SZTJG v Minister for Immigration

[2015] FCCA 414

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTJG v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 414

Catchwords:
MIGRATION – Application for review of the decision of the Refugee Review Tribunal – whether the Tribunal’s decision was unreasonable – whether Tribunal breached s.425 of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 414, 425, 476, 499

SZRHL v Minister for Immigration and Citizenship  [2013] FCA 1093
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
SZSNW v Minister for Immigration & Anor [2014] FCCA 134
Minister for Immigration v SZSNW [2014] FCAFC 145
M100 of 2004 & Anor v Minister for Immigration & Anor [2007] FMCA 829
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41
SZFDE  v Minister for Immigration and Citizenship [2007] HCA 35

Applicant: SZTJG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2436 of 2013

Judgment of: Judge Nicholls

Hearing date: 9 September 2014

Date of Last Submission: 9 September 2014

Delivered at: Sydney

Delivered on: 26 February 2015

REPRESENTATION

Counsel for the Applicant: Mr D Hand with Mr P Bodisco

Solicitors for the Applicant: Stanford Lawyers

Counsel for the Respondents: Mr J Smith

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application made on 9 October 2013 and amended on 1 September 2014 and further amended on 9 September 2013 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $6646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2436 of 2013

SZTJG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 9 October 2013 and amended on 1 September 2014 and further amended on 9 September 2014 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 13 September 2013 which affirmed the decision of the Minister’s delegate to refuse the grant of a protection visa to the applicant.

2. The evidence before the Court is as follows:

   1)The Court Book (“Court Book” – “CB”).

   2)The affidavit of Charles Frederick Standard, solicitor, made on 11 August 2014, annexing a copy of the transcript (“T”) of the Tribunal hearing conducted with the applicant over three occasions (Annexure “A” – 13 August 2013, Annexure “B” – 4 September 2013, and Annexure “C” – 10 September 2013).

   [All references to transcript pages are to the handwritten number at the bottom right corner of each page.]

   3)A Tribunal document titled: “Guidance on Vulnerable Persons” (Applicant’s Exhibit 1 – “AE1”).

3. Relevant background to this case has been set out in the applicant’s written submissions. The Minister does not appear to dispute this background (see respondent’s written submissions at [2]). I adopt these relevant paragraphs for the purposes of this judgment ([1] – [18] of the applicant’s initial written submissions):

   “[1] This is an application seeking judicial review of a decision by the Refugee Review Tribunal.

   [2] On 22 December 2011, the Applicant applied for a Protection (class XA) Visa. [CB 1]

   [3] In this application, the Applicant stated:

   a) That he was born on 8 June 1986; [CB 3]

   b) That he was born at Ulaanbaatar, Mongolia and speaks Mongolian. [CB 16]

   [4] Attached to his application, the Applicant included certification from the psychiatric registrar of the St Vincents Hospital that he had been treated due to his issues with anxiety and depression. The document also referred to issues related to his persecution due to his sexual preference. [CB 51]

   [5] By way of a statutory declaration dated 22 December 2011, the Applicant gave an account of why he left Mongolia in the following terms:

   a) He became aware of his sexuality at age 19 when he commenced a relationship with a man six years older than him - with this relationship continuing until 8 June 2006; [CB 58]

   b) At this time, he commenced a further relationship with another man; [CB 59]

   c) He commenced studying and had a violent confrontation with a class mate; [CB 60]

   d) During this confrontation, he was blackmailed ‘500,000 Tugrug’; [CB 60]

   e) Social ostracism commenced, with him being thrown out of school in October 2006; [CB 60]

   f) In April 2007, the Applicant and his partner were attacked by an extremist group called ‘The Blue Mongols’ - a nationalist group who discriminate against homosexuals in Mongolia; [CB 61]

   g) He faced extortion from a member of this group; [CB 61]

   h) In August 2007, he applied for a Visa to America - however, it was refused

   i) In December 2007, he tried to commit suicide by ‘slitting his wrists’.

   [6] The Applicant stated: [CB 61-2]

   ‘I left Mongolia because I am gay and remaining in Mongolia was not safe for me. I wanted to be in a country where my homosexuality would not drive me to kill myself. In Mongolia, I was living under great emotional and psychological pressure and I knew that, if I did not leave Mongolia, my life would continue to be in danger.’ [CB 62]

   [7] The Applicant further affirmed:

   a)That he arrived in Australia on 14 February 2009; [CB 62]

   b) In June 2009, his partner in Mongolia committed suicide; [CB 62]

   c) His partner’s family blamed him for the relationship and their son’s status as a homosexual and threatened his family; [CB 62]

   d) Since January 2010, the Applicant has settled into a monogamous relationship with a male in Australia. [CB 62] [This relationship ended in early April 2012 - see CB 66.]

   e) In September 2011, the Applicant attempted suicide. [CB 63]

   [8] The Applicant explained that Dr Gordon, his treating psychiatrist at St Vincents, recommended he pursue a Protection Visa. [CB 63] The Applicant stated:

   ‘I fear that if I go back to Mongolia I will again be blackmailed, seriously hurt and harmed, or even killed because homosexuals are not accepted. I will also have to hide my true self and live in hiding.’ [CB 63]

   [9] On 11 October 2012, the Applicant’s advisors forwarded submissions to the RRT. [CB 75] The submissions canvassed issues such as:

   a) His personal background; [CB 75]

   b) His mistreatment by Nisekhaa; [CB 75]

   c) His mental health; [CB 76]

   d) Attitudes towards homosexuality in Mongolia. [CB 76]

   [10] On 19 October 2012, the Applicant’s advisors forwarded a report from Professor Mark Harris regarding the Applicant’s mental health. [CB 81] The report noted clinically significant depression, suicidal ideation, fluctuating mood, very poor sleep.

   [11] On 4 February 2013, the Applicant was notified of the delegate’s decision to refuse him a Protection (Class XA) visa. [CB 90]

   [12] On 8 February 2013, the Applicant applied for review of the delegate’s decision. [CB 113]

   [13] On 14 June 2013, the Applicant’s advisors forwarded a copy of an affidavit from his former flat mate, Ms Lkhagva. [CB 150] This document affirmed that the Applicant was a gay man. A photograph was also forwarded. [CB 152]

   [14] On 17 June 2013, the Applicant received an invitation to appear before the Tribunal. [CB 153] Attached with this material was a request for additional information. [CB 159]

   [15] On 9 August 2013, the Applicant forwarded clinical notes from St Vincents Hospital and some counselling records. [CB 167-168]

   [16] On 13 August 2013, a hearing was conducted by the Refugee Review Tribunal. An affidavit containing a transcript is to be in evidence. This hearing was adjourned due to problems with the interpreter. The hearing resumed on 4 September 2013.

   [17] On 16 September 2013, the Applicant was advised of the decision by the Refugee Review Tribunal to refuse his application for a Protection (Class XA) Visa. [CB 272]

   [18] The Refugee Review Tribunal disposed of the Applicant’s claims on the basis that, at paragraph [44] of the decision, the Tribunal ‘finds that the applicant is not a homosexual, or an LGBT individual, and will not be perceived as such’. [CB 285 at 44]”

4. The applicant claimed to be a homosexual, and that he would be subjected to persecution, and suffer significant harm, if he were to return to Mongolia. The basis of the Tribunal’s decision (and for that matter, the delegate’s decision) was the finding that the applicant was not a homosexual, or a member of a particular social group, comprised of Mongolian homosexuals, as he had claimed.

Application before the Court

1. The grounds of the further amended application are in the following terms:

   “1. The Refugee Review Tribunal (RRT) has made a finding so unreasonable that no reasonable person would have made it.

   Particulars

   (a) The RRT has made a decision that the Applicant had ‘fabricated’ his claim on the basis of an inquiry that was predicated on stereotypes as to the behaviour of gay men and which failed to take into account the Applicant’s mental diagnosis of significant depression.

   (b) The RRT unreasonably and illogically disregarded evidence from the Applicant’s flatmate, Ms Lkhagva.

