SZVGQ v Minister for Immigration
[2016] FCCA 73
•15 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVGQ v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 73 |
| Catchwords: MIGRATION – Review of decision of former Refugee Review Tribunal – refusal of a protection visa – applicant claiming persecution in India because of his homosexuality – applicant not believed – whether the Tribunal breached s.424A of the Migration Act 1958 (Cth) or misunderstood the applicant’s particular social group claim considered. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.424A, 424AA |
| Dranichnikov v Minister for Immigration [2003] HCA 26; (2003) 197 ALR 389 MZXJA v Minister for Immigration [2007] FMCA 375 |
| Applicant: | SZVGQ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2833 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 4 December 2015 |
| Delivered at: | Sydney |
| Delivered on: | 15 February 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones of Parish Patience Immigration Law |
| Counsel for the Respondents: | Mr H P T Bevan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari shall issue removing the record of the former Refugee Review Tribunal decision made on 18 September 2014 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to redetermine the review application before it according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2833 of 2014
| SZVGQ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
Introduction and background
This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 18 September 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from India and had made claims of persecution based upon his asserted homosexuality. He applied for the protection visa in Australia on 3 April 2013[1]. A delegate of the Minister refused that application on 16 December 2013[2]. The applicant sought review before the Tribunal on 19 December 2013[3]. The Tribunal was unable to make a favourable decision on the papers and invited the applicant to appear before it, which he did, on 31 July 2014. The Tribunal had credibility concerns about the applicant’s claim. Those concerns extended to his evidence about his sexual activity in India, his evidence about steps taken to meet other homosexuals after his arrival in Australia, his evidence about his activities after meeting a person who was a witness in support of his claims, his evidence about his fear of the Indian community discovering his homosexuality in Sydney, his evidence about steps taken to apply for protection, and evidence derived from compliance interviews.
[1] Court Book (CB) 1-43
[2] CB 174-188
[3] CB 192-198
The Tribunal concluded at [57] of its reasons[4] that the applicant was not a witness of truth. The Tribunal accepted that the applicant’s witness was sincere in discussing his own sexuality and accepted that he is homosexual. However, the Tribunal did not accept the asserted homosexuality of the applicant. The Tribunal considered a report from a clinical psychologist dated 23 August 2014 and a report from a psychiatrist dated 19 November 2013 but these did not overcome the Tribunal’s concerns. Because of its credibility concerns, the Tribunal affirmed the decision of the Minister’s delegate.
[4] CB 273
The judicial review application
These proceedings began with a show cause application filed on 13 October 2014. The applicant now relies upon an amended application filed on 15 January 2015. There are three grounds in that application:
1.The Tribunal failed to comply with the requirements of ss 424A or 424AA of the Migration Act 1958.
Particulars
The Tribunal took evidence from a witness which it considered would be part of the reason for affirming the decision under review, but it failed to comply with either s424A or 424AA of the Act with respect to the information in that evidence.
2. The Tribunal's decision was affected by apprehended bias.
Particulars
The Tribunal considered the Applicant's witness to be sincere and expressed no reason for doubting his evidence, other than the fact that it had already formed a view that the Applicant was not homosexual. An informed lay observer might reasonably have apprehended that the Tribunal had a closed mind and was not prepared to consider evidence to the contrary.
3.The Tribunal misunderstood the nature of the social group to which the Applicant claimed to belong.
Particulars
The Applicant claimed to be with sexual orientation to his own gender, who had grown up in a conservative and homophobic society. In considering this claim the Tribunal applied a narrow and culturally inappropriate interpretation of the expected behaviour of same-sex oriented people in general and of same-sex oriented people in transition from a conservative and homophobic society to a more open and liberal society.
Ground 2 was not pressed.
I have before me as evidence the book of relevant documents (court book) filed on 27 November 2014 as well as an affidavit by Winnie David made on 15 January 2015, to which is annexed a transcript of the Tribunal hearing conducted on 31 July 2014. The applicant and Minister made both oral and written submissions.
