AQA21 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 932
•17 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AQA21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 932
File number(s): SYG 404 of 2021 Judgment of: JUDGE ZIPSER Date of judgment: 17 June 2025 Catchwords: MIGRATION - judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visas – whether Tribunal erred in not accepting applicant’s claim that Colombian authorities were unable or unwilling to protect applicant – whether Tribunal overlooked or failed to consider items of information in documents Tribunal otherwise considered – whether findings of Tribunal supported by probative evidence – whether Tribunal assessed significance of findings of inconsistencies in applicant’s evidence – no jurisdictional error established - application dismissed Legislation: Migration Act 1958 (Cth) ss 36(2)(aa), 65, 430, 476 Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83
BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189; 281 FCR 594
EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518
Minister for Immigration and Border Protection v Gill [2019] FCAFC 9; 268 FCR 575
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594
Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; 109 FCR 152
Division: Division 2 General Federal Law Number of paragraphs: 143 Date of last submissions: 6 May 2025 Date of hearing: 10 April 2025 Place: Parramatta Counsel for the Applicants: Theresa Baw Solicitor for the Applicants: Kah Lawyers Counsel for the Respondents: Tim Reilly Solicitor for the Respondents: Minter Ellison ORDERS
SYG 404 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AQA21
First Applicant
AQB21
Second Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
17 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Citizenship”.
2.The application is dismissed.
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 ZIPSER
INTRODUCTION
On 12 March 2021, the applicants filed an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 9 February 2021. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicants protection (Class XA) (Subclass 866) visas under s 65 of the Act.
For the reasons that follow, the application is dismissed.
FACTUAL BACKGROUND
In November 2013, the applicants, citizens of Colombia, arrived in Australia on subclass 500 student visas. The first applicant (Applicant) was the primary visa holder. The second applicant, the Applicant’s husband, was a member of the family unit.
On 24 November 2014, the applicants applied for subclass 866 protection visas: see Court Book (CB) pages 29-179. The Applicant was the primary applicant. The application did not include the Applicant’s claims. Instead, the applicants’ agent wrote that the Applicant “will provide shortly a detailed statement of events and claims”: CB 31.
On 29 July 2015, the Department of Immigration and Border Protection (Department) sent a letter to the Applicant inviting her to attend an interview on 19 August 2015: CB 195.
By letter dated 13 August 2015, the applicants’ agent provided to the Department various documents, including a 14-page typed statement of the Applicant setting out her claims (2015 Statement) (CB 208-221). In relation to the Applicant’s claims in the 2015 Statement:
(a)The Applicant claimed that, from the time her father disappeared in 1986 when the Applicant was two years old, the Applicant and her family were occasionally of interest to a guerilla group.
(b)The Applicant claimed that the problems which eventually caused her to leave Colombia in November 2013 commenced when a paramilitary group called Black Eagles was formed and “began looking for people with some connection to the guerilla”, as a result of which the Applicant’s “entire family enter[ed] into a new cycle of persecution by the Black Eagles paramilitary”: 2015 Statement at [80]. It appears from the Applicant’s claims in the 2015 Statement that the Black Eagles paramilitary group was formed between March 2007 (see at [76]) and February 2008 (see at [82]).
(c)In May 2009, the Black Eagles murdered the husband of the Applicant’s sister: 2015 Statement at [84].
(d)The Applicant claimed that, since the May 2009 murder, people were interested in harming the Applicant and the Applicant’s sister. The Applicant specified the following incidents:
(i)In January 2010, the police warned the Applicant’s sister in the Applicant’s presence that they had information the sister was going to be murdered, following which two men on a motorbike drove past the sister’s house but, on seeing the police guarding the house, fled: 2015 Statement at [87]-[89].
(ii)The Applicant and her sister “started getting telephone threats, accusing [them] of being guerilla collaborators”: 2015 Statement at [91]. The Applicant stated that the “threats via my telephone became more and more frequent” such that the Applicant “had to change [her] number several times”: 2015 Statement at [93].
(iii)In December 2011, “some male strangers” asked another sister of the Applicant “who [the Applicant] was”: 2015 Statement at [97].
(iv)In August 2013, “male strangers” who “were not pleasant” were “searching for” the Applicant in a suburb in which she had previously lived, following which “local residents alerted” the Applicant about this: 2015 Statement at [103].
Despite the length of the 2015 Statement, the detail provided by the Applicant in the 2015 Statement concerning aspects of her life, the fact that the 2015 Statement was prepared with the assistance of a registered migration agent, and the time the Applicant had to prepare the 2015 Statement, the Applicant’s claims in the 2015 Statement concerning threats of harm to the Applicant since the formation of the Black Eagles in 2007 and 2008 were vague. For example:
(a)In relation to the “telephone threats”, referred to in paragraph 6(d)(ii) above, the Applicant did not provide details about when the phone calls commenced, when the phone calls ended, how often she received the phone calls, or the content of the phone calls.
(b)In relation to the December 2011 incident, referred to in paragraph 6(d)(iii) above, the Applicant did not provide details about the location or content of the alleged conversation between the Applicant’s sister and the male strangers, or what caused the Applicant to be concerned about the male strangers.
