SZRQR v Minister for Immigration & Anor

[2013] FMCA 21

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRQR v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 21

MIGRATION – Application for review of Refugee Review Tribunal – whether the Tribunal failed to give “proper consideration” to whether Australia had protection obligations under s.36(1)(aa) – whether the Tribunal failed to give reasons for its findings in respect of expert evidence provided by the applicant – whether the Tribunal failed to have regard to whether the desirability of consistency in administrative decision making required it to apply guidance on the assessment of credibility – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, 91R, 420A, 430, 476

SZQYU v Minister for Immigration & AnorandSZQYV v Minister for Immigration & Anor [2012] FMCA 1114
Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Minister for Immigration & Citizenship v SZLSP [201] FCAFC 108; (2010) 187 FCR 362; (2010) 117 ALD 259
Fuduche v Minister for Immigration & Multicultural & Ethnic Affairs (1993) 45 FCR 51
Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634
Hneidi and Ors v Minister for Immigration and Citizenship (2010) 182 FCR 115
He v Minister for Immigration & Anor [2009] FMCA 1142
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Hong v Minister for Immigration & Multicultural Affairs [1999] FCA 1567
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225

Applicant: SZRQR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1569 of 2012

Judgment of: Nicholls FM

Hearing date: 22 November 2012

Date of Last Submission: 17 December 2012

Delivered at: Sydney

Delivered on: 30 January 2013

REPRESENTATION

Appearing for the Applicant: Mr M Jones

Solicitors for the Applicant: Parish Patience Immigration Lawyers

Senior Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application made on 19 July 2012, and amended on 11 September 2012, is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1569 of 2012

SZRQR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 19 July 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), and amended on 11 September 2012, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 21 June 2012, which affirmed the decision of the delegate (“the delegate”) of the first respondent Minister to refuse the grant of a protection visa to the applicant.

Background

1. The applicant is a citizen of India. He arrived in Australian in February 2007 (Court Book – “CB” – CB 9). He applied for a protection visa on 27 April 2011 (CB 1). He was assisted by a migration agent and lawyer, Mr DL Bitel of Parish Patience Immigration Lawyers (CB 32).

2. In essence, the applicant claimed to fear persecutory harm if he were to return to India because of his sexual orientation (homosexual). The feared harm was said to emanate from the community, and that his parents would force him into a heterosexual marriage. The applicant claimed to have engaged in sexual relations with men, both in India and in Australia.

3. The delegate accepted that the applicant was of homosexual orientation. However, he found that the applicant could relocate to one of the larger cities in India and would not be persecuted there (CB 143 to CB 154 and, in particular, CB 153).

4. The applicant sought review of this decision by the Tribunal (CB 155 to CB 160). He continued to be represented throughout the Tribunal proceeding (CB 155). Relevantly, the applicant also submitted three reports from “health professionals” (see the applicant’s written submissions to the Court at [12]). These were reports by:

   1)Dr Maureen Harrington, a general practitioner (CB 275 to CB 277).

   2)Dr Paul Andrews, an “Accredited Mental Health Social Worker” (CB 288 to CB 300).

   3)Ms Amanda Gordon, a senior clinical psychological and adjunct associate professor at the University of Canberra (CB 301 to CB 303 and CB 311 to CB 316).

5. The applicant attended a hearing before the Tribunal on two occasions. The Tribunal’s account of what occurred is found it its decision record ([52] at CB 328 to [100] at CB 339). A number of written submissions were also made to the Tribunal on the applicant’s behalf (CB 170 to CB 179, CB 244 to CB 248, CB 249 to CB 268, CB 275 to CB 279, CB 288 to CB 303 and CB 308 to CB 316). Relevantly, I note that the applicant claimed to have engaged in certain conduct in Australia which he said he said supported his claim to he of homosexual orientation (attended gay venues on two occasions and two photographs).

6. The Tribunal did not find the applicant to be a credible, nor truthful, witness ([134] at CB 344). The Tribunal’s reasons for this included the inconsistencies between the applicant’s evidence to the delegate and his evidence to the Tribunal, inconsistencies between his evidence and a witness who appeared on the applicant’s behalf, the unconvincing nature of key parts of the applicant’s claims and omissions in the applicant’s account ([134] at CB 344 to [165] at CB 353). The Tribunal’s reasons also included reference to the three reports provided by the applicant ([141] at CB 346 to [149] at CB 347). The Tribunal therefore affirmed the delegate’s decision.

