SZTIN v Minister for Immigration
[2015] FCCA 1972
•28 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTIN v MINISTER FOR IMMIGRATION & ORS | [2015] FCCA 1972 |
| Catchwords: MIGRATION – Application to review decision of the Refugee Review Tribunal – Whether the Tribunal failed to afford the primary applicant or his wife a meaningful opportunity to give evidence and present arguments as required by s.425 of the Migration Act 1958 (Cth) or otherwise fell into error in failing to give or to consider whether to give the wife the opportunity to give evidence at the Tribunal hearing in relation to her claim and/or her husband’s claims. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 36(2)(a), 36(2)(aa), 36(2)(b), 36(2)(c), 425, 425(1), 426, 426(2), 426(3) Migration Regulations 1994 (Cth), regs.1.12, 2.08, 2.08A, 4.31A |
| Alam v Minister for Immigration & Anor [2010] FMCA 215 Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 CZBH v Minister for Immigration and Border Protection [2014] FCA 1023 Ghori v Minister for Immigration & Anor [2010] FMCA 794 Huynh v Minister for Immigration and Border Protection [2015] FCA 701 Lay & Anor v Minister for Immigration & Anor [2014] FCCA 923 Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50; [2014] FCAFC 1 Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Citizenship v SZRKT & Anor (2013) 212 FCR 99; [2013] FCA 317 Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin & Anor (2005) 88 ALD 304; [2005] FCAFC 118 Rathor v Minister for Immigration & Anor [2014] FCCA 10 SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364; [2003] FCA 709 SZDFZ v Minister for Immigration and Citizenship & Anor (2008) 168 FCR 1; [2008] FCA 390 SZEJN v Minister for Immigration [2005] FMCA 961 SZEJN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1355 SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 SZQWL v Minister for Immigration & Anor [2012] FMCA 388 SZRMC & Anor v Minister for Immigration & Anor [2012] FMCA 845 SZSXV & Anor v Minister for Immigration & Anor [2014] FCCA 1584 Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 |
| Applicant: | SZTIN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| Third Respondent: | SZVRR |
| Fourth Respondent: | SZVRT |
| Fifth Respondent: | SZVRU |
| File Number: | SYG 2359 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 20 November 2014 |
| Delivered at: | Sydney |
| Delivered on: | 28 July 2015 |
REPRESENTATION
| Counsel for the First Respondent: | Mr Smith |
| Solicitors for the First and Second Respondents: | Sparke Helmore |
ORDERS
The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.
A writ of certiorari issue directed to the Second Respondent quashing the decision made on 13 September 2013 in Case no.1300468.
A writ of mandamus issue directed to the Second Respondent requiring the Second Respondent to redetermine the application for review of the decision of the delegate of the First Respondent made on 20 December 2012 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2359 of 2013
| SZTIN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
| SZVRR |
Third Respondent
| SZVRT |
Fourth Respondent
| SZVRU |
Fifth Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal (the “Tribunal”) dated 13 September 2013 affirming a decision of a delegate of the First Respondent not to grant the applicants and his family protection visas. The visa applicants were a husband, his wife and their two children.
In the course of the hearing, counsel for the First Respondent pointed out that the wife and children were properly to be regarded as necessary parties as the Tribunal decision related to the family and the ground relied on by the Applicant related to the Tribunal’s obligation to his wife, as well as to him. They were joined as respondents and the Applicant was appointed litigation guardian for the younger child.
The Applicant and his family came to Australia in June 2012. He applied for a protection visa on 30 August 2012. His wife and children were included in that application as members of his family unit. In the protection visa application the Applicant claimed that he was a Jordanian citizen, but that he had been born and raised in Qatar and had never lived in Jordan.
The Applicant claimed that in Qatar he had been harmed and discriminated against and was not accepted in the community because he was a homosexual. He also claimed to fear harm in Jordan, as Jordanian tribal laws and culture discriminated against and did not accept homosexuality and he feared he would be killed by neighbours or a member of his extended family. He claimed that he had received threats from family members.
The Applicant claimed he had been the managing director of a company (the “Company”) which he had founded in Qatar in 1993. He had lived in Qatar as the holder of a residency permit based on sponsorship by the chairman of the Company. He claimed that in 2005 he began a six-year homosexual relationship with his administrative assistant, but that in July 2010 the chairman confronted him about his homosexuality and his relationship. The Applicant claimed that he believed that the chairman told his extended family about his homosexuality. He claimed he subsequently received threats and was ostracised by his extended family. He also believed the chairman told the “Mutawwa” (Sunni religious scholars) who had threatened him.
The Applicant provided a copy of what was said to be an email sent to him in Australia on 27 August 2012 by the chairman of the Company. It stated that due to a current financial crisis the Company was to be closed down and that the Applicant’s services would be no longer required. Hence his residence permit would be automatically cancelled so that he would not be able to return to Qatar. He would not be granted a sponsorship transfer.
The delegate refused the visa application, which was considered on the basis that the relevant country of origin was Jordan. The delegate was not satisfied that the Applicant was a homosexual and found that the other three visa applicants were not members of the family unit of a person to whom Australia owed protection obligations.
The visa applicants sought review by the Tribunal. They provided further supporting documentation as discussed below. The four visa applicants were invited to attend a Tribunal hearing on 2 September 2013. The Applicant and his wife indicated on the Response to Hearing Invitation Form (the “Form”) (signed by the Applicant on behalf of and with the consent of all the visa applicants) that they wished to take part in the Tribunal hearing, but that the two children did not wish to do so. They did not ask the Tribunal to take oral evidence from any other person. What occurred during the hearing is discussed further below.
The Tribunal Decision
In its reasons for decision, the Tribunal set out the Applicant’s claims and evidence, including his claim that he was a homosexual and that this had been discovered by his sponsor, information leaked to the community and that he had subsequently been ostracised and had received death threats from religious groups.
In its findings and reasons the Tribunal found that although the Applicant was born, raised and had lived in Qatar, he was a Jordanian national and that his application should be assessed on that basis.
The Tribunal considered the Applicant’s claims that he feared being killed by his relatives in Jordan because he was homosexual and that he would face persecution in Jordan because of his Palestinian ethnicity. However, it did not accept the Applicant’s claims that he was homosexual or that he had been or was likely to be perceived to be a homosexual. The Tribunal found that the Applicant’s evidence regarding his claims lacked credibility. It did not find him to be a reliable, credible or truthful witness. Rather, the Tribunal was of the view that the Applicant had fabricated his entire claim in order to be granted a protection visa.
In reaching such a conclusion the Tribunal recorded that it took into account a psychologist’s report dated 29 August 2012. However it noted that the Applicant was no longer undergoing counselling and that he had advised that he was medically fit to take part in the hearing. The Tribunal did not accept that any of the issues it considered in reaching its adverse credibility finding could be explained by any medical condition.
The Tribunal was of the view that the Applicant had made preparations before coming to Australia (on a tourist visa) to stay in the country for an extended period. He had opened a bank account and transferred over $100,000 to it, had purchased two cars; brought two school references for “his daughters” (sic) with him from Qatar; and started a business in Australia in October 2012 after arriving in July (sic) on a three month visa. The Tribunal was of the view that the Applicant’s protection claim was made in pursuit of this aim, rather than for any legitimate fear of persecution. The Tribunal did not accept that he transferred the money because he feared the cancellation of his sponsorship and freezing of his account. It also recorded concerns it had raised with the Applicant (and his explanation) as to why he needed school references for his children if he had only come to Australia for a holiday.
The Tribunal expressed concerns about the nature of the Applicant’s employment in Qatar and whether the Company was a real company. It found that this led to doubts about the role played by the chairman and whether the Applicant even had an administrative assistant who became his lover. It had regard to the fact that, while the Applicant claimed to have started the Company in 1993, he had submitted a Qatari document that referred to registration of the business under a temporary six-month licence from 1 December 2011 that expired on 16 June 2012 and a work sub-contract dated 1 April 2012.
The Tribunal also had regard to the fact that none of the “email traffic” presented had any company addresses and the emails were sent from Hotmail or Yahoo accounts. There was said to be no evidence of any email traffic of a commercial nature between the Applicant and any clients to attest that any real business had been carried out. The Tribunal did not accept the explanation that all the Applicant’s work was done by phone or “hard copy”.
