FEDERAL COURT OF AUSTRALIA

DHS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 311

ORDERS

THE COURT ORDERS THAT:

1.    The originating application filed 22 October 2019 be dismissed.

2.    The applicant 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

JAGOT J:

1    This case concerns a decision of the Administrative Appeals Tribunal (the Tribunal) of 18 September 2019 which affirmed a decision of a delegate of the first respondent (the Minister) not to revoke the cancellation of the applicant’s protection visa. The applicant’s visa was cancelled because he did not pass the character test due to his substantial criminal record: s 501(3A) of the Migration Act 1958 (Cth). The applicant seeks orders quashing the Tribunal’s decision and requiring the Tribunal to determine the applicant’s application for review of that decision according to law.

2    The applicant contends that the Tribunal’s decision should be set aside for jurisdictional error on two grounds. First, the applicant contends that the Tribunal made a jurisdictional error in finding that the applicant is not and has never been homosexual because, in so doing, the Tribunal breached its obligation to provide a fair and meaningful hearing to the applicant. Second, the applicant contends that the Tribunal made a jurisdictional error in respect of the same finding because the finding was based on an analysis of the evidence which was unreasonable.

3    There is no dispute that the applicant’s claim to be homosexual was relevant and material to the Tribunal’s decision as the applicant relied on that claim to contend that Australia could not require him to return to Egypt, the country of which he is a citizen, due to its international non-refoulement obligations which the Tribunal was bound to consider in making its decision.

4    I have decided that neither ground of challenge to the validity of the Tribunal’s decision can succeed. My reasons follow.

Overview of the applicant’s grounds

Ground one

5    In his first ground of review the applicant contends that he was deprived of the opportunity of a fair hearing because the Tribunal placed no weight on three statutory declarations and a statement relied upon by the applicant to support his claimed homosexuality as, amongst other things, the makers of those statements had not been called to give evidence. According to the applicant, the circumstances leading up to and at the hearing meant that the applicant reasonably understood that the statutory declarations and statement were not subject to challenge. The applicant contended that, in these circumstances, for the Tribunal to give the statutory declarations and statement no weight, in part because the makers of the statements had not been called to give evidence, denied the applicant the opportunity of a fair hearing.

6    According to the applicant, until the first day of the hearing, when the Tribunal raised an issue about the weight that might be given to the statutory declarations and statement given that the makers of them were not being called to give evidence, the applicant:

… had no reason to believe that these statutory declarations and the 2019 statement would be challenged or that the attendance of the deponents for cross-examination would be required because:

a.    The statutory declarations had been part of the Applicant’s application for a protection visa…so was part of the record considered by the original decision maker who decided to grant a protection visa to the Applicant in 2010 having accepted his claim to be a homosexual.

b.    The ITOA in 2016 refers to the statutory declarations and they were not challenged by the decision-maker even though the overall assessment of the Applicant’s sexuality was that he was not a homosexual as he claimed…;

c.    There is no evidence that the First Respondent at any stage raised with the Applicant or his solicitor that these statutory declarations would be the subject of challenge and that the deponents would be required for cross-examination…;

d.    The First Respondent did not, as envisaged by the process required by the AAT for all hearings, state a need prior to the setting of a hearing date for the deponents to be available to give evidence: see AAT General Practice Direction [4.36]…;

e.    The First Respondent did not advert to the issue in its Statement of Facts, Issues and Contentions in the AAT proceeding…;

f.    The case advanced by the First Respondent primarily concerned the allegation that the Applicant had been in a relationship with a woman for four years, that is between 2011 – 2014. The First Respondent did not to challenge the documentary evidence advanced by the Applicant (the statutory declarations and 2019 statement) until the issue was raised by the AAT member of the deponents not being in attendance to give evidence and be cross-examined…;

g.    The AAT had not required the attendance of the deponents to give evidence either by summons as provided for in s 40A(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cwth) [sic] or by way of the exercise its general discretion as to procedure in a proceeding under s 33(1)(a) of that Act.

