BTK18 v Minister for Immigration and Border Protection

Ground 1 5 The appellant said: … the learned primary judge erred in not finding that the Tribunal made jurisdictional error, (A) because it misconstrued and misapplied s36(2A)(e) and (d) of the Act by finding at … ([67] and [71]) that it was not satisfied that there is a risk that he will suffer significant harm, and (B) by contravening SZBEL principle and/or making an unreasonable finding. Ground 1 is based on Ground 1 run below except in one aspect, that is the issue dealing with s5(J) is not being pursued in appeal.

Claimed misconstruction and misapplication of s 36(2A)(d) and (e) 6 Section 36(2A)(d) and (e) of the Act provide that a non-citizen applicant for a protection visa will suffer "significant harm" if they "will be subjected to cruel or inhuman treatment or punishment" or if they "will be subjected to degrading treatment or punishment" respectively. 7 This is relevant because, as stated in s 36(2) of the Act: (2) A criterion for a protection visa is that the applicant for the visa is… (aa) a non-citizen in Australia … 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm (emphasis added) 8 The appellant contended that the Tribunal must have misconstrued and misapplied the terms "inhuman treatment" and "degrading treatment" given that it accepted that the appellant "has been verbally abused and harassed from time to time on account of his sexuality" and "from time to time, received verbal abuse and harassment in the workforce in Fiji" (Tribunal's reasons at [66]). As the appellant would have it, these findings necessarily supported a conclusion of a real risk of significant harm to the appellant. 9 The problem is this. Having made the factual findings it did, it was reasonably open to the Tribunal in all of the circumstances not to characterise these events as involving "inhuman" and "degrading treatment". This was partly because of inconsistent, vague and dilatory evidence given by the appellant affecting his credibility and partly because of unchallenged evidence about his employment and various circumstances (his qualifications, family position, job opportunities and family support) mitigating concerns about his wellbeing: see Tribunal's reasons at [62]-[67]. For example, after the first oral hearing the appellant claimed his father abused him and encouraged his family to abuse him: [63]. However, this was inconsistent with earlier oral evidence and came about after a lengthy delay: [63]. The Tribunal found that his family had been supportive of him in the past and he had been supportive of them. His early oral evidence suggested he was in regular contact with his family, viewed his family home as a "safe haven" and had delayed travel to Australia to thank his father for help he had given the appellant: [63]. His father funded his commercial pilot licence and studies. The appellant had cared for his sick mother: [66]. Despite alleging a history of physical and mental abuse he provided no medical evidence and he advised he needed no medical attention: [66]. Despite experiencing some abuse from colleagues, he was a "well educated" and "qualified…commercial pilot" with "excellent command of the English language" who had "demonstrated versatility" in new living environments. Thus he could move back to a place in Fiji where he had not and would not experience abuse if he so wished: [67]. 10 Contrary to the submissions for the appellant, the Tribunal did not accept his claims that he had been the subject of spitting or torment or the like or had been treated like a "sexual predator". The Tribunal recorded, in the first sentence of [66], that the appellant "raised claims" of this nature. It was submitted for the appellant that the Tribunal implicitly accepted everything he claimed by saying in the second sentence of [66] that it accepted he had been "verbally abused and harassed from time to time". But that is not so. It was then submitted for the appellant that the Tribunal's findings "necessarily" led to the conclusion that he would suffer "inhuman" and "degrading treatment" should he return to Fiji, and there was "no room for looking at it any other way". But the Tribunal was not obliged to accept the appellant's claims or his evidence at face value. It did not accept all of the appellant's claims or his evidence, only that he had been "verbally abused and harassed from time to time". This does not necessarily fall within the statutory definition of "inhuman" or "degrading treatment", which involves the "intentional" infliction of "severe pain" or "extreme humiliation": s 5(1) of the Act. 11 The Tribunal's findings were open based on its assessment of the evidence and neither the primary judge nor this Court can re-assess the evidence and decide the issues afresh.

