FEDERAL COURT OF AUSTRALIA

BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The appellant is to file and serve an amended notice of appeal within 7 days.

3.    Orders 2 and 3 of the orders made by the Federal Circuit Court on 15 December 2017 are set aside and in place of those orders, order that:

(a)    the decision of the Administrative Appeals Tribunal dated 28 April 2017 is set aside;

(b)    the appellant’s application for review is remitted to the Administrative Appeals Tribunal, differently constituted, to be heard and determined according to law; and

(c)    the first respondent is to pay the appellant’s costs of the proceeding, as agreed or taxed.

4.    The first respondent is to pay the appellant’s costs of the appeal, as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1.    INTRODUCTION

1    This is an appeal from the Federal Circuit Court of Australia (the FCC) given on 15 December 2018. That Court refused the appellant’s application for judicial review of a decision made by the Administrative Appeals Tribunal (the Tribunal) on 28 April 2017. By its decision, the Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), not to grant the appellant a protection visa under s 36 of the Migration Act 1958 (Cth) (the Act). The appellant is a citizen of Cameroon. He entered Australia on his Cameroon passport on a business visa in mid-2014 and applied for the protection visa shortly thereafter.

2    By an amended notice of appeal as elaborated upon in submissions, the appellant contended that the primary judge fell into error in a number of respects, including:

(1)    in failing to find that the Tribunal failed to give a proper, genuine consideration to the evidence of Mr C, a human rights and gay activist from Cameroon who gave evidence that he had known the appellant and the appellant’s deceased partner, Mr B, in Cameroon (Ground 1);

(2)    in failing to find that the Tribunal made adverse credibility findings which lacked any logical or probative basis, and were legally unreasonable in, relevantly, disbelieving that a homophobic attack on the appellant and his then partner, Mr B, occurred because it was not posted on social media or reported (the social media finding) (Ground 2(c)); and

(3)    in constructively failing to exercise jurisdiction by failing to provide adequate reasons for its decision and in failing to consider fundamental aspects of the appellant’s case (Ground 3).

3    The appellant seeks orders setting aside the FCC decision, quashing the Tribunal’s decision, and remitting the application for review to the Tribunal for determination according to law. In the alternative, the appellant seeks orders remitting the matter for retrial to the FCC by a judge of that Court other than the primary judge.

4    For the reasons set out below, the appeal must be allowed. First, in the circumstances of this case we consider that it is appropriate for this Court on appeal to consider the substantive grounds relating to the Tribunal’s decision, despite the failure by the FCC to provide adequate reasons and consider substantive aspects of the appellant’s case. Secondly, the Tribunal failed to discharge its jurisdiction by giving a proper, genuine consideration to the evidence and its decision is legally unreasonable.

2.    BACKGROUND

2.1    The appellant’s claims

5    We note that, in summarising the appellant’s claims, we have been mindful of the need to avoid details by reference to which his identity might inadvertently be disclosed. For this reason, his claims are summarised at a general level only.

6    The appellant claimed to fear persecution or significant harm if returned to Cameroon by reason of his homosexuality. He claimed to have had his first homosexual relationship at 18 years of age in Cameroon with a man who we will call Mr B, and that this relationship lasted for six years. However, he claimed that he was threatened and abandoned by his family because of the relationship, and then forced by them to marry. Despite this, he continued to meet Mr B. Eventually his wife found out about his continuing relationship with Mr B. Shortly thereafter the appellant and Mr B were attacked by a large group of people and beaten so badly that Mr B died from his injuries. The appellant said that he was then arrested on the ground that he was homosexual and he was taken to the police station despite being badly injured. An association promoting human rights was informed of his arrest and negotiated his removal to a hospital. The appellant said that he was unconscious on arrival. The appellant alleged that he spent two weeks in intensive care with a police officer posted to keep watch on him. He said that he began to recover and that a nurse who he knew previously then helped him to escape. He claimed that he went to the house of a gay European friend who helped him to gather the documents necessary for his business visa application to Australia.

7    As earlier mentioned, the appellant applied shortly after his arrival in Australia for a protection visa. Since arriving in Australia, he claimed to have engaged in gay relationships, gone to sex venues, and belonged to Grindr, a gay dating app. He also said that, while he had had no long-term relationships in Australia, he was looking for a long-term partner.

2.2    The evidence relied upon by the appellant

8    The appellant appeared before the Tribunal on 9 February 2017, 16 February 2017 and 19 April 2017 to give evidence and make submissions. His registered migration agent also attended the hearings which were conducted with the assistance of an interpreter in the French and English languages.