7    It is these circumstances, the applicant submitted, which made it procedurally unfair for the Tribunal to give the applicant’s supporting evidence no weight. By the first day of the hearing, it was submitted, it was too late for the applicant to take steps to have the makers of the statements available to give evidence.

Ground two

8    The applicant’s second ground of review depends on the contention that the Tribunal’s reliance on certain police reports as evidence supporting its finding that the applicant was not homosexual was unreasonable because, according to the applicant, the information contained in those police reports was not directed to the applicant’s sexuality at all and did not provide a logical connection to the finding that the applicant was not homosexual.

Ground one – fairness of the hearing

9    The applicant submitted that his case was not one which involved the development of any new principle. Rather, the case depended on the particular circumstances, identified above, which made it unreasonable to expect that the applicant should have arranged for the persons who made the statutory declarations and the statement to be available to give evidence at the hearing before the Tribunal. For the Tribunal to give no weight to that material in part because the makers did not give evidence, it was said, denied the applicant the opportunity for a fair hearing.

10    In my view, however, the circumstances disclose that the applicant’s case on ground one depends on unjustifiably fine characterisations of what was in issue in the proceeding before the Tribunal. In particular, I consider that the applicant’s submission that the statutory declarations and the statement were not subject to challenge before the hearing to be untenable. The circumstances, including those on which the applicant relied to support his case, fairly and squarely put in issue the applicant’s claimed homosexuality. This the applicant accepted. But, said the applicant, nothing in those circumstances controverted the evidence in the statutory declarations and the statement. The problem with this submission, however, is that the statutory declarations and the statement were only relevant as evidence supporting the applicant’s homosexuality. Once it was apparent the applicant’s homosexuality was in issue it necessarily followed that the reliability of the statutory declarations and the statement was also in issue. I do not accept the applicant’s submission to the contrary. In my view, given that the statutory declarations and the statement were relevant only to support the applicant’s homosexuality the weight that the Tribunal should give to that material was squarely in issue in the proceeding. The Tribunal was entitled to give the statutory declarations and the statement such weight as it saw fit, be it no weight or determinative weight. The applicant had a fair opportunity at the hearing because, in the circumstances, he must be taken to have been on notice before the hearing that the reliability of the statutory declarations and the statement was in issue.

11    To make good these propositions it is necessary to review all of the relevant circumstances before the hearing including those on which the applicant relied.

12    In 2009, the applicant lodged a protection visa application which was accompanied by the three statutory declarations, amongst other things. These declarations contained information to the effect that the applicant was known to the makers of the declarations as a homosexual man. A delegate of the Minister assessed the applicant’s protection visa application. The assessment said that as there was evidence to suggest the applicant’s claims or evidence were exaggerated or not based in fact, they were accepted as credible. It was thus accepted that the applicant may suffer serious harm if he were to return to Egypt as a result of his membership of a social group, homosexual men in Egypt. Accordingly, the applicant was granted a protection visa in 2010, in part based on the three statutory declarations.

13    As a result of alleged offences the applicant was the subject of a number of police reports. The reports contain statements to the effect that:

(1)    the applicant had been in a domestic relationship with the victim of his assault for four and a half years;

(2)    the relationship was an intimate relationship;

(3)    the victim was the applicant’s girlfriend;

(4)    the victim called off their relationship as she no longer wanted to be the applicant’s girlfriend; and

(5)    the victim believed the applicant might cheat on her.

14    The applicant was also the subject of two pre-sentence reports. In the first, it is recorded that the applicant said he had been in a relationship with the victim for four and a half years. In the second it said that the applicant formed a relationship with the victim five years ago and she was now his “ex-partner”. In her sentencing remarks relating to the applicant in 2015 the Magistrate said the applicant had committed violence “against a person who was in and out of a relationship” with him and that violence was unacceptable “within a domestic relationship”.

