SZTNY v Minister for Immigration
[2015] FCCA 239
•6 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTNY v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 239 |
| Catchwords: MIGRATION – Application for review of the decision of the Refugee Review Tribunal – whether the Tribunal’s decision was unreasonable – whether the Tribunal failed to apply the correct standard of proof in assessing the applicant’s claims – no jurisdictional error –application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 476 Federal Circuit Court Rules 2001 |
| Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 NAOX v Minister for Immigration and Citizenship [2009] FCA 1056 |
| Applicant: | SZTNY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2900 of 2013 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 7 October 2014 |
| Date of Last Submission: | 7 October 2014 |
| Delivered at: | Sydney |
| Delivered on: | 6 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Cutler |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Solicitors for the Respondents: | Ms S Burnett of Clayton Utz |
ORDERS
The application made on 22 November 2013 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2900 of 2013
| SZTNY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (“the Act”) on 22 November 2013 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 24 October 2013 which affirmed the decision of the Minister’s delegate to refuse the grant of a protection visa to the applicant.
A bundle of relevant documents is in evidence before the Court (the “Court Book” – “CB”).
Background
The following paragraphs of the Minister’s written submissions provide background to the application. In my view they are a reasonable summary of what relevantly appears in the Court Book and for convenience, I adopt them for the purposes of this judgment ([3] – [24] of the Ministers written submissions):
“[3] On 1 December 2006, the Applicant, a citizen of Bangladesh, arrived in Australia on a student visa. On 6 October 2010, he applied to the Department of Immigration and Border Protection (Department) for a protection visa: (Court Book (CB) 3 - 7).
[4] On 25 November 2010, the Applicant attended an interview with the Department.
[5] On 30 May 2011, the Delegate refused to grant the protection visa: (CB 212 - 238).
[6] On 16 June 2011, the Applicant applied to the Tribunal for review of the Delegate's decision: (CB 239 - 263). On 4 August 2011, the Applicant attended a hearing before the Tribunal and elaborated on his claims and gave evidence. The Applicant's representative was also present at the hearing. On 17 November 2011, the Tribunal affirmed the Delegate's decision: (CB 337 - 361). On 3 December 2012, that decision was set aside by the Federal Circuit Court and the matter was remitted to the Tribunal to be determined according to law: (CB 381). The jurisdictional error found by the Court related to the Tribunal's failure to consider evidence contained on a compact disc of photos. Those photos were of the Applicant having sex with his partner, Mr [H].
[7] On 7 May 2013, the Applicant attended a hearing before the newly constituted Tribunal. Mr [H].also attended a hearing before the Tribunal on that day. The Applicant's claims were inter-related with the claims made by Mr [H] .in relation to his own application for a protection visa. Again, the Applicant was represented by his registered migration agent at the hearing.
[8] On 10 May 2013, the Tribunal wrote to the Applicant pursuant to section 424A of the Migration Action 1958 (Cth) (Act) inviting him to comment on, and respond to, information that it considered would be the reason or part of the reason for affirming the decision under review (424A letter). The Applicant was requested to provide his comments or response by 22 May 2013: (CB 482 - 490).
[9] By letter dated 22 May 2013, the Applicant's representative wrote to the Tribunal seeking an extension of time to respond to the Tribunal's section 424A letter: (CB 491). The Tribunal granted an extension until 20 June 2013. On that day the Tribunal received a letter from the Applicant's representative requesting a further extension of time: (CB 494). The Tribunal informed the Applicant that it had decided not to grant a further extension of time but indicated that any material received prior to the decision being finalised would be considered by the Tribunal: (CB 495 - 496).
[10] On 20 June 2013, the Tribunal received a response to its 424A letter: (CB 497 - 500). On 24 June 2013, the Tribunal received a further response to its 424A letter from the Applicant's representative and a statutory declaration signed by the Applicant responding in more detail to the 424A letter: (CB 502 - 514). The Tribunal considered that material and evidence prior to making a decision: (CB 520 [19]).
