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SZNKW v Minister for Immigration and Citizenship [2010] FCA 55 (10 February 2010)

Last Updated: 11 February 2010

FEDERAL COURT OF AUSTRALIA


SZNKW v Minister for Immigration and Citizenship [2010] FCA 55


Citation:
SZNKW v Minister for Immigration and Citizenship [2010] FCA 55


Appeal from:
SZNKW v Minister for Immigration & Anor [2009] FMCA 713


Parties:
SZNKW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL


File number(s):
NSD 1198 of 2009


Judge:
KENNY J


Date of judgment:
10 February 2010


Date of hearing:
10 February 2010


Place:
Sydney


Division:
GENERAL DIVISION


Category:
No Catchwords


Number of paragraphs:
61


Appellant:
No appearance by the Appellant


Counsel for the Respondents:
Ms N Johnson


Solicitor for the Respondents:
Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
NSD 1198 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
SZNKW
Appellant
AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:
KENNY J
DATE OF ORDER:
10 FEBRUARY 2010
WHERE MADE:
SYDNEY

THE COURT ORDERS THAT:


  1. The appeal be dismissed.
  2. The appellant pay the first respondent’s costs of appeal fixed in the amount of $2500.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
NSD 1198 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
SZNKW
Appellant
AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:
KENNY J
DATE:
10 FEBRUARY 2010
PLACE:
SYDNEY

REASONS FOR JUDGMENT

  1. This is an appeal from a judgment of the Federal Magistrates Court delivered on 9 October 2009, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).
  2. The appellant did not appear at the hearing today. In the circumstances, I considered it appropriate to proceed with the hearing pursuant to O 52 r 38A(1)(d) of the Federal Court Rules. There has been some correspondence with the appellant and this Court and, in particular, the Court notified the appellant of the hearing today by a letter dated 16 December 2009. Furthermore, on Monday this week, my associate confirmed with the appellant that he was aware of the hearing that was scheduled for today. As appears below, the appellant and the respondent have both filed written submissions at an earlier date. The Court has received no communication from the appellant seeking an adjournment or explaining his inability to be present today.
  3. At the hearing, counsel for the first respondent relied on her written submissions. I indicated that having read these submissions and the appellants’ submissions, I would dismiss the appeal and that I would provide reasons this afternoon. These are my reasons for dismissing the appeal.
  4. Before detailing these reasons, however, I note by way of background that the Tribunal found that the appellant was a citizen of Bangladesh, who arrived in Australia in July 2008 and lodged an application with the first respondent’s Department for a protection visa in August 2008. Essentially, the appellant claimed refugee status on the basis that he would be persecuted on account of his homosexuality if he returned to Bangladesh. On 7 November 2008, a delegate of the first respondent refused his application.
  5. On 3 December 2008, the appellant applied to the Tribunal for a review of the delegate’s decision. The Tribunal affirmed the delegate’s decision on 13 March 2009. The appellant filed an application for judicial review in the Federal Magistrates Court, which was heard on 23 July 2009 and dismissed on 9 October 2009.