15    The applicant was the subject of an international treaties obligation assessment (the ITOA) in 2016. The ITOA referred to the statutory declarations. The ITOA noted that the applicant maintains he is homosexual but after considering all of the material this was not accepted as a genuine or credible claim. The ITOA said:

…based on all of the information before me, I do not accept that the claimant is homosexual…I acknowledge that the claimant provided statutory declaration [sic] from individuals in Australia attested to his claimed sexuality in his 2009 Protection application and photographs of himself with other men. However, I am not prepared to give these supporting documents any weight.

16    The statement of reasons of the Minister’s delegate accompanying the decision not to revoke the cancellation of his visa referred to the ITOA and in particular the ITOA’s conclusion that the applicant did not engage Australia’s protection obligations as his claims of having a well-founded fear of persecution on the basis of being homosexual lacked credibility. The delegate said that they accepted the conclusions of the ITOA and found that the applicant does not engage Australia’s protection obligations.

17    In the applicant’s statement of facts, issues, contentions and evidence dated 6 August 2019 for the purpose of the proceeding before the Tribunal it was stated at [9] that:

It is understood that despite being granted the visa due to a claim of homosexuality, the Department no longer assesses ### as being homosexual. ### has consistently, over more than ten years, maintained that he is homosexual. Whether or not ### is homosexual is integral to his protection claim, and as such, the following covers this claim in some detail.

18    The document then sets out the evidence “for and against ### being homosexual” including reference to the three statutory declarations and the statement which, by that time, had been made.

19    In the Minister’s statement of facts, issues and contentions dated 22 August 2019 for the purpose of the proceeding before the Tribunal it was stated at [8] that the ITOA concluded that the applicant is not owed protection obligations. At [28] it was stated that the respondent intended to cross-examine the applicant and possibly other witnesses. At [56]-[62] the document dealt with inconsistent evidence regarding the applicant’s claim to be homosexual and inconsistent evidence regarding his contact with his family also relevant to the applicant’s claimed homosexuality.

20    As noted, the applicant accepted that his homosexuality was known by him to be in contest before the Tribunal hearing. The applicant said, however, that what was not known was that the statutory declarations and statement were in contest as they were not themselves controverted by any evidence. In the circumstances outlined above I do not consider the distinction upon which this submission depends to be maintainable. First, the statutory declarations and statement were relevant only as evidence supporting the applicant’s claimed homosexuality. Once it was clear that the applicant’s homosexuality was in issue it was also necessarily clear that the reliability of the statutory declarations and statement were themselves subject to challenge. This is because the only asserted fact in those documents of relevance was that the applicant was and was known to be homosexual. But that asserted fact was plainly in dispute between the parties. As a necessary logical corollary the applicant’s supporting evidence to the effect he was homosexual was itself under challenge as unreliable.

21    Against this background a response may be made to each of [37](a)-(g) of the applicant’s submissions, which I referred to above, as the circumstances said to make it a denial of the opportunity for a fair hearing for the Tribunal to have given no weight to the statutory declarations and the statement in part because the makers of those statements had not been called to give evidence:

(a)    to the applicant’s knowledge, circumstances had changed from the time he was granted his protection visa. The applicant in fact knew, and a reasonable person in the applicant’s position must have known, that his homosexuality was subject to challenge. It followed that the evidence which supported his claimed homosexuality was also subject to challenge;

(b)    in the ITOA assessment the assessor expressly said that they were not prepared to give the statutory declarations any weight and concluded that the applicant was not, as he claimed to be, homosexual;

(c)    it was obvious from the above material and from the terms of the statements of facts, issues and contentions filed in the Tribunal that the statutory declarations and statement were going to be the subject of challenge. It was not necessary for there to be evidence directly controverting the statutory declarations and statement for them to be in issue. Their reliability was clearly in contest given that the applicant’s homosexuality was itself in contest. The Minister’s statement of facts, issues and contentions also disclosed that the applicant and any other witnesses the applicant might call would be cross-examined. It was not for the Minister to require witnesses for cross-examination but for the applicant to decide which witnesses he wished to call to support his case;

