SZVJY v Minister for Immigration
[2016] FCCA 81
•15 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVJY v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 81 |
| Catchwords: MIGRATION – Review of decision of former Refugee Review Tribunal – refusal of a protection visa – applicant claiming persecution in Bangladesh as a homosexual – applicant not believed – whether the Tribunal breached s.424A of the Migration Act 1958 (Cth), and whether the Tribunal denied the applicant procedural fairness considered – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 424A, 424AA, 425 |
| Minister for Immigration v MZYHS [2011] FCA 53 SZKJT v Minister for Immigration & Anor (No 2) [2009] FMCA 1031 VHAP of 2002 v Minister for Immigration [2004] FCAFC 82 |
| Applicant: | SZVJY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3010 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 4 December 2015 |
| Delivered at: | Sydney |
| Delivered on: | 15 February 2016 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms N Maddocks of DLA Piper |
ORDERS
The name of the second respondent is amended to “Administrative Appeals Tribunal”.
The application filed on 29 October 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3010 of 2014
| SZVJY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
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 22 September 2014. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The applicant is from Bangladesh and had made claims based upon his asserted homosexuality. The following statement of background facts is derived from the Minister’s outline of legal submissions.
The applicant is a male citizen of Bangladesh born on 2 July 1971.[1] He departed Bangladesh illegally on an Indian passport in a false name and arrived in Australia on 1 November 2012.[2]
[1] Court Book (CB) 27
[2] CB 14, 40
The applicant applied for a protection (Class XA) visa on 30 January 2013.[3]
[3] CB 1-26
The applicant claimed to fear harm in Bangladesh from the authorities and society more generally on the basis of his sexual preference. He claimed that he was gay, he had been bullied and intimidated throughout his life, and that in 1998 he was forced to marry against his will in an attempt to cure his sexual preference.[4]
[4] CB 18-21
These claims were expanded upon at an interview with the delegate on 18 July 2013.[5]
[5] CB 63-65
The application was refused by the delegate on 24 January 2014.[6]
[6] CB 59-75
The delegate found that the applicant had provided an unconvincing account of his sexual history, he could have stayed in India if he was seeking protection, he had not engaged in any homosexual activity since arriving in Australia, and he had provided false information to come to Australia which undermined his credibility.[7]
[7] CB 70-71
The applicant applied to the Tribunal for review of the delegate's decision on 26 February 2014.[8]
[8] CB 76-77
The applicant gave oral evidence before the Tribunal on 15 September 2014.[9] At hearing, the applicant provided, among other things, a letter from Cristelle Gamas (Psychologist), dated 9 September 2014, and a Mental Health Treatment Plan from Dr Napoleon Chiu, dated 17 July 2013.[10]
[9] CB 85-87
[10] CB 97, 98
The Tribunal handed down its decision on 22 September 2014.[11] The Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa.
[11] CB 100-111
The Tribunal’s decision
The Tribunal found that the applicant's evidence was vague, inconsistent and unpersuasive,[12] and that the applicant had not been truthful in relation to his sexual orientation.[13] As such, the Tribunal was not satisfied that:
a)the applicant was homosexual as claimed;[14]
b)he fled Bangladesh because of the suicide of his boyfriend;[15]
c)he had been involved in any homosexual activities or relationships in Australia;[16]
d)he regularly attended gay venues in Sydney;[17] or
e)he was assaulted, threatened, forcibly married, humiliated or otherwise harmed in Bangladesh as a result of his sexual orientation as claimed.[18]
[12] at [9]
[13] at [21]
[14] at [9]
[15] at [10]-[12]
[16] at [13], [16]
[17] at [14]-[15]
[18] at [21]
The Tribunal concluded that the applicant did not satisfy the criteria for grant of the visa in s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act).[19]
[19] at [26]-[27]
The judicial review application
These proceedings began with a show cause application filed on 29 October 2014. The applicant continues to rely upon that application. There are two grounds of review identified in the application:
1. The Tribunal failed to disclose adversarial information to the applicant. By doing that the Tribunal was in breach of s.424A of the Migration Act 1958.