The Tribunal was of the view that as the Company had allegedly been trading since 1993 and the Applicant had an internet account, it was reasonable to assume he should have been able to provide some history of email traffic involving the Company’s business dealings that proved he was a managing director working in the construction business.
The Tribunal also had regard to the fact that the letter purporting to be from the chairman (the Applicant’s sponsor) attesting to the fact that the Applicant had been managing director of the Company since 2001 was unsigned and on plain, rather than letterhead, paper. The Tribunal gave this letter no weight. It also observed that a business card he had provided was an email attachment to an email from the Applicant’s Hotmail account to another person’s Hotmail account with no explanation as to why it had been sent.
The Tribunal did not accept that the Company was formed in 1993 or that it was actively trading. It was not satisfied that the Company had existed for more than the period that the licensing document showed. While having correctly recorded the licensing dates earlier in its reasons for decision, at this point in its reasons the Tribunal incorrectly recorded the relevant period as 1 December 2012 (instead of 2011) to 16 June 2013 (instead of 2012). However, it gave no weight to the email dated 12 August 2012 that the Applicant claimed came from the chairman’s Yahoo account advising him that the Company was being shut down, given that the Company’s licence had expired on 16 June. Thus the Tribunal appears to have understood, correctly, that the email from the Chairman was dated after the expiration of the Company’s temporary licence. In addition, having found that the Company was not formed until 1 December 2012 (sic), it did not accept that the Applicant could have hired his homosexual lover as his administrative assistant in 2005.
The Tribunal stated that “[r]egardless it would still address [the Applicant’s] protection claims as given”. It was not satisfied that the Applicant was a homosexual or that people had been told that he was homosexual. It found that his recollection of sexual partners in Qatar “appeared to be alternately vague or extremely coincidental”. It was of the view that the “coincidences” were that his first partner was the boy whom he sat next to at school and his long-term partner of six years was the “Filipino” who applied to be his personal assistant in 2005. The Tribunal also found that the Applicant’s recollection of other relationships was “vague”, in that he had indicated he could tell visually that there was mutual attraction during work or meetings and would exchange numbers and then “date” by having coffee and going places. The Tribunal accepted that living a homosexual lifestyle in Qatar would be difficult, but was not satisfied that the Applicant was part of any gay “scene” and was unconvinced that he would approach someone at random following a business meeting, given the risks he claimed were involved in being homosexual in Qatar.
The Tribunal also found that the claims about the actions of the Applicant’s sponsor in dealing with the issue of the alleged homosexuality lacked credibility. It did not accept that they occurred. The Tribunal considered it relevant that, despite allegedly raising the issue of homosexuality directly with the Applicant in September 2010, losing his temper and ignoring the Applicant’s calls, it was claimed that the sponsor had continued to investigate the issue in some unexplained way and had then cancelled the Applicant’s lover’s sponsorship in mid-2011. It had regard to the fact that while the Applicant also claimed that the sponsor had allegedly told people in Qatar who were distantly related to the Applicant’s cousins in Jordan about the Applicant’s homosexuality, and had also told Sunni religious scholars who made threatening phone calls to the Applicant, the sponsor had not called the police or sought to cancel the Applicant’s visa until he was in Australia. The Tribunal expressed concern about what it saw as the sponsor’s long delay, for no apparent reason, in confronting the Applicant if the sponsor was as religious and intolerant of homosexuality as claimed and if he had believed what he had been told regarding the homosexual behaviour. The Tribunal also found it “anomalous” that a Shi’a would approach mutawwa (Sunni scholars of strict Wahhabis or Salafist persuasion) about the Applicant’s homosexuality.
The Tribunal did not accept that the mutawwa were advised about the Applicant’s alleged homosexuality and had merely threatened him anonymously or that the sponsor failed to involve the police because the Applicant knew the sponsor was using company accounts to withdraw money. It was of the view that, given homosexuality was illegal in Qatar, the mutawwa could have brought it to the attention of the police, which would have resulted in punishment for the Applicant.
The Tribunal observed that the Applicant’s explanation for the sponsor’s failure to involve the police was only provided after his visa application was rejected by the Department. Given its concerns with the Applicant’s credibility, the Tribunal was not satisfied that this late claim was made for any reason other than to explain the inability of the sponsor to bring legal charges.
The Tribunal also saw no apparent reason why the sponsor would seek to reveal the Applicant’s alleged homosexuality to members of the Applicant’s extended family. It gave no weight to the emails provided in support of this claim.
The Tribunal acknowledged that the Applicant had claimed he had been restrained from fully exploring his homosexuality in Qatar and that he claimed to it that he had moved out of his home in Australia, had a boyfriend who sometimes stayed over with him and had explored his homosexuality in Australia from October 2012, but that he had had no “full relationship”. However, the Tribunal was of the view that the Applicant had neither explored any homosexual behaviour nor sought to live a genuinely homosexual lifestyle in Australia.
It had regard to inconsistencies in the Applicant’s explanation for his failure to explore his homosexuality in Australia. He had claimed to the delegate that he had been unable to do so because he was at home, that he was never allowed out alone, and that his wife worked with him and never left him even for an hour, but had told the Tribunal that he had bought a second car so his wife could visit friends and relatives and to keep her as far away as possible and that he had started dating men in October 2012.
The Tribunal did not accept that such inconsistencies were due to the fact that the Applicant was not comfortable in talking to a young woman in the departmental interview or that he was confused by the term “exploring”. It observed that although the Applicant used an interpreter, he spoke very good English and sometimes used English to explain himself and had regard to the fact that the departmental officer had already established the Applicant’s homosexuality claim (which the Tribunal saw as the most embarrassing aspect of the claim) so that the issue of whether his wife used a car or not and the real reason for buying the car should not have been a cause of any further discomfort for the Applicant. The Tribunal found that the Applicant had used these reasons to “cover” for his inconsistent evidence.
Nor was the Tribunal satisfied that the Applicant had subsequently explored the Sydney gay community. It had regard to the fact that he could name only two gay sites on Oxford Street, both of which were said to be very prominent, did not know the name of the main Sydney gay newspaper and could name only one gay website that he had visited. The Tribunal was of the view that for someone who self-admittedly lived in a very closed society, the Applicant did not appear to have made much of an effort to explore the Sydney gay scene, particularly after he claimed to have moved out of the family home in February 2013.
The Tribunal accepted that the Applicant had rented a townhouse separate to his family residence, but did not accept that this was evidence of the desire to pursue a homosexual lifestyle. It was of the view that the Applicant had been methodical in preparing for his move to Australia and found it “suspicious” that the move occurred after his claim had been rejected in part because he was still pursing what appeared to be a heterosexual lifestyle.
In any event, the Tribunal was not satisfied the Applicant used the townhouse to pursue his relationship with a boyfriend he claimed he had had since December 2012. It had regard to the absence of mention of a boyfriend in the pre-hearing submission from the Applicant’s adviser and the fact that “nobody came to give evidence as a witness” during the Tribunal hearing.
The Tribunal stated that it had taken into account the statutory declaration provided after the hearing, from a person who claimed he had been the Applicant’s boyfriend since December 2012 and was willing to give testimony in person. The Tribunal gave no weight to this statutory declaration, finding that it was up to the Applicant to make his claim for protection and reasonable to assume that someone who had formed such a strong homosexual relationship as claimed would be willing to appear as a witness, particularly given the doubts expressed over this claim in the departmental interview. The Tribunal observed that there may be any number of reasons why a witness might not be able to appear, but that none of them had been offered by the Applicant or outlined in the statutory declaration. It found the absence of any mention of this boyfriend in the Applicant’s pre-hearing submission further strengthened this finding.
The Tribunal was not satisfied that medical checks for STDs and AIDS that the Applicant had undergone were indicative of any homosexual activity or otherwise supported his claim.
Because the Tribunal did not accept that the Applicant was homosexual or likely to be or have been perceived to have been homosexual, it was not satisfied that there were any “substantial grounds for believing there is a real chance that the applicant will suffer significant harm now or in the reasonably foreseeable future”. The Tribunal referred to “substantial grounds for believing” and “significant harm” notwithstanding that this finding appears to relate to the Applicant’s Refugee Convention claims.
The Tribunal then considered the Applicant’s claim to fear persecution because he was a Palestinian, but did not accept he would face persecution on return to Jordan. It observed that the Applicant had been unable to state what persecution he feared due to his ethnicity, but had spoken vaguely in terms of discriminatory behaviour, being treated differently and having to go to “GID” to renew his passport.