Consideration
Did the Tribunal breach s.424A or s.424AA of the Migration Act?
Applicant’s contentions
The applicant notes that The Tribunal's cumulative assessment of the evidence was that the applicant was not telling the truth about being homosexual[5].
[5] CB 273 at [57]
During the course of the hearing, the Tribunal questioned the applicant about his living arrangements[6]. The applicant said that he was currently living alone, and had been for “quite a while”.
[6] Transcript (T) 10.11-40
Later, the Tribunal took evidence from a witness, Mr M[7]. The witness said that he had never been to the applicant's house because the applicant was “living with Indian friends”[8].
[7] The name of the witness has been anonymised
[8] T 31.35-32.3
After Mr M had completed his evidence, the Tribunal raised the question with the applicant[9]:
[9] T 33.22-34.8
[Q.] So, Mr [Applicant], I’ll just clarify just that thing there. Mr [M] said you share a flat with an Indian male, is that right?
A. INTERPRETER: Yeah, I shared - been a flatmate with an Indian married friend of mine.
Q. And his wife?
A. WITNESS: Yeah.
Q. I understood you to say earlier that you just live alone and you have done for a number of years?
A. INTERPRETER: I used to stay alone, but now I’m with this Indian couple.
Q. Since when?
A. INTERPRETER: Since 2009.
Q. I’ll just repeat the question. Since when have you been living with this Indian friend and his wife? Could you just tell me roughly what year was it that you started living with them?
INTERPRETER: Answering the question, he’s been living with this couple since last five or six months.
MEMBER
Q. So, five or six months ago, you started living with this Indian man and his wife, is that right?
A. INTERPRETER: Yeah, he used to live with this guy who was alone before and then he got married and his wife came along. So, when he was single, he was living with him and then after that, he got married for his wife--
Q. So, you have not lived alone, then?
INTERPRETER: I think it’s very confusing that - in the beginning he was living with friends and then he took his own place, then for five or six months at his own place and then again - moved again into a shared accommodation with another Indian guy and that Indian guy got married and now they live as a couple.
Concerning this apparent discrepancy, the Tribunal found that the applicant had been untruthful about whom he had been living with and that his explanation about the discrepancy was not credible[10]. The applicant contends that the information given by the witness, therefore, was information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review.
[10] CB 269 at [39]
The applicant submits that the information given by the witness was not excluded from the operation of s.424A of the Migration Act 1958 (Cth) (Migration Act) by subsection (3). It was information given by the witness, not by the applicant. In SZECG[11] Branson J said at [23]:
It may be the case (I express no view one way or the other) that specific information given to the Tribunal by a witness at the request of an applicant would be information given by the applicant for the purpose of the application. I have in mind a witness who gave evidence at the request of an applicant on a specific topic; for example, evidence as to the political affiliation of a particular politician or as to the political parties represented in a coalition government. However, I doubt that s 424A(3)(b) discloses an intention that every piece of information that the Tribunal gleans from the evidence of a witness called at the request of the applicant is to be treated as information given by the applicant for the purpose of the application.
[11] SZECG v Minister for Immigration [2006] FCA 733
However, her Honour found that it was not necessary in that case to reach a concluded view on the question.
In SZCNG[12] Barnes FM (as she then was) said at [64]:
In all the circumstances, particularly in light of the approach taken in SAAP and the view that s.424A imposes a mandatory requirement and given that under s.424A it is not simply a question of giving the applicant information but also of ensuring as far as reasonably practicable that the applicant understands the relevance of that information and is given an opportunity in writing to comment, I am of the view that information is not given by the applicant where it is given orally by a third party in response to questioning at a Tribunal hearing. The fact that the applicant had given the Tribunal notice that the applicant wanted the Tribunal to obtain oral evidence from that person and the Tribunal decided to do so in the presence of the applicant does not alter my conclusion (see Hayne J at [199] in SAAP).
