AFZ15 v Minister for Immigration
[2017] FCCA 2864
•23 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AFZ15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2864 |
| Catchwords: MIGRATION – Protection visa – alleged legal unreasonableness – none demonstrated – credibility findings made by Tribunal – those credibility findings being based on evaluative weight – other credibility findings being based on veracity, especially demeanour. |
| Legislation: Migration Act 1958 (Cth), ss.5(1), 91R |
| Cases cited: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 |
| Applicant: | AFZ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 567 of 2015 |
| Judgment of: | Judge Wilson |
| Hearing date: | 4 May 2017 |
| Date of Last Submission: | 6 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 23 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Krohn |
| Solicitors for the Applicant: | Ambi Associates |
| Counsel for the First Respondent: | Mr T. Smyth |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The amended application filed on 31 March 2017 is dismissed.
The applicant pay the costs of the first respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 567 of 2015
| AFZ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In May 2017 I heard the application for judicial review in this case.
One of the matters raised related to the decision of the High Court of Australia then pending in SZTAL v Minister for Immigration and Border Protection[1] (“SZTAL”), judgment in which was handed down on 6 September 2017. After inviting the parties to make such submissions as they chose arising from that decision, on
6 October 2017 the legal representatives for the Minister filed submissions to the effect that nothing in the High Court decision overturned or was in conflict with the decision of the Full Court of the Federal Court of Australia in SZTAL v Minister for Immigration and Border Protection[2] and, as the Minister had already addressed on the effect of the Full Court’s decision, the Minister had nothing to add.
[1] [2017] HCA 34.
[2] [2016] FCAFC 69.
The applicant applied for judicial review of a decision made by the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”) on 27 February 2015.[3] The Tribunal affirmed a decision of the Minister’s delegate not to grant the applicant a protection (class XA) visa.[4]
[3] Court book filed 4 August 2015 at pp.208-229.
[4] Court book filed 4 August 2015 at pp.108-128.
In his amended application filed on 31 March 2017 the applicant advanced two main contentions. First, he said the Tribunal acted legally unreasonably in a variety of ways he recorded. Second, he said the Tribunal applied the wrong legal test in relation to the criteria for complementary protection. The applicant said the Tribunal fell into jurisdictional error.
Synopsis
For the reasons that follow, in my judgment the Tribunal did not fall into jurisdictional error on either ground. This application for judicial review failed.
Short factual recital
At all relevant times the applicant was a Sri Lankan national of
Tamil ethnicity who entered Australia on 29 June 2012 as an unlawful maritime arrival. On 10 December 2012 the applicant applied for a protection (class XA) visa. The Minister’s delegate refused the applicant’s visa application on 5 March 2014. The applicant filed an application for review before the Tribunal. He was invited to attend a hearing which he attended on 25 February 2015 after being granted an adjournment. At the hearing his representative provided detailed submissions. The Tribunal gave its decision on 27 February 2015.
So far as is relevant, the matters set out below represented an encapsulation of the more important findings by the Tribunal –
a)
it rejected as implausible, incredible or inconsistent with earlier statements the applicant’s description of members of the
Sri Lankan Army’s victimisation of him, including by harassing him, detaining him, requiring him to report to a base and searching his home;
b)after examining of his claims, the Tribunal considered that the applicant had not been truthful and that his claims to protection were fabricated;
c)on the basis of the applicant’s evidence and submissions, balanced with objective country information, the Tribunal rejected his claim that he was at risk of serious harm because of his Tamil race;
d)
it accepted that on his return to Sri Lanka the applicant might be subject to screening, possibly including a period of detention as an unlawful departee but found the applicable domestic laws of Sri Lanka to be of general application and in any case that his likely treatment pursuant to those laws did not rise to the level of seriousness then contemplated by s.91R of the
Migration Act 1958(Cth) (“the Act”) and in any event, the Tribunal expressed itself not to be satisfied that the applicant would be subject on return to a real chance of serious harm because of his unlawful departure;
e)the Tribunal found that none of the applicant’s Convention-based claims were made out; and
f)in relation to his complementary protection claims, the Tribunal referred to the applicant’s submission that the remand/prison conditions to which it accepted he might be exposed on return did not meet international standards as a result of which the applicant was at real risk of degrading treatment or punishment in interrogation or detention. The Tribunal accepted the possibility that the applicant might on return be remanded in conditions which were cramped, uncomfortable and unsanitary. However, it reasoned that such pain and suffering as the applicant might suffer as a result was not intentionally inflicted and was therefore not within the cruel or inhuman treatment or punishment or the degrading treatment or punishment limbs of the complementary protection regime.[5]
[5] Written submissions of the first respondent filed 20 April 2017 at pp.3-4.