(c)In relation to the August 2013 incident, referred to in paragraph 6(d)(iv) above, the Applicant did not provide details of the observations of the “local residents” and the conversations between the “male strangers” and the “local residents” (which the local residents presumably reported to the Applicant) which caused the Applicant to be concerned about the male strangers and conclude that the male strangers were searching for her. The Applicant also did not provide details of when and how the “local residents” contacted the Applicant.
On 29 February 2016, the Applicant attended an interview with a delegate of the first respondent.
On 7 February 2016, a psychologist prepared a psychological assessment report in respect of the Applicant which the applicants’ agent provided to the Department: CB 259-267.
By letter dated 16 March 2016, the applicants’ agent provided further documents to the Department: CB 283-300.
On 3 August 2016, the Department sent a letter to the applicants requesting further information, and on 25 August 2016 the Applicant provided information in response to the letter: CB 328-335.
On 19 January 2017, the delegate made a decision refusing to grant the applicants protection visas: CB 341-363. The delegate, after “not[ing] the significant discrepancies between the applicant’s written claims and the account she provided at interview” (CB 353), was “not satisfied that any guerilla or paramilitary group view [the Applicant] as a person of adverse interest” (CB 354) and did not otherwise accept the Applicant’s claims.
On 30 January 2017, the applicants applied to the Tribunal for review of the delegate's decision.
On 16 October 2020, the Tribunal invited the applicants to attend a hearing on 24 November 2020: CB 441-443.
Under cover of letter dated 17 November 2020, the applicants’ agent provided to the Tribunal various documents, including: (CB 459-535)
(a)a letter containing a written submission;
(b)the 2015 Statement; and
(c)statements of other witnesses.
On 24 November 2020, the Applicant appeared before the Tribunal to give evidence and present arguments.
On 9 February 2021, the Tribunal made a decision affirming the delegate’s decision not to grant the applicants protection visas.
TRIBUNAL’S DECISION
The Tribunal at [6]-[30] considered the Applicant’s evidence to the Department.
The Tribunal at [31]-[34] considered the evidence provided by the Applicant to the Tribunal prior to the hearing on 24 November 2020.
The Tribunal at [35]-[64] summarised the Applicant’s oral evidence to the Tribunal at the hearing on 24 November 2020.
The Tribunal at [65]-[72] considered country information.
The Tribunal at [79] stated that “for the following reasons, it is not satisfied the applicant meets the refugee criterion in s 36(2)(a) of the Act”. The “following reasons” appear to be the Tribunal’s reasons at [80]-[96].
The Tribunal at [81]-[82] considered the Applicant’s claim that she had been of interest to guerillas in Colombia since her father’s disappearance in 1986. The Tribunal was “not satisfied the applicant or her family would have been of interest, given the family did not have financial resources and they were not politically active” (at [81]).
The Tribunal at [83]-[84] considered the Applicant’s claims that she had been of interest to a paramilitary group since about 2006. The Tribunal made findings rejecting these claims.
The Tribunal at [85] found that “the applicant’s evidence about getting information to leave Colombia for Australia is inconsistent”.
The Tribunal at [87] considered the Applicant’s explanation for her delay in making a protection visa application and had “serious concerns she made the protection visa application as a visa of last resort”.
The Tribunal at [89], in connection with the Applicant’s principal claim that she had been of interest to guerillas in Colombia, did not accept her claims that she was being asked about by male strangers, or that she was being followed or monitored, or that she received threatening phone calls.
The Tribunal at [91] considered the Applicant’s claim that she feared harm as a failed asylum seeker. The Tribunal was not satisfied there was a real chance the Applicant would suffer serious harm because she was a failed asylum seeker.
The Tribunal at [92] considered the Applicant’s claim that she may be harmed because there is violence against women and girls in Colombia. The Tribunal was “not satisfied there is a real chance the applicant will suffer serious harm on the basis of this claim”.
The Tribunal at [93]-[96] considered some other aspects of the Applicant’s evidence.
The Tribunal at [97] set out limited parts of the Applicant’s claims it accepted.
The Tribunal at [98]-[99] made findings concerning claims of the Applicant it did not accept. The Tribunal at [99] found that the Applicant had manufactured her claims to have been sought after by guerilla and paramilitary groups followed, monitored and threatened over the phone. The Tribunal concluded that the Applicant “came to Australia to study, not because she had been harmed or feared persecution or serious or significant harm in Colombia”.
The Tribunal at [100] considered the Applicant’s claims individually and cumulatively and did not accept the Applicant had a well-founded fear of being persecuted.
The Tribunal at [101]-[105] considered the complementary protection criterion, and was “not satisfied that either applicant met s 36(2)(aa).
PROCEEDINGS IN THIS COURT
Judicial review application and steps up to hearing on 10 April 2025
On 12 March 2021, the applicants filed in this Court an application for judicial review of the Tribunal’s decision.
Following a period of inactivity, on 14 February 2025 the registry of the Court notified the parties that the matter was listed for hearing on 7 April 2025, which date was changed to 10 April 2025 at the parties’ request.
On 21 March 2025, the applicants filed a written submission (AS) which annexed a proposed further amended application (Amended Application) which contained the following grounds (as written):
Ground 1
1.The second respondent (Tribunal) failed to consider an integer of a claim and failed to consider evidence material to the decision.
