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WZAOE v Minister for Immigration & Anor [2011] FMCA 429 (17 June 2011)

Last Updated: 20 June 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZAOE v MINISTER FOR IMMIGRATION & ANOR
[2011] FMCA 429

MIGRATION – Refugee Review Tribunal – protection visa – judicial review – Bangladeshi citizen – allegedly homosexual – credibility – whether jurisdictional error.

Migration Act 1958 (Cth), ss.91R, 474(1), 476(2)(a)

Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZJGV & Anor (2009) 238 CLR 642; [2009] HCA 40
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZDJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 214
SZGNJ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 91
SZHZD v Minister for Immigration [2008] FMCA 4
SZKHV & Anor v Minister for Immigration & Anor [2009] FMCA 264

Applicant:
WZAOE

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
REFUGEE REVIEW TRIBUNAL

File Number:
PEG 5 of 2011

Judgment of:
Lucev FM

Hearing date:
31 May 2011 (by video-link to Broome)

Date of Last Submission:
31 May 2011

Delivered at:
Perth

Delivered on:
17 June 2011 (by telephone to Broome)

REPRESENTATION

The Applicant:
In person

Counsel for the First Respondent:
Mr A Gerrard

Solicitors for the First Respondent:
Australian Government Solicitor

For the Second Respondent:
Submitting appearance, save as to costs.

ORDERS

(1) That the application be dismissed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 5 of 2011

WZAOE

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Introduction

  1. The applicant is a 26 year old citizen of Bangladesh who arrived in Australia on a student visa on 8 March 2009.[1]
  2. The applicant claims to fear persecution on the basis of his sexual orientation. The applicant claims to be a homosexual. The applicant applied for a Protection (Class XA) visa on 11 May 2010.[2]
  3. The Protection Visa Application was refused by a delegate of the first respondent on 7 September 2010.[3]
  4. On 6 October 2010 the applicant sought review of the Delegate’s Decision in the Refugee Review Tribunal.[4] The Tribunal conducted a hearing[5] on 10 December 2010. The applicant attended the Tribunal Hearing.[6]

