ABA20 v Minister for Immigration

[2020] FCCA 2458

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABA20 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2458

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – whether the findings of the Tribunal lacked evident and intelligible justification so as to render the decision legally unreasonable – whether the Tribunal had real and meaningful engagement with the evidence – no jurisdictional error made out – further amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 5J, 36, 424A, 476

Applicant: ABA20

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 16 of 2020

Judgment of: Judge Street

Hearing date: 2 September 2020

Date of Last Submission: 2 September 2020

Delivered at: Sydney

Delivered on: 2 September 2020

REPRESENTATION

Counsel for the Applicant: Mr N Poynder via Microsoft Teams

Solicitors for the Applicant: Direct Access

Counsel for the Respondents: Mr T Reilly via Microsoft Teams

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Leave is granted to the applicant to rely upon the further particular identified in the applicant’s written submission filed on 27 August 2020 and the Court directs that the applicant file and serve a further amended application incorporating that amendment only on or before 4 September 2020.

2. The further amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 2 September 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 16 of 2020

ABA20

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 19 December 2019, affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection visa.

2. The applicant was found to be a citizen of Afghanistan and his claims were assessed against that country.

3. The applicant arrived in Australia on 8 November 2012 as the holder of a Criminal Justice Entry visa. The applicant was extradited from Malaysia to Australia to face charges of organising and facilitating the bringing in or coming to Australia of unlawful non-citizens, contrary to certain provisions of the Act.

4. The applicant was found to be of a Tajik ethnicity and a Sunni Muslim. 

5. The applicant claimed to fear harm, in summary, by reason of his involvement in the activities that gave rise to his arrest and extradition and by reason relevantly of having a child who had converted to Christianity.

6. On 14 August 2019, the Delegate found that the applicant failed to meet the criteria for the relevant Protection visa. The applicant applied for review on 14 August 2019. By letter dated 15 October 2019, the applicant was invited to attend a hearing on 22 November 2019. The applicant appeared on 22 November 2019 to give evidence and present arguments, and evidence was also taken from his wife and two daughters, and the applicant had present his migration representative.

7. On 25 November 2019, the applicant was sent a s 424A letter in relation to the applicant’s claims concerning his daughter’s adoption of Christianity, and in that regard it expressly referred to the concerns in respect of the wife maintaining that she believed the applicant was unaware of the daughter’s conversion when the applicant claimed he had been told about it 6 months ago, and the claims made by the applicant and his wife that they did not discuss the daughter’s conversion appearing to be highly improbable, and emphasising in that regard the improbability in circumstances where both had claimed that the conversion places the applicant at risk in Afghanistan. Secondly, the letter highlighted that if the daughter did convert to Christianity in 2017 or 3 years ago, it seems highly improbably that the applicant would not have been told about this until only 6 months ago.

8. Reference was also made to the applicant’s wife’s evidence, referring to the applicant’s brothers in her own protection visa application. The s 424A letter referred to, in that regard, the wife fearing harm from the applicant’s brothers on a number of grounds: that the brothers believed she was responsible for the applicant’s incarceration, that the brothers believed she had allowed the children to become infidels, and that she had claimed the brothers had accused her of being a prostitute.

9. Mr Poynder,  counsel on behalf of the applicant, ultimately pointed out that there was a reference in this regard to the applicant in the wife’s application simply referring to a brother-in-law and that it means that the reference to brothers (plural) should be brothers (singular). 

10. There is no significance that arises in relation to the singular nature of the claim in respect of the applicant’s brother.  The Tribunal has correctly identified the relevant claims advanced and has identified the concern in relation to having been inconsistent with the applicant’s evidence about the cessation of contact with his brother.

11. Further, it is relevant to take into account that the opportunity was given to the applicant to provide a response, and no response was provided taking issue with the reference to brothers (plural). The reference to brothers plural rather than singular was an immaterial error. The immaterial error does not affect there being compliance with s 424A of the Act. The plural error is of no real consequence and does not support any finding of a want of a genuine intellectual engagement with the applicant’s claims and evidence. The Tribunal’s reasons are not to be read with a keen eye for error. The Tribunal clearly understood the reference to the wife’s brother-in-law was a reference to the applicant’s brother.

12. The Tribunal, in its reasons, identified the background to the visa application and identified the relevant law and summarised the applicant’s claims. 

13. The Tribunal summarised what occurred at the hearing and the applicant growing up on land owned by the family, in which they produced sultanas. 

