SZUTY v Minister for Immigration
[2015] FCCA 1379
•26 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUTY v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1379 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal fell into jurisdictional error on a number of bases including unreasonableness, failing to take into account relevant information, denial of procedural fairness and failing to decide whether the applicant faced a real chance of persecution – no jurisdictional error found – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 422B, 430, 476 |
| Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362 Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 |
| Applicant: | SZUTY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2031 of 2014 |
| Judgment of: | Judge Smith |
| Hearing date: | 17 March 2015 |
| Date of Last Submission: | 17 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 26 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Ahmad |
| Solicitors for the Applicant: | Lex Fori Lawyers |
| Solicitors for the Respondents: | Mr M. Alderton, Mills Oakley |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2031 of 2014
| SZUTY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application under s.476 of the Migration Act 1958 (“Act”) in respect of a decision of the second respondent (“Tribunal”) affirming a decision of a delegate of the first respondent (“Minister”) to refuse to grant the applicant a protection visa.
In broad terms, the issues in the application are whether the Tribunal fell into jurisdictional error: in the nature of legal unreasonableness, by failing to take into account relevant information, by denying the applicant procedural fairness or by failing to answer the question posed by s.36(2) of the Act. At the heart of the applicant’s case is the argument that, in attempting to address the applicant’s claim to be a homosexual, the Tribunal paid no attention to the nuances of that claim and, in particular, to the fact that the applicant’s sexuality was not necessarily one that required any expression. For the reasons that follow the Tribunal fell into none of the errors alleged by the applicant and the application will be dismissed.
Background
The applicant is a citizen of Jordan who initially arrived in Australia on 15 February 2011 as the holder of a student visa. On 26 April 2013 he applied for a protection visa. His claims in support of the application were summarised by the Tribunal as follows:
5.The applicant claimed that he came to Australia because he was gay and knew the country was gay-friendly. He first felt that he was gay when he was 17 and had a relationship with a Sudanese boy from school for which he was expelled, although the excuse given was because he was smoking during Ramadan. He was motivated to leave the country as soon as possible and at the age of 26 applied to come to Australia.
6.He had his first relationship in Australia with a Malaysian who left the country in September 2011. But after that did not undertake any activity because he used to work with Jordanians to whom it was impossible to reveal himself.
7.He also had a relationship with a Jordanian with whom he used to live for more than six months but then in late 2011 the other person finished his studies and left the country. After the other person left he lived with 3 other Jordanians in the apartment. The applicant went back to Jordan to visit his family due to the stress of keeping his secret. There his family said he would be married after he had finished his study. He returned to Australia.
8.He had moved to Ryde and revealed his homosexuality to a friend who was supporting. He found out about a gay and lesbian community group and had an appointment with them to talk about issues sometime in May 2013. He had been to some gay clubs but only did this by himself and he was afraid of being seen by people he knew going into them.
9.If he returned to Jordan he would be forced to marry, which he would refuse and he would then have to reveal to the family that he was gay and as a result he would be shunned and tortured and the government would not stand in their way. His mother had sent him two Facebook messages in April regarding his impending marriage to his uncle’s daughter, as well is one from his father about the same issue.
10.There is a space for gays in Jordan called Jabal Amman, however it is very small but very secretive.
On 13 November 2013 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The basis of that decision was that the delegate did not accept that the applicant was a homosexual.
The applicant applied to the Tribunal for review of the delegate’s decision. In support of that application the applicant’s lawyer lodged a number of submissions with the Tribunal together with documents purporting to corroborate his claims. Amongst these were statutory declarations by two friends of the applicant who said, amongst other things, that the applicant had “opened up to” them.
The applicant attended a hearing conducted by the Tribunal on 29 May 2014. At the hearing, the applicant gave evidence in support of his claims and two witnesses also gave evidence. After the hearing the applicant’s lawyers submitted further documents including a copy of a translation of a letter from the applicant’s school concerning his dismissal.
On 16 June 2014 the Tribunal made a decision to affirm the decision of the delegate.
