ANE18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 995

Federal Circuit and Family Court of Australia

(DIVISION 2)

ANE18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 995

File number(s):

SYG 277 of 2018

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

28 November 2022 

Catchwords:

MIGRATION – Administrative Appeals Tribunal – Protection visa – whether decision unreasonable, irrational or illogical – whether there was jurisdictional error.

Legislation:

Migration Act 1958 (Cth) s 5

Cases cited:

AAI20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1252

Abebe v Commonwealth of Australia (1999) 197 CLR 51

ABT18 v Minister for Immigration and Border Protection [2020] HCA 3

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133

BAO18 v Minister for Home Affairs [2019] FCA 965

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

DVO16 v Minister for Immigration and Border Protection [2021] HCA 12

Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875

Fox v Percy [2003] HCA 22

Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

Minister for Immigration v Li (2013) 297 ALR 225

NAIS v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2005) 228 CLR 470

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347

W168/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 538

W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89

WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Division:

Division 2 General Federal Law

Number of paragraphs:

88

Date of last submission/s:

8 November 2022

Date of hearing:

8 November 2022

Place:

Parramatta

Counsel for the Applicant:

Mr Albert

Counsel for the Respondents:

Mr Reilly

ORDERS

SYG 277 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ANE18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE HUMPHREYS
DATE OF ORDER:	28 november 2022

THE COURT ORDERS THAT:

1.A writ of certiorari issue, quashing the decision of the Second Respondent dated 17 July 2017.

2.A writ of mandamus issue, directing that the Second Respondent re-determine the decision made on 17 July 2017 according to law.

3.A writ of prohibition, restraining the First Respondent, or the First Respondent’s employees, officers, delegates or agents, from acting upon or giving effect to the Second Respondent’s decision of 17 July 2017.

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 HUMPRHEYS

Introduction

1. The applicant is a citizen of Lebanon. She is Sunni Muslim by religion and comes from Tripoli. She first came to Australia on 17 June 2010 as the holder of a Class 300 Prospective Spouse visa (“Spouse visa”). On 9 November 2010, the applicant lodged an application for a Class 820 Partner visa (“Partner visa”).

2. On 21 June 2013, a delegate of the Minister for Immigration (“the delegate”) refused the applicant her Partner visa. The applicant sought merits review of this delegate’s decision at the then Migration Review Tribunal (“MRT”). The MRT found that it had no jurisdiction to hear that application as it was not lodged within the prescribed time period.

3. On 29 July 2014, the applicant lodged an application for a Protection visa. A different delegate refused to grant the applicant a Protection visa on 20 March 2015.

4. The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 17 July 2017, the Tribunal affirmed the decision not to grant the applicant a Protection visa. The applicant now seeks judicial review of the Tribunal decision.

5. Leave for an extension of time for the filing of the application for judicial review was previously granted by the Court (differently constituted) on 23 August 2022.

   The ADMINISTRATIvE APPEALS Tribunal Decision

6. The Tribunal noted at paragraph 21 of the decision record that the basis of the applicant’s claims to fear harm had shifted over time. The applicant’s initial claim, lodged in July 2014, was that she feared serious harm if returned from Alawi and Sunni Muslims because of ongoing sectarian violence in her neighbourhood Tripoli. At the applicant’s Departmental interview in November 2014, she claimed it would be the Alawi’s who would harm her as she was Sunni Muslim.

7. The Tribunal found that the applicant also introduced new claims that she needed protection as she had no family in Lebanon to support her and ‘life would be hell’ as she was a divorced woman.

8. At the Tribunal, the applicant’s claims centred on fear from her family in Lebanon over her unmarried relationship with her current partner and having his child out of wedlock.

9. The applicant’s complicated relationship history is set out at various places within the decision record. The applicant arrived in Australia on a Spouse visa. After arriving in Australia, she decided not to proceed with that marriage. On 9 November 2010, she applied for a Partner visa with another man, FA. No legal marriage ceremony or wedding took place but they had a ‘family gathering or religious wedding’. This marriage lasted only one month or so until they separated.

10. In April 2013, while awaiting the outcome of her Partner visa application with FA, the applicant legally married AS. She became pregnant to him, but later miscarried. In late 2014, the applicant claimed that she was violently attacked by her husband AS. She reported the matter to police and received a court protection Apprehended Violence Order against AS.

11. The applicant separated from AS, and shortly thereafter but gave birth to a daughter to AS in October 2015. There are Court orders in respect of that child, who is an Australian citizen, regarding parenting. The applicant and AS divorced in October 2016.

