Wzauk v Minister for Immigration
[2019] FCCA 3246
•13 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZAUK v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3246 |
| Catchwords: MIGRATION – Protection (Class XA) Visa – decision of the Administrative Appeals Tribunal – whether the Tribunal displayed apprehended bias – whether the Tribunal ignored corroborative evidence – corroborative evidence ignored – jurisdictional error established – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.48, 499 |
| Cases cited: BZD17 v Minister for Immigration & Border Protection [2018] FCAFC 94 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 |
| Applicant: | WZAUK |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 197 of 2014 |
| Judgment of: | Judge Kendall |
| Hearing date: | 20 August 2019 |
| Date of Last Submission: | 20 August 2019 |
| Delivered at: | Perth |
| Delivered on: | 13 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr MGS Crowley |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Counsel for the First Respondent: | Mr PR Macliver |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue directed to the second respondent quashing the decision dated 4 June 2014.
A writ of mandamus issue directed to the second respondent requiring it to reconsider and determine the applicant’s application for review according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 197 of 2014
| WZAUK |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This matter is procedurally unusual and requires some explanation.
The applicant, a Kenyan citizen, filed an application in this Court on 8 July 2014 seeking judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 4 June 2014. He sought review of the Tribunal’s decision to affirm a decision of a delegate of the first respondent (the “Minister”) to not grant him a Protection (Class XA) Visa (the “visa”).
At the time of lodging the judicial review application the applicant was unrepresented.
The applicant lodged an amended application on 22 January 2015. That application contained ten grounds of review.
On 2 July 2015, Judge Lucev of this Court heard the matter.
Judgment was reserved at the end of that hearing.
Following judgment being reserved by Judge Lucev, the Minister exercised the power under s.48 of the Migration Act 1958 (the “Act”) and the applicant was invited to apply for a further protection visa. He did so on 8 September 2017.
On 27 October 2017, the applicant was again refused a visa and his application was referred to the Immigration Assessment Authority (the “IAA”) for review.
On 24 November 2017, the IAA affirmed the delegate’s decision not to grant the applicant the visa he had applied for on 8 September 2017.
The applicant lodged an application for judicial review of the IAA’s decision in this Court on 21 December 2017.
That application was independent of the judicial review application heard by Judge Lucev in 2015, but which had not been determined by the time the second application for review of the IAA’s decision had been filed in this Court in 2017. The application relevant to the 2017 IAA’s decision was allocated a file number of PEG718/2017 by this Court.
Again, the applicant was unrepresented in relation to the appeal from the IAA’s decision.
On 5 June 2018, the applicant obtained legal representation. The application relevant to the IAA’s decision came on for hearing on 12 September 2018.
In the course of those proceedings, a transcript of the 2014 hearing before the Tribunal was received into evidence. It does not appear that that transcript was before Judge Lucev in 2015.
On 1 March 2019, on the basis of matters which arose during argument, the Court made orders (by consent) allowing the applicant to re-open his case in relation to this matter. It was agreed that a different judge of this Court (Judge Kendall) would now hear the application relevant to the 2014 Tribunal’s decision as well as the 2017 application (PEG718/2017) relevant to the IAA’s decision.
This judgment relates to the 2014 Tribunal decision. The Court’s judgment in relation to the 2017 IAA decision will be dealt with at a later date in a separate judgment.
On 9 August 2019, the applicant filed a further amended application containing two grounds of review in respect of the Tribunal’s decision. Those two grounds of review provide:
Ground 1
The decision of the Refugee Review Tribunal (RRT) was vitiated by a constructive failure to exercise jurisdiction in that the presiding Member conducted the review as might invite an apprehension in a fair-minded observer that the presiding Member might not have brought an impartial mind to the question of the Applicant’s homosexuality, or that he might not have been open to persuasion.
Ground 2
The decision of the RRT was vitiated by a constructive failure to exercise jurisdiction, or a denial of procedural fairness, in that critically important corroborative evidence was not given proper, genuine or realistic consideration, namely the evidence of an independent witness that she had observed the Applicant and his then male partner kissing and cuddling.
All evidence relied upon in PEG718/2017 (relating to the 2017 IAA decision) was also received as evidence in relation to this matter. Relevantly, that evidence included an affidavit of Jaymee Louise Hick affirmed 29 August 2018 which annexed a copy of the transcript of the 2014 Tribunal hearing (the “Transcript”).
The Court also had before it a Court Book (“CB”) numbering 289 pages (marked as Exhibit), an outline of written submissions from the applicant dated 9 August 2019 and an outline of written submissions from the Minister dated 16 August 2019.
The Court (now through Judge Kendall) heard this matter on 20 August 2019. Mr Crowley appeared for the applicant and Mr Macliver appeared on behalf of the Minister. The Court thanks both counsel and their instructors for their considerable assistance. The Court notes, in particular, the courtesy both parties showed each other in trying to move this matter forward after what can only be described as a most unfortunate delay. Cooperative advocacy of this sort is to be encouraged, particularly in the context of protection claims. The Court acknowledges the significant period of time this matter sat in this Court without resolution and apologises to both parties for any frustration inevitably caused.
Background
As indicated, the applicant is a Kenyan citizen (CB 15-16). He first arrived in Australia as the holder of a Student (Class TU)(Subclass 573) visa in June 2006 (CB 184). The applicant’s student visa was cancelled on 4 August 2009 (CB 184).