[11] On 25 October 2013, the Tribunal affirmed the Delegate's decision: (CB 517 - 536).
[12] On 22 November 2013, the Applicant commenced the judicial review proceedings to which these submissions relate.
Applicant's claims
[13] Essentially, the Applicant fears harm in Bangladesh on account of his sexual orientation. He claims to be in an ongoing homosexual relationship with Mr [H].
Tribunal's finding
[14] The Tribunal did not find the Applicant to be a credible and truthful witness. In reaching this conclusion the Tribunal noted that the Applicant had provided inconsistent evidence in a number of critical respects, including:
[a] his claimed sexual experiences in Bangladesh. These inconsistencies related to the timing of his relationship with Mr [H] and the duration of the relationship. The Tribunal was not satisfied with the Applicant's explanation of the inconsistencies when they were put to him. In the Tribunal's view the changes in the Applicant's evidence regarding such matters, which were purportedly significant events, were indicative of the Applicant's lack of credibility and the unreliability of his evidence. Accordingly, the Tribunal was not prepared to accept any of the Applicant's claims in this regard: (CB 523 [36]);
[b] the nature of his relationship with Mr [H]and the extent of their sexual activities. The Tribunal found that the Applicant's attempt to address significant flaws in his evidence was nothing more than a selective manipulation of evidence in his favour, particularly with respect to how he characterised 'sex' and 'sexual relationships'. The Tribunal also noted that the narrative which the Applicant provided to Dr Andrews of his experiences was inconsistent with prior evidence given by the Applicant to the Department and Tribunal. The Tribunal found that the discrepancies in relation to the Applicant's description of his physical/sexual relationship with Mr [H] in Bangladesh and Australia seriously undermined the credibility of his claims regarding his sexual orientation. It was not prepared to accept the Applicant's claims in this regard: (CB 528 [52]); and
[c] his sexual experience with persons other than Mr [H] in Australia. As with the Applicant's other inconsistent evidence, the Tribunal was not satisfied with the Applicant's explanation of these inconsistencies. It considered that the Applicant's account of his sexual experience in Australia was unreliable and entirely devoid of credibility. Accordingly, it did not accept any of his claims in this regard: (CB 528 [66]).
[15] The Tribunal was not satisfied that the Applicant's lack of English language skills, confusion at the hearing and his inability to remember everything, sufficiently explained his problematic and repeatedly inconsistent evidence. The Tribunal noted that the Applicant arrived in Australia in 2006 and had obtained a Diploma of Accounting and Certificate 3 in Hospitality by the time he applied for a protection visa. It noted that at the time of the interview before the Department no concerns were raised by the Applicant or his representative concerning any problems the Applicant might have experienced in connection with his English language skills or nervousness. The Tribunal accepted that while some aspects of the Applicant's evidence may have been affected by confusion and an inability to remember details, his inconsistent and changing claims were such that could not be explained by reference to confusion, memory lapses, delay and repetition of claims over a period of time: (CB 530 [82]).
[16] The Tribunal found that the Applicant's evidence indicated that he had no knowledge of Mr [H]’s circumstances, including where Mr [H] had studied or where he was working, at the time of their claimed meeting and alleged relationship in Bangladesh. It found that the Applicant's lack of knowledge about Mr [H]’s cast doubt on the truth of his claims and demonstrated his preparedness to manipulate and tailor evidence to achieve his own purpose: (CB 529 [74]).
[17] The Tribunal also found it incredible that the Applicant and Mr [H] had decided to share a flat with a fellow Bangladeshi given the Applicant's claim to fear the Bangladeshi community's attitude towards his homosexuality: (CB 529 [75]).
[18] The Tribunal did not give any weight to the statutory declarations made by Mr Rabbi, Mr Sarwar and Mr [H] given the fundamental lack of credibility within the Applicant's evidence.