9    In support of his claims, the appellant provided a large body of documentary material and relied on the evidence of a number of witnesses. These included Mr C who gave a statutory declaration in support of the appellant’s claims and appeared before the Tribunal (Tribunal decision at [73]-[75]). Mr C said that he met the appellant and his then partner, Mr B, in Cameroon on a project for a human rights group, and that the appellant and Mr B were definitely a gay couple. The appellant and Mr C claimed to have met again by coincidence at the 2017 Mardi Gras in Sydney at which the appellant had been a volunteer. In addition, the appellant relied, among other witnesses, upon the evidence of Ms Goulding, a social worker at the Western Sydney Sexual Health Centre; and Mr Hill, a counsellor with 50 years’ experience working with gay, lesbian, and transgender individuals in a number of different capacities. Both Ms Goulding and Mr Hill had given extensive counselling to the appellant and expressed their professional opinions that the appellant was unquestionably a gay man.

2.3    The Tribunal’s reasons for decision

10    The Tribunal comprehensively rejected the appellant’s claims. Its reasons may relevantly be summarised as follows.

11    First, at the commencement of its reasons considering the appellant’s claims to fear harm by reason of his sexuality, the Tribunal found that:

87. Whilst the Tribunal appreciates that there can be no single test to determine whether a person is gay or not, and the applicant has submitted a range of reports and witnesses to state that he is unequivocally gay, the Tribunal is required to look at the totality of his evidence. This reveals the applicant to have consistently fabricated claims and to have been deliberate in his actions in order to present himself to a range of people as gay. Such is his lack of credibility that I am satisfied that the applicant is not homosexual, and there is no real chance he will face serious harm on return to Cameroon as a result of being perceived to be so.

12    Secondly, the Tribunal considered the appellant’s credibility by reference to perceived inconsistencies in his evidence, delay in raising certain claims, lack of documentary evidence to support certain claims, the perceived implausibility of certain claims, and difficulties in proving the authenticity of threatening emails said to have been received by the appellant after he arrived in Australia. The Tribunal in the course of this part of its reasons comprehensively disbelieved each aspect of the appellant’s claims including as to alleged early homosexual encounters, his long-term relationship with Mr B, the assault on the appellant and Mr B and its alleged sequelae, the appellant’s account of why he arranged to travel to Australia rather than to France, and the appellant’s claim that his business was broken into and his house ransacked (Tribunal reasons at [87]-[113]).

13    Thirdly, the Tribunal referred to the requirement in s 91R(3) (since repealed) of the Act requiring it to disregard conduct in Australia in determining whether an applicant has a well-founded fear of persecution, if the Tribunal found that the conduct was carried out for the sole purpose of strengthening a refugee claim. In this regard, the Tribunal found that:

114. … I do not believe that the applicant has either genuinely explored any homosexual behaviour or sought to live a genuinely homosexual lifestyle in Australia.

115. While the Tribunal understands that it is difficult to ascribe a test to determine one’s homosexuality, the Tribunal is also required to look at the totality of the applicant’s behaviour to determine the genuineness of his actions. He has been deliberate in his actions in trying to enter Australia and in constructing a fabricated history of trauma and homosexual behaviour in Cameroon, and I am satisfied that he has continued that deliberate construction of a fabricated profile once in Australia.

14    For this reason, the Tribunal disregarded for the purposes of assessing his claim for protection, the appellant’s attendance: at a service for gay Catholics in Sydney; at a sexual health clinic in Sydney where he had STI checks; at courses for single gay men in Sydney; at a protest for LGBTI rights in Melbourne; and as a volunteer at the Mardi Gras in Sydney in 2016 and 2017. Rather, the Tribunal found that:

116. … While I accept that the applicant was introduced to the gay Catholics service by John Hill and Phil Reilly… I find that his attendance there and the actions have been undertaken solely and strategically for the purpose of establishing a profile as a gay man and are not indicative for sexual orientation.

(references omitted)

15    Fourthly, having disbelieved the appellant’s claims to currently have a gay partner in Australia and the evidence given by that partner before the Tribunal (Tribunal reasons at [119]-[126]), the Tribunal then turned to consider the evidence of the other witnesses and supporting documents provided by the appellant. Aside from Mr C, the other witnesses had known the appellant only after his arrival in Australia and therefore could not attest to his claims to have suffered persecution in the past, as a result of identifying as a homosexual man in Cameroon, based upon their personal knowledge. The Tribunal accepted the expertise and experience of these witnesses and that they gave their evidence in good faith. However, the Tribunal did not accept their evidence because that evidence relied upon the appellant’s claims as to what had happened to him and his partner in Cameroon which the Tribunal had already rejected as fabricated. For the same reason, while accepting medical reports opining that the appellant is highly symptomatic for anxiety, depression and post-traumatic stress disorder, the Tribunal noted that these were based at least in part on the appellant’s description of the events in Cameroon which the Tribunal had rejected as fabricated (Tribunal’s reasons at [135]). The Tribunal also gave Mr C’s evidence “little weight”. It found that, if the appellant had had the level of involvement with a human rights group promoting gay rights that Mr C alleged, it was reasonable to believe that the appellant would have mentioned this well before he and Mr C coincidentally met at the 2017 Mardi Gras (Tribunal’s reasons at [132]-[133]).