APPELLANT’S CLAIMS AND EVIDENCE

  1. In its reasons, the Tribunal described the appellant’s claims and evidence, as they appeared from the Department’s file and as stated before the Tribunal. The appellant made the following claims in his original visa application:
  2. Through his migration agent, the appellant provided additional evidence in support of his application. As described by the Tribunal, this evidence included:
  3. The Tribunal also reiterated what the appellant was said to have told the first respondent’s delegate on 16 October 2008. The Tribunal referred to a fax received by the first respondent’s Department on 18 December 2008 from an anonymous individual located in Bangladesh. The fax included the appellant’s date of birth and passport number and stated that the appellant’s claim to be homosexual was “totally bogus” and that his claim not to have been to his village since 2000 was false. The fax further stated that people in the appellant’s village knew the appellant was a “normal man” who maintained a close relationship with his parents and “even has a girl friend”. The author of the fax averred that the information provided could be confirmed by contacting people in the appellant’s village.
  4. On 21 January 2009, the appellant submitted a further statement to the Tribunal. The Tribunal noted in its reasons that this document “in substance repeat[ed] what was in the statement accompanying his original application although with changes in the language and some minor changes in dates”. The appellant also submitted a document headed “Clarification to the misunderstandings of the DIAC officer”, in which he addressed several points on which the delegate had relied in rejecting his application.
  5. The appellant gave evidence to the Tribunal, which was detailed in the Tribunal’s reasons for decision. The subjects discussed were: errors which the appellant said he had made in his original application; how the appellant’s application and other documents were translated; the appellant’s religious activities, religious background, and family background; the appellant’s realisation that he was homosexual; the appellant’s relationships with Robert, George and A; the appellant’s studies; whether the appellant had been to his village since moving to Dhaka; the incident in which the appellant’s brother discovered the appellant and A having sex and beat the appellant; the appellant’s subsequent move to his cousin’s house; the 2008 incident in which the appellant was attacked by unknown people; the email sent by his cousin; and the appellant’s life in Australia.
  6. At the hearing, the Tribunal also presented the appellant with information which the Tribunal stated he considered might be the reason or part of the reason for denying the appellant’s visa application.
  7. First, the Tribunal referred to the discussion regarding the appellant’s realisation that he was homosexual. The Tribunal’s reasons described that discussion as follows:
I asked [the applicant] when he had first realized that he was homosexual. The applicant said that he had been like this since his childhood but his first sexual experience had been with Robert in 2000, after he had turned 18. I indicated to the applicant that I was interested in when he had first thought or realised that he was homosexual. The applicant said that this first statement was that he had no attraction to women. He said that when he had had sex with Robert he had enjoyed this and he had thought that he liked boys. I asked the applicant if he had never thought that he was homosexual before that. The applicant said that he had thought it but that he had not had a sexual relationship with anyone.

I put to the applicant that I was not asking about sexual relationships but about how he had thought about homosexuality. I asked him again when he had first realised that he was homosexual. The applicant repeated that it had been in 2000. I put to the applicant that this was a little difficult to believe. I noted that he had said that he had identified as homosexual since his childhood. I put it to him that he seemed to equate being homosexual with having sex with a man. I put to the applicant that he must have realised that he was homosexual before he had ever got to that point. I asked him what he could tell me about when he had first realised this and how he had felt about it. The applicant said that he had thought that when a boy was 12 or 13 years old he was attracted to women but this had not happened to him. He said that he had never noted the date when “that homosexuality thing” had come into his mind.

I indicated to the applicant that I was not asking him to give me the date. I was asking him to give some indication of how this realisation had affected him. The applicant said that the question was not clear to him so he could not answer.

The Tribunal informed the appellant that it found the appellant’s responses regarding his realisation that he was homosexual “quite unconvincing”.

  1. The Tribunal next raised the point, also raised in the appellant’s interview with the delegate, that when the appellant filled out a medical form as part of an examination in connection with his visa application, he stated that he had never been hospitalized. This contradicted the appellant’s claim that he was hospitalized after being beaten by Robert.
  2. The Tribunal noted that the appellant had stated that he moved to Dhaka in December 2000 but his original application indicated that he studied at the college in Kaligonj until August 2001.
  3. The Tribunal also raised inconsistencies in the appellant’s account of his brother’s discovery of him and A. The Tribunal noted that the appellant stated that the incident had occurred on 16 December 2007 but the statement accompanying his original application suggested a date in January 2008. The Tribunal further noted that although the appellant claimed to have gone into hiding after the incident, this fact was not included in his original statement.
  4. The Tribunal noted that both the appellant and A had told the delegate that they held each other’s hands everywhere they went in Sydney, but both had later stated that they only occasionally held hands while walking the streets of Sydney.
  5. The Tribunal referred to the appellant’s account of his escape from a group of armed assailants in 2008. The appellant had “said that when he had gone out on the street he had seen some people chasing him and that they had been armed with sharp weapons”. As recounted in the Tribunal’s reasons, the appellant explained his escape from the attackers as follows:
He said that as he had been running in front of them he had spoken to his cousin on his mobile phone and his cousin had come in his car to pick him up. He said that they had not realised that he was staying at his cousin’s house and he had returned there after three or four hours. He said this had been so that they would not follow him and realise that he was staying with his cousin. I noted that he had said that his cousin had come in his car and had picked him up. I put to the applicant that if they had seen his cousin’s car they would have known that he was staying with his cousin. The applicant said that they had not memorised the number of the car.