12. In June 2016, the applicant entered into a new relationship with GB, three months after meeting him.  She gave birth to a son with GB in December 2016. The Tribunal was not prepared to accept the applicant’s claim to fear harm in Lebanon due to her having a child out of wedlock and that she was not willing to remarry because of the experience of violence in her first marriage.

13. At paragraph 20, the Tribunal found that the applicant was not a truthful and credible witness. In reaching that conclusion, the Tribunal had regard to inconsistencies in her evidence, the implausible nature of key aspects of her claims. The Tribunal found the applicant’s claims for protection were contrived to achieve a migration outcome

14. Again at paragraphs 31 to 32, the Tribunal found that it ‘considered together’ that the applicant was not a truthful and credible witness. Rather, her sole purpose has been to achieve a migration outcome. The Tribunal was not satisfied that if she returned to Lebanon she would face a risk of serious harm from her family or anyone else over her relationship with her current partner, being a divorced woman or any other reason.

15. At paragraph 35, the Tribunal considered that, if removed to Lebanon, this would involve separation, temporarily or permanently, from one or both of her children and this may involve mental pain or suffering. The Tribunal however, was not satisfied this mental pain or suffering met the definition in s 5(1) of the Migration Act 1958 (Cth) (“the Act”) such that protection was warranted.

    Grounds of Judicial Review

16. The sole ground of judicial review now relied upon is set out in an Amended Initiating Application filed with the Court on 16 August 2022. It is as follows verbatim:

    1.The Tribunal’s decision was infected by jurisdictional error by reason that the Tribunal relied upon findings adverse to the credibility of the Appellant which findings were legally unreasonable.

17. The Court notes that no particulars are supplied in the Amended Initiating Application in support of this sole ground of judicial review. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal: (see; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]).

18. Given that there are written submissions before the Court which identify the precise matters complained about, the Court does not propose to dismiss the ground of judicial review for want of particulars.

19. It is to be noted that the submissions involve a paragraph by paragraph detailed refutation as to every factual conclusion arrived at by the Tribunal. Such an approach has dangers in that it implicitly invites the Court to undertake merits review rather than judicial review. Such an approach also involves a consideration of the Tribunal decision record with an ‘eye keenly attuned to error’: (see; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).

    Consideration

20. The Court, in considering the matter, was very mindful not to fall into the trap of impermissible merits review and to read the Tribunals decision record as a whole and not seek to become immersed in the minutiae of every word and sentence of the Tribunal in an effort to discern jurisdictional error.

21. 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.

22. It is well established that 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]).

23. 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 (1992) 34 ALD 347 at [348]).

24. It is for the applicant to satisfy the Tribunal, 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] (“Abebe”)).

25. Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: (see; Minister for Immigration v Li (2013) 297 ALR 225 (“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] and [113]).

26. In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 (“Stretton”) at [9]-[11] Allsop CJ said the following concerning a review of a decision for legal unreasonableness:

    [9] … The terms, scope and policy of the statute and the fundamental values that attend the proper exercise of power – a rejection of unfairness, of unreasonableness and of arbitrariness; equality; and the humanity and dignity of the individual – will inform the conclusion, necessarily to a degree evaluative, as to whether the decision bespeaks an exercise of power beyond its source.

    [10] This concept of legal unreasonableness is not amenable to minute and rigidly‑defined categorisation or a precise textual formulary…

    [11] … 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, in sufficiently lacking rational 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 an exercise of that power.  The descriptions of the 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.

27. In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”). The Court concluded at [131] that it was insufficient that different minds might reach different conclusions on a jurisdictional fact and that the test for illogicality or irrationality:

    … must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based.  If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

28. Counsel for the applicant submitted that the above must be read in the context of later cases, such as Stretton. Counsel for the first respondent submitted that SZMDS was still good law as regards fact finding by the Tribunal. The Court is of the view that SZMDS is still good law.

29. Credit findings may be susceptible to challenge on grounds of legal unreasonableness like any other finding. In relation to claims that the Tribunal was unreasonable in relation to the credit findings it came to, a Court, exercising judicial review, needs to be cautious. It is well established that a 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]; ABT18 v Minister for Immigration and Border Protection [2020] HCA 34 at [62]).

