ABC18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 435
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ABC18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 435
File number: MLG 21 of 2018 Judgment of: JUDGE CHAMPION Date of judgment: 29 May 2023 Catchwords: MIGRATION LAW – Application for a protection visa – Judicial review application of a decision of the Administrative Appeals Tribunal – Tribunal gave proper, genuine and realistic consideration to the issue of how the Applicant’s written claim was prepared – Illogical, irrational or unreasonable reasoning – Applicant’s credibility – Inconsistencies between the Applicant’s claims written claims made on application and oral claims before the Tribunal – Application dismissed Legislation: Migration Act 1958 s. 98 Cases cited: AYY17 v. Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503
BZD17 v. Minister for Immigration and Border Protection [2018] FCAFC 94
Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 26
Minister for Immigration and Border Protection v. Stretton [2016] FCAFC 11; (2016) 237 FCR 1
Re Minister for Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1
Viane v. Minister for Immigration and Border Protection (2018) 162 ALD 13, [24] [2018] FCAFC 116
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of last submissions: 26 April 2023 Date of hearing: 26 April 2023 Place: Melbourne Counsel for the Applicant: Mr Fairfield Solicitor for the Applicant: Hall & Wilcox Counsel for the Respondents: Ms McInnes Solicitor for the Respondents: Clayton Utz ORDERS
MLG 21 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ABC18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE CHAMPION
DATE OF ORDER:
29 MAY 2023
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to Minister for Immigration, Citizenship and Multicultural Affairs.
2.The application is dismissed.
3.The applicant to pay the first respondent’s costs in a sum to be fixed, if not agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CHAMPION:
INTRODUCTION
The applicant (Applicant) seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 30 November 2017 (Decision). The Tribunal affirmed a decision of the delegate of the Minister (Delegate) not to grant the applicant a Protection (Subclass 866) Visa. The Applicant is a citizen of Malaysia and is curently 38 years old: (CB12).In the Tribunal he claimed that in Malaysia he had delivered drugs for a friend and been paid for that work. He claimed that the Royal Malaysian Police (RMP) had now detained his friend. The Applicant’s fear was that this friend may have divulged his name to the RMP and, as a result, the RMP would detain him if he returned to Malaysia.
BACKGROUND
On 2 September 2013, the Applicant arrived in Australia on a tourist visa, which expired 3 months later: (CB71). The Applicant remained in Australia after the expiry of his tourist visa.
On 18 May 2016, the Applicant applied for the Visa: (CB 1-40).
On 5 September 2016, the Delegate refused to grant the Visa to the Applicant: (CB 71-81).
On 1 October 2016, the Applicant applied to the Tribunal to review the Delegate’s decision: (CB 82-83).
On 30 November 2017, the Tribunal affirmed the Delegate’s decision: (CB 162-168).
THE APPLICANT’S CLAIMS
The Applicant’s statement to the Delegate
A two-page statement of the Applicant unsigned but appearing over his name accompanied his Visa application (CB36–7).The content of the Applicant’s written statement was important because the Applicant subsequently said to the Tribunal that matters set out in that written statement were “not correct … not true”: (T17: L3). In the Tribunal, he also said of matters set out in that statement: “those claims are wrong.” (T19:L31).The Applicant’s written statement included the following (CB 36):
I arrived in Australia on the tourist visa but couldn’t go back as my family was assaulted by the money debtors and they pledged to kill me too if I go back to my home country.
My parents are not strong enough financially or physically to shield me from threats and dangers.
As to that written statement, the Applicant said to the Tribunal (by way of explanation that the claims were wrong) that “a person had helped … with the application”: (T17:L24-5). The Applicant told the Tribunal: “I really didn’t know what was written in the form because he did it without me and so I didn’t realise that was what he had written down” (T20:L2-4).
The Delegate’s Decision
In reliance on the Applicant’s written statement (CB36-7), the Delegate identified that the Applicant’s claim was that he said that had a well-founded fear of persecution because he was at risk in relation to illegal money lending or loansharking: (CB 74, [20]).