Following the cancellation of the applicant’s student visa, he was granted two bridging visas. The last bridging visa expired on 7 October 2010 (CB 184). From that date the applicant remained in Australia as an unlawful non-citizen.
On 22 April 2013, the applicant was found to have been working illegally. He was detained by the Minister’s department in an immigration detention centre (CB 184).
On 29 April 2013, the applicant applied for the protection visa the subject of these proceedings (CB 1-33). In his visa application the applicant indicated that he had not previously been harmed in Kenya (CB 22). However, he listed a number of things he feared might happen to him if he returned to Kenya, including discrimination, harm, mental pain, extreme humiliation and victimisation. In response to a question asking why he believed these things might happen to him, he wrote that he feared harm because of his “changing from being attracted to the opposite sex to the same sex”. He noted that being attracted to the same sex was considered immoral in his culture and religion in Kenya (CB 23). The applicant also claimed that he feared harm as a result of being from two different ethnic groups or tribes.
On approximately 4 June 2013, the applicant (with the assistance of a migration agent) lodged a fresh application for the visa (CB 38-115). The applicant’s claims were articulated in a statutory declaration. The nature of the claims did not differ from the claims made by the applicant in the application lodged on 29 April 2013 (CB 71-73).
The applicant was invited to attend an interview with a delegate on 31 July 2013 (CB 151-153). The applicant attended with his representative.
On 26 September 2013, the delegate sent a “Request for more information” to the applicant. Specifically, that letter requested as follows:
Requested information
You claimed (in your written application and Protection Visa interview) that you realised you were homosexual sometime in 2009. In light of the above, please explain why you did not apply for a Protection Visa until 1 May 2013.
Opportunity to comment
Your failure to apply for a Protection Visa prior to the above date (1 May 2013), can be seen as further evidence that you do not fear any harm upon return to Kenya and that you are not homosexual as you claim.
(CB 164)
The applicant provided a response to this invitation on 9 October 2013 (CB 166-167).
On 4 December 2013, the delegate refused the visa.
The delegate found that the applicant’s claim to be “homosexual” was not credible (CB 187-189). The delegate also considered whether the applicant’s fear of harm on the basis of his tribal affiliations was well-founded. The delegate was not satisfied that the applicant would be persecuted or that he would suffer significant harm (CB 189-193).
On 10 December 2013, the applicant lodged an application at the Tribunal for review of the delegate’s decision (CB 196-201).
On 14 February 2014, the applicant attended a hearing with the Tribunal by video-link (CB 230-231).
The applicant asked the Tribunal to take evidence from two witnesses (CB 239-240). The Tribunal agreed and evidence was taken from both witnesses (CB 260-263).
Written submissions in support of the application were received by the Tribunal on 7 February 2014. Those submissions were prepared by the applicant’s migration agent (CB 243-259).
The Tribunal hearing lasted for approximately three hours (CB 260-263).
On 4 June 2014, the Tribunal affirmed the delegate’s decision and refused the applicant the protection visa he was seeking.
The Tribunal Hearing
The Tribunal hearing took place on 14 February 2014. The applicant appeared by video-link from the immigration detention centre. The hearing commenced at 9.05am and concluded at 12.50pm. A 15 minute break was allowed to enable the applicant and his agent to have a discussion. The applicant’s migration agent made oral submissions at the closing of the hearing. These submissions were in addition to those that had been provided in writing prior to the hearing. Two witnesses were also called to give evidence. Their evidence is the subject of ground 2 and will be considered below in more detail.
The Transcript is approximately 43 pages long. A brief overview of that decision is as follows:
a)the first three pages (approximately) detail the Tribunal explaining to the applicant the purpose of the hearing and how the hearing would be conducted;
b)the next three pages (approximately) record exchanges regarding the applicant’s background, including his student visa cancellation;
c)the next seven pages (approximately) record the exchanges between the applicant and the Tribunal concerning his claim to be “homosexual”;
d)the next two pages (approximately) record the Tribunal explaining to the applicant’s witnesses what was to occur;
e)the next eight pages (approximately) record the evidence of Ms S. At times the Tribunal asked the applicant to comment on the evidence that Ms S had given. The questions directed to Ms S, and the evidence she provided, predominantly focussed on the applicant’s claim to be a gay male;
f)the next nine pages (approximately) record the evidence of Ms O. The applicant’s agent and the Tribunal both asked questions and the applicant also made comments or responded to matters Ms O discussed in her evidence. These exchanges also largely concerned the applicant’s claim to be a gay male and what the applicant had told Ms O about his “visa troubles”;
g)after the natural justice break, the applicant gave further evidence (for approximately six pages). This evidence concerned the applicant’s claim regarding Tribal conflict in Kenya but also focussed to some extent on the applicant’s claim to be a gay male;
h)a further two pages involved the applicant’s agent making submissions and engaging with the Tribunal; and
i)the last three pages recorded further exchanges between the applicant, the Tribunal and the applicant’s agent regarding the applicant’s claims to be a gay male, including a comment by the applicant that he would “happily go home if he were not gay”.
It is necessary to set out at some length portions of the Transcript before the Tribunal when considering the grounds of review relevant to this application (discussed in detail below).
The Tribunal’s decision
Given the confined nature of the two grounds of review, it is not necessary to extensively summarise the Tribunal’s decision.
