ANR18 v Minister for Home Affairs

[2019] FCA 870

FEDERAL COURT OF AUSTRALIA

ANR18 v Minister for Home Affairs [2019] FCA 870

Appeal from:	ANR18 v Minister for Home Affairs & Anor [2018] FCCA 3446
File number:	WAD 595 of 2018
Judge:	LOGAN J
Date of judgment:	20 May 2019
Catchwords:	MIGRATION – appeal from Federal Circuit Court – illogicity or irrationally – where the appellant raised claims that he was an atheist – where the Tribunal disbelieved those claims – where Tribunal relied on the appellant’s failure to raise his purported atheism under close questioning by the Minister’s delegate – whether the Tribunal’s conclusion was illogical or irrational – appeal dismissed.
Legislation:	Migration Act 1958 (Cth)
Cases cited:	Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Date of hearing:	20 May 2019
Registry:	Western Australia
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	14
Counsel for the Appellant:	The appellant appeared in person with the assistance of an interpreter
Counsel for the Respondents:	Mr P Macliver
Solicitor for the Respondents:	Sparke Helmore Lawyers

ORDERS

WAD 595 of 2018

BETWEEN:

ANR18

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	20 MAY 2019

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs, of and incidental to the appeal, to be taxed if not agreed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

LOGAN J:

1. The appellant is a citizen of Afghanistan.  He came to Australia as long ago as 6 December 2011 by boat.  He arrived then at Christmas Island without an entry visa.  That means that he was then what the Migration Act 1958 (Cth) (Migration Act) terms an unauthorised maritime arrival.  With him were his father and two brothers. 

2. The appellant’s migration history thereafter is a lengthy one.  Suffice it to say an initial application under the Act for a Protection (Class XA) visa dated 12 April 2012 failed.  The application was refused by a delegate of the Minister administering the Act, now known as the Minister for Home Affairs (Minister), as well as on review by the then Refugee Review Tribunal.  In turn, a subsequent judicial review application by the appellant to the Federal Circuit Court of Australia and a subsequent appeal to this Court each failed.  The visa applications of the appellant’s father and brothers met a similar fate. 

3. The appellant’s case was one which was subsequently affected by an unauthorised release of personal information by the Minister’s department.  A sequel to that was a later application, on this occasion, for a Safe Haven Enterprise (subclass 790) visa on 22 December 2016.  That application was refused by a delegate of the Minister on 13 June 2017.  The appellant then sought the review of that visa refusal decision by the Administrative Appeals Tribunal (Tribunal).

4. On 8 January 2018, the Tribunal decided to affirm the Minister’s delegate’s decision in respect of the Safe Haven Enterprise visa application.  The appellant sought the judicial review by the Federal Circuit Court of the Tribunal’s decision.  For reasons delivered orally on 26 November 2019, that court granted the appellant leave to rely upon an amended application but dismissed with costs that application.  The appellant has now appealed to this Court against that order of dismissal.  There is one ground of appeal.  It is:

   1.The Federal Circuit Court erred in failing to find that the Second Respondent erred by illogically or unreasonably using the supposed lateness of the Appellant in raising a claim to a fear of real risk of harm because of his lack of religion as a basis for rejecting the evidence of fact that the Appellant did not have a religion.

5. If one goes back in time to the interview conducted by an officer of the Minister’s department on 14 January 2012, a little over a month after the appellant’s arrival at Christmas Island, one finds the following response to the question, “Why did you leave your country of nationality”:

   Why did you leave your country of nationality (country of residence)?

   Answer:

   Because of the Koochi - the Taliban.  They shot my father and he was injured and they were trying to kill him.  This was in 2007.

   What other reason?

   Answer:

   Our life was in danger that is why we came here.

   How about yo, were you shot?

   Answer:

   This happened to my father as he went to his village.  In Afghanistan, if they hate my father, there is no difference, they will hate me as well and they will kill me.

   When did they come to your house looking for your father?

   Answer:

   Ten days before Ramadan they came to my workplace.  They came behind the door and my little brother saw them behind the door and he told us, and me and my father left and escaped.  If they will see me they will definitely kill me.  If they had recognised my younger brother they will also kill him.  Because we go out for work - our lives were in danger.  For 2 months we were at home to hide and did not go out.  My mother was the one shopping for our needs.