[12] SZCNG v Minister for Immigration [2006] FMCA 505
Her Honour based this view on an extensive consideration of the relevant case law, at [41]-[63]. Her interpretation has been endorsed and followed in subsequent cases in this Court[13].
[13] NBMF v Minister for Immigration [2006] FMCA 1265; MZXJA v Minister for Immigration [2007] FMCA 375
The applicant submits that the Tribunal's reference to the information following its disclosure by the witness does not comply with the requirements of s.424AA(1)(b), nor did it subsequently comply with s.424A in relation to that information: it was not referred to in a notice under s.424A sent to the applicant after the hearing[14]. Failure to comply with these mandatory procedural steps renders the Tribunal's decision invalid[15].
[14] CB 234-236
[15] SAAP v Minister for Immigration [2005] HCA 24 at [208] per Hayne J
The applicant submits that the fact that the applicant agreed at the hearing that the witness’s information was correct, and again in a Statutory Declaration provided after the hearing[16] does not amount to an “adoption” of the information that would bring it within the exemption in s.424A(3)(b).
[16] CB 243
In NAZY[17] Jacobson J said at [37] that any information that an applicant expressly adopted as part of his application must be “put forward in chief, the assumption being that by doing so the applicant is aware of the significance of the information”. His Honour noted at [39]-[41] that the information in question had been raised by the Tribunal during questions asked of the applicant at the hearing, and that the exception in s.424A(3)(b) was therefore not enlivened.
[17] NAZY v Minister for Immigration [2005] FCA 744
In SZNKO[18] Flick J said at at [31]:
If s 424AA(a) is invoked, s 424AA(b)(iii) imposes a requirement that an applicant be positively advised that he may seek additional time in which to respond. How that advice may be effectively communicated may be left to be resolved by reference to the facts and circumstances of individual cases. But compliance is not achieved by a statement which merely implicitly conveys to an applicant that he may seek and be given “additional time”. Nor can non-compliance with s 424AA(b)(iii) necessarily be excused or cured by reason of “additional time” in fact being extended.
[18] SZNKO v Minister for Immigration [2010] FCA 297
In the most recent consideration of these issues, the Full Federal Court in SZTGV considered a wide range of authorities and made the following observation at [24]:
It is apparent from the various approaches taken to s 424A(3)(b) that the question is ultimately one of fact. Consistent with the reasoning of Heerey J in VWBF and SZCJD, there is nothing in the text of s 424A(3)(b) which supports any distinction between information proffered by an applicant to the Tribunal of the applicant’s own volition or elicited from an applicant by the answering of the Tribunal’s questions. In either case, the applicant may have given information to the Tribunal. Despite this, not every answer by an applicant to a question from the Tribunal will involve the applicant giving information to the Tribunal. The nature of the information, of the question asked by the Tribunal and the applicant’s answer will all be relevant to determining whether s 424A(3)(b) is engaged.
Each of the above cases deals with a different factual situation. However, whether or not an applicant has affirmed, at the hearing or later, that certain information is true, the fact that the information had been put to the applicant by the Tribunal has the result that any subsequent affirmation or denial of its correctness must constitute a comment or response to it. The applicant submits that the legislation clearly provides that in eliciting any comment or response the Tribunal must comply with the requirements of s.424AA(1)(b). It would be contrary to the purpose of the legislation in replacing the protections of common law procedural fairness with a set of procedures if those procedures could be easily rendered nugatory by having an applicant “adopt” information by way of comment or response in such a way as to “retrospectively” circumvent the protections of the legislation.
The Tribunal put to the applicant the information that the witness had said he was living with other people for the purpose of eliciting a comment or response. The Tribunal did not comply with s.424AA(1)(b) in doing so. The mandatory procedures were deviated from at that point, regardless of whether the applicant subsequently gave the comment or response.
