FEDERAL COURT OF AUSTRALIA SZTJG v Minister for Immigration and Border Protection [2015] FCA 1085 Citation: SZTJG v Minister for Immigration and Border Protection [2015] FCA 1085 Appeal from: SZTJG v Minister for Immigration & Anor [2015] FCCA 414 Parties: SZTJG v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 253 of 2015 Judge: RARES J Date of judgment: 11 August 2015 Legislation: Migration Act 1958 (Cth) Cases cited: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 SZTJG v Minister for Immigration [2015] FCCA 414 Date of hearing: 11 August 2015 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 32 Counsel for the Appellant: Mr M Finnane QC with Mr P Bodisco Solicitor for the Appellant: Ms Faye Greville Counsel for the First Respondent: Mr MJ Smith Solicitor for the First Respondent: DLA Piper IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 253 of 2015 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: SZTJG Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: RARES J DATE OF ORDER: 11 AUGUST 2015 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appellant be granted leave to file, forthwith, an amended notice of appeal from the Federal Circuit Court of Australia. 2. The name of the second respondent be amended to Administrative Appeals Tribunal. 3. The appeal be dismissed. 4. The appellant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 253 of 2015 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: SZTJG Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: RARES J DATE: 11 AUGUST 2015 PLACE: SYDNEY REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an appeal from a decision of the Federal Circuit Court refusing the appellant constitutional writ relief in respect of a decision of the Refugee Review Tribunal given on 13 September 2013 that affirmed the decision of the Minister's delegate not to grant the appellant a protection visa: SZTJG v Minister for Immigration [2015] FCCA 414. 2 The appellant is a citizen of Mongolia who arrived in Australia in February 2009 on a student visa. On 23 December 2011, he lodged a protection visa application. He claimed protection on the basis that he was homosexual and had a well-founded fear that he would be persecuted were he returned to Mongolia, by reason of his sexuality. 3 The Tribunal conducted a hearing at which the appellant was represented by a lawyer/migration agent and gave evidence. The substance of his argument before the trial judge and on appeal is that the way in which the Tribunal conducted the hearing was substantively not fair or just. The issues before the trial judge and on appeal 4 The appellant relied on two grounds of appeal that substantively mirrored his complaints as articulated to the trial judge. He argued that his Honour was in error in not finding that the Tribunal: (1) had made a finding so unreasonable that no reasonable person could have made it, namely, that the appellant had fabricated his claims, because the Tribunal's questioning had effectively typecast the appellant and required him to demonstrate some stereotypical preconception that the Tribunal ordained he should match were it to sustain his claims; and (2) had denied him procedural fairness or breached s 425(1) of the Migration Act 1958 (Cth). This ground relied on the alleged failure of the Tribunal to give the appellant a meaningful opportunity to give evidence and present arguments because its questioning was not conducted in a sensitive and respectful manner, and the Tribunal had embarked on a protracted inquiry that was irrelevant and inappropriate, based on its allegedly preconceived views as to how a person who is homosexual ought manifest his or her sexuality. Background 5 The appellant relied on a document entitled Guidance on Vulnerable Persons published by the Migration Review Tribunal and Refugee Review Tribunal. In particular, he relied on that document's identification of "options for assisting vulnerable persons" when giving evidence to the Tribunal which included, relevantly, that questioning should be undertaken in a sensitive and respectful manner and that questions should be formulated in a way that the vulnerable person would understand (see [43]). The appellant contended that he was vulnerable because he had been diagnosed with, and was receiving specialist medical treatment in respect of, a mental disorder, being depression. 6 The circumstances in which he came to make his claim for a protection visa, almost three years after he arrived in Australia, were as follow. On 28 September 2011, the appellant had been hospitalised at St Vincent's Hospital, Sydney after being found in a distressed condition on Pyrmont Bridge at Darling Harbour. He told ambulance officers who arrived at the scene that he had felt suicidal because of the gambling debts he had run up. He subsequently denied that he was suicidal, but medical staff on that occasion assessed him as a mentally disordered person and he was admitted overnight. On the next day, not displaying any further psychiatric symptoms, he was released. Subsequently, he came to be treated by Dr Gordon who, the Tribunal found, had been informed by hospital social workers that the appellant's migration status was causing him problems. 7 All records that were in evidence before the Tribunal indicated that the appellant first raised issues concerning his sexuality with Dr Gordon on 10 October 2011, at his second counselling session. The doctor then suggested to the appellant that he may be able to seek protection in Australia on the grounds of his homosexuality. 