SZBQT v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an appeal from a decision of the Federal Magistrates Court, SZBQT v Minister for Immigration [2006] FMCA 1183. The issues on the appeal are within a narrow compass. The first ground of appeal has been taken without opposition by the Minister on a point not argued below; that is, that the Refugee Review Tribunal based its decision on findings that were irrational in that they were not supported by evidence. The second ground was taken below and raises the question as to whether, when the appellant's migration agent made a submission to the tribunal following the conclusion of the hearing, a portion of that submission - which was inconsistent with the evidence of the appellant - could have been used by the tribunal without giving a notice under s 424A of the Migration Act 1958 (Cth), or at all. 2 The two issues are interrelated and arise in this way. The appellant, who is a national of Bangladesh, claimed to have been a homosexual but, in his evidence to the tribunal, said that he realised his own sexuality when he was about 22 years old. The appellant was represented by his migration agent, who was also at the hearing with him. At the conclusion of the hearing, the tribunal asked the appellant whether there was any evidence that was available in Australia of his homosexuality. The tribunal remarked that he had already told it that there had been some difficulty in providing such evidence, but asked the agent to talk to the appellant about that. The tribunal gave the appellant five days in which to put in further material. In the event, the agent wrote a letter 10 days after the hearing stating that he acted for the appellant in relation to the review proceedings. 3 Submissions and statements were made in various portions of the 10 pages of the letter. It also had attachments. In the letter the agent said that the appellant became aware of his sexual identity when he was 14-15 years old. This was clearly inconsistent with the evidence that the appellant had given earlier to the tribunal. Four days later, the agent sent a further letter on behalf of the appellant, recording that he was instructed to submit a photocopy of a membership card and letter from the New Mardi Gras organisation, evidencing the appellant's recent acquisition of membership of that organisation. 4 The critical part of the tribunal's reasoning, the subject of this appeal, is as follows: 'The central aspect of the applicant's claims is that he is a homosexual and that he would be persecuted if he were to return to Bangladesh. However, there were inconsistencies in the applicant's story and he also did not provide convincing supporting evidence that he was homosexual. At the hearing of the applicant's claims he said that he realised that he was homosexual around 2002. He indicated that up until that time he had not gone out with girls. He was 22 at that time. He stated that he did not have any homosexual experiences at school or prior to turning 22. He stated that he did not realise that he was homosexual. However, in the post-hearing submission it was stated that he became aware of his sexual identity when he was 14-15 years old. He also stated in his post-hearing submission that from his boyhood, he did not feel attraction to females and thus was not straight in his sexual preferences. He did not feel any biological attraction to opposite sex and had been practising homosexual behaviours secretly out of fear from his immediate family, Islamic Mullahs and greater society at large. Clearly there is an inconsistency between the applicant's comments with regard to when he first realized that he was homosexual in his evidence and I make that finding.' 5 The appellant argued that in using the post-hearing submission as it did, the tribunal made a credibility based finding against him that was central to its decision. He said that the post-hearing submission, about the age at which the appellant discovered his sexuality, was not information but only a submission and if it were to be treated as information, it had no probative value whatever. Moreover, the appellant argued that there was no evidence that the agent was authorised to make such a submission on behalf of the appellant and, therefore, there was no basis for the tribunal to find that he was putting it as evidence before the tribunal. 6 This is related also to the second ground of appeal, which asserts that if the material could amount to information for the purposes of s 424A, it was not information given by the appellant as the applicant for review, but was information given by the migration agent. Accordingly, the appellant argued, the requirements of s 424A(3)(b) were not met, and the tribunal was said to have committed a jurisdictional error by proceeding to make a decision without having first given him notice under that section of the information, and particulars, as far as practicable, as to why it was relevant to the review. 