14. The Tribunal made reference to the applicant’s evidence about the arrival of the Taliban and problems with a particular Taliban commander, Y, and the family land allegedly being taken after he left Afghanistan in 2001.

15. The Tribunal referred to the issue as to why the Taliban did not occupy the applicant’s village until after he had left Afghanistan in 2001, and the applicant’s claims about having escaped and that he was afraid to return to his native village and that they would kill him because of events that occurred before he had left. 

16. The applicant also identified claiming to fear harm because he had been in a foreign Western country and that the people of Afghanistan may think that he had changed his religion.

17. The Tribunal also explored with the applicant his concerns in relation to his conviction. 

18. The Tribunal referred to the evidence given by the wife and the two daughters at the hearing. 

19. The Tribunal identified having credibility concerns, and referred to asking the applicant about whether his brothers helped him on the family land, and the applicant indicated that he had never seen his brothers again since the arrival of the Taliban, and referred to the s 424A letter raising the obvious inconsistency in respect of the wife’s claim of fear from one of the brothers.

20. The reference to the brothers (plural) in the Tribunal’s reasons concerning the wife, rather than the brother (singular), and in the s 424A letter, concerning the applicant’s wife was material and does not give rise to any misunderstanding of the evidence of the wife. The reference to the brothers plural rather than singular does not remove the inconsistency identified in the s 424A letter. The Court rejects the submission that there was no inconsistency but rather merely an implausibility. Nor would the distinction, even if accepted, in any event give rise to any jurisdictional error by the Tribunal

21. Reference was also made by the Tribunal to the applicant’s mental health and memory loss, which the Tribunal expressly took into account, including reference to the social worker’s assertions. The Tribunal, materially, noted that the applicant appeared to be well and able to comprehend the Tribunal’s questions and respond to them at the hearing and that the Tribunal was satisfied that the applicant had a meaningful opportunity to participate in the hearing, and the Tribunal expressly referred to having considered all of the applicant’s medical evidence, and found that it did not resolve the Tribunal’s concerns.

22. The Tribunal did not accept that the applicant’s memory difficulties would explain him forgetting that his wife had been in contact with his brothers. Again, the reference to brothers (plural) is of no materiality or significance and does not reflect any material misunderstanding of the evidence by the Tribunal.

23. The Tribunal expressly referred to the applicant’s concern in relation to having a child who had become a Christian and that this was one of the grounds upon which he feared harm in Afghanistan. The applicant claimed that a son told him not to get angry, but that Z (a daughter of the applicant) was ‘out’ of the family and had changed her religion and had become a Christian. There was tendered in evidence before the Tribunal in an email from the daughter, Z, to the sister to which the Tribunal referred.

24. It is apparent that the applicant’s wife and children, being the daughters who gave evidence and Z, all sought and/or obtained protection from Australia. Z was not an independent witness, notwithstanding Mr Poynder’s submission that she was estranged from the family because of her having moved out and not living with the wife and sisters. Z was nonetheless in the position where she was a child of the applicant and no doubt seeking to advance her own protection visa application and was not an independent witness at the time of sending the email.

25. The Tribunal identified concern in relation to the timing of the information provided about the conversion of Z in respect of her religion and identified the materiality and significance of that conversion in respect of the information being provided to the applicant. The timing in that regard cannot be said to be insignificant or trivial.

26. The Tribunal expressly identified and engaged with the evidence about the applicant alleging that the conversion of his daughter to Christianity would endanger him if returned to Afghanistan.  The Tribunal expressly recorded raising with the applicant why the applicant had not raised this matter with his wife and that the applicant said that he had a plan to discuss it with her and that he did not discuss it in early stages; as both were unwell and he did not want an unpleasant conversation and did not want to lose the whole family.

27. The Tribunal identified putting to the applicant that it had difficulty with the proposition that he did not discuss with the wife his claim of Z’s conversion to Christianity, taking into account that it would place him (on his claims) at harm when returned to Afghanistan and that the applicant would surely have discussed it with his wife, and referred to the applicant’s response, that he was going to tell his wife soon and that he had not had the courage to do so at an earlier stage.

28. The Tribunal also referred to the wife’s evidence in which she said that the whole family was at risk because Z had changed her religion 3 years ago, and that this brought shame on the families and relatives and was a big thing, and referred to the evidences of the wife as to how people would know, and referred to Z having put it on social media.