Particulars
a. The Tribunal failed to understand and consider the Applicant’s claim in respect to the temporary protection provided by the police in Colombia and the evidence in support.
b. The Tribunal failed to properly consider documentary evidence, the displaced victim certificate issued to the Applicant’s mother, which led to the Tribunal reaching an erroneous adverse credibility finding.
c. The Tribunal failed to consider the claim of being wrongly imputed as being collaborators of the guerrilla which led to the Tribunal erroneously finding there was no evidence the Applicant had any political profile.
Ground 2
1.The Tribunal made adverse credibility findings against the applicant which were legally unreasonable, irrational or illogical.
Particulars
a. The Tribunal’s finding the Applicant embellished her report to the psychologist and it was inconsistent with her claims was unsupported by any probative evidence.
b. The Tribunal’s finding the Applicant was not being truthful in her response during the Tribunal hearing was unsupported by any probative evidence and contrary to a fair reading of the transcript of the hearing.
c. The Tribunal’s finding that if the Applicant was genuinely of interest to the guerrillas and paramilitary then she would have been located and harmed before departing Colombia was based on an unwarranted assumption; and the finding that there was no evidence the Applicant suffered serious harm failed to consider the psychologist’s evidence.
d. The Tribunal’s finding of an alleged inconsistency about the timing of when she first made inquiries about leaving Colombia was minor and peripheral; yet it was used as the basis to disbelieve her claim. There was no inconsistency, in her oral evidence the Applicant was providing more detail and expanding upon her written evidence.
e. The Tribunal’s finding that it was effectively implausible that the Applicant would have visited her daughter and her sister would have visited her daughter if they genuinely feared persecution is unfounded. The Tribunal lacked any popular perception or everyday experience about Colombia to draw upon, and failed to consider the explanation of the sister.
f. The ease and willingness that the Tribunal made findings that the Applicant lied bespeaks of a ‘quest to disbelieve’.
On 27 March 2025, the first respondent filed a written submission (RS).
Hearing on 10 April 2025 and post-hearing submissions
At the hearing in this Court on 10 April 2025, Theresa Baw of counsel appeared for the applicants, and Tim Reilly of counsel appeared for the first respondent.
Leave was granted to the applicants to file and rely on the Amended Application. Ms Baw did not press ground 1(c) in the Amended Application.
A Court Book was tendered (CB) which contained the Tribunal’s decision and documents before the Tribunal. Ms Baw tendered an affidavit annexing a transcript of the hearing before the Tribunal.
Counsel then made oral submissions which supplemented their written submissions.
Following the hearing, the first respondent filed a supplementary submission on 24 April 2025 and the applicants filed a supplementary submission on 6 May 2025.
CONSIDERATION
Ground 1(a)
It is contended in ground 1(a) that “the Tribunal failed to understand and consider the Applicant’s claim in respect to the temporary protection provided by the police in Colombia and the evidence in support”.
The Tribunal stated at [58]:
The Tribunal noted the applicant's representative claimed that the authorities are unwilling or unable to protect the applicant. However it also noted her evidence that she had been protected by the authorities in the past when they warned her and her sister that people were looking [for] her sister. She indicated the authorities only protected her for one or two days. She had to change routes and move to a different city.
The Tribunal found at [93]:
The representative has also asserted the Colombian authorities have been unwilling or unable to protect the applicant's family, culminating in her brother-in-law's murder. On the evidence before it, the Tribunal is not satisfied the applicant's brother-in-law was murdered. It also notes the applicant's evidence that the authorities did in fact help her and her sister when they told them that men were going to harm her sister which appears to contradict the claim that the police will not protect her. As the Tribunal has serious doubts about the reliability of the applicant's evidence it is not satisfied that she and her sister returned to the sister's home and the police happened to be there to warn her sister of the imminent attempt on her life. It has considered the police report said to have been prepared after her sister reported to the police in January 2010 but notes it is only a record of what the applicant's sister alleged and not a confirmation of the sister's allegations and the applicant's claims. Accordingly the Tribunal is not satisfied the applicant has demonstrated that the Colombian authorities have been unwilling or unable to protect her family.
The applicants’ written submission appears to reveal two complaints with the Tribunal’s reasoning process at [93].
The first complaint is that “the Tribunal misunderstood the purpose of the police report” on the basis that the report “was never put by the Applicant that it was evidence that the authorities have been unwilling or unable to protect her family” and the Tribunal therefore “misunder[stood] the case being put by the Applicant”: AS [10]. The applicants add at AS [14] that the Tribunal “failed to meaningfully engage with the evidence” in the police report, and “the report [was] dismissed by the Tribunal without any evaluation of it at all”.
An English translation of the police report appears at CB 289-291. The police report records a complaint by the Applicant’s sister to the police on 4 February 2010 concerning an incident on 12 January 2020. According to the police report, the Applicant’s sister told the police that:
(a)While she was at home on 12 January 2010, two police officers arrived at her house and told her she would be attacked.
(b)About 20 minutes later the attackers arrived at the sister’s house but, when they saw the police, they left.
(c)A police officer then told the sister that the police “were [only] going to give [her] protection during the night and day”, and the sister should leave the city for her safety.