Review in this court
On 20 March 2015 the applicant sought judicial review of the decision of the Tribunal. He relied on two grounds. The first was broken into six subsets. The second relied on the decision of the High Court of Australia in SZTAL.
Under the first ground, Mr Krohn of counsel who appeared for the applicant contended that each of the separately particularised subsets of ground 1 represented findings without probative evidence and so,
he argued, the Tribunal acted in a legally unreasonable manner in reaching those findings. By and large, each of the subparagraphs of the particulars subjoined to ground 1 was a finding that the applicant said the Tribunal should not have made having regard to there being contrary evidence that the Tribunal should have accepted. Alternatively, the applicant said the Tribunal acted unreasonably in making findings in certain terms, given the existence of other evidence.
Before descending into each subparagraph of the particulars subjoined to ground 1, it is necessary to say a little about an issue that took the Tribunal’s attention – credibility. In many places throughout its reasons, the Tribunal stated that it did not accept the applicant’s version of events on a particular issue. Alternatively, the Tribunal stated that it flatly rejected what the applicant said. On behalf the Minister,
Mr Smyth of counsel submitted that a proper understanding of the Tribunal’s analysis of this case required its credibility findings to be deconstructed. He said the Tribunal’s credibility findings fell into one of two categories, namely –
a)findings that the Tribunal did not accept the version of events as given by the applicant by reason of an analysis based on evaluative weight; and
b)findings that the Tribunal did not accept the version of events as given by the applicant by reason of an analysis based on the applicant’s veracity, especially demeanour.
Mr Smyth submitted that evaluative weight-based credibility findings arose when the applicant gave evidence of a particular matter yet the evidence stood at odds with the evidence of other persons or with the material revealed by documentation (such as country information) or that the likelihood of the particular event occurring in the manner asserted by the applicant was inherently improbable.
Mr Smyth submitted that demeanour-based credibility findings arose when the Tribunal assessed whether or not it believed the applicant or a particular witness. Mr Smyth submitted that demeanour-based credibility findings were the subject of careful consideration by the Full Court of the Federal Court of Australia in CQG15 v Minister for Immigration and Border Protection[6] (“CQG15”). He even invited attention to my own decision in MZARD v Minister for Immigration and Border Protection.[7] In essence, Mr Smyth contended that one needs to examine CQG15 in order to understand the analysis set out in Minister for Immigration and Citizenshipv SZMDS[8] (“SZMDS”).
[6] [2016] FCAFC 146.
[7] [2017] FCCA 343.
[8] (2010) 240 CLR 611.
Mr Smyth contended that it would be wrong for me to refer interchangeably to evaluative weight-based credibility findings with demeanour-based credibility findings. He also submitted that the Tribunal did not need to possess rebutting evidence before reaching a finding that a particular factual assertion had not been made out, as was held in Selvadurai v Minister for Immigration and Ethnic Affairs.[9]
Mr Smith also relied on High Court’s decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[10] for the proposition that a court, when undertaking judicial review of the discharge of the Tribunal’s statutory functions, does not finely comb through the Tribunal’s reasons with an eye attuned to the existence of jurisdictional error.
[9] [1994] FCA 1105.
[10] (1996) 185 CLR 259.
As a broad response to the whole of ground 1, the Minister relied on the decision of the High Court of Australia in SZMDS in contending that reasonable minds may differ on the conclusions to be drawn from certain evidence. The position was stated by Crennan and Bell JJ as follows –
In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.[11]
[11] (2010) 240 CLR 611 at [130]-[131].
