ALT18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 209
•19 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ALT18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 209
File number(s): SYG 256 of 2018 Judgment of: JUDGE D HUMPHREYS Date of judgment: 19 February 2025 Catchwords: MIGRATION – Administrative Appeals Tribunal – Visitor visa - conclusions of the Tribunal open to it –adverse credibility findings - jurisdictional error not made out –application dismissed Legislation: Evidence Act 1995 (Cth) s 144
Migration Act 1958 (Cth) ss 36, 424AA
Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW)
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
ABT17 v Minister for Immigration and Border Protection [2020] HCA 34
ASY23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1060
AVQ15 v Minister for Immigration and Border Protection (2018) 216 FCR 83; [2018] FCAFC 133
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Fox v Percy [2003] HCA 22
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Citizenship v Lat (2006) 151 FCR 214
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225; [2013] HCA 18
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48 (2010) 243 CLR 164
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 611
Minister for Immigration and Multicultural and Indigenous Affairs v SLGB (2004) 207 ALR 12
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17
NAHI v Minister for Immigration& Multicultural &Indigenous Affairs [2004] FCAFC 10
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 7
The Republic of Nauru v WET040 92 ALJR 1080; [2018] HCA 56
Tsvetnenko v United States of America (2019) 269 FCR 225; [2019] FCAFC 74
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679
Division: Division 2 General Federal Law Number of paragraphs: 111 Date of hearing: 4 February 2025 Place: Parramatta Counsel for the Applicant: Mr Silva ( Direct Access) Counsel for the First Respondent: Mr Reilly Solicitor for the First Respondent: Elizabeth Warner-Knight (Australian Government Solicitor) Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 256 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ALT18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
19 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The application is dismissed.
3.The Applicant is to pay the First Respondent’s costs fixed in the sum of $8,371.30.
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 D HUMPHREYS
BACKGROUND
The applicant is a citizen of Fiji. She arrived in Australia on 20 February 2015 on a Visitor visa.
The applicant applied for a protection visa on 18 May 2015. She claimed to fear returning to Fiji, as her ex de facto husband would seriously harm or kill her.
On 24 November 2015, a delegate of the Minister refused to grant the applicant a visa.
The applicant sought merits review of the delegate’s decision at the Administrative Appeals Tribunal (the Tribunal), as it was then. On 11 January 2018, the Tribunal affirmed the delegate’s decision.
The applicant now seeks judicial review of the Tribunal decision. For the reasons set out below, the application is dismissed.
THE ADMINSTRATIVE APPEALS TRIBUNAL DECISION
At the Tribunal, the applicant was represented by Mr Silva, of Counsel, who appeared for the applicant before this Court.
The Tribunal noted that they had regard to available country evidence, including that which was provided by the applicant. In accordance with Ministerial Direction No. 56, the Tribunal took into account the Department of Foreign Affairs and Trade (“DFAT”) Country Information Report in respect of Fiji dated 27 September 2017 (“DFAT Report”).
The applicant’s departmental file provided to the Tribunal consisted of a letter, dated 15 May 2015 enclosing protection visa application forms, Form 80 (Personal Particulars), a statutory declaration and a supporting document.
The applicant’s claims for protection are summarised at [6] of the decision record as follows:
•The applicant was born in 1982 in Suva and is now aged 35 years. She can speak, read and write in both Fijian and English (median proficiency). Her ethnicity is native Fijian, her religion is Christian.
•From 1982 until 1993 she resided in a village, Karo Island, where she attended primary school. From 1994 to 1995 she lived at an address in Suva, continuing her primary school in Suva. From 1996 to 2005 she lived at a different address in Suva. She completed high school in Suva in 2001. Her last address in Fiji was from 2006 until February 2015; she lived in [redacted] Road, Suva.
•She had previously left Fiji in February 2005 to travel to Samoa for study, but left after one week.
•She worked from August 2005 until February 2015 as a clerk for the Suva Municipal Council.
•She commenced a de facto relationship with a (name redacted) man in March 2010 and was separated on 20 February 2015.
•Her current passport was issued on 25 November 2014.
•She left Fiji on 20 February 2015, and arrived in Australia on the same day, holding a visitor visa. The applicant has a cousin who lives in Australia.
•The reason she left Fiji was to escape from danger to her life from her de facto husband. She suffered physical harm and threats to her life at his hands in Fiji. They started to live together in 2010, and there were no major incidents until 2012, although from the start of the relationship he was controlling. He was an alcoholic and she was seriously beaten many times. She provided examples of a number of incidents from March 2012 until December 2014 where she was abused, assaulted and threatened by her de facto husband. She went to the police on two occasions in 2012 and 2014, and upon the advice of a director at her work, she went to the Fiji Women's Crisis Centre ("FWCC") for help. They recommended that she could take out a restraining order but that she cannot be protected.
•She was unable to relocate to avoid him because he would have found her and killed her.
•She left Fiji without his knowledge, and she considers them to be separated.
•If she returns, he will kill her or seriously harm her. He is angry at her for running away from him. He has told others in Fiji, who have told her, that he will harm her if she returns.
•She cannot obtain state protection because he has relatives and friends in the police and army. She would not be able to relocate because he will find her and kill her.