The Tribunal told the appellant “that it was difficult to accept that he would have been able to escape from armed people in [this] fashion”.

  1. The Tribunal raised the matter of the anonymous fax. The Tribunal told the appellant that he “would not ordinarily place much weight on a message from an anonymous informant but that [he] considered it significant that [the person who sent the fax] was clearly close to the applicant in that the person knew [the applicant’s] passport number and the nature of the claims [the applicant] had made in support of his application for a protection visa”.
  2. The Tribunal informed the appellant that the Tribunal would give no weight to A’s evidence if the Tribunal concluded that A was not homosexual. The Tribunal also informed the appellant that the Tribunal was required by s 91R(3) of the Migration Act 1954 (Cth) (the “Migration Act”) to disregard the appellant’s conduct in Australia unless he was satisfied that the appellant had engaged in the conduct for reasons other than strengthening his claim for refugee status. The Tribunal explained that if he concluded that the appellant was not homosexual, he would have to disregard the appellant’s activities in Australia.
  3. The appellant responded to the points raised by the Tribunal in a letter dated 23 February 2009. With regard to his response to the medical questionnaire, the appellant stated that the question had only asked if he had been hospitalized in the past five years, not whether he had ever been hospitalized. According to the Tribunal’s reasons, however, the appellant’s description of the question is inaccurate.
  4. With regard to the statement in the appellant’s original application that he studied at Kaligonj until August 2001, the appellant said that he had studied at home in Dhaka and had travelled to another college for examinations in April/May 2001; that he was under the supervision of a teacher who lived close to his house in Dhaka while studying for these examinations; and that this teacher used to travel to Kaligonj to teach.
  5. With regard to his escape from a group of armed people, the appellant repeated his original account of the escape with some additional details.
  6. With regard to the view expressed by the Tribunal that the appellant’s evidence in relation to his realisation that he was homosexual was unsatisfactory, the appellant stated that “he ‘didn’t realize that I have to become [w]orld famous poet Rabindranath Tagore and have to organize and compose my story and life experience like a statement’”. As described in the Tribunal’s reasons, the appellant elaborated on his realisation that he was homosexual as follows:
The applicant said that Robert was ‘the one who told me about GAY’ and that ‘when I stepped into my youth from my adolescent since then I started thinking myself as a Gay [sic]’ but that he could not tell me ‘the correct date or time’.
  1. With regard to the anonymous fax, the appellant suggested that his former migration agent might have been responsible for the fax. He stated that the agent had been angry because he and A decided to run their cases themselves rather than continue using her services. The appellant said that the agent could have emailed her husband in Bangladesh and asked him to send a fax from a number there.
  2. With regard to the inconsistent dates given for the incident in which the appellant’s brother discovered him with A, the appellant again asserted that the incident had occurred on 16 December 2007. He maintained that he had said in his original statement that the incident occurred a few days before Christmas.
  3. The appellant also produced a statement signed by his four housemates, indicating that they regarded the appellant and A as partners. He also produced a letter from a co-worker, stating that the co-worker and other staff considered the appellant to be homosexual. The appellant finally produced a letter from a person (whom I shall refer to as Mr C) stating that the appellant was his wife’s cousin; that he had learned that the appellant was beaten and forced to leave his village after it was discovered that the appellant was homosexual; that one of the appellant’s brothers had told him (Mr C) that the brothers had caught the appellant with a boy and beaten him and kicked him out of the house; and that he knew the appellant had been physically tortured because he was homosexual.