Before the Court

1. At the hearing before the Court, Mr M Jones appeared for the applicant. Mr G Johnson of senior counsel appeared for the first respondent. The applicant sought to submit two documents:

   1)A “Guidance on the Assessment of Credibility” (“the Guidance”), dated March 2012 – admitted with no objection and marked Applicant’s Exhibit 1 (“AE1”)

   2)A direction under s.499 of the Act issued by the respondent Minister – referred to as “Direction 15” – provisionally admitted and marked Applicant’s Exhibit 2 (“AE2”). The respondent objected on the basis that it was not clear whether the direction was still current at the time of the Tribunal’s decision. Leave was granted for the first respondent to file within 7 days of the hearing any evidence, by way of affidavit, in relation to AE2. With the consent of the applicant, by email to Chambers on 23 November 2012, the first respondent advised that AE2 was current and applied to the Tribunal at the time of its decision. In light of the parties consent on this issue, it was not necessary for an affidavit to be filed and AE2 was admitted into evidence.

2. In addition, the Court had before it the Court Book and written submissions filed on behalf of both the applicant and first respondent.

3. Further, by email to chambers on 5 December 2012, the applicant’s legal representative provided signed consent orders proposing that the applicant and the first respondent be granted leave to file further written submissions referring to the judgment of Cameron FM in SZQYU v Minister for Immigration & AnorandSZQYV v Minister for Immigration & Anor [2012] FMCA 1114 (“SZQYU & SZQYV”), which was handed down on 3 December 2012. That is, following the conclusion of the hearing in this matter. Orders were made in Chambers in accordance with the short minutes of order and further written submissions were filed, in accordance with those orders, on behalf of the applicant and the first respondent on 10 December 2012 and 17 December 2012, respectively.

4. The amended application is in the following terms:

   “1. The Tribunal fell into jurisdictional error by failing to give proper consideration to whether Australia had protection obligations to the Applicant under s 36(2)(aa) of the Migration Act 1958.

   Particulars

   The Tribunal made findings in relation to whether the Applicant was owed protection obligations under s 36(2)(a) based in part on its decision under s 91R(3) not to have regard to conduct of the Applicant in Australia. That subsection does not apply to considerations under s 36(2)(aa) but the Tribunal did not make a separate determination as to whether taking into account the conduct in Australia would have altered its findings for the purposes of the latter paragraph.

   2. The Tribunal also fell into jurisdictional error by failing to give reasons for its findings in respect of expert evidence provided by the Applicant.

   Particulars

   The Tribunal had before it reports from three health professionals all of which contained the opinion that the Applicant was homosexual. The Tribunal criticised the manner in which the experts arrived at their conclusions, but gave no explanation for its view that the methodology used by each expert was not professionally appropriate or correct.

   3. The Tribunal failed to have regard to the question of whether the desirability of consistency in administrative decision making required it to apply the guidelines contained in the document ‘Guidance on the Assessment of Credibility’ as published by the Refugee Review Tribunal unless it had a reason for not doing so.

   Particulars

   By substituting its own lay opinion for that of the experts, the Tribunal failed to consider the guidelines in the Guidance document at paras 8.1 to 8.5 in respect of expert evidence. In doing so it failed to consider whether it should apply the guidelines in the interests of consistency in administrative decision making.”

Consideration

Ground One

1. Ground one asserts jurisdictional error on the part of the Tribunal in that it alleges, in essence, that the Tribunal failed to distinguish between s.36(2)(a) and s.36(2)(aa) of the Act when it disregarded conduct pursuant to s.91R(3) of the Act in relation to the former and therefore did so also in relation to the latter.

2. There is no dispute that s.91R(3) of the Act applies to the consideration of whether an applicant meets the definition of a “refugee” under Art.1A(2) of the Refugees Convention. It does not apply to the consideration initiated by s.36(2)(aa) of the Act on the question of complementary protection (dealing with the International Covenant of Civil and Political Rights and the Covenant Against Torture).

