FEDERAL COURT OF AUSTRALIA

SZUTY v Minister for Immigration and Border Protection (No 2) [2016] FCA 289

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

1    The applicant in the present case professes to be homosexual. He is a citizen of Jordan where, he contends, homosexuality is culturally unacceptable and he claims to fear for his life if he were to return. He also claims to fear that if he returns to Jordan he will be forced into an arranged marriage with a woman. He arrived in Australia on a student visa but just before that expired he applied for a protection visa.

2    Under the Migration Act 1958 (Cth) the Minister must grant an applicant a visa if satisfied that he or she meets certain criteria prescribed by the Act and Regulations; otherwise the Minister must refuse to do so (s 65).

3    At the relevant time, one of the criteria for a protection visa was that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol (together the Convention). Protection obligations under the Convention are owed in respect of refugees. Consequently, this criterion, provided for in s 36(2)(a) of the Act, is commonly known as the refugee criterion. Unless the applicant is a refugee he is ineligible for a protection visa. “Refugee” is defined in Art 1A(2) of the Convention. If Jordanian homosexuals or Jordanian homosexuals with the applicant’s attributes constitute a particular social group, and the applicant is in truth a homosexual, has a well-founded fear of being persecuted for that reason, and is unable or, owing to that fear, unwilling to avail himself of Jordan’s protection, then he would meet the definition of refugee in Art 1A(2). In that event, subject to satisfying the Minister of certain other matters, including those contained in s 91R of the Act, the applicant would satisfy the refugee criterion. An alternative criterion, commonly known as the complementary protection criterion, stipulates that the applicant be a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm (s 36(2)(aa)).

4    The applicant’s application for a protection visa was first considered by a delegate of the Minister, who was not satisfied that the applicant met either criterion. The Refugee Review Tribunal (whose functions have been transferred to the Administrative Appeals Tribunal) affirmed that decision. The applicant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision but the court dismissed his application.

5    The applicant now seeks an extension of time to appeal from the judgment and orders of that court. For the following reasons that application should also be dismissed.

6    The Circuit Court’s judgment was published on 26 May 2015. The Federal Court Rules 2011 (Cth) provide for a period of 21 days from the pronouncement of judgment or the making of orders (the date is the same in the present case) within which any notice of appeal must be filed (r 36.03). The applicant filed his application for an extension of time on 8 December 2015 — some 25 weeks after the period had expired. At the same time he filed an affidavit, sworn the same day, annexing a draft notice of appeal. Up until the day the application was heard, apart from the applicant’s affidavit, the only other documentation before the Court consisted of a “bundle of documents” filed by the Minister’s solicitors. It consists of the Tribunal’s decision and the reasons for judgment of the Federal Circuit Court.

7    Orders were made on 8 December 2015 for the filing of submissions. Only the Minister complied with them. After the applicant was served with a copy of the Minister’s submissions, he moved the Court for orders that he be provided, without charge, with the transcript of the hearing in the court below, that the hearing date be vacated, and that the Minister be directed to facilitate the attendance of a fellow detainee as the applicant’s McKenzie friend at future hearings. The orders were opposed by the Minister and, following a hearing on 1 March 2016, I declined to make them: SZUTY v Minister for Immigration and Border Protection [2016] FCA 184. The next day, which was the day before the hearing of the applicant’s substantive application was scheduled to take place, Elias Attia, a solicitor, contacted my chambers to advise that he had received instructions to act for the applicant and to appear at the hearing but that he was unable to appear the next day as he would be in Singapore. Consequently, and over the Minister’s opposition, I adjourned the hearing for a week and ordered that in the meantime submissions in support of the application and any amended draft notice of appeal be filed. Documents answering both descriptions were filed.

8    In the written submissions, which were purportedly prepared by Mr Attia, the applicant sought to revive some of the grievances which were the subject of my earlier judgment. In particular, he pressed for an order that he be provided, without charge, with the transcript of the hearing in the Federal Circuit Court. He submitted that, if the Court was not disposed to grant his application for an extension of time, that application should be heard “together with the Appeal application in a full trial”.

The evidence in support of the application

The first affidavit

9    The affidavit filed with the application, apparently to explain the delay, is brief. It is convenient to reproduce its contents in full (and without alteration, save to substitute his pseudonym for his initials in para 7):

1.    I am the appellant and currently in immigration detention. I make this affidavit, in support of my applications before this court, according to my best knowledge and which I believe to be true.

