FEDERAL COURT OF AUSTRALIA

SZVJY v Minister for Immigration and Border Protection [2016] FCA 618

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant to pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

NORTH J:

1    Before the Court is an appeal from a judgment of the Federal Circuit Court delivered on 15 February 2016. The Federal Circuit Court dismissed an application for review of a decision of the second respondent, the Refugee Review Tribunal, as it was then, given on 22 September 2014. The Tribunal affirmed the decision of the delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the appellant a protection visa.

2    The appellant is a citizen of Bangladesh. He claimed a fear of persecution on the ground that he is homosexual. He said that he had been bullied and intimidated because he was gay in Bangladesh and that he had been forced by his family to marry on discovery that he was a homosexual. The Tribunal held at [9]:

The Tribunal found the applicant’s evidence vague, inconsistent and unpersuasive. On the basis of the evidence before it the Tribunal is not satisfied that the applicant is homosexual as claimed or that he has experienced the things that he claims to have experienced.

3    Following that general assessment of the appellant’s evidence the Tribunal examined a series of factual issues and expressed its conclusions on each of them. Thus the Tribunal found that the appellant did not flee Bangladesh because of the suicide of his boyfriend. The Tribunal found that the appellant had not suffered attacks in Bangladesh because he was gay. It did not accept that he had multiple male partners in Bangladesh or that he was found in the course of an homosexual act in 1998 and forced by his family to marry in 1998.

4    Turning to his claims of having led a homosexual life in Australia, the Tribunal found that he had not had, as claimed, a relationship in Australia with an Italian man called Kevin and further found that he had not frequented gay venues in Australia. At the end of this detailed discussion of the evidence the Tribunal concluded at [21]:

When considered cumulatively the Tribunal found the above concerns so significant, and the applicant’s evidence so unpersuasive, that it is not satisfied that the applicant has been truthful in relation to his sexual orientation. The Tribunal is not satisfied that the applicant is homosexual as he has claimed or that he was assaulted, threatened, forcibly married, humiliated or otherwise harmed in Bangladesh as a result of his sexual orientation.

5    On 29 October 2014, the appellant applied for judicial review in the Federal Circuit Court on the following grounds:

1.    The Tribunal failed to disclose adversarial information to the applicant. By doing that the Tribunal was in breach of s424A of the Migration Act 1958.

Particulars:

The Tribunal made a number of phone calls about the applicant’s claims of being in a particular venue in Oxford Street. The Tribunal made several calls to verify the existence of those venues and it is understood that the Tribunal was not satisfied [that] they existed. Did the Tribunal inform the applicant about this result, he would have had an opportunity to refute that finding.

2.    The Tribunal denied fairness to the applicant.

Particulars:

a)    The Tribunal was aware of the applicant’s language difficulties and the limitation it imposed on the applicant. Nevertheless it found it reasonable for a person of his type to remember the name of the venues in English correctly and proceeded to investigate that information further. In addition, the Tribunal did not take into account that the applicant’s pronunciation of [the] business name of the venue in English might have caused it to understand that name incorrectly.

b)    The Tribunal concluded that the letter of the psychologist was written on the basis of the information that the applicant dictated. It is unreasonable for the Tribunal to make such gross finding without consulting with the psychologist and also without having any due regard to the professional integrity of the psychologist. In addition to that, the Tribunal also failed to understand that a psychologist is bound by his or her professional code of conduct and would simply not write down something that he or she did not believe was true.

c)    The Tribunal also failed to understand the impact of mental health conditions of the applicant, had no regard to the medical assessment, and summarily dismissed every claim on the basis that the applicant could not remember some part of the events many years ago. It is unreasonable to the extent that a reasonable human being cannot be expected to remember every detail of his or her life events that happened many years ago.

d)    Additionally, [t]he Tribunal failed to appreciate the fact that the quality of such remembrance of events and also the ability to recall and describe them to 100% accuracy would also be conditional to the level of education a person have had, the social and financial upbringing of the person, mental health issues and the ability of the individual to understand the significance of the person as they happened. This particular failure of the Tribunal is not reasonable.