Tribunal Decision

  1. On 22 December 2010 the Tribunal handed down its Statement of Decision and Reasons[7] affirming the Delegate’s Decision to refuse the grant of a Protection Visa to the applicant.[8]
  2. The Tribunal Decision set out the relevant law to be considered by the Tribunal, and the nature of the Protection Visa Application, including:
    1. the matters contained in the Protection Visa Application form;
    2. various written statements and supporting documents; and
    1. the applicant’s interview with the Delegate.[9]
  3. The details of the Tribunal Hearing on 10 December 2010 are set out in significant detail in the Tribunal Decision, with the Tribunal detailing the various matters that it asked the applicant about, including the following:
    1. the preparation and assistance received in completing his Protection Visa Application, noting that his answer at hearing that he had received “the assistance of his partner” was inconsistent with the statement in his protection Visa Application that he had received no assistance in completing the form;[10]
    2. the details of his residential addresses in Australia;[11]
    1. the details of his education, both in Bangladesh and Australia, together with his work history, and the details of an alleged study trip to Cyprus in 2005, and travel to the United Arab Emirates to work in 2006;[12]
    1. why he was fearful of returning to Bangladesh, and when and how it was that he came to realise he was homosexual;[13]
    2. the details of an “intimate” relationship with a Christian boy who was a boarder at a missionary college in Bangladesh;[14]
    3. whether he had explored any other opportunities to be with other men in Bangladesh, and how he had done so;[15]
    4. details of how his family in Bangladesh had become aware of his sexual orientation, and inconsistencies that arose in relation to his account of when he was caught in a compromising position with his partner, and when and where that occurred;[16]
    5. details of when and where he had met his partner in Australia, and of their engagement in sexual activity;[17]
    6. whether or not their relationship was exclusive, to which the applicant advised that, apart from planning to have group sex with some of their gay friends after the 2011 Mardi Gras, he and his partner were in an exclusive relationship together;[18]
    7. the details of his mobile telephone account, record of SMS communications and his Facebook account, which resulted in the Tribunal writing as follows:
      • 72. The Tribunal asked the applicant if he had any objections to the Tribunal viewing his mobile telephone. He said he did not. When asked to unlock his phone, the applicant took an unusually long time and the Tribunal formed the impression that he was manipulating data on his telephone. When this was put to him, the applicant denied it. When he finally handed over his telephone, record of his recent calls had been entirely erased. Similarly, while the record of his Short Message Service (SMS) showed that he had received or sent text communication to a number of individuals, including Mr [Flatmate],[19] the contents of some but not all of these messages had been erased. When the Tribunal asked him why there was no record of any recent calls made or received on his telephone, he stated that he was in the habit of erasing the record regularly. When asked why he had erased the content of his text communications, he said he was in the habit [of] deleting messages after reading. The Tribunal noted the message from Mr [Flatmate] and asked why he was in communication with Mr [Flatmate] given Mr [Flatmate’s] hostile attitude towards him and his role in informing the applicant’s parents about his sexual orientation. He stated that Mr [Flatmate] had contacted him in September or October to tell him that he was sorry and regretful of his actions. When the Tribunal reminded him of his description of Mr [Flatmate’s] reaction after discovering him and [his partner] naked and in the early stages of engaging in sexual activity, he stated that Mr [Flatmate] no longer had any problems with his sexuality and had told him that they are all free and independent in Australia. The Tribunal put to him that it found it difficult to believe his belated account of Mr [Flatmate’s] change of heart. He stated that Mr [Flatmate’s] reaction was a sudden outburst and he had subsequently realised that they have been friends for a long time.
      • 73. The Tribunal noted that his mobile telephone indicated that he had a Facebook account and his email address had been entered as the User ID. He was asked to log in to his Facebook page. He said he had forgotten his password.
        It was put to him that it was difficult to believe that he had forgotten his password. He repeated that he had forgotten his password. When it was put to him that this may give the impression that he was hiding or withholding information, he denied it.
      • 74. The Tribunal asked him about the photographs stored on his mobile phone, which depicted other South Asian males at various locations in Sydney. He said the photographs belonged to the person who previously owned the telephone. He was asked if he has erased all his recent calls and messages, why he had not erased the photographs stored on the phone. He said the previous owner had asked him not to erase the photographs.[20]
    8. why he did not remain in Cyprus where he acknowledged that the situation for homosexuals was better than that in Bangladesh;[21]
    1. an email from his brother relating to financial support to be provided to him in Australia, in circumstances where the applicant had alleged that his family were upset and angry with him because of his alleged homosexuality;[22]
    1. why he had placed a personal advertisement on a dating website in July 2010 when he had earlier given evidence that his relationship with his partner had become exclusive after March 2010;[23] and
    2. photographs showing the applicant and his partner at various locations in Sydney and Canberra, which the Tribunal suggested to the applicant gave no indication of a sexual relationship.[24]
  4. At the Tribunal Hearing the Tribunal also indicated to the applicant that it wished to discuss with him information that may be a reason for affirming the decision to refuse him a protection visa and that he would be asked to comment or respond to the information, and that he would be entitled to seek additional time to comment upon, or respond to, the information that the Tribunal was to put to him.[25] The Tribunal set that information out as follows:
  5. The Tribunal then set out its findings and reasons. It noted that the applicant’s claims were based on the Convention ground of membership of a particular social group, namely homosexuals in Bangladesh, and noted that the applicant feared facing harm if he returned to Bangladesh by reason of his sexual orientation.[27]