2.    I had an understanding that the Department of Immigration and Border Protection (the Department) will send me a letter, after my case was finalise at the court below, notifying the expiration day of my visa.

3.    I was picked up by NSW police off the street, later brought hear in the Villawood Immigration Detention Centre and I did not have any friend available to pick up my belongings for a while.

4.    The wife of my land lord threw some of my belongings away. And I still have not received the rest of my belongings and so I am unable to asses my damage.

5.    As a result I do not have almost any of my documents, with me, which are relevant to my case.

6.    On 01 December 2015 I have requested the Department for my documents under the Freedom of Information Act 1982 (the FOI Act).

7.    The Annexure marked as “[SZUTY]1” is a copy of the Acknowledgement of Freedom of Information Access request dated 03 December 2015.

10    According to the annexure, the FOI request was to have been determined by 31 December 2015 unless the applicant agreed to an extension, in which case the decision was due by 31 January 2016.

The second affidavit

11    At the hearing Mr Attia read a second affidavit from the applicant sworn that very day. It introduced a new explanation for the delay.

12    The applicant said that he believed he had appealed twice to “two different Courts or legal (scil.) bodies” (the AAT and the Federal Circuit Court). He said that he was advised by his “agent/solicitor” that his next recourse, which was not subject to any time limit, was to the Minister. He added that he was also advised to wait before “appealing” to the Minister until the Department had given him 28 days to depart.

13    The applicant asserted that he had “an indefinite visa”, annexing to his affidavit a copy of his Visa Entitlement Verification Online (VEVO) Entitlement Check as at 12:07:09 (EST) on 4 December 2014. This document recorded that he had a bridging visa, granted on 19 August 2014, and that the period of his stay was indefinite. The applicant said that it was not until he was taken by police to the Villawood Immigration Detention Centre that he realised “something went wrong” and he no longer had a visa. After he first met with his case manager, he stated that he was told that he had 48 hours to decide to leave Australia voluntarily. He repeated what he had said in his first affidavit about not having any of his belongings. This time, however, he said that all his paperwork was still in the room where he used to live. He stated that during his stay at Villawood he gathered more information “and expertise” about his options and that “[s]ome complications resulted on me not getting most of my belongings”. He said that in late November he “started considering” an application to this Court. It was in this context that he lodged his FOI request. He did not refer to the outcome of the request.

The proposed appeal

14    Both the draft notice of appeal and the amended draft notice of appeal lacked particularity. The draft notice of appeal listed the following grounds (without alteration):

1.    The Court below was biased.

2.    His Honor erred in failing to find many facts and the totality of the case.

3.    The appellant was denied procedures fairness

15    The amended draft notice of appeal lodged with the written submissions and purportedly prepared by Mr Attia, retained the first ground, varied the second (though not the spelling error), and substituted an entirely different third ground. It read (without alteration):

1.    The Court below was biased.

2.    His Honor erred in failing to find some facts of the case.

3.    His Honor misconstrued the factual basis of the argument.

Background

16    The applicant arrived in Australia in February 2011 in order to study for an MBA. He apparently already had a degree in information technology. He applied for a protection visa over two years later, on 26 April 2013, the day before his student visa expired. He gave evidence before the Tribunal, which the Tribunal largely rejected, concluding that his claims lacked credibility and that he, himself, was not a “reliable, credible or truthful witness” and had “fabricated his entire claim in order to be granted a protection visa”. Two other people also gave evidence to the effect that the applicant had confided to them in 2012 that he was gay. One of these witnesses also gave evidence of his observations of the applicant’s interactions with women. But the Tribunal placed no weight on this evidence.

17    It is common ground that the applicant was taken into immigration detention on 9 November 2015, as I observed in my previous judgment, presumably because by that time, no appeal having been filed, it was clear that he was no longer complaining about his failure to secure a protection visa.

The applicant’s claims

18    The applicant’s claims were summarised by the Tribunal at [5]–[10] of the decision record and reproduced at [3] of the primary judge’s reasons:

5.    The applicant claimed that he came to Australia because he was gay and knew the country was gay-friendly. He first felt that he was gay when he was 17 and had a relationship with a Sudanese boy from school for which he was expelled, although the excuse given was because he was smoking during Ramadan). He was motivated to leave the country as soon as possible and at the age of 26 applied to come to Australia.

6.    He had his first relationship in Australia with a Malaysian who left the country in September 2011. But after that did not undertake any activity because he used to work with Jordanians to whom it was impossible to reveal himself.

