Ahz19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 58
•4 February 2022
FEDERAL COURT OF AUSTRALIA
AHZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 58
Appeal from: AHZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 648 File number(s): VID 221 of 2021 Judgment of: O'CALLAGHAN J Date of judgment: 4 February 2022 Catchwords: MIGRATION – appeal from decision dismissing application for review of a decision of the AAT – where AAT not satisfied that the applicants were non-citizens in respect of whom Australia had protection obligations under ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) – where AAT made adverse credibility findings and disbelieved appellants’ claims – whether AAT acted unreasonably or failed to interpret or apply ss 5H, 5J, 36(2)(a) and/or 36(2)(aa) of the Migration Act – whether AAT failed to have proper regard to a corroborative document provided by the appellant in making adverse credibility findings – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36(2)(a), 36(2)(aa) Cases cited: BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 97 CLR 611
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303
Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485
WAJS v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 240 FCR 139
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 52 Date of hearing: 12 November 2021 Counsel for the Appellants: Mr AFL Krohn Solicitor for the Appellants: Vrachnas Lawyers Counsel for the First Respondent: Ms L Mills Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
VID 221 of 2021 BETWEEN: AHZ19
First Appellant
AIA19
Second Appellant
AIB19
Third Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
O'CALLAGHAN J
DATE OF ORDER:
4 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellants pay the first respondent’s costs, to be agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’CALLAGHAN J:
The appellants appeal from a decision of the Federal Circuit Court of Australia dated 1 April 2021, dismissing an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the AAT), dated 2 January 2019. By that decision, the AAT affirmed a decision made by a delegate (the delegate) of the first respondent to refuse to grant to the appellants Protection (Class XA) (Subclass 866) visas.
Background
The appellants are Turkish nationals. The first appellant (appellant) and the second appellant are married, and the third appellant is their child who was born in Australia. The appellant is the primary visa applicant, and the second and third appellants’ applications depend upon the appellant’s claims.
The appellant applied for his visa on 22 January 2014. On 29 April 2015, the delegate refused to grant the appellants’ applications.
On 14 May 2015, the appellant applied to the AAT for review of the delegate’s decision. The appellants appeared before the AAT on 19 June and 3 October 2018, and on 2 January 2019, the AAT affirmed the delegate’s decision.
On 25 January 2019, the appellants applied to the Federal Circuit Court for judicial review of the AAT’s decision. By a decision dated 1 April 2021, the primary judge dismissed the application.
The claims
The appellant’s claims for protection are based upon his membership of the Alevis (an ethnic and religious group in Turkey) and being an atheist. He claims to have suffered abuse and discrimination because of this. His claims can be summarised as follows:
(1)In 1999, while in high school, the appellant had become a member of an Alevi group and attended a protest in Istanbul in support of those whose families had disappeared in police custody. He was arrested, taken into custody, beaten, kicked, questioned about his opposition to the state, and threatened with death. After this, he was afraid to leave his house for some months.
(2)In 2001, the appellant went to university. He revealed he was an atheist, and was beaten up by Islamist students. He stayed away from university for a week. His residence was invaded, and he was kicked, beaten, and assaulted with a knife in his home. He was also assaulted because he was smoking during Ramadan. He was taken by an undercover police officer who interrogated, kicked, and slapped him, and threatened him with death. After this, the appellant abandoned his university residence and lived at home while completing his studies.
(3)The appellant gained employment. After revealing that he was an Alevi and an atheist, his supervisor required him to live in a hotel where many Alevis had been murdered. The appellant refused to do so, and was dismissed.
(4)From about 2007 to 2010, the appellant attended many religious and political demonstrations. In 2010, he attended a demonstration against compulsory religious studies. He was arrested, accused of action against the state, beaten, punched, slapped, and kicked in the face. He was then taken to a prosecutor, who said he would be charged. He stayed briefly with his parents to avoid detention, and then he and the second appellant left for Australia.
(5)In 2012, while a friend of the appellant (Witness A) was visiting his mother in Turkey, the police came looking for the appellant. The appellant’s mother told the police that he was not there, and then asked Witness A not to tell the appellant about the incident to avoid distressing him. Witness A provided a written statement to the AAT and appeared at the AAT hearing.