6    The first ground of the review application concerned the following passage in the decision of the Tribunal:

14.    Third, the applicant claims that since the Departmental interview he has been regularly going to clubs on Oxford Street. He used to go Kings Cross but then he showed someone a piece of paper saying he was gay and that person directed him to go to Oxford Street. Since then he has been attending all the venues along Oxford Street regularly since 2013 on almost all his days off. He stated that this was usually Saturday and Sunday. He stated that he goes alone and just watches others and tries to socialise but because of the cultural differences he could not approach anyone. When the Tribunal asked if he had any receipts or bank statements showing ATM withdrawals in the area or credit card payments he stated that he did not keep any of those documents but then stated that he might have receipts at home. When asked which venues he referred to the Toolshed and referred to a name which sounded like Stanwell. He stated that he went last Saturday night to the club that sounded like Stanwell but when asked to spell the name of the club he stated that it was "s e" something but that he could not recall how to spell it. The Tribunal accepts that there is a day venue on Oxford Street called the Stonewall but is not satisfied that the applicant is familiar with it. Rather it appeared to the Tribunal that he had been told the name of a gay venue on Oxford Street but could not recall it accurately. When asked what time it closes he stated that he does not know as he leaves before midnight to catch his last bus from Town Hall. When asked about the Toolshed he stated that it was a bar where you buy drinks and dance. When the Tribunal put to him that the website suggests that it is an adult shop and there is no bar called the Toolshed he stated that he did not know about this but there were two venues called the Toolshed and the one the he was referring to was a bar. The Tribunal conducted an Internet search for places called “Toolshed” in Oxford Street and found references to the Toolshed as an adult shop. The Tribunal did a search of the White Pages to check for any businesses starting with the word "Tool" in Oxford Street but could not find any reference to a separate bar. The Tribunal called the Toolshed listed in the Whitepages and was told that there are two adult shops called the Toolshed on Oxford Street but no bars.

15.    The Tribunal found the applicant's claimed attendance at venues in Oxford Street to be unconvincing. It would expect him to be aware of the nature of the places, such as the Toolshed, if he had attended them and to be aware of the proper name of Stonewall if he was attending it on a regular basis as he has claimed. Furthermore, the Tribunal finds it surprising that if the applicant had been attending on Saturdays and Sundays on a regular basis since 2013 that he would not have formed any friendships or relationships at these venues. The Tribunal is not satisfied that he has been truthful in relation to his attendance at gay venues in Sydney.

16.    The Tribunal is not satisfied that the applicant has been involved in any homosexual activities or relationships in Australia or attended any gay venues in Sydney. The Tribunal finds this surprising given that he came to Australia because of the freedom it offers him in terms of sexuality. He stated at the hearing that he had not been involved in more homosexual relationships or activities in Australia because he has no peace of mind and is under pressure here. However, the Tribunal considers that, on the basis of his evidence, he was under great pressure in Bangladesh where he had been assaulted, forced to marry, humiliated and forced to hide his sexual orientation but had nevertheless engaged in many homosexual activities over many years. His lack of involvement in Australia, where he is free to engage in homosexual activities and relationships without persecution or fear of serious harm, raises significant concerns for the Tribunal about whether he is a homosexual as he has claimed.

7    Section 424A(1)(a) and 3(a) of the Migration Act 1958 (Cth) provide as follows:

(1) Subject to subsections (2A) and (3), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

…

(3) This section does not apply to information:

(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member;

8    The Federal Circuit Court held that s 424A(1) was not enlivened because the information was not information which independently and of itself, undermined, denied or rejected the appellant’s ability to satisfy the criteria for a grant of a protection visa. Rather, it went to the appellant’s knowledge of the gay venues he claimed to have attended.