To the extent that the applicants appear to complain to the Court that it was not appropriate for the Tribunal to consider the police report in considering the applicants’ claim that the authorities were unwilling or unable to protect the Applicant’s family, I do not accept this complaint. The sister’s evidence to the effect that the police would give the sister protection for only 24 hours was clearly relevant to the Tribunal’s consideration of whether the authorities were unwilling or unable to protect the Applicant’s family. It was clearly appropriate for the Tribunal to consider the police report at [93].
In response to the applicants’ complaint to the Court that the Tribunal “failed to meaningfully engage with the evidence”, I disagree. The Tribunal’s summary of the police report at [93] indicates that the Tribunal read and considered the report. That the Tribunal did not accept “what the applicant’s sister alleged” (Tribunal at [93]) as true does not mean the Tribunal did not meaningfully engage with the evidence.
In response to the applicants’ complaint to the Court that “the report [was] dismissed by the Tribunal without any evaluation of it at all”, first, the report was not “dismissed” by the Tribunal. For example, the Tribunal did not reject the authenticity of the report. Second, the Tribunal’s summary of the report at [93] indicates that the Tribunal evaluated the report. That the Tribunal did not accept “what the applicant’s sister alleged” (Tribunal at [93]) as true does not mean the Tribunal did not evaluate the report.
The second complaint is that the Tribunal “failed to recognise, understand and evaluate the specific integers of the claim, that there was some police protection but it was very short term”: AS [11]. AS [11] refers to a submission the Applicant made at the hearing before the Tribunal that “the help the authorities provide to people is only momentarily” and “the kind of protection that the authorities can provide you is only for one day …”. AS [12] refers to the Applicant’s evidence in the 2015 Statement which repeats the sister’s evidence in paragraph 49(c) above, and a written assertion of the Applicant that “going to the police is temporary help”. The applicants’ complaint appears to be that the Tribunal, by not referring to these matters in the course of finding at [93] that it was “not satisfied the applicant has demonstrated that the Colombian authorities have been unwilling or unable to protect her family”, “failed to consider the case that was put by the Applicant” or failed to evaluate this part of the Applicant’s claims. I disagree. First, the Tribunal at [93] clearly considered and addressed the applicants’ claim that the Colombian authorities were unwilling or unable to protect the Applicant’s family. Second, the Applicant’s contention to the Tribunal that the police only provided short term or temporary protection was an aspect of the applicants’ claim that the authorities were unwilling or unable to protect the Applicant’s family. This aspect of the applicants’ claim was a central feature of the police report, since the sister said in effect that the police would only give her protection for 24 hours. The Tribunal was aware of and considered this evidence, but was “not satisfied that the applicant has demonstrated that the Colombian authorities have been unwilling or unable to protect her family”: at [93]. The Tribunal thereby considered, but was not persuaded by, this temporal element or integer of the applicants’ claims. Third, that the Tribunal did not at [93] expressly refer to the materials quoted at AS [11] and at AS [12] concerning this issue does not mean the Tribunal misunderstood or failed to address this integer of the applicants’ claim: see for example Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 (WAEE) at [46] – [47].
Ground 1(a) does not identify a jurisdictional error in the Tribunal’s decision.
Ground 1(b)
It is contended in ground 1(b) that “the Tribunal failed to properly consider documentary evidence, the displaced victim certificate issued to the Applicant’s mother, which led to the Tribunal reaching an erroneous adverse credibility finding”.
An English translation of the displaced victim certificate appears at CB 167. The English translation, which has a translation date of 17 November 2014, states in respect of the Applicant’s mother that she “is a victim of the armed conflict due to forced displacement, included in the database of the Sole Register of Victims (RUV) … with Status Recorded since 26 July 2013”. The certificate is dated 4 November 2014.
The Tribunal found at [88]:
The applicant has claimed that her mother has been the victim of violence and displaced for many years, since 1986. The Tribunal notes, however, that the applicant's mother did not receive her displaced victim certificate until November 2014, just before the visa application was made. While it accepts her mother may have applied for it earlier, it has concerns about this timing as it suggests that it might have been done in preparation for the applicant's visa application. The Tribunal accepts that many Colombians were affected by violence and displacement. However it is not satisfied the applicant's mother's certificate is sufficient evidence to support the applicant's claims that, before she came to Australia, she was targeted and received threatening phone calls, was asked about by male strangers, or that, in August 2013 she was so overcome with fear that she decided to leave Colombia.
The applicants’ complaint at AS [18]-[19] is as follows:
18. There were three dates relevant to the mother’s displaced victim certificate at CB176: (a) the date that the copy was received, which is 17 November 2014; (b) the date the request was issued, which is 4 November 2014; and (c) the date that the mother was registered on the register, which is 26 July 2013. The certificate states: “That [name of mother], … is a Victim of the armed Conflict due to forced displacement, included in the database of the Sole Register of Victims (RUV Spanish acronym), with Status Recorded since 26 July 2013.”
19. Tribunal considered the first two dates but failed to consider the last date. It failed to consider that the Applicant’s mother was recognised as a victim of the armed conflict and was placed on the register of victims on a date that predated the Applicant applying for a protection visa by more than a year and indeed it also predated the Applicant even departing Colombia. If the Tribunal had considered that evidence, it would have undermined a conclusion that it was applied for in preparation for the visa application. The evidence corroborates the Applicant’s claim that these events did occur before she left Colombia and contradicts the finding that she “has manufactured these claims in an attempt to strengthen her protection visa application”: CB561[89]. If the Tribunal had considered the date the mother was registered as a victim, one could expect that the Tribunal would have been referred to it, even if it were then rejected or given little weight: MZYTS and SZSRS.