30. In considering a challenge to credit findings, in BAO18 v Minister for Home Affairs [2019] FCA 965, the following was said at [55]:

    It may be accepted that the individual components of a cumulative finding should not be weighed as if each one must be capable of supporting the final conclusion, but a cumulative finding is only as good as the individual findings lying beneath it. The Authority said (at [21]) that considered cumulatively, the inconsistencies it identified lead to the conclusion that the appellant was not recalling a genuine personal experience in relation to his circumstances and the events that led to his decision to leave Sri Lanka. However, many of the purported inconsistencies on which it relied either do not exist or are so minor that they cannot form a rational basis for that finding. In my view such inconsistencies as may be fairly said to be open to the Authority to find do not provide a valid basis for the adverse credibility finding it made. Where a decision-maker relies on intermingled findings or matters in coming to a conclusion and there is no proper basis for one more of the findings, jurisdictional error may result: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at [74]; CGA15 v Minister for Home Affairs [2019] FCAFC 46 at [61].

31. Further, where evidence is given via an Interpreter, great caution should be exercised in drawing adverse credit conclusions in circumstances where a witness may have given different accounts over time through an interpreter. In W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89 at [15] the Full Court stated:

    As anyone with even a passing familiarity with litigation will know, to have to give a decision-maker three or more separate versions of the basis for a claim is an invidious position to find oneself in, even in the case of an honest witness.  All the more so when the accounts have been provided by a person who speaks no English and who has required the assistance of an interpreter.  It is inevitable that each version will be slightly different, and may even be very different once the impact of the interpreter is taken into account.

32. Finally, in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46] the following was said:

    … The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications… its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

33. Counsel for the applicant submitted that the Tribunal’s reasoning in this matter was an unbroken chain of reasoning on the basis of the ‘totality of the evidence’ and ‘when considered together’ (paragraphs 20 and 32), such that it gave rise to the conclusion that her claims were unreliable. It was submitted that if any one of the reasons given for this conclusion is infected by jurisdictional error, so too is the conclusion and thus, the decision as a whole.

34. In AAI20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1252, Stewart J had the following to say a [82]-[83], citations omitted:

    [82] An assessment of credibility is not necessarily linear. Moreover, adverse findings on credit may well, expressly or implicitly, be linked with one another so that it is impossible, or unrealistic, for a reviewing Court to be confident that an error in one strand of reasoning does not infect other strands.

    [83] Undoubtedly, the anatomy of decision-making, particularly with respect to the weighing of different evidence and reaching judgements on credibility, is complex: disbelief of someone at one point might carry over to affect the decision-makers disbelief at other points and vice versa. The logic, structure and flow of the reasons does not necessarily dictate how in reality credibility findings on one aspect may or may not have consciously or subconsciously informed another aspect.

35. Where challenges to factual findings are made, as they are in this matter, on a paragraph by paragraph analysis of the Tribunal decision, even if some of the challenges are successful, a reviewing Court must consider whether there is still a sufficient basis for the ultimate conclusion. By analogy, are there still sufficient legs for the table to stand? Bearing all the above in mind, the Court now turns to the applicant’s complaints.

36. The first area complained about is the conclusion at paragraph 21 of the Tribunal’s decision that the applicant’s claims shifted over time. It was submitted that the first element of her claim that she feared harm from Aawi and Sunni Muslims, but then claimed that she would be harmed because she was a Sunni Muslim. It was submitted that this misrepresents the claim of being caught in fighting not directed at her but between those groups. It was neither a shift nor a contradiction, merely a brief description of the same predicament.

1. The next claimed shift was that the applicant introduced new claims about her life as a divorced woman. It was submitted this was not a not a shift, it merely reflected the facts as they were at each stage of the proceedings.

2. The third shift was that in 2014, the Tribunal understood the applicant to say that she had no family in Lebanon, whereas in 2017, she stated she feared her family in Lebanon. It was submitted that three years had elapsed between those statements. Family locations and relationships could have changed in that time. The second point is that the Tribunal misread the applicant’s earlier statement where she said she does not have ‘family support’ in Lebanon, not that she does not have family (see: Court Book page 68). It was put that an initially unsupportive family may well turn abusive. It was submitted that findings on shifts or inconsistency must be based on true shifts: (see; AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 at [27]). Further, the applicant’s evidence should be approached with tenderness and sensitivity as there are special considerations that apply in refugee cases: Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875 at [54] and [55] (“Foroghi”).

3. On behalf of the first respondent, it was submitted that it was open to the Tribunal to regard the applicant’s claim in her Protection visa application to fear harm from Sunnis and Alawis fighting (Court Book page 20) and then at her Protection visa interview from Alawis who are targeting Sunni Muslims (Court Book page 69) as a shift.  On their face, they are different claims.  Similarly, the applicant did not claim in her Protection visa application to fear harm because she had no family as she did in a protection visa interview (Court Book page 68) and again, it was open to the Tribunal to regard this as a shift.