   2. The RRT has breached section 425 of the Migration Act 1958 (Cth).

   Particulars

   The Applicant was denied a meaningful opportunity to give evidence and present arguments in circumstances where:

   (a) the Member did not ensure any arrangements were made to take into account the vulnerable nature of the Applicant – including provision of a support person;

   (b) the Member did not request medical evidence to assess the competency of the Applicant;

   (c) the Member took no steps to avoid the unnecessary disclosure during the hearing of issues of a private nature during the hearing – and in fact compounded these issues by inquiring about the Applicant’s used of gay pornographic sites;

   (d) inquiring as to whether the Applicant could utilise video conferencing;

   (e) informing the Applicant the hearing could be conducted in private;

   (f) questioning in a sensitive and respectful manner;

   (g) Encouraging the Applicant to see appropriate counselling after the hearing.”

Consideration

1. Ground one asserts that the Tribunal made a finding that was so unreasonable that no reasonable “person” would have made it. It was not clear whether the applicant sought to challenge the Tribunal’s reasoning as a whole or to take issue with the two relevant findings referred to in each of the particulars. On balance, I understood the applicant’s position to be that each of the impugned findings (the applicant had “fabricated” his claim and the “disregarding” of the evidence of the applicant’s former flatmate, a Ms Lkhagva) were of such central character that they infected the decision as a whole.

2. Before the Court, the applicant commenced his submissions with reference to particular (b) to ground one of the further amended application. As the understanding of this ground concerned a large part of the material before the Tribunal, it is a convenient starting point for the Court’s consideration.

3. The complaint in particular (b) to ground one, in essence, derives from the Tribunal’s finding that the applicant was not a homosexual. In making this finding, the applicant submitted that the Tribunal dismissed, or attached “no weight”, to the evidence given by the Ms Lkhagva.

4. The applicant’s relevant claims were that he was a homosexual and lived in a same sex (“de facto”) relationship with another man, who was an overseas student in Australia (CB 5). He claimed (as at 22 December 2011) to live in an address in Hurstville, NSW (CB 29). Before the Court, he relied on the following material to explain particular (b) to ground one.

5. The applicant stated that sometime in September 2011, he attempted suicide. Before the Court, he referred to a letter written by a Psychiatric Registrar at St. Vincent’s Hospital, dated 3 November 2011 (CB 51). The letter was provided in support of his protection visa application. The letter is in the following terms (at CB 51):

   “…

   Dear refugee support worker,

   [The applicant] is a 25 year old man from Mongolia who has been my patient for the last month due to his issues with anxiety and depression related to being estranged from his family in Mongolia due to revelation of his sexual preference.

   I have referred him to see some refugee support groups on recommendation from hospital social workers due to his status as an illegal immigrant on an expired student visa, in the hope that he can be provided with some help and information on his options for potentially becoming a legal migrant to Australia. I am not sure if he is eligible for refugee status due to persecution in his home country based on his sexual preference. This persecution has clearly precipitated his mental health issues.

   Any help you can provide to [the applicant] would be much appreciated.

   I will continue to see him through our community mental health department in the meantime.

   Sincerely,

   Dr David Gordon

   Psychiatric registrar.

   …”

6. The applicant also referred to the following parts of his Statutory Declaration made on 22 December 2011 ([34] at CB 62 to [36] at CB 63):

   “[34] I am now in a partner relationship with [Mr A]. His date of birth is … He is currently studying in Sydney on a student visa. [Mr A] and I share a bedroom in an apartment. We have a female flatmate, Lkhagvasuren, who is a student. This is not the same ‘Lkhagvasuren’ (who is a male) who is mentioned above in paragraphs 17 to 20 above.

   [35] I first met [Mr A] in January 2010 in Sydney. He was a travelling. He went back go Mongolia around October 2010. In the many months before that, we had talked a lot and shared drinks. We came to know that we were both gay. When he returned from Mongolian on a student visa, we continued living together in an exclusive relationship. I have not been intimate with any other men since I began a relationship with [Mr A].

   [36] [Mr A] and I do not actively participate in the ‘gay scene’ in Sydney, as we are happy enjoying each other’s company at home.”

   [Errors in the original.]

7. Relevantly, [37] of the applicant’ Statutory Declaration provides further background to the applicant’s case (at CB 63):

   “In September this year, I tried to commit suicide by jumping off the bridge at Darling Harbour. I was taken to the hospital by ambulance. Following this incidenct, I have been seeing a mental health doctor (Dr. David Gordon, psychiatric registrar at St Vincent’s Hospital, Darlinghurst) about my continued depression and anxiety because of my sexuality and because my family has disowned me.”

8. By letter dated 16 April 2012, the applicant’s then representatives advised the following to the Minister’s department (CB 66)

   “…

   We also take this opportunity to advise that our client is no longer in a relationship with [Mr A]. The relationship ended when our client moved out of the accommodation they shared in early April 2012.

   …”

9. A further bundle of medical reports was provided to the Minister’s department and dated 8 October 2012 (CB 82):

   “Assessor qualifications:

   I am a professor of General Practice in the School of Public Health and Community Medicine at the University of New South Wales. My qualifications are:…

   …

   I have worked at the Asylum Seekers Centre as a part time medical officer from 2000 until the present.

   Presentation

   [The applicant] was first seen by me at the Asylum Seekers Centre in Surry Hills on the 25^th of May 2012.

   He presented with a history of depression referred from a counselor who had been seeing him at the Centre.

   He has a history of depression in Mongolia resulting in a suicide attempt (cut to his left wrist) in 2007 as a result of his situation there. He was referred to the Centre following a suicide attempt in Sydney on September 2011 (after which he was treated as St. Vincent’s Hospital Sydney).

   He is severely depressed with suicidal ideation, very poor sleep, nightmares (related to his previous experiences in Mongolia). His mood fluctuates and he becomes angry with his friends. He is forgetful and has difficulty concentrating. He has no flash backs. He has reduced appetite but his weight has been stable around 87 kg.

   He smoked about 20 per day and has been trying to stop unsuccessfully.

   Social History

   [The applicant] is an asylum seeker from Mongolia. He arrived in Australia in February 2009.

   Examination

   His blood sugar was 8.4 to 10mmol/L. Blood pressure 130/70. Examination is otherwise normal.

   …

   Assessment

   He suffers from severe depression with some features of PTSD. This is not yet full controlled with medication and counselling. I am currently investigating his elevated glucose levels.”

10. Medical reports dated 28 September 2011 and 29 September 2011 were provided to the Tribunal on 9 August 2013 (CB 201 to CB 240). Included in these reports was the following:

    1)On admission to St Vincent’s Hospital, Darlinghurst as a “mentally disordered person” the following was recorded in relation to the applicant (CB 201):

    “…(Reported behaviour of the patient)

    Has stated to ambulance that he was feeling suicidal after he lost $1000 while gambling…”

    2)In the same document (at CB 202):

    “Medical report as to mental state of a detained person – continued

    (Observations by me of the patient)

    Flat in affect, guarded about history, denies he ever made statement that he was suicidal. Refused to allow us to contact friend

    Conclusion

    I believe he is mentally disordered & requires a period of admission…”

    3)Nursing staff reported (at CB 211):

    “28/9/11…Nursing

    Pt admitted to ED pecc, presenting & suicidal ideations and anxiety. Pt now scheduled. Security present search completed…Awaiting bed in pecc. Appears co-operative but guarded. Sleeping in Mz at time of report. [Indecipherable] observed.”

    4)A mental health assessment included (at CB 217):

    “…

    - Studying English

    - Works in construction (2-3 week) steel fixer.

    - lives with 2 friend in Apartment both Mongolian

    - gambling (6 months) from March blackjack has borrowed over $10,000.

    - Loves everything

    - Has friends now

    doesn’t want to play anymore

    Plays to gain back all the loss.”

    5)St Vincent’s Hospital “Progress Notes” reported (CB 223):

    “28/09/11 4 Registrars

    26 year old man with gambling problems who presents with suicidal ideations & anxiety. He denied any suicidal ideation now & denies he ever mention it to the ambos. He appears guarded & will not let us obtain collalival history from his friend. There appears to be a significant degree of uncertainty about his current risk status.”

    6)A report of a conversation between a doctor at St. Vincent’s Hospital and “Jesse” (this appears to be a reference to Ms Lkhagva) (at CB 225):

    “28/09/11 Jesse (flatmate)…

    - probably suicidal as he lost the money

    - has been upset over last 2 days & was not his normal himself – very quiet, not answering phone, has been working instead of going to uni.