9    The Federal Circuit Court at [20] relied upon [17] and [18] of SZBYR and Another v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (SZBYR). Those paragraphs explain that the relevant information must be adverse to the appellant’s claim ([17]) and such information is not merely the Tribunal’s appraisals of evidence or its thought processes ([18)). At [18] the High Court (Gleeson CJ and Gummow, Callinan, Heydon and Crennan JJ) said:

However broadly information be defined its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.

10    The Federal Circuit Court at [22] regarded the circumstances of the present case as similar to those in Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507; [2009] HCA 31 (SZLFX). In that case an employee of the Tribunal made a file note of a phone call to a Falun Dafa organisation in which he was told that the organisation did not have leaders and Mr Li was not a leader. The High Court (French CJ and Heydon, Crennan, Kiefel and Bell JJ) held that s 424A was not engaged because the Tribunal did not have regard to the file note. At [26] the Court said:

The RRT's reasons show that what counted against the first respondent were internal inconsistencies in his evidence. The RRT disbelieved the first respondent's evidence that he was a practitioner of Falun Gong because of the inadequacy of his testimony in recollecting matters the RRT would have expected him to recall, such as the content of lectures given to him by his mentor or details of the practice of Falun Gong. It was clear from the reasons of the RRT that adverse credibility findings arose from matters which were not subject to any obligation under s 424A. The only inference available was that the RRT did not consider the second sentence of the file note to be the reason or part of the reason for affirming the decision. In these circumstances the first respondent cannot sustain the submission that the attitude of the RRT as evidenced in its reasons showed that the RRT regarded the second sentence of the file note as materially adverse to him.

11    The Federal Circuit Court at [20] also relied on [18] of the judgment of the Full Court of the Federal Court in SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3, but that paragraph does not take matters further than acknowledging SZBYR and SZLFX.

12    Having apparently decided that the information did not fall within s 424A the Federal Circuit Court did not need to consider the operation of the section further. Nonetheless, the Federal Circuit Court went on to hold at [23] that:

For reason that the information obtained by the Tribunal in making phone calls to the Toolshed was not specifically about the applicant or another person, the exception in s.424A(3)(a) applies in the present case such that there was no obligation arising under s.424A of the Migration Act.

13    The Federal Circuit Court then dealt with the procedural fairness grounds in paragraph [2] of the application for review and commenced as follows:

26.    In his oral submissions, the applicant said that when he arrived for the Tribunal hearing, no interpreter was available and he had to wait about four hours for the interpreter to arrive. He was offered a hearing at a later date but declined that offer. He said that the interpreter who eventually attended was a Muslim, which concerned him and that the quality of his interpretation was poor. He conceded, however, that he did not raise any issue concerning the interpreter or his standard of interpretation with the Tribunal.

27.    The hearing invitation issued to the applicant specified a hearing time of 10.30am on 15 September 2014. The Tribunal’s hearing record sheet establishes that the interpreter arrived at 12.00pm and commenced duties at 12.06pm. The hearing commenced at 12.27pm and concluded at 4.05pm. I accept from that information that there was a delay caused by the late arrival of the interpreter. There is nothing in the available material to support the applicant’s contention of other interpretation problems, although I accept that the interpreter at the hearing has a Muslim name. In the absence of any complaint being made by the applicant to the Tribunal, and in the absence of any problem otherwise being apparent to the Tribunal, I am not persuaded that any procedural unfairness resulted from the circumstances surrounding the attendance of the interpreter or his performance of his duties.

14    As to ground of review 2(a), the Federal Circuit Court relevantly said at [29]:

In circumstances where the Tribunal did not solely rely on the applicant's mispronunciation of Stonewall to be “Stanwell”, the applicant had an interpreter at hearing, and it is not apparent from the face of the Tribunal decision or the applicant’s oral submissions that he raised any issues regarding interpreter error at the hearing, the ground in this respect goes no higher than to take issue with the Tribunal’s findings.

