FEDERAL COURT OF AUSTRALIA

SZTNY v Minister for Immigration and Border Protection [2015] FCA 418

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent as agreed or assessed.

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

REASONS FOR JUDGMENT

1    The appellant appeals from a judgment dated 6 February 2015 of the Federal Circuit Court of Australia (FCCA). The FCCA dismissed an application for judicial review of a decision dated 24 October 2013 of the Refugee Review Tribunal (Tribunal). The Tribunal affirmed a decision of the Minister’s delegate rejecting the appellant’s application for a Protection (Class XA) Visa. Essentially, the appellant claimed to fear harm in Bangladesh on account of his sexual orientation. He claimed to be in an ongoing homosexual relationship with his male partner (SZQYV).

Background matters summarised

2    On 1 December 2006, the appellant, a citizen of Bangladesh, arrived in Australia on a student visa. On 6 October 2010, he applied for the protection visa. On 30 May 2011, the Minister’s delegate refused to grant the protection visa.

3    On 16 June 2011, the appellant applied to the Tribunal for review of the delegate’s decision. On 17 November 2011, the Tribunal affirmed the delegate’s decision. On 3 December 2012, that decision was set aside by the FCCA and the matter was remitted to the Tribunal to be determined according to law. The jurisdictional error found by the Court related to the Tribunal’s failure to consider evidence contained on a compact disc of photos. Those photos were claimed to have depicted the appellant having sex with SZQYV.

4    On 7 May 2013, the appellant attended a hearing before the newly constituted Tribunal. SZQYV also attended a hearing before the Tribunal on that same day. The appellant's claims were inter-related with the claims made by SZQYV in relation to his own application for a protection visa. The appellant was represented by his registered migration agent at the hearing. On 10 May 2013, the Tribunal invited the appellant to respond to certain information arising from the appellant’s application for review and the hearing, including details about his other sexual experiences in Bangladesh, his relationship with SZQYV in Bangladesh, his other sexual experiences in Australia, his lack of awareness about SZQYV’s educational and work history, the circumstances surrounding another Bangladeshi, Mr Rabbi, becoming a flatmate of the appellant and SZQYV and the circumstances surrounding the attendance of the appellant and SZQYV at the 2013 Mardi Gras. The appellant ultimately responded to that invitation.

5    On 24 October 2013, the Tribunal affirmed the delegate's decision. The appellant sought judicial review of that decision by an application filed in the FCCA on 22 November 2013. By orders dated 6 February 2015, that application was dismissed.

6    On 27 February 2015, the appellant appealed to the Court. Directions were made on 3 March 2015 for the hearing of the appeal on 5 May 2015.

Tribunal's proceedings

7    The Tribunal did not find the appellant to be a credible or truthful witness. It also found that SZQYV’s evidence was not credible and his claims should be disbelieved. It found that the appellant was not in fact homosexual and that any claims relating to his sexuality and homosexual experiences were a fabrication, including his claimed homosexual relationship with SZQYV. It found that the appellant had fabricated his claims in order to achieve an “immigration outcome”. The Tribunal’s finding that the appellant gave inconsistent evidence included references to:

(a)    his claimed sexual experiences in Bangladesh. These inconsistencies related to the timing of his relationship with SZQYV and the duration of the relationship. The Tribunal was not satisfied with the appellant's explanation of the inconsistencies when they were put to him. In the Tribunal’s view the changes in the appellant's evidence regarding such matters, which were purportedly significant events, were indicative of the appellant' s lack of credibility and the unreliability of his evidence. Accordingly, the Tribunal was not prepared to accept any of the appellant's claims in this regard;

(b)    the nature of his relationship with SZQYV and the extent of their sexual activities. The Tribunal found that the appellant's attempt to address significant flaws in his evidence was nothing more than a selective manipulation of evidence in his favour, particularly with respect to how he characterised ‘sex’ and ‘sexual relationships’. The Tribunal found that the discrepancies in relation to the appellant's description of his physical/sexual relationship with SZQYV in Bangladesh and Australia seriously undermined the credibility of his claims regarding his sexual orientation. It was not prepared to accept the appellant's claims in this regard; and

(c)    his sexual experience with persons other than SZQYV in Australia. As with the appellant's other inconsistent evidence, the Tribunal was not satisfied with the appellant's explanation of these inconsistencies. It considered that the appellant's account of his sexual experience in Australia was unreliable and entirely devoid of credibility. Accordingly, it did not accept any of his claims in this regard.

8    The Tribunal found that the appellant's evidence indicated that he had no knowledge of SZQYV’s circumstances, including where SZQYV had studied or where he was working, at the time of their claimed meeting and alleged relationship in Bangladesh. It found that the evidence in this regard cast doubt on the truth of his claims and demonstrated his preparedness to manipulate and tailor evidence to achieve his own purposes.

9    The Tribunal also found it incredible that the appellant and SZQYV had decided to share a flat in Sydney with a fellow Bangladeshi (Mr Rabbi), given the appellant's claim to fear the Bangladeshi community's attitude towards his homosexuality

10    The Tribunal did not give any weight to statutory declarations made by Mr Rabbi, Mr Sarwar (a workmate of the appellant who said that he believed the appellant and SZQYV to be gay) and SZQYV, given the fundamental lack of credibility within the appellant's evidence.