[19] Whilst the Tribunal accepted that the Applicant and Mr [H] shared a place in Sydney, had a joint bank account, shared expenses and travelled and socialised together, these matters did not outweigh the numerous problems it had identified in the evidence. Nor did it establish that the Applicant was gay or involved in a homosexual relationship with Mr [H] (CB 531 [85]).
[20] The Tribunal accepted that the Applicant had attended the Sydney Gay and Lesbian Mardi Gras and joined a gay club called the 'Taxi Club'. It also accepted that the Applicant may have attended other gay clubs and parties in Australia, as well as events organised by the group Trikone. However, having regard to the significant lack of credibility in the Applicant's evidence, the Tribunal was not satisfied that the Applicant's conduct in Australia had been otherwise than for the purpose of strengthening his claim to be a refugee within the meaning of the Convention. Accordingly, the Tribunal disregarded this conduct pursuant to section 91R(3) of the Act: (CB 531 [86]).
[21] The Tribunal considered the photographs submitted by the Applicant regarding his sexual activity with Mr [H] and accepted that he had intercourse with Mr [H] on one occasion. However, in the Tribunal's view this did not outweigh the numerous problems with the Applicant's other evidence. It found that the fact that the Applicant had engaged in sex with Mr [H] on one occasion did not establish that he was gay. It was not satisfied that the Applicant engaged in the sexual activity depicted in the photograph otherwise than for the sole purpose of strengthening the Applicant's claims to be a refugee within the meaning of the Convention. The Tribunal therefore disregarded this conduct pursuant to section 91R(3) of the Act: (CB 531 [88]).
[22] The Tribunal was not satisfied that significant weight could be attached to Dr Andrews' reports as evidence of the Applicant's sexual orientation. It found that the inconsistencies between
[a] Dr Andrews' report; and
[b] between what was purportedly narrated to him by the Applicant and Mr [H] and their evidence in connection with their protection visa applications,
cast doubt on the truth of the Applicant's claims and the reliability of what he had disclosed to Dr Andrews: (CB 533 [96]).
[23] Having considered all of the Applicant's claims, both individually and cumulatively, the Tribunal did not accept that the Applicant was a homosexual, practised homosexuality or was involved in a genuine homosexual relationship with Mr [H] or anyone else. It found that the Applicant would not be perceived to be homosexual and had not, and would not, engage in homosexual activities in Bangladesh. It concluded that there was no real chance that the Applicant would be harmed for the reason of his sexual orientation or any other Convention reason if he were to return to Bangladesh: (CB 533 [97]).
[24] In considering the complementary provisions under the Act, the Tribunal took into account the conduct engaged in by the Applicant in Australia which it had disregarded under section 91R(3) in relation to his refugee claims. However, in the Tribunal's view that conduct did not establish that he was a homosexual and that he would be involved in a homosexual relationship with Mr [H]. The Applicant did not claim, and the Tribunal was not satisfied, that the activities he engaged in within Australia had or would become known to anyone in Bangladesh. Having regard to the totality of the material before it, the Tribunal found that the Applicant was not and would not be perceived to be a homosexual and would not engage in homosexual activities in Bangladesh. It was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia, there was a real risk that he will suffer significant harm: (CB 534 [100] - [101]).”
Application before the Court
The grounds of the application before the Court are as follows:
“1. The Tribunal’s finding’s as particularised were contrary to the evidence and were not reasonable.
Particulars
(a) In finding the applicant and Mr [H] engaged in male homosexual intercourse on one occasion the Tribunal failed to give due weight to this evidence for the purpose of determining if he is a person of homosexual orientation (paragraphs 88 and 100 of the Tribunal decision).
(b) The Tribunal failed to give due weight to the expert evidence of Dr. Paul Andrews.