16    The Tribunal also found that it appeared “anomalous” that “in an age of social media” there were no reports of the alleged brutal assault on the appellant and Mr B (and Mr B’s subsequent death). It was the Tribunal’s view that, while country information supported the claim that the Cameroon government seeks to control social media (although largely on terrorism issues), information about the alleged assault could have been passed on anonymously to activists outside Cameroon for them to post on social media (Tribunal’s reasons at [133]). We note that this is the “social media finding” referred to in Ground 2(c) of the amended notice of appeal.

17    The Tribunal concluded that it was not satisfied that the appellant was a person to whom Australia owed protection obligations under the Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137, as amended by the 1967 Protocol Relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267 (the Refugees Convention). The Tribunal therefore found that the appellant did not satisfy the criterion in s 36(2)(a) of the Act for the grant of a protection visa. For the same reasons, the Tribunal did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Cameroon, there was a real risk that the appellant would suffer significant harm on the basis of his claims so as to satisfy the complementary protection criterion in s 36(2)(aa) of the Act.

2.4    The decision of the FCC

18    By his amended application in the FCC, the appellant relevantly alleged that:

1.    The First Respondent (Tribunal) fell into jurisdictional error by failing to take into account independent corroborative evidence of witnesses based on its earlier finding that the Applicant had “been deliberate in his actions in trying to enter Australia and in construing and fabricating history of trauma and homosexual behaviour in Cameroon” and that “he has continued that deliberate construction of a fabricated profile in Australia”: D[115]

Particulars

…

b. The Tribunal had failed to properly consider the evidence of [Mr C], a man who had known the Applicant and his deceased partner in Cameroon, a human rights and gay activist from Cameroon, and whom [sic] had provided a statutory declaration and gave corroborating evidence at the Tribunal hearing.

2.    The First Respondent fell into jurisdictional error by making adverse credibility findings against the Applicant without any logical or probative basis; were based upon legal unreasonableness; arose from a misunderstanding or misconstruction of the evidence and/or were minor or trivial inconsistencies that could not support the adverse credibility findings.

…

c. The Tribunal’s reasoning that it disbelieved the homophobic attack on the Applicant and his then partner occurred, since it was not posted on social media or reported is legally unreasonable and/or lacks any logical or probative basis (D[133] and D[74]).

…

19    Grounds 1(b) and 2(c) of the amended application correspond with Grounds 1 and 2(c) of the amended notice of appeal respectively.

20    After hearing oral submissions on 15 December 2017, the primary judge immediately proceeded to dismiss the amended application giving ex tempore (i.e. oral and contemporaneous) reasons. The written reasons were not published until 24 January 2018, as a consequence of which the appellant was required to institute this appeal without the benefit of written reasons.

21    The reasons below first summarised the appellant’s claims for protection and the Tribunal’s reasons in some detail (FCC reasons at [3]-[14]). The primary judge then summarised the proceedings before him. The primary judge noted that no written submissions were filed on behalf of the appellant and addressed his oral submissions. No complaint is made of the primary judge’s reasons for holding that the oral submissions made by the appellant at the hearing did not identify any error of a jurisdictional kind. However, by Ground 3 of the notice of appeal, the appellant alleges that the primary judge erred in failing to give sufficient reasons for rejecting the appellant’s grounds of judicial review and in failing to give proper consideration to those grounds.

22    In this regard, the primary judge (after extracting the grounds of the amended application) held first that:

28. In relation to Ground 1, it was a matter for the Tribunal to determine what weight to give to the alleged corroborative evidence and to determine the applicant’s credibility. The Tribunal provided rational, logical, and reasonable reasons in support of the adverse credibility findings. Those reasons are summarised above. Those adverse credibility findings were open on the material before the Tribunal.

…

30. It is a matter for the Tribunal to determine what weight to give to the evidence that was adduced in support of the applicant and the Tribunal rejected the applicant’s claims in relation to the death of his partner. Those adverse credibility findings were open for the reasons given by the Tribunal. No jurisdictional error is made out by Ground 1.

23    Secondly, the primary judge relevantly found that:

31. In relation to Ground 2, this seeks to attack the adverse credibility findings and asserts that the findings that are subject of legal unreasonableness all arose from misunderstanding or misconstruction of the evidence. There was no misconstruction or misunderstanding of the evidence made out. Further, for the reasons already given, the adverse credibility findings were open for the reasons given by the Tribunal and cannot be said to lack an evident and intelligent justification.