Tribunal’s decision
The Tribunal found that the applicant’s evidence regarding his claims lacked credibility and that the applicant was not a reliable, credible or truthful witness and had fabricated his entire claim in order to be granted a protection visa.
The Tribunal did not accept that the applicant was or would be considered a homosexual. The reasons for that conclusion included:
a)the applicant had not had any contact with, or seek to have contact with, the gay community in Sydney and did not seek to explore or express his alleged homosexuality in any way since being in Australia;
b)the teacher at the applicant’s school would not have imputed any homosexuality to the applicant because he held hands with a friend given that such conduct was largely acceptable in Arab culture and not indicative of sexual orientation;
c)the claim that the applicant was expelled for his alleged homosexuality was inconsistent with the letter given to the Tribunal in that respect which concerned a range of reasons including late arrival at school, absence from school, truancy, aggressive behaviour and smoking during Ramadan on school grounds;
d)the applicant displayed a singular lack of interest in doing any research into homosexuality in Australia or to engage with the community with in any way;
e)the claimed relationship with the applicant’s friend from Jordan was not accepted because first, it appeared very coincidental and secondly, the applicant had no record of any interaction with the person; and
f)no weight was given to the evidence of the applicant’s witnesses because they could shed no light on any aspect of his homosexuality as both had simply stated that he had told them he was gay.
The Tribunal rejected the applicant’s claim concerning the arranged marriage in Jordan because there was no correspondence between the applicant and his proposed spouse or his family and the applicant provided no images of his future spouse.
In addition, the Tribunal found that the delay in making an application for a protection visa until the day before his student visa was to expire was not indicative of someone who feared serious harm.
On the basis of those findings, the Tribunal concluded that the applicant did not satisfy the criteria for the grant of the protection visa and so affirmed the decision of the delegate to refuse to grant the applicant that visa.
Consideration
At the hearing, the applicant sought and was granted leave to rely on an amended application. He also relied on an affidavit of John Fasha sworn 9 March 2015 which annexed a transcript of the Tribunal’s hearing on 29 May 2014.
Ground 1
The first ground of the amended application is that the Tribunal fell into jurisdictional error in the nature of legal unreasonableness by finding that the applicant did not belong to a social group. The focus of this ground is at [43] to [47] and [50] of the Tribunal’s statement of reasons prepared under s.430 of the Act. The applicant argues that those paragraphs were essential to the Tribunal’s ultimate finding about the applicant’s homosexuality and that that ultimate finding was unreasonable for a number of reasons. He submitted that no reasonable decision maker could have rejected the applicant’s claim to be homosexual.
During the course of argument, Counsel for the applicant added to this ground by relying on the decision of the Full Court of the Federal Court in Minister for Immigration & Citizenship v SZLSP (2010) 187 FCR 362 (“SZLSP”). In particular, he argued that there was no evidence on which the Tribunal based its findings rejecting the applicant’s claimed homosexuality and that the Tribunal had appointed itself the arbiter of homosexuality.
The Minister submitted that none of the matters relied upon by the applicant was either illogical or irrational and, in any event that the ground was misconceived because “unreasonableness” applies only to determining the validity of discretionary decisions rather than the fact-finding leading to those decisions.
The relevant passages in the Tribunal’s reasons are:
43.I do not accept that the applicant is, or would be considered a homosexual. There is nothing in his behaviour that indicates that he has any contact with, or seeks to have contact with the gay community in Sydney or that he has sought to explore or express his alleged homosexuality in any way since being in Australia.
44.I found his account of what he claimed was his single homosexual experience in Year 11 at school to lack credibility. I am not satisfied that a teacher at the school imputed a homosexual relationship between two male students simply because they were holding hands, given that this is largely acceptable in Arab culture, and not indicative of sexual orientation.