2. The Tribunal in assessing the credibility of the applicant applied the wrong standard of proof.”
The Applicant’s Case: Ground 1
Ground one asserts that two particularised findings made by the Tribunal were contrary to the evidence, and were not reasonable. The first particular relates to the Tribunal’s finding that the applicant had engaged in homosexual intercourse on one occasion, yet the Tribunal found he was not a homosexual.
The applicant drew attention to the Tribunal’s analysis at [88] and [100] of its decision record (at CB 531 to CB 532 and CB 534):
“[88] The Tribunal has considered the photographs submitted by the applicant and accepts that he has had intercourse with Mr [H] on one occasion. However, in the Tribunal’s view, this does not outweigh the numerous problems the Tribunal has identified in the other evidence submitted; and does not address the extent of the Tribunal’s concerns with regard to the applicant’s credibility and reliability of his evidence. The Tribunal finds that the fact he engaged in sex with Mr [H] on this occasion does not establish that he is gay, and is not satisfied that the sexual activity depicted in the photos was engaged in otherwise than for the sole purpose of strengthening the applicant’s claim to be a refugee within the meaning of the Convention. The Tribunal, therefore, will disregard this conduct pursuant to s.91R(3) of the Act.
…
[100] The applicant's only claimed reasons for not wanting to return to Bangladesh are based on his sexual orientation and being in a homosexual relationship. For the reasons outlined above, the Tribunal has rejected these claims. It has found that the applicant is not homosexual and will not engage in homosexual activities in Bangladesh. The Tribunal, however, has taken into account, for the purposes of s.36(2)(aa), the conduct engaged in by the applicant in Australia which it has disregarded under s.91R(3). However, as discussed above, in the Tribunal's view the sexual activity depicted in the photographs submitted by the applicant following the second hearing do not establish that he is gay or that he is in a homosexual relationship with Mr [H] Similarly, the Tribunal finds that the fact that the applicant has attended the Sydney Gay and Lesbian Mardi Gras, attended other gay clubs and parties in Australia and participated in events organised by the group Trikone do not establish that he is a homosexual and that he is involved in a homosexual relationship with Mr [H]. The applicant did not claim, and the Tribunal is not satisfied, that the activities he has engaged in in Australia have or will become known to anyone in Bangladesh. Having regard to the totality of the material before it, including the evidence relating to the conduct previously disregarded, the Tribunal finds that the applicant is not and will not be perceived to be homosexual, and will not engage in homosexual activities in Bangladesh.”
The second particular relates to the oral evidence and report provided by Dr Paul Andrews. The applicant described this evidence as “expert evidence”. The complaint is that the Tribunal’s failure to give due weight to this evidence was not reasonable.
The applicant referred to Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (“SZMDS”) at [47] (per Gummow and Hayne JJ):
“[47] The reasoning of the RRT appears to have proceeded on the basis that a person outside Pakistan but with a real fear of persecution as a homosexual in Pakistan would not go there at all and would seek protection as a refugee at the first opportunity. Reasoning of this nature insufficiently appreciates a point made by Gummow and Hayne JJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs[51]. This is that in considering whether a particular applicant for a protection visa has a well-founded fear of persecution by reasons of membership of a social group identified in terms of sexual identity:
‘Sexual identity is not to be understood in this context as confined to engaging in particular sexual acts or, indeed, to any particular forms of physical conduct. It may, and often will, extend to many aspects of human relationships and activity.’”
In his submissions before the Court the applicant commenced by making clear that he understood, first, that Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 (“Durairajasingham”) is authority for the proposition that assessment of “credibility” in matters of this type by the Tribunal, is a matter of “fact finding par excellence”. Second, that the Court cannot “trespass” into fact finding. Third, that there were some inconsistences in the applicant’s evidence during the process of the visa application and review of the delegate’s decision.