    - poor social supports

    - does not know of any previous suicide attempts

    …”

    7)A further “Progress Report” note, dated 28 September 2011 (CB 228):

    “…28/09/11 22.30 4 RMO (Yoon Park)

    Phone call from his friend (Jessie)

    Asked what happened to Patient

    (Jesse had phone call from ED doctor today)

    Explained the reason why patient was admitted to Caritas.

    Jesse doesn’t know about detailed history

    She will visit tomorrow to see patient

    plan) R/V by psychiatrist for further management.

    8)A further note dated 29 September 2011 (at CB 229):

    “29/9/11..

    Cullen/Colordon (4) + S/W Hellen & nurse Paula 25 yo Mongolian man studying English in Australia & living w/2 flatmates who he states he is close to. Has problems w/gambling. Lost $1000 on the Tue night/ Wed am. & then in the context of this & not having slept he had symptoms consistent with a panic attack when he realised he could not pay his rent.

    No Y H[x].

    Admitted to PECC for observation due to concerns re: lack of supports in Australia. Now settled. No Y symptoms currently. Logical, [unclear]. Denies any comments. Agrees to F/U w/’ Dr Gordon next Wednesday.”

1. Against this background, the applicant referred the Court to the Statutory Declaration of Ms Lkhagva, which he said was significant because it provided corroborative evidence by a third party of the applicant’s claim to be of homosexual orientation. In particular, the applicant drew attention to [1], [2], [6], [7], [8], [9] and [10] (at CB 150 to CB 151). Paragraph 7 (at CB 150) is in the following terms:

   “On the following day, [the applicant] returned home. I talked to his doctor by phone and the doctor said that [the applicant] was very depressed and anxious due to his sexuality and related issues and that he needed to get treatment from a mental health doctor. I helped [the applicant] a couple of times by acting as an interpreter when he met with his doctor. Once I met with his doctor and him. That day the doctor gave [the applicant] some pills to take daily for his depression. I cannot remember the name of that medication…”

2. As against this material, the applicant then drew attention to the relevant part of the transcript of the hearing before the Tribunal and the “part”, he said, Ms Lkhagva’s evidence “played”. In particular:

   1)T23 lines 46-50.

   2)T24 lines 45-46.

   3)T49 line 16 to T50 line 42.

3. The applicant referred to the Tribunal’s statement in the decision record ([18] at the last dot point at CB 276 to CB 277):

   “[18]…

   Ms Lkhagva wrote in a statutory declaration dated 5 June 2013 that the applicant revealed his homosexuality to her in 2010. She agreed to the applicant and Mr [A] living in their apartment as a couple, who sometimes had arguments over finances. The applicant left their shared apartment in April 2012, and the relationship came to an end. The applicant did not present Ms Lkhagva as a witness. However, as discussed at the hearing, her statement contains other irregularities (considered below) that cause the Tribunal some concerns about its reliability.

   …”

4. The applicant submitted that the Tribunal’s understanding, as expressed immediately above, was premised on a misapprehension, or misunderstanding, of what Ms Lkhagva had relevantly said in her Statutory Declaration. That misapprehension then “carried over” (“informed”) to the Tribunal’s concerns as to the reliability of Ms Lkhagva’s statement.

5. This misapprehension was said to have resulted in the Tribunal finding an inconsistency in Ms Lkhagva’s statement ([23] of CB 280 to CB 281):

   “The Tribunal is concerned that the hospital records are at odds with the applicant’s account that the attempted suicide or panic attack was linked with his sexuality. In relation to Ms Lkhagva’s statements, the Tribunal prefers the hospital record account of her comments on 28 and 29 September 2011, namely that she attributed the applicant’s situation to his gambling and that she was not aware of any previous suicide attempt, over her later statement of 5 June 2013 that a doctor informed her by telephone on 29 September 2011 that the applicant was depressed because of his sexuality, and that she is aware of a prior suicide attempt on his part.”

6. In essence, the inconsistency was between Ms Lkhagva’s evidence that she had had a telephone conversation with the hospital doctor on the day of the applicant’s release from hospital, which included a discussion about the applicant’s sexuality, and the Tribunal’s preference for what it said was reported in the hospital records. That is, that there was no mention of this aspect of the claimed conversation in the hospital records. Further, that this was inconsistent with the applicant’s own evidence, that he had first mentioned his sexuality to the doctor on 19 October 2011 (that is, at some time later).

7. The applicant invited the Court to closely examine the relevant parts of Ms Lkhagva’s Statutory Declaration. In particular [7] (at CB 150 ‑ see [16] above). I understood the purpose was to argue that the Tribunal adopted an “incorrect” construction of what Ms Lkhagva had said. The applicant submitted that the “appropriate construction” emerged by relying on “grammatical construction” and “temporal conditioning”.

8. For example, the hospital records reveal that two conversations were had with Ms Lkhagva. Both were on 28 September 2011 (see [15](5) above and CB 223, and [15](6) above and CB 225). The applicant submitted that there was no hospital record of any conversation with Ms Lkhagva on 29 September 2011. Yet, the Tribunal proceeded on the basis that she claimed to have had such a conversation on that date (see also [20] of the Tribunal’s decision record, at the first dot point, at CB 280).

9. The applicant submitted that a proper or “correct construction” of Ms Lkhagva’s Statutory Declaration reveals that she did not claim to have spoken to the hospital doctor on 29 September 2011. Rather, that the words “on the following day…” ([7] at CB 150) did not provide a temporal context for what follows in that paragraph. Further, that the reference in [7] (at CB 150) to “his doctor” (as in, “on the following day, [the applicant] returned home, I talked to his doctor…”) was a reference to a discussion with the “applicant’s doctor”, not the “hospital’s doctor”.

10. The applicant also submitted that Ms Lkhagva’s reference to “his doctor”, was a reference to Dr Gordon and Professor Harris (see further at [28] below). He submitted that the evidence before the Tribunal (and the Court) is that the applicant met with Dr Gordon on four occasions in October and November 2011 (see CB 52 – that is after September 2011, the relevant dates in the hospital records), and with Professor Harris in May 2012 (see CB 82 and CB 83), and that it was to these doctors, and not the hospital reports, which Ms Lkhagva was referring.

11. It is trite to say that care must be taken by this Court in not engaging in merits review. That is, the Court should not seek to consider the evidence before the Tribunal with a view to substituting its own findings of fact for those of the Tribunal.

12. The issue here, as raised by the applicant, is whether it was unreasonable of the Tribunal to view the evidence before it in the way that it did. That is, whether the Tribunal’s “construction” put on that evidence was reasonably available, or open, to the Tribunal, on what was before it.

13. In that light, in progressing the “correct” construction of Ms Lkhagva’s evidence, the applicant did not explain how Ms Lkhagva’s reference to “his doctor” in [7] of her Statutory Declaration (at CB 150) related to both Dr Gordon and Professor Harris. She makes no reference to “doctors”. Further, it is of note that Dr Gordon’s appointment with the applicant was said to be in October/November 2011. Therefore, consistent with the applicant’s preferred construction of Ms Lkhagva’s statement, it may be feasible to understand that she assisted in these appointments following the applicant’s release from hospital, as she otherwise states in [7] (at CB 150).

14. However, Professor Harris’ report is dated October 2012 (not 2011), and refers to first having seen the applicant on 25 May 2012 (CB 82.5), being at a time, according to Ms Lkhagva’s statement, after the applicant had moved out of the flat they shared (April 2012 – see [8] of her statement at CB 151)

15. I note this, not in any direct answer to the applicant’s complaint, but rather to highlight the difficulty faced by the applicant in establishing the proposition that there was only one “correct” interpretation, or construction, on the evidence, of Ms Lkhagva’s statement, and that the Tribunal failed to adopt that construction.

16. The applicant relied on SZRHL v Minister for Immigration and Citizenship [2013] FCA 1093 (per Logan J) (“SZRHL”). He asserted that the Tribunal’s failure to properly understand Ms Lkhagva’s evidence, and the relevance of that evidence to the important matter of the applicant’s credibility, involved a factual error. In the circumstances, this amounted to jurisdictional error.