32. … It was open to the Tribunal to take into account the absence of social media or reporting in respect of the alleged attack and/or in respect of the alleged charges. No misunderstanding or misconstruction of the applicant’s evidence is made out. In substance, Ground 2 seeks to invite this Court to engage in impermissible merits review. No jurisdictional error is made out by Ground 2.

3.    DID THE PRIMARY JUDGE ADEQUATELY TRY THE APPLICATION FOR JUDICIAL REVIEW (GROUND 3)?

24    The appellant, who was unrepresented below, does not appear to have made submissions directed to his grounds of review (bearing in mind that there is no transcript of the argument below). However, the grounds in his amended application raised potential jurisdictional errors by the Tribunal and gave proper particulars. As such, it was incumbent on the primary judge properly to consider whether or not those grounds were made out and to give reasons as an incident of the judicial process in line with the principles recently confirmed in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 353 ALR 641 (DAO16) at [47] (the Court).

25    There was, however, no real engagement by the primary judge with (relevantly) Grounds 1(b) and 2(c) of the amended application. The reasons merely assert conclusions. For example, to state that “adverse credibility findings were open for the reasons given by the Tribunal” does not explain why the findings challenged by Ground 2 were open and why the challenge to those findings should be rejected. It follows that the primary judge has rejected the grounds of judicial review at such a high level of generality that the basis for his conclusions is not exposed, as was also the case in DAO16 at [48]. Indeed, the primary judge’s reasons do not address at all the alleged failure by the Tribunal to give proper consideration to the evidence of Mr C raised by Ground 1(b) of the application for review.

26    For these reasons, this case is not one in which the primary judge gave reasons for his decision, albeit brief, as the Minister submitted. Rather, we consider that the FCC has failed to give sufficient reasons and to adequately try the appellant’s substantive grounds of judicial review. The fact that the reasons were delivered ex tempore does not mitigate that conclusion: AXL16 v Minister for Border Protection [2018] FCA 208 (AXL16) at [21] (Perram J). This raises the question of whether the matter should be remitted to the FCC for determination by a judge of that Court other than the primary judge, as sought by the appellant in the alternative.

27    Some guidance on this issue can be gleaned from AXL16. In that case, Perram J held that the case had not been adequately tried by the primary judge and, as a consequence, declined to decide the substantive ground, remitting the matter instead to the FCC. His Honour did so on the following basis:

26. … In light of the above findings this case has not yet been adequately tried. The Federal Court of Australia Act 1976 (Cth) confers appellate, not original, jurisdiction on the Court in cases such as the present: s 24(1)(d). The exercise of appellate jurisdiction is concerned with the correction of error: Branir Pty Ltd v Owston Nominees (No. 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 at [20]-[25]. It would erode the appellate nature of this Court’s jurisdiction if it were routinely to carry out the Federal Circuit Court’s work for it: SZKLO v Minister for Immigration and Border Protection [2008] FCA 735 (‘SZKLO’) [41] per Flick J.

28    Furthermore, as Perram J emphasised in AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; (2015) 231 FCR 452 (AAM15):

14. … Pt 8 of the [Migration Act], which regulates judicial review of refugee determinations, ensures that there is one substantive trial in the Federal Circuit Court followed by one substantive appeal to this Court followed by a more cursory review by the High Court. If this Court, in substance, determines a case at first instance… this structure is thwarted because no appeal lies to the High Court other than by special leave which is rarely granted and then only on the grounds set out in s 35A of the Judiciary Act 1903 (Cth). If the matter is effectively tried in this Court then the appellant is denied a layer of appellate scrutiny.

29    The approach adopted by his Honour in AAM15 is consistent with the fact that, following the advent of special leave to appeal to the High Court, intermediate courts of appeal ought in general to be regarded as the final courts of appeal: Morris v R (1987) 163 CLR 454 at 475 (Dawson J) cited with approval in Smith Kline & French Laboratories (Aust) Ltd v Commonwealth (1991) 173 CLR 194 at 217-218 (the Court). As, by analogy, Kirby J, writing extra-judicially, has observed:

The interposition of the Court of Appeal in England produced ‘two tier appeals’, with a further avenue of appeal to the House of Lords, either by leave of the Court of Appeal or by the Law Lords themselves. However, as Sir Raymond Evershed explained in 1951, ‘[t]he Court of Appeal is the final court, in fact, for ninety-five per cent of the civil cases.’ The same was quickly to prove the case after the creation of the Australian permanent courts of appeal.

(Kirby, M, "Judicial Supersession: The Controversial Establishment of the New South Wales Court of Appeal" (2008) 30(2) Sydney Law Review 177)

30    We agree that the considerations identified in AXL16 and AAM15 tell strongly against this Court ordinarily determining substantive grounds of judicial review which the FCC has failed to determine. Nonetheless in the circumstances of this case, we consider that there are a number of compelling factors against remitting the matter to the FCC. First, both parties submitted at the hearing that they wish the substantive issues on the appeal to be determined by this Court. Secondly, this is a case where, for the reasons given below, the errors are so apparent from the Tribunal’s reasons that there would be no apparent utility in remitting the matter to the FCC. As such, we consider that the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth) would best be served by this Court determining the substantive grounds of review of the Tribunal’s decision, as reflected in Grounds 1 and 2(c) of the amended grounds of appeal.

