SZRRX v Minister for Immigration & Anor

[2013] FMCA 84

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRRX v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 84

MIGRATION – Application for review of decision of Refugee Review Tribunal – alleged breach of s.424A of the Act – alleged breach of s.425 of the Act – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91R, 420, 424A, 424AA, 425, 476

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Khan v Minister for Immigration and Citizenship [2011] FCAFC 21; (2011) 192 FCR 173; (2011) 276 ALR 1
SZNKO v Minister for Immigration and Citizenship [2010] FCA 297
SZMCD v Minister for Immigration & Citizenship & Anor [2009] FCAFC 46; (2009) 174 FCR 415
Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396
Minister for Immigration & Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507
MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319; (2008) 166 FCR 483
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 215 ALR 162
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
SZMPT v Minister for Immigration and Citizenship [2009] FCA 99
SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74
Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
SZIMM v Minister for Immigration & Anor [2008] FMCA 34
SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486
SZQTV v Minister for Immigration & Anor [2012] FMCA 827
SZQSP v Minister for Immigration & Anor [2012] FMCA 890

Applicant: SZRRX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1673 of 2012

Judgment of: Nicholls FM

Hearing date: 5 February 2013

Date of Last Submission: 5 February 2013

Delivered at: Sydney

Delivered on: 20 February 2013

REPRESENTATION

Appearing for the Applicant: Mr M Jones

Solicitors for the Applicant: Parish Patience Immigration Lawyers

Counsel for the Respondents: Mr J Kay Hoyle

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application made on 1 August 2012 and amended on 24 January 2013 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 1673 of 2012

SZRRX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 1 August 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), and amended on 24 January 2013, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 3 July 2012, to affirm the decision of the respondent Minister’s delegate (“the delegate”) to refuse the grant of a protection visa to the applicant.

Relevant Background

1. The applicant is a citizen of Pakistan (Court Book – “CB” – CB 13). He arrived in Australia on 28 June 2006 on a student visa (CB 21). On 9 November 2010 the applicant applied for a protection visa (CB 2 to CB 112, including annexures). He was assisted in making that application by Mr DL Bitel of Parish Patience Immigration Lawyers, who was also appointed as the applicant’s “authorised representative” (CB 1, CB 4 to CB 7 and CB 16).

2. The applicant claimed to fear persecutory harm because he was a member of a particular social group, said to be homosexual men in Pakistan. Further, that homosexuality was prohibited by law in Pakistan and was against the Muslim religion.

3. Additional documents in support of the applicant’s claim to protection were provided by his representative on 15 December 2010 (CB 232 to CB 237). Relevantly, and importantly in terms of the issues in these proceedings, in support of his application the applicant provided a Statutory Declaration from a Mr Syeed Kabir Rony, dated 14 December 2010 (CB 233 to CB 234). In that Statutory Declaration Mr Rony declared that he had met the applicant in May 2010 and that he had developed a relationship, including a sexual relationship, with the applicant.

4. The applicant attended an interview with the Minister’s delegate and, following that interview, on 11 November 2011 was notified of the delegate’s decision to refuse the grant of a protection visa (CB 252 to CB 255). The delegate was not satisfied as to the veracity of the applicant’s claimed conduct in Australia, nor that it had been done for any reason other than to enhance his protection visa application (CB 262.3 to CB 262.7). The delegate therefore disregarded that conduct pursuant to s.91R(3) of the Act. Further, and variously, the delegate was not satisfied that the applicant suffered persecution because he was a member of a particular social group (said to be homosexual men in Pakistan). The delegate also relied on the delay (well over four years) in the applicant applying for a protection visa after arriving in Australia (CB 263.7 to CB 264.4).

The Tribunal

1. On 22 November 2011 the applicant applied to the Tribunal for review of the delegate’s decision (CB 266 to CB 270). He was assisted, again, by the same representative in making that application (CB 266 and CB 268).

2. The applicant was invited to attend a hearing with the Tribunal which, having been re-scheduled on one occasion (CB 281 to CB 283), ultimately occurred on 11 May 2012 (CB 289). I note that the applicant’s representative had requested a postponement of that hearing (CB 287), but that that request was refused (CB 289).

3. Prior to the hearing, Statutory Declarations from three individuals, who were to also attend at the hearing for the purpose of giving evidence, were provided to the Tribunal (CB 291 to CB 298).

4. On 3 May 2012, Mr Rony attended at the Tribunal reception and spoke with a Tribunal “case officer” ([56] at CB 332). He advised that “…he did not wish to provide evidence that he had been in a homosexual relationship with the applicant” ([56] at CB 332). He provided a written statement in which he set out his meeting, and subsequent relationship, with the applicant. He stated that “…the applicant never touched or even kissed him…” and that “[the applicant] never wanted to have sex with [him]” ([56] at CB 332).

5. Mr Rony attended at the Tribunal again on 7 May 2012. He was interviewed by the Tribunal and provided further evidence, including that the applicant had a girlfriend (“Rena”) ([57] at CB 332) and that his statutory declaration was not true in respect of his evidence that “…he had no doubt about the applicant being gay because they had had sexual intercourse” ([57] at CB 333).