The Tribunal accepted that country information indicated that Palestinians may suffer discrimination, particularly in terms of some public sector employment, but found that the Applicant was wealthy, that he had a Jordanian passport and an identity card, owned land in Jordan and had worked for many years in the private sector in Qatar. It saw nothing to indicate that he had suffered persecution or would face a real chance of suffering any harm, either now or in the reasonably foreseeable future or that he would have any difficulty in working in the private sector in Jordan.
The Tribunal then addressed the complementary protection criterion as follows:
72. Because I do not accept that the applicant is or was homosexual or is likely to be or to have been perceived to be homosexual, or that he has been unable to find employment or will face any harm due to his Palestinian heritage, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicants will suffer significant harm.
73. As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Jordan, there is a real risk that the applicants will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
Notably, in this part of its reasons, the Tribunal considered whether any of the visa applicants met the complementary protection criterion.
The Tribunal was not satisfied that any of the visa applicants was a person in respect of whom Australia had protection obligations. It therefore found that the visa applicants did not satisfy the primary criteria in ss.36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (the “Act”) for the grant of a protection visa. It found that it followed that they were “also” unable to satisfy the criteria in ss.36(2)(b) or 36(2)(c) which relate to family members. The Tribunal affirmed the decision not to grant the visa applicants protection visas.
The Current Proceedings
The Applicant sought review by application filed in this Court on 3 October 2013. As indicated, during the course of the hearing an issue was raised by counsel for the Minister in relation to the need for the wife (and perhaps also the children) to be parties to the proceedings. In their absence, but with the consent of the First Respondent and the Applicant, and on the basis that in the event the application was dismissed the First Respondent consented to any order as to costs being imposed only on the Applicant, I made orders joining the Applicant’s wife and two children as the Third, Fourth and Fifth Respondents to these proceedings and appointed the Applicant litigation guardian for the Fifth Respondent. For the sake of completeness, insofar as this procedure (suggested as appropriate by counsel for the First Respondent) raised any issue as to whether or not the wife and children required an extension of time to be joined in these proceedings, having regard, in particular, to my consideration of ground one, I am satisfied that it would be in the interests of the administration of justice to extend the time for the wife and children to be joined as parties to the proceedings.
The Applicant relied on an Application filed on 3 October 2013. In an affidavit of 30 September 2013 he referred to his past experiences and made claims about his future fears. In this respect, he seeks impermissible merits review. In addition, in a document described as an affidavit filed on 28 January 2014, he raised what are, in effect, further grounds.
The Applicant’s grounds and the material before the Court raised a number of issues beyond those addressed in the First Respondent’s initial submissions. The hearing was adjourned and the parties were given the opportunity to file and serve any further affidavit evidence and/or submissions. The First Respondent filed a supplementary Court Book and also an affidavit of Liam Dennis affirmed on 1 August 2014, to which was attached a compact disc containing an audio recording of the Tribunal hearing held on 2 September 2013. The affidavit identified parts of the hearing considered relevant to issues in relation to the Applicant’s wife’s participation in the Tribunal hearing. The First Respondent also filed further written submissions.
Ground 1
Ground 1 is expressed as a “failure to consider corroborative evidence”. The particulars are as follows:
a) The Tribunal disregarded to hear the testimony of my wife … even though she was listed as a witness in the hearing. She has gone in the Tribunal’s hearing room and given an oath yet she was given directions to leave the room. The Tribunal failed to even mention this in the decision letter issued. I strongly believe that the testimony would have supported my claim and yet she was not even acknowledged to give a testimony. In paragraph 66 “while there may be any number of reasons as to why a witness may not be able to appear, none was offered by the applicant”. This is false as I had stated my wife as a witness and they did not seek to interview her.
b) The Tribunal committed jurisdictional error by failing to consider my evidence in support of my application, I had relied on the statutory declaration of my boyfriend Mr … . My migration agent had given the option of either a statutory declaration from [the boyfriend] or to set a date for an interview and the Tribunal had chosen a statutory declaration. The Tribunal then gave the statutory declaration no weight.
It is convenient to consider particular (b) first. The Applicant did not elaborate on this aspect of Ground 1 in submissions. The First Respondent submitted that there was no evidence before the Court to support the Applicant’s assertion that the Tribunal gave the applicant’s migration agent an “option”. However the First Respondent ultimately relied on several extracts from the recording of the Tribunal hearing of 2 September 2013 (including the recording of what occurred at the conclusion of the hearing).
It is apparent that at the end of the hearing the Applicant’s agent asked the Tribunal member about the process for submitting further evidence about the Company and about the Applicant’s boyfriend. The agent indicated that the Tribunal had left to the Applicant how this was to be done. The Tribunal member stated “Whatever you think is the most convincing way to do it, that’s up to you”. The agent stated “Alright, I understand. Can we say just, umm, a hearing for that witness or we just send the statement”, to which the Tribunal member responded “Send, send that …”. The agent said “The statement. And how long do we have to reply that …” at which point the Tribunal member elaborated on the kind of information that would be relevant in relation to the Company, such as material showing the Company’s email address and interactions with other companies that would prove the Applicant was a manager or general manager. The Applicant suggested he might find a business card, email, or an ID card and the Tribunal member replied “Whatever you think strengthens your claim. I’ve raised my concerns” and allowed the Applicant nine days to provide such information.
On the evidence before the Court it has not been established that the Tribunal “chose” a statutory declaration in a manner that overrode the way in which the Applicant, though his migration agent, sought to provide further evidence or that it failed to exercise any discretion in the respect rationally and reasonably (see Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332; [2013] HCA 18).
The Applicant had been afforded the opportunity to attend a Tribunal hearing on 3 September 2013. He had not given the Tribunal written notice under s.426(2) of the Act that he wanted the Tribunal to obtain oral evidence from his boyfriend at that hearing. Despite this, he was given the opportunity to provide a statement from the boyfriend after the hearing. The Tribunal was under no obligation to hold a further hearing. This was not a case in which an adjournment was sought. Rather, the Tribunal afforded the Applicant the opportunity to provide further evidence in support of his claim (made during the hearing) that he had been in a relationship with a particular person since December 2012.
More generally, it is for an applicant to make out his case and if the Applicant wished to rely on particular material or evidence from his claimed boyfriend then it was for him to bring it to the attention of the Tribunal (Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 at [26]; SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364; [2003] FCA 709 at [16]).
In essence, this particular takes issue with the fact that the Tribunal gave no weight to the statutory declaration the Applicant provided after the hearing from the person who claimed to have been his boyfriend from December 2012 and who indicated in the declaration that he was willing to give testimony in person. As indicated, the Applicant had not requested the Tribunal to take oral evidence from the boyfriend at the Tribunal hearing on 2 September 2013. The boyfriend had not attended the hearing on 2 September 2013 as a potential witness.
It was open to the Tribunal to proceed on the basis that as it was for an applicant to make his claim for protection, it was reasonable to assume that someone who had formed such a strong homosexual relationship (as had been claimed) would have been willing to appear as a witness at the hearing, particularly given the doubts that had been expressed about the homosexuality claim in the departmental interview and decision and the delegate’s view that the Applicant appeared to have been living a heterosexual lifestyle in Australia. It was also open to the Tribunal to have regard to the fact that no explanation for any inability of the deponent to appear at the Tribunal hearing of 2 September 2013 had been offered by the Applicant or in the statutory declaration. The Tribunal also found that the absence of any mention of this “boyfriend” in the Applicant’s pre-hearing submission further strengthened its finding in relation to giving no weight to the statutory declaration.
It was for the Tribunal to determine the weight to be given to such material (see Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5]-[7]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [46]). It cannot be said that the Tribunal overlooked or failed to consider potentially corroborative evidence (see Minister for Immigration and Citizenship v SZRKT & Anor (2013) 212 FCR 99; [2013] FCA 317).
The fact that the Tribunal considered, but did not give any weight to the evidence in the statutory declaration is not, in the circumstances of this case, indicative of jurisdictional error. No jurisdictional error is established on the basis contended for in this aspect of Ground 1.
The other aspect of ground 1 is particularised as follows:
a) The Tribunal disregarded to hear the testimony of my wife … even though she was listed as a witness in the hearing. She has gone in the Tribunal’s hearing room and given an oath yet she was given directions to leave the room. The Tribunal failed to even mention this in the decision letter issued. I strongly believe that the testimony would have supported my claim and yet she was not even acknowledged to give a testimony. In paragraph 66 “while there may be any number of reasons as to why a witness may not be able to appear, none was offered by the applicant”. This is false as I had stated my wife as a witness and yet they did not seek to interview her.