4. Before the delegate, the applicant claimed to fear harm in Lebanon because of a lack of family support.  Before the Tribunal, she claimed her father or other family members in Lebanon may wish to harm her.  It was submitted that the difference in these claims is manifest.  The Tribunal can hardly be said to have acted in the legally unreasonable way in perceiving the applicant’s claims to have shifted significantly over time, regardless of the explanations attempted to be given for this in the applicant’s submissions.

5. Firstly, the Court is satisfied that there were differences between the applicant evidence given in the Protection visa application and at interview.  The first claim was that she would be caught in generalised fighting between the Alawites and Sunni groups (Court Book page 19). The second (at her Departmental interview Court Book page 69) was that she would be targeted by Alawites because she was a Sunni Muslim.  There is a discrete difference between being an innocent victim caught in generalised violence and being specifically targeted as being part of a generalised group. However, bearing in mind the type of fear the applicant was speaking of, the Court does not see the difference as being significant such as to be an inconsistency.  

6. The Court notes that the issue of generalised sectarian violence in Tripoli was specifically considered by the Tribunal at [23]. The Tribunal accepted that having lived in close proximity to the conflict, the applicant may have a general fear of war even though she or her family has not suffered direct harm in the past. However, the Tribunal was not satisfied that this fear amounted to serious harm or that there was a real chance that had she returned to Lebanon, she would face serious harm from either Sunni or Alawi Muslims as a result of sectarian violence in Tripoli based on a DFAT report from 2015. The Court is satisfied this conclusion was open to the Tribunal on the evidence before it.

7. In relation to the second shift, being claims that she feared harm as she was a divorced woman, the Court accepts that, as a matter of Australian law, by the time of the Departmental interview, she was in fact legally divorced.  Her status had shifted and this was not an inconsistency but a change over time.

8. This does not explain however, the difference, given her relationship history, how being legally divorced, differed from, having been the subject of a ‘religious wedding’ at home with her first partner, FA, in 2010 and then separating. She stated that marriage lasted only a month as FA ‘did not want to continue with her’ [28]. Given that she was separated from her first partner following a religious wedding, if she feared harm as a divorced or separated woman, it was not unreasonable to expect her to claim that when she filed the Protection visa application. Again, the difference between separated following a religious ceremony and legally divorced is discrete but not insignificant in the overall consideration of the matter, noting the nature of the protection claim.

9. The Court notes that, at paragraph 23 and onwards, the Tribunal set out in some specificity the various claims of the applicant.  She was asked who would harm her if she returned to Lebanon as a divorced woman. She responded “maybe dad, maybe his family, maybe mums family’.  The Tribunal noted that in letters sent to the Migration Review Tribunal on 4 and 22 April 2014, in the context of her review application on her Partner visa application, the applicant stated “my whole family has… migrated to Australia” and ‘I have absolutely no family members overseas”.  The applicant was specifically asked about this particular matter at the Tribunal and stated that the letters had been written by her ex-husband as she could not write English. 

10. The applicant stated that she relied upon her husband and an advisor to ensure the information in a Protection visa was true and correct as she could not read or write English at that time.  Counsel for the applicant put to the Court that 3 years had elapsed since she stated that she had no family in Lebanon and that she feared her family in Lebanon. It was submitted that family location and relationships could change over time. This submission is difficult to accept in the context of this matter. Not having any family in Lebanon, as they have all migrated to Australia to fearing family in Lebanon was a significant shift and inconsistency in her claims.

11. The Court is satisfied, that the conclusion at paragraph 25 that the applicant does not have any family in Lebanon, including her father, nor that she faces serious harm from her family or anyone else in Lebanon over her relationship with her current partner was open to the Tribunal on the basis of the evidence that was before it. It reflects what the applicant claimed in her Protection visa application. Further, the conclusion that she did not face a prospect of real or serious harm was consistent with country information cited in the delegate’s decision before the Tribunal, that divorcees and single women can successfully take part in ordinary Lebanese life [para 30]. 