17. In SZRHL, the applicants (husband and wife) were Bangladeshi nationals. They had applied for protection visas. Amongst other matters, they claimed that a “false case”, or “charges”, were brought against the first applicant. The Tribunal found that “no mention” had been made of this matter in their application for the protection visas (see SZRHL at [14]). The Federal Court (on appeal), found that, in fact, the applicant had made a reference to a false case in the application form (see SZRHL at [15]).

18. In the current proceedings, the applicant specifically drew the Court’s attention to what was said in SZHRL at [18], [19], [21]. In particular, [21] of  SZRHL:

    “…The misapprehension was not therefore merely an erroneous finding of fact. Rather, so the Full Court concluded in VAAD, it constituted a jurisdictional error constituted by a failure to consider relevant material. That failure had, in the circumstances, deprived the applicant of the possibility of a favourable outcome.”

19. He noted further what Logan J stated at  [34] – [37] in SZHRL:

    “[34] As I opined by reference to earlier authority in SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37], ‘the adjectives ‘ignorant’, ‘arbitrary’ and ‘perverse’ aptly apply to a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise’. That is this case. The process of reasoning that led to the damning of the first appellant’s credibility by the Tribunal was premised upon the basis that a reference to a “false case” laid against him in the courts of Bangladesh had only emerged belatedly, as opposed to when the visa application was made. That premise was not peripheral.

    [35] One way of characterising the Tribunal’s reasoning as to the first appellant’s absence of credibility is that it, based as it is upon a false premise, it is illogical or irrational. That is the alternative way in which the appellants grounded their challenge in the court below to the Tribunal’s decision and, in this Court, put their case that the Federal Magistrates Court had fallen into error. A decision so based is not ‘within the range of possible acceptable outcomes’ (Li at [105]).

    [36] Another way of characterising the jurisdictional error, as the discussion in SZLGP reveals, is that it was procedurally unfair to the first appellant for the Tribunal, when questioning him in the course of the hearing, to have put to him that he had failed to mention a ‘false case’ in the statement in the statutory declaration which accompanied the protection visa application but to have failed to mention to him that he had mentioned that matter in the application itself. The answers which the first appellant came to make at the hearing to questions proceeding from this false premise in turn formed part of the reasoning that led to a conclusion that the first appellant was not credible.

    [37] Recalling the Full Court’s observation in VAAD at [39], that ‘[a]n assessment of credibility is not necessarily linear’, it is not, in my view, open to conclude that the appellants have not, as a result of the error made by the Tribunal, been deprived of the possibility of a successful outcome on the merits of their protection visa applications. It is the existence of such a possibility which is both necessary and sufficient to warrant the granting of relief on judicial review: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141; Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82.”

20. The applicant submitted that, similarly, in the current case, the Tribunal’s misapprehension (as explained above), also leads to jurisdictional error being revealed. The applicant’s position was that the chain of reasoning adopted by the Tribunal, in relation to Ms Lkhagva’s evidence, caused it to disregard her evidence. Specifically, her evidence that the applicant was of homosexual orientation.

21. The Minister’s position was that the circumstances in SZRHL are distinguishable from the current case. In SZRHL, the Court found that errant fact finding led, in the circumstances of that case, to jurisdictional error. The Minister submitted that in SZRHL, the Tribunal made a relevant factual finding that was plainly not correct, and that this led to a chain of reasoning, and a conclusion, based on that error. It was in this light that the Court found that the Tribunal failed to discharge its core review function.

22. The Minister’s submission was that by contrast, in the current case, it is very difficult to establish that the Tribunal made the factual finding as the applicant contends. In the alternative, without conceding that it was the case, even if a relevant factual finding could be said to have been made, it was not of such gravity that it would lead to the consequences, as found in SZRHL.

23. While the applicant’s approach in the current case was to focus on what he said was the “correct”, and only, construction, in light of the evidence, of what Ms Lkhagva said in her Statutory Declaration, it is well to be reminded of the context in which the Statutory Declaration was potentially relevant to the conduct of the review.

24. That context was, as set out above, that the applicant’s claim to fear of harm was said to be because of, and flowing from, his homosexual orientation. Amongst other matters, put in support of this proposition, the applicant claimed that he had attempted suicide in September 2011, and that this was evidence of his deep anxiety, concern and depression because of the past mistreatment of him due to his homosexuality.

25. It was in this context the applicant submitted that he provided the various hospital and medical records already referred to above. That is, the hospital records were provided to support his claim to have attempted suicide for reasons arising from his homosexuality and to thereby support his claim to be of homosexual orientation.

26. Relevant to this point, Ms Lkhagva’s Statutory Declaration (made on 5 June 2013) was provided as corroborative evidence of the applicant’s claims in this regard. Her Statutory Declaration, relevantly, was to the effect that she had received a call from St Vincent’s Hospital in September 2011, notifying her that the applicant had attempted suicide. The applicant returned home the following day. She spoke to his doctor, but did not identify the doctor by name, who she said told her that the applicant  “was very depressed and anxious due to his sexuality and related issues…” ([7] at CB 150).

27. Ultimately, the Tribunal preferred what was recorded in hospital records, contemporaneous with the claimed hospitalisation in September 2011, to Ms Lkhagva’s account, as set out in her Statutory Declaration made nearly two years later, on 5 June 2013.

28. Before considering the Tribunal’s reasoning in this context, a preliminary point may be made. When he was invited by letter dated 17 June 2013 to attend the hearing before the Tribunal, the applicant was given the opportunity to nominate any person from whom he wished the Tribunal to receive evidence (CB 153 to CB 156). The applicant, who was represented by a migration agent, and a firm of solicitors, did not nominate Ms Lkhagva, or any other person, to give oral evidence on his behalf (CB 162).

29. I do not note this in any Jones v Dunkel ([1959] HCA 8; (1959) 101 CLR 298) sense in relation to Ms Lkhagva. It is, plainly, a matter for the applicant to elect how to present his case to the Tribunal. Indeed it is for the applicant to present his case, and material in support, such that the Tribunal may reach the requisite level of satisfaction for the grant of the visa (s.65 of the Act).

30. Rather, the point here is that Ms Lkhagva was not available to the Tribunal to provide further explanation to what she said in her Statutory Declaration. That is, whatever lack of relevant detail existed, Ms Lkhagva was not available to clarify. For example, the Statutory Declaration does not identify the exact date of the telephone call in September 2011, the date that the applicant returned home, the actual identity (beyond “his”) of the doctor she says she spoke to, and who, critically, she says told her of the applicant’s emotional and mental state, due to his sexuality, nor the dates on which she said she helped the applicant when he met with his doctor.

31. The Tribunal’s relevant analysis and reasoning must be seen in light of the material before it. The applicant now has not only sought to put a particular construction on the understanding of what Ms Lkhagva said in her Statutory Declaration, but also argues that it is the “only” available construction. In the circumstances, I agree with the Minister that one of the difficulties faced by the applicant now, in part for the reason set out immediately above, is the difficulty in establishing that the Tribunal made the factual finding in the manner as the applicant now contends.

32. As set out above, the applicant’s complaint is that the Tribunal “misunderstood” Ms Lkhagva’s “evidence”. The nature and state of that evidence is set out above. It must be emphasised that that evidence was submitted in corroboration of the applicant’s own evidence. Relevantly, Ms Lkhagva’s evidence relates, in a general sense, to the applicant’s claim to be a homosexual, but, in a specific sense, to the claimed events in September 2011.

33. It is important to note that in the current case, the impugned part of the Tribunal’s reasoning does not relate directly to the applicant’s evidence or conduct, as it did in SZRHL, but to the view the Tribunal took of a statement made by another party, in an attempt to corroborate the applicant’s claims. The applicant’s submissions before the Court now did not seek to address the Tribunal’s relevant reasoning in that context.

34. The applicant claimed that his purported suicide attempt in September 2011, was because of his past mistreatment as a homosexual. The Tribunal noted that the applicant had made this claim in his “original statement”, made on 22 December 2011 (1st dot point at [20] CB 279).

35. The Tribunal also noted that it had before it hospital records from September 2011, which showed that the applicant had, at the relevant time, “identified gambling losses and debts of over $10,000 as the cause of his problem…” (2^nd dot point at [20] at CB 279). Further, that he made no claim to have attempted suicide. At its highest the records referred to a “vague suicidal ideation”. (At best that can be understood as a reference to a vague idea of suicide in general, not the idea of any attempt at suicide, let alone an actual attempt at suicide.)