The Delegate’s decision included the following (CB79-80) :
Analysis
21. The country information set out above shows that the Malaysian authorities are reasonably effective in combating illegal money lending. While there is some corruption within the system, there is nothing before me to indicate that the State would be unable or unwilling to protect the applicant in his particular circumstances.
22.I note that the applicant has outlined his situation in minimal detail and with no supporting evidence to corroborate his claims, such as a copy of a police report lodged by himself or his parents. Due to the very limited information provided by the applicant, I am not satisfied that he has established their case.
23. I also note that the applicant arrived in Australia in September 2013. I consider it reasonable to expect that someone with a genuine fear of persecution would seek to engage Australia’s protection obligations as soon as possible; however, the applicant remained in Australia unlawfully for almost 3 years before seeking protection. There is nothing before me to indicate that the applicant was prevented from seeking protection soon after his arrival in Australia or in the period immediately after his visa expired. I consider that such a lengthy delay tends to weigh strongly against the depth of his stated fear of being persecuted in his home country.
24. Without further context, I find on the information before me that the applicant would receive effective protection from the RMP in Malaysia against any threats he faces from illegal money lenders.
25. While I accept the applicant may not have absolute protection in Malaysia, country information indicates that the Malaysian authorities are able to provide an adequate level of protection from the criminal behaviour of loan sharks as feared by the applicant.
26.I am satisfied the Malaysian authorities take reasonable measures to protect the lives and safety of their citizens by maintaining a reasonably effective and impartial police and judicial system, and investigating and penalising corrupt officials. I am satisfied that if the applicants were removed from Australia to Malaysia he could reasonably expect to obtain protection from the Malaysian authorities such that there would not be a real risk of significant harm.
[…]
Findings
29. I am satisfied that there are effective protection measures available to the applicant in the receiving country and that the applicant does not have a well-founded fear of persecution. Therefore, the applicant is not a refugee as defined in section 5H of the Act and the criterion in paragraph 36(2)(a) of the Act is not satisfied for this reason.
30. I am not satisfied that [the applicant] s a refugee as defined by subsection 5H(1) of the Act. Therefore, I am also not satisfied they are a person in respect of whom Australia has protection obligations as outlined in paragraph 36(2)(a) of the Act.
The Delegate refused to grant the Visa.
The Tribunal Hearing Transcript
In its decision, the Tribunal distinguished between the “applicant’s written claims”: the Applicant’s claims set out in the statement that preceded the Delegate’s decision (CB36-7), and the “applicant’s oral claims”: the Applicant’s claims made for the first time before the Tribunal (CB165, [25]). The significant difference between the Applicant’s written claims in his initial Visa application and his oral claims before the Tribunal raised a real issue as to the Applicant’s credibility.
As to this shift in claims, I note the following from the Tribunal transcript (which was in evidence before the Court as Exhibit A1):
·the Applicant said: “I told my friend my story and I got him to help fill the form because I do not understand English” (T10:L22-3);
·the Applicant said he paid his friend (T10:L5);
·the Applicant agreed that he had signed the Visa application (T10:L32);
·the Applicant said a friend had completed the application and: “he did not read it out to me, all he said was “I’ve done it”, that was all”: (T10:L35);
·the Applicant told the Tribunal that the friend was back in Malaysia (T11:L12); and
·the Applicant told the Tribunal his parents had died five years ago (T11:L22).
The Applicant’s “oral claims” were inconsistent with the applicant’s “written claims” made in the initial visa application. In his “oral claims”, the Applicant said that he was in business with a man whom the RMP had detained in Malaysia: (T15:L10-1). The “business” was that the applicant said he delivered drugs for money: (T16:L1-3). He had not been caught or charged with any offence: (T16:L7-11). He said:
[…] what I fear is that this friend of mine, who has been detained, might tell the police about me. That is why I am asking for protection in Australia (T16:L15-7).