8 The Tribunal questioned the appellant over two separate hearing sessions on different days in the course of its review. During the first of those sessions, the Tribunal asked the appellant a number of questions concerning his substantive claims. The transcript of the Tribunal hearing which the appellant tendered to the trial judge had a considerable number of gaps in its record of the flow of questions and answers and other discussion. As a result, it is quite difficult to subject that transcript to a qualitative evaluation of the kind which the appellant asserts ought be done. From time to time in the course of the hearing, the Tribunal engaged in a degree of commentary or discussion, including with the appellant's lawyer/migration agent who appeared to have been present at all relevant times, about the reasons why it was exploring with the appellant certain aspects of his evidence. 9 Senior Counsel for the appellant has taken me today in detail to the parts of the transcript of which he makes complaint, first, to contextualise those aspects of the questioning that are the foundation of the grounds of appeal, and secondly, to identify the precise basis on which those complaints are made. 10 As the primary judge found, the Tribunal explored, in an open-ended way at the beginning of the questioning complained of, the basis on which the appellant claimed to be homosexual, what his past relationships had been and how they had concluded. 11 An important question for the Tribunal was whether the appellant had a gambling problem, as had been indicated by some evidence before it, including that of the night on which he was first brought to St Vincent's Hospital. A second foundation for that questioning was a note in the hospital records of a telephone call by his female flatmate at the time. That note recorded that she had inquired about the hospitalisation and attributed his situation to gambling. The note recorded that she said that she was not aware of any previous suicide attempts. However, in her written evidence to the Tribunal, she said that the doctor had informed her on 29 September 2011 that the appellant was depressed because of his sexuality and that she was aware of a prior suicidal attempt on his part. 12 Ultimately, the Tribunal made a finding that the appellant had had a panic attack and his purported suicide attempt on 28 September 2011 had occurred because of acute financial and gambling problems that he had. The Tribunal found that those events had occurred possibly because of the appellant's concerns about his migration status generally and other personal pressures. But, the Tribunal found that the events of 28 September 2011 were unrelated to the appellant's sexuality and that he only raised that subject subsequently, when he decided to present claims of homosexuality to Dr Gordon and others as a means of securing permanent residency. As I have indicated, the appellant's complaint is not so much with that finding as with the procedure in the Tribunal and its allegedly unfair questioning that underpinned its adverse finding. The proceedings in the Tribunal 13 The appellant had denied to the Tribunal, in answer to its question, that the hospital records had revealed that he had a gambling problem. He said he was not addicted to gambling and, had only gambled once, being on the night of 28 September 2011. The Tribunal then explained to him why it was concerned about those matters and what the hospital records showed. It then asked him a series of questions about his sexual relationships in Mongolia and Australia. He claimed that he had lived in a homosexual relationship with a male in Sydney in the same flat, together with his female flatmate. She gave evidence to the Tribunal supporting his claims of having lived in the flat with him and another male for about eight months. 14 The Tribunal asked questions about whether the appellant had any documentary evidence, such as payment of bills together, invitations to or attendances at events together, text messages, gifts or the like, that would indicate the nature of his relationship with his claimed male partner. The appellant said that he could not provide any such evidence other than to rely on his female flatmate's corroborative account of his homosexual relationship with their third, male, flatmate. The appellant produced one group photograph to the Tribunal that depicted a person whom he said was his partner, but nothing more. The Tribunal then questioned the appellant further about whether he had met any Mongolian or other gay men in Sydney to which the appellant responded that he had. The transcript recorded: Q: THE TRIBUNAL: And, well, you … you said they weren't Mongolian. Now, what background did they have? THE INTERPRETER: So two people I met in Oxford Street … they're Australian citizens … from another country … 15 The appellant then revealed that one was from Korea, one was from Thailand. He then said that he did not go out often, but had been to the gym and an asylum seeker centre and met some other gay men and had met others who were living in the hostel. He appeared to convey to the Tribunal that he was a private person who was not explicit about his sexuality. The Tribunal then referred to his having mentioned Oxford Street, and asked him what he knew about that locale to which he said, through the interpreter: I know that the … yeah the gay, especially the people from city, gay people, they (indistinct) around Oxford Street…but there's