Having said that, however, the applicant argued as follows. The issue for the Tribunal was whether or not the applicant was of homosexual orientation and would face harm for this reason if he were to return to Bangladesh. The applicant asserted that “sexual identity is not to be understood as confined to engaging in particular sexual acts” (S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473 at [81] per Gummow and Hayne JJ). The Tribunal in the current case focussed on homosexual sex, and not on other aspects of the applicant’s relevant activity and relationships.
The applicant reviewed the Tribunal’s decision record in an attempt to make good this proposition. First, at [85] (at CB 531) of the Tribunal’s decision record, the Tribunal accepted that the applicant and “Mr H” were friends, that they lived together, shared expenses, opened a joint bank account and engaged in certain social activities together.
Second, at [86] (at CB 531), the Tribunal also accepted that they attended the Sydney Gay and Lesbian Mardi Gras together, and other activities, organised by a group called “Trikone”.
Third, at [88] (at CB 531 to CB 532), the Tribunal accepted that the applicant and Mr H had had sexual intercourse on one occasion, (the applicant’s representative had provided photographs of this to the Tribunal (CB 508)).
The applicant’s submission was, that in the circumstances, it was unreasonable for the Tribunal to find that the applicant was not a homosexual. That unreasonableness was also said to be evident in the way the Tribunal found adversely to the applicant’s credibility in a number of matters, including ([6] of the applicant’s written submissions):
“…Sexual Experiences in Bangladesh…
…Relationship with Mr [H]…
…Other sexual experiences in Australia…
…The applicant’s lack of awareness about Mr [H]’s educational and work histroy…
…Mr Rabbi… [a former flatmate of the applicant and Mr H, and also a citizen of Bangladesh.]
…2013 Mardi Gras and Mr Rabbi’s car…”
[Errors in the original.]
The applicant’s submission was that there is a difference between not believing the applicant’s evidence that he is a homosexual on the one hand, and making a “positive” finding about the applicant’s sexual orientation, on the other hand. The applicant’s argument was that the unreasonableness of the Tribunal’s decision is revealed in the circumstances because the Tribunal did the former, and not the latter.
In relation to Dr Andrews, and the second particular to ground one, the applicant submitted as follows. Dr Andrews is an accredited mental health social worker, with 22 years experience. He had clinical and research expertise in relation to the relationship concerns of gay men and male couples.
In his report (see in particular CB 199 to CB 200), Dr Andrews gave evidence as to the relationship between the applicant and Mr H, based on his observations and interview of them, and stated that the relationship transcended just the sexual aspects of a relationship. Again, the applicant sought to rely on the distinction outlined above as to the difference between sexual activity, and the broader aspects of a relationship.
In this context, the applicant referred to the second of Dr Andrew’s reports, and in particular, [11] and [12] (at CB 422). The applicant emphasised as follows:
“[11] I believe the discussion of Mr [H]’s sexual encounter on Mardi Gras night and their difficulty in discussing sexual matters were truthful, spontaneous and unrehearsed descriptions of the reality of their lives. Mr [H] could have chosen not to mention the above incident, especially as it goes against the description of their relationship as monogamous and it was only three days since he had revealed it to Mr [H]. The fact that he did mention the incident, his description was rich in specific detail and that is does not show him in a good light is important and makes his story plausible. This sort of impulsive action, and the guilt stricken admission and apology is not an uncommon scenario told to clinicians working with gay men and male couples. It does not make me doubt the men’s claims to be in a monogamous relationship. Rather it feels like a normal incident many male couples might face and work through at various times in their life.
[12] I saw the initial difficulties the men had in discussing their sex lives with me as more likely the result of cultural factors such as shyness and privacy rather than untruthfulness. The information I got through persistent questioning was believable in its unique particulars For example they could have made one person the insertive partner in anal sex all the time or they could have said they never use condoms or use them 100% of the time.”