The Tribunal asked questions of the Applicant about the difference between what he had written in his visa application and his oral statements to the Tribunal. In particular, the Tribunal questioned the Applicant about the fact that in the written application it had been set out that the Applicant’s family had been assaulted by money debtors and those money debtors had pledged to kill him if he went back to his home country. Before the Tribunal, in contrast to the facts set out in that written statement, the Applicant said that his fear was that the RMP might detain him if he returned to Malaysia because his friend had revealed his name to the RMP.
There was this exchange between the Tribunal and the Applicant (T16:L35-T17:L38):
MEMBER: […] I couldn’t go back as my family was assaulted by money debtors and they pledged to kill me too if I go back to my home country”
Applicant: That is not correct. That is not true.
MEMBER: Let me continue[…] ‘My parents are not strong enough financially or physically to shield me from threats and dangers’ […] That’s the claim in your application
Applicant: What you described is different from the claims that I presented to you today.
MEMBER: That’s why I asked the question.
Applicant: My real true story is this one. So, I don’t understand what the person I asked to help would put in that. In cases where one is unable to repay a loan shark, they would then go after one parents and kill the dad.
[…]
MEMBER: So, you say that the claim is wrong, and the only claim you have is in relation to the fact that you fear[…] Because you were dealing drugs in Malaysia that you fear the police will pick you up if you go back.
Applicant: Yes, because my name is also on the list, along with my friend who has been detained, so I am not confident that I will be safe. In fact, I’m sure that I will be detained.
MEMBER: What list is that?
Applicant: When … after my friend was arrested by the police for selling drugs, he also gave them my name.
MEMBER: Right
Applicant:He was afraid, so he revealed everything.
At (T19:L25- 37), there was the following exchange:
MEMBER… See, the problem is that you have signed an application with one claim that you now abandon or appear to abandon and now have another claim. That’s fine, the only problem with that is that it may be the reason why the fact that you have changed your story completely, from an official point of view, would be a basis upon which I simply don’t believe you and make an adverse finding against you.
ApplicantI understood but I am telling the truth. Those claims are wrong.
MEMBERI am more inclined to deal with the, with the drugs claim, I’ll put it that way. The police issue on its merit than making the, accept what you say, effectively about the application. The original application being wrong and deal with the claim in relation to the police on its merit. I assume when you came today, that was the case that you were prepared to present.
TRIBUNAL DECISION
The Written Claims
The Tribunal summarised the Applicant’s written protection claims in his Visa application (which preceded the Delegate’s decision) to be that he faced risk of harm from loan sharks if he returned to Malaysia: (CB164, [12]).
The Tribunal held as follows (CB165, [20]-[23]):
20. At the hearing, the applicant referred to and expressly rejected the written claims in his protection visa application.
21. His evidence was that he had paid a friend to complete the application form on his behalf. However, he said that despite having explained to his friend the true reason for him wanting a protection visa, his friend had not completed the protection visa application form in accordance with his instructions. Although he admits that he did sign the form, his evidence was that at the time it was filed with the department, he did not read the document nor did he have it explained to him.
22. As a result he said that the claims in the application form were not correct and that he did not hold any genuine personal fear of persecution and that there was no real risk of him being significantly harmed by loan sharks in the event he return to Malaysia as detailed in his written claim.
23.The Tribunal accepts the oral evidence of the applicant that his written claim were incorrect and finds that he was not in any fear of harm in respect of the applicants’ written claim. As a result the Tribunal finds that there is no a real chance of persecution or any real risk of significant harm to the applicant, now or into the reasonably foreseeable future, by reason of the applicant's written claim.
The Oral Claims
The Tribunal then summarised the Applicant’s protection claims that the Applicant had raised orally for the first time at the Tribunal hearing: the “oral claims”. The Applicant’s oral claims were that he was a person of interest to the RMP because of his involvement in drug delivery: (CB165 [26]–[29]). In particular, the Applicant said that the RMP had detained a friend for whom he had delivered drugs and that he feared that his friend had informed the RMP of his name. He therefore feared that the RMP would detain him should he return to Malaysia: (CB165, [28]).