(6)In 2013, when the appellant told his family that he intended to return to Turkey, his mother told him that police were looking for him. The second appellant returned to Turkey to investigate the situation, and was questioned about her husband.
(7)The appellant feared harm, including death, if he returned to Turkey.
(8)The appellant’s mother gave evidence before the AAT that she was concerned about telephones being intercepted.
(9)The appellant also provided a copy of an apparent court record, including an order for his arrest, to the AAT.
The AAT’s reasons
The appellants’ submissions were directed to the AAT’s credibility findings in relation to the appellant, his wife, his mother, and Witness A. Relevantly, under the heading “Credibility Findings”, the AAT:
(1)found that the appellant’s mother would not have withheld from her son the “important news” that Turkish authorities had come to her home to look for him “simply so as not to upset him” (at [75]–[76]);
(2)had difficulty accepting that, after being told that Turkish officials had been pursuing the appellant after he had left Turkey, he or his wife would perceive any need to return to Turkey to find out more, and take the risk of doing so (at [77]);
(3)saw no “plausible or convincing purpose” in the second appellant undertaking enquiries about the seriousness of the situation (at [78]) and disbelieved the evidence about the reasons for the second appellant returning to Turkey (at [79]);
(4)found that the appellant, his mother, and his wife were “not witnesses of truth” for the above reasons (at [79]);
(5)disbelieved the claims made by the appellant, his mother, and Witness A that Witness A was visiting the appellant’s parents when Turkish police arrived and said to the appellant’s mother that they were looking for the appellant, because this claim was “inextricably linked” to the “basic claim” that the appellant’s mother did not tell him about the Turkish authorities’ interest in him until mid-2013 (at [83]);
(6)disbelieved the claims that the appellant’s wife and mother were questioned about the appellant (at [84]);
(7)because it had found that the appellant was not a witness of truth, disbelieved the appellant’s evidence about allegedly attending a protest in 2010, Turkish authorities pursuing him after he left the country, and his life prior to March 2020 (at [88]); and
(8)took into consideration a document purportedly issued by a Turkish court which referred to an order to apprehend the appellant, but found that the existence and contents of the document did not outweigh its fundamental concern about the credibility of the appellant and his mother, and gave no evidentiary weight to the document (at [91]).
The AAT then assessed the risk of suffering serious harm for being Alevi and atheist. It considered country information regarding such risk, but considered the risk to be remote (at [100], [107]). It also disbelieved claims by the appellant’s mother that she felt a need to conceal being Alevi, because it had earlier found that she was not a witness of truth (at [104]). And after considering evidence of the appellant undertaking political activities in Australia, it remained of the view that he was not a witness of truth and that his account of undertaking political activities and voicing dissent was false (at [113]).
The AAT ultimately concluded that the appellant did not satisfy either of the criterion set out in ss 36(2)(a) or 36(2)(aa) of the Act.
The grounds of appeal
The grounds of appeal in this court were in relevantly identical terms to the grounds before the primary judge.
1.The Federal Circuit Court at first instance erred in not finding that the Second Respondent (“the Tribunal”) fell into jurisdictional error in that it was unreasonable.