At [1]-[17], the Tribunal summarised the background of the matter, the relevant principles in relation to the refugee and complementary protection criterion and the s.499 Ministerial Direction that the Tribunal is required to take into account. At [73]-[75], the Tribunal also outlined the principles relevant to any assessment of credibility.
The Tribunal then summarised the applicant’s claims for protection and the 2014 delegate’s decision.
At [21]-[40], the Tribunal spent some considerable time explaining what had occurred at the Tribunal hearing. This included the evidence of the applicant, his witnesses and the submissions of his migration agent. Many passages in this part of the Tribunal’s decision are relevant to the grounds of review, and will be considered in greater detail below.
At [41]-[69], the Tribunal made reference to and detailed the content of various sources of country information concerning same sex sexuality in Kenya and inter-trial violence and conflict.
At [76], the Tribunal made the following assessment of the credibility of the applicant and his witnesses:
76. The Tribunal carefully considered the applicant’s testimony and found the applicant to be an unreliable witness. It found that important aspects of his oral evidence, including the central claim that he is homosexual, were given in a manner which the Tribunal found to be rehearsed and insincere. For example, the Tribunal found the applicant repeated his claim that he had been to the Court Hotel and that this claim appeared to be advanced as if it were conclusive proof of the claimed homosexuality. The Tribunal found the applicant’s evidence was also unreliable in other respects, for example where he first claimed to have completed studies in Australia, but then subsequently claimed he did not. The Tribunal also considered the applicant’s claims that he could not recall speaking about his sexuality with Ms S, whereas Ms S claimed that he did, casts further doubt on the reliability of the applicant’s evidence. The Tribunal also found that the applicant’s witnesses’ evidence to be of limited value in resolving the critical question of whether the applicant is homosexual. In the end, the Tribunal is not satisfied on the threshold claim that the applicant is in fact homosexual.
(Identifiers omitted)
At [78]-[79], the Tribunal considered the applicant’s claim to face harm because he is of mixed ethnicity and would be rejected by any tribe or would be vulnerable to harm for not being a member of a tribe. The Tribunal noted the lack of country information on inter-tribal violence and noted that that the applicant was not politically active. For those reasons, the Tribunal was not satisfied the applicant would face serious harm for reason of his mixed ethnicity, nor a risk of significant harm from inter-tribal violence now or in the reasonably foreseeable future.
The Tribunal accepted that gay men in Kenya face discrimination and persecution. It found, however, that the applicant was not a reliable and credible witness in relation to this claim. In particular, the Tribunal found that the applicant’s evidence that he had been to the Court Hotel (a bar historically associated with LGBTIQ clientele) was rehearsed and that his responses to questions were not convincing – particularly in light of the negative credibility assessment (CB 286-287 at [80]-[82]).
The Tribunal considered the supporting evidence from two friends of the applicant who claimed that they thought the applicant was gay. However, while the Tribunal did not consider that they had fabricated their evidence, it did not accept that their observations or feelings were conclusive on the issue of the applicant’s sexuality (CB 287-288 at [83]-[87]).
The Tribunal also did not accept the applicant’s claims that he told his cousin in England that he was gay, that he had received insults about his sexuality on his Facebook page or that there had been discussion on social media about him identifying as a gay male (CB 288 at [88]).
The Tribunal also considered the delay in applying for the visa to be significant and concluded that the applicant was not truthful in his claims that he was not aware of protection visas. The Tribunal found that the delay was more likely to be explained by the fact that the applicant’s last substantive visa had being cancelled in 2009 and the applicant’s detention as an unlawful non-citizen in April 2013 (CB 288 at [89]).
The Tribunal also considered the applicant’s representative’s submission that the applicant had spoken of his sexuality with his friends before he made his visa application but concluded that, even if that was so, this did not mean that the applicant was in fact a gay male and did not preclude the possibility that the applicant had fabricated parts of his claims (CB 288 at [90]).
The Tribunal concluded at [90] that, having regard to all of the evidence before it, it was not satisfied that the applicant was in fact a gay male.
The Application for Judicial Review
Ground 1
The decision of the Refugee Review Tribunal (RRT) was vitiated by a constructive failure to exercise jurisdiction in that the presiding Member conducted the review as might invite an apprehension in a fair-minded observer that the presiding Member might not have brought an impartial mind to the question of the Applicant’s homosexuality, or that he might not have been open to persuasion.
Applicant’s submissions
The applicant’s written submissions in relation to ground 1 can be summarised as follows:
a)it is true that a finding of apprehended bias will not be made lightly and requires some specificity. On the other hand, the ‘double might’ test is satisfied by something less than a probability, and is perhaps a ‘low threshold.’;
b)in an administrative context regard must be had to the statutory provisions, the nature of the inquiries to be made and the particular subject-matter. ‘Vigorous testing of the evidence and frank exposure of its weaknesses’ is acceptable in inquisitorial proceedings with unrepresented parties, but there will be error if a fair-minded lay observer or properly-informed lay person might infer ‘that there was nothing [a witness] could say or do to change the Tribunal’s preconceived view’;
c)the Tribunal invited the applicant to ‘tell me, in detail, why it is that you fear returning to Kenya.’ The applicant’s response was: ‘Me being gay in Kenya’ and he then commenced to explain the difficulties facing gay men in Kenya and the generalised treatment of gay men in Kenya by their families;
d)a discussion about the applicant’s background followed. The point of this appeared to be that because the applicant had not raised protection claims for a long time after his arrival in Australia, they were a contrivance;
e)it is not until the end of page 9 of the Transcript that the Tribunal asks the applicant specifically about his homosexuality and twelve brief questions later, at page 10 of the Transcript, the Tribunal says:
I just don’t believe that you’re homosexual Mr [Applicant]
f)this was the ultimate ‘conversation killer.’ The Tribunal had a fact-finding role. Its function was to hear the evidence and then make a decision. At that stage, the Tribunal had heard neither of the two independent witnesses. The applicant’s homosexuality was the ‘central claim.’ Where was there left to go?;
g)it was hardly the case that anything catastrophically destructive of the applicant’s credit had been said previous to this. There was nothing in the applicant’s responses to positively falsify the applicant’s claim and lead the Tribunal to make the statement ‘I just don’t believe you’re homosexual’; and
h)this was likely to convey to a fair-minded, properly-informed lay observer that there was no evidence that could be given which might have changed the decision-maker’s view. The fact that the two independent witnesses were then yet to give evidence neatly punctuates that proposition.