Particulars:
The Tribunal made a number of phone calls about the applicant’s claims of being in a particular venue in Oxford Street. The Tribunal made several calls to verify the existence of those venues and it is understood that the Tribunal was not satisfied [that] they existed. Did the Tribunal inform the applicant about this result, he would have had an opportunity to refute that finding.
2. The Tribunal denied fairness to the applicant.
Particulars:
a) The Tribunal was aware of the applicant’s language difficulties and the limitation it imposed on the applicant. Nevertheless it found it reasonable for a person of his type to remember the name of the venues in English correctly and proceeded to investigate that information further. In addition, the Tribunal did not take into account that the applicant’s pronunciation of [the] business name of the venue in English might have caused it to understand that name incorrectly.
b) The Tribunal concluded that the letter of the psychologist was written on the basis of the information that the applicant dictated. It is unreasonable for the Tribunal to make such gross finding without consulting with the psychologist and also without having any due regard to the professional integrity of the psychologist. In addition to that, the Tribunal also failed to understand that a psychologist is bound by his or her professional code of conduct and would simply not write down something that he or she did not believe was true.
c) The Tribunal also failed to understand the impact of mental health conditions of the applicant, had no regard to the medical assessment, and summarily dismissed every claim on the basis that the applicant could not remember some part of the events many years ago. It is unreasonable to the extent that a reasonable human being cannot be expected to remember every detail of his or her life events that happened many years ago.
d) Additionally, The Tribunal failed to appreciate the fact that the quality of such remembrance of events and also the ability to recall and describe them to 100% accuracy would also be conditional to the level of education a person have had, the social and financial upbringing of the person, mental health issues and the ability of the individual to understand the significance of the person as they happened. This particular failure of the Tribunal is not reasonable.
I have before me as evidence the court book filed on 17 December 2014. At the trial before me, the applicant sought to tender a number of receipts for purchases made at the Stonewall Hotel in Oxford Street but I declined to receive them as they post dated the decision of the Tribunal. I did receive the applicant’s affidavit made on 29 October 2014 and filed with the application.
I gave directions in this matter on 2 December 2014. I gave the applicant the opportunity to file and serve an amended application and additional evidence and listed the matter for a show cause hearing under rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) on 24 November 2015. Subsequently, the Minister’s solicitors notified the Court that the parties had agreed that the matter should proceed to a final hearing (in effect conceding that the grounds in the application disclosed an arguable case of jurisdictional error). The hearing was deferred for one week due to my temporary absence.
Only the Minister prepared written submissions. After having heard oral argument, I requested additional submissions from the Minister on the question of the application of s.424A of the Migration Act to the product of enquiries made by the Tribunal to test the veracity of an applicant’s claims following a hearing.
Consideration
Did the Tribunal breach s.424A of the Migration Act?
The applicant contends that the Tribunal is obliged to disclose and seek comment upon the information obtained by it as a result of telephone calls made by the Tribunal after the Tribunal hearing. The circumstances are identified in the Tribunal’s reasons at [14]-[16]:[20]
Third, the applicant claims that since the Departmental interview he has been regularly going to clubs on Oxford Street. He used to go [to] Kings Cross but then he showed someone a piece of paper saying he was gay and that person directed him to go to Oxford Street. Since then he has been attending all the venues along Oxford Street regularly since 2013 on almost all his days off. He stated that this was usually Saturday and Sunday. He stated that he goes alone and just watches others and tries to socialise but because of the cultural differences he could not approach anyone. When the Tribunal asked if he had any receipts or bank statements showing ATM withdrawals in the area or credit card payments he stated that he did not keep any of those documents but then stated that he might have receipts at home. When asked which venues he referred to the Toolshed and referred to a name which sounded like Stanwell. He stated that he went last Saturday night to the club that sounded like Stanwell but when asked to spell the name of the club he stated that it was “s e” something but that he could not recall how to spell it. The Tribunal accepts that there is a day venue on Oxford Street called the Stonewall but is not satisfied that the applicant is familiar with it. Rather it appeared to the Tribunal that he had been told the name of a gay venue on Oxford Street but could not recall it accurately. When asked what time it closes he stated that he does not know as he leaves before midnight to catch his last bus from Town Hall. When asked about the Toolshed he stated that it was a bar where you buy drinks and dance. When the Tribunal put to him that the website suggests that it is an adult shop and there is no bar called the Toolshed he stated that he did not know about this but there were two venues called the Toolshed and the one that he was referring to was a bar. The Tribunal conducted an Internet search for places called “Toolshed” in Oxford Street and found references to the Toolshed as an adult shop.[21] The Tribunal did a search of the White Pages[22] to check for any businesses starting with the word “Tool” in Oxford Street but could not find any reference to a separate bar. The Tribunal called the Toolshed listed in the Whitepages and was told that there are two adult shops called the Toolshed on Oxford Street but no bars.