4.    WAS THE TRIBUNAL’S DECISION MADE ACCORDING TO LAW (GROUNDS 1 AND 2)?

4.1    Relevant principles

31    The relevant principles by which to assess Grounds 1 and 2(c) of the amended notice of appeal were not in issue.

32    It is well established that findings as to credit are not immune from judicial review. Rather, as the Full Court recently held in DAO16 at [30(1)]:

While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings … are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).

33    Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as: legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](d)); or a failure to give a proper, genuine and realistic consideration to the issues and material before the decision-maker.

34    As to the former, a decision might be said to be illogical or irrational if, for example, a decision was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [135] (Crennan and Bell JJ); see also e.g DAO16 at [30]. Furthermore, findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error: SZMDS at [132] (Crennan and Bell JJ). This is particularly so where, relevantly, the adverse credibility finding was a critical step in the Tribunal’s decision that it was not satisfied that an applicant met the criteria for the grant of a visa: DAO16 at [30(4)] (approving Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [56] (Wigney J)).

35    As to the latter, it is necessary for a decision-maker to engage actively with the relevant issues. As Flick J, for example, explained in Islam v Cash [2015] FCA 815; (2015) 148 ALD 132 (Islam v Cash):

14. … Mere advertence to a consideration, it is accepted, without any analysis may not be sufficient: Elias v Commissioner of Taxation [2002] FCA 845 at [62], (2002) 123 FCR 499 at 512. For a consideration to be properly taken into account, a decision-maker must give more than mere “lip service” to a relevant consideration: Anderson v Director-General of the Department of Environment and Climate Change [2008] NSWCA 337 at [58], (2008) 251 ALR 633 at 651 per Tobias JA (Spigelman CJ and Macfarlan JA agreeing). There must be “proper, genuine and realistic” consideration of those matters that are required to be taken into account: Williams v Minister for the Environment and Heritage [2003] FCA 535 at [29] to [30], (2003) 74 ALD 124 at 130. Wilcox J there cited with approval the following observations of Gummow J in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291:

“[W]hat was required of the decision maker … was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy ... The assertion by a decision maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense ...”

36    Similarly, in Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 at [48]-[49], the Full Court referred to the need for there to be “an active intellectual engagement” with the consideration in question and explained that a party should not be “left to guess” what role, if any, that consideration had played in the decision. Thus, in MZYPW v Minister for Immigration and Citizenship, the Full Court held that the Tribunal had fallen into jurisdictional error by failing to engage with the substance of the applicant’s submission in that it had merely recorded that a “submission” was made by the visa applicant and left unstated how the submission was resolved: [2012] FCAFC 99; (2012) 289 ALR 541 at [19]-[20] (Flick and Jagot JJ) and at [38] (Yates J). Similarly, “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it”: SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (Flick J) (citing WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 437; (2002) 194 ALR 676 at [54] (Lee and Nicholson JJ)); see also e.g. SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [34]-[37] (Logan J). Unwarranted assumptions may also establish that a finding is illogical, irrational or not founded on any probative evidence: see e.g. DAO16 at [45] (the Court).

37    Finally, as the Minister emphasised, a high degree of caution must be exercised before finding that adverse findings as to credit expose jurisdictional error, in order to ensure that the Court does not impermissibly embark upon a review of the merits of a visa applicant’s claims: SZMDS at [96] (Crennan and Bell JJ) and SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 at [14]-[15] (Flick J). As the Full Court in DAO16 explained at [30(5)]:

… to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].

38    Equally, the authorities have emphasised the need for caution in determining whether there has been a proper, genuine, or realistic consideration: see e.g. Minister for Immigration v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [34]-[36] (the Court); Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426 at [60] to [64] (the Court); Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171 (2007) 153 LGERA 450 at [76] (Basten JA). Notwithstanding that concern, the formulation of a proper, genuine and realistic consideration “nevertheless remains a useful touchstone to ensure that consideration given to a particular matter is such consideration as is required by law”: Islam v Cash at [14] (Flick J).