7.    He also had a relationship with a Jordanian with whom he used to live for more than six months but then in late 2011 the other person finished his studies and left the country. After the other person left he lived with 3 other Jordanians in the apartment. The applicant went back to Jordan to visit his family due to the stress of keeping his secret. There his family said he would be married after he had finished his study. He returned to Australia.

8.    He had moved to Ryde and revealed his homosexuality to a friend who was supporting. He found out about a gay and lesbian community group and had an appointment with them to talk about issues some time in May 2013. He had been to some gay clubs but only did this by himself and he was afraid of being seen by people he knew going into them.

9.    If he returned to Jordan he would be forced to marry, which he would refuse and he would then have to reveal to the family that he was gay and as a result he would be shunned and tortured and the government would not stand in their way. His mother had sent him two Facebook messages in April regarding his impending marriage to his uncle’s daughter, as well as one from his father about the same issue.

10.    There is a space for gays in Jordan called Jabal Amman, however it is very small but very secretive.

The Tribunal’s reasons

19    The Tribunal did not believe that the applicant was homosexual or that he would be treated as such. It reached these conclusions for several reasons, including that:

(1)    he had failed to make contact with the gay community in Sydney;

(2)    he had not “explore[d] or express[ed]” his alleged homosexuality since he had been in Australia, although that was his professed motivation for coming here;

(3)    his account of what he claimed was his single homosexual experience in year 11 at school (holding hands with another boy) lacked credibility because this conduct is “largely acceptable in Arab culture, and not indicative of sexual orientation” (referring to a New York Times article entitled “Why Arab Men Hold Hands”);

(4)    his claim to have been expelled from school because of this incident was inconsistent with the reasons given by the school disciplinary board in a letter supplied to the Tribunal after the hearing;

(5)    he had a “singular lack of interest” in conducting research into homosexuality in Australia or engaging with the gay community in any way;

(6)    his alleged relationship (presumably homosexual relationship) with a Jordanian friend who had helped him with his visa process lacked credibility;

(7)    there were various other inconsistencies in his claims; and

(8)    the Tribunal was unable to accept the applicant’s explanations for the apparent inconsistencies in his account.

20    Nor did the Tribunal accept that the applicant was facing an arranged marriage on his return to Jordan in the absence of images of his future bride or any correspondence about impending marriage arrangements either from her or from his family. While the applicant produced emails purportedly from his father and Facebook messages purportedly from his mother, the Tribunal was not satisfied that they emanated from either parent.

21    Finally, the Tribunal considered that the failure to submit the protection visa application until nearly 18 months after the applicant had first claimed to fear returning to Jordan was “not indicative of someone who fears serious harm”. The Tribunal rejected the applicant’s explanation for the delay (that he believed he could apply for permanent residence after two years as a student), because, having cancelled his MBA course after one year he would not have been eligible to apply for permanent residency and also because, in the absence of supporting evidence, it did not believe his claim that he had enrolled (but not studied) at a college in the city.

22    Consequently, the Tribunal was not satisfied that the applicant satisfied the criteria for a protection visa.

The primary judge’s reasons

23    The application in the court below was not included in the bundle of documents filed by the Minister. Nor was it annexed to either of the applicant’s affidavits. According to the primary judge’s reasons for judgment (which in this respect were not the subject of any criticism), the applicant raised four grounds.

24    The gravamen of the first ground was that the Tribunal fell into jurisdictional error because the Tribunal’s conclusion that the applicant was not a homosexual was one which no reasonable decision maker could have reached, in the absence of evidence of what behaviour was consistent with homosexuality. The primary judge said this argument was misconceived for several reasons.

25    First, his Honour said that the Tribunal did not purport to apply any test of homosexuality and in fact acknowledged (at [47]) that there was no such test. He said that the Tribunal did not ask questions in the expectation that there was only one correct answer. Rather, it questioned the applicant with a view to eliciting information which “might be consistent with being homosexual”. I interpolate that his Honour had the transcript of the Tribunal hearing before him. His Honour said that this was not “a tick-a-box approach” and that it was the combination of the applicant’s answers which led the Tribunal to conclude that he was not homosexual.

26    Second, there was a logical connection between the Tribunal’s approach and its findings and the applicant’s claim to have come to Australia in the first place because he wanted to explore his sexuality, studied abroad for that purpose and chose this country because of the openness of its society. His Honour noted the Tribunal’s reliance (amongst other things) on what he referred to as “a general lack of activity in Australia”, the evidence about two homosexual relationships and the evidence concerning the applicant’s expulsion from school.