29. The Tribunal raised with the applicant’s wife that the applicant had told the Tribunal he was aware of Z having changed her religion, and the applicant’s wife suggested that she had never told him about that because he was sick and had a stroke and she did not want to put pressure on him.

30. The Tribunal expressly raised with the applicant’s wife that one of the sons told the applicant about Z’s conversion approximately 6 months ago, and the wife maintained that she did not know about that and responded “maybe”. 

31. The Tribunal referred to raising with the applicant’s wife the concern as to the proposition of never discussing the same with the applicant. That was a logical and rational matter for the Tribunal to raise and cannot be said to be insignificant or trivial.

32. The Tribunal also referred to the evidence given by one of the applicant’s other daughters, AA, that she knew that her sister had changed religion, and referred to AA’s evidence about having been informed of the same by an email. The Court was taken to the content of the email, which it was submitted supported the daughter being estranged and making a disclosure to her sister about the change of religion.

33. The Tribunal expressly engaged with the email and acknowledged that Z stated that she had become a Christian and indicated that she did not live with the applicant’s wife and her siblings. 

34. The Tribunal referred to having carefully considered the submissions as well as the claims advanced by the applicant, his wife and daughters on this issue. 

35. The Tribunal identified that those submissions and evidence did not resolve the Tribunal’s concerns and referred to the submission that the applicant’s wife told her children not to tell the father about Z’s conversion and why the applicant’s wife was unaware of the fact that one of the children had told him about it. The Tribunal found that if it was the case that at least one of the children had told the applicant about Z, the Tribunal found it is highly improbable that the applicant’s wife did not know about that. That was an adverse finding that was logical and rational and open to the Tribunal in respect of what was not an immaterial or trivial matter. 

36. The Tribunal then identified its prime concern that the applicant’s wife was unaware that the applicant knew about the conversion and the claims that neither of them discussed with each other and referred to their explanation that they did not want to cause each other worry.

37. The Tribunal observed that if each were concerned as to the wellbeing of the other and the other’s safety, that they would have discussed the conversion with each other. That was logical and rational reasoning supporting the Tribunal’s adverse findings. 

38. The Tribunal referred to having carefully considered the information and having expressly referred to the so-called “protective buffering” explanation advanced on behalf of the applicant and that the circumstances of the family are one which was described as being “different”.  It is apparent that the Tribunal appreciated that the applicant had been in custody when the wife and children arrived in Australia and that this would be an obvious difference from ordinary family circumstances. The Tribunal’s reasons reflect a genuine intellectual engagement with the applicant’s claims, evidence and submissions. 

39. The Tribunal referred to the evidence given by AA in relation to claiming that she had never discussed Z’s change of religion with her father because of his health issues, and referred to the evidence also of BB (another daughter of the applicant) and her explanation for not having discussed to Z’s change of religion with the applicant, and the reference to him being in poor health and that it would shock him.

40. The Tribunal referred to the s 424A letter sent to the applicant on 25 November 2019. The Tribunal found the claims made by the applicant and his wife that they did not discuss the daughter’s conversion with each other appeared to be highly improbable. That was a logical and rational finding for the Tribunal to make.

41. The Tribunal referred to the submissions advanced in response and the reference to the applicant being told of Z’s change of religion by Z’s twin brother and another son, and that neither son had told their mother about informing the applicant. The Tribunal expressly referred to the submissions advanced as to reasons why there may not be sharing of information in respect of the daughter’s change of religion.

42. The Tribunal found it highly improbable that the applicant’s wife did not know about a child informing the applicant about Z.

43. The Tribunal did not believe that the applicant’s wife would refrain from telling the applicant about his daughter’s change of religion so as to protect him.

44. The Tribunal referred to the email and found it highly improbable that the applicant would not be told about Z’s conversion until just 6 months prior to the Tribunal hearing, and took into account in that regard that the applicant applied for protection in September 2018 in circumstances where the applicant’s wife and two daughters and the applicant are claiming that daughter Z’s conversion places the applicant at risk of harm in Afghanistan.

45. The Tribunal identified and found the applicant not to be a witness of truth and found the applicant’s wife not to be a witness of truth, and also found the two daughters, AA and BB, not to be witnesses of truth so far as they purported to corroborate claims about Z’s change of religion. 

46. The Tribunal accepted part of the applicant’s evidence in relation to the events that occurred prior to his departure from Afghanistan.