•The only family she declared back in Fiji was her four children. She stated that she is in contact with her first two children. Concerning her last two children with her former de facto, she is in contact with them through "the" sister.
•Her occupation is clerk, although she is not currently employed.
The applicant provided an updated statutory declaration sworn 16 October 2015, which the Tribunal summarises at [7] as containing:
an amendment of a date as to when she had been attacked, and a further claim that her de facto would force her to have sex with him, she was really frightened in his presence; he would physically abuse the children. She also said that she had been informed that her de facto husband remained angry and threatening towards her.
The applicant was assisted by Mr Silva, of Counsel, acting as a Migration Agent, who stated that the applicant’s claims are based on her being part of one or more of the following social groups [8]:
(a)Fijian women at risk of domestic violence
(b)Fijian women at risk of violence
(c)Fijian women in spousal relationship
(d)Fijian women in spousal relationship involving mistrust
(e)Fijian women in a spousal relationship involving suspicion of infidelity
(f)Fijian women.
The Tribunal referred to the delegate’s decision record which reflected that, on the applicant’s interview with the delegate held on 21 October 2015, she could not provide any evidence of her relationship with her de facto husband, evidence from the police, any medical evidence of past harm or birth certificates for her four children. The delegate still accepted that she had four children and had been in a de facto relationship before leaving Fiji, however they were not satisfied as to her claims to domestic violence.
At the Tribunal hearing held in November 2017, the applicant appeared at the Tribunal to give evidence and present arguments, with the assistance of an interpreter and in the presence of Mr Silva.
The Tribunal put information to the applicant pursuant to s 424AA of the Migration Act 1958 (Cth) (“the Act”). Mr Silva flagged with the Tribunal that the applicant would need more time to respond in writing. The Tribunal allowed the request for the applicant to consider the documents for a further time of two weeks [16].
At [19]-[21] the Tribunal instructed itself as to relevant principles as to what the applicant must satisfy the Tribunal of and what the decision maker’s role was in assessing the applicant’s claims. The Tribunal had concerns at [22] as to the applicant’s credibility, the veracity of her claims and found that the applicant’s evidence was “inconsistent, changing and not credible” about aspects central and relevant to her claims. The concerns raised by the Tribunal included:
(a)Concerns about the applicant’s delay in applying to leave Fiji and leaving Fiji once she had her passport and visa. The Tribunal put these concerns to the applicant as recorded at [23]-[26] of its decision but ultimately was not prepared to accept that the applicant could not have left Fiji earlier or borrowed funds to allow her to do so. The evidence the applicant gave was found to undermine her claims that her partner had wanted to murder her since 2014, that she needed to leave Fiji as she was in danger. This undermined her credibility.
(b)At [27] that despite the applicant leaving Fiji for her own safety, she left her “vulnerable young children” behind. The Tribunal, among other things put to the applicant that it was concerned she would leave her children behind with a man who she claimed has tendencies to be violent towards both children and females.
(c)The Tribunal stated that there were a number of inconsistences in relation to the applicant’s background which, when considered altogether, suggested that she did not have any relationships including with the abusive de facto husband or have children as she claimed [28].
(d)The Tribunal expressed concerns about the following matters; the applicant’s changing evidence as to the number of fathers of her children and their names; the inconsistencies and changing evidence about whether the father’s name appears on the birth certificates; the claim in her offshore visitor visa application that she had never been married or been in a de facto relationship and she had two children and not four and the circumstances in which she had some of her claimed children.
In considering all of the claims and the applicant’s evidence the Tribunal was not satisfied that the applicant was a witness of truth [44].
As to other matters the Tribunal had regard to, the Tribunal did not accept the applicant’s claims or deem them as true, despite there being country information provided to indicate that there is domestic violence in Fiji. The Tribunal found that while a person can struggle with recounting past harm and trauma, and can present as nervous, it could not accept that or the applicant’s use of the English language as an explanation of the difficulties her claims and evidence presented [45]-[46].
As to corroborative documents the applicant provided to the Tribunal, it did not place any weight on the letter and checklist produced by her agent in relation to the offshore visitor visa application. The Tribunal had regard to a letter produced to the delegate dated 17 April 2015 from the Fijian Women’s Crisis Centre (FWCC) and the issues put to the applicant, by the delegate in regard to the letter. The letter stated:
[Applicant’s name] has sought counselling from the Fijian Women's Crisis Centre. According to her she experienced physical, verbal and emotional abuse by her de facto. If you require further information please do not hesitate to contact us on 3313300.
The Tribunal noted various concerns with the applicant’s evidence, such that it found her evidence to not be persuasive. It observed that the letter was not an original, rather a printed version that the applicant states was emailed to her. The letter was fairly vague, and it only refers to the applicant self-reporting. At hearing, Mr Silva asked the Tribunal to call the author of the letter. While this was not agreed to, the applicant was allowed further time after the hearing for the applicant to provide more evidence if she wished to do so. On 15 November 2017, the Tribunal received an email forwarded from Mr Silva which he had received from the FWCC, which only stated that the applicant’s letter was verified by the coordinator.
The Tribunal held at [54] that it was not satisfied that any self-reporting by the applicant after she had already applied for a visa to come to Australia was reliable. No weight was placed upon the letter.