a lot for parts for gay people. [sic] 16 The Tribunal asked him whether he had been to those places and continued questioning him along those lines. It asked him questions about going to bars or discos and then the appellant told the Tribunal that he went every year to the Sydney Mardi Gras. The Tribunal asked him questions about that. The appellant said that he watched the parade with people from the hostel but did not himself participate in it. He said that he did not want to let other friends know about his homosexuality. The Tribunal then asked him questions about whether his friends might perceive him to be a person to whom they should introduce other gay persons, to which he responded that he was not sure. 17 The Tribunal asked whether the appellant had made any attempts to meet gay people to which he responded that he had met two guys from Italy and one from Finland who had returned overseas, but that he had no way of contacting them. He said that he had found a community organisation in Sydney for gay people, which the Tribunal elicited was the AIDS Council of New South Wales. After that the Tribunal asked him about the internet and how he had found out about that organisation, whether he had used the internet for other purposes such as looking at gay websites, finding out more information for gay men or for meeting people. 18 The appellant responded that he liked music and used the internet to access music and news about Mongolia but not all the time, and added "sometime I go, you know, the porno sites for gay people too". The Tribunal asked him a few questions about those sites and then turned to asking him whether he remembered anything about the names of any gay videos or other publications that gay men looked at and the appellant responded that he could not remember any. It asked him about his earlier account to the Tribunal about going to a bar earlier in the year and whether he had any plans or thoughts about meeting someone one day, to which the appellant responded that he was thinking about meeting somebody and having a good time. 19 The Tribunal asked about whether, since breaking up with his Mongolian boyfriend here, the appellant had had any chances to have casual encounters with anyone or to be intimate with them in a relationship, to which the appellant responded no. The transcript of the hearing in the Tribunal then continued: Q. That's okay, but I … but I do want to … want to ask is that because you've … you've not been interested, or you've not had an opportunity? A. INTERPRETER: First was I think some people can't live without sex. But some people can. Q. Hmmmm. A. INTERPRETER: Not only … it's not regarded to only get it (indistinct), generally I think everyone … the family about me, I can live without sex. I … I can live without sex long time. To tell you truth that other than apart from that … to tell you truth that, I don't have that ability now to think that to have relationship, 'cause I …suffer too much, I have really bad life. So I have plenty of reason to … to think and suffer and depress. Of course I understand your questions. So I understand your questions so looking for evidence that, you know, can show that I was in relationship, I had that, you know, I met this gay people. So to tell you truth that, I have enough other things to worry about than my relationship. 20 The above material was the foundation of the appellant's contention that the Tribunal's questioning was, in effect, unfair and premised on the Tribunal's presupposition or creation of a stereotype about how homosexuals do or should engage in relationships with other people and the conduct of their lifestyles generally. The trial judge's decision 21 The trial judge considered the conduct of the hearing before the Tribunal and the evidence that it had before it at length in a reserved and detailed judgment. He found that mere discussion by the Tribunal about, or its reference to, matters such as attendance at gay bars, accessing gay pornographic sites and the like did not, of itself, reveal that the Tribunal had conducted the hearing on the basis of any expectation that gay men would engage in certain behaviours, whether stereotypical or not, and that those references did not, on their own, reveal any lack of sensitivity of, or oppressive conduct by, the Tribunal. 22 His Honour found that the Tribunal's line of questioning at the hearing had to be understood in the context of its statutory obligations to conduct a review, including to consider the appellant's claims for protection based on his assertion that he feared harm were he to return to Mongolia because of his sexual orientation. That claim had been rejected by the delegate and was accordingly in issue before the Tribunal in the review. His Honour observed that, given the nature of the appellant's claims, the Tribunal had been obliged to inquire about his sexuality. His Honour found that in context, to the extent that the topic was complained of by the appellant, those inquires arose from his own evidence. The trial judge found that the Tribunal's questioning reasonably could be linked to the exploration of the appellant's claims and that this did not reveal error in the Tribunal's conduct of the review. 