47. The Tribunal took into account that the applicant never belonged to a political party in Afghanistan and accepted that he worked as a driver approximately three decades ago. 

48. The Tribunal identified that it found the evidence of the applicant and his wife about the applicant’s brothers, their circumstances and contact with them to be inconsistent. That was a logical and rational finding.

49. For the reasons already given, the Court does not accept that there is any significance in respect to the description of being inconsistent rather than being implausible. It is apparent that the evidence of the applicant as to when he last saw his brothers and the evidence of his wife concerning one brother was inconsistent and implausible. It was open to the Tribunal to make the adverse finding at para 63 of its reasons, where the Tribunal found that there is no credible evidence as to what contact the applicant and his wife have had with his brothers and their current circumstances.

50. The adverse finding in respect of the information concerning the applicant’s brothers was one that went to the applicant’s credit and was a logical and rational matter for the Tribunal to take into account. It is apparent that the Tribunal did take it into account where it refers to, ‘for the reasons given above’, in para 64 of its reasons.

51. The Tribunal disbelieved the claim that the applicant’s daughter had changed her religion; that this had been made public in any way;  that the applicant and his wife never discussed their daughter’s conversion and that the applicant and his family genuinely perceived a risk of harm to him on that ground.

52. The Tribunal identified having been provided with email from Z in which she claimed to have changed her religion, but made an adverse finding that that information did not overcome the concerns the Tribunal holds about this aspect of the applicant’s protections claims, and gave no weight to the email. That was an adverse finding that was logical and open to the Tribunal for the reasons that the Tribunal gave.

53. The Tribunal identified the applicant’s other claims and took into account country information, and found the risk of the applicant suffering serious harm from the work he undertook as a driver to be remote.

54. The Tribunal found the risk of the applicant suffering harm by reason of having being prosecuted and imprisoned, as a people smuggler, to be remote.

1. The Tribunal found the risk of the applicant suffering harm because he had been in Australia, because his wife and children live in Australia as the holders of protection visas, and because he has been convicted of smuggling Afghans to Western countries, to be remote.

2. The Tribunal made express reference to acknowledging the claim in respect of evidence given at the trial as to a change of religion but identified that the applicant was not a witness of truth,  and with respect to the claim concerning the daughter’s change of religion, the Tribunal did not believe this claim. The Tribunal expressly referred to there being no independent evidence before the Tribunal that confirmed this claim.

3. The daughter Z’s email was referred to by Mr Poynder as being “contemporaneous, corroborative evidence”. It was not independent, contemporaneous, corroborative evidence. It was an email from a person with an interest in respect of her own position in respect of protection as well as that of her father and other members of her family whether she lived with them or not.

4. The Tribunal found the risk of the applicant suffering serious harm due to his people smuggling conviction, his time in Australia, including incarceration, his family’s presence here as holders of protection visas and other related claims, to be remote.

5. The Tribunal found the applicant would not be denied health care for the essential and significant reasons of any of the grounds in section 5J(1) of the Act. 

6. The Tribunal found the risk of the applicant suffering serious harm in his village of ethnicity, harm suffered at the hands of Taliban in the past and the other grounds he raised, to be remote.

7. The Tribunal found the risk of the applicant being denied health care to be remote and found the risk of the applicant suffering serious harm to be remote. 

8. The Tribunal found that the applicant did not have a well-founded fear of persecution and that the applicant failed to meet the criteria in ss 36(2)(a) and 36(2)(aa) of the Act and affirmed the decision under review.

Before the Court

1. The grounds are in the further amended application are as follows:

   1.The second respondent (the Tribunal) made critical findings of fact that were seriously lacking in foundation, rationality, and logical coherence in a way that rendered its decision to be legally unreasonable.

   Particulars

   (aa) The Tribunal’s finding, at [63], that the evidence from the applicant and his wife about their circumstances and contact with the applicant’s brother was inconsistent and that it had “no credible evidence as to what contact the applicant and his wife have had with his brothers and their current circumstances”, was based on a misunderstanding of the evidence from the applicant’s wife, unwarranted assumptions about the manner of communication between the applicant and his wife and the reasons why they may not have discussed the issue, and a misunderstanding about the materiality of the this issue.

   (a)The Tribunal’s finding, at [58], that the applicant and his wife would have discussed the matter of their daughter’s conversion from Islam to Christianity “if they were truly concerned for each other’s well-being and genuinely feared for the applicant’s safety” was based an unwarranted assumption about how spouses would communicate in the circumstances which existed at the time of the decision of the Tribunal.