6. At the hearing on 11 May 2012, the applicant appeared in person. He was accompanied by a representative from Parish Patience Immigration Lawyers. The applicant gave evidence that his relationship with Mr Rony had finished “about six months ago” and that that was why Mr Rony had not given evidence at the Departmental interview ([64] at CB 335). Further, the applicant gave evidence that he and Mr Rony had had a sexual relationship and that that commenced in May 2010 and was continuing until before the Departmental interview. The applicant denied having been with any “girls” ([78] at CB 337). The hearing was adjourned.

7. Prior to the second occasion of the hearing, the applicant’s representative provided further country information to the Tribunal (CB 308 to CB 311).

8. The hearing resumed on 21 May 2012 (CB 306). The applicant attended the second occasion of the hearing and was again assisted by a representative (CB 313).  

9. At the resumed hearing, pursuant to s.424A of the Act, utilising the facility provided by s.424AA, the Tribunal put to the applicant the information provided by Mr Rony on both occasions that he had attended at the Tribunal ([95] at CB 340 to [108] at CB 341). The Tribunal explained the significance of that information to the applicant, being that it could lead the Tribunal to finding that the applicant was not a credible witness in relation to his evidence that he was in a relationship with Mr Rony ([100] at CB 341). Further, the Tribunal asked the applicant if he “knew a girl called Rena” ([103] at CB 341).

10. Even further, the Tribunal raised with the applicant anonymous information that had been provided to the Department to the effect that the applicant’s protection visa application was not genuine. Because that information was from an “unnamed source” the Tribunal indicated that it “…would not be placing any weight on that information” ([99] at CB 341).

11. The applicant’s representative requested to “…listen to the hearing recordings before making any comments or response” in regard to this information ([104] at CB 341). That request was granted and the applicant’s representative was to provide further information by 10 June 2012 ([106] at CB 342 and CB 316). That time was ultimately extended to 22 June 2012 (CB 316 to CB 317 and [108] at CB 342). No submissions were provided by the applicant or his representative.

12. On 3 July 2012, the Tribunal decided to affirm the delegate’s decision to refuse the grant of a protection visa to the applicant. The applicant was notified of that decision by letter, dated 4 July 2012, sent to his authorised recipient for the purpose of the review (CB 318).

13. The Tribunal accepted that the applicant had attended the Mardi Gras parade, was on one occasion part of a float in the parade, and had attended “gay venues” and socialised with “gay men” ([115] at CB 343). However, the Tribunal did not accept that the applicant was a homosexual, nor that he had engaged in a homosexual relationship at any time ([115] at CB 343).

14. The Tribunal accepted that Mr Rony and the applicant had spent time together but rejected the applicant’s claim that they had engaged in a sexual relationship or that the men were intimate ([115] at CB 343). The Tribunal was ([117] at CB 344):

    “… of the view that the applicant became friendly with Mr Rony and pretended to be interested in him as a boyfriend so Mr Rony would provide a Statutory Declaration in support of the applicant’s Protection visa application.”

15. Given its finding that the applicant was not a homosexual, the Tribunal rejected that the applicant was in a relationship with, or had had a sexual experience with, the various men who had provided evidence (both in Statutory Declarations and before the Tribunal) in support of his application ([118] at CB 344). The Tribunal therefore affirmed the delegate’s decision.

The Application to the Court

1. The grounds of the amended application to the Court are:

   “1. The Tribunal failed to comply with the requirements of s 424A of the Act.

   Particulars

   The Tribunal took evidence from a witness in the absence of the Applicant. Although the Tribunal gave some particulars of that evidence to the Applicant at the hearing in accordance with s424AA, it withheld significant information concerning matters which would have been the reason, or part of the reason, for affirming the decision under review. The information concerned arguments between Mr Rony and the Applicant about money, and a claim that the Applicant’s alleged girlfriend had had three abortions.

   2. The Tribunal failed to give the Applicant a proper hearing as required by s 425 of the Act

   Particulars

   The Tribunal restricted the Applicant’s ability to give evidence and present arguments relating to the issues arising in relation to the decision under review by not making available to him the recording of the Tribunal’s interview with the witness.”

2. Before the Court, in respect of ground one, the applicant no longer relied on “information concern[ing] arguments between Mr Rony and the [a]pplicant about money”. That is, the applicant’s first ground was, ultimately, only particularised with reference to “a claim that the [a]pplicant’s alleged girlfriend had had three abortions”.

Before the Court

1. At the final hearing, Mr M Jones appeared for the applicant. Mr J Kay Hoyle of counsel appeared for the respondent Minister. The Court had before it the applicant’s amended application and written submissions filed on behalf of both the applicant and first respondent. [I note that consent orders were provided to chambers on 23 January 2011 seeking to amend the timetable for the filing of documents as set out in orders, made by consent, on 21 August 2012. Leave was granted to the parties to file their documents in accordance with that amended timetable.]

2. Further, the applicant sought leave to rely on the affidavit of Ms Sue Archer, affirmed on 22 January 2013, which annexed a transcript (“T”) of the Tribunal’s interview with Mr Rony on 7 May 2012. Leave was granted, with no objection by the Minister, for that affidavit to be read.

3. I note that at the conclusion of the hearing before the Court, that is, in the applicant’s submissions in reply, the applicant sought an extension of time to obtain, and leave to file, a transcript of the Tribunal hearing. Given the very late notice of that request, and that orders made at the first Court date (over five months earlier) had provided the applicant with a reasonable opportunity to file any such evidence, that request was refused. Particularly in circumstances where the relevance of such a transcript, particularly in relation to ground two, would have been apparent at a much earlier time.