12. As to the submission that evidence in refugee cases must be approached especially with tenderness and sensitivity,  the Court does not accept that submission. It is a mischaracterisation of Foroghi. In Foroghi the following was said at [54]-[55]:

    [54] I do not consider that any basis has been established for the assumption that the RRT was not cognisant of the special considerations that apply in refugee cases. Mr Castelan's submission in this regard in reminiscent of a submission rejected by the Full Court in Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126 ("Kopalapillai") at 556-557. At 558-559 the Full Court said:

    "Whilst a decision maker concerned to evaluate the credibility of the testimony of a person who claims to be a refugee in Australia will need to consider, and in many cases consider sympathetically, possible explanations for any delay in the making of claims, and for any evidentiary inconsistencies, there is not a rule that a decision maker may not reject an applicant's testimony on credibility grounds unless there are no possible explanations for the delay or inconsistency (Taylor, "Informational Deficiencies Affecting Refugee Status Determinations"). Nor is there a rule that a decision maker must hold a "positive state of disbelief" before making an adverse credibility assessment in a refugee case. The reference by Foster J, sitting as a member of the Full Federal Court in Guo's case at 191, to a requirement for a "positive state of disbelief" was not directed to this issue of the determination of credibility, but rather to the question of when an adverse credibility finding will logically found a positive finding that a particular fact asserted by the witness does not exist."

    [55] In my view the Full Court's answer to the submissions put to it in Kopalapillai apply to the circumstances of the instant matter. To the extant that the submission advanced by Mr Castelan differs from that put in Kopalapillai, the difference lies in the emphasis in this matter on an alleged failure to take into account a relevant consideration. However, putting to one side the issue of refugee cases being special, it has not been established that the RRT was specifically bound to consider such issues in formulating its reasons for decision; see Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 29 at 39-42.

13. The above, to the Court’s mind, simply means that evidence in refugee matters should be properly assessed according to the normal rules. An applicant’s evidence in a refugee matter is not to be given some special status where it is required to be accepted in circumstances where similar evidence in a non-refugee matter would not be accepted. However, a Tribunal needs to be cognisant of why a claimant for refugee status may have issues with aspects of their evidence. However, it is for the applicant to prove they meet the criteria for the grant of a refugee visa: (see; Abebe).

14. The applicant next takes issue with paragraph 22 of the Tribunal’s decision record which rejected her claim to fear harm from sectarian tensions in Tripoli.  It was submitted that it is hard to discern how this was a basis to conclude that the applicant’s claims in total were “contrived or fabricated” or that she was not generally truthful and credible.  It was submitted her claim about the events in 2014 was rejected by assessing the changed situation in Lebanon 2017.  It was submitted that using this as a basis to discredit her other protection claims was inconsistent with authority: (see; NAIS v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2005) 228 CLR 470 at [65]), and illogical.

15. On behalf the first respondent, it was submitted that the finding at paragraph 22 did not contribute to the Tribunal’s credibility findings.  The Tribunal at paragraph 22 accepted that the applicant may have a general fear of for having lived in close proximity to the conflict in applicant in Lebanon. 

16. A fair reading of paragraph 22 indicates that the Tribunal considered country information available to it in relation to the applicant’s claim of fearing harm from sectarian violence if returned. It noted that a security plan put in place by the Lebanese Army had led to the notable reduction of sectarian incidents. The Tribunal concluded that while the applicant may have a general fear of harm on return, there was not a real chance of serious harm.

17. This finding is entirely unremarkable. To suggest that it amounts to or contributes to a finding that her fears were ‘contrived or fabricated’ (Applicant’s Submissions [26]), given the Tribunal accepted explicitly there were sectarian tensions in the area she resided in, is difficult to understand. The submission borders on the disingenuous. Nowhere in paragraph 22 does the Tribunal state that this aspect of her case is contrived or fabricated. This claim has no merit.

18. The next complaint is the finding at paragraph 23, that the applicant’s claims at the hearing were ‘vague generalities’. The applicant asserts that the Tribunal did not understand the applicant’s speech or responses. Rather, it heard an interpretation of them.  It was submitted that reference to perceived vagueness is an inherently unsafe means by which to determine credibility, especially when an interpreter is involved in passing and parsing evidence: (see; DVO16 v Minister for Immigration and Border Protection [2021] HCA 12 at [54]). Any assessment of vagueness or inconsistencies where an interpreter is used should be restricted to the most obvious of cases: (W168/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 538 at [12]).

19. On behalf the first respondent, it was submitted the fact that the applicant was giving evidence through an interpreter does not deprive the Tribunal of its ability to make such judgements.

20. First, it is to be noted that Counsel for the applicant confirmed that there is no complaint by the applicant as to the quality of the standard of interpretation at the hearing.  No check translation has been provided to the Court that provides a different translation of her responses to questions that are recorded.

21. Second, no transcript of the hearing at the Tribunal was provided to the Court that indicated the responses recorded at paragraph 23 of the Tribunal decision record are other than an accurate recording of her responses, or that there are other responses in the hearing that provide more granularity in relation to the nature of her fears. In these circumstances, the Court assumes that the translation was both professional and correctly conveyed the answers given by the applicant to the questions posed of her.