The Tribunal made the following finding at [55] as to the applicant’s credibility.
Considered cumulatively, the concerns the Tribunal holds about the applicant's credibility as discussed above lead the Tribunal to conclude that the applicant is not a witness of truth and that the applicant has fabricated accounts of events and claimed fears, upon which she has based her protection claims.
At [56]-[64] the Tribunal recorded its findings as to the applicant’s claims. The Tribunal found it was not satisfied that the applicant had an abusive partner with whom she had children, nor that she had any children, or any of the claims that flow from those claims. It did not accept that she faced harm for any reason in Fiji, that she considered she had a need to escape from Fiji, that she feared or fears returning to Fiji, that anyone seeks to harm her, or she has a fear of death or threats in Fiji. Further it made the following findings:
(a)It is likely that the applicant had engaged in relationships in Fiji but it did not accept that the applicant had experienced difficulties as a result of those relationships or her gender [57].
(b)The Tribunal could not accept that the applicant was unable to control her affairs and circumstances in Fiji [58].
(c)In considering the DFAT Report in line with the applicant’s claims and circumstances, the Tribunal found that she has not experienced domestic violence in her relationship as claimed, and although it accepted generally that there is violence towards women in Fiji, it did not accept that she faces a real chance of harm in the form of violence. The Tribunal was also not satisfied she faced a real chance of harm in the form of discrimination because she is a woman or a member of any particular social groups referred to by Mr Silva [59].
(d)The applicant had sought to delay the hearing for six months on the basis of her treatment for tuberculosis, but the Tribunal did not accept that she was adversely affected in presenting her evidence as a result of any medical condition and further that she faces harm for any medical reasons [60].
(e)The applicant did not make any claim that she faced harm on the basis of her religion [61].
(f)The applicant was prepared to make false and changing claims to support her visa application. The Tribunal did not accept she faced any threats or harm in Fiji or she has had any adverse interest in her since she has been in Australia, or that she fears harm as claimed by her agent as a member of any particular social group [62].
The Tribunal rejected all claims by the applicant and found that she did not have a well-founded fear of persecution [64].
The Tribunal was satisfied that the applicant did not meet the refugee criterion in s 36(2)(a) of the Act and the alternative criterion in s 36(2)(aa) of the Act,
GROUNDS OF JUDICIAL. REVIEW
The applicant’s sole ground of judicial review is contained in a Second Further Amended Application filed on 17 October 2024 and contains one ground of review and a total of 12 particulars. The ground is as follows:
Ground 1: Jurisdictional Error Due to Legal Unreasonableness and Skewed Credibility Findings
The Tribunal committed a jurisdictional error by acting in a legally unreasonable manner, specifically:
(A)Perspective on Domestic Violence Victims: The Tribunal failed to assess the claimed events and fears objectively from the perspective of how a potential domestic violence victim would behave. Instead, it treated the applicant like any other protection visa applicant.
(B)Unrealistic Precision and Standards: The Tribunal unreasonably required the applicant to provide an unrealistic degree of precision in her statements and held her to an overly high standard regarding her level of knowledge and recollection. This led to adverse credibility findings that were not justified.
The 12 particulars of the ground of judicial review include complaints about the Tribunal’s adverse credibility findings, giving no weight to documents produced at the Tribunal hearing, failing to make an inquiry with the Australian High Commission to verify the authenticity of the travel agent’s check list, a complaint about a telephone call the Tribunal made to the FWCC as noted at [52] of the decision record, together with the Tribunal failing to follow guidance from the Courts to consider the disadvantages faced by refugee applicants and to fairly assess their credibility.
The Court notes that the particulars in many regards consist of separate grounds of judicial review and are not strictly particulars.
THE APPLICANT’S SUBMISSIONS
In addition to providing the Court with written submissions, Mr Silva made lengthy oral submissions.
Mr Silva, in his oral submissions, asked the Court to take judicial notice of the following eight propositions that relate to domestic violence:
(a)There are many reasons why a victim may find it difficult to leave an abuser quickly;
(b)Leaving an abusive relationship is difficult, dangerous and requires careful planning and support;
(c)Victims must often act in secrecy to avoid danger;
(d)The period leading up to and following separation is often the most dangerous time for the victim;
(e)Even strong-minded, educated, and successful women have found it difficult to cope with domestic violence;
(f)It is impossible to protect a victim from an abuser who is willing to kill both the victim and herself;
(g)Victims of domestic violence do not always act in a slavish manner to avoid abuse. The basic human desire for autonomy and freedom often compels them to seek moments of independence, even in small ways; and
(h)Victims of domestic violence may resort to desperate measures to escape abuse.
The above propositions were sourced from a ‘Lifeline’ information service ‘Tool Kit for Domestic Violence’ last revised in May 2010. The Court notes at this juncture that while some of the propositions appear to be direct quotes from the Tool Kit, some appear to be generalisations on the material contained within the Tool Kit.
Ground one is a complaint that the Tribunal committed jurisdictional error by acting in a legally unreasonable manner specifically in regard to:
(a)Their perspective on domestic violence victims and their assessment of the claimed events; and
(b)The unrealistic precision and standards they required of the applicant in relation to her knowledge and recollection.