7 The statutory scheme in which this appeal falls to be decided includes a consideration of the role of a migration agent, acting on behalf of his or her client, in the tribunal. Part 3 of the Act provides for the circumstances in which migration agents and those who wish to give immigration assistance may act. In s 276(2)(c), immigration assistance is defined as including a person who uses their knowledge of or experience in migration procedure to assist another person, such as an applicant for review, by representing the applicant for review in proceedings before the tribunal relating to the visa for which the applicant was nominating. In this case, the appellant submitted his application for review of the decision of the delegate refusing his application for a protection visa, and nominated the migration agent as an adviser whom the appellant authorised to act for him in relation to that application. The agent gave the tribunal a notice, under s 312B of the Act, that he was giving immigration assistance to the appellant in respect of his application for review before the tribunal. 8 In Pt 7 of the Act, the functions and jurisdiction of the tribunal are set out. In Div 3 of Pt 7, the way in which the tribunal operates is described. In particular, in s 420(2) the tribunal, in reviewing the decision, is expressly not bound by technicalities, legal forms or rules of evidence. Next, Div 4 of Pt 7 deals with the conduct of the review and lays down the obligations of procedural fairness or natural justice which a tribunal is required to accord to applicants for review. 9 In the present case, the appellant argued that the tribunal was not entitled to make a finding that his evidence should not be accepted, based on the inconsistency between his own sworn evidence of the discovery of his sexuality at the age of 22 and the submission, made by the agent, that this occurred at the earlier age of between 14 and 15 years old. 10 It would be fair to say that the Act has a degree of technicality about it. It has required elucidation by the Courts on many and varied matters. Some of the decisions have produced results which have seemed surprising. In the present case, the agent was known by the tribunal to have been appointed by the appellant to represent him and to act on his behalf. He had, in fact, accompanied the appellant to the hearing and the tribunal member had directed a request for further information to the agent. During the course of the hearing, questions arose as to the appellant's claim in relation to his sexuality. The tribunal's reasoning made it clear that it perceived a difference between the post-hearing submission, which it described as such, and the evidence the appellant had given to it. 11 I think it would be unrealistic to require a tribunal, or, indeed, a Court, to consider that the agent was not making the post-hearing submission as statements which were authorised to be made by the appellant. The appellant gave no evidence before the trial judge, or before me, that he had not authorised the agent to make the post-hearing submission that he was 14 to 15 years old when he discovered his sexuality. Counsel for the appellant conceded that if the appellant had written the letter instead of the agent, the tribunal would have been entitled to take it into account as information given by the appellant for the purposes of the review, within s 424A(3)(b). 12 I do not see why an objective observer of the proceedings of the tribunal would not consider that what the agent put in the letter had not been authorised by his client; namely, the appellant. It would be an impossible task for the tribunal to dissect parts of the letter submitted by the agent with a view to ascertaining what was and what was not being put forward on behalf of the client, with his or her authority. 13 Moreover, in the present case, the apparent authority of the agent was reinforced by the submission, four days after the longer letter, of the further material containing the appellant's membership of the New Mardi Gras. In that context, it would be unreasonable to consider that the tribunal should have paused and said that it ought not rely on or use the material in the earlier submission as part of the information given to it by the appellant for the purpose of his application for review. 14 Of course, the inconsistency between the contents of the submission and the earlier evidence given under oath by the appellant was obvious. The tribunal properly identified the difference between the sworn evidence and the submission. I am of opinion that the tribunal was entitled to take into account, as the appellant, through his agent, appeared to be inviting it to do, the material which the appellant furnished through the agent; namely, the new assertion that at an earlier age he first appreciated his homosexuality. After all, it would not be the first time that a person, having given evidence, thought about the matter and wished to correct it. 15 There was no reason for the tribunal to conclude that the appellant had not authorised the submission of the information in the letter that he had first become aware of his sexuality at the younger age. It was the appellant, or his adviser, who sowed the seed of the confusion which led to the tribunal saying there was inconsistency in the material. The fact that the appellant appeared, through what was submitted to the tribunal through the agent, to be blowing hot and cold as to when he first appreciated his own sexuality was a matter the tribunal was entitled to take into account. The tribunal was not bound by the strict rules of evidence, or technicality, or legal forms (see s 420). After all, it was the appellant's agent who had given it this new information and it was clear, as would have been clear to the agent, that it was inconsistent with the account that the appellant had given the tribunal 10 days before. 