 403, in particular, at [53]. The Court made the point that “a statement by the Tribunal that it was “not satisfied” as to the truth of asserted facts was not a finding that the assertions were false or that the claimed events did not occur”. It went on to state that where the Tribunal did not find that the claimed events did not occur, it “had to consider the possibility that past events had occurred as claimed and to assess the risk that the appellant may suffer persecution having regard to such a possibility”.
In this case, it was submitted that the alleged past event was whether the applicant had made a genuine statement in the statutory declaration of 29 November 2011 and submitted that if the Tribunal had taken into account the possibility that the statement was genuine, it might have arrived at a different conclusion as to whether or not the applicant was telling the truth about his sexual orientation.
It was contended that on a fair reading of the Tribunal’s reasons, (notwithstanding the principles in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6 about an eye not being too finely attuned for error and the caveats expressed in that case about not giving a fair reading to a Tribunal decision as a whole), it could not be concluded that the Tribunal had no doubt that the statement of 29 November 2011 did not accurately reflect the applicant’s claims and that given that the making of a false declaration would amount to a serious criminal offence, it should not be inferred the Tribunal would have concluded that such an event had occurred absent any clear statement to that effect.
The applicant submitted that this case could be distinguished from circumstances in which the Tribunal concluded on some other evidence that an applicant was not telling the truth and therefore gave no weight to corroborative evidence from other witnesses. The applicant submitted that the Tribunal’s findings in this case were “based largely on an assessment of the Applicant’s demeanour and articulateness at the hearing” and a comparison of that with the “language of his statement”. It was said not to be a case in which the Tribunal had reached a state of satisfaction on one set of observations and therefore could safely disregard corroborating evidence. Rather it was said to be the comparison between the statement and the oral evidence which gave rise to the Tribunal’s doubt and led to a finding of a lack of credibility. Hence it was said to be necessary that the Tribunal find that the statement was in some way not genuine.
As contended for the first respondent, there appear to be two aspects to the applicant’s claims in this respect, although how those two aspects are formulated may be expressed in varying ways. The first of these is the suggestion that the Tribunal was in some way under an obligation to make a positive finding that the applicant did not make or adopt the second statutory declaration of November 2011 or that it did not genuinely reflect his claims.
First it is apparent, reading the Tribunal decision fairly and as a whole, that the Tribunal made clear findings that it did not accept the claims made by the applicant, whether those claims were regarded as being made in writing or orally. As set out above in some detail, the Tribunal went through the various ways in which the applicant’s claims had been presented and then gave a number of reasons for its conclusions in relation to the applicant’s credibility.
While the Tribunal was seriously concerned that the applicant was unable to readily recall or describe his second statutory declaration, as set out above, that was not the basis, as such, for its ultimate findings.
What it actually found in relation to the “mismatch” between the applicant’s oral evidence and the second statutory declaration referred to in the particulars to ground one has to be seen in context. The Tribunal was addressing concerns in relation to the applicant’s evidence about his experiences in Egypt. It referred to an inconsistency in his evidence about whether he was at school at the time of the first claimed experience. The Tribunal then found that, although the applicant’s oral description of his same-sex practices in Egypt was generally consistent with his written claims, that description was narrow and repetitive, and the Tribunal was concerned it was rehearsed. The Tribunal also found that the applicant’s responses to questions of his feelings about sexual identification at the hearing were vague, basic, inflexible and repetitive. It found that he seemed inflexible in diverting from the basic framework in his written claims and appeared unable to speak instinctively or emotionally about his experiences. The Tribunal expressed concern that, notwithstanding that the applicant claimed to have over 20 years of claimed homosexual identification and practice, it was concerned his oral evidence was rehearsed and that he was not speaking from genuine experience. Those claims were part of the claims that were made to the Tribunal in relation to the applicant’s evidence about his sexual identification.
The “mismatch” between the language of the second statutory declaration and the applicant’s ability to articulate his circumstances at the hearing was an additional factor. The Tribunal found that the language of the statutory declaration (which referred to concepts such as “ignominy and fretfulness” and “the vice of solitude”) seemed “entirely mismatched to the applicant’s ability to articulate his circumstances at the hearing”. As stated, the Tribunal had found that in his oral evidence the applicant was unable to go beyond reiteration of concepts such as “emotionally comfortable” or being “emotionally hurt” and when asked about his emotional state had reverted to talking about factual events. As set out above, the Tribunal attached significant weight not only to this “mismatch”, but also to the other concerns about the applicant’s oral evidence about his practices in Egypt in assessing his claims. It was the combination of these matters that led the Tribunal to have significant doubts that the applicant was homosexual.
In addition, the Tribunal went on to consider whether its concerns about delay and the explanations for his unlawful status were dispelled by the applicant’s oral evidence in this and in other respects. As is apparent from the account of the Tribunal decision above, the Tribunal had regard to a number of other inconsistencies and issues about the applicant’s evidence. In the course of its reasons, it expressed various doubts, including a doubt that the applicant had a genuine subjective fear of harm. It made some clear findings, for example, that he had not attended the Kingsteam club or had sexual relationships there. It is apparent that it was all these matters cumulatively that ultimately led the Tribunal not to accept the applicant’s account that he was homosexual or that he had a genuine subjective fear of harm in Egypt for reason of membership of a particular social group of homosexual men.