In regard to the first error the Tribunal made, to understand domestic violence and assess the events from the perspective of how a potential domestic violence victim would behave, the applicant submits that the Tribunal failed to look at the matter in a reasonable way. That being, understanding the special vulnerabilities of a genuine domestic violence victim and the unusual position victims of domestic violence with young children find themselves in.
Counsel for the applicant noted the development of societies and Courts in appreciating these vulnerabilities and pointed to the effects of coercive control and its impact on the victim. He referenced the Crimes Legislation Amendment (Coercive Control) Act 2022 as an instrument passed to deal with that specific issue.
The applicant contends that the Tribunal took an extreme attitude in dealing with a potential domestic violence victim and referred to the Tribunal transcript annexed to the Affidavit of the applicant affirmed 5 June 2018. It was submitted that at page 40 – 41 indicated the Tribunal faulted the applicant for not obeying her partner fully and doing everything he demanded. The applicant submits that the Tribunal “expected the applicant to show total servitude (like a slave) to avoid domestic violence” (AS,10).
It was submitted that the Tribunal was reluctant to understand the multitude of difficulties faced by a potential domestic violence victim. The Tribunal’s adverse credibility conclusion was based on four topics, summarised by the applicant’s Counsel as:
(a)Her leaving Fiji to come to Australia (CB196[23]) to CB197 [26]);
(b)Her leaving the children behind (CB197[27]);
(c)The inconsistency regarding the applicant’s background (CB197[28]) to CB201[44]); and
(d)Corroborative documents, and general country information about domestic violence CB 201[45] to CB203[54].
The applicant advanced individual arguments about these four topics to demonstrate the errors in the Tribunal’s reasons. As to the first topic raised by the applicant, the Tribunal had raised adversely concerns that the applicant took three months to apply for an Australian visa.
Firstly, that she was organising a letter of invitation from her cousin. The Tribunal failed to ask the applicant how difficult and time consuming the process of obtaining the letter of invitation from her cousin was, nor the financial obligation, and interference with her cousin’s own family life. Further the Tribunal did not ask if the cousin was willing to undertake the financial responsibility.
Secondly, that the applicant had to organise money for the travel. The applicant gave oral evidence to the Tribunal that she came to Australia with no money at all; (Tribunal transcript,14). This demonstrated the “dire financial situation” the applicant was in and the effort to get money.
Thirdly, that she had to hide her travel plans from her de facto husband, therefore she dealt with organising her travel outside of Fiji without raising any suspicion by her husband.
The Tribunal also noted adversely that it had taken the applicant two months to leave Fiji after obtaining her visa. The applicant argues that this was an error as she left within one month, having received her visa on 19 January 2015 and arriving in Australia on 20 February 2015. Further, the applicant’s circumstances surrounding her departure, being that, one of her children was sick, she found it hard to leave her four children, had to go and see her father and her busyness with work demonstrate a “complicated set of facts” that women undergoing domestic violence would find difficult. This included leaving her children behind, trying to organise a safe and secure place for them to stay and the potential difficulty of having to leave them for a very long time.
As to topic two, the applicant leaving the children behind, it was submitted that the Tribunal could not understand that the applicant had no choice. The applicant had stated that the de facto husband was only violent to the two boys, who were his stepchildren, and would not be violent to his two daughters. It was his threats to the applicant that required her to leave the country. The applicant’s counsel submits that “It was obvious, but not said was that she could not bring the children born to the de-facto to Australia without his agreement” (AS 19). Further, because they were his children, she did not have concerns that he would hurt them. The Court notes that these matters do not appear to have been put to the Tribunal.
The Tribunal raised at [28] to [44] of its decision, the inconsistencies regarding the applicant’s background. Under topic three, the applicant addresses the four inconsistencies highlighted by the Tribunal.
As to the number of fathers of her children and their names, it is submitted that the applicant corrected the information she had given to the delegate, to the Tribunal and in this way, she disclosed the information and did not have any motive to lie. The applicant disclosing that her first two children were born to one individual and then later correcting herself to the Tribunal that the two children were born to two individuals should not have any bearing on her credibility. Further, the applicant providing a shortened surname for the younger children and not the full surname is not as important an issue as the Tribunal makes it to be, as the applicant contends it is not unusual that people with long surnames will use a shortened version.
In regard to inconsistent and changing evidence about the father and de facto husbands name appearing on the birth certificate the applicant submits that these “finer details…may not be that critical.” Due to the applicant’s “complex and difficult life”, her articulation and precision should not be held against her.
The Tribunal considered at [35] – [36] the applicant claimed in her offshore visitor visa application that she had never been married and only had two children, not four. It was submitted that the important question to be considered is whether she had a genuine threat to her life. The applicant being prepared to lie does not undermine her claims of fear as she has already admitted that she lied to get out.
The applicant’s Counsel argues that the applicant did not disclose the de facto husband and children, as the application process for the visa required a letter from the de facto if she wished to include the children. As she was escaping Fiji from the de facto, she did not disclose this information as everything had to be done without his knowledge. The Tribunal in this regard made distinctions between married and de-facto persons, suggesting that the “list” provided by her travel agent only provided that married persons and non-travelling spouses were to provide consent letters. The requirement still applied to de-facto couples as supported by a letter from the travel agent.