3. However, the applicant’s contention that the Tribunal did not make a separate determination in relation to his claimed conduct in Australia and complementary protection can, on any plain reading of the material before the Court, be quickly dispatched.

4. First, while the applicant in his submissions emphasised the distinction between the two concepts, he made no satisfactory attempt to reveal how the Tribunal failed to understand the distinction, and that, with reference to its decision record, actually disregarded the conduct in Australia when it came to consider complementary protection.

5. Second, contrary to the implication in the applicant’s ground, the Tribunal’s decision record reveals that the Tribunal understood the distinction and the relevant application of s.91R(3) of the Act. That distinction is plainly set out when regard is had to [7] – [17] (“Refugee Criteria”) and [18] – [20] (“Complementary Protection Criteria”) (at CB 320 to CB 322 of the Tribunal’s decision record).

6. Third, and particularly, the Tribunal specifically stated ([10] at CB 321): “Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the regulations to a particular person” [emphasis added].

7. The section on complementary protection makes no reference to s.91R of the Act. On a plain reading, this can only mean that the Tribunal saw s.91R of the Act as having no relevance to complementary protection.

8. Fourth, the Tribunal plainly understood that the refugee criterion (s.36(2)(a) of the Act) and the complementary protection criterion (s.36(2)(aa) of the Act) statutorily refer to different tests. That is, “serious harm” and “significant harm”, respectively.

9. Fifth, in its “Findings and Reasons”, the only specific mention of s.91R(3) is found at [167] (at CB 353). Here the Tribunal noted the applicant’s evidence, being certain photographs that he showed to the Tribunal and other evidence showing that he visited as least two “gay” venues.

10. It is important to note that the Tribunal had by this time in the presentation of its analysis comprehensively rejected the credibility of the applicant’s account, including that he was a homosexual (see the Tribunal’s conclusion at [165] at CB 353 and [169] at CB 354).

11. The Tribunal also considered other evidence in support of the applicant’s claims. At [166] (at CB 353) it dealt with the evidence in support given by the applicant’s witness. At [167] (at CB 353) (one of the two impugned paragraphs) the Tribunal considered the claimed conduct of the applicant in Australia. It then went on the deal with the evidence of the three “medical personnel” ([168] at CB 353 to CB 354).

12. It is clear on any plain reading that the Tribunal’s conclusions at [169] (at CB 353) relate to the Tribunal’s consideration of the claims to be a refugee. The references here to the “Convention” make that clear.

13. The reference to “significant harm” in the following paragraph, when read in context, was clearly a reference to the complementary protection criterion. Having rejected the applicant’s claim to be a refugee, the Tribunal then, properly, looked to whether the applicant’s removal from Australia, in circumstances where he claimed a homosexual orientation, would lead to a risk of “significant harm”. The Tribunal rejected this on the basis that, having rejected the applicant’s claim to be a homosexual, there were therefore no substantial grounds for believing that he would be at significant risk if he returned to India.

14. The rejection of the applicant’s claim to be a homosexual was, as set out above, not dependent on his claimed conduct in Australia. At best, in relation to that conduct, the Tribunal saw it as not being of such a character as to alter its view of the applicant’s sexual orientation. Ultimately the applicant made no claim to fear “significant harm” on return to India because of his attendance at gay bars and the photographs. These were tended in support of his claim to be of homosexual orientation. A claim rejected on difference bases.

15. Ground one is not made out.

Ground Two

1. Ground two focused on the reports of the three, as described by the applicant in his written submissions to the Court, “health professionals”. The specific complaint is that the Tribunal fell into error by failing to give reasons for its findings in respect of this “expert evidence”.

2. In short, this complaint was explained as being that the Tribunal had before it reports from three “health professionals”, and had criticised the way each arrived at their conclusion that the applicant was a homosexual, but gave no explanation for its findings that the “methodology” used by each of the “experts” was “not professionally appropriate or correct”.