Hence, even if I as a reviewing court may have come to a different conclusion on the state of the evidence, the decision of the Tribunal in this case could not be said to be illogical or irrational or unreasonable merely because one conclusion had been preferred over another possible conclusion. Mr Smyth put the point in the following terms –
It leads back around to the point their Honours made in SZMDS that if you reach a view on a factual issue then the fact that another person may have reached a different view does not give rise to illogicality in the judicial review sense. And, of course, your Honour is well aware that the acting chief justice and
Kiefel J differed on that point but, of course, the state of
authority at the moment is that stated paragraph 130 to 131 of
Crennan and Bell JJ’s judgment. And so if I could suggest that the analytical framework that your Honour would undertake in this case would be as follows, first of all, disaggregate what is a hard-core – if I could use that term – credibility finding from what is a finding of fact based on implausibility or illogically then reach a view as to whether a reasonable tribunal could have reached the view that’s stated, which in the Minister’s submissions, for the reasons set out in writing, each of them are able to be reached, then cover the point by saying by reference to Crennan and Bell JJ’s judgment, this does not give rise to illogicality on any account because it’s simply a difference of opinion.[12]
[12] Transcript of proceedings, 4 May 2017 at p.42.
With those preliminary observations, it is necessary to go the grounds themselves.
Ground 1(a)
Under this particular, the applicant focused on the findings of the Tribunal in paragraphs 21 and 22 of its reasons. The applicant contended that the Tribunal had before it evidence of brutality and abuse by Sri Lankan authorities. The applicant said that no evidence existed for the Tribunal’s findings that those authorities would not have abused the applicant in the way the applicant claimed.
The Minister contended that the impugned findings were no more than the result of the Tribunal’s conscientious and unexceptional exercise of its evaluative function and that those were not matters that the court undertaking judicial review can substitute with its own views.
I agree. It is not for me to undertake a merits review of those findings. Nor is it for me to finely comb over the Tribunal’s reasons with an eye keenly attuned to the existence of error. It seemed to me that the findings of the Tribunal were open.
This ground was without merit.
Ground 1(b)
Under this particular, the applicant focused on the finding of the Tribunal in paragraph 22 of its reasons. The applicant contended that the Tribunal had before it evidence of brutality and abuse by
Sri Lankan authorities. The applicant said that no evidence existed for the Tribunal’s findings that the applicant would know the motives of the authorities questioning him, searching his house or seeking him.
The Minister contended that when the whole of the Tribunal’s reasons were read, the Tribunal reasoned that it was unable to accept that the applicant would be wanted for questioning if he was unable to explain why he would be of particular interest to the Sri Lankan Army.
The Minister submitted that such a path of reasoning was open to the Tribunal.
I agree. Logically, given that the applicant was unable to explain why he might be of interest to the army, it followed that it was unlikely he would be wanted for questioning. To my mind there was no legal unreasonableness in the passage from paragraph 22 that the applicant sought to impugn.
This ground was without merit.
Ground 1(c)
Under this particular, the applicant contended that the Tribunal engaged in legal unreasonableness in relation to paragraph 23 of its reasons where the Tribunal found what it said was a critical inconsistency.
The Minister contended that the inconsistency in the account that the Tribunal identified gave the Tribunal a firm basis upon which it concluded that the applicant’s claims were manufactured.
It seemed to me that in reality the applicant did little more than identify a piece of evidence on which a particular conclusion was open, it being possible that minds might differ on the point, and that the Tribunal preferred one version over another. As cases such as Minister for Immigration and Citizenship v SZRKT,[13] Minister for Aboriginal Affairs v Peko-WallsendLtd,[14] Minister for Immigration and Border Protection v SZUXN[15] and CQG15 illustrated, where the Tribunal preferred one version of events over another, the Tribunal did not thereby behave illogically or irrationally.
[13] (2013) 212 FCR 99.
[14] (1986) 162 CLR 24.