The Tribunal’s assessment of the Applicant’s claims
The Tribunal dealt with the Applicant’s credibility in the following part of its reasons: (CB 166–7, [32]–[35], [37]–[40]). At [37] the Tribunal held as follows:
The Tribunal is aware that vulnerable asylum seekers will have difficulties in providing documents or expressing their fears. However, in this case the Tribunal has concerns about the veracity of the applicant's evidence. The applicant’s delay in making his application for a protection visa, the inconsistency in the applicant's evidence between his written claim and oral claim and the general lack of detail together with the absence of any supporting documentation to corroborate his claims means that the Tribunal does not accept the applicants claim as creditable or plausible.
[Emphasis added]
The Tribunal set out four reasons for not accepting the Applicant’s claims to be “creditable or plausible” (CB167, [37]):
(1)the Applicant’s delay in making his application for a protection visa;
(2)inconsistency between the written claims and the oral claims;
(3)a general lack of detail in the Applicant’s evidence; and
(4)the absence of any supporting documentation to corroborate his claim.
First, as to delay, the Applicant had been in Australia for approximately two and a half years before he made his Protection Visa application.
Second, as to inconsistencies between the written claims and the oral claims, the Tribunal referred to the fact that “the applicant's oral evidence that his parents had passed away is contrary to his personal details as revealed in his written claim.” (CB167, [38]). In his written claim, the Applicant had written that money debtors had threatened his family, a claim of threats to his parents made little sense if his parents had passed away (CB36–7).
“In addition” (CB167, [39]), as to inconsistencies between the written claims and the oral claims, the Tribunal referred to an omission between the written claims and the oral claims. The written claims did not have any reference to the Applicant’s fears about the RMP having detained his friend. The Tribunal noted that according to the Applicant’s evidence to the Tribunal, the Applicant knew that the RMP had detained his friend around the time he lodged his protection visa application (his written claims) which claims had been made on 18 May 2016, some 18 months before the Tribunal hearing. As a result, “it is reasonable to expect that any fears the applicant has concerning his friend, gang members or being detained by the RMP would have been included in his application at that time”: (CB 167, [39]).
Third, as to a general lack of detail in the Applicant’s evidence, the Tribunal noted that the Applicant was not able to inform the Tribunal as to the status of his friend’s case and, in particular, whether there had been a trial or if his friend had been convicted of any offence. The Applicant could not say specifically if he was a person of interest to the RMP.
Fourth, as to the absence of supporting documentation, the Applicant was not able to provide any documentary evidence to support his claim that his friend had been detained, charged or convicted.
The Tribunal concluded that the Applicant’s evidence was “vague, inconsistent and lacking in any detail”: (CB167, [40]). Based on an adverse assessment of the Applicant’s credibility, the Tribunal did not accept that the Applicant was involved in the business of delivering drugs for a gang and did not accept that the Applicant’s friend was detained by police or charged with any offence: (CB 167 [40] – [41]). The Tribunal concluded that the Applicant was not owed protection based on his oral claims: (CB167-8 [41]–[43]).
The Tribunal affirmed the Delegate’s decision.
JUDICIAL REVIEW APPLICATION
Ground 1: Did the Tribunal make a jurisdictional error by not giving proper, genuine and realistic consideration to how his written application had been completed and what he had told his fried about his story?
Ground 1 is best set out in full and is as follows:
The Tribunal’s decision was unreasonable or otherwise discloses jurisdictional error because it did not give proper, genuine and realistic consideration to significant evidence which bore on the credibility of the Applicant.
Particulars
(a)The Tribunal stated that it had concerns about the Applicant’s credibility and did not accept the Applicant’s claims as credible.