The Tribunal found the applicant’s claimed attendance at venues in Oxford Street to be unconvincing. It would expect him to be aware of the nature of the places, such as the Toolshed, if he had attended them and to be aware of the proper name of Stonewall if he was attending it on a regular basis as he has claimed. Furthermore, the Tribunal finds it surprising that if the applicant had been attending on Saturdays and Sundays on a regular basis since 2013 that he would not have formed any friendships or relationships at these venues. The Tribunal is not satisfied that he has been truthful in relation to his attendance at gay venues in Sydney.
The Tribunal is not satisfied that the applicant has been involved in any homosexual activities or relationships in Australia or attended any gay venues in Sydney. The Tribunal finds this surprising given that he came to Australia because of the freedom it offers him in terms of sexuality. He stated at the hearing that he had not been involved in more homosexual relationships or activities in Australia because he has no peace of mind and is under pressure here. However, the Tribunal considers that, on the basis of his evidence, he was under great pressure in Bangladesh where he had been assaulted, forced to marry, humiliated and forced to hide his sexual orientation but had nevertheless engaged in many homosexual activities over many years. His lack of involvement in Australia, where he is free to engage in homosexual activities and relationships without persecution or fear of serious harm, raises significant concerns for the Tribunal about whether he is a homosexual as he has claimed.
[20] CB 104-105
[21] accessed 15 September 2014.
[22] >
At the hearing on 15 September 2014, the applicant was questioned in relation to his attendance at gay venues in Sydney[23] and, in particular, questioned on what venues he frequented, what time they closed and the nature of the venues. Based on the applicant's evidence, the Tribunal had concerns with the applicant's familiarity with “Stonewall” or “Toolshed”, given that the applicant was unable to provide the correct information in respect of their names and/or nature.
[23] at [14]
The Minister submits that this information did not give rise to s.424A obligations as it was not information that, independently and of itself, undermined, denied, or rejected the applicant's ability to satisfy the criteria for grant of a protection visa.[24] Instead, the information went to the applicant’s knowledge of the gay venues he himself claimed to have attended. The Minister submits that the factual assessment by the Tribunal at [14]-[15] was reasonably open to it on the evidence and material before it, and that the Tribunal did not breach s.424A of the Migration Act. Further, the Tribunal decision does not suggest any new dispositive issue arose out of the inquiries made by the Tribunal in telephoning the Toolshed and, as such, the Minister submits that the Tribunal complied with s.425 of the Migration Act.
[24] SZBYR v Minister for Immigration (2007) 235 ALR 609 at [17]-[18]; SZTGV v Minister for Immigration [2015] FCAFC 3 at [18]
Even if this information did constitute information for the purposes of s.424A of the Migration Act, the Minister submits that this information was “not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member” such that it is caught by the s.424A(3)(a) exception.