It is asserted at AS [19] that the Tribunal “failed to consider” the date that the mother was registered on the register, being 26 July 2013 (Registration Date), but no reasoning process is provided to try to make good the assertion. It “is plainly not necessary for the Tribunal to refer to every piece of evidence … in its written reasons” (WAEE at [46]), prepared under s 430 of the Act, let alone every piece of information in every piece of evidence. That the Tribunal has not referred in its reasons for decision at [88] to the Registration Date does not, without more, mean the Tribunal failed to consider the date. In Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 at [33], a case on which the applicants rely, the Full Court stated that “a court considering a challenge to the Tribunal’s decision is generally entitled to infer that any matter not mentioned in the reasons was, at the very least, not considered by the Tribunal to be material to its review”. I infer that the Registration Date was not considered by the Tribunal to be material. Ms Baw did not in her written or oral submissions explain why the Registration Date was material. Further, Ms Baw acknowledged in oral submissions at the hearing on 10 April 2025 that the Applicant did not draw the Tribunal’s attention to the Registration Date.
It is clear from the Tribunal’s reasons at [88] that the Tribunal considered the displaced victim certificate. An onus lies on the applicants to persuade the Court that the Tribunal, although it clearly considered the displaced victim certificate, failed to consider the Registration Date: see Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 (SZGUR) at [67]; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; 109 FCR 152 (Singh) at [41] and [60]. The circumstances in which, on a judicial review application, the court will be persuaded that a decision-maker who considered a document overlooked one part of the document, are likely to be rare. Ms Baw has not explained why the Court should infer that, although the Tribunal considered the displaced victim certificate, it failed to consider the Registration Date.
I am not persuaded that the Tribunal failed to consider the Registration Date.
Ground 1(b) does not identify a jurisdictional error in the Tribunal’s decision.
Ground 2(a)
It is contended in ground 2(a) that “the Tribunal’s finding the Applicant embellished her report to the psychologist and it was inconsistent with her claims was unsupported by any probative evidence”.
The Tribunal stated at [80]:
The Tribunal has taken into account the psychological evidence provided. It notes the psychologist referred to the applicant's grief, loss and fear for her family's safety after many traumas and disappearances for political reasons. However when the applicant was asked to clarify this, as it appeared to be inconsistent with her claims, she confirmed it was only her father who had disappeared. She also confirmed to the Tribunal that she and her family had not been politically active. This suggests to the Tribunal that the applicant has embellished her reports to the psychologist about the possible causes of her grief, depression and anxiety. The Tribunal accepts the applicant may feel grief and loss about her father's disappearance in 1986, and grief and anxiety about the separation from her daughter since she came to Australia in 2013. However it is not satisfied the applicant's psychological condition impacted on her capacity to give her evidence. It has taken into account the psychological evidence and considered her presentation at the hearing, and it is satisfied that, at the hearing she had a fair opportunity to give her oral evidence, present her arguments as to why the delegate's decision was wrong and engage in a meaningful way.
The nub of the applicants’ complaint is explained at AS [54] as follows:
The Tribunal focuses on the use of a single word in the plural, namely “disappearances” to draw a conclusion that the applicant’s report to the psychologist was embellished and inconsistent with her claims, however this conclusion was without any probative foundation and based on a word inadvertently selected by the psychologist not by the applicant. When the report is read in its entirety, the psychologist is clearly of the understanding that the applicant reported only a single disappearance. The particularisation in the report cannot leave a reader in doubt that the word may have been used mistakenly by the psychologist.
To evaluate the applicants’ complaint, it is necessary to consider the psychologist’s reports dated 7 February 2016 and 10 October 2020 which appear at CB 259-267 and CB 512-513 respectively.
In the report dated 7 February 2016, the psychologist stated in section 2 of the report titled “Background information”:
Unfortunately her father was finally kidnapped by the ELN (National Liberation Army) and has been missing since 1986 …”
The psychologist stated in section 5 of the report titled “Conclusion”:
Throughout the assessment interview, [the applicant] was able to express how affected she is, due to the uncertainty she has been experiencing in relation to her life. Her symptoms and presentation were consistent with a picture of a person who has suffered in the ways that she described to me. Emotionally she was able to express her grief, loss and fear for her family safety after so many traumas and disappearances for political reasons…
In the report dated 10 October 2020, the psychologist stated:
There were many losses, disappearance of her father, murder of her brother in law and constant relocations and threats … Emotionally, she was able to express her grief, loss and fear for her family safety after so many traumas and disappearances for political reasons.
The applicants complain to the Court that the Tribunal’s concern “that the applicant has embellished her reports to the psychologist about the possible causes of her grief, depression and anxiety” “was without probative foundation”. For the following reasons, this complaint does not identify a jurisdictional error in the Tribunal’s decision.
First, the applicants assume that the Tribunal’s finding of embellishment was based on both:
(a)the Tribunal’s comment in the second sentence of [80] concerning an inconsistency between the word “disappearances” in the psychologist’s reports and the fact that only the Applicant’s father had disappeared; and
(b)the Tribunal’s comment in the third sentence of [80] which identified a tension between the phrase “for political reasons” in the psychologist’s reports (referred to in the first sentence of [80]) and the fact that the Applicant and her family “had not been politically active”.
