SZSEQ v Minister for Immigration
[2014] FCCA 645
•4 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSEQ v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 645 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – claimed failure to give proper consideration to protection obligations under s.36(2)(aa) – claim that Tribunal summarily dismissed reports on matters of sexuality – no reviewable error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.32(2)(a), 32(2)(aa), 91R(3), 91X, 430(1). |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SZSEQ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2626 of 2012 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 7 May 2013 |
| Delivered at: | Sydney |
| Delivered on: | 4 April 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M. Jones Parish Patience Immigration Lawyers |
| Solicitors for the Respondents: | Mr M. Alderton Spake Helmore Lawyers |
ORDERS
The name of the First Respondent be amended to read “Minister for Immigration and Border Protection”.
The Application filed on 13 November 2012 and amended on 7 May 2013 is dismissed.
The Applicant is to pay the First Respondent’s costs and disbursements of and incidental to the Application.
The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZSEQ
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2626 of 2012
| SZSEQ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under the Migration Act 1958 (Cth) (“the Migration Act”) seeking judicial review in respect of a decision of the Refugee Review Tribunal (“the Tribunal”), being RRT Case Number 1203218, a decision of Tribunal Member Jonathon Duignan dated 16 October 2012, affirming the decision of a delegate of the Minister to refuse to grant the applicant a Protection (Class XA) visa.
The solicitors for the first respondent, the Minister for Immigration & Citizenship (“the Minister”), filed a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This volume of material provided is identified as the Court Book (“CB”), marked Exhibit “A” and is the only evidence before the Court.
The applicant was granted leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any supporting affidavit material, on or before 29 January 2013. The applicant elected not to file an Amended Application on this date, but sought leave to file it at the hearing.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties. Where this information is extracted from the Court Book, each item contains a reference for that material (CB). I have not made further attribution as this would make the summary unwieldy.
The applicant is a male citizen of Nepal who arrived in Australia on 3 January 2010 on a fraudulent passport (CB 40; 173). He applied to the Department of Immigration and Citizenship (“the Department”) for a Protection (Class XA) visa on 5 October 2010 (CB 1-27) and appointed a migration agent to assist him in connection with the application (CB 45-49).
The applicant claimed in his application that he left Nepal because he feared harm from Maoists due to his support for the Rastriya Prajatantra Nepal (“RRP-N”) (CB 20-23). The applicant subsequently made a further claim that he would face harm as a member of two particular social groups constituting gay males in Nepal and married Nepali men who have a homosexual partner (CB 70).
The delegate’s decision
By a letter dated 14 October 2011, the Department invited the applicant to attend an interview with the delegate of the Minister on 1 November 2011 (CB 57-60). The applicant’s representative requested that the interview be postponed to allow him further time to obtain instructions from the applicant about his claims for protection (CB 61-65) and the applicant was invited to attend a rescheduled interview on 31 January 2012 (CB 66-69).
Prior to the interview, the applicant’s representative provided the Department with a 40 pages written submissions in support of the applicant’s claims for protection (CB 70-109). Annexed to this submission was a report from Dr Sheleyah A. Courtney on the attitudes to homosexuality in Nepal (CB 110-153).
On 27 January 2012, the applicant provided a statutory declaration to the Department which expanded on his claims for protection. He claimed that he had been a supporter of the RPP-N since 2002 and had been kidnapped, interrogated and beaten by Maoists on one occasion in February 2008. He was released after being forced to sign a confession but was later threatened by members of the Young Communist League Army (YCLA). The police told the applicant that they could not protect him (CB 155). The applicant claimed further that since arriving in Australia he had engaged in a sexual relationship with a man named Mr Baiyasaa (CB 156-157).
On 31 January 2012, the applicant attended an interview before the delegate and expanded upon his written claims (CB 175-176).
That same day, the applicant provided a further statutory declaration which gave further details about his relationship with Mr Baiyasaa (CB 160-162). The applicant also provided a statutory declaration from Mr Baiyasaa (CB 163-166).
On 14 February 2012, the delegate made a decision refusing to grant the applicant a Protection visa (CB 173-183). The delegate found that whilst it was possible the applicant may have faced harm from Maoists in the past, he was not satisfied on the basis of the independent country information (ICI) before him that there was a real chance that he would face persecution for reasons of his political if he returned to Nepal in the reasonably foreseeable future (CB 180-181). The delegate also found on the basis of the accepted ICI that the applicant would face persecution in Nepal for reason of his claimed homosexuality (CB 181-182).
For these reasons, the delegate was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Convention (CB 183).
The Tribunal’s proceedings
On 12 March 2012, the applicant lodged an application with the Tribunal to review the delegate’s decision (CB 184-188). He appointed the same representative to assist him in connection with the review (CB 186).
By a letter dated 4 June 2012, the Tribunal validly invited the applicant to attend a hearing scheduled for 4 July 2012 (CB 192-195). The applicant accepted this invitation (CB 200-201) and appeared before the Tribunal on 4 July 2012 to give evidence and present arguments in support of his claims (CB 217-219; CB 320-325 at [36]-[64]).
Prior to the hearing, the applicant’s representative provided the Tribunal with a statutory declaration from the applicant’s brother (CB 202-206).
At the hearing, the applicant provided the Tribunal with a copy of his membership card from Stonewell club and a receipt from the Criterion Hotel (CB 207). A number of graphic photographs were also submitted which have not been reproduced in the Court Book.
By a letter dated 5 July 2012, the Tribunal invited the applicant to attend an adjourned hearing scheduled for 18 July 2012 (CB 220-223).
On 18 July 2012, the applicant’s representative provided the Tribunal with a psychological assessment for the applicant prepared by Dr John Jacmon which indicated that the applicant was suffering from post-traumatic disorder (PTSD), depression and anxiety (CB 229-244; 326 at [65]).
The applicant appeared before the Tribunal at the adjourned hearing on 18 July 2012 (CB 245-247; 326-328 at [65]-[82]). At the adjourned hearing the applicant provided a certificate of incapacity for work (CB 248), a further statutory declaration from him about his claims to be homosexual (CB 249) and various pieces of country information in support of his claims (CB 250-269).
On 31 July 2012, the applicant’s representative provided the Tribunal with a brief profile of Dr Paul Andrews who was preparing a further medical report for the applicant (CB 272-274) and further statutory declarations from the applicant’s brother (CB 275-277), the applicant’s sister-in-law (CB 278-280) and the applicant (CB 281-283; 328-329 at [83]-[84]).
On 15 August 2012, the applicant’s representative provided the Tribunal with a preliminary assessment from Dr Andrews (CB 288-289).
On 29 August 2012, the applicant’s representative provided the Tribunal with a statutory declaration from Mr Bikram Gurou (CB 294-297).
On 3 September 2012, the applicant’s representative provided the Tribunal with a letter from Dr Andrews (CB 298-306; 329 at [85]).
The Tribunal’s decision
In a decision dated 16 October 2012, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a Protection visa (CB 310-335).
On the basis of comprehensive adverse credibility findings the Tribunal found that the applicant had fabricated his claims to have been associated with the RPP-N and to have suffered past harm in Nepal. The Tribunal also found that the applicant had fabricated his claim to be homosexual and was not satisfied that he would engage in homosexual conduct if he returned to Nepal (CB 332 at [93]).
The Tribunal’s adverse credibility findings were findings of fact based on a number of matters that were open to the Tribunal to make as the sole arbiter of the facts and evidence. For example, the Tribunal found that the applicant had not provided a plausible explanation for why he had waited some ten months after his arrival in Australia to apply for protection (CB 322 at [94]). It also found that the applicant’s return from Qatar to Nepal in 2009 was inconsistent with his claim to subjectively fear harm in Nepal (CB 332 at [95]).
In relation to the applicant’s claim to fear harm from Maoists, the Tribunal found that he had “displayed an extremely limited knowledge” of the RRP and RRP-N (CB 332 at [96]). It also found that he had given inconsistent evidence about the past harm he allegedly suffered in Nepal (CB 333 at [97]).
The Tribunal did not accept that the applicant’s recall of events had been so affected by memory difficulties from his psychological condition such that it explained the concerns that it identified with his evidence (CB 333 at [98]).