At hearing, the following points were emphasised by Counsel for the applicant:
a)none of the witnesses to be called had been heard from and the Tribunal knew that those witnesses were there to give evidence on the applicant’s homosexuality, yet the Tribunal, using words with a quality of absoluteness and finality, states “I just don’t believe you” prior to any of this evidence being called and this went too far;
b)a fair-minded observer would have listened to the Tribunal stating “I just don’t believe you” and thought there is nothing at all that this man can say to persuade the Tribunal that he is homosexual, as the Tribunal has said as much pointedly;
c)it would have been better if the Tribunal had said “I’m struggling with that”, and explained why but the Tribunal just did not do that;
d)the threshold of apprehended bias is low, and for good reason. The whole review process is easily corrupted or corroded if there is a perception engendered by the Tribunal that there is nothing that can be said to dissuade the Tribunal about its view; and
e)one can view the various comments (such as “When did you realise there was something wrong with you”) as questions that are not going to yield any answer which was probative of the question to be decided, and this must be taken into account in considering whether the Transcript, as a whole, evinces an apprehension of bias on the part of the Tribunal.
Minister’s submissions
The Minister’s written submissions in respect of ground 1 can be summarised as follows:
a)for an applicant to establish apprehended bias, they must demonstrate that the Tribunal behaved in a way which might lead the hypothetical fair-minded lay person to reasonably apprehend that the decision-maker might not have brought an impartial mind to making the decision. The authorities are clear that any claim of apprehended bias must be “firmly established”;
b)the Tribunal is allowed to vigorously test evidence where an applicant’s credibility is in issue: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [30]-[31] (“Ex Parte H”). The applicant’s credibility was in issue in the review by the Tribunal as his visa application had been refused by the delegate because the delegate found that the applicant’s claim that he is homosexual “is not credible”;
c)occasional displays of impatience and irritation or occasional sarcasm or rudeness do not of themselves establish disqualifying bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [91] (“SZRUI”);
d)the reasons delivered by a decision-maker are not relevant to the objective assessment required in an allegation of bias. An objective assessment of the Transcript does not demonstrate that a fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an impartial and unprejudiced mind to the resolution of the issue of whether the applicant is homosexual; and
e)in particular, the fact that the Tribunal said to the applicant that it did not believe that he was homosexual does not give rise to a reasonable apprehension of bias. Such advice gives the applicant knowledge of the Tribunal’s preliminary views and an opportunity to provide his own further evidence and the evidence of other witnesses to try and convince the Tribunal to the contrary.
The Minister’s submissions at hearing can relevantly be summarised as follows:
a)in the context of the whole of the Transcript, the Tribunal was fair and asked various probing questions such that the fair-minded lay observer would not consider that the Tribunal was not bringing a fair and open mind to its task;
b)this is a case where the delegate at first instance also did not accept the credibility of the applicant’s claims, and so the Tribunal had that decision before it, and all of the material upon which the delegate had based the initial decision;
c)the applicant’s submissions rely on a particular statement by the Tribunal after only half a dozen questions as indicative of a closed mind, yet the nub of the questioning of the applicant started before this where the Tribunal began questioning the applicant about his various visas; and
d)the Tribunal asked probative questions that tested the applicant’s claims and evidence, not just statements that rebutted the evidence.
Consideration
The test for apprehensive bias is well-settled and the parties here were both in agreement as to the relevant principles.
The relevant question here is whether the Tribunal conducted itself in a way that a fair-minded person would reasonably believe that the Tribunal had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].
As indicated by the High Court in Ex parte H at [28], the relevant test is:
…in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
The question here is whether the reasonable fair-minded observer, appraised of the fact the Tribunal was required to assess the probative value of evidence put before it by an applicant and test that evidence in considering whether or not it is satisfied that an applicant meets the criteria for a protection visa, would apprehend that the Tribunal was not open to persuasion.
The critical exchange the applicant relies on as indicative of the Tribunal not being open to persuasion is recorded as follows:
MEMBER: Are you saying you’re homosexual Mr [Applicant], tell me about [indistinct]
APPLICANT: Prior to where I was living at the Tribunal, I was staying there [indistinct] after the Immigration Office was at my house, I was not allowed to have any financial assets and from the little that I was doing, working at the kitchen, and before that, I was a student [indistinct] lost the house I was staying in and so for a while I was homeless for about [indistinct] one of my friends to come and have drinks and see how things are going with me and so from there we ended up at the Court pub nightclub at night which gay people normally go to. And so, from there, one of his friends [indistinct] that he used to go out with came and sat down with us, having a laugh and having a few drinks and I told him about my problem that I was going through and [indistinct] a place that he offered me, and a spare room and he let me stay in for a while until I sorted my issues out.