4. The complaints made in the applicant’s amended applicant both arise out of the same, in the applicant’s representative’s words, “unusual circumstances”. That is, that Mr Rony, a person who had previously provided evidence in support of the applicant’s case, by way of a Statutory Declaration, resiled from that evidence and instead provided evidence adverse to the applicant’s claim to protection in an interview with the Tribunal member prior to the two occasions of the hearing with the applicant.

Ground One

1. The first ground of the amended application asserts that the Tribunal failed to comply with s.424A of the Act in that, despite utilising s.424AA of the Act and putting some of Mr Rony’s evidence to the applicant at the hearing, the Tribunal withheld “significant” information. That “significant” information was, ultimately, said to be that the applicant’s alleged girlfriend (Rena) had had three abortions.

2. Before the Court, the applicant submitted that the evidence of Mr Rony was “the key element” in the Tribunal finding that the applicant was not a homosexual. While some of the information relied on by the Tribunal to ground that finding was put to the applicant at the second occasion of the Tribunal hearing, the Tribunal did not disclose Mr Rony’s evidence that the applicant’s alleged girlfriend had had three abortions. Mr Rony’s evidence in that regard was said to be recorded at T9, line 25 to T10, line 45 and T25, lines 11 – 14. The applicant submitted that that “information” contained in its terms, at least, an undermining of the applicant’s claim to protection as that “information” inferred that the applicant had engaged in a long term sexual relationship with a woman (with reference to SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) at [17]). Further, and with reference to Khan v Minister for Immigration and Citizenship [2011] FCAFC 21; (2011) 192 FCR 173; (2011) 276 ALR 1 (“Khan”) (at [45] per Buchanan J), it was possible that credence could be given by the Tribunal to that information and, in those circumstances, the Tribunal was obliged to give particulars of the information to the applicant.

3. It was unclear from the applicant’s written submissions whether the thrust of his complaint in ground one was a breach of s.424A(1)(a) or s.424A(1)(b) of the Act. At the hearing, the applicant indicated that his attack was focused on s.424A(1)(a), and that a breach of that section would, necessarily, result in a breach of s.424A(1)(b) and (c) of the Act.

4. Further, in written submissions, the applicant appeared to complain that the Tribunal did not disclose that the interview with Mr Rony had been recorded ([10] of the applicant’s written submissions). [In oral submissions before the Court the applicant initially stated that he did not complain about the interview itself. That is, that he did not assert, or submit, that the Tribunal had erred in taking evidence from a witness separate, or prior, to the hearing with the applicant. However, I note that later in his oral submissions, in respect of the second ground, the applicant took issue with the manner in which the Tribunal interviewed Mr Rony – see further below.]

5. In response, the Minister noted that the Tribunal was only obliged, under s.424A of the Act, to put “clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review”. It was the Minister’s submission that the Tribunal gave “clear particulars” of Mr Rony’s evidence to the applicant ([25] of the Minister’s written submissions). In those circumstances, the Minister contended that the “real question” for the Court was whether the Tribunal gave sufficient particulars of the “information” that arose from Mr Rony’s evidence ([26] of written submissions).

6. With reference to SZNKO v Minister for Immigration and Citizenship [2010] FCA 297 (per Flick J), SZMCD v Minister for Immigration & Citizenship & Anor [2009] FCAFC 46; (2009) 174 FCR 415 (“SZMCD”) and Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 (at [104] per Allsop J), the Minister submitted that whether “sufficient particulars” of the information were provided needed to be determined with reference to the “surrounding context” and “with fairness to the applicant in mind”.

7. In light of that, the Minister submitted that the critical question for the Tribunal in the current case was whether the applicant was a homosexual and while Mr Rony’s evidence as to his sexual relationship with the applicant, and the applicant having a girlfriend, was central to the determination of the critical question, the other information relied on by the applicant now was not. That is, whether the applicant’s alleged girlfriend had had an abortion. That information was said to be simply a “colourful additional detail”. The Minister submitted that, from the evidence before the Court, the substance of the information from Mr Rony was put to the applicant.

8. Further, the Minister submitted that the applicant’s reliance on Khan was misplaced as the Tribunal in that case failed to disclose to the applicant anything about a letter in which it was claimed that the applicant had made a fraudulent visa application. That is, the Tribunal’s failure to refer to the letter was the issue in Khan. In the current case, the Tribunal disclosed that Mr Rony had given evidence and disclosed the substance of that evidence.

9. Before the Court, the Minister referred to the High Court’s judgment in Minister for Immigration & Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 (“SZLFX”), which considered the High Court earlier judgment in SZBYR. In particular, the Minister took the Court to [24] – [25] of SZLFX for the proposition that the Tribunal was only required to provide to the applicant “information that would, not could or might, be the reason, or part of the reason, for affirming the decision under review” (SZLFX at [25] and with reference to MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319; (2008) 166 FCR 483).

10. I note that before the Court the Minister’s submissions in relation to ground one did interweave, to some extent, the matter of “information” (as referred to in s.424A of the Act, and with reference to ground one) and “issues” (as referred to in s.425 of the Act, and with reference to ground two). That is, with reference to Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367 and in respect of ground one, the applicant submitted that the “central issue” was “fair notice of critical matters of concern to the Tribunal”.