[15] [2016] FCA 516.
This ground was without merit.
Ground 1(d)
Under this particular, the applicant focused on paragraphs 24 and 25 of the Tribunal’s reasons. The applicant contended that the Tribunal engaged in legal unreasonableness by concluding that the failure of the applicant to mention his detention at the entry interview supported the finding that he had manufactured his claims. The applicant contended that the entry interview was brief and it formed a different purpose from the assessment of protection claims.
The Minister contended it was open for the Tribunal to conclude that the applicant’s failure to mention the two incidents of detention at his entry interview supported the view that his protection claims had been manufactured.
I agree. I detected nothing in the Tribunal’s reasons to indicate otherwise. At the risk of repetition, this was not a merits review and authority at high level mandated that I should not comb through the Tribunal’s reasons with an eye finely attuned to the existence of error.
This ground was without merit.
Ground 1(e)
Under this particular, the applicant focused on paragraph 27 of the Tribunal’s reasons. The applicant contended that when compared with other evidence, the Tribunal engaged in legal unreasonableness in reaching its conclusion that it was prepared to accept that the applicant’s sister’s father-in-law was taken by persons in a white van.
The Minister submitted that this ground did not help the applicant’s case. The Minister submitted that the Tribunal accepted that the applicant’s sister’s father-in-law had been taken away by persons in a white van, as was recorded in paragraph 27 of the Tribunal’s reasons. However, the Minister recorded that the Tribunal did not accept that the applicant had been detained, that he was required to report to authorities, that he was mistreated by the Sri Lankan Army or his father had ever been questioned about the applicant’s whereabouts or had been unable to work. In other words, the Tribunal accepted a small part of the applicant’s version of events but rejected a large portion of other aspects of his version of events.
To my mind, that submission was correct. The Tribunal did as it was required to do in the discharge of its statutory function, namely to evaluate the claims advanced by the applicant. Here, the Tribunal accepted a portion of the applicant’s version but otherwise rejected a sizeable portion of the rest of his evidence. No legal error was thereby committed. To the contrary, the Tribunal did as it should have done.
This ground was without merit.
Ground 1(f)
Under this particular, the applicant focused on paragraph 27 of the Tribunal’s reasons and contended that the Tribunal engaged in legal unreasonableness in not accepting that the applicant would not know the name of the friend of his father in whose house he was hiding.
The Minister submitted that it would be surprising that the applicant would not know the name of the man in whose house he was hiding. However, the Minister said that did not matter. Mr Smyth in his written submissions contended that the conclusion reached by the Tribunal in paragraph 27 of its decision was open, irrespective of whether some other decision-maker might have taken the view for which the applicant propounded.
I agree. In my view the conclusion reached by the Tribunal was open on the evidence and it did not matter whether some other
decision-maker may have come to the view for which the applicant contended. No jurisdictional error was disclosed by the complaints made in particular 1(f).
This ground was without merit.
Ground 2
Under this ground the applicant sought to invoke aspects of complementary protection, including the analysis of cruel or inhuman treatment or punishment as well as degrading treatment or punishment in s.5(1) of the Act.
In supplementary submissions prepared by the legal representatives of the Minister and dated 6 October 2017 the Minister contended that the Tribunal properly considered the applicant’s complementary protection claims in relation to the state of prison conditions with respect to the guidelines in PAM3, finding that there was no intention on the part of the authorities to inflict harm on the applicant by placing him in poor prison conditions.
The Minister submitted that nothing in the High Court’s decision in SZTAL overturned or contradicted the findings of the Full Court of the Federal Court of Australia in the same case to the effect that the natural and ordinary meaning of intentional infliction is, reasoning on criminal law principles, actual subjective intention by the actor to bring about his victim’s pain and suffering by the actor’s conduct.
To my mind, that was an accurate encapsulation of the High Court’s distillation of the principal.
No error was disclosed in the Tribunal’s reasoning.
This ground was without merit.
Conclusion
All of the grounds of review failed.
I dismiss this application for judicial review and order the applicant to pay the Minister’s costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 23 November 2017
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