36. The Tribunal noted the following from the hospital records (2^nd dot point at [20] at CB 279):

    “[20]…

    The hospital records from 28 September 2011 show that the applicant identified gambling losses and debts of over $10,000 as the cause of his problem; that he had felt dizzy and anxious and asked a woman to call an ambulance; and that he had wanted to hurt himself but had no specific plans. They refer to ‘vague suicidal ideation’. The applicant is also recorded as having told hospital staff that he has not experienced bullying in the past. The applicant’s flatmate, Jessie (Ms Lkhagva) is recorded as stating that he is ‘probably suicidal as he lost the money’.

    ...”

37. It is clear from the Tribunal’s presentation of its reasoning that it found itself confronted with two conflicting bodies of evidence in relation to the claimed suicide attempt in September 2011 and its cause. On the one hand, the applicant claimed in his application for the protection visa (22 December 2011), that he attempted suicide because of his sexuality. On the other hand is his reported statements made to hospital staff in September 2011 (that is, the time of the claimed incident), that did not mention his sexuality, but his gambling problems.

38. The Tribunal also considered the applicant’s explanation that he “deliberately concealed” his sexuality from hospital staff. In this context, there is no legal error arising from the Tribunal’s attempt to explore with the applicant the corroborative evidence put to support his claim that he subsequently revealed his sexuality to Dr Gordon on 10 October 2011 (the second session), to whom he had been referred by hospital staff (3^nd dot point at [20] at CB 279).

1. The Tribunal was attempting to understand from the applicant how the issue of the applicant’s sexuality emerged during the counselling sessions with Dr Gordon (see dot points 4 ,5 and 6 in [20] at CB 279). The factual question the Tribunal was plainly concerned with was to determine when the applicant first mentioned to another person his emotional and mental state said to be due to his homosexuality. Noting that he claimed before the Tribunal that this emotional and mental state (arising for reasons of his homosexuality and not other reasons) had previously led to his suicide attempt in September 2011.

2. In this regard, the Tribunal noted what Ms Lkhagva had relevantly said in her Statutory Declaration of 5 June 2013. That is, that on 29 September 2011, she said she spoke to “doctors” by phone who mentioned to her the applicant’s depression and its consequences (1^st dot point in [20] at CB 280).

3. The Tribunal made two findings in relation to Ms Lkhagva’s statement in this regard. First, that there was no mention in the hospital records of this having been said to Ms Lkhagva by the hospital doctors or staff. Second, that Ms Lkhagva’s statement, in this regard, was inconsistent with the applicant’s statement that he first mentioned his sexuality to Dr Gordon on 10 October 2011.

4. It is to be noted that while the applicant’s attack before the Court focussed on the Tribunal’s reasoning at [23] (at CB 280), the applicant’s argument may also apply to this part of the Tribunal’s reasoning.

5. That is, as stated above, the applicant now argues that Ms Lkhagva did not say in her statement that she spoke to the applicant’s doctor “On the following day”, that is, the day the applicant returned home in September 2011, but to “the doctor” sometime subsequently. I will return to this below, in relation to the impugned “finding” at [23] (at CB 280).

6. It is important to note the Tribunal’s analysis and reasoning in the sequence of events as presented.

7. In this regard, in relation to Ms Lkhagva’s statement, the Tribunal expressed its concern that “[t]he applicant did not explain why his friend Ms Lkhagva would recall that a doctor informed her directly that he was depressed because of his sexuality” (7th dot point at [20] at CB 280.3).

8. The Tribunal was also concerned that in his reported comments to hospital staff (in September 2011) it was recorded (2^nd dot point at [20] at CB 279):

   “…The hospital records from 28 September 2011 show that the applicant identified gambling losses and debts of over $10,000 as the cause of his problem; that he had felt dizzy and anxious and asked a woman to call an ambulance; and that he had wanted to hurt himself but had no specific plans. They refer to ‘vague suicidal ideation’. The applicant is also recorded as having told hospital staff that he has not experienced bullying in the past. The applicant’s flatmate, Jessie (Ms Lkhagva) is recorded as stating that he is ‘probably suicidal as he lost the money’.”

   The Tribunal told the applicant it was difficult to reconcile his reported statement, with his claims that he had been subjected to bullying.

9. The Tribunal also considered the applicant’s own statement as to the events in September 2011 (see [21] at CB 280 and the applicant’s Statutory Declaration of 8 August 2013 at CB 188 to CB 191).

10. This was explored with him at the hearing. The applicant told the Tribunal that he did not tell hospital staff that he was suicidal for reason of his sexuality, but that this was because of his gambling. He explained he said this because he did not want to reveal his “real” problems.

11. Before the Court the applicant’s particular (b) to ground one directed attention to [23] (at CB 280) of the Tribunal’s decision record (see also [20] above). The first sentence of [23] (at CB 280), expressing the Tribunal’s concern that the applicant’s account of the attempted suicide as linked to his sexuality was “at odds” with hospital records, should, in context, be read at face value. That is, it was an expression of concern by the Tribunal as to the state of the evidence before it.

12. That concern was a part of the Tribunal’s chain of reasoning that led to its subsequent finding, that the applicant’s “panic attack, and purported suicide attempt on 28 September 2011, arose because of acute financial and gambling problems…”, and not his claimed homosexuality ([25] at CB 281). Even on the basis that the ultimate finding encompassed the “concern” as initially expressed, (the hospital records, and the applicant’s claimed reasoning for the purported suicide attempt, were “at odds”), it was a finding that was reasonably open to the Tribunal on what was before it.

13. The second sentence of [23] (at CB 280), is at the heart of the applicant’s attack. Here the Tribunal was plainly seeking to evaluate the strength of Ms Lkhagva’s statement of 5 June 2013 “that a doctor informed her” by telephone on 29 September 2011 that the applicant was depressed. It conducted that evaluation “in light of hospital records” provided by the applicant, which were contemporaneous notes of the events of September 2011.

14. The Tribunal’s reference to what was said in Ms Lkhagva’s Statutory Declaration was not a finding of fact as such, but an expression by the Tribunal of what it apprehended Ms Lkhagva to be saying. In this sense, I agree with the Minister that this was not a finding in the sense as existed in SZRHL.

15. However, even if it could be characterised as a “finding” as such (as to what she said in June 2013), it was an understanding, or a finding, reasonably open to the Tribunal on what was before it. That is, the entirety of what was relevantly before it.

16. In this regard it is also important to note that the Tribunal specifically explored Ms Lkhagva’s statement with the applicant at the hearing. The following parts of the transcript of the hearing are relevant (the T49 line 30 to T50 line 33):

    “A. INTERPRETER: So when I released from hospital Lkhagvasuren told me, so she .. she told me that that the hospital people rang her and told her that ... that I ... I am attempt suicide because of ... after I went to casino. Yeah, so I think that then she forgot that question and said, ‘yes’.  So I think she didn’t want to reveal my secret ... the friend’s secret, so that’s why she ... she told ... to medical people, I’ll say that (indistinct) that is (indistinct).

    Q. I’ll … I’ll reflect on that. It’s a concern to me though, because she … she is recorded as offering the thought that you are probably suicidal because of the money. And I’m looking for the ... unfortunately, I’m just not having success finding it. Lkhagvasuren wrote a letter for you, in support of this application. Here we go. I’ve found it. And in this she says, ‘on the following day’, that is, this is now ... this therefore, must be the 29th of September, ‘you returned home and the doctor said that you were very depressed and anxious, due to your sexuality.’ Can I just clarify, when you were in St Vincent’s — when you were being treated there — did you speak to any doctor and reveal anything about your sexuality?

    A. INTERPRETER: No. So I think she refers to Dr Gordon.

    Q. Okay. When did you first see Dr Gordon?

    A. INTERPRETER: The same day when I released St Vincent’s.

    Q. Oh okay. Now, I think Dr Gordon wrote though that he saw you on four occasions, and the first occasion was about a week after you were released. And you ... you told me last week that — so the first time was on the 4th of October, and the second time was on the 10th of October — and you told me last time that when you saw him, you didn’t mention anything about your sexuality when you first spoke to him, this only came out later on

    A. INTERPRETER: So that ... that morning, or that day when I released from hospital, I was told that some people come ... going to see me ...