4.2    Did the Tribunal fail to engage in a proper, genuine and realistic consideration of Mr C’s evidence (Ground 1)?

39    As counsel for the Minister accepted, having dismissed the appellant’s own evidence and that of the other witnesses on the basis that they had relied upon the appellant’s fabricated history in Cameroon, the evidence of Mr C was critical. He was the only witness who claimed to have met the appellant and Mr B in Cameroon some three years before the appellant left for Australia and applied for a protection visa, to have personally observed the relationship between the appellant and Mr B, and to have personal knowledge of their active involvement in his organisation concerned with the human rights needs of gay people in Cameroon. In other words, if Mr C’s evidence were accepted, the Tribunal would have been required to consider whether the appellant would suffer a real risk of persecution or significant harm if returned to Cameroon on the basis of his sexual orientation. Indeed, even if not accepted, if Mr C’s evidence raised a real doubt in the Tribunal’s mind about its rejection of the appellant’s claims, the Tribunal would have been required by law to consider whether the appellant had a well-founded fear of persecution or faced a real risk of significant harm on the assumption that its conclusions as to the appellant’s sexuality were wrong (the so-called “what if I am wrong” test). As the Full Court recently held in DAO16 (with respect, in that case, to complementary protection under s 36(2)(aa) of the Act):

36. Furthermore, the AAT must be taken to have entertained no real doubt about the falsity of appellant’s claim as to his sexuality. If the AAT had entertained any real doubts, it would have been required to consider in the alternative whether there was a “real risk” that the appellant may suffer “significant harm” as defined in s 36(2A) of the Act on the assumption that it was wrong in finding that claim to be fabricated: see Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) at 576 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ); see also Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 (Sackville J at [62] (North J agreeing)). In this regard, it is important to emphasise that it suffices to establish a “real risk” for the purposes of s 36(2)(aa) if there is a reasonable possibility of the harm occurring even if that risk is less than 50%, that is, the level of risk required is the same as that for s 36(2)(a): Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 at [246]-[247] (Lander and Gordon JJ) (Besanko and Jagot JJ agreeing at [296] and Flick J at [342]).

40    With respect to Mr C’s knowledge of the appellant while the appellant was still in Cameroon, Mr C gave detailed evidence to the following effect.

(1)    Mr C had significant involvement in human rights and worked for the rights of homosexual men including with respect to a non-government organisation (the healthcare NGO) established for the purpose of providing health care to a particularly vulnerable group of homosexual men.

(2)    Mr C met the appellant and his partner, Mr B, in 2011 at an international event commemorating violence against gay people while Mr C was working on a human rights project supporting the rights of sexual minorities and gay men in Cameroon (the project). That project was financed by the European Union and was carried out in collaboration with another organisation (the collaborating organisation).

(3)    Mr C gave a reason as to why he remembered the date on which he met the appellant and Mr B and remembered that he met them at the unmarked and secured location of the collaborating organisation. That location was said to be known, and accessible, only to gay people.

(4)    Mr C saw the appellant about once a month and Mr B more often.

(5)    Mr C gave evidence about the appellant and Mr’s B’s personalities, saying that Mr B stood out because of his funny and open personality, while the appellant was more responsible and reserved, and worked a lot.

(6)    Mr B was a regular attendee at education sessions organised at the premises of the collaborating organisation.

(7)    Mr B and the appellant had donated goods regularly to the collaborating organisation to assist with the project.

(8)    Mr C saw the appellant and Mr B together at least four times in 2011, and observed with respect to their relationship that they looked very close and happy together, and that it was evident that Mr B loved the appellant a lot from the way he smiled and looked at him.

41    Furthermore, published articles were before the Tribunal relating to a break-in at, and ransacking of, the healthcare NGO which referred to that centre’s work and to Mr C’s involvement, and other articles referring to Mr C and his work in the context of reporting on the extent of discrimination and persecution of homosexual men in Cameroon.

42    The Tribunal dealt with Mr C’s evidence in the following passages:

132. Further, I have taken into account the post-hearing statutory declaration from, and appearance at the third hearing by [Mr C] who claimed to have been a human rights and gay activist in Cameroon and to have met [Mr B] and the applicant together. I also lend this little weight. He mentioned the applicant and [Mr B] being active in supporting the organisation, bulk buying condoms and lubricants for the centre, while the applicant also used his friends in Europe to bulk buy the same in Europe and bring them to [Cameroon].

133. The applicant never mentioned in his application, his interview with [the] DIBP [i.e. the Department for Immigration and Border Protection], either of his two hearings or in any of the submissions about this level of activity with a human rights group and it is reasonable to believe that this would have been mentioned well before the appearance of a person the applicant coincidently met at the 2017 mardi gras…

(emphasis added)

43    I note that while the Tribunal refers at [132] to the “post-hearing statutory declaration” from Mr C, the declaration post-dates only the first and second hearings before the Tribunal held on 9 February 2017 for approximately 2 ½ hours and 16 February 2017 for approximately 3 hours. However, there was a further hearing on 19 April 2017, which lasted approximately 1½ hours. Mr C’s statutory declaration was made on 14 March 2017 and therefore before the third hearing where he, and a number of other witnesses, gave evidence before the Tribunal.