27    Third, his Honour held that the Tribunal did not require rebutting evidence in order for it to be able to assess the applicant’s claim. He said that it was “entirely legitimate for the Tribunal to have tested the applicant by reference to his familiarity with and interest in the Australian homosexual community”, referring to the Full Court judgment in Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 at [61] and [65], to which I will return in due course.

28    Fourth, his Honour rejected the applicant’s contention that the Tribunal had made “perverse assumptions” about the degree of interest a homosexual with qualifications in information technology would have with the Australian “gay scene”. This, too, his Honour considered was based on a misunderstanding of the Tribunal’s decision. He said that the Tribunal had only referred to the applicant’s training in IT when considering his failure to conduct internet research into homosexuality in Australia and his inability to use the internet because he shared an email address with his mother (in fact the applicant said that it was because he shared a computer with his siblings). His Honour observed that a person’s knowledge of IT has a logical bearing on the person’s ability to conduct computer research.

29    Fifth, his Honour rejected the applicant’s criticism of the Tribunal’s use of an article from which it had inferred that men holding hands was acceptable in Arab cultures and was not indicative of a person’s sexuality, considering that the criticism was based on a misreading of the article.

30    Sixth, his Honour dismissed (both as untrue and as providing no “relevant unreasonableness, illogicality or irrationality”) the applicant’s complaint that the Tribunal failed to take into account a number of matters including his explanation for the absence of a reference to the incident with the other boy in the letter from his school about his expulsion.

31    The second ground was that the Tribunal failed to take into account relevant considerations such as the applicant’s stated personal view of homosexuality (having a same-sex life partner), the evidence of his two witnesses, his choice “to live a gay life with a degree of privacy”, his fear that his homosexuality might be discovered by members of the Jordanian community, and his explanation for the delay in lodging his protection visa application.

32    The primary judge dismissed this ground because he considered that the Tribunal had in fact taken those matters into account.

33    Evidently, the applicant also argued that there was a denial of procedural fairness and it was not open to the Tribunal to give no weight to the corroborative evidence where the witnesses’ credibility had not been destroyed and there was “no cogent material” to show that they had lied.

34    The primary judge rejected this argument because he considered that it was based on a misreading of the judgment in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568; [2004] FCAFC 74.

35    Finally, the applicant submitted that the Tribunal was wrong to find (at [54]) of the decision record that his witnesses could shed no light on any aspect of his homosexuality, pointing to various passages in their evidence. The primary judge accepted that the witnesses’ evidence went further than simply stating that the applicant had disclosed his homosexuality to them, for example by describing the applicant’s conduct around women. But his Honour concluded that the Tribunal did not overlook that evidence. In any event, his Honour said, the evidence was “not central to the matter or matters which founded the Tribunal’s rejection of the applicant’s claims and was (scil.) not particularly cogent”. Consequently, his Honour said that, even if the Tribunal had overlooked the evidence and proceeded on a false factual assumption, this was not a jurisdictional error.

36    The third ground was that the Tribunal denied the applicant procedural fairness by concluding that he was not a homosexual without allowing him the chance to “freely respond” to assertions that his behaviour was not consistent with the Tribunal’s notions of homosexuality.

37    His Honour said that this ground was based on a brief passage in the transcript of the hearing which, read in context, did not support it. His Honour considered that the Tribunal was not preventing the applicant from addressing its concerns, merely endeavouring to secure “a focused response”. He concluded that there was no denial of procedural fairness.

38    The fourth and final ground was that the Tribunal erred by coming to a preliminary conclusion about the applicant’s purported homosexuality and failing to decide whether he faced a real chance of persecution. In submissions, according to the primary judge, this developed into an argument that the Tribunal failed to account for the individualised experience of membership of a particular social group, an argument which relied on Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (see at [59] per McHugh and Kirby JJ).

39    The primary judge rejected this ground, too, holding that the Tribunal did not overlook the applicant’s individual experience and (in effect) that, having determined that the applicant was not homosexual and therefore not a member of the particular social group (homosexual men of Jordanian nationality), there was no foundation in fact for his claim to fear persecution.

The discretion to extend time to appeal

40    The Court has a discretion to extend the time to appeal. There are no express fetters on its exercise but, like any power conferred by the Rules, it must be exercised in the way that best promotes their overarching purpose: the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible (Federal Court of Australia Act 1976 (Cth), s 37M). The exercise of the discretion is also guided by some well-established principles. They include the extent of the delay, the explanation for the delay, prejudice (if any) to other parties, and the merits of the appeal. Above all, before a court will exercise the discretion in the applicant’s favour it must be fair and equitable in all the circumstances to do so: see, for example, Parker v The Queen [2002] FCAFC 133 at [6].