1. It was the respondent’s contention that, to a degree, there was no clear dividing line between s.425 and s.424A of the Act. That is, that there was overlap between the two sections. That was said to be because the obligation to put “information” to the applicant under s.424A of the Act, and the “substance” of that information, is determined by the circumstances of the case. That is, the issues in the case. Further, it is those issues which, pursuant to s.425 of the Act, must be put to the applicant for comment and, in relation to an applicant, may give evidence.

Ground One: Consideration

1. I accept, as the Minister submits, that what is “information” that the Tribunal considered would be the reason, or a part of the reason, for affirming the delegate’s decision (with reference to s.424A of the Act) and what are the “issues” determinative of the review (with reference to s.425 of the Act), must be considered in the context of the circumstances presented in each individual case.

2. However, in my view, it is preferable, and advantageous, to avoid confusion to separately use the language of the statute as it appears, and is applied, by each of s.424A (as explained in such authorities as SZBYR) and s.425 of the Act (as it is explained in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”)).

3. It is also accepted, as it must be given SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 215 ALR 162, that s.424A of the Act imposes an obligation on the Tribunal to give an applicant in writing, for comment or response, “information” (as that term is understood in light of SZBYR at [17] – [18]) caught by s.424A(1) of the Act and not exempt by the operation of s.424A(3) of the Act.

4. However, as was explained in SZMCD, s.424AA of the Act provides a mechanism by which the Tribunal may orally discharge its obligation arising from s.424A(1) of the Act. In light of the applicant’s submissions, it is important to note that s.424AA of the Act does not create any additional obligations on the Tribunal. It is a facility to otherwise discharge the obligations arising in s.424A(1) (SZMCD).

5. In his interview with the Tribunal Mr Rony told the Tribunal that the applicant had a girlfriend (T9, lines 27 – 31), who called Mr Rony on occasion (T9, line 42 to T10, line 3) and that she had said that the applicant and she had been “together for three or four years” (T10, lines 27 – 29).

6. The applicant directed the Court specifically to the evidence of Mr Rony that “…she was pregnant three times during this period” (T10, lines 28 – 29). The applicant specifically emphasised that the Tribunal “extrapolated that to mean that ‘she had had three abortions’” (with reference to T25, lines 12 – 13).

7. The applicant then referred the Court to [97] (at CB 341) of the Tribunal’s decision record:

   “I mentioned to the applicant that Mr Rony said a girl called Rena called him on more than one occasion, and she said she had been in a relationship with the applicant for about three years. She said she told Mr Rony the relationship was on and off and she knew all about Mr Rony and the fact that he was helping the applicant to get a visa.”

8. The applicant argues that, with reliance on the Tribunal’s account of what occurred at the hearing with the applicant, as set out in its decision record, the Tribunal did not put to the applicant, as it was required to do pursuant to s.424A(1) of the Act, the “information” that Mr Rony had told the Tribunal. That is, that the applicant’s girlfriend had been pregnant three times over the time she had been seeing the applicant and that she had had three abortions.

9. For reasons that are obvious, particularly given what is set out below, some care must be taken to note that the applicant did not put before the Court a transcript of what was said at the Tribunal hearing. When the Court pointed this out during the course of submissions, the applicant (through his representative) made reference to the cost of obtaining a transcript. As referred to above at [25], a subsequent request was made, during closing submissions in reply, for an “indulgence” to allow a transcript to be provided. That request was refused.

10. While cost may be a factor, the decision not to obtain a transcript was one made by the applicant while legally represented. For reasons set out immediately below, it became apparent during the course of the exchange between the applicant’s representative and the Court, and the Minister’s representative, that the applicant may have left himself in a “weaker” position in relying on the Tribunal’s account of the hearing than possibly may have otherwise been the case if he had sought to rely on a transcript.

11. In resolving the issues before it, it is trite to say that the Court can only proceed on the evidence presented. Ultimately, in the current case, the only evidence of what occurred at the hearing is that contained in the Tribunal’s decision record where it reports on the hearing. In these circumstances, it is not open to the Court to make inferences or assume what may otherwise have occurred at the hearing in the absence of a transcript (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241).

12. This point becomes important in this case when regard is had to the language of s.424A(1) of the Act. The Tribunal’s obligation, as the High Court made clear in SZBYR, is to give the applicant “information” that “it considers would be the reason, or a part of the reason, for affirming the decision under review”.

13. Two matters relevant to these proceedings emerge. First, what constitutes “information”? In my respectful view, clear direction was provided by the High Court in SZBYR as to what constitutes “information” for the purposes of s.424A of the Act. Whatever may be said about Mr Rony’s evidence that the applicant’s girlfriend was pregnant on three occasions, it is clear that the Tribunal’s reference to the three abortions was its view, or its understanding of the evidence given by Mr Rony. As the applicant submitted, this was an “extrapolation” by the Tribunal. That is, the Tribunal assumed, or reasoned, that given she had been pregnant on three occasions and Mr Rony had made no mention of any child of the applicant’s and Rena’s, then the pregnancies must have been terminated.