In the initial visa application only the husband made claims to fear persecution or significant harm. His wife and children applied for protection as members of his family unit. The delegate invited both the husband and wife to an interview, which the husband attended.
The delegate was not satisfied that the husband was homosexual or that he met either the Refugees Convention or the complementary protection criteria. As the delegate refused to grant a protection visa to the husband, she refused to grant protection visas to his wife and children (who were described as members of the family unit included in the application).
The husband, wife and their two children all sought review by the Tribunal. The Tribunal invited all four applicants to a hearing to give evidence and present arguments “relating to the issues arising in your case”. It was not disputed that the Tribunal was obliged under s.425 of the Act to extend such an invitation to all review applicants (whatever the basis for their application).
In Part 1 of the printed Response to Hearing Invitation Form (the “Form”) both the husband and wife responded “yes” to the question “Will you take part in the Tribunal hearing scheduled for 2 September 2013?”. They did so in circumstances where the Form advised that if they selected “no”, the Tribunal may make a decision on that person’s application without taking any further action to allow or enable that person to appear before it. A “no” response was provided for each of the children. The visa applicants did not ask the Tribunal to take oral evidence from “another person” in Part 3 of the Form.
Both the husband and the wife attended the Tribunal hearing in accordance with their response to the hearing invitation. The Hearing Record in the Court Book records that they each made an affirmation. About 13 minutes into the hearing, the Tribunal member had an exchange with the wife as follows:
Member: You are here as the secondary applicant today. Do you have any claims that are separate to those of your husband or do you rely entirely on your husband’s claims?
Second Applicant: Included in my husband’s application.
Member: Okay. So you have no separate claims of your own?
Second Applicant: No claims.
Member: I’ll allow you to stay there until I call your husband to give his evidence, and then I’ll ask you to stay outside. The reason that we’re here is that the Immigration Department has rejected your application for a Protection visa and you’ve asked the Tribunal to review the decision to refuse you the visa. …
(Emphasis added)
Subsequently, after the purpose of the review had been explained to both visa applicants, the Tribunal member stated to the applicant wife:
Member: I’ll have to ask you to wait outside now, please.
As highlighted in the affidavit of Liam Dennis and as referred to in the Tribunal’s reasons for decision, at about 1 hour and 15 minutes into the hearing the Tribunal member questioned the Applicant about his wife’s knowledge of his homosexuality and about the basis for the visa application and the delegate’s decision as follows:
Member: … Does your wife know about your homosexuality?
First Applicant: She used to suspect. Like, she had some suspicions, but now I have told her.
Member: When did you tell her?
First Applicant: In February.
Member: Why did you tell her in February?
First Applicant: At first I didn’t want her to know, but my – at that time, while I was in Australia, I found that I am in a place where I can be “what I am”, like a homosexual without fear or anything. I felt that I don’t need to go to any, like, to ask any help from any doctors or anything. All I have to, is like get out of my fear and practice my life the way I like.
Member: So why did your wife think your claim was based on … sorry. What did she think your initial protection claim was based on?
First Applicant: She knew, like, she had … She knew at first that my application was based on the fact that I cannot go back to Qatar and neither to Jordan because I have some problems in Jordan, but she didn’t know the nature of the problems in Jordan. I decided to tell her the truth in February.
Member: Does your wife read English?
First Applicant: She’s not very like … When I applied for my Protection visa I got the application form from the Immigration [Department] and completed while I’m there and submitted it.
Member: And your wife signed it there?
First Applicant: She didn’t know what she was, what the content would be.
Member: When your rejection letter came from the Immigration Department in December 2012, did she read that?
First Applicant: No, she didn’t read it.
Member: Why not?
First Applicant: She didn’t see it.
Member: If I’d signed for a protection application and got a letter back from the Immigration Department, I think I’d want to read what was uh, the reasons they said no.
First Applicant: First of all the application was under my name, not under her name. Second, when the letter came, I got the letter and read it and I told her that our application has been rejected. Even if she read the letter, she’s not going to understand the content of this letter. No, her English is not good enough to understand what is written.
Member: You’ve got family in Sydney, according to this. Surely she’d want to know what this big document said – what the reasons for Immigration are for knocking back your – if you said you’re at risk of being killed because you have problems in Jordan and this document came saying why you had been rejected. Isn’t it valid that a wife would want to know why?
First Applicant: Well, this contents didn’t come to her hand. I mean, I took the letter and I read it. I didn’t give it to her and I wouldn’t allow her to take it to any of her relatives to read it.
Member: Okay. So you say you’ve now come out as a homosexual in Australia?
…
At the end of the hearing, without having recalled the wife to give evidence and without having discussed the failure to do so with the husband or with the applicants’ migration agent, the Tribunal member indicated that these were all the questions he had and asked whether there was anything the Applicant or the agent would like to say. When the Applicant said no, the Tribunal member indicated he would close the hearing and that he was going to “ask you guys to leave before [he could] close it”. The agent then raised (and the Tribunal member clarified) the question of the Applicant providing further written evidence after the hearing. The hearing was then closed.
The Applicant submitted that in the Response to Hearing Invitation Form he had asked the Tribunal member to allow his wife to give her evidence and to be present at the Tribunal hearing. He pointed out that, in contrast, he and his wife had not indicated that their children wished to give evidence.
The Applicant claimed that his wife’s evidence would have had an impact on his case, as her evidence in relation to his sexual status would have been supportive. He took issue with the fact that his wife did not have the opportunity to give evidence at the Tribunal hearing, notwithstanding she was part of his application and part of his claim, and they had requested that she participate in the hearing and she had wanted to say something. He suggested that the Tribunal member had just made an assumption that the wife had nothing to talk about and nothing to say.
Several issues arise in these circumstances. One issue is whether the Tribunal breached its obligations to the wife under s.425 of the Act on the basis that it failed to afford her the requisite opportunity to give evidence and present arguments in relation to the issues arising in relation to the decision under review.
Associated with this issue, as was anticipated by the First Respondent in initial written submissions, there is an issue as to whether the Tribunal erred in failing to have regard to any written notice or request from the Applicant (or applicants) that he (or they) wanted the Tribunal to take oral evidence from a witness, whether under s.426(3) of the Act or otherwise. More generally, the Applicant contended that the Tribunal erred in failing to allow the wife to give potentially corroborative evidence in relation to his claims or to consider the potentially corroborative evidence he sought to put before it as oral evidence from his wife.
The First Respondent submitted that there was no breach of s.425 of the Act in relation to the wife. It was contended that from the outset the wife had made no independent claims of her own, that no such claims were made on her behalf by her husband, and that she applied for protection only as a member of her husband’s family unit. It was also submitted that what the wife said at the hearing (when asked whether she had claims separate to those of her husband) should be interpreted to have indicated both that she had no claims of her own and that she did not desire to participate in the Tribunal hearing (particularly as she did not ask to give evidence or protest to the Tribunal about not being asked to give evidence).
In any event, it was submitted that when considering the Tribunal’s obligation to the wife under s.425 of the Act “the issues arising in relation to the decision under review” were limited to whether she met the family unit criteria in s.36(2)(b) or s.36(2)(c) of the Act, which were the issues considered by the delegate. In particular, the First Respondent submitted that “the issues” in relation to the delegate’s decision about the wife’s visa application for the purposes of s.425 did not extend to issues in relation to the husband’s claims. It was further contended that in this case it was unnecessary for the wife to be questioned about membership of the family unit as it was said not to be disputed that she was a member of her husband’s family unit.
For the reasons that follow, I am satisfied that the Tribunal fell into jurisdictional error.
The Tribunal’s obligation under s.425(1) was an obligation that was owed to the applicant wife, as well as to the applicant husband. It had issued each of them with a written invitation to appear to give evidence and present arguments relating to the issues arising in their case. The wife and the husband had each accepted this invitation and indicated that they each wished to participate in the hearing.
In the Form in it was clearly indicated that both the husband and wife wished to take part in the hearing as review applicants. It is hardly surprising, given the format of the Form, that having given this indication, the Applicant (or applicants) did not also indicate the desire for the wife to participate as “another person”. They had already indicated (in Part 1 of the Form) that the wife wished to give evidence and present arguments at the Tribunal hearing.