44    The Minister submits, in effect, that the Tribunal found that this case is one of the “rare” cases where a party’s credibility has been so weakened that the tribunal of fact may treat what is proffered as corroborative evidence as being of no weight because “the well has been poisoned beyond redemption”: SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638; (2008) 105 ALD 25 (SZDGC) at [23]-[24] and [27] (Finkelstein J) (citing Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 (S20/2002) at [49] (McHugh and Gummow JJ); see also Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485 at [36]-[39] (North and Lander JJ) and [50] (Katzmann J).

45    In our view, however, these passages reveal a failure by the Tribunal to give a proper, genuine, and realistic consideration to the evidence of Mr C. In this respect, it is true that the High Court held in S20/2002 that it is not irrational (albeit not necessarily preferable) for the finder of fact to focus “first upon the case as it was put by the appellant”, before considering the alleged corroboration. However, this does not mean that the finder of fact can ignore the allegedly corroborative material and fail to consider it in an intellectually active way (WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 at [27] (Lee and Moore JJ); semble SZDGC at [23] (Finkelstein J)). For example, as in DAO16, a finding that a visa applicant’s evidence is not credible may not of itself provide a logical or rational basis on which to dismiss all of the corroborative evidence and, once the corroborative evidence is considered, it may at least raise a doubt about whether the whole of an applicant’s claims should in fact be rejected, thereby enlivening the obligation to consider the alternative scenario that the applicant’s claims might be correct.

46    In this regard, while the Tribunal states that it gives Mr C’s detailed evidence about the appellant and Mr B “little weight”, logically (as the Minister accepted) the Tribunal decision must be read as having rejected the totality of that evidence. The question then arises as to the reasons, if any, that the Tribunal gave for its comprehensive rejection of Mr C’s evidence regarding the appellant and Mr B.

47    First, there is no suggestion by the Tribunal, for example, that Mr C mistakenly confused the appellant with someone else.

48    Secondly, while the Tribunal finds at [87] that the “totality” of the appellant’s evidence reveals that he has “consistently fabricated claims and [has] been deliberate in his actions in order to present himself to a range of people as gay”, there is no consideration of why the appellant might have presented himself to Mr C as a gay man in Cameroon if that was not true. Mr C’s evidence was that he met Mr B in Cameroon in or around mid-May 2011, whereas the appellant did not arrive in Australia and apply for a protection visa until mid-2014, some three years later. As such, to the extent to which the Tribunal gave any real consideration to Mr C’s evidence, it must be inferred that the Tribunal found that Mr C’s evidence was fabricated, as the Minister accepted.

49    Thirdly, there is no attempt by the Tribunal to analyse Mr C’s evidence and explain why he must have lied. It appears from the Tribunal’s reasoning at [133] that the Tribunal relied upon the alleged failure by the appellant to mention his involvement in the human rights group run by Mr C, but this does not logically explain why Mr C would have lied about that involvement and his prior association with the appellant and Mr B. Nor does the Tribunal give any consideration as to why Mr C might have fabricated such an elaborate story. It seems that the Tribunal even doubts Mr C’s evidence to have been a human rights activist for gay people in Cameroon, describing this merely as “claimed” by Mr C, without giving any apparent consideration to the press reports of Mr C’s significant activities in this field in Cameroon.

50    As such, ultimately the appellant is “left to guess” why the Tribunal rejected Mr C’s evidence and whether, if at all, the Tribunal engaged intellectually with that evidence. Applying the principles earlier referred to, it follows that the Tribunal has failed to engage in an active intellectual manner with the evidence of a critical witness and has thereby fallen into jurisdictional error.

51    In addition, we note that the transcripts of the Tribunal hearings also disclosed a troubling lack of any attempt to engage intellectually with the substance of Mr C’s evidence in the Tribunal’s questioning of Mr C. The Tribunal’s questioning of Mr C occupies less than three pages of the transcript and focuses only upon why the appellant had not mentioned that he and Mr B had volunteered on Mr C’s project and why the alleged attack on the appellant and Mr B was not reported by any gay rights organisation publicly or otherwise. The Tribunal never put to Mr C that his evidence was fabricated or sought to explore why that might be the case.

4.3    Is the “social media finding” illogical, lacking a probative basis, or otherwise legally unreasonable (Ground 2(c))?

52    Given our findings, there is strictly no need for the Court to consider the other grounds raised by the appellant. However, as in DAO16, the gravity of our concerns extends beyond the issues raised by the first ground of appeal and, were it necessary, we would have upheld the appeal in any event on Ground 2(c).

53    Ground 2(c) challenges the validity of the Tribunal’s decision on the ground that the Tribunal’s reasons for finding that the homophobic attack on the appellant and Mr B did not occur, namely, because it was not posted on social media or otherwise reported in the media, was legally unreasonable.