23 His Honour found that the transcript of the Tribunal's hearing revealed that its inquiries had ranged over a number of matters, including the appellant's claimed sexuality, his personal and family circumstances overseas and in Australia, his claimed suicide attempt in September 2011, his claimed experiences in Mongolia, his reasons for departure from his homeland, matters concerning his female flatmate, her statement, and his delay in applying for a protection visa. 24 The trial judge found that all those matters were relevant to Tribunal's consideration of the appellant's claims and flowed from, or were prompted by, details of his claims as he and his representative had presented them to the Tribunal. His Honour found: Any plain reading of the transcript does not reveal any reliance on stereotypes, or oppressive, or prurient, questioning. The Tribunal's questions were probative of the applicant's claims, and were relevant to them. In the circumstances, what the applicant now claims was a line of questioning arising from a stereotypical, or "preset", approach to homosexuals, was simply the Tribunal, properly, exploring the applicant's claims to be of homosexual orientation, and to fear harm because of it. Consideration 25 In my opinion the trial judge's findings were open to his Honour, and I agree with them. There was nothing in the Tribunal's questioning to which I was taken that demonstrated the Tribunal was acting in an inappropriate, overbearing or insensitive way, or had preconceived how someone who was homosexual should, or should not, have behaved. The questions complained of, concerning the appellant's uses of the internet, whether he sought out other people of like sexuality or his viewing of pornography, were within a brief compass and came at the conclusion of a sustained and focused series of questions that had sought to elicit information in an appropriate and open ended way. Some of the Tribunal's questions flowed from answers that the appellant had volunteered, and were not leading questions by the Tribunal that pointed towards a preconceived stereotyping of homosexuals or how they ought behave. 26 The Tribunal found at [25] that there was "very strong evidence – particularly taking into account that the applicant has shown minimal interest or engagement in homosexuality since arriving in Australia", that the circumstances that gave rise to his hospitalisation were due to his gambling problems, his migration status and other personal problems, and not to his alleged sexual orientation. Ultimately, after considering his claims individually and cumulatively, it did not accept the appellant was homosexual or that he would be perceived as such. The Tribunal found that he fabricated those claims in order to secure protection and, hence, permanent residency in Australia. 27 The Tribunal was entitled to make those findings on the evidence and material before it. There is no basis to conclude that it did so because of any jurisdictional error in its approach. 28 The second aspect of the first ground of appeal was that the Tribunal had not questioned the appellant in a way that sufficiently took into account his vulnerability created by his psychiatric condition of significant depression. The trial judge found that the transcript of the Tribunal's hearing revealed that it was alert to the appellant's claimed difficulties and, in fact, was sensitive to them in its questioning of him. He found, and I agree, that the Tribunal had sought to explain the purpose its lines of questioning to the appellant. This included a passage in which the Tribunal explained to him that it perceived that its questions concerning his sexuality might be puzzling to him, but that it was very difficult for the Tribunal to make a decision about those matters and it realised that it would also be very difficult for him to give evidence about them. 29 The trial judge found that the Tribunal's approach to questioning, and ultimately its findings arising from the questioning that informed its decision, were not unreasonable. His Honour also found that there was no material before the Court below to suggest that the appellant's mental condition and emotional state were such that he was deprived of a meaningful opportunity to give his evidence and present his arguments to the Tribunal. 30 Gray, Cooper and Selway JJ noted in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at 562 [41], that the Tribunal might fail to discharge its function to give a meaningful hearing to an applicant for review under s 425(1) of the Act, even though it was not aware that the person was not in a fit state to represent himself. 31 However, in the present case the Tribunal was aware of the appellant's diagnosed depression. It was also aware that the appellant was represented before it by his migration agent lawyer, who participated during the course of the hearing and raised no complaint either about the Tribunal's lines of questioning or the appellant's capacity fully and completely to participate in the conduct of the hearing. Nor was there any material placed before the trial judge to demonstrate that the appellant in fact laboured under some mental or other incapacity that would have deprived him of the opportunity of being able fully to engage in, or understand the conduct of, the hearing. In the absence of such evidence, it is impossible for an appellate court to come to the conclusion that the appellant's mental condition in any way deprived him of a fair and meaningful opportunity to present arguments and evidence to the Tribunal on the review. Conclusion 32 In my opinion, no error has been shown in the reasoning of the trial judge, and I agree with it. For these reasons, the appeal must be dismissed with costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 8 October 2015