16 There was no jurisdictional error on the part of the tribunal in having regard to the post-hearing submission, whatever error or not the agent may have made in making it. Moreover, there was no evidence that the agent made an error in making the submission. The fact that the appellant gave no evidence of any such error enables me comfortably to conclude that there was no error in his Honour's decision in that regard. 17 The appellant argued that the use of the post-hearing submission as to the age of discovery of his sexuality was not probative of anything. He said that it was not evidence and that for the tribunal to have acted on it showed that the actual decision was based on considerations which were irrelevant or irrational, or on findings or inferences of fact which were not supported by some probative material or logical grounds and that, therefore, the decision constituted a jurisdictional error: Australian Broadcasting Tribunal v Bond (1991) 170 CLR 321 at 366 per Deane J, and see also 358 per Mason CJ, with whom Brennan J agreed at 365. 18 If the appellant had made the statement in the post-hearing submission directly, the tribunal would have been entitled to act on it without any further reference to him and to discern the very inconsistency which it did. Unless there were a basis on which to conclude that the agent could not have made the submission on the appellant's behalf, I can see no basis on which it can be concluded that the tribunal was acting on material which was not probative. Why should the tribunal, it may be asked, have ignored the submission which the appellant was asking it to take into account in assessing his claim? And why should the tribunal have ignored material in that submission which could be treated as being an admission or a statement, of an evidentiary kind, in the sense embraced by s 424A of the Act? 19 A decision-maker who becomes aware of material that is credible, relevant and significant is obliged by the common law rules of procedural fairness to draw that material to the attention of the person whose interests may be adversely affected if it were taken into account, even if the decision-maker does not intend to take that material into account: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 ALR 411. 20 In a case like the present, the information about the earlier age at which the appellant was said to have become aware of his sexuality was brought to the tribunal's attention by his agent. I am of opinion that that was information given to the tribunal for the purposes of the review within the meaning of s 424A(3)(b) and the tribunal was entitled to have regard to it, without further reference to the appellant. 21 The trial judge had the unenviable task of dealing with arguments that were far less lucidly put, and which covered a far wider range of grounds of appeal, than the careful argument which counsel now appearing for the appellant has advanced today. Nonetheless, I am unable to perceive any error in his Honour's reasons for decision. 22 Not everyone would have reasoned in the way the tribunal did. A want of logic by an administrative decision-maker in drawing an inference of fact does not amount in itself to an error of law. Nor was there anything in its reasons which amounted to an error of law constituting a jurisdictional error. As Tamberlin, Emmett and Weinberg JJ pointed out in NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 [22]-[29], illogical reasoning, of itself, does not constitute an error of law or jurisdictional error. Mason CJ said in Bond 170 CLR at 356: 'Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.' (His Honour's emphasis) 23 Here, the tribunal identified an inconsistency between the evidence and the post-hearing submission. There was nothing illogical in it doing so or in acting on that disconformity on the basis of the submission which the appellant was asking the tribunal to consider in his application for review. The appellant, through his agent, was the author of any confusion. It does not sit well in his mouth to criticise the tribunal for having been drawn into any confusion, if there were any. Moreover, it is difficult to understand how this argument could be made good, given that the appellant had not said on oath before the trial judge, or me, that what the agent submitted to the tribunal was not authorised by him. 24 Counsel for the appellant argued that the onus was not on the appellant to demonstrate that the post-hearing submission was unauthorised. I am of opinion that that cannot be sustained. There was plainly evidence to show that the agent was authorised to represent, and did, in fact, represent the appellant, through the process of the review in the tribunal. In that state of affairs, unless the appellant gave evidence to demonstrate that the agent was on a frolic of his own in making the post-hearing submission, the tribunal was entitled to act on it and to take it into account, weighing it as it saw fit. Whatever the position may have been had the appellant called such evidence, this argument need not be considered, since he did not.