In relation to his claim to fear harm form reasons of his alleged homosexuality, the Tribunal found that the applicant did not make this claim until “well after the application for protection was lodged” and it did not accept that this delay was due to cultural reasons (CB 333 at [99]). The Tribunal also found the applicant’s claim to be homosexual “completely unconvincing” and “orchestrated with evidence being produced over time to support it without regard to the truth” (CB 333-334 at [100]-[101]).
The Tribunal found that this finding was “reinforced” by the material provided by the applicant after the hearing from his brother and Dr Andrews which it found contained claims that were “completely unconvincing” and “untrue” (CB 334 at [102]). The Tribunal found further that the report from Dr Jacmon was inconsistent with the applicant’s oral evidence about whether he told his brother that he was homosexual (CB 334 at [103]).
Whilst the Tribunal acknowledged that both Dr Jacmon and Dr Andrews believed the applicant’s account of his past experiences, including his political views and homosexuality, it reached a contrary conclusion having regard to the entirety of the evidence before it (CB 334 at [104]). The Tribunal also did not accept that the other supporting documents had been produced to bolster his claims for protection (CB 334 at [105]).
Accordingly, the Tribunal rejected the applicant’s claims in the entirety (CB 334-335 at [107]). The Tribunal was not required to accept the applicant’s claims at face value and the weight to be given to his claims and evidence was a matter for the Tribunal to assess as part of its fact-finding function: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282. In particular, the Tribunal’s findings that the applicant had not given truthful evidence were findings of fact for the Tribunal par excellence; Re Minister for Immigration and Multicultural Affairs; x parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. These findings were open to the Tribunal on the evidence before it and the Court cannot review the merits of the Tribunal’s decision.
In light of these findings, the Tribunal was not satisfied that the applicant’s conduct in Australia in attending gay venues and engaging in sexual activity with Mr Baiysaa was done for any purpose other than to strengthen his claims to be a refugee. Accordingly, the Tribunal disregarded this conduct for the purposes of s.91R(3) of the Migration Act (CB 335 at [108]).
For these reasons, the Tribunal was not satisfied that there was a real chance that the applicant would suffer persecution for a Convention reason if she returned to Nepal (CB 335 at [109]).
The Tribunal proceeded to consider whether the applicant satisfied the complementary protection criteria set out in s.36(2)(aa) of the Migration Act. The Tribunal found that as the applicant’s claims were “completely unreliable and fabricated” it was not satisfied that there was a real risk that he would suffer significant harm if he returned to Nepal (CB 335 at [10]).
Proceedings in the Federal Circuit Court
On 31 November 2012, the applicant filed an application for judicial review in the Federal Magistrates Court (as it was then) containing two grounds of review. At the hearing, the applicant’s representative sought leave to file an Amended Application. Leave was granted and the Amended Application was filed in Court.
The orders sought in the Amended Application are:
1. A writ of certiorari removing into this Court to be quashed the purported decision of the Second Respondent made on 16 October 2012.
2. A declaration that the decision is void and of no effect.
3. An order by way of mandamus that the Second Respondent reconsider the application for review in accordance with law and any directions of the Court.
4. An order that the First Respondent pay the Applicant’s costs.
The grounds of the Amended Application are as follows:
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.
Particulars
The Tribunal made findings in relation to whether the Applicant was owed protection obligation under s.36(2)(a) base(d) 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 it findings for the purposes of the latter paragraph.
2. The Tribunal also fell into jurisdictional error by failing to give proper consideration to the expert evidence provided by the Applicant.
Particulars
The Tribunal dismissed the reports of Dr Jacmon and Dr Andrews solely on the grounds that it differed from their conclusions. The Tribunal gave no reasons as to why it considered the expert opinions to be inferior to its own.
Ground One: Complementary Protection
Applicant’s Written Submissions
The applicant submits that the first ground of review is that the Tribunal failed to give proper consideration to whether Australia had protection obligations to the applicant under s.36(2)(aa) of the Migration Act.
The applicant argues that the Tribunal made factual findings that the applicant had not engaged in any political activity in Nepal nor come to any harm as a result, and that it did not believe he was homosexual or that he would engage in homosexual conduct on return (CB 334-335 at [107]).
The applicant contends that in considering whether Australia had protection obligations to the applicant under s.36(2)(a), the Tribunal was required to consider whether the applicant had a well-founded fear of persecution as referred to in Article 1A of the Refugee Convention. In doing so, it was required by s.91R(3) of the Migration Act to disregard an conduct engaged in by the applicant in Australia unless satisfied that he had engaged in the conduct otherwise than for the purpose of strengthening his claim to be a refugee within the meaning of the Convention.
It is argued by the applicant that the requirement in s.91R(3) does not apply to consideration of Australia’s protection obligations under s.36(2)(aa), which are not based on the Refugees Convention. Under the “complementary protection” provisions, the Minister or Tribunal is required to consider whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia.
While the Convention definition of a refugee looks to whether the applicant has a fear, which must be in part, subjective, the complementary protection obligations arise where there is an objectively determined risk to the applicant.
When considering whether the applicant satisfied the criteria in s.36(2)(aa), the Tribunal stated, firstly, that it did not believe he would engage in political activity from which there would a real risk of harm in Nepal (CB 335 at [110]). The applicant does not claim that there was any jurisdictional error in that finding. The Tribunal then found that there was no “risk” of the applicant engaging in activities that would suggest he was homosexual and there was “no risk of harm in this regard.”
The Tribunal had before it explicit evidence of the applicant engaging in sexual activity with another man in Australia, as well as evidence in the form of statutory declaration that members of his family in Australia were aware of such conduct. The Tribunal was not entitled to disregard this evidence for the purposes of s.36(2)(aa). It therefore needed to consider whether, because of that conduct, there would be a real risk (Minister of Immigration and Citizenship v MZYYL & Anor (2012) 207 FCR 211) of significant harm to him regardless of whether he would engage in such activities in Nepal.
In order to fully consider whether Australia had protection obligations to the applicant pursuant to s.36(2)(aa) the Tribunal needed to consider his conduct in Australia to decide whether, objectively based on the evidence, there might be substantial grounds for believing the applicant would face a real risk of significant harm if his conduct in Australia became known in Nepal. There was extensive evidence before the Tribunal that could have given rise to such a risk.
By limiting its assessment to a determination of whether or not the applicant was a homosexual, the Tribunal did not fully discharge it jurisdiction in respect of the complementary protection provisions of the Migration Act.
Applicant’s Oral Submissions
Mr Jones, for the applicant, argued that in relation to the Ground one, s.91R(3) of the Migration Act restricts the Tribunal in that it is not to consider certain conduct of the applicant in Australia and only applies to consideration of claims made under the Convention. The applicant contends that the argument is extended by looking at the difference between ss.36(2)(a) and 36(2)(aa) of the Migration Act. Mr Jones argued that s.36(2)(a) deals with protection obligations under the Refugees Convention. He argued that those objections arise when a person is found to have a well-founded fear of persecution to which there must be a subjective element of fear. Mr Jones argued that s.36(2)(aa), the complementary protection provisions work quite differently. If the Minister has substantial grounds for believing that, as a necessary foreseeable consequence, there is a real risk that the non-citizen would suffer significant harm; the Minister is able to initiate Australia’s protection obligations. Mr Jones contends that this is more of an objective test, which relates to the evidence that is before the Minister, not necessarily on being dependent on the things the person says they are afraid of. Mr Jones argues that, seen in that light, this conduct of the applicant in Australia, which the Tribunal excluded in its consideration of his claims to have a well-founded fear, was in evidence before the Tribunal, which could have, if properly considered, could well have given rise to substantial grounds for believing there was a real risk that he would suffer significant harm.
Mr Jones took the Court to CB 334 at [105], where the Tribunal refers to the evidence that it had before it. This evidence has not been reproduced before the Court, however, Mr Jones contends that the Tribunal describes the evidence correctly at [105]:
105. In that light, while the applicant has presented evidence of holding a membership card for the Stonewall Club and of social and intimate photos in which he is sexually aroused with his claimed partner, the tribunal does not find that reliable evidence. In the tribunal’s view, this material has simply been produced to bolster the application and does not represent a genuine expression of the applicant’s sexuality.
(CB 334 at [105])
Mr Jones argued that the evidence before the Tribunal is that he has been photographed in sexually explicit circumstances with another man and the evidence from the family, in Australia, is that they are not supportive of applicant and his sexual preference. Mr Jones argued that, although the Tribunal is right to exclude them from its determination under the Refugees Convention, it needed to consider whether these facts lead to the conclusion that the applicant is homosexual or not, and whether they would give rise to a risk that he would suffer significant harm on his return to Nepal. Mr Jones contends that this is a matter that the Tribunal had not considered.