However, it is not clear that the applicants’ assumption is correct. On one reading of the Tribunal’s reasons at [80], the finding of embellishment by the Applicant “about the possible causes of her grief, depression and anxiety” is based only on the Tribunal’s identification of a tension between the causal attribution “for political reasons” in the psychologist’s reports and the fact that the Applicant and her family “had not been politically active”. To put the point another way, on this reading of [80], the word “This” in the opening of the fifth sentence of [80]:
(a)refers to the tension between the causal attribution “for political reasons” in the psychologist’s report and the fact that the Applicant and her family had not been politically active (identified in the second and fourth sentences of [80]); but
(b)does not also refer to the inconsistency between the word “disappearances” in the psychologist’s report and the fact that only the Applicant’s father had disappeared referred to in the third sentence of [80].
On this reading of [80], the complaint in ground 2(a) fails.
I prefer the reading of [80] explained in the above paragraph. That is, it appears to me that the Tribunal intended that the second to fifth sentences of [80] be read as follows:
(a)In the second sentence of [80] the Tribunal referred to the conclusion of the psychologist that the Applicant “was able to express her grief, loss and fear for her family safety after so many traumas and disappearances for political reasons”.
(b)In the third sentence of [80], in light of the word “disappearances” used by the psychologist, the Tribunal confirmed with the Applicant at the hearing that it was only her father who had disappeared.
(c)In the fourth sentence of [80] the Tribunal recorded the Applicant’s evidence to the Tribunal “that she and her family had not been politically active”.
(d)In the fifth sentence of [80] the Tribunal reflected on the tension between the Applicant’s evidence to the Tribunal “that she and her family had not been politically active” and the psychologist’s record of the Applicant’s claims to the psychologist that the traumas and disappearances were “for political reasons”, and considered that “this” (first word in fifth sentence of [80]) tension “suggests to the Tribunal that the applicant has embellished her reports to the psychologist about the possible causes of her grief, depression and anxiety”.
That the phrase “for political reasons” concerns causal attribution and the Tribunal in the fifth sentence considered that it was “the possible causes” that were embellished is consistent with this reading of [80].
Second, even if the applicants’ reading of [80] is correct, one basis for the Tribunal’s finding of embellishment was that, according to the psychologist’s reports, the Applicant told the psychologist that the “many traumas and disappearances” she had experienced were “for political reasons”. Yet, the Applicant “confirmed to the Tribunal that she and her family had not been politically active”. The Tribunal appeared to describe this difference between the Applicant’s claims to the psychologist (that the traumas and disappearances were “for political reasons”) and to the Tribunal (that the Applicant and her family “had not been politically active”) as “inconsistent”. I consider that this difference between the Applicant’s claims to the psychologist and the Applicant’s claims to the Tribunal provided a probative foundation for the Tribunal’s concern that the Applicant “has embellished her reports to the psychologist about the possible causes of her grief, depression and anxiety”.
Third, it is asserted at AS [56] that “the Tribunal made an adverse credibility finding against the Applicant of embellishment and inconsistency”. I disagree. The applicants’ submissions do not explain how the Tribunal’s concern of embellishment at [80] contributed to an adverse credibility finding against the Applicant. The Tribunal’s reasons at [80] indicate that the Tribunal’s concern about embellishment was a step towards the Tribunal’s finding in the last sentence of [80] that it was “satisfied that, at the hearing, [the Applicant] had a fair opportunity to give her oral evidence, present her arguments as to why the delegate’s decision was wrong and engage in a meaningful way”. The concern of embellishment served no other purpose in the Tribunal’s reasons for decision. I agree with the first respondent’s submission at RS [35] that “there is nothing at [80] to suggest that the Tribunal made an adverse credibility finding about the applicant on the basis of information she provided to the psychologist”, and at RS [36] that “the Tribunal did not refer to this aspect of the psychologist’s report anywhere else in the reasons to form the basis of an adverse credibility finding or to reject the applicant’s substantive claims”.
Ground 2(a) does not identify a jurisdictional error in the Tribunal’s decision.
Ground 2(b)
It is contended in ground 2(b) that “the Tribunal’s finding the Applicant was not being truthful in her response during the Tribunal hearing was unsupported by any probative evidence and contrary to a fair reading of the transcript of the hearing”.
The Tribunal stated at [83]:
The Tribunal is also of the view that if the applicant was genuinely of interest to guerrillas since 1986, and the paramilitary since 2006, the applicant would have been located and harmed before she departed Colombia in 2013. While she purports to have been 'persecuted' since 1986, there is no evidence to suggest she has suffered serious harm herself. Her claims regarding the harm she suffered are vague and inconsistent. When asked by the Tribunal about the difficulties she had before coming to Australia, she initially indicated that in August 2013 she was living in Bogota when some men went to her former address asking about her, as told by a lady renting a room there. She confirmed that was all that happened. The Tribunal is not satisfied this is reliable evidence that anyone intended to harm her. When the Tribunal asked what had happened to her immediately before that incident, to cause her fear, she indicated in 2010 some men went to her sister's place making enquiries. It was only when the Tribunal asked her to confirm that it was just those two incidents in the three years, 2010 to 2013, that the applicant repeated some of her earlier claims about events in that period. However she did not repeat the claims about receiving threatening phone calls until later in the hearing. The Tribunal is of the view the applicant's oral evidence suggests she was not being truthful in her responses. It has taken into account her evidence that she has anxiety and depression but it is not satisfied that this condition impacted on her capacity to give truthful evidence. It has serious concerns that her claims that she was being sought out, followed and threatened are contrived. It notes during the period 2006 to 2013, the applicant was able to work and save sufficient funds to travel to Australia to study. It is not satisfied the applicant needed to change her phone number and the routes to work because she was of interest to guerrillas and/or the paramilitary. It is of the view that, if there was intention to find her and harm her over those years, the applicant would have been located and harmed.