15    Grounds of review 2(b), (c) and (d) concerned the way in which the Tribunal dealt with the evidence of a psychologist, Ms Gamas. Her view was set out in a letter dated 9 September 2014 as follows:

[The appellant] experienced a significant amount of abuse and prejudice in Bangladesh due to being homosexual. [The appellant] would want to be more active to engage in more intimate relationships however his high levels of social anxiety and the effects of the trauma experienced have made this very difficlut [sic] for the patient. The abuse experienced included physical and psychological torment and has had repercussions on his emotional experience since that time. [The appellant] also faced a significant amount of conflict in his home country due to religious differences between the Hindu and Islamic communities and subsequently has ongoing worry and concern for his Hindu family that remains in Bangladesh. He notes a number of murders and violent acts in his home village for issues pertaining to religion and sexual orientation and has increasing fears for his safety should he ever be required to return to Bangladesh.

[The appellant] has experienced ongoing nightmares, insomnia, intrusive thoughts, flashbacks to the trauma events and high levels of emotionality due to his experiences in his home country Bangladesh. These symptoms are indicative of post traumatic stress disorder and there would be very serious concern for his mental health condition and general safety if he was directed to return there. [The appellant] has also presented with significant issues indicating depression and ongoing social anxiety that appear to have been exacerbated with ongoing lengthy immigration processes and the high level of uncertainty regarding his saftey [sic] for the future and whether he will remain in Australia.

Despite the above noted concerns that are being explored during counselling, [the appellant] demonstrates a resilient and a positive attitude toward his efforts in Australia thus far. [The appellant] has maintained regular employment despite work rosters and shifts being unpredictable and changing each week. He has also maintained stable residence in Australia and been an active member within the Hindu community where he cooks and helps with kitchen duties during functions at the temple.

[The appellant] has not been accepted any suggestions for financial assistance from Centrelink and has established a strict budget to help him manage his finances in Australia thus far. He expresses strong gratitude and respect for the opportunities he has been given in Australia and appears to have a genuine hard work ethic that he employs toward his life goals in general. [The appellant] holds strong respect for Australian authorities and the democratic processes and procedures in place. He appears to be a positive law abiding member of society and expresses pro social values and attitudes overall.

This letter is to provide support for [the appellant] with regards to any future Immigration processes and procedures that may be required for him to maintain his residence in Australia. Please contact me should you have any further queries.

16    The Federal Circuit Court held at [33] that the psychologist accepted at face value that the appellant was a homosexual and based her professional opinion on that assumption. After examining the evidence, the Tribunal did not accept that the appellant was homosexual. The Federal Circuit Court said at [34] that, in so doing, the Tribunal did not substitute its own view for the professional view of the psychologist, but rather made findings on the evidence before her. The Federal Circuit Court regarded each of these grounds of review as, in effect, seeking to challenge the decision of the Tribunal on the merits. Then, at [36] the Federal Circuit Court said:

In so far as the applicant may wish to assert he was unable to properly participate in the hearing due to his mental health conditions, the Minister submits that any such argument cannot be sustained. There was, and is, no suggestion that the applicant's condition was such as to deny him the capacity to give an account of his experiences, to present arguments or to understand and to respond to questions put to him. I agree.

17    On 23 February 2016, the appellant filed a Notice of Appeal in this Court. He asserted the following grounds of appeal:

1.    The Federal Circuit Court Judge failed to consider that the Tribunal decision was affected by judicial error in that the Tribunal failed to correctly apply the test in s.36(2B)(a) of the Migration Act 1958.

2.    His honour erred in finding that the Tribunal breached section 424A of the Migration Act1958.

The Tribunal made number of phone calls about the applicant's claim being in a particular venue in Oxford street. The Tribunal made several calls to verify the existence of those venues and it is understood that the Tribunal was not satisfied that they existed. Did the Tribunal inform the applicant about this result, he would have had an opportunity to refute that finding.