14. As was made clear by the High Court in SZBYR, the Tribunal’s view of the evidence given to it, its thoughts about the evidence, what it makes or, relevantly, “extrapolates” from the evidence, is not “information” for the purposes of s.424A(1) of the Act. It is also important to note that even if the Tribunal was wrong in drawing this conclusion, such an error in fact finding does not, in the circumstances of this case, amount to jurisdictional error.

15. A second, and complete, answer to both the pregnancy matter and even the abortion matter, is that it is not sufficient that there be “information” before the Tribunal for the obligation in s.424A(1) of the Act to be engaged. Rather, it must be “information” that the Tribunal considers would be the reason, or a part of the reason, for affirming the delegate’s decision.

16. The applicant says that this imposes an “objective” test. I do not agree with this in the sense put by the applicant. The language of the statute is clear. It is “information” that “the Tribunal considers”. It is for this reason that regard must be had to the actual evidence before the Court and to draw from that evidence the basis on which it can be said that there was particular “information” amongst all the information before the Tribunal, that it can then be said the Tribunal considered that information to be the reason, or a part of the reason, for affirming the delegate’s decision and therefore engaging its obligation under s.424A(1) of the Act.

17. It is the case that the High Court in SZBYR emphasised the relevant statutory language and found that the use of the words “would be” meant that the question posed by the statute is to be answered with regard to any relevant point anterior to the making of the decision. That is, at any point in the process where there is evidence to say that there was “information” that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. In this sense, even if the Tribunal did not subsequently go on and rely on that information in its decision, the fact that there was an earlier point where it considers it “would be” is sufficient to engage the obligation.

18. This does not mean that the published decision record cannot help inform the answer to the question, but the temporal focus must be on a time antecedent (SZMPT v Minister for Immigration and Citizenship [2009] FCA 99 at [20] per Jacobson J and SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 at [36] per Siopsis J).

19. The applicant points to the Tribunal’s decision record. In essence, his argument is that there was information given by Mr Rony (the pregnancies and, noting what I have set out above, the abortions) and when regard is had to the Tribunal’s account of the hearing ([62] at CB 334 to [89] at CB 339) there is no mention by the Tribunal of having put that “information” to the applicant.

20. The applicant’s submissions to the Court failed to have regard to the entirety of the transcript of the Tribunal’s interview with Mr Rony. This reveals the flaw in his argument and his understanding of the relevant law.

21. First, Mr Rony gave a number of pieces of information to the Tribunal. This was that the applicant (in a context where he claimed to be a homosexual) had a girlfriend (T9, line 28), she had rung Mr Rony (T9, line 34), her “nickname” was Rena (T10, line 16), Rena and the applicant “…were together for three or four years and she was pregnant three times during this period” (T10, lines 28 – 29) and her relationship with the applicant “…was kind of on and off…” (T10, line 39). [I should note that Mr Rony gave other evidence, but it is not directly relevant to the disposition of the applicant’s ground now – for example, that he and the applicant had not engaged in any sexual activity.]

22. Paragraph 117 (at CB 344) of the Tribunal’s decision record reveals that while it raised most of the “information” referred to at [58] above, it does not appear to have mentioned the pregnancies, nor for that matter anything about the abortions.

23. It is here that the entire transcript of the interview with Mr Rony provides some guidance as to what the Tribunal considered was information that “would be” the reason, or a part of the reason, for affirming the delegate’s decision.

24. The Tribunal plainly told Mr Ronny how it intended to use the “information” (T21, lines 24 – 25): “Q. You were very wise. All right. Now, I’m just going to tell you what’s going to happen with this information.” After dealing with another matter raised by Mr Rony, the Tribunal told him, for example (T24, line 32 to T25, line 14):

    “Q. I don’t think I need to ask you anything else. Now I was going to tell you what happens.

    A: Yes.

    Q. This interview, it’s been recorded but it will not be given to anybody.

    A. Yep.

    Q. But when I speak to [the applicant] –

    A. Yep.

    Q. –on Friday –

    A. Is it on this Friday?

    O. Yeah.

    A. Okay, thank god I’m not going to be here otherwise they’re going to be asking me, they will ask me to come or something.

    Q. And I just thought I’d let you know I will be talking to him about his application and his relationship with you and if he says that he did have a relationship with you then I would be telling him that that is not how you saw it, okay?

    A. Yep.

    Q. And go from there. I will probably mention as well that there’s a girl involved –

    A. Yep.

    Q. –and that she was very much involved with him and she used to call you to get him to go back to her. I’m not going to mention that she had three abortions. It’s too private.

    A. Yeah.”

25. What the Tribunal subsequently told the applicant at the hearing accords generally with what the Tribunal told Mr Rony would happen with the information he had given. That is, that applicant would be told those matters reported at [117] (at CB 344) of the decision record.

26. A clear inference to be drawn from the transcript of the interview is that the lack of any reference here to any pregnancies meant that the Tribunal did not consider this to be information that would be the reason, or part of the reason, for affirming the delegate’s decision and therefore did not need to tell Mr Rony what the Tribunal would do with it.

27. If the Tribunal’s “extrapolation” of the abortions was an implied reference to the pregnancies, then the Tribunal’s statement to Mr Rony, in context, can be seen as a reinforcement that the abortions and pregnancies would not be the reason, or a part of the reason, for affirming the delegate’s decision.