(b) The Tribunal found:
(i)That there was an inconsistency between the Applicant’s ‘written claim’ and his oral claim.
(ii)That it was reasonable to expect that any fears the Applicant had concerning his friend, gang members or being detained by the Royal Malaysian Police ‘would have been included in his application at that time.’
(iii)That a visa applicant’s claims ‘may change over time’ but ‘the basic circumstances relating to the applicant’s background and personal circumstances in the absence of a plausible explanation, remain consistent. The Applicant’s oral evidence that his parents passed away is ‘contrary to his personal details as revealed in his written claim.’ Accordingly, the tribunal did not accept that the Applicant’s parents had passed away and that he had no contact with his brother and sister.
(c)The Applicant gave evidence about how the visa application came to be made. The Tribunal recited that the Applicant claimed:
(i)That the claims were incorrect.
(ii)That he had paid a friend to complete the application form on his behalf.
(iii)That he had explained to his friend the true reason for wanting a protection visa.
(iv)That although he signed the application form he did not read it or have it explained to him.
(d)In oral evidence to the Tribunal the Applicant, who does not read or write in English, gave a fuller explanation via an interpreter. He said that he paid a friend, [name omitted], and told him ‘my story’. He said this friend had returned to Malaysia.
(e)Because of the Tribunal’s reasoning at sub-paragraph (b) above, the Applicant’s evidence as to how the application had been made and what he had told his friend was objectively critical to the Tribunal’s assessment of the Applicant’s credibility. The Tribunal did not consider and made no findings in respect of that evidence.
(f)The Tribunal thereby failed to give proper, genuine and realistic consideration to the material before it concerning the Applicant’s credibility.
The Applicant’s submissions as to Ground 1
The Applicant’s submissions as to Ground 1 [AS12 and AS 14] were as follows:
12.While the Tribunal accepted the Applicant’s oral evidence that the written claims were incorrect, it made no findings in respect of the Applicant’s oral evidence as to how his application had been completed and what he had told his friend about ‘his story.’
[…]
14. The Applicant’s evidence as to how his application had been completed and what he had told his friend was therefore, objectively, critical evidence which bore directly upon the credibility of the Applicant. Absent findings about that evidence, it was not open to the Tribunal:
(a) to rely upon the accepted inconsistency between the written claims and the oral claims at the hearing; and
(b) to adversely rely upon a failure to refer to ‘any fears the Applicant had concerning his friend, gang members or being detained by the RMP’ in his application form’; and
(c) to proceed on the basis that the information in the written claims about the Applicant’s family was as communicated by the Applicant to his friend.
Legal Principles
A “failure to respond to a substantial, clearly articulated argument relying upon established facts” may amount to a denial of procedural fairness or “failure to conduct the review required by the Act”: Viane v Minister for Immigration and Border Protection (2018) 162 ALD 13; [2018] FCAFC 116, [24]–[25] (Rangiah J). The Tribunal’s duty to consider claims and issues arising from the material before it also extends to claims, which clearly emerge from the materials: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at [18]. The Tribunal’s duty to give “proper, genuine and realistic consideration” applies both to claims made by clearly articulated arguments and issues which clearly emerge from the materials.
The Applicant’s clearly articulated claim was that he had a fear that the RMP would detain him should he be returned to Malaysia. The Applicant expressly said that he did not persist in any claim that he had a relevant fear because of loan sharks in Malaysia. In that sense, the Tribunal could quickly discharge any obligation to give the loan sharks claim proper genuine and realistic consideration (as it did) by recording the fact that the Applicant no longer pressed that claim. It was not an argument that the Applicant advanced (or a matter which clearly emerged from the materials) as to why he was entitled to a protection visa.