In these circumstances, the Tribunal clearly considered, but rejected, the applicant’s claims in various respects during the course of its decision, including the claims made only orally, in the first statutory declaration, and/or in the second statutory declaration. It weighed up the written evidence and the oral evidence and concluded, in effect, that it was not satisfied with the truth of those claims. It was entitled to do so. It was not required to grapple with every item of evidence independently. In particular, it was not obliged to make a positive finding that the applicant did not make or adopt the second statutory declaration before rejecting the claims in that statement.
Whether one sees it as a separate issue or not, the applicant also submitted that because the Tribunal had expressed doubts about what the solicitor for the applicant described as the genuineness of the applicant’s claims based on the mismatch between the language of the statutory declaration and his oral evidence, it had to go on to ask, “What if I am wrong?” in the sense considered in Rajalingam The applicant contended that the Tribunal erred in failing to do so, and that if it had done so it would then have had to consider the possibility that the statement was in some way not genuine or not genuinely made or adopted by the applicant.
However, as submitted by the first respondent, this claim is not made out. I am not persuaded that this is the application or intent of the statement by Sackville J in Rajalingam (and also see Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559; [1997] HCA 22 and Wu Shan Liang, and N1202/01A). Rather, that principle, as explained by Sackville J (at [60]) in Rajalingam, arises in circumstances where the Tribunal “must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur”, because the ultimate question is whether the Tribunal is satisfied that the applicant has a well-founded fear of future persecution. These principles apply when the decision-maker is faced with a real doubt about whether a finding to disbelieve evidence is the correct view.
As his Honour stated (at [62]), the Tribunal must not foreclose reasonable speculation about the chances of the hypothetical future event occurring. It is in that context that it is relevant that it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence and thus when the decision-maker is uncertain or finds that events might not have occurred, it may be necessary to ask, “What if I am wrong?” and to take into account the possibility that the event took place.
However this is not a case in which the Tribunal expressed uncertainty in relation to its findings about whether past events of relevance to the applicant’s claim to fear persecution occurred. When the Tribunal decision is considered as a whole, it is apparent that it reached a clear conclusion that it did not accept the applicant’s claims about past events in Egypt (or Australia), that he was homosexual or that he had a genuine subjective fear of harm in Egypt. The Tribunal’s references to doubt about the applicant’s evidence, whether that be evidence in the applicant’s second written statement or, indeed, the applicant’s oral evidence or in any other written statement, was not a doubt about the findings that the Tribunal ultimately made in relation to the evidence. The Tribunal’s doubt was not expressed in relation to the position the Tribunal took on the evidence (see Wu Shan Liang and Guo). Rather, while the concerns of the Tribunal were expressed in terms of doubt (see VWBF v Minister for Immigration & Anor [2005] FMCA 1334 at [42] – [43]), as Heerey J stated on appeal in VWBF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 154 FCR 302; [2006] FCA 851 (at [20]):
…those references were to doubt about the [applicant’s] evidence, not about the Tribunal’s satisfaction as to its own findings…
The doubts that the Tribunal expressed in the course of reaching its ultimate findings are not such as to establish that this was a situation in which the Tribunal had to consider “What if I am wrong?” The Tribunal did not express doubt as to the occurrence of past events relating to the applicant’s claimed fear of persecution. It made it clear that it did not accept that the applicant was a homosexual and that it did not accept his account of his homosexual practices in Egypt or Australia. It was therefore not required to consider the possibility that it was wrong about those conclusions.
I am not satisfied that the “What if I am wrong?” test requires the Tribunal to consider the possibility that it was wrong in doubting the genuineness of what is said to be evidence of the applicant. As submitted for the first respondent, for an applicant to meet the criteria for a grant of a protection visa, the Tribunal has to be positively satisfied that he or she is a person to whom Australia owes protection obligations. It is open to the Tribunal to reach its decision on the basis that it doubts the truthfulness of an applicant’s evidence and is not satisfied of the applicant’s credibility overall because it has not reached the requisite level of satisfaction.
I also note that, while the case was not presented in these terms, it is well-established that the Tribunal is not required, or, indeed, encouraged, to find that an applicant has lied insofar as this may be seen as implicit in the applicant’s contentions that the Tribunal had to find that the applicant genuinely made or adopted the second statutory declaration.
Indeed, even if that were not the case, it is clear from the Tribunal’s ultimate findings that it found that the applicant’s claims were not credible. That can be seen as tantamount to a finding that insofar as he made those claims, the applicant was not telling the truth, in other words, he had made those claims up. As stated in Minister for Immigration and Citizenship v SZNSP and Another (2010) 184 FCR 485; [2010] FCAFC 50 at [32], to make up claims is to lie about the existence of those claims (and also see to the same effect Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 at [21] – [25]). Similarly it was not necessary for the Tribunal, in the course of reaching its ultimate conclusion, to make a positive finding that the applicant did not make or adopt the second statutory declaration or that the statement did not accurately reflect the applicant’s claims.
The contentions raised by the applicant are not such as to establish jurisdictional error in the manner contended for in the amended application. Accordingly the application should be dismissed.
It is appropriate that the unsuccessful applicant should meet the costs of the first respondent. The amount sought is considerably less than the amount provided for in the Rules. I consider it is appropriate and reasonable in the circumstances of this case.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 8 November 2012
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