22. There is no doubt that where evidence is given via an interpreter, great caution should be used by a Tribunal in coming to a conclusion that evidence meets the criteria of being vague and/or generalised, and then go on to making an adverse credit finding.  Provided such caution is exercised, it is still within the decisional freedom of the Tribunal to make will such a finding.  There is no evidence before the Court that the Tribunal did not take into account of the need for the relevant caution in coming to the conclusion that it did. 

23. The Tribunal noted specifically that the applicant stated she was concerned that other people would ‘talk bad’ to her. In terms of who in her family she feared, she stated ’maybe Dad, maybe his family, maybe Mum’s family’. Further evidence is set out in paragraph 23 as to how she came to be aware that she might face harm from her family. In the absence of any complaint that the evidence of the applicant is not recorded accurately and her answers are as set out in paragraph 23, the Court is satisfied this was a legitimate basis for the Tribunal to find that here evidence was in vague generalities.

24. The next complaint relates to the finding at paragraph 24 regarding the veracity of the applicant’s claims in the light of her earlier evidence to both the Department and the Tribunal regarding the absence of any family in Lebanon. The Tribunal noted in her Protection visa application (Court Book page 5) the applicant made mention of only two family members, her mother and brother, both resident in Australia. In her interview with the Department, she relied upon not having any family to support her in Lebanon. In letters sent to the MRT on 4 and 22 April 2014 (Court Book page 78) the applicant stated “my whole family has…migrated to Australia’ and ‘I absolutely have no family members overseas’.

25. On behalf of the applicant, it was submitted that what the applicant meant was that she had no family support in Lebanon on.  This does not mean she had an “absence of any family in Lebanon”.  It means that the family that was there was not supportive.  It was submitted that the reading of the Protection visa application that only records the applicant having a brother and a mother as “other close relatives” is incomplete and strained.  Despite the clear direction at the top of the form at Court Book page 5 to identify any parent or step parent not included in the application, the applicant’s mother’s husband (the applicant’s stepfather) is not named on the form.  It was submitted that the applicant would have cousins and uncles (who are not caught by the forms definition of other close relatives), such that the conclusion she had no family in Lebanon on was lacking in both logic and proportion.

26. On behalf of the first respondent, it was submitted the claim not to have any close relatives not in Australia in her Protection visa application (Court Book page 5 question 13), whereas claiming to have a father in Lebanon to the delegate was a contradiction that was manifest, especially as the applicant identified her mother at Court Book page 5.  It was submitted that the natural inference from the applicant ticking “No” to question at Court Book page 5, question 13 is that her father was dead.  Further, in signing the application form at Court Book page 10, the applicant declared she had provided information that was “complete, correct and up-to-date in every detail”.  In these circumstances, the Tribunal was entitled to find she did not have any close family in Lebanon as it did at paragraph 25.

27. There is absolutely no doubt that there is a significant inconsistency between the information in the application form, together with that contained in the letter of 4 April 14 at Court Book page 78 and the latter evidence of the applicant to the delegate at interview, that the applicant has a father who is living in Lebanon.  The explanation offered by Counsel for the applicant may have some greater weight were it not for the letters sent to the MRT on 4 and 22 April 2014, in which she stated “I absolutely have no family members overseas”.  Such a statement is to the Court’s mind is completely incompatible with the notion that the applicant indeed has a father alive and living in Lebanon.  This was an obvious factual issue that required a determination by the Tribunal. 

28. The Tribunal found that it was not satisfied the applicant had any family in Lebanon, including her father, nor that she faced serious harm from her family or anyone else in Lebanon over her relationship with the current partner.  The Court is satisfied that this was a finding that was within the legitimate decisional freedom of the Tribunal.  The fact that another decision-maker, using the same evidence but following a different reasoning process, may have arrived at a different conclusion does not ground a finding by this Court of legal unreasonableness. 

29. Given the importance of the information provided in protection visa application, and her declaration that the evidence given within it was “complete, correct and up-to-date in every detail” and that she had not provided any false and misleading information, the Tribunal was entitled to come to the conclusion that it did that her evidence was inconsistent and as a result reflected on the applicant’s credibility. The claim has no merit.

30. The next complaint relates to the findings at [26] [29] that the Tribunal had concerns as to the claim that the applicant was not ready to marry her current partner due to being the victim of previous domestic violence by her then husband.