Consideration
In all, therefore, in relation to ground one, the applicant’s argument is that the Tribunal relied on findings of inconsistency in the applicant’s claims, that led it to find adversely to his credibility. The applicant asserted that the Tribunal unreasonably found that he was not a homosexual, based on these inconsistencies, rather than taking into account its findings where it accepted aspects of the relationship with Mr H, and rejected “out of hand” the evidence of Dr A. That is, there was no basis, in all the circumstances, for the Tribunal to be “perfectly satisfied” that the applicant was not a homosexual.
It must be said that I agree with the Minister that ultimately, by ground one, the applicant seeks to cavil with the Tribunal’s adverse findings as to the applicant’s credibility. The task before the Tribunal was to review the delegate’s decision, and to consider whether the applicant’s claims satisfied, or did not satisfy, either of the criteria at s.36(2) of the Act.
In light of the applicant’s submissions, it is important to note that it was not for the Tribunal to “prove” that he was not a homosexual, or to “disprove” that he was. The relevant test is one of satisfaction of the relevant criteria for the grant of a protection visa (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225, NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
At the heart of the applicant’s claim to fear harm on return to Bangladesh, was the claim that he was a homosexual. The Tribunal found that he was not a homosexual, that he did not practice homosexuality and that he had not been in a homosexual relationship with Mr H. The Tribunal considered the photographs submitted by the applicant, and accepted that he and Mr H had had sex on one occasion, but that this did not establish the applicant was a homosexual. The Tribunal found this conduct was engaged in for the sole purpose of strengthening the refugee claim (see [88] at CB 531 to CB 532). The finding that he was not a homosexual was plainly central to the Tribunal’s decision. That finding was informed by a number of antecedent findings, arising from the Tribunal’s evaluation of all the evidence before it, and in particular, the applicant’s own evidence. Those findings were reasonably open to the Tribunal on what was before it.
The applicant’s argument now reduces to one point. That is, it was unreasonable of the Tribunal to find as it did, in light of the evidence and the finding, that the applicant had engaged in one act of homosexual sex, and Dr A’s report.
The applicant’s submissions as to the relevant test for establishing jurisdictional error based on unreasonableness referred, initially to SZMDS (per Crennan and Bell JJ at [128]). The applicant’s submission was that their Honours in SZMDS applied a “modified” version of Wednesbury unreasonableness. That is, that to be found unreasonable, the state of satisfaction to which the relevant decision maker arrives must be one to which “no rational or logical decision maker could arrive on the same evidence” (applicant’s written submissions at [22] (first)). [It appears that the applicant’s submissions have been renumbered from “22”, so for convenience the first will be called “[22] (first)” and the second, “[22] (second)”.]
I respectfully note what their Honours said at [130] – [131] of SZMDS. Added to this is what Heydon J said at [78] of SZMDS (a part of the plurality in that case).
The applicant further submitted that the plurality in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”) (Hayne, Kiefel and Bell JJ), “suggested a new way of looking at unreasonableness” (applicant’s written submissions at [22] (second) – the two dot points):
“- At [76] Unreasonableness “is a conclusion which may be applied to decision which lacks an evident and intelligible justification”; and
- (after considering the role of the Tribunal) concluded at [85] that although it is not possible to say which error has been made, the “result itself bespeaks error”.”
The applicant understood that Li concerned the exercise of a statutory discretion (in that case whether or not to adjourn the review), but that the reasoning there could be applied to the current case.
It is not necessary, in the circumstances of this case, to explore any argument that Li has created a new way of looking at unreasonableness. This is because, in the circumstances of this case, no matter how the test for unreasonableness is expressed, it is not made out in the circumstances of this case. The Tribunal’s findings were reasonably open to it, they were probative of the evidence, and in circumstances where minds may differ as to the explanation, no unreasonableness is made out (SZMDS at [130] – [131]). Further, the “intelligible justification” for the Tribunal’s conclusion is amply demonstrated in its analysis.