TRIBUNAL DECISION

  1. The Tribunal accepted that homosexuals in Bangladesh were a particular social group for purposes of the Refugees Convention. It did not accept, however, that the appellant was homosexual. The Tribunal concluded therefore that there was not a real chance that the appellant would be persecuted if he returned to Bangladesh because of his actual or perceived membership in the social group of homosexuals in Bangladesh. As this was the only basis for the appellant’s protection visa application, the appellant was not someone to whom Australia had protection obligations under the Refugees Convention. Accordingly, the appellant did not satisfy the criterion for a protection visa under paragraph 36(2)(a) of the Migration Act.
  2. The Tribunal cited several reasons for disbelieving the appellant’s evidence that he was homosexual. First, the Tribunal found the appellant’s answers regarding his realisation that he was homosexual unconvincing. The Tribunal explained that it considered it reasonable, if the appellant was in fact homosexual, “to expect him to have been able to say something more about how he came to the realisation that he was homosexual and how this realisation affected him”.
  3. Second, the Tribunal found that the appellant’s answer on his medical form that he had never been admitted to the hospital cast doubt on his claim that he had been hospitalized after being beaten by Robert. The Tribunal accepted the evidence on the medical form.
  4. Third, the Tribunal noted inconsistencies in the dates of events in the appellant’s various accounts of his history. The inconsistency between the appellant’s claim, before the Tribunal, to have travelled to Dhaka in December 2000 and his claim, on his original application, to have studied in Kaligonj until August 2001 cast doubt on whether the November 2000 incident involving Robert (which purportedly precipitated the move to Dhaka) in fact occurred. Similarly, the inconsistency in the dates on which the appellant claimed to have left his brother’s house after his brother’s discovery of his sexual relationship with A cast doubt on whether that incident occurred.
  5. Fourth, the Tribunal found the appellant’s account of his escape from a group of unknown attackers in 2008 “very difficult to believe”. In the Tribunal’s view, it was not credible that the appellant would have been able to escape people armed with sharp weapons by calling his cousin on a mobile phone while being chased and arranging for the cousin to pick him up in a car.
  6. Finally, the Tribunal placed some weight on the anonymous fax which stated that the appellant’s claim to be homosexual was “bogus”. The Tribunal explained its weighing of the fax’s evidentiary value:
As I explained to the applicant in the course of the hearing before me, I would not ordinarily place much weight on a message from an anonymous informant but I consider it significant that the person who sent this anonymous fax message was clearly close enough to the applicant to know his passport number and the nature of the claims he had made in support of his application for a protection visa. Accordingly, I give what is said in the message some weight along with the other evidence before me which . . . leads me to find that the applicant is not telling the truth and that he is not homosexual as he claims.
  1. With regard to the fax, the Tribunal did not accept the appellant’s theory that his former migration agent had sent the fax in retaliation for a dispute over fees. The Tribunal noted that, if the appellant’s representative had authored the fax, she would have been placing her registration as a migration agent at risk by admitting that she had knowingly put forward claims she knew to be false; and that no fax was received regarding A despite the fact that both the appellant and A were involved in the dispute with the agent, suggesting that the author of the fax had knowledge of the appellant but not A.
  2. The Tribunal considered the evidence but was not persuaded to accept the appellant’s claims. Although A gave evidence corroborating the appellant’s claims (and the appellant gave evidence in support of A’s claims, in a separate application before the same Tribunal), the Tribunal, in ruling on A’s application, did not accept that A was homosexual either. It thus gave no weight to A’s corroboration of the appellant’s claims.
  3. The Tribunal found the email from his cousin stating that Muslims were searching for the appellant and threatening to kill him “of limited value”, as it did not state the reason for the Muslims’ actions or provide any detail regarding the “last incident” which, according to the letter, the Muslims had learned of.
  4. The Tribunal granted that Mr C’s letter provided some corroboration for the appellant’s claims. However, in the Tribunal’s view, the evidence did not outweigh the evidence compelling the conclusion that the appellant was not telling the truth as to his homosexuality.
  5. Because the Tribunal found that the appellant was not homosexual, it gave no weight to the evidence indicating that the appellant and A had held themselves out as a homosexual couple since arriving in Australia.
  6. In sum, the Tribunal concluded that the appellant was not homosexual and was not truthful regarding his experiences in Bangladesh. It concluded that neither the incident in which the appellant was discovered with Robert while preparing for sex nor the subsequent beating of the appellant occurred. It found that the appellant did not travel to Dhaka in 2000 but remained in Kaligonj until August 2001. The Tribunal did not accept that the appellant had sexual relationships with George or A, that the appellant’s brother discovered him having sex with A, or that the appellant was kicked out of the brother’s house and had to hide as a result. It did not accept that the appellant was chased in the streets by fundamentalists and escaped with the aid of his cousin or that Muslims were searching for the appellant and threatening to kill him. Whilst the Tribunal accepted that the appellant and A held themselves out as homosexual partners in Australia, the Tribunal was not satisfied that the appellant had done so other than for the purpose of strengthening his claim to be a refugee, and the Tribunal was therefore bound to disregard this conduct in accordance with s 91R (3) of the Migration Act.