I accept the Minister’s submissions. In my opinion, the circumstances of this case are similar to those dealt with by the High Court in Minister for Immigration v SZLFX.[25] Further, in VHAP of 2002 v Minister for Immigration,[26] Giles and Conti JJ (Allsop J agreeing at [21]) found that the s.424A obligation only arises where the Tribunal relies on information specifically about the applicant or another person. In SZJJD & Ors v Minister for Immigration & Anor,[27] Barnes FM (as she then was) stated at [53]:
the concluding words of s.424A(3)(a) (“and is just about a class of persons of which the applicant or another person is a member”) do not impose an additional criterion that must be satisfied in order for information to fall within the exception, but are simply present to underlie the specificity required before the proviso to the exception operates and to avoid any suggestion that information is specifically about an applicant or another person because such person is a member of a class of persons to which the information in question relates (see VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82; (2004) 80 ALD 559; Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572; WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92; and VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178).
[25](2009) 238 CLR 507. See also SZJBD v Minister for Immigration (2009) 179 FCR 109; SZKJT v Minister for Immigration & Anor (No 2) [2009] FMCA 1031; SZONX v Minister for Immigration & Anor [2010] FMCA 876 (upheld on appeal; SZONX v Minister for Immigration & Anor [2011] FCA 135); SZONE v Minister for Immigration & Anor [2011] FMCA 420
[26] [2004] FCAFC 82 at [14]
[27] [2008] FMCA 3
For reason that the information obtained by the Tribunal in making phone calls to the Toolshed was not specifically about the applicant or another person, the exception in s.424A(3)(a) applies in the present case such that there was no obligation arising under s.424A of the Migration Act.
The Minister also notes that the Tribunal purportedly put information to the applicant pursuant to s.424AA of the Migration Act.[28] The information put consisted of inconsistencies in the applicant's evidence. The Minister submits that these inconsistencies did not in their terms reject, deny or undermine the applicant's claims,[29] and that the Tribunal's obligations under s.424A were not enlivened. I agree.
[28] at [12]
[29] SZBYR v Minister for Immigration (2007) 235 ALR 609 at [17]-[18]
I also accept the Minister’s submission that in so far as the Tribunal apparently put information to the applicant at the hearing pursuant to s.424AA in circumstances where its obligations under s.424A were not enlivened, it was not an error for the Tribunal to do so.[30] Further, the Tribunal was not required to comply with the requirements in s.424AA in circumstances where its s.424A obligations were not enlivened.[31]
[30] SZGIY v Minister for Immigration [2008] FCAFC 68 [30]
[31] SZNCW v Minister for Immigration [2009] FCA 818 [26]
Was the applicant denied procedural fairness?
In his oral submissions, the applicant said that when he arrived for the Tribunal hearing, no interpreter was available and he had to wait about four hours for the interpreter to arrive. He was offered a hearing at a later date but declined that offer. He said that the interpreter who eventually attended was a Muslim, which concerned him and that the quality of his interpretation was poor. He conceded, however, that he did not raise any issue concerning the interpreter or his standard of interpretation with the Tribunal.
The hearing invitation issued to the applicant[32] specified a hearing time of 10.30am on 15 September 2014. The Tribunal’s hearing record sheet[33]establishes that the interpreter arrived at 12.00pm and commenced duties at 12.06pm. The hearing commenced at 12.27pm and concluded at 4.05pm. I accept from that information that there was a delay caused by the late arrival of the interpreter. There is nothing in the available material to support the applicant’s contention of other interpretation problems, although I accept that the interpreter at the hearing has a Muslim name. In the absence of any complaint being made by the applicant to the Tribunal, and in the absence of any problem otherwise being apparent to the Tribunal, I am not persuaded that any procedural unfairness resulted from the circumstances surrounding the attendance of the interpreter or his performance of his duties.
[32] CB 81
[33] CB 85
I otherwise agree with the submissions of the Minister on this ground.
Particular (a) states that the Tribunal did not take into account that the applicant's pronunciation of venues may have caused it to understand that name incorrectly. The Tribunal was not satisfied that the applicant had been truthful in relation to his attendance at gay venues in Sydney for reason that he was unaware of the proper name of Stonewall, he had not formed any friendships or relationships at these venues, and he was unaware of its closing time.[34] In circumstances where the Tribunal did not solely rely on the applicant's mispronunciation of Stonewall to be “Stanwell”, the applicant had an interpreter at hearing, and it is not apparent from the face of the Tribunal decision or the applicant’s oral submissions that he raised any issues regarding interpreter error at the hearing, the ground in this respect goes no higher than to take issue with the Tribunal’s findings.