45.While I accept that the applicant was expelled from school for a year, I also do not accept that he was expelled because of an alleged homosexual incident but that the reason given was because he was smoking during Ramadan. This claim is inconsistent with the letter the applicant post-hearing from the school disciplinary board that advised him of his expulsion for a range of reasons including late arrival at school, absence from school, truancy, aggressive behaviour towards a teacher and smoking during Ramadan on school grounds.
46.He has displayed a singular lack of interest in doing any research into homosexuality in Australia or to engage with the community in any way. When he knew he was coming to Australia he failed to show any interest in making contact with the gay scene; this is particularly unusual given his command of English and his IT qualification. Although he claimed that he was unable to use the internet because he had to share the computer at home with his siblings he never made any attempt to seek an internet cafe to engage in private research.
47.Although he claimed that he wanted to study overseas so he could explore his sexuality, he has not provided the Tribunal any evidence of any conduct or activities which might be demonstrative of this. Although there is no test to determine whether someone is gay or not, the Tribunal notes that the applicant has not joined any gay organisation, nor sought out any support groups and was unaware of an Arab gay community based out of Melbourne that was accessible on the internet during his time here.
…
50.I do not accept that he has failed to interact with the gay community in Australia because of his uncertain immigration status would not be fair on a future partner and he was not interested in short-term relationships. The applicant has made no effort to interact in any way with the community or to express himself as a homosexual in the myriad of ways short of a full-time relationship. He never sought to make friends, attend talks, join groups, volunteer or any activity that may have allowed him to give expression to his homosexuality which he claimed was his motivation for coming to Australia in the first place.
The first complaint of any note made by the applicant is that there was no evidence before the Tribunal to support what behaviour was consistent with being homosexual. The complaint is misconceived at a number of levels. First, the Tribunal did not purport to apply any test; indeed, it stated expressly, at [47], that there was no such test. Here, the Tribunal did not ask the applicant questions in the expectation that only one correct answer could be given and that an incorrect answer would be inconsistent with his claims. Rather, the Tribunal asked questions of the applicant designed to elicit information that might be consistent with being homosexual, such as socialising, community engagement, or any type of activity. This was not a tick-a-box approach to the review and each of the applicant’s answers did not, by itself count against the applicant. Rather, it was a combination of all of the answers that led the Tribunal to conclude that the applicant was not homosexual.
Importantly, those matters included both a general lack of activity in Australia, evidence about two homosexual relationships, and evidence about his expulsion from school for homosexual conduct. The applicant seeks to isolate the findings about his inactivity in Australia from the other findings, but to do so would be to misunderstand the Tribunal’s reasons. The applicant’s argument also overlooks the important fact that the applicant claimed to want to explore his sexuality overseas, studied abroad for that purpose and then travelled to Australia because of the openness of society here. Those matters provide a logical basis for both the Tribunal’s questions and the conclusions drawn from his answers.
In my view, the decision in SZLSP does not assist the applicant.
In SZLSP Kenny J explained the relevant principles in the following passages:
[38]Absent an explicit statement in the Tribunal’s reasons that an applicant must meet a particular standard of knowledge to establish that he is a follower of his claimed religion, it may not always be possible to distinguish a potentially illegitimate a priori approach from a legitimate exploration of an applicant’s knowledge. As the analysis in WALT and SBCC demonstrates, the Tribunal’s reliance on other factors besides its evaluation of an applicant’s knowledge will typically be a strong indicator that the Tribunal has conducted a legitimate exploration rather than made a determination by reference to a preconceived minimum standard of knowledge. Even where the Tribunal relies primarily on its evaluation of the applicant’s answers, however, it will not necessarily run into jurisdictional error. As the authorities emphasise, there is nothing objectionable in the Tribunal questioning an applicant about his or her beliefs. When the Tribunal does so, it is not prohibited from evaluating the applicant’s answers against probative material evincing the doctrines of the religion in question, and the weight to be given to that evaluation will generally be a matter for the Tribunal.