Claimed contravention of SZBEL principle and/or unreasonable finding 12 In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 the High Court considered the procedural fairness obligation in s 425(1) of the Act, which requires the Tribunal to invite an applicant to appear before it "to give evidence and present arguments relating to the issues arising in relation to the decision under review". The relevant "SZBEL principle" is that, as the High Court said in Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 at [83]: Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person (citations omitted) … 13 It was submitted for the appellant that the primary judge erred in finding that the Tribunal did not err in considering the issue of the appellant's psychological health and his claims of mental abuse in Fiji in light of the fact that the appellant filed no evidence of psychological problems or mental abuse from a health professional. According to this submission the Tribunal raised a new issue, the appellant's current psychological health, without bringing this to his notice. Further the appellant did not provide a report because he had no current psychological problems, the report was superfluous because it could only have "restated what he said about the past", and in any event the Tribunal would have said the appellant made up what was in the report so that he would have evidence of what he wanted from a health professional. 14 I agree with the primary judge's conclusion at [35] that: In relation to the Tribunal's reasoning referring to the absence of any documentary evidence from a health professional, the Tribunal was not identifying a new issue that the Tribunal had to, as a matter of fairness, give the applicant an opportunity to respond. The observation by the Tribunal was in the context of having referred to the combination of claims by the applicant, including mental abuse. The observation by the Tribunal as to the absence of documentary evidence, was not a matter that required the Tribunal to raise with the applicant the want of evidence. It is apparent from the adverse finding by the delegate that the applicant was on notice that he needed to establish the criteria under the Act. 15 Further, these submissions veer into mere speculation. A report could have provided independent, professional evidence that the appellant suffered continuing psychological problems from past abuse, or had in the past suffered psychological problems due to abuse. There was no reason to assume the Tribunal would necessarily treat an independent report from a health professional as merely repeating "made up" claims that the appellant wanted to get into evidence from a professional. 16 Nor is it the case that "the Tribunal unreasonably found against him [the appellant] because there was no report". Contrary to the appellant's claims, the fact that there was no report, or more accurately "any documentary evidence from a health professional to suggest the applicant has suffered, or is suffering, from a physical or psychological ailment arising from his treatment as a homosexual or for any other reason" was just one consideration among numerous considerations: Tribunal's reasons at [66]. The absence of documentary evidence was understandably a relevant consideration for the Tribunal in the context that it did not find the appellant's oral evidence credible.

Ground 2 17 The appellant said: …the learned primary judge erred in not finding that the Tribunal made jurisdictional error in that the Tribunal misapplied s.5J(l)(b) and s.36(2)(aa) of the Act, in that the Tribunal misapplied the "real chance" or "real risk" test by "requiring a higher degree of probability than required at law." 18 Section 36(2)(aa) about a real risk of significant harm is set out above (ground 1). This is one criterion for granting a protection visa. 19 Section s 5J(1)(b) is also relevant and provides: (1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if: (a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and (b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and (c) the real chance of persecution relates to all areas of a receiving country. 20 The appellant's argument was that the Tribunal misused country information provided by the Department of Foreign Affairs and Trade which recorded that homosexuals in Fiji face "a low risk of official discrimination" and "a moderate risk of societal discrimination". The Tribunal raised this information with the appellant, who disagreed based on occasional reports (at [56]-[57]), and the Tribunal said this information "did not tend to support his claims that there is a real chance he will face or suffer any significant or serious harm if returned to Fiji": see Tribunal's reasons at [56]. 21 The appellant said this was wrong because a "low risk" and "moderate risk" are both "real risks" or "real chances" so it necessarily followed that the country information demonstrated his claims and that was the "end of the story". But this does not follow. Again, I agree with the primary judge that in [34] of its reasons the Tribunal was dealing with country information about the risk of discrimination generally, not the risk of persecution or significant harm. In any event, it was for the Tribunal to assess the risk of persecution or significant harm for itself, so nothing that was said in a Departmental report could have been the "end of the story". 22 For completeness, the Tribunal's findings, that the appellant was harassed and verbally abused on the basis of his sexuality in the past, do not necessarily lead to findings that he faced a real risk or chance or persecution or serious harm. Its contrary conclusion had an evident and intelligible basis in the available country information and all the other credible evidence about the appellant. When it came to its analysis the Tribunal applied the relevant statutory tests in conventional terms. It was not bound to treat the country information as determinative of the statutory questions. For extensive and carefully weighted reasons, the Tribunal was not satisfied that the statutory questions should be answered in the appellant's favour.