The applicant’s submissions

41    The submissions began with an attempt to explain the delay in making the application. The gist of the explanation was that the applicant mistakenly believed that he had no right to appeal to this Court, that he was misled into thinking this by the negligent advice of his “solicitor/migration agent”, and that he filed his application as soon as he learned about his options. The submissions then largely foreshadowed what appeared in the second affidavit:

1.    The Applicant mistakenly believed he appealed twice to two different legal bodies or courts already; namely to the AAT and then to the FCC.

2.    He held this belief because his solicitor/migration agent advised him he could only appeal to the Minister. His solicitor/migration agent advised him to wait, before initiating next appeal option (Ministerial Intervention), for a letter from the Department giving him 28 days to depart.

3.    He never changed his address and kept waiting for that letter.

4.    He relied on a notification on Visa Entitlement Verification Online (VEVO) stating that he had an indefinite visa.

5.    He was picked up by NSW police off the street and brought to the Villawood Immigration Detention Centre on 9 November 2015.

6.    This was when he first realised he had not been correctly advised and he no longer had a visa.

7.    At the first meeting with his case manager he was told he only had 48 hours to agree to leave or be placed on a removal pathway. The Applicant did not consider this an option.

8.    The Applicant determined at this point that he needed to rely on credible advice and not put himself at the mercy of his migration agent/lawyer. The Applicant gathered more information and expertise about the options and avenues available to him and sought access to his documents from his house. He believed his landlord had thrown some of his things away and he would not be able to access any documents he had kept there.

9.    In late November 2015, he decided to apply to the Federal Court. On 4 December 2015 he lodged an FOI request to get informations related to his case so he can lodge an appeal to this Court.

10.    Thus he never actually delayed to appeal in this Court as soon as he learned about his options.

11.    He was a victim of the breach of his agent’s statutory obligations under s 314(2) of the Migration Act 1958 (Cth).

42    Section 314(2) of the Act requires that a registered migration agent conduct himself or herself in accordance with the Code of Conduct prescribed by the Migration Agents Regulations 1998 (Cth). The Code is over 20 pages in length. The submissions did not identify what provision of the Code was breached and an argument in support of the proposition was withdrawn at the hearing.

The revived arguments

43    Before going any further I should dispose of the two matters revived in the submissions after the dismissal of the interlocutory application.

44    In relation to the request for a copy of the transcript of the hearing in the Federal Circuit Court, the applicant’s written submissions simply reiterate the points he made at the hearing on 1 March 2016. That is, the applicant claims that the primary judge misunderstood the arguments of counsel and that “for the purpose of justice and to assist the court” he requires a copy of the transcript to be provided to him. As no new argument was raised by these submissions or in oral argument, I adhere to what I said in my earlier judgment.

45    Nothing was said either in the applicant’s written submissions or in oral argument in support of the request for an order standing over the application for an extension of time to be heard with any appeal. In the circumstances, it is reasonable to conclude that the request was not pressed. In any case, there was no sound basis for it.

46    The apparent pretext for the request was that something could turn up in the transcript that might give rise to an appeal point. This was the same pretext for the earlier adjournment application, which I refused and which the Minister’s lawyer rightly characterised as a fishing expedition. No good reason has been shown for why attempts were not made to obtain a transcript well before the eve of the hearing. In the event that there was some difficulty in securing it, an affidavit could have been obtained from the lawyer who represented the applicant in the court below setting out the basis, assuming there to be one, for any argument that the primary judge misconceived the oral submissions put forward on his behalf.

Should an extension of time be granted?

47    The Minister does not contend that he is prejudiced by the delay, but the delay is substantial and largely unexplained.

48    As I have already noted, the application was filed about 25 weeks after the time in which to appeal expired. In the first affidavit there was no explanation for the failure to take any action in the more than 23 weeks leading up to the applicant’s detention. Moreover, the explanation for the delay thereafter, such as it is, is unsatisfactory. The applicant was represented by counsel and solicitors in the proceeding below and by a migration agent in the Tribunal. Doubtless, they would have all the relevant documents. Yet, the applicant did not apparently take the simple step of asking for them. According to the annexure to the first affidavit, the outcome of the FOI request should have been known by 31 January 2016 or thereabouts, but no evidence was led on this subject.