3. I can only agree with the Minister that, when regard is had to the totality of the Tribunal’s analysis, the applicant’s complaint is no more than a disagreement with the weight given by the Tribunal to the reports and the conclusion expressed therein. As the Minister submits, the attribution of weight to be given to evidence by the Tribunal is a matter for the Tribunal and simply disagreeing with any such attribution is not revelatory of jurisdictional error (Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [33] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

4. First, the applicant either did not see, or failed to understand, the inconsistency in one important part of his argument before the Court. On the one hand, the applicant argued that the Tribunal failed to give reasons for the little, or no, weight it gave to the reports of these three “health”, or “medical” professionals. Yet, on the other hand, the applicant criticised the Tribunal for saying that there was an absence of a “diagnosis” in each of the reports (see the Tribunal’s decision record at [143] at CB 346). That is, the applicant took issue with the Tribunal’s use of the word “diagnosis” on the basis that homosexuality is not a disease or medical “condition”.

5. I accept that homosexuality is not a “disease” or medical “condition”.

6. However, in relation to the applicant’s complaint that the Tribunal used the word “diagnosis” in respect of the three medical reports, I am mindful of the caution provided by such authorities as Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 as to how Tribunal decision records are to be read. In that light, I do not accept that the Tribunal member used the word “diagnosis” in the sense claimed by the applicant. That is, having medical connotations or inferring that homosexuality was a “disease” or “condition”. If the Tribunal had, given what is set out immediately above, this would be of concern.

7. Given the approach generally taken by the Tribunal it is decision record, I take the view (but see, as a possible exception, [41] below) that the Tribunal did not use the word “diagnosis” in its relevantly modern sense of describing a medical condition, but in the wider more general meaning ascribed by the etymology of the two Greek words involved (“Dia” – δίa – in the sense of “through”, and “gnosis” – γνωσις – in the sense to know or understand). In short, the Tribunal was simply saying ([143] at CB 346) there was no exposition (in context, in particular in Dr Andrew’s report) of the process through which he came to the knowledge that the applicant was a homosexual. This view is consistent with the entirety of the Tribunal’s analysis, bearing in mind what is set out above in relation to the “expertise” of the three report writers, and the view of the methodology employed by each in coming to their conclusions.

8. Second, the applicant’s complaint in this regard highlights a key flaw in his ground of review. That is, that the applicant asserts that the Tribunal substituted its “lay” opinion for that of the three medical, or health, “professionals”. In that way, the applicant’s complaint is predicated on the assumption that medical practitioners, specifically Dr Harrington, Dr Andrews and Ms Gordon, have an expertise in determining an individual’s sexual orientation. Despite that, the applicant never satisfactorily explained what relevant expertise these three “professionals”, as “health” or “medical professionals”, had to give an expert opinion on a non-medical or health matter. This is particularly so in light of his submission that homosexuality could not be “diagnosed”, nor is it a medical disease or condition.

9. On what was before the Tribunal, Dr Harrington was a general medical practitioner. No other relevant qualifications were put forward. What the applicant, or more precisely his representatives before the Tribunal, who continued to represent him before the Court, failed to explain to the Tribunal, and to the Court, or perhaps overlooked, was what qualification did a general medical practitioner have to make her an “expert” on the divination of the applicant’s sexual orientation. In the circumstances, Dr Harrington was in no better position than the Tribunal in this regard. Given that homosexuality is not a disease or medical condition, then the medical practitioner’s opinion is not within her “expertise”.

1. In relation to Dr Andrews the applicant says he is not a medical practitioner, but an “accredited mental health social worker”. However, even here the applicant has not explained, given again that homosexuality is not a medical or mental health condition, how such a person can be an “expert” on whether the applicant is of homosexual orientation. There is plainly a distinction between being of homosexual orientation and having developed some recognised medical or mental health condition as a result of persecution or discrimination and the like suffered, allegedly, because of that sexual orientation.

2. Of all the “experts” Ms Gordon comes closest, on what was before the Tribunal, to having some relevant expertise. This is not due to her presentation as a clinical psychologist where, again, the focus in on dealing with mental health conditions. Rather, it is her “long term experience in working with homosexual males” (CB 313.4). Here, again, however the expertise is in terms of the mental anguish that can result from discrimination or the like because of a person’s sexual orientation, as opposed to homosexuality itself (see CB 316.5).

3. Third, the Tribunal did not fail to explain its reasons for the assignation of little weight to each of the conclusions or “opinions”.