28. That context is also informed by what the Minister’s submissions generally refer to as the “issues” ultimately in the case. Given what I have generally set out above, this can only be understood in the context that the applicant’s circumstances and claims, as presented, provide the framework within, or against which, the question of what the Tribunal considered would be the reason, or a part of the reason, for affirming the delegate’s decision is to be ascertained.

29. In this regard, the applicant claimed to be of homosexual orientation. This was central to his claim to fear persecutory harm if he were to return to Pakistan. It was not that he had a girlfriend who had been pregnant and had had three abortions. Whether his girlfriend Rena was ever pregnant, or even had abortions, was not the basis on which the question of his homosexual orientation was settled. That question, as the Tribunal implicitly told Mr Rony, was to be settled with reference to the information that, contrary to his claim not to have had sexual relations with women and only to have had such relations with men, the applicant had had a girlfriend for a considerable period (albeit on and off) with whom he had engaged in sexual activity.

30. Whether the applicant’s girlfriend became pregnant as a result, or even had abortions, was not information that the Tribunal put to the applicant at the hearing because the Tribunal did not consider such “information” would be the reason, or a part of the reason, for affirming the decision under review.

31. In summary, therefore, the Tribunal’s “extrapolation” about the abortions is not information for the purposes of s.424A(1) of the Act. Even if it was, the “abortions” and the information about the pregnancies was not “information” caught by s.424A(1) of the Act.

32. In this light, I agree with the Minister’s submissions that Khan does not assist the applicants. In Khan the Tribunal made no reference to the applicant to the information central to its reasoning. Here the Tribunal did put to the applicant the information that it considered would be the reason, or a part of the reason, for its decision. It did not put other information which it did not consider would be the reason, or a part of the reason. In this regard, the Tribunal acted consistently with the proposition set out in SZNKO on what the Minister relies.

33. Ground one is not made out.

Ground Two

1. The second ground of the amended application asserts that, in breach of s.425 of the Act, the Tribunal failed to give the applicant a proper hearing because it had not made the recording of its interview with Mr Rony available to the applicant.

2. In written submissions, the applicant submitted that, without the opportunity to consider the evidence of Mr Rony in its entirety (either by listening to the interview or being provided with a transcript of it) the applicant was denied the opportunity to “…present argument relating to the manner in which the interview with Mr Rony was conducted by the Tribunal” ([21] of the applicant’s written submissions). That was said to be of import because “…the Tribunal conducted its interview with Mr Rony in a manner that did not in any way challenge his reasons for changing his evidence” ([20] of the applicant’s written submissions). Further, the Tribunal had asked “several” leading and suggestive questions. Six extracts from the Tribunal’s interview with Mr Rony were relied on by the applicant in support of this assertion ([20] of the applicant’s written submissions).

3. Before the Court, I understood the focus of the applicant’s attack in this ground to shift. That is, before the Court the emphasis of this ground was that the Tribunal failed to bring an issue to the applicant’s attention. That issue was said to be that the applicant had had an ongoing sexual relationship with a woman. In particular, that Mr Rony’s evidence that Rena had fallen pregnant three times was a critical piece of information as it led to the inference that the applicant’s relationship with her was sexual. It was the applicant’s submission that, pursuant to s.425 of the Act, the Tribunal was required to afford him with an opportunity to present evidence and arguments in relation to whether or not he and Rena had had a sexual relationship.

4. The applicant contended that that “issue” (the allegation that he had had a sexual relationship with a woman) had not been raised with him at the Tribunal hearing. While the Tribunal’s decision record states that the Tribunal raised with the applicant that Mr Rony had alleged that he had an “ongoing relationship” with a woman, there was no evidence that the Tribunal had put to the applicant that he had had an “ongoing sexual relationship” with a woman.

5. Finally, before the Court, the applicant submitted that an issue in the case was “the credibility of the applicant and the credibility of the witnesses”. That is, the three other men who had provided Statutory Declarations and given evidence in support of the applicant’s claim to be a homosexual.

6. The Minister submitted that the central issue in the review was the applicant’s sexuality as his claim to fear persecutory harm in Pakistan was predicated on him being a homosexual. That is, a “narrower” formulation of the “central issue” than that relied on by the applicant. In that regard, Mr Rony’s evidence as to him having had, or not had, a sexual relationship with the applicant was central to the applicant’s claim. However, the substance of that information was put to the applicant. Further, the applicant was invited to respond, both at the second occasion of the hearing and in written submissions following the hearing. In that way, the Tribunal ensured that the applicant was alive to the thrust of Mr Rony’s evidence.

7. Second, the Minister submitted that Mr Rony’s credibility was not an “issue” in the review, as that term is understood in s.425 of the Act. Rather, it was evidence which the Tribunal was required to consider and weigh.

8. Third, the Tribunal was not required to put to, or identify for, the applicant, or give him an opportunity for comment on, “underlying miscellaneous facts”. Mr Rony’s allegation that the applicant’s girlfriend “Rena” had had three abortions, or three pregnancies, was simply that, an “underlying fact”.

9. Finally, in response to the applicant’s suggestion that an “issue” in the review was the “manner in which the interview with Mr Ronny was conducted”, the Minister submitted that the manner or form in which evidence is heard or tested is a matter for the Tribunal (s.420 of the Act). That the Tribunal chose a particular approach, or “manner”, in order to elicit information from Mr Rony is a matter for the Tribunal. Further, the manner in which Mr Rony’s evidence was given, and the form, in and of itself, was not, in any sense, dispositive or determination of the central question the Tribunal was required to answer.