The Minister’s contentions
The Minister notes that the “information” upon which the applicant relies is identified as evidence from a witness that the applicant was “living with Indian friends”[19].
[19] see Applicant’s Submissions (AS) at [8], [10] and [21]
The Minister contends that the difficulty for the applicant is that the witness’ evidence did not contain, in its terms, a rejection, denial or undermining of the applicant’s claims to be a person in respect of whom Australia owed protection obligations. It is not, therefore, “information” which enlivens the Tribunal’s obligations under s.424A[20].
[20] SZBYR v Minister for Immigration (2007) 81 ALJR 1190; 235 ALR 609 at [17]
It was only because this aspect of the witness’ evidence contradicted the evidence of the applicant as to his living arrangements that it assumed any significance in the assessment of the applicant’s credibility. In other words, it was the inconsistency with the applicant’s evidence upon which the Tribunal focussed.
The Tribunal described the applicant’s initial claim to have lived alone to be “inconsistent with the evidence of the witness that the applicant lived with an Indian couple”[21]. In turn, the applicant’s subsequent adoption of the witness’ evidence (both orally and in writing) was “inconsistent with his original evidence”.
[21] see CB 269 [41]
It is well-established that, however broadly “information” is defined, its meaning within the context of s.424A is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence[22].
[22] SZBYR at [18]
The Minister submits that, in any event, it is clear that the applicant adopted the evidence such that it is was information that he gave for the purpose of the application for review. The applicant did so at the hearing[23] and in a subsequent statutory declaration submitted after the hearing[24]. The Minister submits that these circumstances show that the applicant gave the Tribunal the “information” such that the exception in s.424A(3)(b) applies. This is consistent with SZTGV v Minister for Immigration[25].
[23] see CB 269 [37]
[24] see CB 242 at 243 [4]
[25] (2015) 229 FCR 90 at 101 [24] per Perram, Jagot and Griffiths JJ
Resolution
I prefer the submissions of the applicant on this issue. With respect to the Minister’s first proposition, I cannot accept that the direct contradiction of the applicant’s evidence by his witness on an issue the Tribunal plainly regarded as material to the applicant’s credibility was not a “rejection, denial or undermining” of the applicant’s evidence. The witness did not say directly that the applicant was a liar but that was plainly the conclusion the Tribunal drew from the witness’s evidence.
Neither do I accept that the evidence given by the witness under questioning from the Tribunal was information “given by the applicant”. Further, in respect of the Minister’s second proposition, it was not information “adopted” by the applicant. The applicant provided a commentary both at the hearing and afterwards in which he sought to clarify his own evidence in the light of what the witness had said.
The Minister does not content that, if, s.424A applies, it was complied with. No invitation to comment, either orally or in writing, was issued in accordance with the requirements of either s.424A or s.424AA. In my opinion, s.424A did apply. The failure to invite comment in accordance with either the requirements of s.424A or s.424AA constitutes a jurisdictional error and the applicant should receive the relief he seeks.
Did the Tribunal misunderstand the nature of the social group to which the applicant claimed to belong?
The applicant’s contentions
Following the lodgement of the protection visa application, the applicant's legal representatives wrote to the Minister's Department on 12 July 2013 setting out the details of the claim[26]. The letter claimed that the applicant feared harm under the following headings:
[26] CB 58-110
Social group
(a) Gays in India, or Gays in Punjab India;
(b)Member of a particular social group of gays who practice Hinduism and belong to Khatari caste in India.
(c)Gays who face forced marriages.
The applicant contends that, while alternatives (a) and (c) may be understood to use the term “Gays” to mean homosexuals in a wide sense, alternative (b) contains a limiting phrase referring to a particular religion and caste.
On 25 June 2013, the representatives provided the Department with two statutory declarations. The first[27] was made by the applicant.
[27] CB 54-56
At [2] the applicant stated that he was a Hindu and belonged to the Khatari caste who were “considered as warriors in India”, and were “expected to behave in a very manly way”. He expanded on this at the hearing[28].