[39] If the Tribunal is to avoid jurisdictional error, however, certain qualifications must be added to the preceding statements. Where the Tribunal rejects an applicant’s claim based on perceived deficiencies in the applicant’s knowledge of religious doctrine, there must be a basis for concluding that the particular elements of doctrine in question are elements that an adherent to the religion in the applicant’s position might be reasonably expected to know. If this condition is satisfied, and the applicant is wholly ignorant of the relevant doctrinal elements, it will be a short step to infer that the applicant is not a follower of the religion as he or she claims. Where the Tribunal’s material and the applicant’s answers differ in matters of expression, emphasis or detail, however, the issue becomes more complex. In these circumstances, the perceived variations between the Tribunal’s material and the applicant’s answers must be such that there is a logical connection between those variations and the conclusion that the applicant is not an adherent of the religion. Depending on the facts of a particular case, trivial variations in detail or superficial differences in expression may not rationally justify the conclusion that an applicant’s knowledge is less than would be expected of a genuine adherent. Under such circumstances, jurisdictional error is a possibility.
The error found, by majority, to have been made in that case was that the Tribunal’s conclusion that the applicant’s answers about specific elements of Falun Gong beliefs were not correct was not grounded in probative material and logical grounds. That is entirely different to the error asserted in this case. Further, as noted above, the reasons for which the applicant claimed to have come to Australia provided a logical basis for the Tribunal’s conclusions.
Secondly, the Tribunal does not need to have rebutting evidence before it in order for it to be able to assess whether or not an applicant is a homosexual. It is a matter for the applicant to put forward whatever claims and evidence and arguments that he wishes in order to support his application to be recognised as a refugee and it is then a matter for the Tribunal to determine whether or not it accepts those claims based upon whatever evidence it has before it. In light of that, it was entirely legitimate for the Tribunal to have tested the applicant by reference to his familiarity with and interest in the homosexual community in Australia: Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431 at [61] and [65].
The next particular is that, at [46] of its reasons, the Tribunal made perverse assumptions about the degree of interest a homosexual with IT qualifications would have with the Australian “gay scene”. This complaint is based on a misunderstanding of the Tribunal’s decision. On a proper reading of the relevant paragraph, the Tribunal only referred to the applicant’s training in IT in relation to its consideration of the applicant’s failure to conduct internet research into homosexuality in Australia as well as his claim that he could not do so because he shared an email address with his mother. A person’s knowledge of IT has a logical bearing upon that person’s ability to conduct research on a computer. Thus, this complaint does not support the ground in the application.
The next particular is that the Tribunal relied upon an article to reject the incident identified by the applicant that led to his being expelled from school. The applicant asserts that the article noted that such gestures were becoming dated. In fact, the article, which was in evidence before me, says no such thing about Jordan. Further, the submission did not go so far as to say that it was not open for the Tribunal to infer from the article that holding hands was acceptable in Arab cultures and did not identify those engaged with any particular sexuality. For that reason, the particular does not support the ground.
The next particular is that the Tribunal failed to take into account the applicant’s explanation for the fact that the letter from the school concerning his dismissal did not include any reference to homosexuality. Even if that were true, it would not found any relevant unreasonableness, illogicality or irrationality. However, it is not true. The Tribunal was not obliged anywhere in its statement of reasons to make findings about each and every one of the applicant’s arguments as to why certain evidence should be accepted. Its obligation in that respect, as imposed by s.430 of the Act, does not go so far: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405. For both those reasons this particular is rejected.
The final five particulars of the first ground are also based upon assertions that the Tribunal failed to take into account certain matters. Those particulars are rejected for the same reason as the previous particular. It is clear that, rather than focusing upon the legality of the Tribunal’s decision in this respect, these particulars reflect a simple disagreement with the Tribunal’s conclusion about the applicant’s credibility. Such disagreement cannot form the basis for the exercise of power by this Court under s.476 of the Act.
In light of these conclusions it is unnecessary to consider the first respondent’s submission that “unreasonableness” applies only to determining the validity of discretionary decisions rather than the fact-finding leading to those decisions. Certainly, the reliance by the applicant in his submissions on the decision in Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 reveals some lack of clarity in his approach to this ground. Nevertheless, it is a controversial proposition that issues relating to reasonableness can never arise in the exercise of powers that are not discretionary. Although it may be a difference in principle or simply one of terminology, a decision may be open to review on the basis that it is “illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds”: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [52] per McHugh and Gummow JJ.