[34] at [14]-[15]
Particular (b) takes issue with the Tribunal’s conclusion in respect of the letter from psychologist Cristelle Gamas, dated 9 September 2014; namely, that “the letter of the psychologist was written on the basis of the information that the applicant dictated”. The Tribunal considered this medical evidence at [22].
When a lay decision-maker is faced with medical evidence of a responsible medical practitioner, it is potentially irrational for the decision-maker to substitute lay theories for expert opinion.[35] However, it is otherwise a matter for the Tribunal to determine the weight to be given to a psychologist's report.[36]
[35] Pierre Henri Fuduche v the Minister of Immigration (1993) 117 ALR 418 at [21] per Burchett J; MZXTT v Minister for Immigration & Anor [2008] FMCA 1007 at [37]
[36] Minister for Immigration v MZYHS [2011] FCA 53 at [31] per Kenny J; Subramaniam v Minister for Immigration [2002] FCAFC 255 per Drummond, Cooper and Finkelstein JJ
Medical evidence has otherwise been considered in the context of homosexual claims in SZRQR v Minister for Immigration & Anor[37]. In that case, Judge Nicholls held at [70]:
First, as set out above, the premise that this involved a “lay” Tribunal failing to give reasons for rejecting “expert professional” opinions must be rejected. The critical issue, or opinion, was of homosexual orientation. This, of itself, is not a medical, health or mental health condition (although, as set out above, it may lead to consequential conditions given adverse experiences, such as anxiety, trauma and the like). To the extent therefore that the “opinions” were said to be those of expert health professionals, this was not the relevant area of expertise. Dr Harrington stands, as the Tribunal found, at the extreme end of the relevant professional area of expertise. Dr Andrews and Ms Gordon’s expertise derived at best from years of relevant experience, not necessarily their qualifications and status as “health professionals”.
[37] [2013] FMCA 21
The Tribunal in the present case considered the medical evidence provided by the applicant,[38] accepted that the applicant had been undergoing psychological treatment and did not challenge the conclusions reached. However, for reason that the psychologist (necessarily) relied on the applicant's own account of events in Bangladesh and the Tribunal found the applicant was not a credible witness,[39] the Tribunal gave limited weight was given to this evidence.[40]
[38] see [22]
[39] at [21]
[40] at [22]
I accept that the Tribunal has therefore not substituted its own lay opinion for that of a reliable expert; instead, the Tribunal's treatment of the evidence merely turned on the Tribunal's consideration of the surrounding circumstances in relation to the preparation of the letter. Further, to the extent that the applicant asserts the Tribunal was unreasonable for making its finding without consulting the psychologist, the Tribunal was under no obligation to do so.
Particular (c) asserts that the Tribunal failed to understand the impact of the applicant's mental health conditions, had no regard to the medical assessment, and dismissed the applicant's claims on the basis that the applicant could not remember some parts of certain events which happened many years ago. This goes no higher than to seek impermissible merits review and is plainly wrong to the extent that the applicant asserts the Tribunal failed to take into account the medical evidence.
In so far as the applicant may wish to assert he was unable to properly participate in the hearing due to his mental health conditions, the Minister submits that any such argument cannot be sustained. There was, and is, no suggestion that the applicant's condition was such as to deny him the capacity to give an account of his experiences, to present arguments or to understand and to respond to questions put to him.[41] I agree.
[41] Minister for Immigration v SZNVW (2010) 183 FCR 575 at 582 [20] and 583 [22] per Keane CJ, with whom Emmett J relevantly agreed at 588 [48]-[49]
Particular (d) seeks to provide reasons as to why the applicant did not have a perfect recollection of past events. This goes no higher than to seek impermissible merits review.
I find that the Tribunal complied with its statutory obligations pursuant to Division 4 of Part 7 of the Migration Act such that a denial of procedural fairness cannot be made out.
Conclusion
I conclude that the applicant has failed to establish that the decision of the Tribunal was affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 15 February 2016
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