Ground 3 23 The appellant said: …the learned primary judge erred in not finding that the Tribunal made jurisdictional error in that it was not open for the Tribunal to question the credibility of the appellant based on who the two officers were when the police officer punched him in 2008 at the Wailoaloa Beach and/or it was unreasonable for the Tribunal to use it against the appellant. 24 Part of the evidence in support of the appellant's application was an assault at a beach where he was allegedly drinking with a gay partner. At the first oral hearing he said one police officer bashed him while one other police officer remained in a nearby vehicle. The Tribunal observed at [20] that the evidence was "delivered in a vague and unconvincing manner". The transcript of a second oral hearing and the Tribunal's reasons record that later, after he added a claim that military personnel also abused him and was confronted with the question of why he gave no evidence about military personnel earlier, the appellant changed his account. First he seemed to say there was one police officer and one military person. When the Tribunal pointed out that he said there were two police officers earlier, he said there were two police officers but he thought there was another person in the car, a military person: Tribunal's reasons at [30]. The Tribunal raised this and other inconsistencies and delays with the appellant (at [40]) and ultimately found this and other evidence to be vague and lack credibility: Tribunal's reasons at [62]. 25 On appeal it was submitted for the appellant that it could not be said the evidence was vague as the appellant had answered all of the questions put to him and regard had to be had to the power imbalance between the appellant and the Tribunal. It could not be suggested that the appellant had avoided answering any question and thus it could not be concluded logically or reasonably that the appellant's evidence was vague. 26 It was also submitted that the appellant gave evidence that the military and police were patrolling together, so the identity of the people allegedly involved would not have mattered. Further, the appellant said this was just one event and should not have had such a large effect on the Tribunal's assessment of the evidence. 27 To the contrary of all of these submissions, the appellant's ability to consistently recall the number of people present and whether they were military personnel or police (especially given that on the appellant's evidence they wore different uniforms: Transcript of 1 September 2017, P339 L26) was relevant in considering whether the appellant's evidence of the event was credible. Similarly, the Tribunal saw the appellant give evidence and was entitled to characterise the evidence as vague and lacking credibility. The mere fact that the appellant answered the questions put to him does not prevent such a credit finding from being properly made. Further, the weight given to particular conduct in the assessment of the applicant's overall credibility was a matter for the Tribunal to decide, within reason. Given that this was the primary instance of four instances of abuse relied upon by the appellant (from 2008, 2012, 2014 and 2015), it was reasonably open for the Tribunal to base its assessment of the appellant's credibility in part on the manner in which he gave evidence of this event, as well as the substance of that evidence. 28 It was open to the Tribunal to doubt the appellant's credibility. It did not need to accept his evidence at face value, indeed it was obliged to come to its own conclusions. The Tribunal's adverse credibility findings were open having regard to the whole of the appellant's evidence. 29 The primary judge did not err in so concluding.

Ground 4 30 The appellant said: …the learned primary judge erred in not finding that the Tribunal made jurisdictional error in that it (a) misapprehended the appellant's evidence and (b) it was illogical and unreasonable in finding at [63] that the appellant and witnesses fabricated the claims with respect to the appellant's father. 31 The Tribunal did not accept a claim by the appellant that his father physically and verbally assaulted him in 2010 and encouraged his cousins to assault him in 2015. As described above, the appellant's early oral evidence appeared to the Tribunal inconsistent with later and delayed evidence that his father assaulted him. Further, the evidence of witnesses about these assaults appeared to the Tribunal limited, vague, unconvincing and therefore not credible in combination with the other evidence. The Tribunal found these claims were fabricated to support the application for a protection visa: [63]. 32 The appellant sought to make a distinction between a "claim" that his father abused him and "evidence of an incident" in which his father assaulted him. It is apparent from its reasons that the Tribunal knew this was a claimed incident of assault used as evidence for a general pattern of abuse in Fiji: [63]. The distinction is misconceived. 33 The appellant said there was no basis for rejecting the credibility of his claim or the claims of his witnesses about these events. The Tribunal explained its basis adequately in [63] of its reasons. 34 The appellant also said the Tribunal ignored evidence about how his family reacted to him coming out to them as gay. The evidence he referred the Court to was oral recollections, recorded in the transcript, of conversations between his family members whereby his parents found his sexuality "difficult to accept" at first but his sisters encouraged them to accept it. True it is that the Tribunal chose not to refer to this evidence in its reasons, but that does not mean it failed to consider the evidence. 35 The appellant's claims rise no higher than dissatisfaction with the Tribunal's assessment of the evidence as a whole, which the primary judge correctly found to have been conducted in a logical and rational manner.