49    The account given in the second affidavit insinuates that it is the applicant’s advisers, including his lawyers, who are at fault. The inference I was invited to draw was that he did not know that he could have appealed to this Court and that his migration agent/solicitor did not tell him. Tellingly, however, the affidavit falls short of disclosing what he was told. For all I know, the applicant’s advisers told him that his only recourse was to the Minister because they were of the opinion that any appeal was bound to fail. Furthermore, if he was unaware before he was taken into immigration detention that he had a right of appeal to this Court and that if he did not file a notice of appeal within the prescribed time, he would need to apply for an extension of time, neither affidavit provides any indication of precisely when and how he became aware. Finally, this allegation was only made on the day of the hearing. It did not appear in the first affidavit and the applicant offered no explanation as to why it had not been raised earlier.

50    In some cases these deficiencies may be excused. But not in this one. The evidence in both affidavits was given without the assistance of an interpreter but it was never suggested that the applicant required one. The applicant was unrepresented at the time he swore his first affidavit but not at the time he swore the second. Furthermore, he is well-educated, and although English is not his first language, he has a reasonably good command of it. He addressed the Court himself on 1 March 2016 in English, again without the assistance of an interpreter, and he gave me the impression that he was an intelligent man.

51    For all these reasons, I reject the submission that there is in truth no delay, that the applicant did all that he could to pursue his rights as soon as he knew what they were, and that there is a satisfactory or acceptable explanation for the lengthy delay.

52    I now turn to consider the merits of the appeal, but before doing so, it is important to note three matters of principle.

53    First, while a strong case will weigh heavily in the applicant’s favour, an apparently weak, but arguable case does not weigh against the grant of an extension: Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at 98 (French J).

54    Secondly, as Mortimer J observed in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63], when the question of merits is considered on an application for an extension of time, a court is not concerned with whether the applicant will ultimately succeed, but whether he or she has a reasonably arguable case.

55    Thirdly, it is not in the interests of justice to extend the time to appeal from a judgment which is plainly right or where the proposed appeal is bound to fail. In such a case it would be futile to do so.

56    Here, the applicant does not have a strong case, so the merits of the appeal are not a factor in his favour. The next question is whether his case is at least reasonably arguable.

57    On the face of the draft grounds of appeal, that question is easy to answer.

58    Like its predecessor, the amended draft notice of appeal makes sweeping, unparticularised allegations. The written submissions shed little light on them. Although they both record that they were prepared by Mr Attia, he told the Court that the applicant was the author. He claimed to have edited both documents but, if he did, the edit was desultory. With the possible exception of the first submission entitled “possible biased approach”, the submissions did not, at least in terms, address the draft grounds of appeal, they were not supported by authority, and they barely engaged with the submissions filed by the Minister.

59    Under the rubric of “possible biased approach” the applicant submitted that:

(1)    The primary judge erred at [41] of his reasons (when dealing with ground 2 of the judicial review application) when he said that the evidence of the witnesses about their observations of the applicant in connection with women was not central to the Tribunal’s reasons for rejecting the applicant’s claims.

(2)    The Tribunal was “biased” in its assumptions as to how a homosexual would act, and in upholding that view the primary judge was also “biased” because he failed to appreciate “what it means for a person with homosexual tendencies to identify himself as such”.

(3)    The primary judge erred at [42] of his reasons by holding that the Tribunal had considered the evidence before it, in circumstances where the Tribunal failed to expressly analyse that evidence. The primary judge further erred by “putting words in [the] member[’s] mouth”, by stating that the Tribunal had “meant to say” that the evidence shed no light on the applicant’s involvement or interest in the homosexual community.

(4)    The primary judge, like the Tribunal, erred by assessing the applicant’s claim on the basis that he was claiming to be a “member of the homosexual community”, where in fact his claim was that he belonged to a class of people who identified as homosexual.

60    Mr Attia ultimately conceded that the first draft ground of appeal was hopeless. The concession was properly made. An allegation of actual bias must be “distinctly made and clearly proved”: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69]. Here, the allegation is not distinctly made and there is no reason to think that the applicant will be in a position to clearly prove it. To make out a case of actual bias based on prejudgment, which the applicant apparently wishes to mount on appeal, it is necessary to show that the decision maker’s mind was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: Jia at [72]. At no point was I directed to any material that might make out such a case.