   Anything else?

   Answer:

   No.

6. Also on that page, in response to question 4, “Are you a member of any particular social or religious group”, the appellant’s answer “no” has been ticked on the form.  Those particular responses, both to why it was that the appellant left, and the question in relation to membership of social and religious groups, are relevant.  They describe both the basis of the claim as originally made for protection and a factor which came to feature before the Tribunal in a document submitted on behalf of the appellant to the Tribunal as a reason additionally why he feared persecution were he to return to Afghanistan.

7. The Tribunal, as so often occurs, grappled with whether to accept as credible the claim made by a visa applicant, in this case the appellant, for a visa.  Materially, it did so under the heading “Omission Of A Fear Of Harm On This Ground At Delegate Interview” in its reasons.  Ultimately, at [39] and [40], the Tribunal concluded:

   39.With respect to the applicant’s protection claims based on the ground of religion, the Tribunal’s concerns about the applicant’s credibility set out above lead the Tribunal to find that, on this issue, he is not a witness of truth.  If the applicant genuinely feared harm in Afghanistan on the basis of not having a religion he would have made that claim in his declaration and at his interview with the delegate when given the opportunity to do so.  His failure to advance this claim at those times, considered cumulatively, leads the Tribunal to find that in fact the applicant does not fear harm on this ground and, further, that it has no credible evidence about his religious beliefs and practice (at the present time, while he has been in Australia and when he was in Afghanistan).

   40.The Tribunal therefore disbelieves the claims that he has made about holding doubts about religion when he lived in Afghanistan, refraining from discussing his position on religion with his father either before or after leaving Afghanistan and his evidence about his attitude toward religion from the time he arrived in Australia.  The Tribunal therefore finds that the applicant remains a Shia Muslim who willingly undertook religious practice according to his evidence about that at the Tribunal hearing.  The Tribunal has no credible evidence before it that he would (or would want to) behave any differently on return to Afghanistan.

8. Understanding that particular conclusion requires that earlier reasoning of the Tribunal found at [26] – [30] be set out:

   26.At his interview with the delegate, at an early stage, the applicant was asked what his religion was and he said that he did not have a religion.  He said that over the previous six years his belief had weakened and he had stopped practicing religion.  He said that his parents did not know that his beliefs had changed.  The delegate then asked the applicant about his father’s current role in the community (in X) and how often his father and the applicant himself travelled between that area and Kabul.  The delegate then asked the applicant why he left Afghanistan (to which the applicant responded to be safe) and why his father returned there.  After asking the applicant these questions, the delegate then suggested to him that given his father had returned to Afghanistan, the applicant may not be of interest to anybody there including the Taliban.  In response, the applicant said that if an incident happened with the Taliban, and that could happen at any time, one would be harmed.  He said that there were very dangerous people there who would kill a person very badly if they caught that person.

   27.The delegate then asked the applicant why he could not return to Afghanistan.  In response, the applicant said that he was afraid for his life and there was no other reason.  He had remained in Australia in detention because Afghanistan was not safe referring to a large number of people being killed in a single day. The delegate then asked the applicant from whom he feared harm.  In response, the applicant said terrorists.  He said that in Afghanistan there are terrorists and they kill people.  The delegate then asked the applicant why he felt that he would be targeted in Afghanistan.  In response, he said that those people recognise him as a Shia and Hazara.  The tribunal has set out this exchange between the delegate and the applicant in some detail because it demonstrates that the applicant was given ample opportunity to say on what grounds he feared suffering harm in Afghanistan.

   28.Although given those opportunities and although he did not say earlier in the interview that he no longer had a religion, the applicant did not claim to fear harm from anybody in Afghanistan on that ground.  It was only after a break in the interview was taken that the applicant’s representatives submitted that, in addition to a fear of harm from terrorists (as the Tribunal understood it, because of his father’s role as an elder, his ethnicity and being recognised as a Shia), the applicant also feared harm from Muslims in Afghanistan because he did not have a religion.  The representative submitted that the applicant was also afraid that, not having a religion, his parents would disown him.  Further, he would not be able to talk openly about that and if he returned to Afghanistan people would eventually know he did not have a religion because he would not participate in any religious ceremonies.  That would, therefore place him in danger of reprisals.