Ground 5 36 The appellant said: …the learned primary judge erred in not finding that the Tribunal made jurisdictional error in that it dealt with critical country information on an illogical or unreasonable manner. The Tribunal failed to give the country information about persecution of gays in the Fijian society given by prominent Fijians Mr. ### and Mrs ### proper consideration it deserves because it approached the information on an illogical and unreasonable basis. 37 Whether it be called country information or simply supporting written evidence about personal perceptions in the form of letters, the material provided by those individuals consisted mostly of stories and general statements about Fiji based on media articles and personal experience, which the Tribunal accepted did not portray Fiji as "an attractive country for homosexuals to reside in": Tribunal's reasons at [65]. 38 However, the Tribunal said it "affords the written evidence from Mr … and Mrs … low weight given that it is general in nature, provides limited detail concerning the applicant's personal circumstances and was provided following significant delay…": [68]. 39 The appellant expressed dissatisfaction with the Tribunal's treatment of the Department of Foreign Affairs and Trade country information discussed above (under ground 1) compared with the treatment of the information he provided from the two supporting witnesses. He expressed this dissatisfaction through the assertion that the Tribunal treated the information illogically and unreasonably. 40 It was submitted for the appellant that all information about a country is "general" in nature so this reason for giving little weight to the information provided in the two letters was illogical. However, reasons for a decision are not to be subjected to "over-zealous" scrutiny or a "fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law": Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 272 and 291. The word "general" is relative. The Tribunal's comment about the generality of the information provided by the two witnesses can be understood in context. The letters make no distinction between particular regions of Fiji and both point to the same two instances of gay people being discriminated against: a statement by the Prime Minister that if gay people want to marry they will have to do so outside Fiji; and the killing of a law student, allegedly because he was gay. Apart from that they make statements such as how, in Fiji, men are expected to be masculine and not to "sin" by engaging in homosexual conduct, for which they may be excommunicated from their families. The Tribunal was entitled to prefer the detailed and officially ratified country information provided by the Department of Foreign Affairs and Trade. 41 The appellant also said that considering delay was unreasonable because country information of this kind does not change. Whilst it may be true in some cases that country information does not change over the time it takes to consider an application, there are reasons why delay may be a relevant consideration particularly when the evidence was also general in nature and provided limited detail about the appellant's personal circumstances, as the Tribunal also found. It was not unreasonable for the Tribunal to give this evidence "low weight" for the reasons it gave. 42 The primary judge was correct to hold that there was no reason to think the Tribunal's assessment of the country information, as stated in its reasons at [68], was illogical or unreasonable.

Ground 6 43 The appellant said: …the learned primary judge erred in not finding that the Tribunal made jurisdictional error in that it unreasonably made findings that the appellant's evidence was vague on the 2008 incident or other incidents. The appellant answered the questions asked by the Tribunal and there was nothing vague about his response. 44 The terms of this ground expose why it must be rejected. It seeks merits review of the essential fact finding task responsibility for which was vested in the Tribunal alone. The ground does little more than assert dissatisfaction with the Tribunal's assessment of the appellant's evidence which was a matter for the Tribunal alone based on the substance of his evidence and the manner in which he gave it. 45 As noted, it was submitted that because the appellant answered all the questions he was asked his answers could not be called vague. This does not follow. 46 It may be accepted that giving evidence before the Tribunal may be a daunting task, but it is was for the appellant to establish his claims for protection with positive evidence and it was for the Tribunal to assess his credibility. The Tribunal considered the timing of his evidence, the apparent inconsistencies evident in the written material and transcripts, and what it saw and heard of the appellant for itself. The Tribunal's conclusions about the appellant's evidence were reasonably open. 47 The 2008 incident at the beach need not be dealt with further, having already been dealt with under ground 3. 48 Nor is there anything to suggest the Tribunal was unreasonably dismissive of the appellant's other evidence. 49 The appellant said the primary judge "did not deal with specifics" in saying that the Tribunal was not unreasonable to make adverse credibility findings about other incidents in 2012, 2014 and 2015. But the appellant himself was not specific. He only raised the complaint that he answered questions as he was asked and was not vague. 50 The primary judge did not err in holding that the adverse credibility findings made by the Tribunal were open to it.

Conclusion 51 The appeal should be dismissed and the appellant should pay the first respondent's costs of the proceeding. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.