(d)    as noted, it was for the applicant to decide which witnesses he wished to call to support his case. He was on notice that his claimed homosexuality was in dispute. It necessarily followed that he knew (as his statement of facts, issues and contentions discloses to be the case) or ought reasonably to have known that the supporting evidence for that proposition was also in dispute. It was for the applicant to make such forensic decisions as he saw fit, assisted by his legal representative, as to the witnesses to be called;

(e)    while the Minister did not refer to the statutory declarations and statement in the Minister’s facts, issues and contentions that document did put in issue the applicant’s homosexuality by reference to what was called “inconsistent evidence”. In context, this could only mean inconsistent with the evidence of homosexuality on which the applicant relied. As such, the applicant’s evidence as to his homosexuality was necessarily subject to challenge in the Minister’s facts, issues and contentions;

(f)    for the reasons given, the Minister’s challenge to the applicant’s homosexuality necessarily involved an implicit challenge to the reliability of the applicant’s evidence to support his homosexuality. The Minister was not merely asserting that the applicant had been in a relationship with a woman for four and a half years. The Minister was asserting that the inference which arose therefrom was that the applicant was not homosexual. In consequence, all of the applicant’s supporting evidence for his claimed homosexuality was necessarily under challenge in the sense that its reliability was being called into question; and

(g)    it was for the applicant to make his case as he saw fit. It was not for the Tribunal to make the applicant’s case for him. The Tribunal was under an obligation to give the applicant a fair opportunity to present his case, but it was for the applicant to take that opportunity.

22    In other words, I do not accept the central thesis of the applicant’s first ground of review that until the Tribunal raised the issue of the weight that might be given (or not given) to the statutory declarations and statement the applicant had no reason to believe that those documents would be challenged. To the contrary, the applicant had every reason to believe those documents were to be the subject of challenge as they were irreconcilable with the Minister’s case to the effect that the applicant’s claims to be homosexual were inconsistent with other evidence and that the assessment in the ITOA, that the applicant was not owed protection obligations, was open on the available information.

23    It is not to the point that there is no onus of proof in proceedings before the Tribunal. It was for the applicant to call such evidence as he saw fit to persuade the Tribunal that the correct and preferable decision was to revoke the cancellation of the applicant’s visa. The applicant did not have “objective reason to believe that [the] declarations were not subject to challenge” until the first morning of the hearing. For the reasons given above it is apparent from the applicant’s statement of facts, issues and contentions that the applicant knew his homosexuality was in issue and from that fact alone a reasonable person in the applicant’s position ought to have known that the evidence supporting his clamed homosexuality was also under challenge.

24    As the Minister put it:

(1)    the obligation of procedural fairness is ordinarily one which requires a decision-maker to draw to a party’s attention the critical issues not apparent from the nature of the decision or the terms of the statute under which it is made and any adverse conclusions not obviously open on the known material: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at [592] (Alphaone) and Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [9];

(2)    procedural fairness does not require the decision-maker to “expose his or her mental processes or provisional views to comment before making the decision”: Alphaone at [592] and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [48] (SZBEL);

(3)    procedural fairness requires only the provision of a reasonable opportunity to a party to present their case; it does not require the decision-maker to ensure that a party “takes the best advantage of the opportunity”: Sullivan v Department of Transport (1978) 1 ALD 383 at [403]; and

(4)    it was for the applicant to advance whatever evidence or argument he wished in support of his contention that he had a well-founded fear of persecution in Egypt by reason of his homosexuality: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [187].

25    The adverse conclusion, that the applicant was not homosexual and that accordingly his supporting evidence to the effect that he was homosexual was unreliable, was obviously open on the known material. It follows that there was no procedural fairness obligation which prevented the Tribunal from assessing the applicant’s supporting evidence and deciding to give it no weight, in part because the people who had made the statements had not been called to give evidence.