The Tribunal’s decision that the applicant did not satisfy either criteria at s.36(2) of the Act for the grant of a protection visa, arose from the central finding that he was not a homosexual. That conclusion was based on a large number of antecedent findings, all reasonably open to the Tribunal on what was before it. The “intelligible justification” for the Tribunal’s decision, was the explanation that it gave for each of these findings and the weight it gave to the accretion of these findings, in its analysis. The applicant may now be aggrieved with the Tribunal’s findings and conclusions but that, as the Minister submits, in the circumstances, does not rise above a challenge to the merits of the Tribunal’s findings and conclusion.
As to Dr Andrew’s evidence, the Tribunal did not ignore, or reject, the evidence, as is implicit in the applicant’s submissions now. Rather, the Tribunal found that “significant weight” could not be attached to it because of inconsistencies in the report itself, and inconsistencies between Dr Andrews’s record of what the applicant and Mr H told him, and their evidence to the Tribunal.
Finally, the Tribunal’s disbelief of the applicant’s central claim and matters relevant to it were findings of fact within its jurisdiction (Durairajasingham). In all ground one is not made out.
Consideration: Ground 2
Ground two asserts that in assessing the applicant’s credibility, the Tribunal applied the wrong standard of proof. The ground is not particularised.
Before the Court, the ground was explained again in the context of unreasonableness, and as follows. In essence, there were “no positive facts” before the Tribunal for it to find “the negative”, and make a finding of disbelief that the applicant was not a homosexual. In this light, therefore, there was no basis for the Tribunal to not reach the requisite level of satisfaction, such that the protection visa must be granted.
In his submissions, the Minister also noted related submissions made by the applicant’s representative to the Tribunal, concerning the assessment of credibility in “sexual orientation claims” (see the applicant’s representative’s submissions at CB 497 to CB 500). In essence, the representative’s submissions were that the Tribunal should apply the standard of proof deriving from Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (“Briginshaw”).
The Tribunal considered this submission (see [25] at CB 521). The Tribunal found that the representative’s argument was not supported by relevant authority (see the various authorities referred to at [25] at CB 521: Ngaronoa v Minister for Immigration and Citizenship [2007] FCAFC 196; (2007) 244 ALR 119 at [12], Kumar v Minister for Immigration & Multicultural Affairs [1999] FCA 156 at [35], SCAN v Minister for Immigration [2002] FMCA 129 at [10], SZRKN v Minister for Immigration & Anor [2012] FMCA 1021 at [32]-[33], DZACE v Minister for Immigration and Citizenship [2012] FCA 945, Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22 (1997) 191 CLR 559 and Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220).
I cannot see error in the Tribunal’s approach in this regard. The representative’s submissions did not address the matter of the difference in the proceedings which were the subject of the “Briginshaw standard”, and the nature of the proceedings before the Tribunal. That is, in Briginshaw, the proceedings were adversarial, and required an assertion of fact, in those circumstances, to be “proven” to a particular standard. The proceedings before the Tribunal were not adversarial, but inquisitorial. In these circumstances, there is no opportunity for a contradictor to be involved (see Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [187]).
In this context also, before the Court, the applicant referred to NAOX v Minister for Immigration and Citizenship [2009] FCA 1056 (per Spender J), where the Court found that a finding by the Tribunal in that case (that the applicant was not homosexual), was an attempt by the Tribunal to “bullet proof” its conclusion that it could not reach the requisite level of satisfaction, such that the protection visa must be granted, by relying on a “negative”. That is where there is no basis for that finding.
However, in the current case, in my view, and as set out above, there was a basis for the Tribunal’s central conclusion. As set out above, the Tribunal’s conclusion, and it’s antecedent findings informing that conclusion, were reasonably open to it on the material before it, and arose from a reasonable evaluation by the Tribunal of all the evidence and submissions before it. In all, ground two is not made out.
Conclusion
The grounds of the application are not made out. It is appropriate to dismiss the application. I will make an order accordingly.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 6 February 2015
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