Ground 2
The second ground in the amended application is that the Tribunal failed to take into account relevant considerations. It is asserted that the Tribunal failed to take into account matters such as the applicant’s expressed personal view of homosexuality as having a life partner, the evidence of the two witnesses to the effect that the applicant had told them he was a homosexual, the applicant’s expressed choice to live a gay life with a degree of privacy, his expressed fear of members of the Jordanian community discovering that he was homosexual, and the reasons given by him to the delay in lodging the protection visa application.
It may be accepted that the failure by a decision-maker to take into account a relevant consideration (in the sense of a matter that he or she is required to take into account) may amount to jurisdictional error: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed). It may also be accepted that the failure by the Tribunal to consider corroborative evidence might constitute jurisdictional error: Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99.
However, the applicant’s submissions in support of this ground extend beyond those matters and include assertions that there was a denial of procedural fairness and that it was not open to the Tribunal to give corroborative evidence no weight because those witnesses’ credibility had not been destroyed by stark findings of untruthfulness and there was no cogent material to support a conclusion that they had lied. The applicant relied in this respect on WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568. In that case, Moore and Lee JJ said:
[26]The Tribunal determined the matter adversely to the appellant by disregarding the documents it had been directed to consider by the order made by consent in this Court, stating that the documents “do not overcome the problems I have with the applicant’s evidence”.
[27]Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material. (See: S20/2002 per McHugh, Gummow JJ at [49]). Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the Tribunal in assessing the credibility of an applicant’s claims. However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error. (See: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ at [82]-[85]).
[28]This appeal did not involve a case in which the credibility of the appellant had been destroyed by stark findings of untruthfulness. The Tribunal accepted that in her youth the appellant had distributed “MKO” newsletters at university and that her brother had engaged in similar activities and had been killed in unexplained circumstances. The Tribunal accepted that the appellant believed that the security forces had been responsible for the death of her brother.
The applicant relies on that case for the proposition that the evidence of a corroborating witness can only be set to one side if there are stark findings of credibility about that witness. However, as the passages set out above reveal, the case does not stand for that proposition. Thus, even if the Minister were wrong to argue that the decision had been superseded (see SZQYU v Minister for Immigration & Citizenship [2012] FMCA 1114), WAIJ does not assist the applicant.
Whatever may be the particular category of jurisdictional error relied upon by the applicant the difficulty that he faces is that the underlying factual assertion that the Tribunal failed to take something into account is wrong. In its statement of reasons the Tribunal referred to each of the matters said by the applicant to have been ignored or overlooked:
a)the applicant’s evidence about his view of homosexuality as having a life partner was referred to at [21];
b)the evidence of the two witnesses was set out at [36];
c)the claim that the applicant chose to live a gay life with a degree of privacy was dealt with in several instances by the Tribunal at: [49], [50];
d)the Tribunal dealt with the applicant’s claim that he feared if members of the Jordanian community discovered that he was a homosexual at [51]; and
e)the Tribunal dealt with the applicant’s excuses for delaying in applying for a protection visa at [57].
The highest that the applicant’s argument reaches is that the Tribunal was wrong to say, at [54], that his witnesses could shed no light on any aspect of his homosexuality “and both simply stated that he had told them that he was gay.” The first witness’s statutory declaration included the following statement:
… However, it became apparent that (the applicant) wasn’t shy, he was disinterested. I even noticed that (the applicant) would portray more interest when meeting someone of the same sex. … All his friends seemed to be male.
The second witness’s statutory declaration stated:
Each time I would try and convince (the applicant) to get together with one of the girls that I would bring along. (The applicant) refused to date any of the girls and would even question why I was trying to introduce him to someone.