MEMBER: What are you referring to there?
APPLICANT: How I ended up being gay. [indistinct].
MEMBER: I don’t understand.
APPLICANT: What I’m trying to say is, from prior to me moving [indistinct] once I moved out of where I was staying, I ended up out with one of my friends [inaudible] and a place where gay people come through. One of his friends [indistinct].
MEMBER: So, when was this Mr [Applicant]? When did you say you went to the Court Hotel and this incident happened?
APPLICANT: This was in two thousand and nine around sometime in mid-July or August [indistinct].
MEMBER: Okay, what else do you want to tell me about your claim that you’re homosexual?
APPLICANT: I [indistinct] that very night ended up drinking [indistinct] and prior to that we started flirting and dancing around and from there, I had sexual intercourse with him and ended up moving in with him and stayed there for around, five to six months.
MEMBER: Would you like to give the name of the person you are referring to Mr [Applicant]?
APPLICANT: His name was [omitted].
…
MEMBER: What else can you tell me about him?
APPLICANT: [indistinct] He came from Sydney, but he applied for work in Brisbane.
MEMBER: What work did he do?
APPLICANT: He worked as being a bricklayer [indistinct], that kind of thing. But after that, I stayed with him for a while. He was going back to west parts of Sydney where he was supposed to be with his family and then [indistinct] family holiday in Europe. [indistinct]
MEMBER: So, all this occurred in two thousand and nine, is that right?
APPLICANT: Yep
MEMBER: Have you stayed in touch with [omitted]?
APPLICANT: We have not been in touch for a very long time. Before when he moved from, when he moved back to Sydney before he went to his holiday, we used to talk on the phone and [indistinct]
MEMBER: Do you have his phone number, his email address or his Facebook account? Anything like that?
APPLICANT: Nah, I don’t have any contact information. The contact, the mobile number that I had at that time, the phone that I had before I came into detention, I didn’t have any [indistinct] in the house that I was living in, I didn’t have any contact with him for after he left for Europe, I didn’t have contact with him for a very long time.
MEMBER: I just don’t believe that you’re homosexual Mr [Applicant].
(Emphasis added)
The applicant referred to [4] of SZRUI in support of his argument, which provides:
A person in the appellant’s position, if the possibility of the truthfulness of his need for protection is to be assumed, as the undergoing of the very process of review dictates, is entitled to an apparently fair and dispassionate hearing, free of the appearance of premature assertions of disbelief, laced with moralising speeches. That does not mean that robust, vigorous questioning is not permitted, indeed perhaps called for. If a body of evidence or history during the process of the hearing lacks credibility or coherence, the Tribunal may feel bound, in fairness, to point that out…
(Emphasis added)
Mr Crowley, for the applicant, argued that the statement emphasised above clearly indicates a premature assertion of disbelief. It was asserted that this comment, which occurred very early in the Tribunal hearing, indicated that the Tribunal was closed-minded and not open to persuasion. Further, anything that occurred thereafter (noting the “flavour” of the questions) was, accordingly, of no probative significance and showed no engagement by the Tribunal that would suggest that it was open minded.
The Court does not agree.
The Tribunal’s comment, “I just don’t believe that you’re homosexual”, was not, as argued by Mr Crowley, a “conversation killer”. The applicant says, in effect, that after this comment, “there was nowhere left to go”. However, the remaining 33 pages of the Transcript were almost solely dedicated to the applicant’s claim to be homosexual.
While perhaps stated poorly, the Tribunal can be taken here to have been expressing a tentative view. There is no error in the Tribunal expressing a “tentative view” (even on a critical matter) so long as the party is afforded the opportunity to rebut that view: Minister for Immigration & Citizenship v MZXPA [2008] FCA 185 at [15]-[17].
No doubt, the Tribunal may have better expressed the statement as “I’m struggling to accept you are homosexual”; however, when one reads the Transcript in full, it is clear that the Tribunal was open to persuasion and did not have a closed mind.
Relevantly, it is noted that the Tribunal closed the hearing with the following statement:
MEMBER: Well thank you for your evidence and I thank the witnesses even though they’re not here. I thank Ms Hill. My task now is to make a decision in terms of whether I’m satisfied that you stand a real chance of serious harm if you return to Kenya in terms of your sexuality. Critical in that will be deciding whether in fact you are homosexual as we’ve been talking about most of the morning. I’ll look at all the evidence and I’ll make a decision on that. I think, as I said before, if I find that I’m satisfied that you are, well then, I think it’s a pretty simple decision after that. But if I’m not satisfied that you are, well then, I think that the decision will be relatively simple after that as well. Because you’re not making any other claims really. Certainly, your claim, the race, the mixed racial background and so on. I can tell you now that I don’t, I’m not convinced by that and I know that you’re not really pushing that argument too much as well. I can understand that it would cause you problems, you probably don’t want to experience those sorts of problems but I’m not sure that they are of the scale that I would say invites persecution, serious harm or even significant harm. And so, it really is, turns on the question of your sexuality. I’ll have a look at all the evidence and make a decision based on that, Mr [Applicant].
(Emphasis added)
It is quite clear from this statement that the issue of whether the applicant was a gay male was still a live issue that the Tribunal was considering when the hearing closed.