11    Whilst the Tribunal accepted that the appellant and SZQYV shared a place in Sydney, had a joint bank account, shared expenses and travelled and socialised together, these matters did not outweigh the numerous problems it had identified in the evidence. Nor did it establish that the appellant was gay or involved in a homosexual relationship with SZQYV.

12    The Tribunal accepted that the appellant had attended the Sydney Gay and Lesbian Mardi Gras and joined a gay club called the 'Taxi Club'. It also accepted that the appellant may have attended other gay clubs and parties in Australia, as well as events organised by the group Trikone. However, having regard to the significant lack of credibility in the appellant's evidence, the Tribunal was not satisfied that the appellant's conduct in Australia had been otherwise than for the purpose of strengthening his protection claims.

13    The Tribunal considered the photographs submitted by the appellant regarding his sexual activity with SZQYV and accepted that he had sexual intercourse with SZQYV on one occasion. However, in the Tribunal's view this did not outweigh the numerous problems with the appellant's other evidence. It found that the fact that the appellant had engaged in sex with SZQYV on one occasion did not establish that he was gay. It was not satisfied that the appellant engaged in the sexual activity depicted in the photograph otherwise than for the sole purpose of strengthening the appellant's protection claims.

14    The appellant also relied on two reports by Dr Paul Andrews, an accredited mental health social worker, who submitted two Assessment of Relationship Status reports. The Tribunal was not satisfied that significant weight should be attached to Dr Andrews’ reports as evidence of the appellant's sexual orientation. It found that the inconsistencies between Dr Andrews’ reports and what was purportedly narrated to him by the appellant and SZQYV and their evidence in connection with the protection visa applications cast doubt on the truth of the appellant's claims and the reliability of what he had disclosed to Dr Andrews.

15    Having regard to the totality of the material before it, the Tribunal found that the appellant was not and would not be perceived to be a homosexual and would not engage in homosexual activities in Bangladesh. Having rejected the factual premise of the appellant's claimed fear of harm, the Tribunal was not satisfied that the appellant was a person to whom protection obligations were owed. Accordingly, the Tribunal affirmed the delegate's decision.

The proceedings before the FCCA

16    On 6 February 2015, the FCCA dismissed the judicial review application to that Court on the basis that no jurisdictional error had been demonstrated in the Tribunal's decision.

17    The following grounds were raised in the judicial review application:

1.    The Tribunal’s finding’s [sic] as particularised were contrary to the evidence and were not reasonable.

Particulars:

(a)    In finding the applicant and [SZQYV] engaged in male homosexual intercourse on one occasion the Tribunal failed to give due weight to this evidence for the purpose of determining if he is a person of homosexual orientation (paragraphs 88 and 100 of the Tribunal decision)

(b)    The Tribunal failed to give due weight to the expert evidence of Dr. Paul Andrews.

2.    The Tribunal in assessing the credibility of the applicant applied the wrong standard of proof.

18    The appellant submitted in respect of ground 1 that it was unreasonable for the Tribunal to have found that he was not a homosexual. This argument was rejected by the FCCA, noting that it was not the Tribunal’s task to prove or disprove the appellant’s homosexuality. The FCCA held that the Tribunal’s finding that the appellant’s conduct in having sex with SZQYV on one occasion was for the sole purpose of strengthening his refugee claim was reasonably open to it on the material.

19    The FCCA held that what was sought by the first ground was, in reality, an impermissible merits review. The allegation of unreasonableness was rejected in [28]-[30] of the judgment:

It is not necessary, in the circumstances of this case, to explore any argument that Li has created a new way of looking at unreasonableness. This is because, in the circumstances of this case, no matter how the test for unreasonableness is expressed, it is not made out in the circumstances of this case. The Tribunal’s findings were reasonably open to it, they were probative of the evidence, and in circumstances where minds may differ as to the explanation, no unreasonableness is made out (SZMDS at [130]-[131]). Further, the “intelligible justification” for the Tribunal’s conclusion is amply demonstrated in its analysis.

The Tribunal’s decision that the applicant did not satisfy either criteria at s.36(2) of the Act for the grant of a protection visa, arose from the central finding that he was not a homosexual. That conclusion was based on a large number of antecedent findings, all reasonably open to the Tribunal on what was before it. The “intelligible justification” for the Tribunal’s decision, was the explanation that it gave for each of these findings and the weight it gave to the accretion of these findings, in its analysis. The applicant may now be aggrieved with the Tribunal’s findings and conclusions but that, as the Minister submits, in the circumstances, does not rise above a challenge to the merits of the Tribunal’s findings and conclusion.

As to Dr Andrew’s (sic) evidence, the Tribunal did not ignore, or reject, the evidence, as is implicit in the applicant’s submissions now. Rather, the Tribunal found that “significant weight” could not be attached to it because of inconsistencies in the report itself, and inconsistencies between Dr Andrews’s (sic) record of what the applicant and [SZQYV] told him, and their evidence to the Tribunal.