The Tribunal was factually incorrect by stating that the applicant blamed the person who completed the form, when instead she explained what the travel agent/person who had given her the information had said which led to her not disclosing information about her de-facto and the children.
The applicant alleges that the Tribunal’s findings as to the circumstances in which she had some of her children is “harsh”. The information surrounding her three relationships and four children is “complicated” such that it would be unfair to hold her evidence about the time frames in which she conceived the children, to such a high standard. The Tribunal goes “ too far” in attempting to make credibility findings against the applicant for not attending at the hospital on the night of the assault she claims occurred [CB, 73].
The applicant addresses the Tribunal’s findings as to the corroborative documents and general country information about domestic violence, under ‘topic four’.
The Tribunal did not place any weight on the letter and checklist provided by the travel agent as they considered that these were false assertions. The applicant argues that the applicant disclosed that the false assertions were the only way to escape from a life-threatening situation in Fiji. Further, they did not ask the applicant to confirm if the travel consultant she had disclosed completed her application was a friend, before continuing to make a credibility finding. The applicant suggests that the credibility of the checklist would have been confirmed via a “simple email” to the Australian High Commission in Suva which would have confirmed the genuine nature of the checklist and whether those in a de-facto partnership were also required to produce a letter from the partner.
The Tribunal’s rejection of the birth certificate may have been due to the surname being in the shortened or lengthened version and this was not justified. The applicant argues that these documents are independent of the applicant as they are provided by the State and the Tribunal was “pedantic” in how they dealt with this issue.
As to the letter from the FWCC and the Tribunal’s concerns as to the applicant’s self-reporting, the applicant submits that the applicant’s visa to come to Australia had not yet been issued (Tribunal hearing transcript 32:32-35). Further, there was no indication that the visa would be issued.
The applicant approached the FWCC two or three days after an incident that occurred on 13 December 2015. She visited under advisement from the Director of the company where she worked. The Tribunal failed to deal with the facts in relation to this. The Tribunal continued on to call the author of the applicant’s FWCC letter. Mr Silva takes issue with the manner in which the Tribunal spoke to this person. However, the Tribunal acknowledging that the letter was verified by the FWCC coordinator proves that the applicant did contact the centre.
It was submitted that the Tribunal was harsh in dealing with the applicant’s evidence and that administrative decision makers should exercise caution when making credibility findings in relation to refugee claimants: (see: AVQ15 Minister for Immigration and Border Protection [2018] FCAFC 133 at [23] and credit findings more generally in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 (Sundararaj) at [5]). The applicant also referred to the Tribunal’s ‘Guidance on the Assessment of Credibility’ to crystallise the argument that the Tribunal should be conscious of the disadvantages faced by refugee applicants and as such should exercise a degree of fairness in their assessment of credibility.
THE FIRST RESPONDENT’S SUBMISSIONS
The applicant needs to demonstrate that the Tribunal’s credibility finding was not open to it, based on the principles of Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 611 at [78], [130-131] and AVQ15 v Minister for Immigration and Border Protection (2018) 216 FCR 83; [2018] FCAFC 133 at [40-41] and an emphatic disagreement with the Tribunal’s reasonings does not make out a ground of illogicality (SZMDS at [124]).
The first respondent argues, citing The Republic of Nauru v WET040 92 ALJR 1080; [2018] HCA 56 at [26], where the Court quoted with approval from W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64] that a Court should not set aside a credibility finding by a review body merely because it thinks the probabilities are against or even strongly against that finding.
A finding that the Tribunal’s conclusions are legally unreasonable must be judged on the basis of materials before them; (see: ASY23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1060 at [25]). It was submitted that the applicant wishes to lead evidence of matters that were not before the Tribunal, evidence of which appears irrelevant to the sole ground relied upon and is therefore inadmissible.
The first respondent relies on the principle advanced in SZMDS at [96] that allegations of legal unreasonableness should not be sought to achieve merits review. The applicant’s submissions do not show that the Tribunal’s reasonings were not open to it and instead seek merits review.
The applicant cannot demonstrate legal unreasonableness by assuming the truth of her claims on the instances that the Tribunal found adversely to her claims. The Tribunal made a credibility finding based on a cumulative assessment of the problems with the applicant’s evidence.
The Tribunal was rational in finding that the applicant would have left Fiji earlier if her claims to fear being murdered were true and evidence of her delay to leave Fiji was therefore problematic. The applicant’s submissions repeat the claims presented to the Tribunal as if they were the truth but this does not rise to demonstrated legal unreasonableness. Reasonable minds could in fact differ when considering if a person threatened with murder would not act more quickly, therefore the Tribunal’s reasonings was not legally unreasonable ( SZMDS at [130-131].). Although the applicant alleges the Tribunal was factually incorrect in finding that she left two months after getting the visa when in fact it was one month, the first respondent submits that the Tribunal was entitled to accept the applicant’s own evidence (Tribunal transcript: page 17).
Additionally, the Tribunal’s reasoning that if the applicant’s claims were true, she would not leave her two daughters behind was rational.