Particulars
(a)The Tribunal was unreasonable in rejecting as false the claim by the First Applicant and his mother and the Second Applicant that it was not until 2013, after the First Applicant said that he was considering returning to Turkey, that his mother told him that the Turkish authorities had come looking for him in the period after he left Turkey. (Tribunal’s reasons, [75]-[76], [79] … )
(b)The Tribunal was unreasonable in rejecting as false the claim that the Second Applicant “would take the risk of returning to Turkey to make enquiries of some kind about how serious the situation was”. (Tribunal’s reasons, [77]-[79] … )
(c)The Tribunal was unreasonable on the basis of either or both of the findings in particulars (a) and (b) to this Ground to find … “that the [first] applicant, his wife and his mother are not witnesses of truth.” (Tribunal’s reasons, [79] … )
(d)The Tribunal was unreasonable to reject as false “the claims made by the applicant, his mother and witness A that while he was there Turkish police came to the premises and held a conversation with the applicant’s mother in which they said they were looking for the applicant.” (Tribunal’s reasons, [83] … )
(e)The Tribunal was unreasonable to reject as false “the applicant’s wife’s claims that when she returned to Turkey in 2013 she was questioned by the authorities. (Tribunal’s reasons, [84] … )
(f)The Tribunal was unreasonable to find that “Similarly, the Tribunal disbelieves the claims made by the applicant’s mother that she was also questioned about the applicant when she travelled out of Turkey as narrated above.” (Tribunal’s reasons, [84] … )
(g)The Tribunal was further unreasonable on the basis of its finding that the First Applicant and his mother were “not witnesses of truth”, to reject all the claims and evidence of the First Applicant having suffered harm before leaving Turkey, (Tribunal’s reasons [86]-[90] … ) without considering whether some of the evidence might be true, particularly as the delegate accepted some of the claims of past harm. …
2.Further or in the alternative to Ground 1, the Federal Circuit Court at first instance erred in not finding that the Tribunal erred in interpreting or applying the law.
Particulars
(a)By reason of the findings set out in the particulars to Ground 1, the Tribunal showed that it was not correctly interpreting or applying sections 5H, 5J, 36(2)(a), and 36(2)(aa) of the [Migration Act 1958 (Cth)], which required the Tribunal to find that the Applicants met the criteria for protection if one or more of them had a real chance of suffering persecution or a real risk of suffering significant harm.
3.The Federal Circuit Court at first instance erred in not finding that the Tribunal fell into jurisdictional error in that it failed to consider relevant considerations.
Particulars
(a)The Tribunal failed to consider whether there was a small but real chance that the claims set out in the particulars to Ground 1 might be true.
(b)Having rejected the claims about events after the First and Second Applicants left Turkey in 2010 (as set out in particulars (a) and (b) to Ground 1), the Tribunal failed to consider whether nevertheless some or all of the other claims of harm suffered by the First Applicant may have been true, particularly as the delegate accepted some of the claims of past harm. …
4.The Federal Circuit Court at first instance erred in not finding that the Tribunal fell into jurisdictional error in that it failed to complete the task required of it under s 414 of the Migration Act 1958 to review the decision of the first respondent, and thereby constructively failed to exercise its jurisdiction.
Particulars
(a)The Tribunal (at paragraph 91 of its reasons) did not give evidentiary weight to a document purportedly issued by a court in Turkey referring to an order to apprehend the first applicant, on the grounds that this did not outweigh the fundamental concern that the Tribunal had with the credibility of the applicant and his mother (“the court document”).
(b)The Tribunal’s finding at paragraph 91 of its reasons did not absolve it from the task of considering and making findings with regard to the court document independently of its credibility finding in relation to the applicant and his mother.
Ground 1
By ground 1, the appellants contended that the AAT’s credibility findings were unreasonable.
The primary judge outlined the legal principles applicable to unreasonableness at J [34]–[41], and it is unnecessary to repeat them here. It is sufficient to note that a finding of unreasonableness only arises where the conclusion is one at which no rational or logical decision maker could arrive on the same evidence. This is rare, and a court should be slow (although not unwilling) to interfere. See Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 647–648 [130] (Crennan and Bell JJ). As Gummow J said in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 97 CLR 611 at 654 [137], “where the criterion of which the [decision‑maker] is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question”.
As the primary judge said, a tribunal does not require particular evidence to support a finding that an account is implausible or illogical. As long as the tribunal considers the evidence before it logically and rationally, it will not fall into error, and it is open to a tribunal to find that certain events did not occur based on the evidence before it. See WAJS v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 240 FCR 261 at 264 [13] (Wilcox, Marshall and Jacobson JJ). And inconsistencies or incongruities of evidence are a sufficient basis to reject a witness’ account. See CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at 518 [61]–[64] (McKerracher, Griffiths and Rangiah JJ).