    Q. Mmmm.

    A. INTERPRETER: .. so I was still in hospital that day. So there was three people I met ...

    Q. Mmmm.

    A. INTERPRETER: so one of them was Dr Gordon.

    Q. Hmmm.

    A. INTERPRETER: Hmmm. So they told me that if ... if I give promise that not going to attempt suicide again, they say they can release me, otherwise they going to send me different place.

    Q. Okay. No, go ahead.

    A. INTERPRETER: So this why I told you ... told them the first time that I met Dr Gordon is 29 September, yes?

    Q. Okay, I get it. But your consultations were on the 4th. I have ... well Lkhagvasuren writes that, ‘the day ... the day that you were released, the doctor said ... the doctor was already speaking about your sexuality’. So do you think maybe Lkhagvasuren is forgetting some things, or do you think that or do you think that you did speak to a doctor on the day that you were released? Because there is nothing in your medical records that I can find, that indicates you ... you talked about your sexuality, while you were in St Vincent’s.

    A. INTERPRETER: Yeah, I ... I think maybe Lkhagvasuren you know, forgot things.”

    [Emphasis added.]

17. The Tribunal preferred contemporaneous hospital records concerning Ms Lkhagva’s statement, and the state of her relevant knowledge as to the applicant’s sexuality as to the cause of his anxiety in September 2011, to her subsequent statement in June 2013 as to what was relevantly said and what she knew as at September 2011.

18. That is, the Tribunal’s reasoning was that Ms Lkhagva’s statement made on 5 June 2013, as to the causes of the applicant’s suicide attempt in September 2011, was not to be preferred to the statement said to have been made, as reported by hospital staff, at the earlier and relevant time. In my view, whether this is characterised as a finding in itself, or an explanation of two pieces of evidence before it leading to a subsequent finding, does not matter.

19. To make out his case now (in light of SZRHL), the applicant would need to show, on balance, and at least, that the Tribunal misapprehended Ms Lkhagva’s statement. He has not done so in the current case. The Tribunal’s view of Ms Lkhagva’s statement was reasonably open to it on the entirety of the circumstances presented.

20. It may be that another view of Ms Lkhagva’s statement of 5 June 2013 may have been available to the Tribunal. However, it cannot be said it was not open to the Tribunal to take the view it did. This is supported by the applicant’s own evidence at the Tribunal hearing, when he agreed with the Tribunal member, with specific reference to the relevant part of Ms Lkhagva’s statement, that Ms Lkhagva “maybe….forgot things” (T50, line 33).

21. The Tribunal did not “disregard” Ms Lkhagva’s evidence, as asserted in particular (b) to ground one. Nor was its understanding of her evidence unreasonable in all of the circumstances presented. The Tribunal’s assessment of the evidence before it, and its ultimate finding in this regard, were reasonably open to it on what was before it. I cannot see that the Tribunal in the current case fell into a similar error to that in SZRHL.  Particular (b) to ground one is not made out.

22. Particular (a) to ground one asserts that the Tribunal’s finding that the applicant “fabricated” his claim to be a homosexual was so unreasonable that no reasonable person would have made it. This was said to be because the Tribunal’s relevant inquiry was based on “stereotypes” as to the behaviour of gay men, and did not take into account the applicant’s medically diagnosed significant depression.

23. Before the Court the applicant sought to make good his complaint with reference to parts of the Tribunal’s questioning of the applicant at the hearing. The applicant submitted that those parts of the Tribunal’s questioning were “unusual”, “oppressive”, “voyeuristic” and “insensitive”.

24. The applicant referred specifically to:

    1)T31 lines 19 ‑ 24

    “I mean by that is, if you’ve used it for, you know, to either look at gay websites, or to find out about more information for gay men, or to meet people, anything.

    A. INTERPRETER: I ... I like music so, when I go internet the main thing I, you know, watch it to have seen the music, so of course as a Mongolia, I would like to, you know, see news, about Mongolia. So sometime I go you know, the porno sites, for gay people to ...”

    2)T32 lines 1 – 12:

    “Q. Hmmm. And do you ... have you watched the same ... do you just watch something random, or do you … do you have sort of a favourite video company, or video ... a video favourite porn stars, or a favourite video company?

    A. INTERPRETER: Usually I watch randomly, but usually I ... I prefer to watch the videos which made porn, homemade…

    Q. Okay.

    A. INTERPRETER: ... ones.

    Q. Can you remember the name of any of the videos that you, you know, that … that you do remember having watched, of gay videos, not … not homemade ones, but, do you ... do you remember the names of any commercial ones that you’ve watched?”

25. In short, the starting point for the applicant’s complaint about the Tribunal’s decision was his submission that there was medical evidence before the Tribunal that he was seriously depressed and anxious and that he had attempted suicide.

26. In light of the above, the applicant referred to exhibit “AE1” dealing with the Tribunal’s “guidelines” on how to deal with a vulnerable person, “Guidance On Vulnerable Persons”. In particular:

    1)Paragraphs 9 to 10 of exhibit AE1:

    [9] The guidance sets out a number of procedural approaches that may be adopted by the tribunals in relation to vulnerable persons. The approaches are designed to ensure that proper account is taken of the needs of vulnerable persons, be they parties or witnesses, and to ensure no applicant is disadvantaged when the tribunals conduct a review.

    [10] The procedures may not be appropriate in all cases involving vulnerable persons. The guidance is intended to complement existing legislation, policy and guidance and should not be applied inflexibly.”

    2)Paragraph 43 at page 8, 1^st dot point of exhibit AE1:

    “…Questioning should be done in a sensitive and respectful manner and questions should be formulated in a way that the vulnerable person understands…”

    3)Paragraph 96 of exhibit AE1:

    “Mood disturbances can manifest as elevated mood, depressed mood and as intense emotional distress. Elevated mood may be accompanied by increased rate of speech, fast flow of ideas, irritability, restlessness and agitation. Depressed mood may be accompanied by slowed flow of ideas, a lack of energy, difficulties with concentration, expressions of hopelessness and teariness.”

    4)Paragraph 99 of exhibit AE1:

    “Strategies for assisting a person with a mood disturbance or severe emotional distress are:

    ·    Encourage applicants to bring a friend or relative to the hearing to support them if it is known that impairments are likely to manifest in an interview situation.

    ·   Explain to the person that it may be necessary to ask questions about “difficult” or “upsetting” experiences during the hearing. Assure the person that the questions will be limited to those that are necessary for the review process.

    ·   Keep questions short and factual. Concentration may be impaired but the person may be able to concentrate for short periods.

    ·   If the person shows that they are distressed, ask if he or she wants to continue or have a break.

    ·   Where appropriate link the person to community support groups or mental health professionals (details of some appropriate services can be found in tribunals’ forms MR 22 Support Services).

    ·   Acknowledge distress without judgment.

    ·   Show that you want to understand why the person is distressed.

    ·   Where mood disturbances are severe it may be appropriate to obtain a psychiatric assessment about the person’s diagnosis, treatment and prognosis. It may be appropriate to adjourn the review until the person has been treated, bearing in mind that the tribunals have an obligation to complete reviews without undue delay. Advice on this issue may be sought from the tribunals’ Legal Services section.

    ·   In the case of self-harm, further guidance for staff dealing with applicants at risk of harming themselves or others, including procedures for responding to critical incidents involving such applicants, can be found in the tribunals’ guideline Applicants at Risk of Engaging in Harm.”

27. The applicant’s submission was that the form of questioning employed by the Tribunal was contrary to how the Tribunal should have proceeded, as set out in the guidelines. The argument was that the Tribunal, in conducting what is, after all, an inquisitorial process is still required to act fairly. Its failure to follow the guidelines on vulnerable persons (such as the applicant), meant that the Tribunal acted unreasonably in the circumstances and, therefore, fell into jurisdictional error.

28. In written submissions the applicant referred to Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”) and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280 (“Singh”) (see the applicant’s initial written submissions at [4]), as to what may constitute legal unreasonableness.