The inconsistencies noted by the Tribunal at [28]-[44] of its decision are objectively significant. The Tribunal could reasonably assume that the applicant would present consistent evidence if she was truthful. The applicant presented changing evidence on why she claimed only two children in her visitor visa application, and confusing evidence as to why she did not attend at a hospital after being allegedly beaten. The applicant’s submissions do not deny the difficulty in the evidence of the applicant but seek to “downplay or excuse them” which is an appeal for merits review.
The applicant’s explanation for the errors in her visitor visa application to the delegate was that her friend filled in the application, however before the Tribunal she claimed it was done by an agent and she would have needed a signature from the de facto partner if one was declared. These explanations are different as held by the Tribunal at [37] of its reasons.
Although the applicant submits that the Tribunal should have been more sympathetic with the applicant given her domestic violence claims, the Tribunal accepted the presence of domestic violence in Fiji and the effects of past trauma when giving evidence, but it did not accept that this was applicable to the applicant. The Tribunal did turn its mind to whether the deficiencies in the applicant’s evidence were a result of her past harm. The applicant’s disagreement with the reasoning is an appeal for merits review.
The Tribunal did not give weight to the FWCC letter and it was entitled to do so, as per its reasoning at [47]-[54]. The weight given to the letter was a matter for the Tribunal; (Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48 (2010) 243 CLR 164 at [33].)
The applicant submitted that the applicant was not granted the visa when she made the report to the FCWCC, however, she did have an intention to come to Australia at the time in December 2014, as she had applied for the visa in November 2014.
The first respondent submits that the applicant must show that the Tribunal’s ultimate decision is legally unreasonable, citing MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [33]; Tsvetnenko v United States of America (2019) 269 FCR 225; [2019] FCAFC 74 at [101].
The Court stated in AVQ15 at [41] that
Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result (such as, for example, where it is but one of several findings that independently may have led to the ultimate decision).
It is submitted that in this case, the adverse credibility findings made by the Tribunal were based on numerous independent difficulties within the applicant’s evidence.
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
It is well established the Tribunal is not required to accept uncritically any and all claims made by an applicant: (see: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451).
Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out: (see: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348).
It is well settled that the country information and the weight it gives to that information is a matter for the Tribunal: (see: NAHI v Minister for Immigration& Multicultural &Indigenous Affairs [2004] FCAFC 10).
It is for the applicant to satisfy the Tribunal Authority, being the relevant decision maker, that the applicant meets the criteria for being a refugee:(see: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]).
Further, it is for the applicant to provide his/her evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction: (see: Minister for Immigration and Citizenship v Lat (2006) 151 FCR 214 at [76]). The Tribunal is under no obligation to “afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence”:(see: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”) at [82]).
It is well established that the Tribunal enjoys an advantage of fact to test the veracity of evidence given orally by observing the witness: (see: Fox v Percy [2003] HCA 22 at [41]; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [62]).
There is no general obligation on a Tribunal to investigate an applicant’s claims: (see: Minister for Immigration and Multicultural and Indigenous Affairs v SLGB (2004) 207 ALR 12 at [43]). The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire. The exception is where there is an obvious failure by the Tribunal to make an enquiry about a critical fact, the existence of which is easily ascertained: (see: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25]).
Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: (Li) at [28], or where a decision has been made that lacks an “evident and intelligible justification” ;(Li at [76]). The test for unreasonableness is “stringent” and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker: (see: Li at [30], [113]).
In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11] Allsop CJ said the following concerning a review of a decision for legal unreasonableness:
The task is not definitional but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, insufficiently lacking rational a foundation, or an evident or intelligible justification, or in being plainly unjust arbitrary capricious or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as to the exercise of that power. The descriptions of a lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
It is appropriate first to deal with the submission that the Court should take judicial notice of the eight propositions cited by Mr Silva. Judicial notice of matters regarded as common knowledge is governed by s 144(1) of the Evidence Act 1995 (Cth) which states as follows:
(1)Proof is not required about knowledge that is not reasonably open to question and is:
(a)Common knowledge in the locality in which the proceeding is being held or generally; or
(b)Capable of verification by reference to a document the authority of which cannot be reasonably questioned.
With all due respect to Lifeline, the Court is not satisfied that a Lifeline Domestic Violence Tool Kit, last revised in 2010, is a document that fits within the definition of a document ‘the authority of which cannot be reasonably questioned’. In any event, not all of the propositions cited by Mr Silva can be readily referenced to that document, only two appear to be direct quotes from that document.
As a result, the Court is not prepared to take judicial notice of the eight propositions put by Mr Silva. Having said that, the Court is well aware of the prevalence of domestic violence within the community, the different types of behaviour that fall within the definition of domestic violence and its impact on victims. Where a person claims that they have been the victim of domestic violence, it is important that their evidence be considered in a ‘trauma informed ‘manner.
The Court notes that in considering the evidence of the applicant, at [45] – [46], the Tribunal accepted ‘that there is domestic violence in Fiji and there have been times when state protection has not been of assistance.’ The Tribunal also specifically noted that ‘a person can be nervous, and recounting past harm and trauma can lead to distress and difficulties in recall’ but it was not prepared to accept this was ‘an explanation for the significant difficulties with her claims and evidence’.