IN THE FEDERAL MAGISTRATES COURT

  1. In his application in the Federal Magistrates Court, the appellant asserted jurisdictional error upon the basis that the Tribunal failed to provide him with information that it considered would be the reason, or part of the reason, for affirming the decision under review, in breach of s 424A of the Migration Act. In written submissions in that Court, the appellant put forth various complaints regarding the weight placed by the Tribunal on the anonymous fax; argued that the Tribunal failed to give weight to documents he had provided; and asserted that the Tribunal had not given him an opportunity to comment on the country information on which it relied. In oral submissions, the appellant argued that the Tribunal’s reliance on the anonymous fax demonstrated bias on its part, and asserted that the bias would spread to other Tribunals if his case was returned to the Tribunal and assigned to a different member. The Federal Magistrate concluded that the appellant’s submissions did not disclose any jurisdictional error on the part of the Tribunal.

ARGUMENTS ON APPEAL

  1. The appellant’s notice of appeal from the judgment of the Federal Magistrate Court set forth three grounds of appeal:
  2. In written submissions, the appellant argued that the Tribunal erred in giving weight to the anonymous fax; in failing to give weight to documents he submitted; and in failing to discuss with him the country information regarding the status of homosexuals in Bangladesh on which it relied, which he considered inconsistent with his view of “the situation of [h]omosexual[s] in Bangladesh”. The final argument was said to disclose a breach of s 424A of the Migration Act. The appellant’s submissions before this Court are the same as his earlier submissions in the Federal Magistrates Court.

CONSIDERATION

Failure to Take into Account Appellant’s Membership in a Specific Social Group

  1. To the extent this appeal ground, presented without elaboration in the appellant’s notice of appeal, was intended to raise an argument separate from those set forth in the appellant’s written submissions, it does not disclose any jurisdictional error by the Tribunal. The Tribunal concluded that the appellant was not homosexual. This was an issue of fact for the Tribunal, and none of the appellant’s arguments, which I discuss below, establish that the Tribunal committed any relevant error in reaching the conclusion that the appellant was not telling the truth about his sexuality and his experiences in Bangladesh.