Mr Jones argued that the Tribunal has misdirected itself as to what it needs to consider under the complementary protection provisions of s.36(2)(aa) and distinct form the refugee ground provisions of s.36(2)(a). Mr Jones contends that the Tribunal, based on the material before it, was not convinced that the applicant is homosexual. However, Mr Jones argued that the Tribunal needed to also consider whether that material, on its own, gives an objective risk that the Tribunal needs to take into account under s.36(2)(aa).
Mr Jones brought to the Court’s attention to Minister of Immigration and Citizenship v MZYYL & Anor (supra), where the Minister did not challenge the argument and the Court does not say the Minister was wrong not to challenge the argument that the test of a real risk is the same as the test of real chance. Mr Jones submits that that is the correct interpretation of what is meant by real risk.
Respondent’s Submissions
Ground one alleges that the Tribunal impermissibly had regard to s.91R(3) of the Migration Act in considering whether the applicant satisfied the complementary protection criteria set out in s.36(2)(aa). On a fair reading of the Tribunal’s reasons, this complaint cannot succeed.
Firstly, under the heading “relevant law” (CB 311-313 at [5]-[15]) the Tribunal makes it clear that s.91R only acts as a qualification to the question of whether a person is a refugee for the purposes of s.36(2)(a) (CB 312 at [8]).
Secondly, the Tribunal discussed the provisions of s.91R(3) with the applicant at the hearing (CB 327 at [73]). The applicant does not suggest that this summary was incorrect and has not, in any event, put on a transcript of the hearing to establish any such contention.
Thirdly, the Tribunal expressly reproduced in its decision (CB 328 at [82]) the oral submissions made by the applicant’s representative at the hearing to the effect that s.91R(3) did not have any relevance to the complementary protection criterion. There is no suggestion that the Tribunal disagreed with the correctness of this submission.
Fourthly, it is clear from the Tribunal’s Findings and Reasons that its application of s.91R(3) was confined solely to its consideration of whether the applicant satisfied s.36(2)(a). Relevantly, the Tribunal stated:
108. In terms of consideration of the criteria at s.36(2)(a) the tribunal has not had regard to the applicant’s conduct in Australia… This conduct must be disregarded in determining whether the applicant hold a well-founded fear of being persecuted under the terms of s.91R(3).
(emphasis added) (CB 335 at [108])
Fifthly, having found that the applicant did not meet the requirements of s.36(2)(a), the Tribunal then properly turned its mind to consider whether he satisfied s.36(2)(aa). Relevantly, the Tribunal found in this regard:
110. Neither in the tribunal’s view is there any reason for considering there is a real risk that the applicant would suffer significant harm in Nepal. In the tribunal’s view, his claims about his activities, past harms and future intentions are completely unreliable and fabricated to found his application. The tribunal does not believe he would engage in political activity from which there would be a real risk of harm in Nepal. Nor, in the tribunal’s view, is there any risk of harm in this regard. Because of this, the tribunal cannot satisfy the criteria prescribed at s.36(2)(aa).
(CB 335 at [110])
There is nothing in the above statement to support an inference that the Tribunal impermissibly had regard to s.91R(3) in determining whether the applicant satisfied s.36(2)(aa). The applicant’s construction of this paragraph would require the Court to read in words that are not present and in the context of its other reasons are not open. Moreover, to the extent that there is any ambiguity the Tribunal’s reasons, they should be given a “beneficial construction”.
Contrary to what is alleged by the applicant, there was also no need for the Tribunal to expressly make a “separate determination” about whether “taking into account the conduct in Australia would have altered its findings for the purposes of [s.36(2)(aa)]”. Rather, it is clear from a fair reading of the Tribunal’s reasons, as a whole, that it did have regard to this conduct in determining whether the applicant satisfied s.36(2)(aa). The Tribunal had previously found that the material provided by the applicant to corroborate his alleged conduct in Australia had been “produced to bolster the application and does not represent a genuine expression of the applicant’s sexuality” (CB 334 at [105]). In light of this finding, it was open “completely unreliable and fabricated” and there was nothing before it to suggest there was a real risk that the applicant would engage in activities which would suggest he was homosexual (CB 335 at [110]).
Accordingly, the Minister submits that there was no error in the Tribunal’s applicant of s.91R(3) of the Migration Act; Minister for Migration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO (2009) 238 CLR 642; SZRQR v Minister for Immigration and Citizenship & Anor [2013] FMCA 21.
Respondent’s Oral Submissions
Mr Alderton, appearing for the Minister, brought to the Court’s attention SZRQR (supra), which he highlighted that the arguments that the applicant was running in the current case are, effectively, the same that was run before Judge Nicholls. Mr Alderton argued that the approach taken by Judge Nicholls is instructive in these proceedings. Mr Alderton referred to ground one of the applicant’s application in which the applicant contends that the Tribunal failed to give proper consideration to his claims regarding his conduct in Australia. Mr Alderton contends that a failure to give proper consideration is not a proper ground of jurisdictional error and simply invites the Court to review the merits of the Tribunal’s decision.
Mr Alderton argued that the Tribunal has either considered a claim or has not: see SZQGC v Minister for Immigration and Citizenship & Anor (2012) 128 ALD 338 at [32]-[35] per Griffiths J. Looking at SZRQR (supra), Mr Alderton argued that Judge Nicholls effectively dealt with a similar complaint that is raised with the applicant in the current case, being at [14], where it states:
14. 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.
The Minister argued that on a fair reading of the Tribunal’s decision, such a complaint is not made out. The Minister argued that in the current case the relevant finding of the Tribunal is at CB 334 at [105], (reproduced at [50] above). The Tribunal expressly deals with the applicant’s claimed conduct in Australia and the evidence he provided in support of those claims. The Tribunal concludes that the evidence is not reliable and that it had been produced to bolster the application and did not represent a genuine expression of the applicant’s sexuality. The Tribunal finds that the evidence has been manufactured, that it is not reliable and does not take it into account.
Mr Alderton submits that in considering the complementary protection criteria, the Tribunal found, at [110] of the Decision Record (CB 335), that there was nothing before it to suggest that there was a real risk that the applicant would suffer significant harm in Nepal:
110. …In the tribunal’s view, his claims about his activities, past harms and future intentions are completely unreliable and fabricated to found his application…
(CB 335 at [110])
This included the evidence that he provided, and he said supported his claim to being a homosexual in Australia:
110. …Nor, in the tribunal’s view, is there any risk if his engaging in activities which would suggest he is a homosexual and there is no risk of harm in this regard. Because of this, the tribunal cannot satisfy the criteria prescribed at s.36(2)(aa).
(CB 335 at [110])
The Minister argued that the Tribunal, at [110] of the Decision Record, is stating that there is nothing before it, including the unreliable evidence, to suggest that if he returned to Nepal that he would suffer significant harm.
Mr Alderton took the Court to SZRQR (supra) and highlighted that Judge Nicholls reached a similar conclusions at [25]. It states:
25. 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.
The Minister argued that that finding applies equally here. In that case, the evidence was provided in support of the applicant’s claim that he was a homosexual and the Tribunal rejected that evidence. For that reason, there was no reason for it to find that there would be substantial grounds of him suffering harm if he should be returned to Nepal. It is for those reasons that the Minister argues that ground one should not be made out.
Consideration of Ground One
This Ground asserts a failure by the Tribunal to distinguish between s.36(2)(a) and s.36(2)(aa) of the Migration Act when it had regarded conduct pursuant to s.91R(3) of the Migration Act in relation to s.36(2)(a) and therefore did also in relation to s.36(2)(aa). Section 91R(3) only applies to consideration of whether an applicant meets the definition of a “refugee” under Art.1A(2) of the Refugee Convention, but does not apply to the question of complementary protection that arises under the International Covenant of Civil and Political Rights (“ICCPR”) and the Covenant Against Torture (“CAT”) which is covered by s.36(2)(aa).