It is the case that at the hearing the applicant wife acknowledged that she did not have any claims to protection “separate” to those of her husband. The Tribunal member obtained confirmation from her during the hearing that she had no separate “claims” of her own and relied entirely on her husband’s claims.
However contrary to the submission by the First Respondent, I am not persuaded that the wife’s response to the Tribunal’s question “Do you have any claims that are separate to those of your husband or do you rely entirely on your husband’s claims?” and her acknowledgement that she had no “separate” claims of her own should be interpreted as meaning that she did not desire to participate in the Tribunal hearing.
The wife made such responses openly, in the context of a Tribunal hearing where she had previously indicated in the Form that she wished to take part in the hearing. She attended the hearing and made an affirmation. She was not asked or given an opportunity during the Tribunal hearing to indicate whether she wished to give evidence (or on what issues). Nor was she told that she would not be given such an opportunity. On the contrary, after she had made an affirmation the Tribunal member explained the process and the law and then asked her to leave the hearing room while her husband gave his evidence. Viewed objectively, this would have conveyed the impression to the wife that she would be given an opportunity, before the hearing ended, to give evidence. The Tribunal member did not indicate to her that he had given consideration to her wish (or any wish of her husband) that she give oral evidence. Nor did the Tribunal provide any such indication at any other time in the hearing or in its reasons for decision.
I am not satisfied that the wife’s acknowledgement that she had no “separate” claims and/or her failure to protest about her exclusion from the hearing room indicated that she no longer wished to participate in the hearing. Whether or not she had primary claims to protection, the wife had clearly indicated a desire to participate in the hearing by completing the Form, attending the hearing and making an affirmation. The Tribunal conducted the initial part of the hearing in a manner consistent with an intention to afford her an opportunity to give evidence after her husband. She had no opportunity in the hearing to protest when she was not afforded that opportunity.
It cannot be said that the wife’s conduct at the hearing amounted to an indication that she wished to rely on the oral evidence given by her husband (which she did not hear) or that she in some way elected not to give evidence. The questioning of the husband proceeded in the wife’s absence, on the instruction of the Tribunal. It would have been reasonable for her to infer from the fact that the Tribunal asked her to “wait outside”, that she would be given an opportunity to return to give evidence before the hearing ended. She was not invited to return to the hearing room before the hearing ended.
In these circumstances the wife’s failure to protest or request that she also give evidence was not such as to indicate that she had no wish to do so or that she had resiled from her clear indication in the Form that she wished to participate in the hearing as a review applicant.
The fact that the wife’s husband or migration agent did not protest on her behalf, either at the hearing or thereafter, is not indicative of her wishes. Indeed, the Tribunal’s failure to recall the wife to give evidence could have been taken to indicate that it accepted her husband’s claims (as well as to indicate that it had no issue about her membership of his family unit).
As I am satisfied that the wife did not indicate that she no longer wished to give evidence and present arguments at the Tribunal hearing it is necessary to consider whether the Tribunal breached its obligations or failed to give the wife a meaningful opportunity to give evidence and present arguments under s.425 of the Act (see Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin & Anor (2005) 88 ALD 304; [2005] FCAFC 118 at [37]) or whether the manner in which it conducted the review was otherwise indicative of jurisdictional error.
The First Respondent submitted that the application for review by the Tribunal made it clear that the wife had applied for review simply on the basis that she was a member of the same family unit as her husband and that it was unnecessary for her to give evidence in this respect as this issue was not in dispute.
Insofar as this argument was put on the basis that the wife was included in the review application under the heading “Details of all other persons applying for review”, rather than as the primary applicant, I am not persuaded that this should of itself be taken to indicate that she applied only as a member of her husband’s family unit. The review application form instructed that if more than one person was applying for review, one person should provide their details at Question 1 and the details of the other persons should be provided at Question 7. It made no provision for secondary applicants to indicate the basis for their claims.
It may have been open to the Tribunal to understand from the absence of any primary claims on the wife’s behalf prior to the hearing and from the wife’s acknowledgement at the hearing that she had no “separate” claims that she sought protection only as a member of her husband’s family unit (consistent with the claims made in the protection visa application). However, in its reasons for decision the Tribunal did not limit its consideration of the wife’s claims to claims based solely on her membership of her husband’s family unit.
Rather, the Tribunal proceeded on the basis that the material before it raised complementary protection claims on behalf of all the visa applicants. It addressed such claims in finding that it was not satisfied that there were any substantial grounds for believing that there was a real risk that “the applicants” will suffer significant harm. The fact that the Tribunal was considering whether any of the applicants met the complementary protection criterion was confirmed in its conclusion that it did not accept there were substantial grounds for believing that as a necessary and foreseeable consequence of “the applicants” being removed to Jordan, “there is a real risk that the applicants will suffer significant harm on the basis of these claims” (emphasis added).
In other words, and contrary to the First Respondent’s submission, while the Tribunal apparently proceeded on the basis that the wife did not have claims to protection based “solely” on her own circumstances “separate” from those of her husband, complementary protection claims on the part of the wife and the two children, based on the consequences of the claims the husband made about his sexual status and his other circumstances, arose and had to be considered. Thus, the Tribunal concluded that it was not satisfied that “any of the applicants” was a person in respect of whom Australia had protection obligations and, on that basis, that it “followed” that they were “also” unable to satisfy the (family unit) criteria in ss.36(2)(b) or 36(2)(c) of the Act.
In other words, the Tribunal proceeded on the basis that claims on the part of the wife to fear significant harm within the complementary protection criterion arose on the material before it. Hence it cannot be said that the Tribunal treated the wife’s statement at the hearing that she had no “separate” claims as indicative that her only claims were as a member of her husband’s family unit.
In my view, given that the Tribunal addressed and made findings about the application of the complementary protection criterion to the wife, it owed an obligation under s.425(1) of the Act to the wife in her own right to afford her a meaningful opportunity to give evidence and present arguments relevant to such criterion.
Thus, even if the concept of “issues arising in relation to the decision under review” was limited to issues relating to the wife’s claims (as the First Respondent submitted), given the Tribunal’s view that a claim to complementary protection arose on the part of the wife, the “issues” would have extended to issues relevant to such a claim. Given that this claim was based on the risk of significant harm to the wife because of her husband’s homosexuality, his claims about an inability to find employment, or harm due to his Palestinian heritage, the “issues” would not be limited to the wife’s membership of her husband’s family unit. In these circumstances I am satisfied that the Tribunal failed to afford a meaningful opportunity to the wife as required by s.425 of the Act, thus falling into jurisdictional error. As discussed below, given the potential relevance of such evidence to the husband’s claims, the Tribunal can also be seen to have failed to carry out the review in relation to the Applicant.
In any event, even if the Tribunal had not considered and made findings about the wife’s claims to protection under the complementary protection criterion and the only claim made by or for the wife (or arising on the material before the Tribunal) had been her membership of her husband’s family unit, nevertheless she should have been given an opportunity to give evidence in that respect or, at the least, have been given an indication from the Tribunal that her membership of her husband’s family unit was not in issue (if the Tribunal was of that view).
The Tribunal did not give the wife any opportunity to give evidence in relation to her membership of her husband’s family unit. In the particular circumstances of this case I am not persuaded that it was necessarily clear to the applicants that this would not be in dispute (notwithstanding the basis for the delegate’s decision). It was unnecessary for the delegate to consider whether the wife was in fact a member of the husband’s family unit as the husband’s primary claims were not accepted.
Regulation 1.12 of the Migration Regulations 1994 (Cth) includes a “spouse of the family head” as a member of the family unit. However the definition of spouse in the s.5F of the Act requires a married relationship. This includes requirements of a mutual commitment to a shared life as husband and wife to the exclusion of all others, a genuine and continuing relationship and that the couple live together or do not live separately and apart on a permanent basis. Had the Tribunal accepted the husband’s claims about his homosexuality and lifestyle, it would have been necessary to address this issue.
Indeed, it is apparent from the husband’s pre-hearing submission to the Tribunal (in the Supplementary Court Book) that the delegate asked the husband whether he would stay with his family in Australia. The Applicant addressed this issue, claiming that he intended to “take care of” his family, in the sense of supporting his children until they were grown up. However he conceded that he and his wife had “many problems”.