The sole ground of judicial review is expressed as a claim of legal unreasonableness and skewed credibility findings. This is then expressed as a legally unreasonable perspective on domestic violence victims and an expectation of unrealistic precision in relation to her evidence. What follows is a list of 12 matters where the applicant submits the Tribunal was unreasonable.
In considering these matters, the Court notes that the Tribunal had the advantage of seeing the applicant give evidence and is thus in a better position than the Court to assess the applicant’s credibility. Further, the test for legal unreasonableness is ‘stringent’ and a claim of legal unreasonableness cannot be used to require the Court to undertake merits review of the evaluative judgements of the Tribunal.
First, the Court is satisfied that the Tribunal was fully aware of the claim by the applicant that she was a victim of domestic violence. At [46] the Tribunal specifically cautioned itself as to the issues faced by a person who has suffered past trauma, and having difficulty in recalling matters. However, the Tribunal was not satisfied this matter could explain the significant variations in the applicant’s evidence. That was a conclusion that was open to the Tribunal on the basis of the evidence before it and for the reasons it gave.
The Court does not accept the reasoning of the Tribunal was ‘extreme’ or that it had an unrealistic expectation on the consistency required from the applicant in regard to her evidence. The Court accepts the first respondent’s submission that the applicant seeks to proceed on a basis of assuming the truth of all of the applicant’s various claims, and then claims legal unreasonableness on the basis they were not accepted. What must be looked at is the reasoning process followed by the Tribunal in coming to the conclusions it has. If the reasoning process does not support the factual conclusions, then a finding may be said to be legally unreasonable.
Reference is made by the applicant to the Tribunal’s ‘Guidelines on the Assessment of Credibility’ with a submission this was apparently not applied in this case. While the Guideline is not specifically referred to in the Tribunal’s reasons, there is no indication that the Tribunal did not apply it in its consideration of the applicant’s evidence, noting the statement at [46]. It was the totality of the inconsistencies in the applicant’s evidence that allowed the Tribunal to conclude she was not a witness of truth.
I now turn to each of the pleaded particulars. The first particular is a claim that the Tribunal failed to understand the unique challenges faced by victims of domestic violence and the special vulnerabilities of the applicant as a claimed victim of domestic violence. This particular seeks to challenge the evaluative process undertaken by the Tribunal. This claim does not point to any particular matter where it is said the Tribunal committed jurisdictional error, rather it is a general statement of vehement disagreement with the Tribunals factual findings.
The second particular suggests the Tribunal expected the applicant to behave in total servitude towards her de-facto partner. Reference is first made to the transcript of the Tribunal hearing at p28 at 35-40. The applicant claimed to be in a relationship where she was controlled by her de-facto and under a threat of constant violence. Yet in that exchange the applicant recounts telling her de-facto that despite his demand that she come home straight away, she told him ‘’Well, no, I’m coming home in an hour’. This answer was given in circumstances where the applicant had claimed her de-facto was already violent.
At page 40 at 20-33 the applicant again gives an account of refusing to obey her de-facto. Again, there is a further exchange at page 41 at 5-30 where the applicant again states she defied her de-facto. The Court does not accept these exchanges indicate the Tribunal required the applicant to act in ‘total servitude ‘ to her de-facto. Rather the Tribunal was legitimately exploring the applicant’s evidence.
The third particular is again a general claim of vehement disagreement with the Tribunals ultimate findings.
The fourth particular takes issue with four specific factual findings regarding:
(a)The applicant’s departure from Fiji;
(b)Leaving her children behind;
(c)Inconsistencies as to her background; and
(d)Corroborative documents and general country information.
It is noted and conceded by the Minister that the Tribunal made a factual error in finding that the applicant left two months after being granted her visa when in fact it was only one month. The Court accepts that the applicant was granted her visa on 19 January 2015, and she arrived in Australia on 20 February 2015.The Court is not satisfied that this error was so material that it rises to the level of jurisdictional error, given the multitude of other adverse credit findings. In coming to this conclusion, the Court has been conscious of the nonlinear nature of credit findings, and the potential for one adverse credit finding to infect other adverse credit findings.
The Tribunal noted at [23] and [26] that the applicant claimed that she had been in fear of being murdered since August 2014, yet did not apply for a passport immediately and then even after she obtained her passport, she did not immediately apply for a visa. The Court is satisfied the Tribunal provided adequate reasons for coming to the adverse credibility conclusion that it did in this aspect.
The applicant then takes issue with the concerns expressed by the Tribunal at [27] as to her explanation as to why she left her children behind in Fiji, including two children with her de facto. The Court does not consider this reasoning to reach the stringent level of legal unreasonableness. Again, this submission merely takes issue with the evaluative process followed by the Tribunal.
The next issue relates to claims about inconsistencies regarding the applicant’s background. These include at [29] the number of fathers to her children. The Tribunal’s finding that it would have expected the applicant to be able to give consistent information about who were the fathers of her four claimed children, and that the inconsistencies undermined her credibility, was a finding that was open to the Tribunal on the evidence before it. The same can be said at [30] in relation to the inconsistency in relation to the name of one of her children. The failure to provide the birth certificates of her first two children was also a legitimate matter for the Tribunal to take into account in relation to the applicant’s overall credibility.