61    Nor do the submissions provide any basis for an appellate court to find that there was a reasonable apprehension of bias, that is to say, that a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the questions in dispute: see, for example, Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 300; Johnson v Johnson (2000) 201 CLR 488 at [11]. This is obviously an easier test to satisfy than the test for actual bias. But it is still necessary to point to the facts and circumstances that might give rise to the possibility of such an apprehension and to articulate “the logical connection” between those facts and circumstances and “the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided”: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [63], [67]. The applicant’s submissions did not do either.

62    As the Minister submitted, the second draft ground misconceives the role of the primary judge. It is for the Tribunal to find the facts. The Federal Circuit Court’s jurisdiction is limited by s 476 of the Migration Act. It may only review the Tribunal’s decision for jurisdictional error (Plaintiff S157 v Commonwealth of Australia (2003) 211 CLR 476). As the Minister put it, the primary judge’s only concern was whether the decision was lawfully made. During oral argument the applicant abandoned this ground, too.

63    That left the third proposed ground: that “the primary judge misconceived the factual basis of the argument”. In oral argument it morphed into a contention that the primary judge misconstrued the legal argument.

64    Mr Attia submitted that his Honour’s error was revealed by what he said at [27]–[28] of his reasons. In order to understand the argument it is necessary to refer to [26] as well. In those paragraphs his Honour said this:

26.    The next particular is that the Tribunal failed to take into account the applicant’s explanation for the fact that the letter from the school concerning his dismissal did not include any reference to homosexuality. Even if that were true, it would not found any relevant unreasonableness, illogicality or irrationality. However, it is not true. The Tribunal was not obliged anywhere in its statement of reasons to make findings about each and every one of the applicant’s arguments as to why certain evidence should be accepted. Its obligation in that respect, as imposed by s.430 of the Act, does not go so far: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405. For both those reasons this particular is rejected.

27.    The final five particulars of the first ground are also based upon assertions that the Tribunal failed to take into account certain matters. Those particulars are rejected for the same reason as the previous particular. It is clear that, rather than focusing upon the legality of the Tribunal’s decision in this respect, these particulars reflect a simple disagreement with the Tribunal’s conclusion about the applicant’s credibility. Such disagreement cannot form the basis for the exercise of power by this Court under s.476 of the Act.

28.    In light of these conclusions it is unnecessary to consider the first respondent’s submission that “unreasonableness” applies only to determining the validity of discretionary decisions rather than the fact-finding leading to those decisions. Certainly, the reliance by the applicant in his submissions on the decision in Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 reveals some lack of clarity in his approach to this ground. Nevertheless, it is a controversial proposition that issues relating to reasonableness can never arise in the exercise of powers that are not discretionary. Although it may be a difference in principle or simply one of terminology, a decision may be open to review on the basis that it is “illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds”: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [52] per McHugh and Gummow JJ.

65    Mr Attia contended that his Honour was wrong to conclude in [27] that the final five particulars of the first ground of appeal do not focus on the legality of the Tribunal’s decision but “reflect a simple disagreement with the Tribunal’s conclusion about the applicant’s credibility”. The error was said to be a failure to appreciate that the applicant’s case was that the Tribunal’s decision was legally unreasonable. Mr Attia submitted that his Honour did not deal with that part of the case, pointing to what his Honour went on to say at [28], namely, that, in the light of the conclusions reached in the preceding paragraphs it was unnecessary to consider a submission by the Minister that “unreasonableness” only applies to determining the validity of discretionary decisions. Mr Attia argued that the Tribunal’s decision was legally unreasonable because the only evidence was that the applicant identified as a homosexual and there was no evidence to the contrary. He contended that being homosexual is not determined by one’s activities. He maintained that the applicant was a member of a social group of people who identified as homosexual rather than being a part of a community of homosexuals, as the Tribunal appeared to assume.

66    In order to do justice to the application, with the consent of both parties I inspected the amended judicial review application on the file of the Federal Circuit Court and the written submissions made to that court.

67    Having done so, I am not persuaded that there is substance in any of these arguments.

68    The first ground of the amended application pleaded that the Tribunal fell into jurisdictional error “in the nature of legal unreasonableness by finding that the Applicant did not belong to a social group”. Particulars were then given, listed as a–d. Particular d began with the words: “Such a finding is unreasonable because” and thereunder 11 propositions were advanced, listed, unhelpfully, as a–k. It was common ground that the primary judge’s reference in [27] to the final five particulars of the first ground were subparas g–k:

g.    The Tribunal failed to take into account two witnesses that had confirmed being told by the Applicant that he was homosexual.

h.    The Tribunal failed to take into account the Applicant’s expressed choice to live a gay life with a degree of privacy.

i.    The Tribunal failed to take into account the Applicant’s expressed fear if members of the Jordanian community discovered that he was a homosexual.

j.    The Applicant’s subjective beliefs are the dominant indicators of his homosexuality and the Tribunal failed to take in to account those expressed factors.

k.     The Tribunal failed to take into account the Applicant’s expressed reasons for his delay in lodging his protection visa application.