Thus, even if in this case the only “issues” in relation to the wife’s application were in relation to her membership of her husband’s family unit, I am not persuaded by the contention for the First Respondent that it was unnecessary for her to be questioned about such issues on the basis that it was not disputed that she was a member of the relevant family unit. The fact that this matter had not been in issue before the delegate is not determinative. As French CJ stated in Li at [10] (albeit in relation to the Migration Review Tribunal):
10. … It is well established that the reviews that both the MRT and the Refugee Review Tribunal (“the RRT”) undertake (both tribunals operating under similar legislative schemes) are non-adversarial and that they involve no contradictor nor the joinder of any issue. The review function of the tribunals created by the Act is sometimes called “inquisitorial”. - 24 That designation is a characterisation of their function which distinguishes it from adversarial proceedings. The word “review” “has no settled pre-determined meaning; it takes its meaning from the context in which it appears.” As appears from the nature of the powers conferred on these tribunals, the review each must undertake involves a fresh consideration of the application which led to the decision under review. The review must be based on the evidence and arguments placed before the tribunal and any other relevant information which the tribunal itself obtains. Each tribunal must identify for itself the issues that arise in the application before it. It is not confined to the issues considered by the delegate. …
(Footnotes omitted) (Emphasis added)
The opportunity to be afforded to a review applicant under s.425 of the Act is a generally expressed requirement. The Tribunal’s review is a review de novo. A secondary applicant’s right to be afforded a meaningful invitation is not necessarily dependent on whether the delegate proceeded on the basis that membership of the primary applicant’s family unit was in dispute.
In this case the wife was neither informed that the “issue” of her membership of the husband’s family unit was not in dispute or given an opportunity to give evidence or present arguments in that respect. The Tribunal’s failure to afford her such an opportunity was in itself a failure to comply with s.425 of the Act.
Beyond this, for the reasons that follow, I am of the view that in considering the Tribunal’s obligation to the wife under s.425, in the circumstances of this case the issues arising in relation to the decision under review were not limited to her membership of her husband’s family unit (see SZSXV v Minister for Immigration & Anor [2014] FCCA 1584). In particular, the wife should have been given a meaningful opportunity to give evidence relevant to her husband’s protection claims. As discussed below, the failure to afford that opportunity can also be seen as a jurisdictional error that infected the decision in relation to the husband.
The First Respondent submitted that while the Act recognised that all members of the same family unit would often make visa applications and permitted combined primary and review applications (see regs.2.08, 2.08A, 2.08B and 4.31A) the scheme of the Act focused upon individual visa applications. Each application has to be decided by reference to the visa criteria applicable to that individual visa application. It was contended that the operation of s.425 of the Act, and the identification of the “issues arising” and the “decision under review”, must be seen in light of this approach and that the issues for the purpose of s.425 would not extend to issues about the decision in respect of another visa applicant’s application.
It is the case that each visa application is to be decided by reference to the criteria applicable to that application. The refusal of one application does not automatically amount to a refusal of another application, even if there was a combined application. If the basis for a secondary applicant’s claims was not dealt with (and hence decided) by the Minister, the Tribunal would have no jurisdiction on review in relation to the secondary applicant (see SZRMC & Anor v Minister for Immigration & Anor [2012] FMCA 845 and Lay & Anor v Minister for Immigration & Anor [2014] FCCA 923).
As the First Respondent submitted, the requirement that there be a “decision” in relation to a secondary visa applicant for the Tribunal to have jurisdiction in relation to such a person’s review application is consistent with the fact that the secondary applicant is to be afforded the opportunity to address issues arising in relation to the decision under review in relation to his or her visa application. However it does not compel a conclusion that the issues are necessarily so limited.
Satisfaction of the criteria in relation to a second applicant’s visa application as a member of a family unit depends on the first applicant meeting the primary criteria. For a second applicant such as the wife to be afforded a meaningful opportunity to participate in the Tribunal hearing, such a person should be given the opportunity to give relevant evidence and present arguments at the Tribunal hearing in relation to the issues arising in relation to the decision under review in relation to the primary applicant. It is not necessary to decide whether this would be so in every case. I am satisfied that this is such a case. The wife’s application as a member of her husband’s family unit was dependent on the success of his application. The applicant wife was in a position to give evidence of direct relevance to her husband’s claims. This is apparent from the Tribunal’s questioning of the husband about his wife’s knowledge of his homosexuality and lifestyle, and its consideration of such matters in its findings. In this case the Tribunal also assessed whether the wife met the complementary protection criterion on the basis of a risk arising out of the husband’s circumstances, in particular his claimed homosexuality.
To take a contrary approach would mean that, notwithstanding the potential relevance of the evidence of a secondary applicant (such as the wife) to the claims of a primary applicant, such person would not have the opportunity to give evidence and present arguments pursuant to s.425 of the Act. That would be so notwithstanding the consequences, not only for the primary applicant, but also for the secondary applicant, of the rejection of the primary applicant’s protection claims and notwithstanding that the primary applicant may wish to rely on the evidence of his or her family members in support of his or her claims to meet the Refugees Convention and/or complementary protection criteria.
It may be that in some cases a secondary applicant would have no relevant evidence to give about the primary applicant’s claim. In such circumstances it may be that that Tribunal’s obligations to afford a meaningful opportunity to the secondary applicant under s.425 could be met by affording the secondary applicant the opportunity to address issues in relation to membership of the family unit. However in my view the “issues” within s.425 are to be determined having regard to the particular circumstances of the case.
In this case, as the Applicant submitted generally, the wife’s evidence was potentially supportive of his primary claims. She had indicated that she wished to participate in the Tribunal hearing. As is apparent from oral evidence from the husband addressed in the Tribunal’s reasons for decision, there were a number of areas in which oral evidence from the wife would have been of relevance to the husband’s claims, including in relation to whether she knew of or had suspicions about his homosexuality, when the husband told her about his homosexuality, what she knew of the basis for the protection claim or the reasons for rejection, and about their living arrangements and his lifestyle in Sydney. The Tribunal failed to give the wife an opportunity to give evidence and present arguments in relation to such issues.
The First Respondent submitted that such a view could have consequences for the integrity of the review scheme in Part VII of Div.4 of the Act, on the basis that s.424A obligations would be owed to a secondary applicant in circumstances where he or she did not participate in a hearing (and hence could not be given an opportunity to comment in accordance with s.424AA of the Act). Even if this is an unforeseen consequence of the interaction of these provisions (an issue it is not necessary or appropriate to determine in the present case) this possibility is not such as to persuade me that, contrary to its ordinary meaning, the construction of s.425 should be confined to limit a review applicant’s opportunity to give evidence and present arguments in relation to the issues arising in relation to the decision under review in the manner contended for by the First Respondent.
Part VII of Div.4 of the Act envisages that all review applicants will receive a hearing invitation under s.425 of the Act. Section 426 relates to circumstances where visa applicants have given notice to the Tribunal that they want the Tribunal to obtain oral evidence from (as the Form states) “another person”. The Form reflects that dichotomy. If a person is invited to give evidence as a review applicant, there is no provision in the Form for such person to be nominated as “another person” from whom the Tribunal would be given the opportunity (but not the obligation) to obtain evidence in relation to the primary applicant’s claims in accordance with s.426 of the Act. In some circumstances the issues arising in relation to the decision under review on which a secondary applicant may wish to give evidence or present arguments will include matters relevant to the primary applicant’s protection claims and whether the primary applicant meets the Refugees Convention definition and/or the complementary protection criteria (in turn a prerequisite for an applicant claiming as a member of the family unit of a person to whom Australia has protection obligations).
From the wife’s perspective, the invitation to the Tribunal hearing was an empty gesture and she was not given a meaningful opportunity to be heard (cf. SZDFZ v Minister for Immigration and Citizenship & Anor (2008) 168 FCR 1; [2008] FCA 390 at [22]-[23] per Flick J). The purpose of s.425 was not met (see Hayne, Kiefel and Bell JJ in Li at [45]-[62] and Gageler J at [99]). I am satisfied that the Tribunal failed to comply with s.425(1) of the Act and hence fell into jurisdictional error.
The First Respondent accepted that if the Tribunal feel into error in this way, such error infected the decision in relation to the husband such that it would be appropriate to remit the matter to the Tribunal for reconsideration.