In my view, the preferable analysis at the level of judicial review of this issue following the shift between the Applicant’s written claims attached to his Visa application (loan sharks) and his oral claims (feared detention by the RMP) was as an issue that went to the applicant’s credit. Adverse credibility findings are not immune from judicial review: BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94, [32]. Provided that the Tribunal dealt with the credit issue in a way which was not irrational, illogical or unreasonable (an issue perhaps more directly raised by Ground 2) the Tribunal did not fall into jurisdictional error. In that sense, in my view, the Applicant’s claims about how his written Visa application had been completed was not a “claim” to which the Tribunal had to give proper, genuine and realistic consideration.
The Tribunal had an obligation to consider material relevant to its factual findings. The relevant legal principle is as set out in Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 26, per Katzmann, Banks-Smith and Rofe JJ at [69]-[70]:
Of course, ignoring material relevant only to fact-finding does not of itself give rise to jurisdictional error: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [97]. As we have already observed, it was not necessary for the Tribunal to refer to every piece of evidence. Moreover, there is a distinction between a failure by the Tribunal to advert to evidence which, if accepted, might have caused it to come to a different finding of fact and a failure by the Tribunal to address a contention which, if accepted, might establish the elements of a statutory claim: WAEE at [44]-[46].
In determining whether it is a jurisdictional error to fail to consider certain evidence, “the fundamental question must be the importance of the [evidence] to the exercise of the Tribunal’s function and thus the seriousness of any error”: SZRKT at [111] (Robertson J), endorsed by the Full Court in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [70] (Kenny, Griffiths and Mortimer JJ). Moreover, “it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error”: SZRTK at [111].
The Tribunal gave the necessary consideration to the Applicant’s oral evidence about how his written application had been completed. The Tribunal did not overlook the evidence and engaged with that issue. The Tribunal’s reasons must be read as a whole. The Tribunal accurately recounted (CB 165 [21]–[22]) the Applicant’s evidence to the Tribunal as to how his written application was prepared. The Tribunal recognised that there were inconsistencies between the written claims and the oral claims. It attributed a significance to those inconsistencies because it relied on them as one of four stated reasons that it found the Applicant’s claims were not creditable or plausible. The Tribunal’s reasons disclose that it had an active intellectual engagement with the issue of how the Applicant came to prepare his written claims. The Tribunal was not required to frame its reasons on the basis that it dealt with that issue as a threshold or preliminary matter before it proceeded to deal with other issues. Rather, it was entitled (as it did) to consider the applicant’s narrative about how a friend had completed the written claims without reference to him (and got it wrong) as one part of a broader factual matrix as to the Applicant’s claims. It was sufficient for the Tribunal to consider the issue (by way of proper, genuine and realistic consideration or a consideration of relevant material) to set out that one of four reasons (CB167, [37]) it did not accept that the Applicant’s claims were credible was the fact of inconsistencies between the written claims and the oral claims. The Tribunal had an “active intellectual engagement” with the issue (which I take to be relevantly synonymous with giving an issue proper, genuine and realistic consideration).
In engaging with the issue, the Tribunal referred to two inconsistencies between the written claims and the oral claims: first, an inconsistency as to whether his parents were threatened or had died; second, the fact that the written claims were entirely silent about the RMP having detained the Applicant’s friend, despite the Applicant knowing that fact when he submitted his written claims. The credit significance of the Applicant’s inconsistent or shifting claims was a matter on which reasonable minds may differ and therefore a matter for the Tribunal. The significance of inconsistencies was within the Tribunal’s “area of decisional freedom” (Minister for Immigration and Border Protection v. Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [92] (Wigney J)). It was open to the Tribunal not to accept the Applicant’s evidence as to why his claims had shifted and to rely upon inconsistencies between the written claims and the oral claims as matters which weighed against the Applicant’s credibility. The Tribunal did not have to do any more. In that sense, McHugh J’s observations in Re Minister for Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1 at [67] apply:
The Tribunal must give reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reasons for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal's view that it was inherently unlikely that the events had occurred as alleged.