The Tribunal has adopted its traditional approach in its Decision Record of initially setting out the relevant law and, in particular, the refugee criterion at [5]-[15] (CB 311-313) and the complementary protection criteria at [16]-[18] (CB 313) of the Decision Record. The provisions of s.91R(3) state:
Section 91R – Persecution
(3) For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
In the Tribunal’s Decision Record under the heading Claims and Evidence the Tribunal Member informed the applicant of the operation of this section and recorded the following statements as part of the evidence during the Tribunal hearing:
73. The provisions of s.91R(3) were discussed with the applicant. The applicant explained that his conduct in Australia in attending a gay venue and having photographs taken with another man in a sexually aroused state were not solely for the purposes of supporting the application. He explained that he was telling the truth and if the tribunal did not believe him he could show that the sexual relations were true.
(CB 327)
In the absence of a transcript of the Tribunal hearing, I believe that this Court should accept that this paragraph reflects the discussion between the Tribunal Member and the applicant.
The operation of this provision is set out in the Tribunal’s Decision Record at [108] where it states:
108. In terms of consideration of the criteria at s.36(2)(a) the tribunal has not had regard to the applicant’s conduct in Australia in attending the Stonewall Club and other gay venues nor in engaging in intimate sessions with Baiysaa while sexually aroused. The tribunal is simply not satisfied that these activities were engaged in for any purpose other than strengthening the claims associated with this application. Were he engaging in such activity genuinely it is the opinion of the tribunal that the applicant would have presented a more timely and consistent account of his circumstances. This conduct must be disregarded in determining whether the applicant holds well-founded fear of being persecuted under the terms of s.91R(3).
(CB 335)
I am satisfied that the approach adopted by the Tribunal in the passages extracted above is correct and requires no further consideration.
The question that remains to be addressed is whether the Tribunal impermissibly had regard to the s.91R(3) reasoning, referred to above, in determining whether the applicant met the requirements of s.36(2)(aa). This is initially discussed in the Decision Record under the heading of Claims and Evidence in the following passages:
81. The adviser submitted that several tribunal decisions referred to in written submissions provided to the department supported his views, both in terms of the continued presence of armed groups and political violence and the circumstances which faced homosexuals in Nepal.
82. It was submitted that s.91R(3) did not have relevance in respect of the claims as they were to be considered in respect of complementary protection provisions and that there was a chain of events in the applicant being homosexual such that he was homosexual before entering Australia suggesting that his actions were not motivated only to support the application.
(CB 328)
The finding in respect to complementary protection in the Finding and Reasons is at [110] of the Decision Record is reproduced at [58] and [64] above. Taken in isolation, this paragraph makes no specific reference to s.91R(3) nor do the contents suggest an underlying connection to s.91R(3). However, taken in the context of where it appears in the Tribunal’s Decision Record and the commencement of the paragraph with the word “Neither” or the expression later in the paragraph “Nor”, could suggest that this paragraph is an adjunct to the material that appears before it in [108] and [109]. The sequence of reasoning, the proximity and the paragraph construction may lead to a claim of merging, in respect of these two separate concepts and their possible overlap, and consequential application of s.91R(3) in the reasoning in respect to s.36(2)(aa). I reject this argument, if this construction is put to one side and the paragraph is read in isolation, the Tribunal Member is correct in his approach that this issue that he was to address was whether there was a real risk that the applicant would suffer “significant harm”. Clearly the Tribunal Member understood the complementary protection criteria under s.36(2)(aa) of the Migration Act that specified “that the non-citizen will suffer significant harm”.
Set in the context of the overall approach of the Tribunal Member is a presentation of his Decision Record by firstly setting out the relevant legal structure, noting during the hearing that these two concepts are isolated and do not overlap and the Findings and Reasons at [110] should be given a beneficial construction in that the concept of s.91R(3) does not apply to the s.36(2)(aa) finding. I acknowledge that on a particular reading it could raise the claim that the proximity of the paragraph and the paragraph construction may appear to establish a link to the s.91R(3) reasoning.
In MZYOA v Minister for Immigration and Citizenship& Anor (2012) 135 ALD 87 his Honour Murphy J made the following observation in respect to beneficial construction at [36]-[38] :
36. Then the Minister argues that the appellant seeks to scrutinise the reasons in a way which is overly critical. In this regard the Minister relies on Minister for Immigrationand Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) where Brennan CJ, Toohey, McHugh and Gummow JJ explain at 271-272:
When the Full Court referred to “beneficial construction”, it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be “concerned with looseness in the language ... nor with unhappy phrasing” of the reasons of an administrative decision-maker. The Court continued: “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”.
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
37. Kirby J also explained in Wu Shan Liang at 291:
(1) The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.(Collector of Customs v Pozzolanic);
(2) This admonition has particular application to the review of decisions which, by law, are committed to lay decision-makers, ie tribunals, administrators and others.(Brimbella Pty Ltd v Mosman municipal Council (1985) 79 LGERA 367 at 368; cf Collector of Customs v Pozzolanic [other citations omitted].
38. However, the rule that administrative decisions should be given a beneficial construction is not always an answer to a claim that a person making administrative decisions has failed to do so accordingly to law. I respectfully agree with the view expressed by Stone J in SZCBT v Minister for Immigration& Multicultural Affairs [2007] FCA 9 at [26], where her Honour said:
The phrase ‘beneficial construction’, as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal’s reasons be resolved in the Tribunal’s favour. Rather, the construction of the Tribunal’s reasons should be beneficial in the sense that the Tribunal’s reasons would not be over-zealously scrutinised, with an eye attuned to error. In this sense a ‘beneficial’ approach to the Tribunal’s reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal’s comments suggest that the issue was overlooked.
See also SZQJH v Minister for Immigration and Citizenship [2012] FCA 297 at [36] per Rares J; Minister for Immigration and Citizenship v MZYRI [2012] FCA 1107 at [37] per Jagot J.
The Tribunal’s conclusion at [109] (CB 335) addresses the Tribunal’s consideration to the applicant’s claim to be a refugee. The reference to the Refugee Convention in that passage makes it clear that the Tribunal is addressing issues that arise in the prescribed criteria in s.36(2)(a) and concludes that line of reasoning. The following paragraph clearly addresses the issue of 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 would lead to a risk of “significant harm”, the application of the test of “significant harm” and finds this part of the reasons to the complementary protection criterion. The Tribunal had rejected the applicant’s claim to be a homosexual which resulted in their being no substantial grounds for believing that he would be a significant risk if he returned to Nepal.
In the circumstances I am satisfied that the Tribunal has considered the complementary protection provisions correctly and this ground cannot be sustained and should be dismissed.
Ground Two: Expert opinion claim
Applicant’s Submissions
The applicant submits that the second ground on which the Tribunal’s decision is challenged relates to the Tribunal’s summary dismissal of the reports of two experts in matters of human sexuality. The only explanation of that Tribunal give for this is that it “simply does not share their conclusions” (CB 334 at [104]).
The applicant contends that Dr Jacmon is a Registered Psychologist and a member of the Australian Psychological Society and College of Counselling Psychologists with an extensive list of credentials (CB 242). Dr Jacmon assessed the applicant on the basis of tests and clinical interview “to identify any psychological conditions which would be expected of an individual fearing return to a society in which he perceived that (i) the expression of his sexuality would be treated with hostility and (ii) he would be at constant risk of harm or worse because of his gay orientation and his political beliefs” (CB 236). He found, on the basis of clinical criteria, that the applicant was suffering from post-traumatic stress disorder, depression and anxiety (CB 237). The significance of these findings in relation to the assessment of the applicant’s credibility was ignored by the Tribunal.
The applicant notes that Dr Andrews is described as an Accredited Mental Health Social Worker with 24 years’ experience and particular expertise in working with gay men and male couples (CB 300). He accompanied his report with an extensive list of qualifications, professional history and publications (CB 303-305). He was not prepared to finalise his report on the basis of one consultation only with the applicant. On the basis of his professional experience specifically working with homosexual men, he came to the conclusion that he believed the applicant to be homosexual.
The applicant argues that it is significant that the Tribunal does not challenge the claimed credentials of the two professionals nor claim to have any expertise in the areas covered by their work. In its rejection of their findings it does not identify any faults in their methodology. It treats them as competing fact-finders rather than professionals in their own fields. It does not contemplate that the professional opinions of the experts may have been arrived at by applying tools of assessment other than the ones available to the Tribunal.