Turning first to particulars (a) and (b) to ground 1. The appellants contended that the primary judge erred in finding at J [44] that “the conclusions reached by the [AAT] are conclusions that were reasonably open to it”. The appellants’ main submission was that, while the AAT did refer to aspects of the evidence before it, these “were not a reasonable basis for the rejection as false” of the claims that the appellant’s mother did not, until 2013, tell him that Turkish authorities had come looking for him. The appellants further submitted (emphasis in original):
[U]ltimately the rejection by the [AAT] of the claims was based not on a logically sure basis, but on a priori positions that a mother would certainly not keep from her son, for the sake of his peace of mind, the news that the police were looking for him, and that his wife would certainly not go back for a short time to find out the gravity of the situation. While the [AAT] can rationally and logically reject some claims as implausible … in the present matter the [AAT’s] task, and its statutory context, required some basis to conclude, beyond a real chance of error, that human beings could not have acted in the way the [a]ppellants claimed, and to go beyond this to a positive finding that that “the applicant, his wife and his mother are not witnesses of truth.” … The [AAT] said “It is inconceivable that the applicant’s mother would withhold that news from him until he told her he was thinking of returning to Turkey.” … While some people might have acted in the way the [AAT] expected, the claimed behaviour could be ruled out as not a reasonable possibility. As the [AAT] was required to consider whether there was a real chance of persecution or serious harm, it was unreasonable in making these findings, rejecting the claims by the [a]ppellant, his mother and his wife.
In my view, the primary judge’s conclusion that the findings of the AAT were reasonably open to it was not in any way unreasonable or illogical. His Honour’s findings were relevantly at J [42]–[44], as follows:
... The first matter to observe is that the Tribunal clearly had concerns about whether the Turkish police had visited the Applicant’s mother’s home to apprehend him, and whether his Mother had withheld that information from him for three years. The Tribunal’s concerns in this respect were raised directly with the Applicant and his mother and recorded by the Tribunal in its summary of their evidence: see paragraphs [21]-[22], [40]-[42] of the Tribunal’s reasons. Further the Tribunal had concerns about the evidence of the Applicant and his wife in relation to the risk to the Applicant’s wife of returning to Turkey to make inquiries about how serious the situation was: see paragraph[s] [60], [63]-[65].
The second matter to observe is that, contrary to the submission of the Applicant, the Tribunal did in its reasons identify matters, or set out its reasoning, in support of its conclusions. This included the following:
(a) The Tribunal set out the reasons why it had concerns that the Applicant’s mother would not have told him, at the earliest opportunity, of the efforts of the Turkish police to apprehend him. Those reasons concerned the Applicant’s claimed circumstances. The Tribunal identified that the Applicant was someone who claimed to have been arrested, detained and maltreated by the Turkish authorities following a protest in March 2010 and which, on the Applicant’s own evidence, caused him to flee Turkey. In that circumstance, the Tribunal did not believe that the Applicant’s mother would behave in the way she had claimed, where she did not tell her son about the police visits as soon as possible. This formed part of the reasons as to why the Tribunal found the claim by the Applicant to have not been told until 2013 of the visits by the police, to be false: see paragraph[s] [75]-[76].
(b) Given the circumstances identified above, including the claim that the Turkish police had continued to visit the Applicant’s mother in order to apprehend him, the Tribunal identified as a factor in its consideration, the decision of the Applicant not to immediately apply for a protection. That was a matter considered by the Tribunal as significant. Indeed the Tribunal noted that it had difficulty accepting that rather than immediately applying for protection, the Applicant’s wife would take the risk of returning to Turkey to make inquiries about how serious the situation was: see paragraph [77] of the reasons.
(c)There was no dispute that the Applicant’s wife had returned to Turkey to investigate the situation pertaining to her husband. The Applicant’s claim, supported by his mother, was that the police visited the mother in order to apprehend the Applicant. The Tribunal stated it had difficulty accepting that the Applicant or his wife would take the risk of returning to Turkey to make inquiries about how serious the situation was, in circumstances where the Applicant’s mother had informed him not to come to Turkey because he was being pursued by the authorities: see paragraphs [76]-[77] of the reasons.