The First Respondent accepted that the Tribunal had not made any explicit finding as to what the Applicant had told his friend about his story for the purpose of the written claims set out in support of his initial application (CB36–7). In my view, the reasons disclose that the Tribunal did not accept the Applicant’s evidence as to how his written statement was prepared and it did not accept that the Applicant bore no responsibility for the content of the written claims. I repeat that I express that view because the Tribunal took inconsistencies between the written claims and the oral claims into account in its overall assessment that the Applicant’s claims were not creditable or plausible: (CB167, [37]).
The reasons disclose that the Tribunal had an active intellectual engagement with the Applicant’s contention that he had no real knowledge of the contents of the written statement. The Tribunal did not accept the applicant’s contention. The Tribunal’s general statement at [37] that it “has concerns about the veracity of the Applicant’s evidence” included within its wide ambit a concern about the Applicant’s evidence regarding how his application to the Delegate had been prepared.
To the extent that Ground 1 also relies on unreasonableness, I also reject it. It was reasonable for the Tribunal to weigh in its consideration of the Applicant’s credibility the inconsistencies between the Applicant’s written claims and his oral claims. Ground 1 has not been made out.
Section 98
For completeness, because the parties addressed the matter in some detail, I note that s. 98 of the Migration Act 1958 (Cth) provides:
98 Completion of visa application
A non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
In my view, s. 98 did not relieve the Tribunal from a further obligation to assess the Applicant’s credibility based on all the evidence, including by considering any explanation the Applicant offered as to the how it was that that his written claims had been prepared and why those claims differed from his oral claims. The Tribunal met that obligation.
Ground 2: was the Tribunal’s reasoning illogical, irrational or unreasonable because the Tribunal implicitly accepted the Applicant’s evidence that the applicant’s friend had completed the written statement and the applicant had no knowledge of its content?
Ground 2 is as follows:
2.Alternatively to Ground One the Tribunal’s reasoning with respect to the Applicant’s credibility was illogical, irrational and unreasonable because:
(a)At [20] to [23] of the Tribunal’s reasons for decision, it implicitly accepted the Applicant’s evidence as to how the visa application had been prepared and what the Applicant had said to his friend; or because,
(b)At [20] to [23] of the Tribunal’s reasons for decision, it implicitly accepted the Applicant’s evidence as to how the application was made but did not make a finding as to what the Applicant had told his friend.
(c)By reason of the implicit findings at (a) or (b), it was not open to the Tribunal to rely upon the reasoning set out at subparagraph 1 (b) above.
The applicant’s submissions were as follows [AS17]:
If the Applicant is wrong as to the above construction of the Tribunal’s reasons, which is denied, then it is submitted in the alternative that at [20] to [23] of the reasons, the Tribunal implicitly accepted the Applicant’s evidence as to what the Applicant had told his friend and how the application had been completed. It expressly accepted the Applicant’s evidence that the written claims were incorrect. Moreover, at the hearing, the Tribunal said:
‘I am more inclined to deal with the, with the drugs claim, I’ll put it that way. The police issue on its merit than making the, accept what you say, effectively about the application. The original application being wrong and deal with the claim in relation to the police on its merit. I assume when you came today, that was the case that you were prepared to present.’
Ground 2 proceeds from a premise that the Tribunal implicitly accepted the Applicant’s evidence as to how the written Visa application had been prepared. I do not accept that premise. The opposite premise applies: namely, the Tribunal did not accept the Applicant’s evidence as to how the written Visa application had been prepared because it expressly reasoned that inconsistencies between the written claims (as to the death of his parents and the omission of any reference to his friend having been detained by the RMP) and the oral claims were matters which weighed against the Applicant’s overall credibility.