   (b) The Tribunal’s finding, at [59], that it was “highly improbable” that the applicant would not be told about his daughter’s conversion from Islam to Christianity until six months prior to the Tribunal hearing had no rational or evidentiary basis.

   2.The Tribunal, without justification, failed to give weight to evidence provided by the applicant that corroborated the account that his daughter had converted from Islam to Christianity, namely messages written by his daughter to her sister in December 2017 (Court Book at p. 224).

Ground 1

1. Mr Poynder, counsel on behalf of the applicant took the Court to documents in the wife’s application for a protection visa.  There was an exchange between Mr Poynder and the Court in which it was apparent that the Court was labouring under a misunderstanding that there was an error and misunderstanding by the Tribunal in identifying the person who the wife feared. The misunderstanding is one which the Court accepts was the Court’s misunderstanding of the reference to a brother-in-law who Mr Reilly, counsel for the first respondent, correctly pointed out during the hearing was the applicant’s brother.

2. Nonetheless, Mr Poynder maintained that the reference to the brother (singular) rather than brother (plural) was of significance. For the reasons already given, the Tribunal did not misunderstand the applicant’s claims and evidence, and the reference to the brothers (plural) is of no significance and does not give rise to any jurisdictional error or reflect any failure by the Tribunal to have a genuine and intellectual engagement with the applicant’s claims and evidence.

3. Mr Poynder also took the Court to the transcript of the hearing before the Tribunal and the evidence given, which was accurately summarised by the Tribunal in its reasons. 

4. Mr Poynder also took the Court to the material in the court book relating to the daughter Z and her estrangement from the family and advanced submissions as to why the wife would be protecting the husband from information about the daughter Z’s conversion. Those submissions were all, in substance, invitations to this Court to engage in merits review.

5. For the reasons already given, the adverse findings by the Tribunal in relation to the credibility of the applicant, his wife and daughters was open to the Tribunal for the reasons given by the Tribunal. 

6. The applicant’s contention that there was an unwarranted assumption about how a family would communicate is an invitation to engage in merits review. 

7. There was no illogicality or irrationality in taking into account and making findings referable to the probabilities found by the Tribunal in the circumstances of this case as to the information that would have been shared between the applicant and the wife, and the rejection of the evidence of the applicant, the wife and daughters in relation to Z’s conversion to Christianity. The adverse findings were not based on trivial or immaterial matters and were open for the reasons given by the Tribunal.

8. Further, to the extent that the applicant advances in relation to ground 1, an alleged error in respect of the Tribunal’s reasoning in para 63 concerning the contact with the brother of the applicant, for the reasons already given, that was a logical, rational and relevant matter for the Tribunal to take into account, both in relation to the credit of the applicant and his wife, and it is apparent that the Tribunal did so.

9. The finding in relation to ‘highly improbable’ was open to the Tribunal and was not one in respect of which it could be said no reasonable decision maker could so find.

10. The Tribunal’s adverse findings in respect of the applicant’s claims concerning the daughter’s conversion to Christianity cannot be said to lack evident and intelligible justification. That intelligible and evident justification is the reasoning of the Tribunal that has been summarised above. 

11. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, this again is, in substance, nothing more than an invitation to engage in merits review.

2. It is apparent that the Tribunal had a real and meaningful engagement with the email of Z and the evidence concerning the claims that the daughter Z had converted to Christianity. The Tribunal made adverse credibility findings in respect of the applicant, the wife, and the two daughters in that regard.

3. As referred to above, the email of Z was not independent evidence. The email of Z was evidence from a daughter of the applicant who, whether or not estranged, obviously had her own protection visa claims which is apparent from the reference in the Tribunal’s reasons to the daughter and wife as having obtained protection visas. The contemporaneous nature of the email was something that the Tribunal also clearly took into account in its identification of the email in its reasons.

4. It was open to the Tribunal, in circumstances where it made adverse credibility findings, to place no weight on the email. That is not an adverse decision to which it could be said no reasonable decision maker could so find.

5. The Tribunal’s adverse finding in rejecting any weight on the email cannot be said to lack an evident and intelligible justification. That evident and intelligible justification is the rejection of the credit of the applicant, his wife and the two daughters that gave evidence. 

6. No jurisdictional error is made out a ground 2.

7. As the further amended application fails to make out any jurisdictional error, the further amended application is dismissed.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 2 September 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 17 September 2020