The Tribunal’s reasons for not accepting the conclusions of an expert must relate to the relevant field of expertise. A mere restatement that is has arrived at a different conclusion using its own analytical tools reduces the expert opinion to nothing more than a competing fact-finding exercise.
In Minister for Immigration and Citizenship v SZLSP & Ors (2010) 187 FCR 362, Rares J at [98] states:
98. …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.
In SZRQR (supra) at [78], the Court dismissed a similar objection on the basis that the Tribunal had given reasons for it evaluation of what the reports had said about the applicant’s sexual orientation. The Tribunal in this case made no such evaluation. In regard to Dr Jacmon’s clinical findings, the Tribunal gives no consideration at all to the possibility that the post-traumatic stress disorder, depression and anxiety which the applicant was suffering from could have been a result of the psychological stresses placed on him as a homosexual man growing up in a violently homophobic society.
Furthermore, in relation to SZRQR (supra), it is submitted that the views expressed by Nicholls FM (as he was then) in that case concerning homosexuality not being a “medical condition” and therefore not a proper subject for expert medical opinion (at [70]), are clearly misconstrued. Neither a psychologist, nor a social worker is a “health professional” giving a “diagnosis” of the applicant’s sexual orientation. What they did give the Tribunal, and what the applicant argues, the Tribunal ignored, was corroboration of the applicant’s claims based on their own relevant fields of expertise. As such it was evidence that the Tribunal was bound to have regard to before attempting to reach a conclusion on the applicant’s credibility: WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 at [27].
Applicant’s Oral Submissions
Mr Jones submits that the challenge is the way in which the Tribunal dealt with the expert evidence from Dr Jacmon and Dr Andrews that the applicant provided in support of his case. Mr Jones contends that there was no challenge on behalf of the Tribunal as to the claimed expertise or background of either of the experts. Mr Jones submits that the Tribunal must have accepted the level of expertise and the experience of the experts. Dr Jacmon’s resume is located at CB 242, with his psychological assessment report at CB 230-241. Mr Jones submits that Dr Jacmon conducted not just an assessment of the applicant but a psychometric and objective scale measurement test. Dr Jacmon concluded at CB 238 that the symptoms that the applicant presents indicate post-traumatic stress disorder.
Mr Jones then took the Court to the report made by Dr Andrews at CB 300. At [2] of that report, Dr Andrews describes himself as an accredited mental health social worker, with 24 years of clinical experience and expertise in working with gay men and male couples. Dr Andrews claims his skills include knowledge of the process of sexual identity formation, gay men’s sexual behaviour, male couple relationship dynamics, gay male community organisers and resources and interview techniques for sensitive and anxiety-provoking situations. Dr Andrews’ report concludes that the applicant is homosexual. Mr Jones contends that Dr Andrews’ professional history and his claims to be an expert in this area are well supported. Mr Jones argued that the Tribunal, in dealing with these two reports, dismisses them at [104] (CB 334):
104. The tribunal accepts that Dr Jacmon and Dr Andrews believe the applicant’s account of his past experiences, his political view and sexuality and his fears of return to Nepal. Having considered all of the evidence available regarding this matter however the tribunal simply does not share their conclusions.
(CB 334)
Mr Jones argued that there is no explanation of why the Tribunal did not share the conclusions of Dr Jacmon and Dr Andrews. The Tribunal does not claim to have the qualifications or experience that would compete with those of Dr Jacmon in relation to psychological testing or that of Dr Andrews in relation to the assessment of a person’s psychosexual behaviour. Mr Jones submits that the Tribunal had already formed its view that the applicant was not telling the truth and therefore did not consider the evidence. Mr Jones brought, to the Court’s attention, WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (supra) where the Full Court of the Federal Court highly criticised this approach. Mr Jones submits that while the facts of the case are not entirely the same, however, in this case the Tribunal was to consider certain documents. However, in considering them the Tribunal stated at [12] that “…these letters do not overcome the problems I have with the applicant’s evidence and I place no weight on them as proof of the credibility of the applicant’s claims.” At [27] the Court states:
27. Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material. (See: S20/2002 per McHugh, Gummow JJ at [49]). Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied…
Finally, Mr Jones took the Court to, what he described was the most important point, that the Tribunal:
27. …would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error. (See: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ at [82]-[85]).
Mr Jones argued that the Court, fairly logically, is saying that the Tribunal should not make a decision at a certain point then dismiss evidence that might disturb its view. Mr Jones argued that the jurisdictional error lies in the fact that the Tribunal did not consider all of the evidence and came to a conclusion without having considered all of the evidence.
Mr Jones took the Court to SZRQR (supra), which was a case that Dr Andrews also created a report for. In that matter it was argued that the Tribunal had substituted is own lay opinion for that of the experts. At [78], his Honour Nicholls FM (as he was then) states:
78. …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.
(emphasis added)
Mr Jones highlighted the contrast in facts. He submits that there was no evaluation of what the reports state; it was simply a dismissal of the reports because they disagree with the Tribunal’s conclusions which are not based on the same considerations.
Mr Jones highlights, in relation to Dr Andrew’s report, that as a social worker with expertise in the area of sexuality and homosexuality he gives a report relating to the behaviour of the applicant and his views of it, matters which are outside the expertise of the Tribunal and to which the Tribunal makes not reference to.
Mr Jones submits that there is no legally justifiable ground for the Tribunal to simply dismiss the expert evidence for no other reason than that it does not come to the same conclusions that the Tribunal comes to. The Tribunal has failed to treat it as being evidence that is corroborative of the applicant’s case for reasons that are different to the expertise of the Tribunal and the Tribunal makes no attempt to challenge it.
Respondent’s Written Submissions
The Minister opposes the applicant being granted leave to rely upon the proposed additional ground for two reasons.
Firstly, the Minister argues that there has been no explanation as to why the applicant has only sought to raise the proposed ground at such a late stage. It should be noted that the applicant was given leave on 18 December 2012 to file a further Amended Application by 29 January 2013, but did not do so within the time period permitted.
Secondly, the proposed ground does not enjoy sufficient prospects of success. The applicant’s contention that the Tribunal failed to give “proper consideration” to these documents simply invites the Court to slide into an impermissible merits review of the Tribunal’s decision: SZQGC (supra) at [32]-[35] per Griffiths J; SZRQR (supra) at [29].
The Minister argues that the applicant submits that the Tribunal failed to “give proper consideration” to the “expert evidence” provided by the applicant. The particulars in support of this ground contend that the Tribunal failed to give proper consideration to the document “Guidance in the Assessment of Credibility issued by the Principal Member of the Tribunal in March 2012”.
The Minister argues that the applicant’s written submissions appear to abandon this complaint and instead seek to argue that the Tribunal fell into error by dismissing the reports of Dr Jacmon and Dr Andrews without giving reasons why “it considered the expert opinions inferior to its own”.
The applicant’s contention is effectively that the Tribunal was bound to accept that these documents establish as a fact that the applicant was homosexual. There is nothing in the Migration Act to support such a contention: SZRQR (supra).
The Minister submits that the applicant does not complain that the Tribunal failed to take into account a relevant consideration or to respond to a substantial argument put forward by the applicant. For this reason alone, the applicant’s ground must fail: Minister for Immigration and Citizenship v SZJSS Ors (2010) 243 CLR 164 at [35]. As the High Court has made clear, whether a particular document that is provided by an applicant to the Tribunal is “highly supportive” or “powerfully corroborative” of his or her claims is a matter solely for the Tribunal to assess: Minister for Immigration and Citizenship v SZJSS & Ors (supra).
The Tribunal plainly considered the reports of Dr Jacmon (CB 326 at [5]; CB 224 at [103]) and Dr Andrews (CB 329 at [85]; CB 334 at [102]) and accepted that they believed the applicant’s claims relating to his political views and sexuality. It found, however, that having regard to all of the evidence before it, it simply could not share their views (CB 334 at [104]). This was because the entirety of the evidence before the Tribunal (which was not before either Dr Jacmon or Dr Andrews) demonstrated that the applicant had fabricated his claims for protection (CB 332 at [93]). The findings were clearly open to the Tribunal on the evidence before it and do not disclose any error in its approach or findings: SZRQR (supra).
The Minister submits that the applicant’s contentions that the Tribunal failed to have regard to the report of Dr Jacmon in assessing his credibility plainly fails on the facts (CB 333 at [98]).