This makes it unnecessary to determine the precise basis on which the Tribunal fell into jurisdictional error in relation to the decision in about the husband’s visa application or in exercising its procedural duties and powers in connection with the review of the decision in relation to the husband. I did not have the benefit of detailed submissions in this regard, but note that the Tribunal’s failure to allow a meaningful opportunity to the wife to give evidence in relation to the husband’s claims may also be seen as a failure to comply with s.425 of the Act in relation to the husband or as unreasonable in a legal sense having regard to the scope and purpose of s.425 (see Li and also see Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50; [2014] FCAFC 1) such that it could be said that the Tribunal did not conduct the review in the manner required by the Act and hence acted beyond its jurisdiction (Li at [85]; CZBH v Minister for Immigration and Border Protection [2014] FCA 1023 and Huynh v Minister for Immigration and Border Protection [2015] FCA 701).
Alternatively, the Tribunal in this case could be seen as having failed to give genuine consideration to the husband’s wishes that the Tribunal take evidence from his wife (as expressed in the Form he signed on behalf of and with the consent of the wife) on the basis that the Tribunal’s cursory questioning of the wife was not such as to indicate that the Tribunal gave genuine regard to the husband’s wishes concerning obtaining oral evidence from her.
It is notable that this is not a case in which it can be concluded that the Tribunal’s failure to take evidence from the wife could have no bearing on the outcome of the review. On the contrary, it is apparent from the subsequent questioning of the husband and the Tribunal’s reasons, that what the wife knew of her husband’s claimed homosexuality, when she discovered this, their life in Australia and what she knew of the protection visa application were potentially corroborative of the husband’s claim and hence relevant to the Tribunal’s consideration of the credibility of his claim to be homosexual. The Tribunal failed to allow the wife, who sought to give evidence and may have given corroborative evidence in relation to her husband’s review application, the opportunity to give such evidence at the hearing.
It may be that, as the First Respondent submitted, technically there was no failure by the Tribunal to comply with s.426(3) of the Act, on the basis that the manner in which the Form was completed amounted to the wife nominating herself to take part in the Tribunal hearing as a review applicant (rather than the husband nominating her as a witness). In light of the above conclusions it is not necessary to determine this issue. However in my view the Response to Hearing Invitation Form ought not to be read restrictively such as to require a primary applicant to indicate that he or she requested the Tribunal to take oral evidence from a secondary applicant by also nominating the secondary applicant in Part 3 of the Form, in circumstances where the hearing invitation was (properly) sent to each of the applicants, whether primary or secondary, and they were each asked in Part 1 “Will you take part in the Tribunal hearing?” and advised that if they selected “No”, the Tribunal may make a decision on the application for review made by that person without taking any further action to allow or enable that person to appear before it. This carries a clear implication that if a review applicant indicates that he or she will take part in the Tribunal hearing, then he or she will be given the opportunity to do so.
It was apparent from the completed Form that the Applicant husband, as well as the wife, wished the Tribunal to take oral evidence from the wife, notwithstanding that this wish was communicated by ticking “Yes” beside the wife’s name in Part 1 of the Form. In a practical sense, the Applicant husband gave the Tribunal written notice that he wanted the Tribunal to obtain oral evidence from his wife who was named in the notice.
In any event, Ground 1 is made out. Given the breach of the obligation in s.425 of the Act and the implications for the husband’s primary claims the matter should be remitted to the Tribunal for reconsideration according to law.
I have, however, also considered the other grounds relied on by the Applicant.
Ground 2
Ground 2 in the Application is that the Tribunal misconstrued or failed to consider a claim or component integer thereof or squarely raised by the material before it. The first particular to this ground is as follows (verbatim):
A. I claimed that I feared persecution by reason of being a member of particular social group: being homosexual which is unacceptable in both Qatar and Jordan.
The Tribunal failed to consider these claims but, rather, only addressed a broader claim concerning my company and sponsorship in Qatar. (parag 48, 49, 50 and 51) Furthermore the Tribunal had concerns about my employment in Qatar and whether [the Company] was a real company. Although a relevant official company documents was presented to the Tribunal.
In oral submissions the Applicant contended that the Tribunal had failed to take into account the risk and harm to which he may be subjected if he were to return to Jordan and had also ignored and failed to take into account the threats he had received. He explained that he had provided evidence to the Tribunal of such threats in the form of translations of emails between his sister in Jordan and another person (in which the sister was advised that the Applicant’s cousins had discovered that the Applicant was in a relationship with another man, that because of that he had been expelled from Qatar and warning that the cousins would not leave him alone unless they slaughtered him). The Applicant took issue with the fact that the Tribunal had not accepted the information provided by him in relation to his homosexuality and the implications for him in Qatar and Jordan and had not accepted his evidence about his past employment.
Insofar as the Applicant claimed that the Tribunal failed to consider his claim that he feared persecution in both Qatar and Jordan, the Tribunal did not make any findings about the Applicant’s fear of persecution in Qatar. It addressed and made findings about the Applicant’s fear of persecution on the bases contended for in Jordan. However it did so on the basis that the Applicant was a citizen of Jordan.
As submitted for the First Respondent, for the purposes of assessing both the Refugees Convention and complementary protection criteria, it was necessary for the Tribunal to determine the country or countries against which such claims were to be assessed. For the purposes of Article 1A(2) of the Refugees Convention, applicants who have a nationality are to be considered in relation to the their country or countries of nationality, whilst for complementary protection, the Act refers to the applicant’s “receiving country” which is relevantly defined as the “country of which the non-citizen is a national” is in s.5 of the Act.
In this case the Tribunal accepted that the applicant was a citizen of Jordan (as he claimed). There was no evidence or suggestion that the Applicant was a dual national. This was not a situation in which the Applicant was a stateless person such that regard should have been had by the Tribunal to Qatar as his “country of former habitual residence” in the sense considered in SZEJN v Minister for Immigration [2005] FMCA 961, affirmed in SZEJN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1355. There was evidence from the Applicant that his right to reside in Qatar was based on his employment status and had come to an end. Accordingly, the Tribunal correctly assessed the Applicant’s claims against his country of nationality, being Jordan.
In these circumstances there was no error in the Tribunal not making findings in relation to the Applicant’s claimed fear of persecution or significant harm in Qatar.
The Applicant also submitted that the Tribunal “only” addressed his claim concerning the Company and sponsorship in Qatar, rather than his claim to be homosexual. However the Tribunal considered the Applicant’s claims about the Company and sponsorship in the context of assessing his credibility, but it also understood and addressed his claims about his past homosexual activities in Qatar and his claim to fear future harm in Jordan as a homosexual.
If this aspect of ground 2 was intended to raise a contention that the Tribunal failed to consider whether homosexuals constituted a particular social group, given the Tribunal made an express factual finding that the Applicant was not a homosexual, it was not necessary for it to consider this claim further, either under the Refugees Convention criterion or the complementary protection criterion (see SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 at [78]).
The Applicant also took issue with the fact that the Tribunal had concerns about his employment in Qatar and whether the Company was a real company. However, the Tribunal accepted, on the basis of the Qatari documents submitted the by Applicant, that the Company had been registered and was in existence from 1 December 2011 under a six month licence that expired on 16 June 2012. However it was not satisfied that it was formed in 1993 or that it was actively trading as the Applicant claimed. The Tribunal gave reasons for its findings in this respect. It addressed the evidence of emails and the sponsor’s letter. Its findings were open to it on the material before it. Beyond this, the Applicant takes issue with the factual findings of the Tribunal and seeks impermissible merits review.
Particular (b) to Ground 2 states:
B. The tribunal had doubted the existence of my previous sponsor in Qatar as the name [T…] was unusual as it was not a Shi’a name, therefore I volunteered to present photographic evidence in the form of an ID card to prove his existence and did so within the time frame given by the tribunal.
The Applicant submitted that in the hearing the Tribunal focused on the name of the chairman of the Company and had asked questions about whether he was Shi’a or Sunni. The Applicant suggested that the Tribunal had failed to believe the information about the sponsor was true because the name of the chairman was unusual for a Shi’a in Qatar. The Applicant also submitted that the Tribunal had failed to have regard to a photo ID of the chairman provided after the Tribunal hearing.
However, while the Tribunal recorded that it raised an issue about the sponsor’s name at the hearing, it did not find that the claimed sponsor did not exist. Rather, it expressed doubts about the role played by the sponsor and did not accept he had advised the mutawwa or the Applicant’s extended family of the Applicant’s homosexuality.
