AIU16 v Minister for Immigration and Border Protection & Anor

[2020] HCATrans 40

[2020] HCATrans 040

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M133 of 2019

B e t w e e n -

AIU16

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

GAGELER J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 20 MARCH 2020, AT 10.52 AM

Copyright in the High Court of Australia

MS L.G. DE FERRARI, SC:   If the Court pleases, I appear with MR A. ALEKSOV for the applicant.  (instructed by Lander & Rogers Lawyers) 

MR R.C. KNOWLES, SC:   May it please the Court, I appear with MS J.A. LUCAS for the Minister.  (instructed by the Australian Government Solicitor)

GAGELER J:   Thank you.

MS DE FERRARI:   Your Honours, I will be brief.  This case, we say, is an appropriate one for this Court to give some clarity as to the approach which should be taken by the courts below when the sole basis upon which an applicant for a protection visa is determined adversely is credibility.  What we mean by that, there is no independent basis on some other criterion apart from either the protection ground, which is in section 36(2)(a), or the complementary protection ground in section 36(2)(aa).  So it is not as if there is a failing to meet some other criterion.  It is just about credibility as to whether the person is owed protection. 

The other matter about this case is that some of the aspects upon which that ultimate credibility finding is made, namely that the person is not a witness of truth, are also credibility findings, and some of those credibility findings were found to be wrongly made.

Now, the respondent effectively says that the court below adopted the approach of Justices Crennan and Bell in SZMDS about irrationality and illogicality.  With respect, we say there is nothing in the reasons for judgment that suggest this is the approach that the court below took, and certainly this is not a case of lapses of logic along the way on some separate matters.

GAGELER J:   Ms De Ferrari, your written submissions really highlight the point that it is unclear what principle his Honour was adopting in the case.  But if you go back to the reasoning of Judge Kelly in the Federal Circuit Court, would you take issue with the manner in which this point was approached there?  I am looking at page 37 to 38, paragraph 49 in particular.

MS DE FERRARI:   Well, your Honour, the problem with finding that it was well open to the Tribunal to reach the ultimate conclusion that the applicant is not a credible witness is that, really, some of the matters, some of the crucial matters upon which the Tribunal reached that matter were all about how the applicant appeared before the Tribunal. 

So it is a bit difficult, in my submission, in fact, impermissibly so, for the courts to then try and say it is still open to find “not a credible witness” by looking at some other aspects because really, if your Honour goes to the Tribunal reasons, what happened there is that, at page 13, paragraph 64 - this is one of the things that went into the ultimate finding - the Tribunal said that the evidence at the hearing:

was frequently vague and evasive in her responses.  For example -

and gives only some matters by way of examples.  Of those matters, the first, the second, and the fifth were found to be not logically open, not reasonably open, a conclusion not open of being expedient, so here is ‑ ‑ ‑

GAGELER J:   Well, Ms De Ferrari, that is what Justice Anastassiou found.

MS DE FERRARI:   Yes.

GAGELER J:   That was not the way in which the matter was approached at first instance.  But Justice Anastassiou, in making those findings, appears to have chopped up the question of credibility and found that it was possible to make the findings he did about the non‑availability of the evasive findings by reference solely to the transcript.  Is that what he did?

MS DE FERRARI:   Yes, that is what he did.  But this is the problem, your Honours - it might be that, your Honours, if the case is taken by the High Court it would say that you cannot do that analysis on the transcript, but the question is, SZMDS gives no guidance at all about how you deal with cumulative ways in which credibility is found to be lacking by the Tribunal, all culminating in a finding that says by reason of all these matters cumulatively I find you not to be a witness of truth, when in respect of those matters the courts do not even know all that went into that kind of analysis, because the Tribunal says these are just some of the matters, I basically find her to be a witness lacking in credibility, I am just going to give you some examples, and those examples were about how the person appeared to the Tribunal at the hearing.

That also translates to the next basis upon which the Tribunal found against the applicant and that is that she did not explain some of the inconsistencies by the Tribunal finding that the explanation that was given did not entirely clarify - again, that is just a matter in terms of how the person appears to the Tribunal. 