69    In [27] the primary judge rejected these five particulars because, contrary to what was alleged in the pleading, the Tribunal did in fact take all these matters into account. Doubtless it is for this reason that his Honour concluded that the particulars reflected a simple disagreement with the Tribunal’s conclusions about the applicant’s credibility. In other words, “failed to take into account” was no more than a euphemism for “failed to accept”. The same propositions were advanced in support of the second ground of the judicial review application (the failure to take into account relevant considerations). When dealing with this ground, his Honour identified certain paragraphs in the evidence where the Tribunal had had regard to them. Having closely read the Tribunal’s reasons, I cannot discern any error in [27].

70    There is no foundation for the submission that the primary judge failed to consider the argument that the Tribunal’s conclusion was legally unreasonable. He deals with it at [18]–[27]. The point of [28] was to dispose of an unmeritorious argument propounded by the Minister.

71    The applicant’s arguments ignored the internal inconsistencies in his case before the Tribunal and overlooked two fundamental problems with the argument in the court below, to which the primary judge referred at [18]–[19] and [23] of his reasons. First, the Tribunal did not apply any test of homosexuality. To the contrary, it expressly recognised at [47] of the decision record that there is none. Second, the Tribunal has to reach a state of satisfaction. In order to do so it is obliged to carry out a review of all the evidence. It was to this end that it interrogated the applicant about his various claims. It was not obliged to accept the applicant’s word. As the primary judge observed at [18], the matters it canvassed in its interrogation were designed to elicit information which might be consistent with the applicant’s claim to be homosexual. In this context, the primary judge referred (at [23]) to SBAN.

72    SBAN was a judgment on three appeals brought by the Minister from judgments of the Federal Magistrates Court (the former name of the Federal Circuit Court), the last of which was an appeal involving WAAG, a man who claimed to fear persecution in Iran because of his homosexuality. In that case the magistrate had concluded that the Tribunal’s approach to questioning and its consequential findings demonstrated that it had a fixed view about the behaviour of homosexual men in Iran and that it had a closed mind, incapable of persuasion. Heerey and Kiefel JJ held that this conclusion was unsustainable, observing at [65]:

Where a claim for refugee status is based on grounds such as religion, membership of a particular social group or political opinion it is understandable that the RRT might test the veracity of the claim by reference to knowledge or attitudes which members of the relevant religion, social group or political party might be expected to possess. As a matter of common sense, this is a perfectly legitimate fact-finding technique for an administrative decision-maker. To take an example removed from the facts of the present case, if an applicant claimed a fear of persecution on the grounds of being a Catholic, the RRT might test this assertion by enquiring as to the applicant’s knowledge of matters of Catholic doctrine, ritual, traditional belief and the like. It may be that the Tribunal member’s understanding of such matters is in fact inaccurate. Or at the other extreme the Tribunal member may be correct but may assume a detailed knowledge that it would not be reasonable to expect of the average Catholic. These errors however would at worst provide grounds for criticism of the fact-finding process. They would not in themselves be suggestive of bad faith or the imposition of some illegitimate “template”.

73    An argument in the present case to the effect that the Tribunal’s decision lacked “an evident and intelligible justification” (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76]) would also be unsustainable. This is not a case where the court might not be able to understand from the reasons how the decision was arrived at, nor is it one in which the justification in the reasons is insufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness of the range of possible lawful outcomes: Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 at [64]. Another decision-maker acting rationally and logically could well come to the same conclusion as the Tribunal on the same material. In these circumstances, it could not be said that the Tribunal’s decision was legally unreasonable: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135] (Crennan and Bell JJ).

74    The applicant was at pains to impress upon this Court and the court below that he guarded his privacy and did not seek to be part of a homosexual community. The primary judge appreciated this and so did the Tribunal.

75    The proposition that the primary judge misunderstood the legal argument is unsound.

76    It follows that I am satisfied that the proposed appeal enjoys no reasonable prospects of success.

77    For all these reasons I am not satisfied that it would be fair and equitable to extend the time to appeal or to adjourn this application to another day.

78    The application should therefore be dismissed with costs. There will be orders accordingly.

Associate:

Dated:    24 March 2016