The matters I have identified above are all matters that were considered by the Tribunal in reaching the conclusions that are now under challenge. The Tribunal did not simply make a finding that it did not believe the evidence of the Applicant, his wife, or his mother. Rather, the Tribunal set out its reasons for the conclusions it adopted. Moreover, when the reasoning above is reviewed, it becomes apparent that the conclusions reached by the Tribunal are conclusions that were reasonably open to it.
It is clear from these passages that the primary judge considered the AAT’s reasons, and found that they supported the findings impugned in paragraphs (a) and (b) of the particulars to ground 1. The AAT did not, as the appellants submitted, make a finding on the basis of “a priori positions” that a mother would not keep information that the police were looking for her son from him, or that his wife would “certainly not go back for a short time to find out the gravity of the situation”. Rather, the AAT considered the evidence and the particular circumstances of the matter and found that, where the very reason for the appellants leaving Turkey was the belief that the Turkish authorities were after the appellant, it was implausible that his mother would not share such information with him and that his wife would return to Turkey to make inquiries as to the gravity of the situation, where such gravity would have been readily apparent. As the primary judge found, the AAT considered these circumstances in detail, and having done so, its conclusion was one that was reasonably open to it on the evidence.
I also reject the appellants’ submission that there was any requirement for the AAT to conclude “beyond a real chance of error, that human beings could not have acted in the way the [a]ppellants claimed”. The AAT was required to consider the claims in the context of the appellants’ circumstances, which, as I have explained above, is precisely what it did, and not how other “human beings” may have acted.
Accordingly, ground 1 is not made out in respect of particulars (a) and (b).
It is convenient to turn next to particulars (c) and (g), which challenged:
(1)the AAT’s findings that the appellant, his mother, and his wife were not witnesses of truth on the basis that it rejected as false the evidence that the appellant’s mother did not tell him that the authorities were after him until mid-2013 and that the second appellant would take the risk of returning to Turkey (particular (c)); and
(2)the rejection of all the claims and evidence of the appellant having suffered harm before leaving Turkey, because the AAT did not consider the witnesses to be witnesses of truth (particular (g)).
The appellants submitted that the AAT inappropriately found all their claims to be untrue on the basis that it concluded that some of the evidence was false, without considering whether other evidence might be true.
The appellants submitted that the primary judge “ignored the detailed and circumstantial account by the [appellant]”, and that accordingly, the following findings at J [52]–[53] were in error:
Accordingly, once the Tribunal concluded that the Applicant and the Second Applicant had made false claims in relation to significant matters that were relevant to the Applicant’s claims to fear harm, it was open to the Tribunal, in my view, to conclude that the Applicant, his wife and his mother were not witnesses of truth. Accordingly, I do not accept that the conclusion identified by the Applicant in particular (c) is unreasonable.
Turning then to particular (g), I am satisfied that the decision by the Tribunal to reject all the claims and evidence of the First Applicant having suffered harm before leaving Turkey was a finding that was made taking into account the findings identified in particulars (a), (b) and (c) to this ground. As I have already stated, those findings were not only findings that were open to the Tribunal, they were findings of significance. In my view, of themselves, the findings which the Applicant seeks to challenge in particulars (a) – (c) of this ground are of sufficient importance to reject all claims and evidence of the First Applicant having suffered harm before leaving Turkey.
In my view, the primary judge did not ignore the “detailed and circumstantial account” of the appellant. His Honour summarised at J [48]:
… While the Applicant recited various times in his life when he was subject to discrimination or mistreatment, it was the events of March 2010 that assume significance. The Applicant recited that after he was arrested in March 2010, he was tortured, threatened, told that he was on a blacklist, and told that he would be prosecuted. He claimed that following his treatment on this occasion, he determined to leave Turkey, which he ultimately did on a student visa. Clearly, the nub of the Applicant’s claim was that following his participation in the 2010 protests, he was a person of interest to the Turkish authorities.