4. In relation to Dr Harrington, the Tribunal plainly distinguished between the expertise of a medical practitioner and how this was relevant, or in this case not relevant, to determining sexual orientation. Further, it was open to the Tribunal to find, on what was before it, that no methodology was exposed in the report as to how the conclusion was reached.

5. The applicant’s complaint that the Tribunal did not give reasons for assigning no weight to Dr Harrington’s conclusion ([141] at CB 346) must be rejected. Reasons were given. The applicant’s complaint, as implicit in his submissions, is that these reasons were not sufficient. Again, this is a challenge to the weight accorded by the Tribunal to Dr Harrington’s conclusion.

6. I should note that here the Tribunal may have been confused as to the distinction between a medical diagnosis and its relevance to sexual orientation (see [141] at CB 346): “It is not at all clear according to what psychological or medical assessment methods or psychological tools, if any, Dr Harrington had been able to reach her conclusion”. The point however is that, whether the methodology was “medical” or not, it was not relevant. This is because no methodology of any type was revealed in the report, thus providing, in part, the probative basis for the Tribunal’s conclusion.

7. In relation to Dr Andrews, again noting and including the matters above, the Tribunal gave reasons for its concerns about his report (see [143] at CB 346 to [145] at CB 347). In essence, that Dr Andrews relied, without challenge or analysis, on the applicant’s own account of claimed events and that, in any event, what Dr Andrews reported of what the applicant said was not consistent with the evidence otherwise presented to the Tribunal. All of this was reasonably open to the Tribunal on the material before it.

8. In relation to Ms Gordon, the Tribunal’s reasons for not being able to assign “significant weight” to her report and conclusion was the lack of explanation as to how she reached her conclusion (it appears she also accepted the applicant’s account at face value – “I have no doubt” – see [146] at CB 347) and her lack of exposition of the methodology used to arrive at her conclusion. Again, all of this was open to the Tribunal on what was before it.

9. The applicant’s reliance in his attack on s.430 of the Act does not assist him. As the Minister submits (at [14] of his written submissions):

   “…The obligation under that provision is only to give what were in fact the Tribunal’s ‘reasons for its decision, not the subset of reasons why it accepted or rejected individual pieces of evidence’ (R v Minister for Immigration Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, the High Court, in effect, ended the practice of claiming legal error through breach of s430.”

10. The applicant appears to have misunderstood the effect of s.430 of the Act. I do not comprehend this section to require the Tribunal to set out in its decision record some persuasion of the applicant, or the reader, as to why it found against him. Rather, s.430 of the Act requires an explanation of why the Tribunal came to the conclusion that it did. This point can be illustrated with reference to such concepts as merits review and irrationality and illogicality in decision making as described, and applied, in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367 (per Crennan and Bell JJ and Hayden J).

11. That is, that the relevant decision maker acts within jurisdiction if findings are made, and conclusions reached on those findings of fact so long as such findings are reasonably open on the material before the decision maker. A decision is not irrational, or illogical, because a different decision maker, or reader of the decision record for that matter, would have reasoned differently and come to a different conclusion. Nor can a Court find jurisdictional error simply because it thinks a different outcome should have emanated from the material or the analysis of it. As the High Court said in Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 an applicant is entitled to a “fair” process, not necessarily a “fair” outcome.

12. Section 430 of the Act therefore “simply” compels the Tribunal to present the findings of fact actually made and the evidence and material on which those findings are based.

13. In my respectful view, this is the import of what was said in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 (“Yusuf”) and in particular at [68] per McHugh J, Gummow and Hayne JJ (as set out above at [44] of this judgment).

14. In this light the applicant has misunderstood what, in my respectful view, Rares J said in Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362; (2010) 117 ALD 259 (“SZLSP”) at [98] (a case on which the applicant now seeks to rely):

    “Where the tribunal fails to comply with the requirements of s 430(1) and it is not possible to be satisfied that its written statement had a proper basis, the Court can infer, safely, that the tribunal constructively failed to exercise its function of review.”