  6. The Tribunal noted and accepted the difficulties of proof faced by applicants for refugee status, and that some statements were not susceptible of particular proof.[28] The Tribunal also noted that it was not required to accept uncritically any allegation made by an applicant and that it was not required to have rebutting evidence available to it before it could find that a particular factual assertion by an applicant has not been made out.[29] The Tribunal also noted that it was not obliged to accept claims that were inconsistent with independent evidence regarding the situation in the applicant’s country of nationality.[30]
  7. The Tribunal found that the applicant was not a credible witness. It did so having regard to inconsistencies in evidence presented to the Department of Immigration and Citizenship (including the Delegate) and his evidence to the Tribunal, plus the unconvincing nature of key parts of his claims, and for other reasons set out in detail in the findings and reasons.[31] The Tribunal addressed these matters at length, finding as follows:
    1. that the applicant had only raised for the first time at the Tribunal Hearing that he had been involved in a “homosexual type relationship” before he left Bangladesh.[32] The Tribunal noted that he had made no mention of the relationship in response to the Delegate’s questions, nor did he make any mention of the relationship in his Protection Visa Application. The Tribunal juxtaposed that against circumstances of the applicant’s evidence that a male teacher at his college in 2001 had “paid him extra attention and tried to impress him in various ways by complimenting him.”[33] The Tribunal did not accept the applicant’s explanation that his belated revelation of his homosexual type relationship in Bangladesh was something that he “missed mentioning” because he was nervous at the interview and concerned about an adverse decision. The Tribunal observed that if the person concerned “was the only person in Bangladesh with whom the applicant had engaged in homosexual activity, he would not have neglected to mention this potentially significant relationship if in fact it had existed”;[34]
    2. that the applicant had also provided inconsistent evidence in relation to how he had procured the email from his brother which he had submitted to the Department in support of his claim, and had not satisfactorily explained why his family, whom he claimed refused to communicate with him, would assist him by providing the email. The Tribunal was of the view that there was a strong impression that the email was contrived and was procured by the applicant to strengthen his claim for a protection visa;[35]
    1. the applicant had provided inconsistent evidence in respect of his residential addresses in Sydney;[36]
    1. that it had had doubts regarding the purported hostility of the applicant’s flatmate after allegedly discovering the applicant’s homosexuality, given he was still in contact with his flatmate;[37]
    2. the applicant’s credibility was further impacted by his conduct when asked to show the Tribunal the contents of his mobile phone. The Tribunal considered that:
      • 101. The applicant’s lack of candour was also evident in his conduct when he was asked to show the Tribunal the contents of his mobile telephone. When asked to unlock his phone, the applicant took an unusually long time and the Tribunal formed the impression that he was manipulating data on his telephone. When he finally handed over his telephone, record of his recent calls had been entirely erased. When asked why he had erased the record of his recent calls, he said he was in the habit of doing so on a regular basis. The Tribunal finds the applicant's explanation unsatisfactory and is of the view that in erasing the record of his recent calls and the contents of his text messages, as well as the fact that he appeared to be manipulating data on his mobile phone suggests that he has not been entirely truthful and that the information on his telephone did not support his case.[38]
    3. in relation to the applicant’s alleged homosexual relationship in Australia, the Tribunal said that:
      • 102. Fifthly, the applicant claims to have been in a homosexual relationship with [his partner] since February 2010. However, other than some general photographs of him in the company of another male, who he identified as [his partner], he has provided no evidence to substantiate his claim that he is involved in a homosexual relationship with [his partner]. On 7 December 2010, the Tribunal contacted the applicant and asked him to bring [his partner] to the Tribunal hearing. He said that he will. At the hearing, however, he informed the Tribunal that [his partner] had been unable to take time off work. During the course of the hearing, the Tribunal attempted to contact [his partner] by telephone to take evidence from him, but was unable to reach him. The applicant did not provide any evidence after the hearing to support his claim that he was involved in a homosexual relationship with [his partner] or anyone else. The Tribunal is of the view that if the applicant was involved in a committed homosexual relationship with another male as he has claimed, it would be reasonable to expect him to provide evidence in support of this relationship.
      • 103. In addition, at the hearing the applicant claimed that in March or April 2010 he entered into a mutually exclusive and committed relationship with [his partner]. However, he had placed a personal advertisement in a website on 6 July 2010, stating: Hi, I am looking for you if you feel the same as me.
        I am a gay. Please response”. When asked at the hearing why [he] had placed the advertisement if he was in a committed relationship with [his partner], he said he wanted to make friends. There was nothing in the applicant’s invitation to suggest that it was aimed at finding friends. In the Tribunal’s view, the advertisement undermines the credibility of the applicant’s claims in relation to [his partner].[39]
    4. although the applicant says he might have visited gay clubs on Oxford Street and placed a personal advertisement on a website, these were activities which were done for the purpose of strengthening the applicant’s claim to be a refugee;[40]
    5. it did not accept that the applicant was a homosexual, practised homosexuality or was involved in homosexual relationships in Bangladesh;[41]
    6. it did not accept that the applicant had engaged in homosexual acts with anyone in private or public in Bangladesh or Australia;[42]
    7. it did not accept that the applicant had been threatened by his family;[43] and
    8. it concluded that:
      1. the applicant is not homosexual; and
      2. there is no real chance that he will be harmed by reason of his sexual orientation or any other Convention reason if he returned to Bangladesh.[44]