26    The fact that the Tribunal did expose some of its thought processes on the first day of the proposed two day hearing does not itself create any denial of procedural fairness. The Tribunal said that it anticipated that the Minister may well make a submission that it could not place too much weight on the statements (relevant to the applicant’s homosexuality) “especially if people haven’t been made available for cross-examination”, to which the Minister’s legal representative responded “yes”.

27    Contrary to the applicant’s submissions, it was not too late by the first day of the hearing for the applicant to deal with the issue. It is relevant in this regard that the applicant was legally represented and no suggestion is made that his legal representation was other than competent. Further, for the reasons already given, the applicant was and must be taken to have been on notice of the challenge to the reliability of the material supporting his homosexuality since well before the Tribunal proceedings. The matter had also been fixed for a hearing of two days and, having been again put on notice of the issue by the Tribunal on the first morning of the hearing, the applicant could have sought leave to see if he could call the makers of the statements. Finally, the applicant could have applied to the Tribunal for an adjournment of the hearing to ascertain the availability of the makers of the statements to give evidence. The applicant, through his legal representative, did none of these things. Having done nothing the applicant is not now in a position to complain that the Tribunal proceeded with the hearing and, as it was entitled to do, found that the applicant’s material supporting his homosexuality should be given no weight for various reasons including that the makers of the statements had not been called (see the Tribunal’s decision at [220] and [228]).

28    As the Minister also submitted:

(1)    neither the Minister nor the Tribunal was under any duty to require the attendance of the makers of the statements to give evidence;

(2)    in contrast to the proposition advanced in Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; (2014) 226 FCR 555 at [119] (that although “the Tribunal is not obliged to accept evidence which is not contradicted by means of cross-examination or otherwise, it has long been recognised that the rejection of such evidence may amount to a denial of procedural fairness”) this was not a case in which there was uncontradicted evidence that the applicant was a homosexual;

(3)    the Tribunal was entitled to place no weight on the statutory declarations and statement: Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485 at [36]-[37] and [50]; and

(4)    to the contrary of the applicant’s submission that the Tribunal ought to have warned the applicant that it would be giving no weight to the documents (which is what the Tribunal ultimately did), the Tribunal was under no obligation to expose its thought processes or give its provisional views: see Alphaone and SZBEL above.

29    I do not accept the applicant’s submission that the “real case” he faced was whether he had been in a relationship with a woman between 2011 and 2014 and was not that the applicant’s supporting evidence should be given no weight as the makers of the supporting statements had not been called. This overlooks why the evidence was relevant. The evidence of the applicant’s relationship with a woman was relevant to whether or not the applicant was homosexual as that was a reason in support of the applicant’s claimed fear of serious harm if he returned to Egypt. The supporting statements were also relevant to whether or not the applicant was homosexual. A central part of the case the applicant faced was that he was not homosexual and thus did not have a well-founded fear of persecution if he had to return to Egypt. The evidence which supported and which contradicted the applicant’s homosexuality thus was also a central part of the case of which the applicant had notice. Having assessed the evidence (including, it might be noted, the lack of cogency of the applicant’s supporting evidence at [196]-[228] of the Tribunal’s reasons), the Tribunal was entitled to give the supporting evidence no weight. By this conclusion it must be understood that the Tribunal had considered the supporting evidence but, assessed in the context of the evidence as a whole, had rejected it: see, by analogy, Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [33] (SZJSS). The fact the Tribunal might do so was a necessary and inherent component of the known dispute as to whether or not the applicant was, as he claimed to be, homosexual.

30    Contrary to the applicant’s submissions, the applicant had a real and meaningful opportunity to address the issue of the weight that should be given to the statutory declarations and statement supporting his claimed homosexuality. He did not take the opportunity to ascertain if the makers of the statements were available to give evidence and the Tribunal was entitled in the circumstances to make the findings it did. This case is not analogous to the circumstances in SBLF v Minister for Immigration and Citizenship [2008] FCA 1219 at [38] in which Gray J found error by reason of the “arbitrary rejection of probative material by labelling it as without probative value, or weight, altogether, when it has probative value”. There was nothing arbitrary about the Tribunal’s decision in the present case to give the applicant’s supporting evidence no weight. The rejection of that evidence was the outcome of a closely reasoned process having regard to the whole of the evidence as the Tribunal’s reasons at [196]-[228] disclose.