As this passage, and his Honour’s summary of the AAT’s decision at J [15]ff, make clear, his Honour had regard to the “detailed and circumstantial account” of the appellant and the totality of the evidence. In making his findings regarding particulars (c) and (g), his Honour recognised that the AAT’s findings in respect of particulars (a) and (b) were “findings of significance”. The appellant’s account was in no way “ignored” by the primary judge. His Honour understood and considered the appellants’ evidence and claims, including their relative significance. As the primary judge concluded, the fact that the AAT rejected as false key components of the appellants’ claims meant that it was open to it, after considering the balance of the evidence before it, to find that the witnesses were not witnesses of truth, and reject the remainder of the appellants’ claims. There was no unreasonableness or error in the primary judge’s findings in respect of particulars (c) and (g).
The appellants accepted that the remaining particulars were all related to particulars (a), (b), (c) and (g), and that if the primary judge did not err in his findings in respect of those particulars, then ground 1 is not made out. Accordingly, ground 1 fails.
Ground 2
By ground 2, the appellants contended that the primary judge erred in not finding that the AAT failed in interpreting or applying ss 5H, 5J, 36(2)(a), and 36(2)(aa) of the Migration Act 1958 (Cth) (the Act).
While counsel for the appellants accepted that grounds 1 and 2 were “related”, he did not accept that ground 2 necessarily failed if ground 1 failed. He submitted that “[i]t might be possible that the [AAT] may have erred in law in interpreting or applying the test it was required to apply, and yet that error might not be found to go so high as to be unreasonable”.
However, the appellants’ submissions in respect of ground 2 went no further than asserting that “[b]y reason of the findings set out in the particulars to Ground 1”, the AAT failed to interpret or apply the relevant provisions, which “required the [AAT] to find that the [a]ppellants met the criteria for protection if one or more of them had a real chance of suffering persecution or a real risk of suffering significant harm”, and that a real chance “may be small, if it is not remote or far‑fetched” (citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379).
While I accept that the outcomes of grounds 1 and 2 are not necessarily linked, in these circumstances, the findings of the AAT sought to be impugned by the appellants (being those set out in the particulars to ground 1) go to the heart of the appellants’ claims. As I have found, the AAT did not act unreasonably in disbelieving the appellant’s claims as to his risk of harm. Accordingly, it made no error in concluding that there was no real chance of the appellants suffering persecution or significant harm if they returned to Turkey. The AAT’s credibility findings did not relate to some incidental or secondary matter; it disbelieved the very existence of the bases for the appellants’ claims to protection. In those circumstances, it cannot be said that there was any real chance that they would suffer significant harm or persecution upon return to Turkey, and that the AAT therefore misapplied the relevant sections of the Act.
In these circumstances, I can see no error in the findings of the primary judge, which were succinctly put as follows at J [65]:
The difficulty that confronts the [appellant] under this ground is that the findings made by the Tribunal were open to it. The Tribunal ultimately found that the [appellant’s] claims were not credible, particularly the claims in respect of visits by the Turkish authorities to the [appellant] mother’s house to search for him, and his claims in relation to the events of March 2010. As I have stated, I am of the view that the Tribunal’s reasoning in relation to these matters was logical and not unreasonable. Once that conclusion is reached, it follows it was also open to the Tribunal to conclude that the [appellant] did not face a real chance of persecution. In my view, no other conclusion in respect of section sections 5J, 5H, 36(2)(a) and 36(2)(aa) is possible given the findings the Tribunal ultimately made.
Ground 2 accordingly fails.
Ground 3
The appellants accepted that, as the primary judge found, grounds 1 and 3 were related and that if the AAT did not err in relation to ground 1, then ground 3 also failed.
As I have found that the appellants have not established the error in ground 1, ground 3 fails.
Ground 4
By ground 4, the appellants contended that the primary judge erred in not finding that the AAT fell into jurisdictional error by failing to have proper regard to a document purportedly issued by a court in Turkey which included a warrant for the appellant’s arrest. Relevantly, the AAT did not give any evidentiary weight to this document because it did not outweigh its fundamental concern with the credibility of the appellant and his mother.
Adverse credibility findings can involve jurisdictional error where a decision maker does not actively engage with relevant considerations. See BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292 (BZD17) at 302 [33] and [35] (Perram, Perry and O’Callaghan JJ).