Accepting that the test is one of possibility, and not probability, it is still the case that an allegation of bias must be “clearly proven”. Here, the Court is not satisfied that that is the case.
Grounds 1, accordingly, is dismissed.
Ground 2
The decision of the RRT was vitiated by a constructive failure to exercise jurisdiction, or a denial of procedural fairness, in that critically important corroborative evidence was not given proper, genuine or realistic consideration, namely the evidence of an independent witness that she had observed the Applicant and his then male partner kissing and cuddling.
Applicant’s submissions
The applicant’s written submissions in relation to ground 2 can be summarised as follows:
a)Ms O, a long-term friend, was to be called to give evidence that she was a ‘close friend of the claimant and that he [the claimant] told her [O] about his sexuality’;
b)Ms S was also to be called to give evidence that the claimant likewise told Ms S that he was homosexual;
c)because the ‘central claim’ was whether the applicant was in fact homosexual, the evidence of these two independent witnesses would have, at least prospectively, borne heavily on that issue;
d)one of the reasons for finding that the applicant was not homosexual was that ‘[o]ne of the witnesses … had never seen him in any relationships with men despite the fact that she claimed he had told her he was gay at the beginning of 2010 and she had known him since 2007’;
e)while true, Ms O’s testimony to the Tribunal corroborated the applicant’s central claim. Her evidence was that she had visited the applicant at the home he shared with his then male partner;
f)the Tribunal’s decision record does not fully capture this evidence directly, and would itself have been a ground of review, but the reasons do record the applicant’s then representative summarising Ms O’s evidence that she had been present with the applicant and his then boyfriend and had ‘seen the applicant sitting close and being affectionate with another man’;
g)the Tribunal did not state that it disbelieved Ms O’s evidence. Ms O’s evidence was direct and independent evidence that, if accepted, falsified the ultimate finding. If the Tribunal had considered that evidence, it might be expected that it would have addressed it in its reasons. The applicant invites the inference that Ms O’s evidence was not considered;
h)on the one hand the Tribunal notes Ms O’s evidence that she ‘met’ the applicant’s ‘purported’ partner at their home but is silent on Ms O’s evidence that, while there, the applicant and his ‘purported’ partner were “kissing and cuddling”. On the other hand, the Tribunal does set out in some detail comparatively peripheral matters, like the time spent with the applicant at a gay venue, and the applicant’s admission to Ms O about his sexuality;
i)jurisdictional error may be demonstrated by failing to consider critically relevant corroborative material;
j)in Minister for Immigration & Citizenship v SZRKT [2013] FCA 317 (“SZRKT”), Robertson J rejected any clear distinction between claims and evidence. The question is rather one of centrality. Hence, in that case a failure to consider an academic transcript was jurisdictional error in that the Tribunal disbelieved the applicant generally because it did not believe he had studied the subject referred to in the transcript; and
k)the reasoning in SZRKT is not relevantly distinguishable from this case. The failure to consider the evidence of Ms O was jurisdictional error because her evidence was independent, direct, and corroborative of the central issue for determination.
At hearing, Counsel for the applicant advanced the following submissions of note:
a)on any view, the matters the Tribunal refers to are tangential and not probative in relation to the matter that what was directly in front of the Tribunal: the primary evidence of Ms O who observed “canoodling” between the applicant and his partner. There is not a shred of reference to this evidence;
b)to reason, as the Tribunal did, that the tangential inconsistencies and ambiguities damaged the applicant’s credibility such that his claim to homosexuality must be disbelieved is not reconcilable to an inference that the Tribunal gave proper, genuine and realistic consideration to the particular aspect of evidence of Ms O, a witness the Tribunal accepted was a “witness of truth”; and
c)had the Tribunal confronted Ms O’s particular evidence (i.e, actually considered it and then not rejected it), then it would have virtually undermined the entirety of the Tribunal’s reasoning process. This is so because what the Tribunal did was compare what was said in the Tribunal hearing, point out discrepancies between what was said by the various witnesses and from those discrepancies reason that the applicant’s credibility was damaged. However, to have undertaken the statutory task, or made that finding legitimately, the Tribunal was required to confront Ms O’s primary evidence and say “I don’t believe that”, or “I do believe that”. Either way, it should have been referenced.
Minister’s submissions
The Minister’s written submissions in relation to ground 2 can be summarised as follows:
a)Ms O did not provide a witness statement, and her evidence before the Tribunal was that she had only met the applicant’s alleged partner on one occasion. The evidence by Ms O appears to pertain to the extent of her observation of the applicant’s relationship with his alleged partner. That evidence is not evidence of “kissing and cuddling” as claimed in ground 2, and is also not evidence of such significant weight that the Tribunal was legally bound to conclude that the applicant is homosexual;
b)the Tribunal expressly stated at [85] that it “considered Ms O’s claim that she met the applicant’s purported partner, Mr GD, when the applicant was living in the same house”. However, the Tribunal was not satisfied that her observations in relation to this one meeting and at the Court Hotel were “a reliable indicator that the applicant is homosexual when considered in the light of all the other evidence in this case, and in the light of the applicant’s unreliability as a witness of truth” (at [85]);
c)the Tribunal concluded at [87] that neither Ms O’s evidence, nor the evidence of another witness, Ms S, were “conclusive on the question of the applicant’s sexuality”. That was a conclusion that the Tribunal was entitled to reach and did not involve jurisdictional error;
d)Ms O’s evidence as to a solitary incidence of what appears to constitute no more than affection or closeness does not amount to “critically important corroborative evidence”;
e)in any event, that evidence was considered by the Tribunal and was not ignored, and nor was it disbelieved. The Tribunal simply weighed this evidence against all of the other evidence, including the Tribunal’s adverse view of the applicant’s credibility as a whole;
f)in all the circumstances, it cannot be said that the Tribunal’s conclusion at [90] that it was not satisfied that the applicant is homosexual was unreasonable or irrational or illogical having regard to Ms O’s evidence; and
g)the Tribunal’s process of reasoning needs to be considered in light of all of the evidence before it. The fact that a different decision-maker might have reached a different conclusion as to the applicant’s claimed homosexuality in light of all of the evidence before the Tribunal, including the evidence of Ms O, does not mean that the Tribunal’s decision was irrational or illogical or unreasonable.