The same can be said in relation to the inconsistent changing evidence as to whether the father’s name appeared on the birth certificates at [32] as well as at [35] the applicant’s clear false evidence in her visitor visa application that she had never been married or in a de facto relationship, and that she had only two children not four.
At [47] – [54] the Tribunal gave consideration to the documentation provided. It was not prepared to give weight to the letter and checklist produced as well as the two birth certificates that were produced. The weight to be given to particular aspects of evidence is a matter for the Tribunal. The Court is satisfied there was a rational basis for the Tribunal to come to the conclusion that it did.
The Tribunal then set out in some detail its concerns relating to the applicant’s attendance at the FWCC. The Tribunal noted that the applicant did not approach the FWCC until after she had applied and obtained her passport and applied for her visa. Somewhat unusually, at [53] the Tribunal records that during the course of the hearing the Tribunal communicated with the author of the letter from the FWCC and noted that even taking into account issues relating to privacy, that communication did not assist. Further, the Tribunal noted that the letter was ‘verified” by the coordinator of the FWCC. The Court is satisfied that the finding gave no weight to the FWCC letter, taking into account that it simply indicated the applicant had self-reported domestic violence, was open to the Tribunal for the reasons it gave.
The next particular complains that the Tribunal at [47] made a jurisdictional error by giving no weight to a letter from the travel agent, a checklist produced by the travel agent and birth certificates for two of the children claimed by the applicant as being fathered by her de facto.
Again, the weight to be given to particular pieces of evidence is a matter for the Tribunal. The Court is satisfied that the Tribunal gave a logical basis for the conclusion that it arrived at and its conclusion not to give weight to these documents for the reasons it gave. Again, this complaint merely expresses vehement disagreement with the conclusions arrived at by the Tribunal and does not rise to the stringent level required for legal unreasonableness.
The next particular complains that the Tribunal failed to make a simple enquiry by emailing the Australian High Commission server to verify the authenticity of the travel agents checklist and to confirm whether a letter from the applicant’s de facto was required. As set out above, the duty of the Tribunal was to review the evidence provided by the applicant to determine whether or not she met the criteria for the grant of the visa sought. No evidence has been presented that indicates that the Tribunal were asked to undertake this enquiry. No jurisdictional error arises from the failure to make this enquiry.
The next particular complains that the Tribunal failed to accept the applicant reported to the FWCC. The Court does not accept this assertion. The Tribunal gave no weight to the document as evidencing that the applicant had experienced domestic violence, noting that it was made after she had applied for her visa, and was based on self-reporting only, there being no other supportive evidence. The Court does not accept that the Tribunal did not think the letter was genuine, rather that it simply added no weight to the applicant’s claims of experiencing domestic violence.
The next two particulars complain firstly that the telephone call the Tribunal undertook with the FWCC letter writer in Fiji was unsatisfactory. The Tribunal was under no obligation to make the telephone call. The complaint that questions were asked without courtesy at a time when the recipient of the telephone call was travelling in Fiji and it was raining, do not point to jurisdictional error. Further, in my view the Tribunal accepted the letter was genuine, but simply gave it no weight in terms of the claims made by the applicant as to her experiencing domestic violence.
The next particular complains that at [49] the Tribunal wrongly criticised the advice given by the FWCC coordinator. A fair reading of [49] indicates that it was the delegate, not the Tribunal who had significant concerns about why it was that the applicant in the past had never approached the FWCC. Given country information which outlined its role, including following up on a lack of action by police and to provide practical support services for women and children who are the victims of domestic violence, they advised the applicant there was nothing they could do and that the applicant’s intention to travel to Australia was the best option.
In the next paragraph, the Tribunal noted that by the time the applicant approached she had already made up her mind to travel to Australia, that being the case, it did not understand why the applicant would have approached the FWCC. That conclusion was open to the Tribunal on the evidence before it and the reasons it gave. The Court does not accept that the Tribunal failed to understand the issue, as alleged in the particulars.
The next particular alleges the Tribunal erred in finding the applicant had been able to control her affairs in Fiji and showed an inability to understand the complex issue she faced when leaving the children behind to escape a violent situation in which the de-facto had total control over the applicant.
This finding was but one of a number of findings which indicated the Tribunal did not accept the evidence being given by the applicant. The Tribunal found it inconsistent that, if the de-facto was in ‘total control’, that the applicant would have been able to organise a passport, visa, together with enough money to fund her travel to Australia. This was a finding that was open to the Tribunal on the evidence before it and for the reasons it gave.
The last particular complains that the Tribunal failed to follow guidance from the Courts to consider the disadvantages faced by refugee applicants and fairly assess the credibility. The Tribunal specifically referred to the difficulties faced by victims of trauma and the impact that may have on the evidence. The Court is satisfied the Tribunal clearly took that into account in its overall assessment of the applicant’s evidence. There was no evidence to indicate the Tribunal did not take into account the relevant guidelines in assessing credibility, particularly in matters where the witness may have experienced trauma. The Court is satisfied that the Tribunal engaged with the evidence and was both careful, thoughtful and reasonable in coming to the adverse credibility conclusions that it did. Those conclusions do not rise to the stringent level required to show legal unreasonableness.
Accordingly, the Court is not satisfied that the sole ground of judicial review together with the associated numerous particulars have merit. The application should be dismissed.
I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 19 February 2025
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