20    In respect of the second ground, the FCCA observed that any submission that the Tribunal should have applied the Briginshaw standard of proof was contrary to authority (citing Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 (Abebe) at [187] and other authorities). The FCCA held that the Tribunal's conclusion was readily supportable by its antecedent findings and "arose from a reasonable evaluation by the Tribunal of all the evidence and submissions before it". Accordingly, it held that there was no jurisdictional error in this regard.

The appeal

21    The following grounds are stated in the notice of appeal filed on 27 February 2015:

1.    The Federal Circuit Court erred in not finding that the Second Respondent ("the Tribunal") had erred by failing to give due weight, for the purpose of determining whether the Appellant was a person of homosexual orientation, to evidence that the Appellant and another person had engaged in male homosexual intercourse on one occasion.

2.    The Federal Circuit Court erred in not finding that the Tribunal had erred by failing to give due weight to expert evidence.

3.    The Federal Circuit Court erred in not finding that the Tribunal had applied the wrong standard of proof in assessing the credibiliyt [sic] of the Appellant.

22    Although the appellant was represented at the time when the notice of appeal was filed, his solicitor ceased to act for him on 17 April 2015. The appellant failed to file and serve a written outline of submissions despite the orders made on 3 March 2015 which required him to do so. When the matter was called for hearing on 5 May 2015, the appellant appeared for himself. He was assisted at the Bar table by SZQYV. The appellant was given the opportunity to say whatever he wished in support of the three grounds in his notice of appeal. In essence he said that the FCCA was wrong in not trusting the evidence of his partner and himself or in not acting upon the documents and photographs he gave to the Tribunal.

Consideration

Grounds 1 and 2

23    By grounds 1 and 2, the appellant seeks to reagitate his first ground of review before the FCCA.

24    Grounds 1 and 2 essentially seek to challenge the Tribunal's adverse credibility findings. The Minister submitted that, save in exceptional circumstances, which he submitted were not present in this matter, the Court cannot disturb credibility findings nor the weight to be attached to evidence as determined by the Tribunal. The Minister contended that it is trite administrative law that findings on credibility are within the realm of the Tribunal “par excellence”, citing Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 58 ALD 609 at [67] per McHugh J. As I have previously observed (see SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; (2014) 317 ALR 365 at [73]) adverse credibility findings are amenable to challenge on the basis of jurisdictional error and such an error might be established, on grounds, for example, as illogicality or irrationality as those concepts are properly understood. That is not to say, however, that those grounds were made good here.

25    Having regard to all of the evidence before the Tribunal and the numerous inconsistencies it identified in that evidence, however, the Tribunal was entitled to find that the fact that the appellant and SZQYV engaged in sexual intercourse on one occasion did not outweigh all the other problems with the appellant’s evidence. Likewise, the Tribunal was entitled not to attach significant weight to Dr Andrews' reports as evidence of the sexual orientation of either the appellant or SZQYV. It was open to the FCCA to find that the Tribunal’s attitude to Dr Andrews’ evidence was justified because of inconsistencies in Dr Andrews’ reports and inconsistencies between what Dr Andrews recorded as to what he had been told by the appellant and SZQYV, as opposed to their evidence to the Tribunal.

26    It goes without saying that the Court’s function is not to decide for itself whether the appellant has established that he is homosexual. Its task is confined to determine whether or not the FCCA committed appellable error. For the reasons given above, there is no appellable error in the FCCA’s rejection of the appellant’s challenge to the Tribunal’s relevant findings.

Ground 3

27    There was no error in the FCCA’s rejection of the appellant’s submission that the Briginshaw standard should have been applied by the Tribunal. Such a conclusion was supported by authorities such as Ngaronoa v Minister for Immigration and Citizenship [2007] FCAFC 196; (2007) 244 ALR 119 at [12]; Kumar v Minister for Immigration & Multicultural Affairs [1999] FCA 156 at [35]; DZACE v Minister for Immigration and Citizenship [2012] FCA 945 at [19]-[24] and Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [32]-[40] per Sackville J (with whom North J agreed) and Abebe.

28    The appellant confirmed that his position on this issue was as expressed by his then solicitor in a written submission made to the Tribunal, a copy of which was included in the Appeal Book. The appellant’s reliance on observations of the Full Court in Commonwealth of Australia v Fernando [2012] FCAFC 18 at [128]-[130] is misplaced. Those proceedings related to a civil claim for damages arising from the respondent’s immigration detention. He sought damages for false imprisonment, negligence, breach of statutory duty and misfeasance in public office. The observations of the Full Court relating to Briginshaw need to be read in that context. The proceedings did not involve administrative review.

29    As was found by the FCCA, there was a clear basis in the present case for the Tribunal to make the factual findings that it did on the evidence that was before it. The appellant has not demonstrated any appellable error in the Tribunal's approach.

Conclusion

30    The appeal is dismissed. The appellant should pay the Minister’s costs.

Associate:

Dated:    5 May 2015