Breach of Section 424A of the Migration Act

  1. Section 424A(1) requires that the Tribunal
(a)  give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)  ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)  invite the applicant to comment on or respond to it.
  1. The appellant argued that the Tribunal contravened this section because “[t]he country information cited by the Tribunal ha[d] some inconsistent [sic] with my evidence about the situation of [h]omosexual[s] in Bangladesh”, and the Tribunal did not discuss its country information or the inconsistency with him.
  2. As the Federal Magistrate correctly observed, the appellant’s argument regarding country information misunderstands the basis for the Tribunal’s decision. The Tribunal rejected the appellant’s application because it concluded that he was not homosexual. It is clear from the Tribunal’s reasons that in reaching this conclusion, the Tribunal did not rely on any particular facts regarding the situation of homosexuals in Bangladesh, nor did it rely on any perceived inconsistency between the appellant’s version of that situation and a different version preferred by the Tribunal. The Tribunal rejected the appellant’s claim that he was homosexual based primarily on problematic aspects of the appellant’s own accounts of his experiences. The Tribunal cited the appellant’s inability to provide a description of how he realised he was homosexual and the effect this realisation had on him; the inconsistency between the appellant’s claim to have been hospitalized and the answer on his medical form; the inconsistencies in the dates of various events provided by the appellant; and the implausible nature of the appellant’s account of his escape from a group of armed assailants. Other than these internal problems with the appellant’s narratives, the only item of evidence cited by the Tribunal in rejecting the appellant’s claims was the anonymous fax. None of this evidence implicates any particular country information, and all of it was put to the appellant during the Tribunal hearing, thus satisfying the Tribunal’s obligation to inform the appellant of information that might be the basis for its decision: see Migration Act s 424AA and 424A(2A).
  3. Further, information about the status of homosexuals in Bangladesh is not within the ambit of section 424A’s disclosure requirements. Sub-section 424A(3)(a) exempts from disclosure any information “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”. There is some disagreement in the decisions of the Full Court of this court regarding the interpretation of the second clause of this provision: see VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134; (2004) 136 FCR 407 (“VNAA”) at 417 [25]-[26]. Some decisions support the view that the phrase “and is just about a class of persons of which the applicant or other person is a member” provides a second criterion for exemption in addition to the requirement that the information be “not specifically about the applicant or another person”: see, e.g., VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 186; (2003) 131 FCR 80 (“VHAJ”) at 88 [24]-[25] per Moore J and 94 [45] per Kenny J. Others support the view that the provision contains only one criterion – that the information “is not specifically about the applicant or another person” – and the “just about” clause serves simply to reinforce the non-specificity required by this single criterion: see, e.g., VHAP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [14] per Gyles and Conti JJ. As in VNAA, it is unnecessary to choose between these two constructions in the present case. Information about the status of homosexuals in Bangladesh generally is not specifically about the appellant or another person; and, as such information was only potentially relevant because of the appellant’s claimed membership in the class of homosexuals in Bangladesh, the “just about” clause is satisfied if that clause is treated as defining a separate criterion: see VHAJ at [55].
  4. For these reasons, the Federal Magistrate correctly held that there was no breach of s 424A of the Migration Act.

Weight Given to Anonymous Fax

  1. The appellant advanced several lines of argument in support of his submission that the Tribunal erred in placing weight on the anonymous fax. First, he argued, as I understand it, that the Tribunal erred in giving weight to the fax based on the view that the author of the fax was “clearly close enough to the applicant to know his passport number and the nature of the claims he had made in support of his application for a protection visa”. In this regard, the appellant appeared to argue that anyone close enough to him to have access to this information would not have attempted to sabotage his visa application.
  2. Second, the appellant argued that the Tribunal could not “make . . . an adverse decision based on an anonymous document”.
  3. Third, the appellant argued that the Tribunal could not rely on the fax because it was not “[i]ndependent country information” and was deliberately sent to harm him.
  4. As the Federal Magistrate noted, the degree of weight given to an item of evidence such as the fax is a matter reserved for the Tribunal. The appellant’s arguments at best provide reasons why a different fact finder might choose to treat the anonymous fax differently than the Tribunal did. Disagreement with the Tribunal’s weighing of the evidence of this kind does not raise the possibility of jurisdictional error. I concur with the Federal Magistrate’s conclusion that there was no error in the Tribunal’s approach to the anonymous fax. As the Federal Magistrate put it (SZNKW v Minister for Immigration & Citizenship [2009] FMCA 713 at [65]- [66]):
The critical issue is how the Tribunal dealt with this anonymous fax, and the way it went about arriving at its conclusion as to the degree of weight to be placed to it.