Jurisdictional error

  1. A decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error.[45] Further, an error by an administrative tribunal, such as the Tribunal, will only constitute jurisdictional error if the Tribunal:
    1. identifies a wrong issue;
    2. asks a wrong question;
    1. ignores relevant material; or
    1. relies on irrelevant material,

in such a way that the Tribunal's exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute.[46]

Grounds of Application

  1. The applicant filed an amended application on 3 May 2011 with three grounds of review.

Ground 1

  1. Ground 1 of the applicant’s amended application states:

Applicant’s submissions

  1. The applicant submitted that the Tribunal erred because it failed to consider his fear of persecution under s.91R of the Migration Act 1958 (Cth)[47] in that:
    1. the Tribunal did not consider his homosexual activities in Australia;
    2. the Tribunal did not consider his involvement with the Australian gay community, including:
      1. regular visits to gay clubs on Oxford Street in Sydney;
      2. that he participated in gay activities;
      3. the placement of an advertisement on a gay website; and
      4. that he met with people who are gay.
  2. The applicant also submits that:
    1. the Tribunal did not take into consideration that all of these issues and activities in Australia would adversely affect him if he returned to Bangladesh and made himself “available”; and
    2. the Tribunal failed to ask him any material question as to how he would be adversely affected by the gay activities in Australia if he returned to Bangladesh.

First respondent’s submissions

  1. The first respondent submits that the applicant’s submission that the Tribunal failed to deal with his “gay activities in Australia” is a proposition without substance, because the Tribunal:
    1. referred to, and rejected, the applicant’s claim that his family had discovered his activities in Sydney, and had withdrawn their financial support and refused to speak to the applicant on the telephone;[48]
    2. referred to, and rejected, the applicant’s claims that his homosexual activities had been discovered by his flatmate who had reacted with hostility, asked the applicant to move out and had informed the applicant’s parents and others;[49]
    1. referred to, and rejected, the applicant’s claim to have been in a homosexual relationship with his partner since February 2010;[50]
    1. referred to the advertisement placed by the applicant on a website in which the applicant identified as a gay man;[51] and
    2. accepted that the applicant may have visited gay clubs on Oxford Street, Sydney.[52]
  2. The first respondent says that the Tribunal made the following critical finding:
  3. Thus, the first respondent says that it is not that the Tribunal failed to deal with the applicant’s activities in Australia, but rather that it did deal with them, and rejected them.
  4. In relation to the applicant’s assertion that the Tribunal failed to ask the applicant any material question as to how the applicant would have been adversely affected by his activities in Australia if he returned to Bangladesh, the first respondent says that there was no obligation on the Tribunal to ask such a question, and contends that:
    1. it is for an applicant to advance whatever evidence or argument he wished to advance in support of his contention that he had a well-founded fear of persecution for a Convention reason;[54]
    2. the Tribunal did not believe the applicant’s central claim that he is gay, thus the Tribunal was not required to consider whether or not he would be persecuted for being gay upon his return to Bangladesh; and
    1. having found that the applicant’s activities in Australia were undertaken for the purpose of strengthening his claims to be a refugee, the Tribunal was entitled to disregard those activities.[55]

Consideration – ground 1

  1. The Tribunal did consider the applicant’s alleged:
    1. homosexual activities in Australia; and
    2. involvement in the gay community in Australia.
  2. There is no reason to doubt the statement in the Tribunal Decision that:
  3. The Tribunal went further and listed a number of matters that it had considered, namely:
    1. visits to clubs in Oxford Street, Sydney;
    2. photographs of the applicant in attendance at those clubs; and
    1. the placing of a personal advertisement on a website,

and was satisfied that the claims were made for the purpose of strengthening the applicant’s claim to be a refugee.[57] Therefore, the Tribunal was entitled to disregard the applicant’s alleged activities in Australia,[58] as it did.[59] The Tribunal’s consideration of the above claims, and additional claims related to:

  1. the applicant’s alleged homosexual activities at his place of residence with his partner; and
  2. the applicant’s interaction with his family about his alleged homosexuality,

was sufficient to warrant such a conclusion being drawn by the Tribunal, the question of satisfaction for the purposes of s.91R(3) of the Migration Act being a factual one.