Ground Two: Consideration

1. I agree with the Minister that the ground is not made out.

2. Attention must be given in the first instance to the ground as pleaded. That is, the assertion of a breach of s.425 of the Act because the Tribunal did not give the applicant “a proper hearing”. That was said to be because the Tribunal failed to give the applicant the recording of the interview (or transcript) with Mr Rony and therefore restricted his ability to give evidence and present arguments in relation to the issues arising in the review.

1. It is the case that procedural fairness at common law does entitle an applicant in similar circumstances to know the case against him and to be given the opportunity to respond (Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 587 and VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 at [27]). Any interview, or hearing, with the applicant must be a meaningful opportunity for the applicant in the process of explaining his case (Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188).

2. While it may appear trite in the circumstances to say it, it must be noted that the applicant’s ground in this case, as stated, is focussed on the hearing that he had before the Tribunal. The complaint therefore must be resolved with reference to that hearing.

3. The applicant’s ground asserts a breach of s.425 of the Act. It is to that section therefore that regard must be had. Noting of course that given that hearings before the Tribunal are a matter dealt with in Div.4 of Pt.7 of the Act, that section is the exhaustive statement of the natural justice hearing rule in that regard (Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252).

4. It is to SZBEL therefore, being the most recent and current High Court explanation of the operation of s.425 of the Act and procedural fairness, to which this Court must turn.

5. In this light, the Tribunal’s obligation is to ensure that the issue, or issues, determinative of the review, unless they were live issues as a result of the delegate’s decision, are exposed at the hearing. A failure to do so is a failure in procedural fairness.

6. When seen in this light, the particular to the ground does not reveal, in itself, any such failure. The “audio”, or transcript, of the interview with Mr Rony was not, of itself, an issue in the review. There is nothing in what the High Court said in SZBEL to compel the Tribunal to give to the applicant the audio, nor the transcript, of any interview it may conduct with  witnesses, or any specific piece of evidence, unless it relates to the proper exposure of an issue determinative of the review.

7. In submissions the applicant’s attack did move to what he said was the issue, or issues, in the review. However, the parties differed on what they said was the relevant determinative issue in the review. The applicant said, variously, that the issue that the Tribunal failed to expose was that the applicant had an “on going sexual relationship with a woman”. It was not clear whether it was a part of this issue, or a further issue, that Mr Rony had said that the applicant’s girlfriend had fallen pregnant three times. This latter, in particular, was said to be a critical piece of evidence because it implied a sexual relationship.

8. The Minister referred the Court to the analysis of Barnes’ FM in SZIMM v Minister for Immigration & Anor [2008] FMCA 34 (at [41] – [72]) as to the relevant understanding of the term “issue” in the context of s.425 of the Act, SZBEL and other authorities. Also, in my respectful view, direction is provided to this Court by SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486 (“SZJUB”) per Bennett J (to which Barnes FM referred).

9. I have recently considered this question in two other cases:

   1)SZQTV v Minister for Immigration & Anor [2012] FMCA 827 at [47]:

   “I respectfully understand that what Bennett J said in SZJUB (as relied on by the Minister) is consistent with that latter point. Her Honour’s analysis explains the distinction between an “issue” and the factual matters that go to an issue. Further and with respect, I do not see SZIMM as suggesting some inflexible attempt to define what an “issue” is. Rather that what may be an issue in the review is not an abstract concept, but one arising from, and integral to, the circumstances presented and within the concerns expressed in SZBEL about ensuring procedural fairness.”

   2)SZQSP v Minister for Immigration & Anor [2012] FMCA 890 at [81]:

   “In SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486 Bennet J explained the distinction between an “issue” in the review and the factual matters (or substratum of facts) that go to an issue. Further, and with reference to SZIMM v Minister for Immigration & Anor [2008] FMCA 34 at [65] per Barnes FM, with whom I respectfully agree, I understand that an “issue” in a review is not to be defined inflexibly, nor in the abstract. Rather, an issue in the review arises from, and is integral to, the circumstances presented.”

10. The circumstances presented by the applicant to the Tribunal centred on one critical point: his claimed homosexual orientation. This is the core reason that he said he feared persecutory harm if he were to return to Pakistan.

11. On the only relevant evidence available to the Court, the Tribunal’s account of the hearing with the applicant, it is clear that the issue of his sexuality was plainly raised with the applicant at the hearing.

12. The direction provided by Bennett J in SZJUB is, in my respectful view, important as to the distinction between an issue and the substratum of facts going to that issue. As Bennett J said in SZJUB at [25]:

    “… the Tribunal is not obliged to put each of those factual matters to the appellant. The Tribunal is obliged to inform [the applicant] of the issue but not of each fact that relates to it.”

13. The applicant appears to be of the view, especially when his submission is seen with his complaint that the Tribunal erred in not giving the applicant the audio or a transcript of the interview with Mr Rony, that everything that Mr Rony said was an issue in the review.

14. There is no doubt when regard is had to the Tribunal’s decision record, that Mr Rony’s evidence at the interview was important and central, although not exclusively so, to its decision. However, its importance emerges from those parts relevant to the applicant’s central claim to fear persecutory harm.