Nor did the Tribunal find that the Company never existed. Rather, it was not satisfied that the Company existed for more than the period that the licensing document showed. In this context it was open to the Tribunal to give no weight to the email the Applicant claimed came from the sponsor’s Yahoo email account advising that the Company was being shut down, in circumstances where the license had expired on 16 June 2012 and the email was dated 12 August 2012.
The Tribunal’s findings that the claimed actions of the sponsor in dealing with the Applicant’s alleged homosexuality lacked credibility and its failure to accept that the claimed events occurred did not amount to a failure to accept the existence of the sponsor.
Particular (c) to Ground 2 states:
C. The Tribunal is not satisfied that my company had been formed in 1993 under the ground there was no history of email traffic involving the company’s business dealings (paragraph 50 and 51). Not only is this completely irrelevant to my case of homosexuality, but due to the majority of discussions regarding the deals within my company being made through phone calls or face to face meetings, and documents by passed by using hard copies, emails were not used.
This particular takes issue with the Tribunal’s factual findings. The Tribunal’s rejection of the Applicant’s claim about his employment, including the formation of the Company in 1993 and whether it was involved in active trading was relevant as part of its assessment of the Applicant’s credibility. The Tribunal’s findings in this respect were open to it on the material before it for the reasons which it gave. Insofar as the Applicant claimed that this issue was completely irrelevant to his claimed homosexuality, the Tribunal considered it relevant to his credibility generally. In any event, the Tribunal went on to assess the Applicant’s claims about his homosexuality.
Ground 2 is not made out. It has not been established that the Tribunal misconstrued or failed to consider a claim or integer of a claim made or squarely raised by the material before the Tribunal.
Ground 3
Ground 3 is that the Tribunal denied the Applicant procedural fairness. The particulars to this ground are as follows:
A. Tribunal stated that they (sic) were unconvinced of my homosexuality due to my lack of knowledge on the gay community in Sydney. Due to the fact that I could only name 2 gay bars and that I did not know the name of the Sydney gay newspaper and could only name 1 gay site that I happened to be a member of para 62.
B. When asked for extra time by the migration agent to postpone the date of the interview, the Tribunal denied extra time. Due to this, the migration agent was not awarded an adequate amount of time to study the case, proving that the case was not ready to be discussed by the date of the interview.
The Tribunal did not base its finding that it did not accept that the Applicant was homosexual on its view about his lack of knowledge of the gay community in Sydney. Had it done so, there may have been cause for concern. Rather, it took this factor (together with other matters) into account in assessing the credibility of the Applicant’s claims to be homosexual. While it had regard to the fact that the Applicant did not appear to have made much of an effort to explore the Sydney gay scene, this was not the sole reason for the Tribunal’s decision. It was open to the Tribunal to consider this issue in light of the Applicant’s claim that he wished to pursue (and was openly living) a homosexual lifestyle in Australia. This aspect of ground 3 is not made out.
The second particular to ground 3 takes issue with the fact that the Tribunal refused his adviser’s request of 12 August 2013 (in response to the hearing invitation letter of 31 July 2013) for a postponement of the hearing scheduled for 2 September 2013.
The basis on which the request was made was that the migration agent was newly appointed. He claimed to have had “no access to the application” and that he wished to fully study the case before it was presented at the hearing and had decided the hearing should be postponed.
On 14 August 2013 the Tribunal wrote to the migration agent advising that the presiding member had considered the request, but “as the applicants have had sufficient time to source a representative he has decided not to postpone the hearing”. The migration agent then returned the response to hearing form, as well as an urgent request for access to information under the Freedom of Information Act 1982 (Cth). There is no evidence or suggestion that the information sought by the migration agent was not provided or that any delay in that respect had any impact.
On 30 August 2013 the migration agent provided a written submission in relation to the applicants’ claims. There is nothing in this letter to indicate any inability on the part of the migration agent to “study the case”.
The agent attended the Tribunal hearing and there is no suggestion of any further issue being raised with the Tribunal in relation to preparedness for the hearing. Moreover, the agent was given the opportunity to make submissions towards the end of the hearing and the Applicant was given the opportunity to provide further information after the hearing.
It is apparent on the material before the Court that the Tribunal gave “independent active consideration” to the Applicant’s request for a postponement in the sense considered in Singh at [65]. This is not a case in which the Tribunal failed to give adequate reasons for not agreeing to a postponement of the hearing (cf. Alam v Minister for Immigration & Anor [2010] FMCA 215 at [18]-[21] and Ghori v Minister for Immigration & Anor [2010] FMCA 794 at [65]; [2011] FCA 759 at [22]). Nor is this a case in which no reasons were provided for the Tribunal’s refusal to postpone the hearing (cf. Rathor v Minister for Immigration & Anor [2014] FCCA 10). Rather, in the exercise of its discretion, for reasons which it gave to the adviser, the Tribunal decided not to grant more time. Such a decision was open to the Tribunal and cannot be said to be one that “lacks an evident and intelligible justification” in the sense considered in Li (supra) at [76] per Hayne, Kiefel and Bell JJ.
While in its reasons the Tribunal saw it as relevant that the adviser had not mentioned the Applicant’s claims (made at the hearing for the first time) about a boyfriend in the pre-hearing submission and that no such person came to give evidence at the scheduled hearing, there is nothing in the evidence before the Court to indicate any connection between these matters and the preparation time the adviser had before the hearing. As the Tribunal recorded, while there may be any number of reasons why a witness may not be able to appear at a scheduled Tribunal hearing, none had been offered by the Applicant in relation to the boyfriend and none had been outlined in the subsequent statutory declaration.
It has not been established that the Tribunal exercised its discretion unreasonably or that there was any more general denial of procedural fairness in the manner contended for by the Applicant in Ground 3.
This ground is not made out.
Other Grounds
In the Applicant’s affidavit of 28 January 2014 he also submitted that the Tribunal fell into jurisdictional error by referring to his “two daughters” when referring to school reference letters when the two reference letters provided related to the same person (his only daughter). While the applicant has two children, one is a boy.
The two reference letters before the Tribunal both referred to the Applicant’s daughter. One letter was a reference from the Head of “Key Stage Four” from the school attended by the daughter in Qatar. The other was a reference from the Head of Secondary at the same school.
It is apparent that the Tribunal’s reference to “two school references for his daughters” was a mistake. However this factual error is not such as to amount to jurisdictional error. Given the Tribunal’s direct reference to and consideration of the evidence, it cannot be said that this evidence was overlooked or that the misunderstanding (if the Tribunal understood the Applicant had references for both his children) caused the Tribunal not to consider or to misunderstand his claims to refugee status. Indeed, even if this evidence was in some sense overlooked, insofar as the Tribunal understood that it related to two children rather than one that aspect of the information before the Tribunal was “insubstantial or inconsequential to the Applicant’s claims”. No jurisdictional error is disclosed on this basis (see SZRKT at [111]-[112]). Notably, what was of relevance for the Tribunal, and what it had regard to, was the fact that the Applicant had brought school references from Qatar with him to Australia, contrary to his claim that he only came to Australia for a holiday.
The Applicant also contended that the Tribunal had erred by “misconstruing and incorrectly interpreting” the references. It was suggested that the Tribunal Member had deduced that they were leaving certificates. In support of this contention the Applicant attached what he claimed were “genuine certificates” relating to his son and daughter dated 11 November 2012. There is no evidence that either of these certificates was before the Tribunal.
Insofar as the Applicant seeks to challenge the Tribunal’s assessment of the evidence before it and its factual findings by submitting further evidence he seeks impermissible merits review. In any event, there is nothing in the Tribunal’s reasons for decision to indicate the Tribunal misconstrued the nature of the certificates provided by the Applicant as anything other than references or, as the Tribunal described them as in its reasons, “reference letters”.
Insofar as the Applicant also took issue with the Tribunal’s rejection of his claim that reference letters were provided as a routine matter to students who were not permanent residents of Qatar in case they moved out of Qatar, he seeks impermissible merits review. The issues raised in the Applicant’s affidavit of 28 January 2014 do not establish jurisdictional error.
However as jurisdictional error has been established on the basis discussed above in relation to Ground 1 the matter should be remitted to the Tribunal for redetermination according to law of the applications for review lodged by the Applicant, his wife and their two children. I note, for completeness, that this finding of jurisdictional error meant that I did not seek further submissions on other possible issues in relation to matters which were not canvassed at the hearing (such as whether the Tribunal applied the wrong law in addressing the Refugees Convention criterion).
I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 28 July 2015
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