15. I do not, respectfully, understand Rares J to be at odds with what was said by the High Court in Yusuf. For the applicant’s argument to have any substance that would have to be the case. It is not. Justice Rares did not suggest jurisdictional error arose from a breach of s.430 of the Act. With respect, what I comprehend his Honour to have said was that where a failure to comply with s.430 of the Act has occurred, then a presumption may arise that, if there was a proper basis for the Tribunal’s relevant finding, it would have been presented in the decision record.

16. This is made clear when regard is had to what Rares J said elsewhere in SZLSP, see in particular at [96] and the application in that case of Yusuf.

17. In the current case, as set out above, the Tribunal gave reasons for its relevant attribution of weight to each of the reports. It complied with s.430 of the Act in this regard.

18. Following the hearing in this matter, Cameron FM handed down judgement in SZQYU & SZQYV. These were cases involving two applicants who claimed to have been in a homosexual relationship. They also provided reports from a “health” professional. As the applicant says in the current case in his submissions “coincidentally the same witness as in this case” (see further in the applicant’s further written submissions at [2]).

19. The applicants in that case had provided Dr Andrews with a “disc” said to contain images of themselves having sex. Dr Andrews’ evidence (his report was provided to the Tribunal) included references to the contents of that disc. That disc was also provided to the Tribunal. However, the applicants subsequently asked the Tribunal not to view the disc. This was noted in SZQYU & SZQYV at [64]. His Honour found that because the Tribunal gave no reasons for rejecting the contents of the disc as described by Dr Andrews in his report, then an inference could be drawn that the Tribunal in that case had not considered the evidence of a physical relationship between the two applicants. That is, the images on the disc as “revealed” by Dr Andrews.

20. In the current case, the applicant has sought to present this as the Tribunal, in SZQYU & SZQYV (and by implication, in the current case), did not give “reasons for disregarding evidence from an expert witness …” (at [2] of the applicant’s further written submissions).

21. Given what is set out below, it is unnecessary to consider whether I would follow the approach taken in SZQYU & SZQYV.

22. The circumstances of the current case are plainly distinguishable from those in SZQYU & SZQYV. Critically, no photographic, or other similar, evidence of sexual engagements of the type described in SZQYU & SZQYV was given by this applicant to Dr Andrews, nor then to the Tribunal. There is no such evidence in the current case such that it could be said that a failure to mention it in the decision record raises an inference that it was not considered. Photographs were given to the Tribunal. They did not depict the applicant in any sexual engagement. In any event, the Tribunal considered them.

23. Further, as also set out above, the Tribunal did consider the evidence of Dr Andrews. It gave reasons as to why it treated Dr Andrews’ report in the way that it did.

24. Implicit in the applicant’s submission now is that it was not open to the Tribunal to “reject” Dr Andrews’ evidence in the way that it did. In a sense, the applicant’s case before the Court was that Dr Andrews was an expert in assessing homosexual orientation (he had taken “many sexual histories”) and the Tribunal’s failure in its decision record to refer, in detail, to certain aspects of Dr Andrews’ report (see in particular CB 292 and the “Conclusion” at CB 295), where Dr Andrews said he found the applicant’s account of his sexual practice to be consistent and plausible, meant that an inference could be drawn that the Tribunal did not consider this.

25. Further, for all of the reasons above as to why SZQYU & SZQYV does not assist the applicant in the current case, if what the applicant is also seeking to say is that given the “expert” nature of Dr Andrews’ evidence it was not open to the Tribunal to reject his opinions arising from facts which he described in his report (the applicant’s account) which the Tribunal subsequently found to be inconsistent with other evidence presented to it, then this must be rejected.

26. Plainly, the Tribunal was entitled to compare the “narratives” (the applicant’s account) as recorded in Dr Andrews’ report (see at CB 292) with other evidence presented. It was reasonably open to the Tribunal to find that there were inconsistencies and, therefore, cast doubt on what the applicant told Dr Andrews ([145] at CB 347). If the applicant is seeking to argue in the present case that SZQYU & SZQYV stands for any such proposition then, respectfully, I cannot see that to be the case.

27. In all therefore, ground two is not made out.

Ground Three

1. Ground three asserts that the Tribunal failed to have regard to the question of whether the desirability of consistency in administrative decision making requires the Tribunal to apply the guidelines contained in the document “Guidance as to the Assessment of Credibility” (AE1) (the “Guidance”)  issued by the Tribunal.