In BZD17, the appellant was a citizen of Cameroon who applied for a protection visa on the basis that he feared persecution or significant harm by reason of his homosexuality. In general, the AAT disbelieved his claims that he was gay, and dismissed the appellant’s evidence and that of other witnesses on the basis that they relied upon the appellant’s fabricated history in Cameroon. “Mr C” was the only witness who claimed to have met the appellant prior to his departure from Cameroon, and accordingly, the Full Court held, this was critical evidence. Mr C gave evidence including about the appellant’s relationship with another man, and the appellant’s (and his then partner’s) involvement in a human rights group. The AAT rejected that evidence, lending it “little weight”, primarily on the basis that the appellant did not previously mention this level of involvement with the human rights group.
The Full Court found that the AAT had erred by failing to give a proper, genuine, and realistic consideration to Mr C’s corroborative evidence. The Full Court considered the AAT’s reasons for its “comprehensive rejection” of Mr C’s evidence and found that (at [47]–[49]):
(1)there was no suggestion by the AAT, for example, that Mr C had confused the appellant with someone else;
(2)the AAT, having found that the appellant had fabricated claims and been deliberate in presenting himself as a gay man, did not consider why the appellant might have presented as such in Cameroon if that was not true; and
(3)accordingly, the AAT must have found (as the respondent accepted) that Mr C’s evidence was fabricated, and the AAT did not attempt to analyse his evidence and explain why he must have fabricated it.
The Full Court concluded at [50] that, because the appellant was “left to guess” why the AAT had rejected Mr C’s evidence and whether it had “engaged intellectually” with the evidence, it had fallen into jurisdictional error.
However, the question of evidentiary weight is a matter for the tribunal, and a lack of detailed reasons does not itself necessarily give rise to jurisdictional error. See Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 (SZNPG) at 308–309 [24] and [26] (North and Lander JJ). In SZNPG, the visa applicant claimed to be Christian. The Refugee Review Tribunal (RRT) disbelieved this claim, and when the applicant provided it with a baptism certificate, it said that it “has considered the baptism certificate given its concerns with the applicant’s knowledge of his own baptism, it is not prepared to give this document sufficient weight to overcome its concerns with the applicant’s evidence”. The Full Court concluded that there was no jurisdictional error, noting that while the “brevity with which the RRT dealt with the corroborative evidence is unsatisfactory”, it did not justify a conclusion of jurisdictional error.
Turning to the present case, the AAT’s findings in relation to the Turkish court document are at [91] of its reasons:
In making its credibility findings, the Tribunal has taken into consideration the documents submitted by the applicant to the Department purportedly issued by a court in Turkey referring to an order to apprehend the applicant in relation to a trial for his participation in demonstrations. In submissions of 25 September 2018, the representative stated that this document was authentic. The existence and contents of this document do not outweigh the fundamental concern the Tribunal holds with the credibility of the applicant and his mother, namely, that she would withhold from her son the important news that Turkish police had come to her to locate him after he left Turkey. It is inconceivable that the applicant’s mother would withhold that news from him until he told her he was thinking of returning to Turkey. Accordingly, the Tribunal does not give evidentiary weight to this document.
An English language version of this document entitled “Record of trial proceedings” was before the court in his appeal, and relevantly read:
The accused [appellant’s] open trial for non-compliance with the Meeting and Demonstration Marches Act No.2911; under the relevant articles of the Turkish Penal Code 5237, using force and violence in attempting to prevent the Government of the Turkish Republic to execute its duties; resistance in order to the prevent [sic] execution of duties (of public officials).
The Court was informed that the order to apprehend [the appellant] has not been executed.
COURT DELIBERATED AND RULED THAT AS REQUESTED
1.To await the execution of the order to apprehend [the appellant].
The appellants’ written submissions on ground 4 were brief:
The Tribunal failed to consider an important, and independently corroborative, piece of evidence, namely the Turkish court document which included an order for the arrest of the Appellant. This document was potentially so important a piece of independent corroboration, and the finding that the Appellant and others were not “witnesses of truth”, as discussed above, was so unreasonable and flimsy a foundation for rejecting it, that the Tribunal fell into jurisdictional error by not engaging in an assessment of the court document on its own merits.