At hearing, Mr Macliver, for the Minister, made the following submissions:
a)The Tribunal clearly had regard to Ms O’s evidence. While it is conceded that the Tribunal did not set out the evidence word for word as it appears in the transcript, it is inferable that at [33], the Tribunal was referring to the evidence that Ms O provided. There is also a clear reference to that evidence when summarising the agent’s submissions at [40];
b)paragraph [85] of the Tribunal’s decision must be read carefully and the Tribunal’s references to Ms O’s evidence of observing the applicant and his partner at their home, and the finding it did not consider these observations to be a “reliable indicator”, should indicate to the Court that the Tribunal considered Ms O’s evidence; and
c)having regard to the various paragraphs of the Tribunal’s reasons concerning Ms O’s evidence, the Court should not conclude that there was as failure by the Tribunal to have regard to the evidence of Ms O concerning her observations on the one occasion when she visited the house where the applicant and his purported partner were living.
Consideration
Again, context matters. Ms O’s evidence comprises approximately eight pages of the Transcript. The questions asked of Ms O were initially of a general nature, querying for example how she met the applicant. Evidence as to how she became aware of the applicant’s sexuality were then explored.
The critical passage of the Transcript provides as follows:
MEMBER: How do you know they were living together as a gay couple, not just sharing a house or a room?
MS O: They seemed quite open with each other.
MEMBER: In what way?
MS O: Quite themselves.
MEMBER: What do you mean?
MS O: Like not [indistinct] sat next to each other and hold hands and peck kissing.
MEMBER: Did what?
MS O: Peck. A kiss. Nothing too [indistinct] …
(Emphasis added)
Following this exchange, the Tribunal asked more questions about what evidence Ms O could provide about the applicant’s claim to be a gay male and the level of knowledge Ms O had about the applicant’s “visa problems”.
The applicant asserts that the exchange extracted above is not easily reconcilable with the Tribunal’s findings at [85]-[87] which provide:
85. The Tribunal considered Ms O’s evidence. It accepts that she and the applicant have been friends since 2008. She claimed that the applicant told her that her that he was gay. The Tribunal accepts that this may have occurred; however, having regard to all the evidence, it is not satisfied that the applicant is in fact homosexual. The Tribunal also considered Ms O’s claim that she met the applicant’s purported partner Mr GD when the applicant was living in the same house, and her claim that she spent time with the applicant at the Court Hotel. The Tribunal is not satisfied that these observations are a reliable indicator that the applicant is homosexual when considered in the light of all the other evidence in this case, and in the light of the applicant’s unreliability as a witness of truth. The Tribunal also observes that while the applicant appeared willing to confide with Ms O as to his claimed sexuality, he appeared to have been less willing to confide with her on the question of his visa cancellation which according to Ms O’s evidence he did not mention to her. The Tribunal considers this selectiveness raises very serious doubts about the reliability of the applicant’s statements made to Ms O.
86: The Tribunal considered Ms O’s evidence where she said that rumours came up about the applicant being homosexual and that at the parties some would talk about the possibility of the applicant being gay. The Tribunal places little weight on the reliability of the claimed rumours in this case having regard to its finding that it does not accept that the applicant is homosexual. The Tribunal does not accept that the rumours, if they circulated, would give rise to a perception that the applicant is homosexual or that the applicant would face a real chance of serious harm, or a real risk of significant harm, if he returns to Kenya now or in the reasonably foreseeable future for reasons of his sexuality.
87. The Tribunal does not consider Ms S, or Ms O, fabricated their evidence before the Tribunal; however, it does not accept that their observations or feelings are conclusive on the question of the applicant’s sexuality.
In SZRKT, the issue was whether the Tribunal had committed a jurisdictional error by ignoring corroborative evidence. It was stated that it is not always a jurisdictional error for the Tribunal to ignore relevant material, including corroborative evidence (at [122]).
The Minister argues that Ms O’s evidence was “considered”. The Minister also argued that the evidence was not “critically corroborative evidence”.
In SZRKT, the Court (at [112]) noted that when the Court is determining if the Tribunal is obliged to consider corroborative evidence it should consider the cogency of the evidentiary material and the place of that material in the assessment of the applicant’s claims.
This is a matter that relates to protection claims. The applicant’s central claim is that he is a gay male. As such, the cogency of Ms O’s evidence and the centrality of that evidence to the applicant’s claims cannot be disputed.
Like the ignored academic transcript in SZRKT, Ms O’s evidence was capable of corroborating the applicant’s evidence that he had been in a relationship with his “nominated friend”. This relationship was central to the applicant’s claim to be a gay male.