29. It is, as the Minister submitted, that both those cases concerned the exercise of a statutory discretion by a Tribunal. Such an exercise must be reasonable. A refusal to exercise the discretion must be explained by the relevant Tribunal with an “intelligible justification” for the refusal. In the current case the impugned conduct by the Tribunal, was the questioning adopted at the hearing, and its subsequent application of “illogical suppositions” (see applicant’s initial written submissions at [46](c)) to its findings in rejecting the applicant’s core claim to be a homosexual.

30. I agree with the Minister that Li and Singh, with respect, do not stand for as general or broad proposition as the applicant now urges, that unreasonableness, or for that matter “illogicality” (as the applicant’s written submissions referred), in the context of fact finding, constitutes jurisdictional error. That is not the context within which the Courts’ reasoning arose.

31. In his written submissions, the applicant also referred to Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (SZMDS) (per Crennan and Bell JJ at [130] – [131]). The plurality in that case (see also per Heydon J at [78]) found that a decision is not unreasonable where minds may differ as to the making of the decision.

32. The applicant did not pursue any principles to be drawn from SZMDS in his written submissions or orally before the Court. Before the Court, the applicant sought to make good his assertion of jurisdictional error with reference to SZSNW v Minister for Immigration & Anor [2014] FCCA 134 (“SZSNW”).

33. Before considering the applicant’s submissions in this regard, it is of assistance to note that even if what was said in Li, and Singh, did extend to the Tribunal’s relevant conduct, and findings of fact, then the Tribunal’s decision would only be considered unreasonable if it lacked any evident and “intelligible justification”, to be derived from the decision record itself (see Li at [76] and Singh at [47] – [48]). Further as was said in SZMDS, “[a] Court should be slow, although not unwilling, to interfere in an appropriate case…” (at [130]) (see also Li, at [113] per Gageler J).

34. The applicant submitted that in SZSNW the Court had had regard to relevant Ministerial guidelines on the treatment of vulnerable persons, in the context of a claim of sexual assault. The applicant explained that one of the reasons that the Court in SZSNW was satisfied that unreasonableness, in the Wednesbury sense, was made out, was that the relevant decision maker in that case failed to inform himself as to the correct approach in dealing with claims of “sexual torture”, as that had been set out in the Ministerial guidelines (SZSNW at [55]).

35. Before the Court, the applicant argued that, by analogy, the Tribunal fell into the same error in the current case. That is, in summary, the Tribunal’s line of questioning as to the applicant’s sexuality, by the references as to whether, or not, he had a favourite “gay porn site”, or, “gay porn production company”, when seen in light of the guidelines, gave rise to unreasonableness, and was therefore revelatory of jurisdictional error.

1. It should be noted, however, that the terms of the application to the Court asserts unreasonableness in relation to a “finding” made by the Tribunal. The particular to the ground describes this finding as being that the applicant had “fabricated” his claim to be a homosexual. The applicant’s submissions focussed on the conduct of the Tribunal at the hearing, in relation to the questions it put to the applicant.

2. In all therefore, I understood the complaint to be as follows. The applicant’s core claim before the Tribunal was that he feared harm because he was a homosexual. The central finding made by the Tribunal was that he was not a homosexual and had fabricated his claims. That finding, therefore, was central to, and informed, the decision to affirm the delegate’s decision.

3. The argument, therefore, is that the Tribunal’s decision was unreasonable because it can be said to have been the result of an inquiry by the Tribunal that “was oppressive and based on stereotypes regarding the way gay men should act” (applicant’s initial written submissions at [28]). Further, the Tribunal unreasonably in this inquiry, failed to have regard to relevant guidelines, and to deal with the inquiry in a sensitive manner.

4. It should be noted that the reference to the Tribunal’s conduct at the hearing, and the guidelines in relation to particular (a) to ground one, overlaps with ground two. The applicant’s submissions had common elements in relation to both. I have endeavoured to separate the different strands, or foci, of each of the grounds, but note that some repetition is unavoidable below.

5. It is the case that at the hearing the Tribunal did discuss such matters as attendance at gay bars, gay porn sites, and the like. However, mere discussion about, or reference, to such matters does not of itself reveal that the Tribunal conducted the hearing on the basis of any expectation that gay men would engage in certain behaviour, whether stereotypical or not. Nor do these references, on their own, reveal a lack of sensitivity or oppressive conduct.

6. The Tribunal’s line of questioning at the hearing must be understood in the context of its statutory obligations. In this regard, the applicant applied for a protection visa based on a claim to fear harm if he returned to his home country because of his sexual orientation. The delegate refused the application. The application to the Tribunal required it to review that decision. This invoked, amongst other things, ss.414, 36(2) and 65 of the Act.

7. That is, relevantly, in conducting the review, the Tribunal was required to consider whether the applicant met either of the two criteria set out at s.36(2) of the Act for the grant of the visa. The visa could only be granted if the Tribunal was satisfied that the applicant’s claims, if made out, met either of the criteria.

8. Given the nature of the applicant’s claims, and its core component, the Tribunal was compelled to inquire as to the nature of the applicant’s sexuality. The applicant’s submissions before the Court focussed on the way the Tribunal conducted the inquiry at the hearing. That is, the line of questioning the Tribunal employed. The applicant’s arguments take issue with some of the topics raised by this questioning and discussed at the hearing. However, in context, and to the extent that those topics arose from the applicant’s evidence and can be said to be reasonably linked to the applicant’s claims, then no error arises.

9. Further, in a similar context, the applicant’s ground invoked s.425 of the Act (also relevant to ground two). The argument was that the applicant was entitled to a fair hearing, and the process adopted by the Tribunal must be fair in the circumstances to achieve this outcome (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 at [25]) (see further in ground two).

10. As set out above, the applicant relied on what was said to have been relevantly found in SZSNW. By analogy, he seeks to apply this to the current circumstances. Central to this argument (both for this ground and ground two), the applicant asserts that the Tribunal engaged in an oppressive inquiry, relying on stereotypes, rather than “averting to the material as mandated by the guidelines” (applicant’s submissions at [28]). [I understood “averting” to be a typographical error and what was meant was “adverting”.]

11. The use of the word “mandated” invokes the notion that the Tribunal was bound to follow the guidelines. This was indeed implicit, if not explicitly stated, in the applicant’s submissions before the Court. With respect, I also understand this to be implicit in SZSNW (see SZSNW at [55] ‑ “the Reviewer failed to inform himself of the correct approach… as set out in the guidelines provided by the Minister’s department and the Tribunal”). It is of note, however, that the reviewer was not a Tribunal member and, it appears, was bound, in context, to have regard to the guidelines.

12. There is no evidence before the Court, in the current case, that the guidelines relied on now by the applicant were the subject of any direction to the Tribunal, by the Minister, pursuant to s.499 of the Act. Nor that they are the subject of any another relevant direction.

13. I do not, respectfully, understand SZSNW to stand for the proposition that any relevant decision maker (including a Tribunal member) is bound to follow the “correct approach” as set out in departmental or Tribunal guidelines (as in the current case). If that can otherwise be said to be available from SZSNW, then I respectfully do not agree that that is the case (I note that SZSNW was appealed to a Full Federal Court (Minister for Immigration v SZSNW [2014] FCAFC 145), however this point was not the subject of consideration).

14. I respectfully agree with what was said, relevantly, by Judge Riley in  M100 of 2004 & Anor v Minister for Immigration & Anor [2007] FMCA 829 at [96] and [103]:

    “[96] The credibility guidelines were published by the Tribunal itself. However, that does not mean that the credibility guidelines bind a particular Tribunal member in making a decision about a particular case. The credibility guidelines begin with the words, ‘This paper sets out general guidance concerning the assessment of credibility by’ the Tribunal. It contains statements of general principle rather than directions on the particular decision that should be made in a case having particular features.

    …

    [103] To the extent that the gender guidelines or the credibility guidelines require the Tribunal to afford procedural fairness or consider the evidence as a whole or refrain from acting on a gut feeling, they simply require compliance with the existing law. A failure by the Tribunal in any of those respects would result in jurisdictional error not because the guidelines were ignored but because the existing law was not applied. In my view, the gender and credibility guidelines are not relevant considerations and any failure by the Tribunal to have regard to them would not constitute jurisdictional error.”