31    Ground one of the application must be rejected for these reasons.

Ground two – illogicality

32    The Tribunal found that the applicant was in a de facto relationship with a woman who was the victim of one of his crimes: at [242].

33    The Tribunal then said at [243]:

The Tribunal notes that just because the Tribunal has found that the Applicant was in a de facto relationship with Victim 1, a woman, between 2011 and 2014, that does not necessarily preclude that the Applicant is homosexual or bisexual. The existence of a de facto heterosexual relationship does not preclude the possibility that the Applicant is same-sex attracted. However, the Tribunal does consider it is evidence that the Applicant is heterosexual rather than homosexual, especially when considered with the rest of the evidence before the Tribunal which raises serious doubts as to whether the Applicant is or was homosexual.

34    According to the applicant it was illogical for the Tribunal to find that the applicant was in a de facto relationship with a woman based on the police records and the remarks of the Magistrate because:

(1)    as the Tribunal acknowledged during the hearing, the sexuality of the applicant was not an issue in the criminal investigation or sentencing of the applicant;

(2)    no findings were made or recorded as to the sexuality of the applicant on the face of the police records; and

(3)    in these circumstances, no logical or reasonable inference could be drawn from the records to the effect that the applicant was not homosexual.

35    As the applicant put it, he was not asking the Court to consider alternative explanations that were in evidence as to the circumstances reported by the police (to the effect that the applicant was the carer for the victim). Rather, it was submitted that the applicant was relying on:

…the absence of logic in drawing a conclusion [as to the applicant’s sexuality] from a police report…that did not make any finding about his sexuality and which itself was not under police investigation in any event.

36    I do not accept the applicant’s contention of illogicality in the Tribunal’s reasoning process. The inference that the applicant had been in a de facto relationship with a woman for some years was reasonably open to be drawn based on the substance of police reports and the Magistrate’s sentencing remarks. The Tribunal recognised that the mere fact that it had found that the applicant had been in a de facto relationship with a woman did not preclude the applicant from being homosexual. So much may be accepted. It may also be accepted that the police reports and sentencing remarks of the Magistrate were not concerned with the applicant’s sexuality. But as the Tribunal also said the finding that the applicant had been in a de facto relationship with a woman for some years was evidence supporting the inference that the applicant was heterosexual and not homosexual, especially when considered with the other evidence which led to the Tribunal’s finding that the applicant was not homosexual. The fact that the police reports and Magistrate’s sentencing remarks were not concerned with the applicant’s sexuality does not undermine the fact that they contained information (supporting the inference that the applicant had been in a de facto relationship with a woman) which was relevant to the applicant’s sexuality. The Tribunal’s chain of reasoning was logical, rational and reasonable.

37    Further, and as the Minister submitted, it is important to recognise that the Tribunal’s ultimate finding that the applicant was not homosexual was not based solely on the police reports and the Magistrate’s sentencing remarks. The finding was a result of a consideration of the whole of the evidence. As the Minister submitted, in assessing whether a finding of fact is illogical, irrational or unreasonable, consideration must be given to the whole of the evidence on which the finding was based and not a mere sub-set of that evidence: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131] and [135].

38    I also accept the Minister’s submission that the applicant’s true complaint is that the Tribunal gave weight to the police reports and Magistrate’s sentencing remarks as evidence relevant to the applicant’s sexuality. However, the weight to be given to that evidence was a matter for the Tribunal: SZJSS at [33].

Conclusion

39    The applicant has not persuaded me that the Tribunal’s decision is affected by jurisdictional error. Accordingly, the originating application must be dismissed with costs.

Associate:

Dated:    12 March 2020