[28] T 3.15-43
At [7] he referred to the conservatism of Indian society and the need to be very secretive about his sexual preference in relation to his family.
Describing his first sexual experience in [12], he said it was “something I had wanted but did not understand before”.
At [21] the applicant stated that when he first came to Australia he “did not know anything”. He went to Oxford Street “to see the gay life” but was very scared lest he be seen by any Indian person from his area.
At [22] the applicant detailed the circumstances under which, following the death of his father, he had become responsible for arranging marriages and dowries for his sisters. He had to work hard and could not run the risk of his sexual orientation becoming known because it would mean his sisters would not be able to find someone to marry them in India.
The applicant expressed concern about discussing his sexual orientation in the presence of Indian females, including the interpreter at the hearing and a Departmental officer.
The applicant submits that the Tribunal's findings concerning the applicant's credibility were based on assumptions about homosexuals in general. It did not believe that he had not actively sought out sexual partners in the period 2009 to 2012, or that he was telling the truth about not raising his sexuality in the presence of Indian females.
The applicant submits that the Tribunal did not take into account that the applicant claimed to be a homosexual male of a particular religious and cultural background. In doing so it failed to take into account the manner in which the applicant had described the social group to which he belonged.
In Dranichnikov v Minister for Immigration[29] it was held by majority in the High Court that the Tribunal had erred in misunderstanding the nature of the social group that the applicant claimed to belong to[30].
[29] (2003) 197 ALR 389
[30] Dranichnikov v Minister for Immigration [2003] HCA 26, per Gummow and Callinan JJ at [27], per Kirby J at [74]
The applicant submits that, in this case, by mistaking what the applicant's claim actually was, the Tribunal applied to his actions a set of assumptions that may have been valid had the claim been more generally one of a being a homosexual in the sense commonly understood in Western society. Due to this error, the resulting findings of inconsistency and lack of credibility were not open to the Tribunal. It failed to exercise its jurisdiction of considering the claims of the applicant as made.
The Minister’s contentions
The Minister contends that the difficulty confronting the applicant is that the Tribunal did not accept the premise of the claim, namely, that the applicant was a homosexual[31].
[31] CB 274 [62]
Dranichnikov does not assist the applicant. In that case, it was held that the Tribunal erred by failing to consider the particular social group of which Mr Dranichnikov claimed to be a member. That group was “entrepreneurs and/or businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals”, rather than “entrepreneurs and/or businessmen” more broadly[32]. The Tribunal had accepted that Mr Dranichnikov was an entrepreneur or businessman. The factual premise, and one which was common to both groups, was satisfied but the Tribunal failed to exercise its jurisdiction by considering the claim that Mr Dranichnikov made.
[32] see at 393 [22]
That is not this case. Contrary to the applicant’s submissions, the Tribunal did not mistake or misunderstand the applicant’s claim. Rather, it rejected the factual premise on the basis of its adverse credibility finding, for which it gave detailed reasons by reference to the evidence before it.
Resolution
I accept the Minister’s submissions in respect of Ground 3. In particular, I accept that this case is distinguishable from Drachnicnikov. Critically, in this case the Tribunal did not accept that the applicant is a homosexual. That was the core element of his claims. The additional integers of religion and caste were not severable from the claim of homosexuality and neither did they alter the applicant’s claim of what it meant to him to be a homosexual, which was based upon his sexual preference. Having rejected the applicant’s core claim to be a homosexual, the references to his religion and caste, being non severable, became immaterial.
Conclusion
I conclude that the first ground of review has been established, and that therefore the Tribunal decision is affected by jurisdictional error. I will make orders in the nature of the constitutional writs of certiorari and mandamus.
I will hear the parties as to costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 26 February 2016
CORRECTIONS
Paragraph 10, line 4 – delete witness’s name insert [M]
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