15. The applicant claimed to be a homosexual. As a part of this claim, the applicant also claimed not to have had sexual relations with women, only with men. One of those men was said to be Mr Rony. Initially, Mr Rony had provided a Statutory Declaration that, amongst other things, declared that he and the applicant had engaged in a sexual relationship.

16. The substance of Mr Rony’s evidence at the interview, that is its import to, or critical relationship with, the applicant’s claim to be a homosexual, was that a key homosexual relationship asserted by the applicant was said to be a fabrication and further that, contrary to the applicant’s assertion, he had had an ongoing relationship with a woman.

17. That the applicant had a girlfriend who had become pregnant on three occasions, and may even have had three abortions, was not an issue in the review. The applicant’s claim to be a homosexual was not refuted by the allegations of any pregnancies, or even abortions.

18. In an important sense, nor do I see this matter (the pregnancies and abortions) as even being part of the substratum of facts to the issue dispositive of the review.

19. The Tribunal did not accept that the applicant was a homosexual for a number of reasons, including its assessment of the applicant’s own evidence about claimed past events in Pakistan, and the delay in the applicant applying for a protection visa after arrival in Australia (the applicant first arrived in June 2006, see [25] at CB 324 and [116] at CB 343 and applied for a protection visa on 10 November 2010, see CB 2).

20. The evidence of Mr Rony was clearly an important, and critical, part of the Tribunal’s ultimate determination of the question of the applicant’s claimed homosexuality. However, simply because Mr Rony made mention of the pregnancies in his evidence to the Tribunal at the interview does not elevate that to an issue, or even the substratum of facts on which the issue was determined.

21. That substratum was Mr Rony’s evidence that his earlier claims of a sexual relationship with the applicant was a fabrication, that the applicant pressured, if not induced, him to assert the claimed sexual relationship. Further, and contrary to the applicant’s stated position on sexual relationships, that the applicant had had a girlfriend for a lengthy period of time.

22. One matter noted by applicant before the Court was that the Tribunal did not tell the applicant that the effect of Mr Rony’s evidence, including the references to the pregnancies, was the implication that the relationship between Rena and the applicant was not just a relationship, but a sexual relationship.

23. It is the case that the Tribunal, even on its own record of the hearing, does not actually record that it made reference to Mr Rony’s evidence that the applicant had a sexual relationship with Rena. The Tribunal referred to the applicant having a “relationship” with a woman.

24. Of course, it is preferable for Tribunal members to be specific, clear and concise as to what they say to applicants. However, I am of the view, on balance, that when the Tribunal referred, in the context of the hearing, to “relationship”, it was referring to a “sexual relationship”.

25. For example, the Tribunal records “I asked him to tell me about his relationship with Sahib Talwar” ([79] at CB 337.8). It is clear that, given Mr Talwar’s earlier Statutory Declaration (CB 292 to CB 293) that this was a claimed sexual relationship (see [4] at CB 292 and see also [59] at CB 333). In its analysis, the Tribunal understood this to be an assertion of a sexual relationship ([118] at CB 344.7).

26. Similarly, a Mr Mandeep Singh Chouhan had also provided a Statutory Declaration in which he asserted a sexual encounter with the applicant (see CB 295 and [60] at CB 334). It is important to note that this declaration did not assert a relationship with the applicant, but one sexual encounter (see [93] at CB 340). In this context, the Tribunal distinguished between a “relationship” and one “sexual encounter” ([118] at CB 344).

27. The Tribunal’s account of what occurred at the hearing with the applicant in relation to Mr Rony is first set out at [64] and [65] (at CB 335). This part of the Tribunal’s decision record reveals the applicant’s evidence about his claimed relationship with Mr Rony. The applicant returned to this later (see [78] at CB 337).

28. Relevantly, it is important to note than when giving evidence about the claimed relationship with Mr Rony the applicant and, in its account, the Tribunal both used the term “sexual relationship” (see [65] at CB 335 and [78] at CB 337).

29. When at the end of [78] the Tribunal records “I asked the applicant if he had been with any girls and he said he had not” (CB 337), it is reasonably clear that what the Tribunal was asking, in context of what sorrounds it, was whether he had had any sexual encounters or sexual relationships with “any girls”.

30. In this context, when the Tribunal came to talk to the applicant about Rena, and specifically what Mr Rony had told the Tribunal about the applicant and Rena, the reported reference to “…a relationship with the applicant…” ([97] at CB 341) was plainly a reference to a “sexual relationship”.

31. In summary therefore, the Tribunal exposed the issue of the applicant’s claimed homosexuality with him at the hearing. It reported to the applicant those parts of Mr Rony’s evidence that were critical to the disposition of the issue in the review. No jurisdictional error is revealed here. Ground two is not made out.

32. I should note, given the above, that I cannot agree with the applicant that the manner in which the Tribunal conducted the interview with Mr Rony was an “issue” in the review. I agree with the Minister’s submissions here (see [79] above). Vague references in submissions to complaints about the Tribunal’s conduct of the interview with Mr Rony, and that the applicant could have developed some attack on the Tribunal here, remained just that. That is, vague references. They do not explain the ground as pleaded.

Conclusion

1. Neither of the grounds of the amended application are made out. In the circumstances, the application, as amended, should be dismissed. I will make an order accordingly.

I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  20 February 2013