  1. Section 91R(3) of the Migration Act requires the applicant to satisfy the Tribunal that conduct engaged in, in Australia, by the applicant, was not engaged in for the purposes of strengthening his claim. Obviously, the applicant failed to so satisfy the Tribunal.
  2. Having failed to so satisfy the Tribunal, the Tribunal was in fact obliged to disregard that conduct (that is the alleged conduct in Australia) for the purposes of determining whether the applicant had a well-founded fear of persecution.[60] Having regard to the law and the evidence, it is clear that the Tribunal was entitled to reach the conclusion that:

and, to disregard that conduct, as it did.[62]

  1. Because the Tribunal was obliged to disregard the conduct in question, it was not obliged to consider that conduct in the context of what might happen to the applicant if he returned to Bangladesh. Furthermore, the conclusion reached by the Tribunal that the applicant was not a homosexual, a conclusion which was open on the evidence reasonably interpreted by the Tribunal, meant that the question of whether the treatment suffered or feared by the applicant amounted to persecution, or fear of persecution, under s.91R of the Migration Act, simply did not arise. Thus, the Tribunal was not, and could not have been, satisfied that the applicant had a well founded fear of persecution. The applicant has therefore not made out this ground.
  2. In all the above circumstances, there was no jurisdictional error by the Tribunal in relation to ground 1, and ground 1 must fail.

Ground 2

  1. Ground 2 of the applicant’s amended application states:

Applicant’s submissions

  1. The applicant correctly submitted that the Tribunal made the finding referred to in ground 2A(i), as set out above.[63]
  2. The applicant submitted that:
    1. “the Tribunal just did imagination about my credibility”;
    2. “the Tribunal tried so hard to make me liar”; and
    1. whatever he claimed before the Tribunal was genuine; and
    1. his activities and involvement with the gay community itself proved that he was gay.
  3. The applicant further submits that the “worse thing” was that the Tribunal did not notify him about its finding that he was not a credible witness during or after the hearing, and that had the Tribunal done so he might have taken further action to satisfy the Tribunal that he was a truthful witness. Consequently, the applicant submits that he was denied natural justice as the Tribunal did not notify him of its adverse finding.

First respondent’s submissions

  1. The first respondent submits that the second ground appears to be nothing more than an attempt to re-engage in merits review and no jurisdictional error is discernable, and that the Tribunal’s rejection of the applicant’s claims were based in part on its conclusion about the applicant’s lack of credibility. The first respondent says that the Tribunal’s conclusions were in turn based on inconsistencies in the applicant’s versions of events, being:
    1. the applicant’s failure to mention a relationship with the Christian boy in Bangladesh until the actual hearing;[64]
    2. the inconsistency between the applicant’s claim that his family refused to communicate with him but were nevertheless prepared to provide an email which he could use to obtain financial assistance, and the familiar language used in that email;[65]
    1. inconsistent evidence in relation to the applicant’s residential addresses in Sydney;[66]
    1. the evidence that the applicant’s flatmate had reacted with hostility upon discovering that the applicant was homosexual and had asked him to leave, was inconsistent with the fact that they had exchanged several text messages since then;[67]
    2. the lack of any evidence (other than some general photographs) of the applicant’s purported relationship of nearly a year’s duration with his partner;[68]
    3. the inconsistency between the applicant’s claim to be in a mutually exclusive and committed relationship in early 2010 and the applicant’s personal advertisement on a website on 6 July 2010;[69] and
    4. the applicant’s decision to leave Cyprus after only two weeks and return to Bangladesh.[70]

Consideration – ground 2

  1. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[71] the High Court said:
  2. In this case the applicant’s credibility was extensively tested by the Tribunal during the course of the Tribunal Hearing, as is evident from the Court’s summary of the Tribunal Decision set out above. It is apparent from the Tribunal Decision that the Tribunal did put the applicant on notice in relation to every issue that contributed to the Tribunal’s difficulty in crediting the applicant’s evidence.[73] Indeed, the Tribunal specifically put to the applicant that it had difficulty believing that he was gay.[74]
  3. The Tribunal was entitled to approach the assessment of the applicant’s evidence in the manner that it did. The Tribunal’s findings in relation to the credibility of the applicant were the result of a fact-finding task within the Tribunal’s jurisdiction. As is often said “[c]redibility findings are a matter par excellence for the Tribunal”.[75]
  4. In the circumstances, ground 2 has no substance, does not evince jurisdictional error by the Tribunal, and must therefore fail.

Ground 3

  1. Ground 3 of the applicant’s amended application states:

Applicant’s submissions

  1. The applicant made no specific written or oral submissions directly concerning this review ground, but, at least in part, his submission in relation to ground 1 dealt with the same factual matters.