The focus of the applicants’ complaint in this Court is on the sentence in [83] that “the Tribunal is of the view the applicant’s oral evidence suggests she was not being truthful in her responses”. It is stated in ground 2(b) that this finding “was unsupported by any probative evidence”. Similarly, it is stated at AS [58] that “the basis upon which the Tribunal concludes that the Applicant is being untruthful is unsupported by any probative evidence”.
For the following reasons, I consider that the Tribunal’s concern that the Applicant “was not being truthful in her responses” was supported by probative evidence. The Tribunal stated in the third sentence of [83] that the Applicant’s “claims regarding the harm she suffered are vague and inconsistent”. The Tribunal then:
(a)in the fourth to sixth sentences provided an example of the manner in which the Applicant’s claims were “vague”; and
(b)in the seventh to ninth sentences provided an example of the manner in which the Applicant’s claims were “inconsistent.
In relation to the example of the manner in which the Applicant’s claims were “vague”, the Applicant’s evidence to the Tribunal concerning the incident in August 2013 which she claimed caused her to flee Colombia was as follow (P-13):
TM: … When did you last have personal difficulties because of these circumstances in Colombia, when was it?
A: In 2013. August 2013.
TM: Where were you living at the time?
A: In Bogota, Colombia.
TM: What happened?
A: So, some men went to my former address, where I was living before I had already moved out of that address. And so some men came asking for me, asking where I was.
TM: How do you know that?
A: The lady who had rented the room to me told me that those people had come asking for me.
TM: Was that all that happened, people asking about you?
A: Yes.
It appears from the Tribunal’s reasons at [83] that the Tribunal described this evidence (summarised by the Tribunal in the fourth and fifth sentences of [83]) as “vague” in the third sentence of [83]. In a context where the Applicant claimed in the 2015 Statement at [103] and [104] that this incident caused the Applicant to be “overcome by fear”, the Applicant “cried and did not know where to go to hide”, and this incident caused the Applicant to then flee Colombia, I consider that it was open to the Tribunal to describe the Applicant’s evidence as vague. For example, her oral evidence of the incident was bereft of any detail to explain what the men said which caused the Applicant to be “overcome by fear”.
In relation to the example of the manner in which the Applicant’s claims were “inconsistent”, as explained in paragraph 6(d) above, the Applicant’s principal claim in the 2015 Statement of harm and/or fear of harm to the Applicant between the formation of the Black Eagles paramilitary group in 2007 or 2008 and the time she left Colombia in November 2013 was the threatening phone calls. In the 2015 Statement at [91] and [93] she described the threatening phone calls as “horrible” and “frequent”. During the hearing before the Tribunal on 24 November 2020, her evidence at P-18 and P-19 was that it was the Black Eagles paramilitary who made the “threatening calls” and they said “they were going to … end with everybody who are guerillas” (P-18 lines 37-42), the threatening calls continued up to 2012 (T-19 line 6), and “they would call many times and they would make threats against myself and my family” (T-19 lines 19-20).
Yet, despite the fact that the threatening phone calls were the sole form of direct threats to the Applicant, the Applicant did not refer to the threatening phone calls when the Tribunal member initially asked her about difficulties she faced in Colombia. The questions and answers at P-13 and P-14 were as follows:
TM: … When did you last have personal difficulties because of these circumstances in Colombia, when was it?
A: In 2013. August 2013 … Some men went to my former address … And so some men came asking for me, asking where I was.
…
TM: The time before that, when was the last time you had difficulties?
A: In 2010, when somebody came to my sister’s house to perpetrate an attack.
TM: I am going to talk to you about that a bit later. There were three years between the issues?
A: So sorry, also in 2011, when I travelled from … Bogota to Sabanagrande, somebody came to my sister’s … place asking about me, asking who I was … and I got very frightened, because every time that somebody came asking that sort of question, that meant that they had found us.
Once one appreciates that the threatening phone calls were the sole form of direct threats to the Applicant between 2007/2008 and November 2013, it is significant that the Applicant did not refer to the threatening phone calls in the exchange in the above paragraph.
This is the inconsistency explained by the Tribunal in the seventh to ninth sentences of [83].
In AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 (AVQ15) at [28], the Full Court stated that “even where it is reasonably open to find that a person has given inconsistent evidence, the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it”. The applicants do not contend in the Amended Application or in the applicants’ written submission to the Court that the Tribunal failed to assess the significance of the inconsistency explained above and the weight to be given to it. In any event, I consider that the Tribunal assessed the significance of the inconsistency by its suggestion or concern that, based in part on the inconsistency, the Applicant “was not being truthful in her responses”.