15. I also agree with the Minister that the issue relevant to this, and ground two, is not whether the Tribunal failed to take into account the guidelines, but whether, in the conduct of the hearing, it fulfilled its obligations pursuant to s.425 of the Act (see also below). The applicant’s reliance on the guidelines, therefore, in relation to particular (a) to ground one does not assist him.

16. Further, it is important to note that the Tribunal did not ignore the existence of the guidelines. The Tribunal acknowledged these in its decision record, and drew some inspiration from them ([14] at CB 275):

    “In conducting the hearing and, again in considering the applicant’s evidence, the Tribunal has taken into account the general principles that apply in assessing credibility (see Appendix B below), and the Tribunal’s Guidance on Vulnerable Persons, issued in June 2009. It recognises that claims involving sexual orientation require particular care. It may be easy to assert such claims, yet difficult for applicants to substantiate and for decision-makers to evaluate them. These matters are private in nature, and often involve questions of self-identity and sexual conduct. They may be stressful or unresolved. The Tribunal also recognises that sexuality may not be rigidly defined, and that an applicant’s conception of this may reflect his or her own social, cultural and religious background and experiences.”

17. What is of note however, is that the guidelines cannot be said to have been a relevant consideration as explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, given that there is no evidence before the Court that the observance of the guidelines was mandated by, or otherwise arose from, any statutory obligation. Nor does the Tribunal’s acknowledgement of the guidelines constitute, in the circumstances, some foundation to say that the guidelines were a relevant consideration

18. In any event, as set out below, I am not persuaded that the Tribunal did breach, or fail to observe, the guidelines, in the way contended now by the applicant.

19. As set out above, there appear to be two elements to the applicant’s particular (a) ground one. First, that the Tribunal unreasonably focussed on gay stereotyping in its questioning at the hearing. I do not agree. These parts of the transcript, relied on now by the applicant, must be read in context, and holistically. Further, the mere mention of porn sites and gay bars, and the like, does not make the questioning oppressive, or insensitive. That is particularly so when the Tribunal was seeking to explore matters raised by the applicant himself.

20. For example, taking each of those parts as referred to at [77] above. At (T31), it was not insensitive, or can be said to be relying on a stereotype, to ask the applicant if he used the internet to access “gay sites”. The Tribunal explained that its question was seeking to explore whether the applicant sought further information about gay men or sought to meet people. The reference to gay porn sites was raised by the applicant himself. The Tribunal was entitled in these circumstances to pursue this with him.

21. Earlier at T28, the Tribunal’s reference to the gay publications and social groups, was plainly put in the context of exploring the applicant’s claimed sexuality. This exchange needs to be seen in the context of exploring the applicant’s claimed same-sex relationship (T22). This involved what Ms Lkhagva said about that relationship (T23), a photograph that the applicant said he had of himself and his former boyfriend (T20 line 49) and whether he had met any other gay men (T25). The reference to the internet (T26), arose from the applicant’s evidence that he had met other men from overseas. It was the applicant who mentioned “Oxford Street”. The Tribunal asked him why he did so, and the applicant stated that there were “gay people” there. The reference to gay pubs (T27) flowed from this discussion.

22. Further, the Tribunal’s inquiry was not confined to the matters relied on by the applicant now. The transcript reveals that the Tribunal’s inquiry ranged over a number of matters, including the applicant’s claimed sexuality, his personal and family circumstances overseas, and in Australia, the claimed suicide attempt in September 2011, the applicant’s claimed experiences in his home country, his reasons for departure, Ms Lkhagva and her statement, and the delay in applying for a protection visa.

23. All of these matters were relevant to the consideration of the applicant’s claim, and flowed from, and were prompted by, the details of the applicant’s claims as they were presented by him, and his representative. Any plain reading of the transcript does not reveal any reliance on stereotypes, or oppressive, or prurient, questioning. The Tribunal’s questions were probative of the applicant’s claims, and were relevant to them. In the circumstances, what the applicant now claims was a line of questioning arising from a stereotypical, or “preset”, approach to homosexuals, was simply the Tribunal, properly, exploring the applicant’s claims to be of homosexual orientation, and to fear harm because of it.

24. The second element in particular (a) to ground one is that the applicant complains that the Tribunal did not take into account his “mental diagnosis of significant depression”.

25. To the extent that this is a complaint that the Tribunal should have approached the questioning at the hearing in a  different manner, beyond the reference to the guidelines, the applicant has not satisfactorily explained how the Tribunal’s questioning failed to take this into account, or was otherwise lacking in sensitivity

26. In my view any plain reading of the transcript reveals that the Tribunal was alert to the applicant’s claimed difficulties, was in fact sensitive in its approach to questioning, and made a point of seeking to explain its line of questioning to the applicant. See, for example, at T50

    
    

    lines 44 ‑ 51:

    “Q. Okay. Alright then, thank you. I want to explain just why I’m asking this questions, they might be puzzling you. But, they’re really important. Making a decision or ... or you know, determining on someone’s sexuality is a really difficult thing and therefore it’s not the kind of thing were there’s an easy test or anything like that. Because it’s always a very individual or private thing. But, who you do tell about your sexuality when you make that announcement, or when you tell someone, is quite a significant event, and therefore something that ... that is something that I think would be relevant for me to ask about…”

27. On the evidence the Tribunal acknowledged, and was aware that, the applicant had “personal problems” (see for example the discussion and consideration concerning the events of September 2011). It was simply not persuaded that these problems were as a result of his claimed sexuality (see [20] at CB 278 to CB 280).

28. Ultimately, I agree with the Minister that the Tribunal’s approach to questioning and, ultimately, its finding arising from this questioning which informed its decision, and its decision, was not unreasonable in the requisite sense. Particular (a) to ground one is an attempt to express dissatisfaction with the Tribunal doing what it was required to do, and with the findings it made. In all, particular (a) to ground one is not made out.

29. Ground two asserts that the Tribunal breached s.425 of the Act because the applicant was denied a meaningful opportunity to give his evidence and arguments. As stated above, to a significant extent ground two traverses the same material as particular (a) to ground one. While particular (a) to ground one asserts unreasonableness as the legal error, ground two asserts a breach of s.425 of the Act. The substratum of complaints to both, appear to rely on the alleged failure to follow the guidelines, and the claimed insensitive, and inappropriate, line of questioning of the applicant. To the extent that ground two is simply a different way of expressing the same complaint as in particular (a) to ground one, it is not made out for the reasons already set out above, in relation to particular (a) to ground one.

30. Section 425 of the Act compels the Tribunal to invite the applicant to a hearing so that he could give evidence and make his arguments in relation to the issue or issues arising in relation to the review of the delegate’s decision.

31. It is the case that s.425 of the Act requires that the applicant be given a “real and meaningful” invitation and opportunity to give his evidence and make his arguments (Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 and Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [31] and [73]).

32. I understood the particular emphasis in ground two to be that the applicant was denied such an opportunity because of the applicant’s mental and emotional state, the Tribunal’s line of questioning (as explained above), and its failure to apply the guidelines. As to the latter two, the consideration above stands in answer.

33. In the current case, while the applicant made general reference to his emotional and mental state and his depression, no satisfactory attempt was made to link this to the obligation in s.425 of the Act.

34. The medical material before the Tribunal was the subject of consideration above in relation to particular (b) to ground one. The hospital records and reports from Dr Gordon and Professor Harris all make mention of the applicant’s “severe depression” (CB 83), “anxiety” (CB 211), “anxiety and depression”, and “mental health issues” (CB 51).

35. What was missing in the applicant’s presentation of his case to the Court was that the applicant’s mental condition, and emotional state, was such that he was deprived of a meaningful opportunity to give his evidence and present his arguments to the Tribunal.

36. The medical reports before the Tribunal are silent as to this. The material before the Court now reveals that no submission was made to the Tribunal that the applicant was not capable of presenting his case.

37. The applicant’s complaint now that he was not afforded that meaningful opportunity, pursuant to s.425 of the Act, before the Tribunal, must be rejected. I cannot see that the Tribunal failed to “discharge its imperative statutory functions with respect to the conduct of the review…” (SZFDE  v Minister for Immigration and Citizenship [2007] HCA 35 at [51]). Ground two is not made out.

Conclusion

1. In all, the grounds of the application are not made out. The application should be dismissed. I will make the order accordingly.

I certify that the preceding one hundred and twenty-six (126) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 26 February 2015