Respondent’s Oral Submissions
The Minister contends that Ground two alleges that the Tribunal failed to give proper consideration to the expert evidence provided by the applicant. Mr Alderton argued, in similar terms to Ground one, that failure to give proper consideration to evidence is not a ground for jurisdictional error: see SZQGC (supra) at [32]-[35]. The Minister submits that the applicant referred to two reports of Dr Jacmon and Dr Andrews in which they argue that the Tribunal disregarded without giving sufficient reasons for doing so. The Minister argued that the effect of the applicant’s argument is that the Tribunal was bound to have regard to these reports regardless of any other evidence that was before it. There was nothing in the Migration Act or the Migration Regulations to support the view that the Tribunal was bound to have regard to this evidence.
The Minister submits that it is significant that the applicant did not complain that the Tribunal failed to have regard at all to this evidence or overlooked the evidence completely. Mr Alterton referred to the passage in Minister for Immigration and Citizenship v SZJSS (supra) (see [99] above). Mr Alderton also took the Court to CB 326 at [65] where he submitted that the Tribunal discussed the report at the hearing, including Dr Jacmon’s findings. Mr Alderton claims that at CB 329 at [85], the Tribunal expressly summarised the report of Dr Andrews. The Minister submits that it is clear that the Tribunal had regard to the two reports that were before it and considered the contents of the report prior to making its decision.
The Minister argued that the applicant mischaracterised the Tribunal’s reasons for its decision. The Minister contends that the Tribunal did not simply reach the conclusion at [104] (CB 334) of its decision without having regard to the reports that were before it. Mr Alderton took the Court to [98] (CB 333), where it states:
98. …While his circumstance may have affected him psychologically, as Dr Jacmon indicated in his report and diagnosis, there is nothing which indicates to the tribunal that the applicant is so affected that he would be unable to give a consistent account of the claimed events over time…
(CB 333 at [98])
Mr Alderton submitted that the applicant’s argument that the Tribunal did not have regard to the report in assessing his credibility, must fail.
The Minister submitted that the Tribunal identified and referred to the reports at [102]-[103] that it had before it. At [102] it states:
102. … This apparently led the applicant to reveal to Dr Andrews that he was no longer comfortable living at their home and in fact believed that his brother had provided information about his sexuality to relatives in Nepal… The tribunal finds this completely unconvincing…
(CB 334 at [102])
The Minister submits that the Tribunal states that it does not believe that when the applicant went to see Dr Andrews that he gave a truthful account of his claims.
Mr Alderton took the Court to [69] (CB 326) where the Tribunal acknowledges an inconsistency between the report of Dr Jacmon and the hearing about whether his brother knew that he was gay. The applicant suggested that there may have been a misinterpretation of what the applicant had actually said that lead to the inconsistency. At [103] the Tribunal found, specifically, that Dr Jacmon finished the sessions with the applicant believing that the applicant had discussed his sexuality with his brother. At [103] it states:
103. The applicant’s claims that his brother was not aware of his claimed sexuality were also undermined by the report of Dr Jacmon which indicated that the applicant has recently disclosed his sexuality to his brother. Again the tribunal believes that this conflict arises not from any miscommunication but from the fact that the applicant is being untruthful…
(CB 334 at [103])
The Minister argued that the Tribunal found, at [104] (CB 334) of the Decision Record, that although Dr Andrews and Dr Jacmon believed the applicant’s claimed accounts, having regard to the previous inconsistencies between his evidence and these reports, it did not have the same view as the Doctor’s reports. The Minister argued that the Tribunal had evidence before it that Dr Andrews and Dr Jacmon did not have before them. The Minister submitted that it is incongruous to say that the Tribunal could not have regard to that evidence and should have immediately put it to one side and accepted, as a matter of fact, the reports of Dr Andrews and Dr Jacmon when they did not have that same evidence before them.
The Minister argued that applicant’s complaint is no more than a disagreement with the weight given by the Tribunal to these reports: SZRQR (supra) at [29]. Also, that the attribution of weight to be given to evidence by the Tribunal is a matter for it: SZJSS (supra) at [35].
The Minister argued that, in SZRQR (supra) at [42] of the Decision Record, in relation to the report of Dr Andrews, the Tribunal gave reasons for its concerns:
42. …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.
The Minister argued that the Tribunal, in the current matter, had the same thought process in relation to Dr Andrews report at [102] (CB 334). The Minister argued that at [49] of SZRQR (supra), his Honour Judge Nicholls stated that the applicant effectively misunderstood what Rares J said in Minister for Immigration and Citizenship v SZLSP & Ors (supra). The Minister contends that the applicant’s written submissions make the same submissions in these proceedings.
The Minister argued that the applicant submitted that the Tribunal gave no reasons why it preferred its own “lay opinion” to that of the professionals. His Honour Judge Nicholls in SZRQR (supra) set out comprehensive reasons for rejecting that complaint at [69]-[84]. Mr Alderton referred the Court to one particular example at [75], where his Honour states:
75. 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.
The Minister submits that these reports are not expert reports; however, even if they were the Tribunal has no obligation to have regard to them in reaching its decision. The Minister argued that it is incongruous to suggest that it could not have regard to its earlier findings about credibility of the applicant’s claims when it considered these reports, particularly as that evidence was not before the persons who wrote the reports.
Consideration of Ground Two
In this Ground the applicant claims that the Tribunal failed to “give proper consideration” to the expert evidence in the form of reports of Dr John Jacmon and Dr Paul Andrews provided by the applicant. The pleaded particulars are that “the Tribunal dismissed the report of Dr Jacmon and Dr Andrews solely on the ground that it differed from their conclusions. The Tribunal gave no reasons as to why it considered the expert opinions to be inferior to its own”.
In the case of Dr Jacmon the Tribunal referred to his report in the following passages:
65. The hearing was adjourned until 18 July 2012 and the applicant appeared again to provide further evidence. On that day the applicant provided a report from a Consultant Psychologist, Dr John Jacmon. Dr Jacmon repeated the applicant’s claims of being homosexual and believed those claims to be true. Dr Jacmon after interviewing the applicant found him to have intelligence between very low and low average. Dr Jacmon believed the applicant was suffering from post-traumatic stress disorder, depression and anxiety at clinical levels arising from relevant tests and a clinical interview. The report also referred to the applicant’s psychosexual development on the basis of the applicant’s claims above.
(CB 3264)
During the Tribunal hearing, the following reference was made to Dr Jacmon’s report at [69]:
69. The applicant was asked about the reference in the report of Dr Jacmon which stated that “In Sydney he avoided until recently telling his brother of his (Mr SZSEQ’s) sexual orientation”. The applicant indicated that this was a mistake and that it may have arisen from a misinterpretation. He had not told his brother that he was gay.
(CB3 26)
The Tribunal made reference to Dr Jacmon’s report at [98]:
98. …While his circumstances may have affected him psychologically, as Dr Jacmon indicated in his report and diagnosis, there is nothing which indicates to the tribunal that the applicant is so affected that he would be unable to give consistent account of the claimed events over time…
(CB 333)
Then at [103], it states:
103. The applicant’s claims that his brother was not aware of his claimed sexuality were also undermined by the report of Dr Jacmon which indicated that the applicant has recently disclosed his sexuality to his brother. Again the tribunal believes that this conflict arises not from any miscommunications but from the fact that the applicant is being untruthful. Beyond the applicant’s mere assertion of this miscommunication there is nothing to support it. Dr Jacmon quite specifically left his sessions with the applicant believing that he had discussed his sexuality with his brother and this tendered not be supported by the evidence of the applicant’s brother in the form of a declaration referring to his knowledge of this. Only after problems emerged with the applicant’s account has an entirely new proposition been put forward, which is that the applicant and his brother had never discussed his sexuality but there has been conflict about it, evidence observed and declarations prepared in the absence of any discussions between those in fact involved.
(CB 334)
In the case of Dr Andrews, the Tribunal referred to his report at [85]:
85. The applicant requested additional time to provide a report from Paul Andrews, PhD, an accredited Mental Health Social Worker. Dr Andrews interviewed the applicant and believed that he was homosexual. He believed that the applicant’s depression, anxiety, post-traumatic stress disorder and low intelligence made it difficult for the applicant to give convincing and coherent evidence. The applicant gave an account of his activities similar to that recorded above. The applicant reported he felt uncomfortable living at the home of his brother since being discovered with Baiysaa. He believed his brother may have told relatives in Nepal of his suspicions of the applicant’s sexuality and feared how he would be received should he return.