The Tribunal said,
“In making its credibility findings, the Tribunal has taken into consideration the documents submitted by the applicant to the Department purportedly issued by a court in Turkey referring to an order to apprehend the applicant in relation to a trial for his participation in demonstrations.” …
Yet, on a plain reading of the Tribunal’s reasons (especially … [75]-[76], [79]), the Tribunal found that the Appellant and others were “not witnesses of truth” without taking into account, assessing and balancing the weight to be given to the Turkish court documents. The Appellants respectfully submit that the learned Judge at first instance erred in finding by reference to [91] of the Tribunal’s reasons that “I am unable to accept that the Tribunal did not consider the document from the Turkish Court or engage with it.” This case is akin to BZD17 v Minister for Immigration and Border Protection where a failure to engage as needed with corroborative evidence was a jurisdictional error.
In his oral address, counsel for the appellants identified two reasons why the primary judge allegedly erred in concluding “that the [AAT] considered [the document] in the way that it was required to consider it”. First, the court document was from an independent source and therefore “its veracity was not affected by any finding of lack of credit on the part of the appellants or witnesses”. And secondly, “the extent of the [AAT’s] rejection of the claims on the basis of the finding that the parties were not witnesses of truth was itself affected by error”.
The second of these reasons can be dismissed because there was no such error.
As to the independent, corroborative nature of the document, I do not accept the appellants’ submission that the primary judge erred in finding that the AAT considered the document.
It is clear that the AAT considered the document against all the material before it in assessing the witnesses’ credibility. The AAT considered the document “in making its credibility findings”, but found that when considered against the AAT’s “fundamental concern” regarding the appellant’s mother not informing him that the Turkish police were searching for him, it had no weight. It did not find that the document had no weight because of a concluded view that the witnesses were not witnesses of truth, but rather, because of the very reason underpinning those ultimate credibility findings. The consideration of the document was not “affected” by the credibility findings. It formed part of the process in reaching those findings.
In my view, the primary judge was correct in holding at J [75] that “[u]ltimately, the Tribunal gives the document no weight given the ‘fundamental concern the Tribunal holds with the credibility of the applicant’”. The AAT’s reasons clearly show that the document was considered, but rejected.
The appellants also submitted that this was a case similar to BZD17. I reject that submission. Having reached a tentative conclusion regarding the witnesses’ credibility, a tribunal is entitled to reject evidence which could corroborate the witnesses’ accounts. This exercise depends on the nature, content, and quality of the evidence. See Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 at 491–491 [36] (North and Lander JJ).
In BZD17, the nature of the evidence considered was that put forward by an independent witness, which gave a detailed account of the witness’ interactions with the appellant prior to his arrival in Australia. The Full Court’s reasoning in that case hinged on the fact that, having inferred that the AAT considered Mr C’s evidence to be fabricated, it then failed to provide any reason why the witness might fabricate such elaborate evidence.
Here, the evidence is a single document proffered by the appellant himself. While the AAT’s reasons do not explicitly disclose its reasons for rejecting the document, it is implicit that the AAT considered the document to be fabricated, or at least of doubtful origin, like in SZNPG. This much is evident from the fact that it consistently referred to the document as “purportedly” originating from a Turkish court, and its reference to the appellants’ representative “stating” that the document was authentic “in submissions”. Unlike BZD17, the appellants were not “left to guess” why the document was rejected. It can be inferred that the AAT considered that the document was fabricated, and unlike in BZD17, where the fabrication was on the part of an independent witness and explanation for such fabrication was not readily apparent, here such fabrication would be by the appellants, in respect of whom the AAT had already expressed its concerns as to credibility.
While its written reasons for rejecting the document may have been brief, SZNPG makes clear that the brevity of reasons alone do not support a finding that the AAT failed properly to engage with the document in question, and therefore of jurisdictional error. This is particularly so given the nature of the document, which I have described above.
For these reasons, ground 4 fails.
Disposition
The appeal will accordingly be dismissed with costs.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan. Associate:
Dated: 4 February 2022
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