In this context, the Tribunal was obliged to consider Ms O’s evidence.
The question here is whether the Tribunal did consider the evidence or, rather, whether it fully appreciated the evidence.
The Court is not satisfied that the Tribunal did properly consider Ms O’s evidence.
The Tribunal acknowledged that Ms O had seen the applicant “sitting close and being affectionate with another man” when discussing the applicant’s evidence (see [33] and [40]).
The Tribunal did not, however, in the section of the decision titled “Consideration of Claims and Evidence”, expressly refer to Ms O’s evidence of the “peck”/“kiss”. The question here is whether the failure to do so means that the Tribunal has not actively and intellectually engaged with Ms O’s evidence and thereby fallen into jurisdictional error: BZD17 v Minister for Immigration & Border Protection [2018] FCAFC 94 at [45] (“BZD17”).
The Court notes the comments in Minister for Immigration & Citizenship v MZYZA [2013] FCA 572 as follows:
45. In SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 a Full Court of this Court (Heerey, Branson and Emmett JJ) considered a case in which a lawyer, acting for an applicant, sent three letters to the Tribunal. In its reasons the Tribunal specifically referred to two of the three letters. On review, the applicant argued in the Federal Magistrates Court that the Tribunal had erred by failing to have regard to the contents of the third letter which was said to contain relevant considerations. The Federal Magistrate rejected these contentions.
46. On appeal to the Full Court, their Honours said (at [25]) that:
“It is regrettable that the Tribunal referred to only two of the three letters sent to it under cover of the letter from the appellants’ lawyers … We agree that the express reference to two only of the three letters is capable of supporting an inference that the Tribunal did not consider the Police letter. However, the appellants are obliged to do more than point to material capable of supporting an inference that the Tribunal did not consider the Police letter. It is necessary for the appellants to demonstrate that, having regard to all of the evidence and other material before the Court, it would be appropriate to draw that inference; that is, the appellants must demonstrate, on the balance of probabilities, that the Tribunal did not consider the Police letter.”
47. In my view the first respondent, in the present matter, has failed to establish that it would be appropriate to draw the inference that the Tribunal did not consider the letter. On the contrary, the Tribunal’s reasons make it tolerably clear that it did so. The Tribunal referred to the fact that the letter had been sent and received. The Tribunal member must have read it because he questioned the first respondent about its contents. There could be a number of reasons why the member did not thereafter again refer to the letter. One of these may have been that he did not consider it necessary to do so having regard to authorities such as Addo, Iyer and SZDXZ. Whatever the reason, it cannot be inferred that the contents of the letter had not been considered. Furthermore, the statements in the letter did not support any new claim or any integer of a claim.
Here, having regard to all of the evidence as a whole and the Tribunal’s reasons, the Court is satisfied, on the balance of probabilities, that a critical aspect of Ms O’s evidence was not considered.
At [82], the Tribunal states as follows:
The applicant claimed that in 2009 he had a “fling”. He provided a name of this friend but no further evidence. The Tribunal accepts that if the nominated friend exists, there may be reasons why he would not want to give evidence of having had a “fling” with the applicant. The Tribunal·is not bound by the rules of evidence and may still accept a claim such as this made by an applicant, however, it would only do so if on all the evidence it found the applicant to be a reliable and credible witness. In this case, it does not.
At [83], the Tribunal refers to Ms S being unable to provide evidence of the applicant “being with a man”. While the Tribunal notes that this is not “fatal” to the claim, the fact that the Tribunal notes the absence of such evidence suggests that it would have been probative.
It is apparent that the Tribunal was seeking evidence that corroborated the applicant’s evidence/claim that he had had an intimate relationship with a man and that such evidence would have carried some weight. The Tribunal would not have noted the absence of evidence to this effect by Ms S at [83], or commented on the “nominated friend” being unable to provide evidence to this effect if the Tribunal did not consider that such evidence would be significant.
The fact that Ms O provided some evidence of an intimate same-sex relationship and the Tribunal makes no reference to this in the discussion at [85]-[87] leads the Court to infer that the Tribunal simply failed to consider or engage with Ms O’s evidence. It either disregarded it (without comment), overlooked it or forgot to address it.
The Tribunal’s reasons do not make it “tolerably clear” that it considered Ms O’s evidence. This is not a case where it can be said that the failure to mention this aspect of the evidence was because the Tribunal did not consider it material. The Tribunal’s reasons demonstrate that this evidence was sufficiently probative and obviously of some significance.
While, at [87], the Tribunal can be seen to have made a general comment that the evidence of Ms O (and Ms S) was not a “reliable indicator” of the applicant’s “homosexuality” the Court is not prepared to accept that this finding of greater generality subsumed the need to analyse Ms O’s evidence.
Ultimately, the applicant here is “left to guess” whether, if at all, the Tribunal engaged intellectually with Ms O’s evidence. It follows that the Tribunal has failed to engage in an active intellectual manner with the evidence of a critical witness on a matter central to the applicant’s claim to be owed protection and has thereby fallen into jurisdictional error: BZD17 at [50].
Ground 2, accordingly, identifies jurisdictional error.
Conclusion
On the basis of the above, the Court is satisfied that the Tribunal has fallen into jurisdictional error.
Accordingly, the application for judicial review is allowed. The matter is to be remitted to the Tribunal for reconsideration.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 13 November 2019
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