   29.After his representative made those submission, the applicant himself said that he would be unable to hide what he did or did not believe in Afghanistan and there were ‘laws’ around that in the that country.  The Tribunal was concerned that the applicant did not express a fear of harm on this ground before the break was taken in the interview and when the delegate had specifically asked him why he was afraid to return to Afghanistan and why he thought that he would be targeted there.  The Tribunal found unconvincing the applicant’s failure to advance this claim when given ample opportunity by the delegate to do so and his adoption of it only after a break in the interview and after his representative made claims about it.  The Tribunal can see no plausible reason why, if the applicant genuinely feared harm on this ground, he would not advance the fear when questioned closely by the delegate as to why he would be at risk of harm in Afghanistan.  His failure to do so again case significant doubt over the credibility of his evidence and claims about this matter.  This concern was put to the applicant pursuant to s.424A of the Act and the representative made submissions dated 8 November 2017 in response.  In addition, at the hearing and in submissions dated 4 October and 23 October 2017, the representative also made submissions on this issue.  All of these submissions are dealt with below.

   30.The representative submitted that the fact that the applicant did not initially raise a fear of harm on this ground at his interview with the delegate and only did so after his representative raised it with the delegate, did not mean that his fear of harm on that ground was false.  The Tribunal agrees that the failure to raise a claim at an earlier opportunity does not automatically mean that it is false and when there is a satisfactory explanation as to why the claim was not raised at that earlier stage.  In this case, the Tribunal considers that the applicant has not given a satisfactory explanation for his failure to raise this important claim either in his declaration or at his interview with the delegate until a late stage of that interview, after a break was taken and after his representative made submissions about it.  In those circumstances, it is correct for the Tribunal to consider that if the applicant was truly feared harm in Afghanistan on the basis of atheism he would have said so when questioned by the delegate as to what he was afraid would happen to him on return to Afghanistan.

9. Apart from its particular reasoning in relation to an absence of credibility in respect of that part of the claim for a visa which had come to be advanced, the Tribunal also made findings as to the risk of harm to the appellant on other grounds advanced.  Given the ground of appeal, it is not necessary to set these out.  Suffice it to say the Tribunal’s reasons were based on particular country information and the findings were reasonably open.

10. In the Federal Circuit Court, the learned primary judge concluded that the finding which the Tribunal made as to credibility was one reasonably open to it.  Having heard the appellant this afternoon, I have no doubt at all that he genuinely disagrees with the assessment about credibility made by the Tribunal.  It is certainly not the case that a conclusion about credibility made by a tribunal or another administrative official is immune from challenge on judicial review.  Accepting that, but as the Minister correctly highlighted by reference to a statement made by Crennan and Bell JJ in their joint judgment in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131] (SZMDS), the position is:

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

11. But in this case, that, in essence, is the process of reasoning adopted by the learned primary judge for his conclusion that the Tribunal’s reasoning with respect to the appellant’s credibility was reasonably open.  In my view, to look to a difference as between initial responses as to why harm was feared on return and weigh that against an addition volunteered later is a process of reasoning by which one might permissibly reach a conclusion that the later volunteered reason is not one worthy of credibility.

12. In this instance, the Tribunal was drawing not just upon particular written responses but also upon oral responses given by the appellant at the hearing the Tribunal conducted.  Of course, there are difficulties in credibility assessments where evidence is given via an interpreter which are not present where a tribunal member or judicial officer observes a spontaneous exchange in oral evidence given in English, and the same applies in relation to an assessment by a tribunal member of submissions made.

13. In this instance, the Tribunal has particularly focused upon opportunities to explain the basis for fear extended on multiple occasions, particularly at delegate level.  The submissions made were addressed in detail by the Tribunal.  These were addressed. 

14. To describe a conclusion about a claim as illogical or unreasonable can be an emphatic way of expressing disagreement with it.  However, having regard to the observation made in SZMDS, I find myself in agreement with the learned primary judge.  In other words, looking at the Tribunal’s reasoning in relation to that part of the claim which was advanced on fear of harm on the basis of a no longer held religious belief, the conclusion that the Tribunal’s finding of credibility was reasonably open entitled no error on the part of the primary judge.  That being so, the ground of appeal must fail.  In turn, that means that the appeal must be dismissed.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:       

Dated:       7 June 2019