2. This was particularised by stating that when the Tribunal “substituted” its own “lay” opinion for that of the “expert’s opinions” it failed to consider the “Guidance” at [8.1] – [8.5] which was said to deal with “expert evidence”.

3. It must be said that the applicant’s ground as particularised, and the argument in support (see further below), are, bluntly, misconceived. Even if the applicant’s argument could be made out factually (which for the reasons that follow, it is not) no satisfactory attempt was made to explain how this could, let alone that it did, result in jurisdictional error.

4. The argument, as I understood it, is as follows. The Tribunal issued “Guidance” which included guidance on how to deal with “expert evidence” (Chapter 8 of the “Guidance” – AE1):

   “8 Expert evidence

   8.1 The tribunal will have due regard to information which assists the tribunal to reach the correct or preferable decision, including expert evidence, information about conditions and laws in an applicant’s country of origin and other relevant sources of information.

   8.2 Evidence may be submitted to the tribunal by persons with a particular expertise in a particular subject area. Such evidence is generally submitted in the form of written reports. The person’s expertise may be in medical, psychological, academic, scientific, technical or other related areas. Experts are persons who are appropriately qualified to provide informed comment and opinions on a relevant matter, whether by formal qualifications or by practical experience in a particular area.

   8.3 The tribunal expects an expert to give objective, unbiased opinion in relation to matters within his or her expertise. An expert should state the facts or assumptions upon which his or her opinion is based.

   8.4 The tribunal will have due regard to expert opinion and the basis upon which an expert has reached an opinion, including the use of clinical diagnostic criteria, the number and frequency of consultations and relevant experience.

   8.5 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 opinions 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.”

5. The applicant submitted that the “Guidance” is consistent with what was said by Burchett J in Fuduche v Minister for Immigration & Local Government & Ethnic Affairs (1993) 45 FCR 515 (“Fuduche”) at 529. Further, the authorities dealing with the relevance of “policy guidelines” to administrative decision making can be traced back to Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634 (“Re Drake”). The important point to be derived is that where a decision maker, here the Tribunal, departs from “policy” it should have, and it should make reference to, substantial and cogent reasons for doing so (see also Hneidi and Ors v Minister for Immigration and Citizenship (2010) 182 FCR 115 (“Hneidi”) at [58] – [59] per Spender, Emmett and Jacobson JJ).

6. As against this, it was argued by the applicant that the Tribunal in the current case gave no reasons as to why it preferred its own “lay opinion” over those of “professionals”. In particular, that this occurred in the field of expertise of these professionals. These “professionals” were not fact finders in “competition” with the Tribunal.

7. There are many answers to this ground. Some stand on their own as complete answers.

8. First, as set out above, the premise that this involved a “lay” Tribunal failing to give reasons for rejecting “expert professional” opinions must be rejected. The critical issue, or opinion, was of homosexual orientation. This, of itself, is not a medical, health or mental health condition (although, as set out above, it may lead to consequential conditions given adverse experiences, such as anxiety, trauma and the like). To the extent therefore that the “opinions” were said to be those of expert health professionals, this was not the relevant area of expertise. Dr Harrington stands, as the Tribunal found, at the extreme end of the relevant professional area of expertise. Dr Andrews and Ms Gordon’s expertise derived at best from years of relevant experience, not necessarily their qualifications and status as “health professionals”.

9. Second, what is contained in “AE1” is, as stated, “Guidance”. Given that the applicant specifically acknowledges before the Court that this is not a “direction” within the meaning of s.420A of the Act, that possible avenue of asserting jurisdictional error is not available to him,

10. Third, the applicant says that the “Guidance” should be treated as a “policy guideline” of the type and status as found in the Procedures Advice Manual (“PAM”) (“PAM3” is the current version), available to officers of the Department of Immigration and Citizenship.

11. The distinction between different types of policy (government, ministerial and departmental) was considered by me in He v Minister for Immigration & Anor [2009] FMCA 1142. The document currently before the Court is not a statement of government or ministerial policy. As the Minister submits, the contents of the “Guidance” should not be confused with a statement of executive government intent, such as, for example, the “old criminal deportation” policy which was the subject of consideration in Re Drake. This is not such a statement of policy.