First respondent’s submissions

  1. The first respondent contends that review ground 3 is an impermissible attempt to re-engage in merits review, and that:
    1. merely to take a particular view regarding certain aspects of the evidence of factual material on review, and thereby to reason to a conclusion on an applicant’s credibility, does not constitute error, let alone jurisdictional error;
    2. findings of fact, including findings in relation to credibility are a matter for the Tribunal;[76] and
    1. it is pre-eminently the Tribunal’s prerogative to allocate the appropriate weight to the evidence before it.[77]

Consideration – ground 3

  1. For reasons otherwise set out above,[78] the Tribunal did consider the applicant’s homosexuality in Australia, his visits to gay clubs in Oxford Street, the placement of an advertisement on a website, and his socialisation within the gay community. The Tribunal drew conclusions:
    1. from the evidence; and
    2. as to the applicant’s credibility, from the evidence given by him,

which were open to the Tribunal. The Tribunal’s consideration of these issues does not reveal any error, let alone jurisdictional error.
The applicant’s ground 3 must therefore fail.

Conclusion

  1. The Tribunal considered all of the applicant’s claims, had regard to the evidence before it, set out its findings appropriately, and made no errors of law. For the reasons set out above, the Tribunal Decision does not involve jurisdictional error. The Tribunal Decision is therefore a privative clause decision and not susceptible to judicial review.[79] The application will therefore be dismissed. There will be an order accordingly.
  2. The Court will hear the parties as to costs.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Lucev FM


Associate:


Date: 17 June 2011

[1] Court Book 13 (“CB”).
[2] “Protection Visa Application”; CB 1-24.
[3] “Delegate’s Decision”; CB 105-119.
[4] “Tribunal”.
[5] “Tribunal Hearing”.
[6] CB 177-178 and 204.
[7] “Tribunal Decision”, CB 196-214.
[8] CB 214.
[9] CB 197-204.
[10] CB 204.
[11] CB 204.
[12] CB 205.
[13] CB 205.
[14] CB 205.
[15] CB 206.
[16] CB 206.
[17] CB 206-207.
[18] CB 207.
[19] A former flatmate (“Mr Flatmate”) who had:
(a) allegedly found the applicant in a compromising position with his partner; and
(b) allegedly informed the applicant’s family in Bangladesh that he had found the applicant in a compromising position with his partner. See CB 206.
[20] CB 207-208.
[21] CB 208.
[22] CB 208-210.
[23] CB 209.
[24] CB 209.
[25] CB 209.
[26] CB 209-210.
[27] CB 210.
[28] CB 210.
[29] CB 210-211.
[30] CB 211.
[31] CB 211.
[32] CB 211.
[33] CB 211.
[34] CB 211.
[35] CB 211-212.
[36] CB 212.
[37] CB 212.
[38] CB 212.
[39] CB 212-213.
[40] CB 213.
[41] CB 213.
[42] CB 213-214.
[43] CB 214.
[44] CB 214.
[45] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at para.76 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[46] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ.
[47] “Migration Act”.
[48] CB 211.
[49] CB 212.
[50] CB 212-213.
[51] CB 213.
[52] CB 213.
[53] CB 213.
[54] SZDJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 214 (“SZDJT”).
[55] Migration Act, s.91R(3)(b).
[56] CB 213.
[57] Migration Act, s.91R(3)(b).
[58] Migration Act, s.91R(3).
[59] CB 213.
[60] Minister for Immigration and Citizenship v SZJGV & Anor [2009] HCA 40; (2009) 238 CLR 642 at 653 per French CJ and Bell J and 669 per Crennan and Kiefel JJ; [2009] HCA 40 at para.12 per French CJ and Bell J and para.65 per Crennan and Kiefel JJ.
[61] CB 213.
[62] CB 213.
[63] CB 213.
[64] CB 211.
[65] CB 211.
[66] CB 212.
[67] CB 212.
[68] CB 212-213.
[69] CB 213.
[70] CB 213.
[71] (2006) 228 CLR 152; [2006] HCA 63 (“SZBEL”).
[72] SZBEL CLR at 165-166 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; HCA at para.47 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
[73] CB 209-210.
[74] CB 210.
[75] SZKHV & Anor v Minister for Immigration & Anor [2009] FMCA 264 at para.56 per Emmett FM, citing Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at 423 per McHugh J; [2000] HCA 1 at para.67 per McHugh J.
[76] Citing NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 at para.9 per Heerey, RD Nicholson and Selway JJ; SZHZD v Minister for Immigration [2008] FMCA 4.
[77] Citing Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors[1986] HCA 40; (1986) 162 CLR 24; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; SZGNJ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 91 at para.85 per Lloyd-Jones FM.
[78] See paras.21-23 and 35 above.
[79] Migration Act, ss.474(1) and 476(2)(a).

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