At the Tribunal hearing, the first witness relevantly said:
We’ve been out on many occasions and ah, at one stage I was thinking, because in many occasions he doesn’t seem to be interested in the other sex.
And
[Tribunal]: O.K. And so have you seen him in any kind of homosexual environments, being a member of any associations or …
[Witness 1]:Not that I know of, I don’t know.
The second witness’s evidence included the following:
[Tribunal]:Sorry. And have you, are you aware if he has any contact with the gay community either physically or online or in any way, shape or form?
[Witness 2]:No, I was just told this is his sexuality and again because he doesn’t want people to find out, obviously because it’s a difficult situation and again he came to me in secrecy and I didn’t say anything. I didn’t question it, we don’t really discuss it ah, in conversation but um, no, I am not aware of that.
These passages reveal that the witnesses did say more, although not much more, than that the applicant had revealed to them that he was homosexual. It is also possible to say that the witnesses’ observations about the applicant’s conduct around women could shed some light on the applicant’s sexuality. That would depend on assumptions about the conduct of homosexuals in those circumstances, or indeed, about the way in which heterosexuals or people of other sexualities might behave in those circumstances. On that view, part of the reason given by the Tribunal for assigning no weight to this evidence was wrong. If that is the case, the question is whether that demonstrates jurisdictional error.
Subject to manifest unreasonableness, it was a matter for the Tribunal to determine the weight to be given to the material it considered: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J; Abebe v Commonwealth (1999) 197 CLR 510 at [197] per Gummow and Hayne JJ; Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164 at [33]. As with any general statement of principle, this is subject to some qualification. It may be, for example, that the failure to give weight to corroborative evidence will constitute jurisdictional error in circumstances where that evidence was critical to the applicant’s claims and the rejection of it was central to the rejection of those claims: see Minister for Immigration & Border Protection v CZBP [2014] FCAFC 105 at [91]-[92] (“CZBP”).
CZBP bears some resemblance to the decision of Robertson J in SZRKT in which his Honour found that the Tribunal had fallen into jurisdictional error by failing to consider evidence. His Honour held, at [111], that the fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error and, at [112] having referred to VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77], that the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims.
In spite of the reference to “cogency” (a word which is usually relevant to the weight to be ascribed to evidence), his Honour’s reasons were not, of course, an invitation to review the merits of the Tribunal’s decision. The difference between this case and both SZRKT and CZBP is that the evidence of the witnesses about their observations of the applicant in connection with women was not central to the matter or matters which founded the Tribunal’s rejection of the applicant’s claims and were not particularly cogent. For those reasons, even if the Tribunal had overlooked that evidence and proceeded on a false factual assumption, it did not amount to jurisdictional error.
However, I consider that the better view of the Tribunal’s reasons is that it did not overlook that particular aspect of the witnesses’ evidence. First, as already noted, the Tribunal made specific reference to it in its reasons. It can be taken from that the Tribunal considered the evidence. Secondly, the evidence was not such that the failure of the Tribunal to expressly analyse it overcomes that conclusion. Thirdly, when seen in the context of the evidence given at the hearing it is sufficiently clear that the Tribunal meant to say that the evidence did not shed any light on the applicant’s involvement or interest in the homosexual community. On that basis, the Tribunal was clearly correct.
For each of those reasons the second ground is rejected.
Ground 3
The third ground is that the Tribunal denied the applicant procedural fairness in concluding that the applicant was not a homosexual without allowing the applicant the opportunity to “freely respond” to assertions that his behaviour was not consistent with the Tribunal’s notions of homosexuality.
This ground relies upon one brief passage in the transcript of the hearing of the Tribunal. However, when read in context, that short passage does not support the ground. The surrounding passages reveal that the Tribunal first outlined its concerns with the applicant’s evidence and claims and then gave the applicant an opportunity to address those concerns. What the Tribunal was doing at Q263 was simply an attempt to obtain a focused response to those concerns rather than to prevent the applicant from addressing them. The relevant passages are:
Q262If you'd just like to address my concerns ..... rather than .....