In my view, the finding at paragraph [23] of the Tribunal’s reasons is not a finding that the Tribunal “implicitly accepted the applicant’s evidence as to how the Visa application had been prepared and what the applicant had said to his friend” (Applicant’s Submissions, [17]). It is a much more limited finding that the Tribunal accepted that the Applicant’s written claim was “incorrect” because he did not (in fact) claim that there was a real risk to the Applicant if he returned to Malaysia because of harm from loan sharks. The Applicant did not persist in that claim. Because the Applicant did not press the claim, the Tribunal did not need to consider further whether he was a person owed protection because he was at risk from loan sharks in Malaysia. It was not part of the finding at [23] (nor did it inhere in that finding) that the Tribunal also accepted the Applicant’s account of how his written claims came to be prepared and that he had no knowledge of the content of what had been set out in his written claims.
If the premise to Ground 2 is not made out, there was nothing illogical, irrational or unreasonable in the Tribunal having regard to the inconsistencies between the Applicant’s written claim and his oral claims as reasons (among others) for an overall finding that the Applicant’s claims were not creditable or plausible. To the contrary, those inconsistencies between the written claims and the oral claims were matters that the Tribunal was reasonably entitled to take into account in assessing the Applicant’s credit. The level of significance to be attributed to those inconsistencies was a matter for the Tribunal.
Insofar as the Applicant submits that the transcript excerpt set out in the Applicant’s submissions above supports an argument that the Tribunal implicitly accepted what the Applicant said about his story and his friend having prepared his application, I reject the submission that the transcript excerpt should be read in that way. Reading that transcript passage in its fuller context (T19, L25-37, which are set out above) discloses that the Tribunal in fact was placing the Applicant on notice that his shifting claims may be a reason that he was not believed. Nonetheless, so as to advance the hearing, the Tribunal wished to move ahead with the Applicant’s oral claims (as he put them) about the risk of being detained by the RMP.
Ground 3: was the Tribunal’s reasoning with respect to the Applicant’s credibility otherwise illogical, irrational or unreasonable
Ground 3 was:
Further, the tribunal’s reasoning with respect to the applicant’s credibility was otherwise illogical, irrational and unreasonable
Particulars
Having accepted at [23] the Applicant’s evidence that the written claims were incorrect, it was not open to the Tribunal to rely upon inconsistencies between the contents of the written claims and the Applicant’s oral evidence to reject the Applicant’s oral evidence nor was it open to the Tribunal to rely upon the perceived omissions in the written claims identified at sub-paragraph 1(b)(ii) above.
Grounds 2 and 3 substantially overlap. Ground 3 proceeds from the same erroneous premise as Ground 2: namely, that the Tribunal’s finding that the Applicant’s written claims were incorrect extended to, or included in its ambit, a further finding that the Tribunal accepted the Applicant’s evidence that his friend had prepared the “wrong” written claim without his knowledge. As a result, so the Applicant submitted, any inconsistencies between the written claims and the oral claims were not relevant to the Applicant’s credit.
As a matter of logic, if the Tribunal accepted that the Applicant had no knowledge of the content of the written claims, any inconsistencies between the written claims and the oral claims could not count against his credit. The Tribunal plainly assessed the difference between the written claims and the oral claims as adversely affecting the Applicant’s credit. If the premise did not apply, the Tribunal was entitled to reason in that way and it was not illogical, irrational or unreasonable for it to do so.
The characterisation of the Tribunal’s finding at [23] that it accepted the Applicant’s evidence that he did not know about the contents of his written claims overstates the ambit of the Tribunal’s finding. The Tribunal’s statement at [23] was confined to finding that the Applicant’s written claims were “incorrect” (CB165, [23]) only in the sense that the Applicant no longer pressed a claim that there was a real risk of significant harm should he be returned to Malaysia because of loan sharks. Instead, the Applicant wished to press a different claim for protection that he was at risk because a friend for whom he had delivered drugs may give his name to the RMP. No finding the Tribunal made at (CB 165, [23]) set up a logical impediment to the Tribunal considering inconsistencies between the Applicant’s written claims and his oral claims as relevant to an overall assessment of the Applicant’s credibility.
CONCLUSION
The application is dismissed. I also make an order that the Applicant should pay costs in accordance with the scale in Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 if not agreed.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 29 May 2023
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