(CB 329)
Then at [102] it states:
102. This view was reinforced with material being produced after the hearing. Here it is claimed by the applicant’s brother and sister-in-law that they had seen the applicant and Baiysaa hugging and a photograph of this had also been discovered. This apparently led the applicant to reveal to Dr Andrews that he was no longer comfortable living at their home and in fact believed that his brother had provided information about his sexuality to relatives in Nepal. All of these developments apparently occurring without the applicant and his relatives ever in fact discussing the implications of these incidents or suspicions among themselves. The tribunal finds this completely unconvincing and believes the claims of observed contact between the applicant and Baiysaa, the finding of compromising photographs and fears of revelation of the applicant’s sexuality to by untrue.
(CB 334)
In respect to those reports, the Tribunal made the following finding at [104]
104. The tribunal accepted that Dr Jacmon and Dr Andrews believe the applicant’s account of his past experiences, his political view and sexuality and his fears of return to Nepal. Having considered all of the evidence available regarding this matter however the tribunal simply does not share their conclusions.
(emphasis added)(CB 334)
In reaching this conclusion the Tribunal made the following observations at [93]:
93. Beyond his evidence on those issues going to his identity, the tribunal has found the applicant’s evidence to be completely unreliable and is of the view that he has fabricated claims of political involvement and association, claims of any past harms in Nepal and claims of being homosexual. In the tribunal’s view he has never been associated with the RPP or the RPP-N, he has never been harmed in Nepal as a result of that or for any other reason and he is not in fact homosexual. The tribunal believes the applicant has fabricated these claims to assist his application to remain in the country without regard to the truth.
(CB 332)
It is claimed on behalf of the applicant that the Tribunal’s explanation is that it “simply does not share their conclusion” (CB 334 at [104]).
The issue of whether a particular document that is provided by an applicant to the Tribunal is “highly supportive” or “powerfully corroborative” of the applicant’s claim is a matter solely for the Tribunal to assess in Minister for Immigration and Citizenship v SZJSS & Ors (supra) the High Court unanimously upheld that the weight to be placed on letters or reports was a matter on which reasonable minds might come to different conclusions and that the Tribunal’s preference to other evidence could not be said to entail a jurisdictional error.
Both reports are contained in the Court Book. Dr Jacmon’s report and covering letter (CB 230) to the applicant’s solicitor, Mr David Bitel of Parish Patience Immigration Lawyers states that it is a psychological assessment report and thanks Mr Bitel for referring the client for assessment and attaches that report. Similarly, with Dr Andrews report (CB 300), Dr Andrews thanks Mr Bitel for referring the applicant for assessment of the truthfulness of his claim to be a homosexual. Both Doctors indicate that they interviewed the applicant with the assistance a Nepalese interpreter and had access to various statutory declarations prepared by the applicant and his relatives and also a collection of photographs. Dr Andrews indicated that he had access to and had read Dr Jacmon’s report. The Tribunal Member, in the Decision Record, under the heading Claims and Evidence at [19]:
19. The tribunal has had regard to material contained on tribunal case file 1203218, departmental case file CLF2010/132437, evidence and argument presented at a hearing before it and material available to it from a range of other sources as referred to in this decision.
(CB 313)
The initial claim made by the applicant is set out at [21]-[22] of the statutory declaration provided by the applicant:
21. I returned to Nepal in September 2009. Because I was not satisfied with the family life with a female partner, I always wanted to get out from that relationship. That was one of the reasons coupled with my political opinions forced me to leave Nepal in January 2010.
22. I arrived in Australia in January 2010 and started staying with my brother Rajkumar in Strathfield. My brother, though, knows my political opinions, does not know about my sexual orientation. Therefore, I hid my feelings in Australia until I found my male partner. In addition, due to my lack of English Knowledge and shyness, I could not explore the homosexual activities and environment in Australia, in particular in Sydney.
(CB 316)
Also under the heading Claims and Evidence in the introductory section of that part, at [26] it states:
26. The department sought to arrange with the applicant on 1 November 2011. On 31 October 2011 his adviser is recorded to have contacted the department and asked whether the interview could be rearranged as the applicant wished to make claims involving homosexuality.
(CB 314)
The Tribunal had access to Independent Country Information which it identifies at [86]-[91] of the Decision Record. This information covers both the political situation in Nepal together with homosexual numbers of the Nepali community. This material addresses the situation that the applicant is seeking protection from.
The allegation brought against the Tribunal is that it failed to give proper consideration to Dr Jacmon’s and Dr Andrews’ expert evidence. This invites the Court to enter impermissible merits review. The warning against this approach is addressed by his Honour Griffiths J in SZQGC v Minister for Immigration and Citizenship & Anor (supra) at [32]-[35] where his Honour stated:
32. Secondly, it is now well established that the epithet “proper, genuine and realistic consideration” needs to be viewed with considerable caution because it invites the Court to slide into an impermissible merits review (see, for example, Minister for Immigration and Multicultural Affairs v Anthonypillai(2001) 106 FCR 426 at [65] per Heerey, Goldberg and Weinberg JJ; Reece v Webber (2011) 192 FCR 254 at [68]-[70] per Jacobson, Flick and Reeves JJ; and Anderson v Director-General, Department of Environmental and Climate Change (2008) 251 ALR 633 at [51]-[60] per Tobias JA, with whom Spigelman CJ and Macfarlan JA agreed).
33. Some general guidance as to the meaning of “consider” is to be found in the decision of the Full Court in Tickner v Chapman (1995) 57 FCR 451 in the context of an argument that the Minister had not himself considered representations from interested persons concerning an application seeking protection of a specified area from injury or desecration. Black CJ made the following observations at p 462:
Consideration of a document such as a representation or a submission (there is little, if any, difference between the two for these purposes) involves an active intellectual process directed at that representation or submission.
(Emphasis added.)34. That approach, although differently expressed, is broadly similar to Justice Mason’s statement in Peko-Wallsend set out in [26] above as requiring the decision-maker to “call his own attention to the matters which he is bound to consider”.
35. Ultimately the question is one of fact as to whether or not a decision-maker has considered a relevant matter, such as the claims advanced by the appellant based on the contents of his wife’s letter, in the sense described by Black CJ in Tickner (see also Minister for Immigration and Citizenship v Khadgi(2010) 190 FCR 248 at [51] per Stone, Foster and Nicholas JJ).
Clearly a merits review is not available in this Court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang per Brennan CJ, Toohey, McHugh and Gummow JJ at [31]:
…any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision…
However, is the Court being asked to conduct a merits in this situation? A merits review is an assessment of the appropriateness of a decision as distinct from a judicial review which focuses on the lawfulness of the earlier decision. A judicial review asks whether the decision-maker was authorised to do what he did under the prevailing law, not whether the actual decision was the best decision which could have been made in the circumstances. A merits review provides a complete rehearsal of all of the issues relevant to the application. The reviewing body considers the relevant material as well as any new evidence. The reviewing body makes a decision about the merits of the application, unfettered by the earlier decision or the reasons of the decision maker for the earlier decision. A merits review determines the correct preferable decision in all the circumstances
As referred to above the expert reports of Dr Jacmon and Dr Andrews were identified and considered by the Tribunal prior to making its decision. Besides describing the reports in broad terms, specific parts of the report were referred to. The argument being advanced is that the Tribunal was bound to have regard to these reports, regardless of any other evidence that was available to the Tribunal whether in the form of reports, country information or knowledge assimilated by dealing similar claims from applicant from the same country. It is not apparent that the Migration Act or Regulations support the view that the Tribunal was bound to have regard to the contents of Dr Jacmon’s and Dr Andrews’ reports nor was there any argument or authorities advance on behalf of the applicant to support this view.
A further argument advanced on behalf of the applicant refer to the decision of his Honour Rares J in Minister for Immigration and Citizenship v SZLSP & Ors (supra) and in particular passage at [98] where it states:
98. …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.