AYeah, yeah, it's, it's, it's in regards to your concerns. For the first, for the first ah, for your first concern, I will address it this way. Say I know for like a Catholic priest, they're not allowed to get married, all right, so let's say I'm a priest and - - -
Q263No, sorry, no, don't, don't address it obtusely, just, or by analogy, I've raised concerns about your lack of behaviour so can you address that?
ABut ah, why I'm saying it this way is just to, to clarify my point why I, why I stay in this country for that long, I didn't express myself while I had the resources and I had, I'm living as you said in one of the most gay-friendly cities in the world.
Q264Just tell me directly rather than by analogy.
AI already told you that it is because there was and still there is no point to seek a relationship or a partner while you don't know what's your future as, your very, your very upcoming future, the, the very next coming months, you don't know what's your situation, I don't know what's my situation. Why, it's like I won't appreciate it if someone drag me into a relationship with him while he's dealing with something like this because I will suffer from that as his partner. So what I can't do, what I can't accept of myself .....
Q265And the issue of the delay in your, in asking for protection?
AI wasn't aware and I wasn't after a protection visa when I first came to Australia. As I knew beforehand that as an international student, that's why I choose the full-time student thing, once you finish your, once you commence your study for two years and you stay in this country for two years as a full-time student, after getting your degree you can apply for the PR, and that, that was the option for me. After that then when my visa was about to, like, my time is running out, so I had to think of my options, all right, going back is not an option, I was thinking to myself like going back is not an option, what you should do about it. Then I did my research about what should I do, I find about the protection visa, then when I lodged the application.
Q266Yeah, but you haven't been a student since October 2011 so you - - -
AYeah.
Q266- - - weren't going to be eligible for permanent residency because you weren't studying - - -
ABut - - -
Q266- - - and you hadn't studied for the, for the two years. So you'd elected to pull out, then you went back to Jordan, wow, this thing happens, surely you'd start your research as soon as you came back? You know, you're well-educated, you've got an IT degree, Internet is your, is your game.
AAh hmm.
Q267Why didn't you start researching and finding out what are my options, I might not necessarily enact my options but the fact that you'd stopped studying meant that you were never going to be granted permanent residency.
AI did look at that, my options at that time, but I was looking in, in the eyes of a student. So I enrolled in a college, so in case my visa ..... get terminated, but because I'm not going to the uni at that time, I wasn't going to the uni at that time due to financial problems, so I had to enrol in something else, I enrolled in a college here in the city and I believe I still have the confirmation of - - -
Q268Did you attend any of the courses?
ANot to be honest.
Q269So you weren’t a student. So … just enrolling in something doesn’t make you a student.
AThat’s true.
In my view, these passages show that the Tribunal squarely raised the matters of the conduct of concern with the applicant and gave him every opportunity to address those concerns. In doing so, it complied with its obligations under s.425 of the Act and, in light of s.422B, that was the extent of its obligation to afford procedural fairness to the applicant in respect of those matters.
Ground 4
The fourth ground is that the Tribunal erred by making a preliminary conclusion about the applicant’s purported homosexuality and failing to decide the question presented by s.36(2) of the Act namely, whether the applicant faced a real chance of persecution. The applicant’s submissions elucidate the ground as being that the applicant failed to account for the individualised experience of membership to a particular social group relying on the judgment of McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473.
This ground and the submission in support of it must be rejected because, rather than overlooking the applicant’s individual experience, the Tribunal rejected that experience. Once the Tribunal had found that the applicant was not a homosexual the issue of whether or not that the Tribunal had failed to take into account the applicant’s individual experience or had simply acted on the basis of the generalised experience of homosexuals is irrelevant. Simply put, the Tribunal’s conclusion was that the applicant was not a member of a particular social group and, for that reason, any harm that might befall a member of such a group or any harm that he claimed might befall him on his individual circumstances had no basis in fact.
Conclusion
There is no jurisdictional error in the decision of the Tribunal and the application will be dismissed with costs.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 26 May 2015
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