12. The document, and what is set out at Section 8 of the “Guidance”, is exactly what the document says it is. That is, a guide to Tribunal members as to how they may go about one aspect of their task. That is, the assessment of credibility where a “reliable” expert has given an opinion.

13. This is not a situation however, as, for example, with the family violence provisions of the Regulations, where the Tribunal is bound to follow the conclusion of the “independent” expert (see the Div.1.5 of the Regulations). No such compulsion exists in the Act or Regulations in relation to expert reports in matters of the type currently before the Court.

14. Fourth, the applicant appears to have confused the statutorily and legally defined task of this Court with such bodies as the Administrative Appeals Tribunal and the Ombudsman. While consistency in decision making is undoubtedly a desirable outcome of the relevant body of administrative decision making, it is outside of the scope of the task given to this Court in matters of this type to consider these questions in relation to this caseload. This Court cannot relevantly make findings as to maladministration, or the merits, of the Tribunal’s decision. On their own, such matters do not reveal jurisdictional error which is, after all, the central, and ultimate, concern of the current proceedings.

15. Fifth, but even if the “Guidance” were to be treated as a “policy” in the sense explained in such cases as Re Drake, the applicant appears to have misunderstood the entirety of Hneidi (a case on which he relied to say the views of Brennan J in Re Drake were considered with approval). Had he looked at the totality of that case, he would have seen that, as the Minister submits, the Full Court (per Spender, Emmett and Jackson JJ) found that the central principle to be applied is that the Tribunal must make its own independent judgment (see Hneidi at [56] and [57]).

16. It is here that the critical, and initial, flaw in the applicant’s argument for ground three, and for that matter ground two, is starkly revealed. The Tribunal did make its own assessment as to the applicant’s credibility on the actual issue of his sexual orientation (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). In this task, it considered what each of the reports said. It gave reasons for its evaluation of what those reports said about the applicant’s sexual orientation. No jurisdictional error is revealed here.

17. Sixth, and in any event, the terms of the “Guidance” are ambiguous in at least one critical sense. At [8.5] the “Guidance” says that the Tribunal should not substitute its own “lay opinion” for that of an expert (putting to one side the concern about the relevant expertise here).

1. Is this a direction to the decision maker? If so, without the force of the Act or the Regulations, or indeed other law, it falls foul of the principles of “dictation” to a decision maker statutorily charged to conduct the review (see, for example, Hong v Minister for Immigration & Multicultural Affairs [1999] FCA 1567 at [20] per Madgwick and Re Drake at 640 – 641 per Brennan J).

2. If not a direction, is it an expression of some legal principle? If so, there is no reference to any relevant authority. I note that the “Guidance” is otherwise littered with footnotes providing authoritative references for statements otherwise made. Nor did the applicant before the Court point to any relevant authority in support.

3. In this regard, the applicant’s reference to Fuduche does not assist him. In that case, Burchett J was concerned with the exercise of a discretion by the relevant decision maker, and whether Wednesbury unreasonableness may apply. This has not been raised and does not, in any event, apply here. The relevant statutory regime here requires the Tribunal to reach a requisite level of satisfaction (s.65 of the Act) that the criterion in s.36(2) of the Act is met (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225). In reaching, or not reaching, that requisite level of satisfaction, its own satisfaction, the Tribunal did consider the opinions in the three reports and their respective conclusions. It was simply not persuaded by them such that it could be satisfied that the applicant met the criteria for a protection visa.

4. Seven, and in any event, the next sentence in the “Guidance” at [8.5] following the one discussed above, somewhat ambiguously given the directive tone of that sentence, does allow for the Tribunal to not accept the opinions of the experts. It provides that, in that circumstance, the Tribunal must provide clear reasons for not accepting such evidence.

5. It may not have been to the applicant’s liking, but as set out above, the Tribunal did just that. The applicant may not like its reasoning process, but again, this is nothing more than a challenge to factual findings and the attribution of weight given to evidence by the Tribunal. None of this reveals jurisdictional error.

6. In all ground three is not made out.

Conclusion

1. None of the three grounds of the amended application have been made out. In those circumstances, the application should be dismissed. I will make an order accordingly.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date: 30 January 2013