If the Court is satisfied that some way in which that approach to credibility by the Tribunal is wrong, then is it really a matter of looking at lapses of logic along the way or is it really a matter of seeing whether the Court is able to, in a sense, redo the exercise, as the judge below, Justice Anastassiou purported to do, or just make an overall assessment, even though the Court does not know, does not know how the witness appeared to the Tribunal - make an overall assessment that the credibility finding, finding the person was not a witness of truth, was open to the Tribunal.

There is simply no guidance in any of the decisions in the courts below as to the test that is to be approached.  SZMDS clearly does not deal with that issue.  There are very numerous decisions of the courts below that go, in our submissions, in many different ways, and this case would be an opportunity for this Court to clarify ‑ ‑ ‑

NETTLE J:   Ms De Ferrari, does your submission really come to this, that when an ultimate credit finding is said to be based on a number of intermediate credit findings and some of those at least are irrational, the question is whether the Tribunal would have been bound to come to the same conclusion notwithstanding those irrational intermediate findings, or alternatively is it, can the Court of Appeal say that despite those irrational findings on the facts as they are it would have been open to a properly directed Tribunal to reach the same conclusion?

MS DE FERRARI:   Your Honours, we say the former because otherwise one descends in a form of merits review, we would say.

NETTLE J:   Is your contention here that the court below really adopted the second approach, where it should have adopted the first?  Is that it?

MS DE FERRARI:   Yes, your Honours.

NETTLE J:   Is this then a question of how a court should go - a court of appeal should go about assessing the materiality consideration when error is demonstrated?

MS DE FERRARI:   Yes, your Honour.

GAGELER J:   Well, the difficulty with that is his Honour did not put it in terms of materiality.  There is no discussion in the judgment of that concept.

MS DE FERRARI:   No, your Honours, we accept that.  In a sense, this Court would have to say what is the proper test to do it.  We have pointed out to the fact that it is really unclear what his Honour did at all in terms of the authorities.  He seems to have done the second of the approaches that your Honour Justice Nettle put to me, but he did not consider Hossain, which was then the test of materiality by the time the matter came before his Honour Justice Anastassiou.  So I accept that there is no guidance by the

court below, but that really is no impediment for this Court to say how this question is to be approached by the courts below, your Honours.

NETTLE J:   The Federal Circuit Court judge, Judge Kelly’s judgment, appears, with respect, to be correct when it says that notwithstanding a couple of questionable findings it was still well open on the others to reach the same result, does it not?

MS DE FERRARI:   Well, your Honours, in terms of the ultimate outcome we would say no for the reason that I said, that really the Tribunal here does not even disclose everything that happened at the Tribunal as to why the Tribunal took such an adverse view of the applicant.  Not even all of the matters are disclosed.  The Tribunal just says “some of those”. 

Then, the matters that follow, for example, the fact that there is inconsistency between what she put into her written material and what she put orally, again, goes to how the applicant appeared at the Tribunal and whether the way in which she explained what she said was the inconsistency, how it was assessed by the Tribunal.  But this is all in circumstances where we know that there are real question marks about how the Tribunal came to look at credibility of a person appearing in front of that Tribunal. 

That is the question, your Honours, that is, is it really a question of trying to look at whether that is possible, whether it would be open to take that view of her credibility, given the way in which the Tribunal approached it, whether one goes by Judge Kelly’s approach, or whether one just goes by Justice Anastassiou’s approach.

GAGELER J:   Thank you.  I did not mean to cut you off.

MS DE FERRARI:   Your Honours, I do not think - I think I will just be repeating myself.  The main point is that there has never been any consideration, and your Honours would know from the submissions that the courts below are adopting all sorts of different approaches, not just by comparing Judge Kelly and Justice Anastassiou, but comparing all sorts of other courts, all sorts of other decisions, and it is clearly not a case about SZMDS because it is not about findings on some matters that are not related to credibility as along the way of a finding of credibility, ultimate finding of credibility, upon which the matter is rejected.

GAGELER J:   Thank you, Mr Knowles, we do not need to hear from you.

MR KNOWLES:   Thank you, your Honours.

GAGELER J:   We are not satisfied that an appeal to this Court would have a realistic prospect of success.  The case does not present as a suitable vehicle for considering the question of principle which the applicant seeks to agitate.  The application is dismissed with costs.

AT 11.04 AM THE MATTER WAS CONCLUDED