The argument is advanced on the basis that in SZRQR v Minister for Immigration and Citizenship & Anor (supra) per his Honour Nicholls FM (as he was then) at [78] the Court dismissed a similar objection on because the Tribunal had given reasons for its evaluation of what the reports had said about the applicant’s sexual orientation. However, in this matter the Tribunal has not made such an evaluation. I believe that the significant passage in his Honour Rares J’s decision appears at [96] where it states:
96. Here, s 65(1) of the Act requires a bona fide attempt by the decision-maker to be satisfied: Saeed v Minister for Immigration and Multicultural Affairs [2010] HCA 23; (2010) 267 ALR 204 at 218 [53]- [55] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ. The purpose of the tribunal’s statement under s 430(1) is to inform the applicant for review and the officer or authority of the Commonwealth whose exercise of power has been reviewed of the basis on which the tribunal exercised the power. This is not to suggest that the s 430(1) statement itself is the subject of judicial review: it is not. Rather, the s 430(1) statement informs the Court of the process by which the tribunal exercised its powers under the Act. Examination of what the s 430(1) statement says and does not say can assist the Court in ascertaining whether the tribunal made a jurisdictional error in the process by which it made its decision: Yusuf 206 CLR at 348-349 [74]-[75].
On a fair reading of the decision before this Court commencing at the Claims and Evidence, the Tribunal clearly sets out contents of the application, initially made by the applicant for a Protection Class (XA) visa, filed with the Department on 5 October 2010. This was prepared with the assistance of Mr DL Bitel, partner of Parish Patience Immigration Lawyers, himself being an accredited specialist in Immigration Law and registered migration agent. Within that initial application at question 42 is asks: “Why did you leave that country?” it states:
I left my country for safety reasons after I was subjected to serious harm at the hands Maoists. I had endured the various forms of ill treatment and that I endured an unrelentingly hostile and oppressive attitude in my village from the Maoists. There is not elected government and my country is in turmoil. Maoists in my village carry guns and they are a law to themselves, so they can harm or even kill those who are opposed or deny them. An investigation by the police or the authorities can be carried out in my village when a Maoists related incident occurred because the Maoists control my village so the police can not punish the Maoists. I left Nepal after experiencing difficulties with the Maoists due to my involvement with the Rastriya Prajatantra Party. My support for the RPP was banned by the Maoists and I was forced to give up my affiliations with the RPP. Please see my statutory declaration attached.
(CB 20)
Then at question 43 of the initial applicant, it asks: “Why do you fear may happen to you if you go back to that country?” it states:
If I go back to my country the Maoists will harm or even kill me. I will be mistreated and there is every chance that I can be assaulted by Maoists. Please see my statutory declaration attached.
(CB 21)
Then at question 45 of the initial application, it asks: “Why do you think this will happen to you if you back?” the answer states:
I will pursue my political belief as a member of the Rastriya Prajatantra Party, Myagdi and opposed the Maoists when it comes to a political issue if I go back. Please see my statutory declaration attached.
(CB 22)
Then at question 46 of the initial application, it asks: “Do you think the authorities of that country can and will protect you if you go back? If not, why not?” the answer states:
No. The authorities of my country are weaker than the Maoists and also my home village is fully controlled by the Maoists. Please see my statutory declaration attached.
The issue of the applicant’s homosexuality is not mentioned at any point in the original application to the Department, noting that the application was prepared with the assistance of a qualified legal practitioner specialising in migration issues and a registered migration agent. As indicated in the Decision Record at [26] (reproduced at [125] above) the applicant’s agent did not raise the issue of homosexuality until the applicant was requested to attend an interview with the Department. When the applicant appeared before the Tribunal Member for a hearing, at which time the various themes of the applicant’s application were discussed in detail, the Tribunal Member raised the operation of s.91R(3) of the Migration Act. At [73] of the Decision Record, it states:
73. The provisions of s.91R(3) were discussed with the applicant. The applicant explained that his main conduct in Australia in attending a gay venue and having photographs taken with another man in a sexually aroused state were not solely for the purpose of supporting the application. He explained that he was telling the truth and if the tribunal did not believe him he could show that the sexual relations were true.
(CB 327)
The substantial finding of the Tribunal is at [93] of the Decision Record, where it states:
93. Beyond his evidence on those issues going to his identity, the tribunal has found the applicant’s evidence to be completely unreliable and is of the view that he has fabricated claims of political involvement and association, claims of any past harms in Nepal and claims of being homosexual. In the tribunal’s view he has never been associated with the RPP or the RPP-N, he has never been harmed in Nepal as a result of that or for any other reason and he is not in fact homosexual. The tribunal believed the applicant has fabricated these claims to assist his application to remain in the country without regard to the truth.
(CB 332)
The Tribunal then sets out in logical sequence the reasons that it finds the applicant’s claims in respect to his alleged problems in Nepal due to his political beliefs and his claimed problem with the Maoists and separately the issue where he has claimed homosexuality being contrary to social norms in his home country. The Tribunal deals with each aspect of the applicant’s claims and clearly states the reason for not accepting those claims and also where evidence given is inconsistent with the overall request for protection. The Tribunal acknowledges and accepts the Doctors reports about the applicant’s past experiences, his political views, sexuality and his fear to return to Nepal, but has formed the view on the material available to it, and having the benefit of interviewing and questioning the applicant has reached a conclusion different from that of the doctors. At [106] of the Decision Record the Tribunal states the obligation that it is under in assessing a Protection visa application as set out in various guidelines and judicial consideration. Taking that into account, the Tribunal states its findings. On a fair reading of the Decision Record I am satisfied that the Tribunal Member has complied with his obligations under the provisions of s.430(1).
A further argument advanced on behalf of the applicant is that the Tribunal had formed the view that the applicant was not telling the truth and therefore did not consider contents of the Doctors reports. In support of this contention, Mr Jones referred the Court to the decision in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (supra) at [27] (which is reproduced at [89]-[90] above). I believe that it is important in following this authority that the following paragraphs is taking into consideration, where it states:
28. This appeal did not involve a case in which the credibility of the appellant had been destroyed by stark findings of untruthfulness. The Tribunal accepted that in her youth the appellant had distributed “MKO” newsletters at university and that her brother had engaged in similar activities and had been killed in unexplained circumstances. The Tribunal accepted that the appellant believed that the security forces had been responsible for the death of her brother.
29. The Tribunal said it did not accept that the appellant, a nurse, had assisted an injured “MKO” supporter to escape from the hospital at which she was employed after Iranian security forces had brought that person to the hospital for treatment for his injuries. The principal reason given by the Tribunal for not accepting the appellant’s claims was the failure of the appellant to assert those claims at the “entry” interview on 11 October 2000. The same reason grounded the first decision of the Tribunal where the documents corroborating the appellant’s account had remained untranslated.
The circumstances before this Court can be distinguished from those referred to in WAIJ (supra). Doctor Jacmon’s report prepared, on 13 July 2012, being in excess of 18 months after the filing of the original Protection visa application and 5 months after the decision of the delegate, relies substantially on the applicant’s own description of his circumstances while Dr Andrew’s report of 3 September 2012 was, again, substantially based on the applicants’ own description of his circumstances in conjunction with a review of Dr Jacmon’s report. The external information relied upon by both Doctors were statutory declarations from the applicant’s brother, his sister-in-law, two of his own statutory declarations and a collection of photographs depicting the applicant in sexually explicit poses with another male. Both of those reports were available to the Tribunal which were read and considered by it which is evidenced by references made in the Decision Record of observations and comments that appear in both reports. There can be no suggestion that they were ignored.
The Tribunal Member clearly states that he had available to him a substantial body of material that was not provided to either doctor in order for them to prepare their reports. They were requested to address specific issues, which they did and it is abundantly clear from those respective reports. The Tribunal, with the benefit of the additional material, which has been identified in the Decision Record and the summary of the interviews that took place, both before the delegate and the Tribunal Member are summarised in the Decision Record. The Tribunal Member has clearly indicated that with the benefit of the additional material and possessing knowledge accumulated from addressing these types of claims from other visa applicants, was able to indicate that he had formed a view which had not been fully addressed or requested from the Doctors in their reports. The predominate purpose of Dr Jacmon’s report was to establish the application psychological health whereas Dr Andrews was specifically asked to assess the truthfulness of the applicant’s claim to be a homosexual. The broader question for the Tribunal Member was to determine the applicant’s Protection visa status. The claim that the Tribunal did not consider all of the evidence and came to a conclusion without having considered all of the evidence, namely, the Doctors’ reports is not relevant to the task that the Tribunal was required to undertake. I am satisfied that this claim in this ground cannot be sustained and should be dismissed.
I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 4 April 2014
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