31. In rejecting the claim, it was submitted by Counsel for the applicant that three aspects of the finding were problematic:

    1.The Tribunal gave no consideration to 2 corroborating statements of the applicant’s current partner and her Domestic Violence Case Worker. It was submitted if an adverse finding as to credibility is made by a process of omitting or ignoring certain material, this alone will demonstrate jurisdictional error: Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [50] (MZYTS)

    2.The Tribunal gave no consideration to the sworn form of the relevant evidence. That form required the decision maker to give the evidence particular respect and weight by reason of its form: Gardiner v Taungurung Land and Waters Council [2021] FCA 80 at [271] (Gardiner)

    3.The Tribunal seems to have opined that the applicant should have prioritised re- marriage which does not accord with logic let alone ordinary human experience: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [59].

1. On behalf of the first respondent it was submitted that it was open to the Tribunal to find issues with the applicant’s claim to be a practising Muslim, who observes the principles the faith and her being an unmarried mother, having a child out of wedlock, and residing in a de facto relationship. This observation was plainly open to it. It was open to the Tribunal not to accept at face value the applicant’s explanation she knew it was a sin, but was not yet ready to get married. Again, different minds could differ about the Tribunal’s reasoning.

2. The material complained about which the applicant says was not taken into consideration was first a letter from the Bankstown Domestic Violence Service. It stated that the Service was ‘informed’ that she was not yet ready to marry her new partner as she is still traumatised from her previous experience from ex-partners. The Court notes this document merely records what the applicant has said to them and is of little independent evidentiary weight. It is not in sworn form. The Court accepts however, that the document is not specifically referred to in the Tribunal’s decision record.

3. The second is a Statutory Declaration from the applicant’s current partner. It is specifically referred to at paragraph 14 of the Decision record. The Tribunal also recorded at paragraph 15 that the applicant’s current partner gave evidence to the Tribunal. The Statutory Declaration confirms that the applicant and the deponent are living under the same roof but the applicant was not ready to commit to a marital relationship. The reliance on MZYTS at [50] is misplaced. That paragraph and the immediate paragraph are as follows:

   50 We do not accept the Minister’s submission. The Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.

   51 None of this is to trespass on existing authorities about the nature of the obligation in s 430 of the Act and the process of drawing inferences from statements of reasons by the Tribunal. We accept that the judgment of French CJ and Kiefel J Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 (SZGUR) at [31] (Heydon and Crennan JJ agreeing) draws a distinction between the omission of a matter from the Tribunal’s reasons as indicating the Tribunal did not consider the matter material, and that omission indicating the Tribunal did not consider the matter at all. Gummow J makes a similar point in his judgment (Heydon and Crennan JJ agreeing). 

4. In the current matter, the evidence it is said was not taken into account first clearly was, and second, supported the applicant’s claim that she was not yet ready to enter into a further marriage. No weighing between differing pieces of evidence was required. There was no contradictory evidence to weigh and determine.

5. In relation to the claim that particular evidence should be given greater weight by reason of its form, in Gardiner at [271] the following was said:

   [271] What I have described to this point is more than sufficient to demonstrate there was no active intellectual engagement by the delegate with the affidavits. While it is correct that some of the matters in the affidavits were also the subject of submissions by Holding Redlich, the affidavits were, as the applicants submit, sworn evidence. The point of sworn evidence is that the deponent gives the evidence on the basis of an understanding of the applicable penalties for false evidence. There is a level of seriousness which applies to affidavit evidence, as opposed to ordinary written statements by a person. The fact that the delegate described what was put to her as “assertions”, while not the main point, is also not irrelevant. It does tend to suggest that she did not appreciate, as she should have, that each of the four deponents had sworn to the truth of what was in the affidavits. Granted, the deponents had not been tested, but nor was a submission put to the delegate by First Nations Legal or the State that any part of any of the affidavits should not be accepted because it was untrue.

6. In this case the letter from the Domestic Violence Service was merely that. It repeated what the applicant told them, no more. The Statutory Declaration had some limited weight of itself. However, he gave evidence to the Tribunal.  That evidence should be given greater weight than the letter. In the absence of a transcript, the Court is not aware of the nature of the testing of the partner’s evidence at the Tribunal

7. The Court is satisfied that the claim not to wish to remarry was considered by the Tribunal, along with all the material in support of the claim. It is well accepted that there is no need for a Tribunal to refer to each and every piece of evidence before it.

8. The Tribunal found the applicant’s claim to be incongruous with her professed claim to be a woman of faith. The Tribunal considered the applicant’s history of domestic violence. It found there might be good reasons why she might be reluctant to enter into another relationship with another man, yet she did so before being divorced from her previous partner.

9. The applicant’s relationship history in the context of a Protection visa application was open to be perused and considered. The finding that the Tribunal was not persuaded that as a woman of faith, and while she knew it was a sin, although living with her current partner and bearing his child, she was not ready yet to get married because of her previous experience, with her ex-husband is more problematic.