54    Mr C gave evidence on this subject as follows:

There are times when such crimes are published in the media but not alays [sic]. There are many reasons not to publish. For example, the protection of activists – people are afraid.

Often such crimes just remain in the archives of an organisation. All human rights organisations in Cameroon run the risk of raids, such as my organisation suffered, where records and archives of crimes are destroyed so that the inteternational [sic] community never learns of them.

I know through my own work I think carefully when to publish and when not published. It depends on the climate at the time. Sometimes we did not publish as the government would think we were trying to promote sex work or homosexuality.

There are also threats from the local government – if you report on gay human rights violations, the local government will shut you down.

55    Mr C was questioned by the Tribunal at the hearing about the absence of any report in the news or otherwise of the alleged attack on the appellant and Mr B. He gave evidence that not every assault or attack on homosexual people is reported, although his own arrest some years earlier was reported because of his status as a human rights activist. However, he also gave an example of a named colleague who was an activist but whose killing in 2012 was never reported. Further, with respect to a question “about in the age of social media, people getting this news out to the world, or just somewhere else in Africa, for them to get it out”, Mr C gave evidence that “in our country the social media is – is being controlled, so – and us, as activists, when we – we try to – to denounce these – what was happening, we would receive threats.”

56    In its reasons, the Tribunal, however, found that:

133. … I also note that there are no public reports of the alleged incident in which [Mr B] and the applicant were brutally assaulted and in which [Mr B] allegedly died. In an age of social media this appears anomalous. There is country information that supports the claim that the Cameroon government seeks to control social media (although this largely relates to terrorism issues), however information regarding the alleged assault could have been passed on anonymously to activists outside Cameroon for them to post on social media if it was too hard to do in Cameroon.

134. I also do not accept, as was argued post-hearing… that if reports are made about assaults against gays they are generally those that concern high-profile activists such as himself [i.e. Mr C] who have access to external support outside Cameroon. A basic internet search reveals reports of alleged assaults and deaths of gays in Cameroon who don’t have a high-profile. It is reasonable to believe that if these stories have been posted on social media then the account of the applicant’s alleged assault would also have been reported on.

(emphasis added)

57    The Tribunal also noted at [74] that it had put to Mr C that “surely given the presence of gay rights groups there would have been some way of getting this information out”.

58    As the appellant submitted, however, the finding that the information regarding the assault could have been passed on anonymously to activists outside Cameroon for them to post was not supported by any evidence; indeed the only evidence suggested the contrary. That unwarranted assumption, in turn, was relied upon by the Tribunal as material in forming its view as to the credibility of the appellant. In our view this was an error of the kind identified by Flick J in SZVAP at [22]: see above at [36].

4.4    Other concerns about the Tribunal’s reasoning

59    Nor as emerged during oral argument, was the Tribunal’s decision otherwise without serious difficulties. Two examples suffice. First, the appellant’s first alleged homosexual encounter with another boy in his school’s bathroom was found to be implausible, in part, because of the curious and unfounded assumption that it would be unusual for a teacher to allow two students to leave the classroom at the same time to go to the toilet (Tribunal reasons at [90]).

60    As a further example, we have serious doubts as to whether the Tribunal gave proper, genuine and realistic consideration to the written and oral evidence of Ms Goulding, a social worker at the Western Sydney Sexual Health Centre, with whom the appellant had received face-to-face counselling on at least 25 occasions, and the psychological report of Mr Hill which was based on over 50 counselling sessions with the appellant over a three-year period. The Tribunal acknowledged that Ms Goulding and Mr Hill had spent extended periods of time with the appellant and had strongly attested to his identifying as a gay man (Tribunal reasons at [71] and [128]). Nonetheless, the Tribunal found it was unable to lend “much weight” to Ms Goulding’s evidence and apparently rejected her and Mr Hill’s evidence on the ground that their opinions were based on a traumatic history which the appellant had fabricated (Tribunal reasons at [128]-[130]). However, that reasoning does not demonstrate any intellectual engagement with the opinions expressed by these experts that the appellant could not have maintained a false sexual identity throughout these consultations, given their duration and intensity. It also suggests that the Tribunal paid “lip service” only to their evidence in apparently accepting their expertise and experience at [127] of its reasons.

5.    CONCLUSION

61    For the reasons set out above, the appeal is allowed. While the FCC failed to determine the appellant’s substantive grounds of judicial review, in the circumstances of this case it is appropriate for this Court to determine those grounds on the appeal. Having done so, we consider that the Tribunal failed to discharge its jurisdiction by giving a proper, genuine consideration to the evidence and that its decision is legally unreasonable. As such, the Tribunal’s decision must be set aside and the matter remitted to the Tribunal constituted by a different member to reconsider the appellant’s review application according to law.

Associate:

Dated:    25 June 2018