In this regard, I cannot see error in how the Tribunal approached this aspect of its task. It exposed the existence of the anonymous fax to the applicant at the hearing, it explained what the fax contained and its relevance, and gave him an opportunity to comment. It took into account the applicant’s comments and, for cogent reasons which were open to it, arrived at the conclusion that, notwithstanding that the fax was anonymous, some weight should be accorded to it, and that it should be considered along with all the other relevant factors in arriving at the conclusion that the applicant was not a homosexual as he had claimed.
  1. The appellant’s arguments do not undermine this conclusion. As to the appellant’s first argument, I accept that, under normal circumstances, one might reasonably assume that a close relative of a visa applicant would not attempt to damage the applicant’s prospects. However, having received a detrimental fax containing information likely to be only known to persons close to the appellant, it was open to the Tribunal to conclude that such a person sent the fax and weigh the information in it accordingly.
  2. As to the appellant’s second argument, the Tribunal did not, as the appellant implied, rely solely or even primarily on the anonymous fax. As discussed above, the Tribunal relied primarily on inconsistencies and implausible claims in the appellant’s own evidence in concluding that the appellant was not homosexual. There is any event no absolute rule preventing the Tribunal from relying on anonymous documents. In general, it is for the Tribunal to decide what weight it will give items of evidence. This is not to say that jurisdictional error could not be disclosed through a Tribunal’s reliance on an anonymous document, but whether or not it was would depend on the circumstances of the case. There were no circumstances here that would justify this conclusion.
  3. As to the appellant’s third argument, the fact that the fax was not “independent country information” has no bearing on the propriety of the Tribunal’s reliance on it. Plainly enough, if the Tribunal were limited to country information, it would have no way of assessing the merits of appellants’ individual claims. The possibility that the sender of the fax was motivated by malice goes only to the weight to be accorded the fax and cannot support a claim of jurisdictional error.
  4. For these reasons, there was no jurisdictional error disclosed in the Tribunal’s treatment of the anonymous fax and the Federal Magistrate did not err in reaching this conclusion.

Failure to Give Weight to Documents Submitted by Appellant

  1. The appellant asserted that the Tribunal gave no weight to numerous documents he submitted. This argument too must fail based on the principle that the weight given to evidence is a matter for the Tribunal. I note briefly below further reasons why the appellant’s submissions in this regard were unpersuasive.
  2. All but two of the items listed by the appellant fell within the category of general information about the status of homosexuals in Bangladesh. As explained earlier, the Tribunal concluded, based largely on the appellant’s problematic account of his homosexuality and his experiences in Bangladesh, that the appellant was not homosexual. The Tribunal thus had no occasion to consider the situation of homosexuals as a group in Bangladesh. The appellant’s argument that the Tribunal failed to have regard to documents addressing the subject was therefore unavailing.
  3. As to the other two items, the first was the document written by the appellant (via translator) and submitted to the Tribunal entitled “Clarification to the misunderstanding of the DIAC Officer”. The document contained the appellant’s criticisms of the delegate’s reasoning. Specifically, it addressed the delegate’s view that the appellant’s claim not to have attracted adverse attention while holding hands with A in the western suburbs of Sydney undermined his claim that he was homosexual, as did his lack of familiarity with the city’s gay community. The Tribunal described this document and its contents in paragraphs [31]-[33] of its reasons, indicating that it was aware of and considered the appellant’s arguments against the delegate’s reasoning. However, the Tribunal did not rely on the reasoning criticised in the appellant’s “clarification” and concluded that the appellant was not homosexual on grounds other than those discussed in the document.
  4. The second item was the email from the appellant’s cousin stating that Muslims were searching for and threatening to kill the appellant and had killed another cousin’s daughter. The Tribunal discussed this letter with the appellant and provided cogent reasons for considering it of little value.

No fair justice?

  1. As noted above, in his notice of appeal, the appellant asserted that the Federal Magistrate failed to find jurisdictional error and thus denied him “fair justice”. It is unclear what the appellant intended by this. There were no particulars given. If the appellant’s point was that in failing to find jurisdictional error, the Federal Magistrate erred and thereby denied the appellant “fair justice” – then enough has already been said to dispose of this. The Federal Magistrate did not err, and there was no denial of justice. If the appellant is seeking to advance a separate “fair justice’ ground, then he must also fail, though for a different reason. Merely invoking “fair justice” is not a valid way of establishing jurisdictional error. Something more concrete is required before the possibility of jurisdictional error can be considered. Apart from the matters already discussed, the appellant has pointed to no other alleged deficiency in the Tribunal’s decision.
  2. For the reasons stated, there is no error shown in the judgment of the Federal Magistrate; and the appeal should be dismissed, with costs. The first respondent relied on the affidavit of Nicola Johnson, a solicitor familiar with the matter. On the basis of this affidavit, I consider that costs should be fixed in the sum of $2500, as the first respondent sought.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Associate:


Dated: 10 February 2010


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