10. The difficulty for the Court is that the basis for the ultimate decision of the Tribunal is set out at paragraph 20, being that the applicant was not a truthful witness and had fabricated her claims. The applicant complains that the credit findings of the Tribunal were unreasonable, based the finding at paragraph 30, that on the totality of her evidence she had a propensity to fabricate claims.

11. Counsel for the applicant complained that the Tribunal was imposing its own moral standards in finding that while a woman of faith, she was not yet ready due to her relationship history to marry her current partner. This credit finding was not legally reasonable.

12. The Court is of a view that the very nature of human relationships, like faith, can be very nebulous and contradictory. For example, many persons of strong Catholic faith, use birth control, notwithstanding particular teachings within the Catholic Church on this matter. Many people of strong faith choose to live in defacto relationships. There are many people of strong faith who are in same sex relationships, which are abhorrent to some faiths or even sections of the same faith. That does not mean that they are otherwise not credible in other aspects of evidence they may give.

13. The Court cannot see how this issue was determinative of the dispositive issue the Tribunal was required to consider, being did the applicant face a real risk of serious harm upon return. The Tribunal had already noted at paragraph 30 that being a divorced or single woman was, according to DFAT, not a barrier to partaking successfully in ordinary Lebanese life. The further issue for the Tribunal to determine was the applicant at risk due to her de facto current relationship.

14. In the Court’s view, using the fact she claimed to be a woman of faith, but was in a de facto relationship, fell outside what was legally reasonable to determine the credit of the applicant. It was not necessary for such a finding to be made to determine the matter to conclusion. What was required to be determined was the issue was she at risk if returned due to the current relationship. The Tribunal’s overall findings turned on a disbelief of the applicant’s claims and that she had contrived claims to achieve a migration outcome.

15. The Court is also unable to determine whether the incorrect reasoning on this point did not carry over to infect the other credibility findings of the Tribunal (see: AAI20 at [82]) on which the ultimate conclusion was based. In these circumstances, the Court is satisfied this aspect of the applicant’s complaints discloses jurisdictional error such that the application for relief must be granted.

16. The next issue is with paragraph 30. The applicant claims that the Tribunal was in error to find the applicant made a claim that in 2014 that she was at risk as a divorced person when she was not divorced till 2016. It was submitted that she regarded herself as divorced in 2010 following her brief religious marriage to FA which lasted only about a month. The respondent submits that the applicant was not formally married in 2010 and that she was not therefore divorced.

17. The applicant’s evidence as recounted at [28] states that she did not have a wedding with FA, just a gathering of the family or religious wedding. There was no legal marriage and thus, no legal divorce. Given the relationship history of the applicant, the conclusion the Tribunal reached was available. It was referring to a legal marriage and divorce. If there was no legal marriage there could be no legal divorce. Even if this is a mistake of fact, the Court is not satisfied it would be dispositive of the applicant’s claims and constitute jurisdictional error: (see; Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51).

18. The final complaint is the finding that the applicant delayed her claim for protection to June 2014 as a means of achieving a migration outcome. It was submitted that delays are no reason for finding claims not truthful or credible. Reliance was placed on “The Law of Refugee Status” by Hathaway and Foster Cambridge University Press 2^nd Ed 2014 at page 99. This states that applicants who delay claiming refugee status ‘may actually be more fearful than those who claim it immediately… until they have learned something about the country’s determination system’.

19. The respondent submits that if the applicant genuinely feared harm in Lebanon, it would have been reasonable to expect her to have applied for a Protection visa rather than engage with migration appeals based on a relationship that had ended.

20. The difficulty with the applicant’s submission is that this is not a case where the applicant was unknowing as to Australia’s migration system. She initially came to Australia on a Prospective Spouse visa. She then lodged an application for a Partner visa. When this was refused, she sought merits review at the then MRT. Shortly after the MRT dismissed that application, she applied for a Protection visa. The Court is satisfied that the Tribunal was entitled to consider her migration history in the context of the delay in applying for a Protection visa. The applicant appears to have had access to a migration agent over time to assist her with her applications. The issues with delay in refugee applications relied upon by Counsel for the applicant are not applicable in this matter.

    conclusion

21. As the Court has found jurisdictional error in one instance, the application must be upheld. The matter should be remitted to the Tribunal for rehearing before a differently constituted Tribunal. It will be up to that differently constituted Tribunal to determine if the applicant’s claims for protection can be sustained.

I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Deputy

Dated:       28 November 2022