3.    His honour should have found that the Tribunal failed to appropriately deal with the applicant's mental health conditions and language difficulties.

4    The Federal Circuit Court Judge failed to consider that the Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived in accordance with the requirements of the Migration Act.

18    The appellant did not file any written submissions as directed by the Deputy Registrar. He was assisted at the hearing of the appeal by an interpreter in the Bengali language. He made some short oral submissions, which will be referred to below.

19    Grounds of appeal 1 and 4 are not particularised. They do not make any meaningful allegation of error. The appellant was not able to explain what was intended by them. Further, they do not reflect any ground raised before the Federal Circuit Court. Thus, leave would be required to argue those grounds now. In view of the vague and general nature of the grounds, such leave is refused.

20    The second ground of appeal reflects the first ground of review argued before the Federal Circuit Court. In my view, the Federal Circuit Court was in error in holding that the evidence concerning The Toolshed was not information within s 424A(1). The existence of The Toolshed as a gay venue was information which the Tribunal considered would be part of the reason for affirming the decision under review. It is not information reflecting the Tribunal’s thinking process, and it was adverse to the appellant. It was not, therefore, excluded from the concept of information by the judgments in SZBYR or SZLFX. Further, as the Tribunal had regard to the information, contrary to the view of the Federal Circuit Court the circumstances were quite different from the circumstances in SZLFX. This analysis is not altered if the evidence in question is characterised, as the Federal Circuit Court did, as the appellant’s knowledge of The Toolshed venue.

21    However, this error is immaterial, because the Federal Circuit Court was correct to hold that the information fell within the exception in s 424A(3)(a). That is to say, the information as to the existence of The Toolshed was not specifically about the appellant. It was about whether there was a gay venue called The Toolshed.

22    The third ground of appeal probably reflects the second ground of review argued in the Federal Circuit Court. The appellant has not established any error, let alone jurisdictional error, in the way in which the Federal Circuit Court dealt with the issues of the appellant’s language or his medical conditions. In relation to the Federal Circuit Court’s view that the appellant was not impeded in giving evidence at the hearing by his psychological issues, it is significant that the letter from his psychologist concluded the reference to his suffering post traumatic stress disorder that “there would be very serious concern for his mental health condition and general safety if he was directed to return there.” There was no reference to any incapacity of the appellant to participate in the hearing, even though the letter was written six days before that hearing and was expressed to be in order to support the appellant in immigration processes to maintain his residence in Australia.

23    When this ground was raised with the appellant by the Court, he explained that he experienced stress when the interpreter did not arrive on time and he had to wait several hours. However, as recorded by the Federal Circuit Court at [26], the appellant was offered a hearing at a later date, but declined that offer. The appellant also described to the Court that after three hours of hearing in the Tribunal, he felt so tired that he needed a rest and could take no more. He said that when he was asked if he had anything more to say to the Tribunal, he could not reply because of the strain.

24    It is noteworthy that this description of the hearing did not suggest that the appellant was unable to represent his claim adequately. The stress he described is no more than would ordinarily be expected from the strain of the circumstances of such a hearing.

25    Although the appellant does not speak English, he claimed that he had drafted the grounds of appeal himself. Not surprisingly, he was unable to explain what they meant. When asked by the Court to explain the errors made by the Tribunal, the appellant complained that the Tribunal did not believe anything he said. This amounted to a challenge to the merits of the findings of the Tribunal, but did not establish that the decision of the Tribunal was affected by jurisdictional error.

26    Then, in further explanation of his criticisms of the Tribunal, the appellant said that as a Hindu he was in danger of being tortured in Bangladesh. He said that he had not told the Tribunal this because it is known to everybody. No criticism can be made of the Tribunal for not dealing with a claim not made to it.

27    For these reasons, the appeal is dismissed.

Associate:

Dated:    30 May 2016