Further, as in BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189; 281 FCR 594 (BJO18) at [155], I consider that the inconsistency, in light of its significance, was “capable of informing the [Tribunal’s] assessment as to whether or not the [Applicant’s] claims should be believed”.
The Tribunal stated at [83]:
The Tribunal is of the view the applicant’s oral evidence suggests she was not being truthful in her responses.
Ground 2(b) states that, by this sentence, the Tribunal found that “the Applicant was not being truthful in her response during the Tribunal hearing”. It is stated at AS [58] in relation to this sentence that “the Tribunal concludes the Applicant is being untruthful”. A question is the scope of the “responses” in respect of which the Tribunal was concerned the Applicant “was not being truthful”. For example, was the Tribunal suggesting that the Applicant was not being truthful:
(a)in all her responses during the hearing on 24 November 2020; or
(b)in all her responses concerning her “claims regarding the harm she suffered” (which would link the Tribunal’s suggestion with the third sentence at [83]); or
(c)in her responses concerning the threatening phone calls (which would link the Tribunal’s suggestion with the seventh to ninth sentences at [83]).
The scope of the “responses” in respect of which the Tribunal suggested the Applicant “was not being truthful” is not entirely clear. I consider that the better or more likely reading of this sentence is that the Tribunal was intending to express concern that the Applicant was “not being truthful” in her responses concerning the threatening phone calls. For reasons explained above, the Applicant’s failure to refer to the threatening phone calls in response to the Tribunal’s questions set out in paragraph 85 above provided a clear basis for the Tribunal’s finding.
Even if the Tribunal was intending to express concern that the Applicant was “not being truthful” in all her responses concerning her “claims regarding the harm she suffered”, given that the Tribunal found that the claims were “vague and inconsistent”, and the Tribunal provided one clear example of the manner in which the claims were “vague” and one clear example of the manner in which the claims were “inconsistent”, the Tribunal’s reasons “disclose a logical and intelligible basis” (Minister for Immigration and Border Protection v Gill [2019] FCAFC 9; 268 FCR 575 at [54]) for the Tribunal’s concern that the Applicant “was not being truthful in her responses”.
For the above reasons, ground 2(b) does not identify a jurisdictional error in the Tribunal’s decision.
Ground 2(c)
It is contended in ground 2(c) that “the Tribunal’s finding that if the Applicant was genuinely of interest to the guerrillas and paramilitary then she would have been located and harmed before departing Colombia was based on an unwarranted assumption; and the finding that there was no evidence the Applicant suffered serious harm failed to consider the psychologist’s evidence”.
This ground challenges some findings by the Tribunal at [83], set out in paragraph 79 above.
The applicants’ first complaint is explained at AS [65] as follows:
The first sentence and last sentence of the finding at [83] relies on an unwarranted assumption about the guerrillas and the paramilitary. There was no material before the Tribunal which would ground any finding of the methods used by the Colombian guerrillas and the paramilitary, nor the geography covered and the length of time that each group pursues their targets. There is also nothing before the Court to suggest that the Tribunal drew on personal or specialised knowledge about those matters: see Djokovic. Nor can it be said that such a finding would be by reference to that which is commonly known, as there is no evidence that the Tribunal had any familiarity with ordinary human experience in Colombia. The Tribunal made an unwarranted assumption without any connection with country information, material or common experience of Colombian guerrillas or the Colombian paramilitary: SZHYH, BZD17. There is also an inherent problem in making a conclusion of implausibility put in the negative; i.e. the Applicant evading capture does not evidence that there was no search for her, it may simply be evidence that she was not caught.
However, this complaint overlooks material in the delegate’s decision dated 19 January 2017 about guerilla groups in Colombia. The delegate’s decision:
(a)contains detailed information about the guerilla groups including that “these groups have a vast support network of logistical experts…and manages militia groups in the cities”: CB 349-350;
(b)records the Applicant’s evidence to the delegate at the interview in February 2016 that the guerilla groups “are more powerful than the Colombian government and have wide networks throughout the country” (CB 353); and
(c)includes the following finding by the delegate (CB 354)
As noted above, guerrilla groups have wide networks that monitor activities of those they wish to target and it seems highly unlikely that they would have threatened her repeatedly over so many years and then never found her or her mother despite their wide resources. If indeed they were aiming to kill her or her mother they would have succeeded to carry out their threats.
The delegate’s decision was part of the materials before the Tribunal and was expressly considered by the Tribunal at [15]-[30].
At the hearing on 10 April 2025, I drew Ms Baw’s attention to these parts of the delegate’s decision. She stated that the material in the delegate’s decision “does not go far enough” to support the finding of the Tribunal the subject of the applicants’ complaint, but she did not explain why the material does not go far enough. I consider that the material in the delegate’s decision, which included evidence from the Applicant, provided a probative basis for the Tribunal’s findings in the first and last sentences of [83].
It follows that, contrary to AS [65], there was material before the Tribunal which grounded the findings in the first and last sentence of [83]. For this reason, this complaint does not succeed.
The applicants’ second complaint is explained at AS [66] as follows:
The Tribunal’s finding that there was no evidence that the Applicant suffered serious harm herself overlooked, ignored or failed to consider the psychological evidence. There are two reports from same psychologist, the first dated 7 February 2016 …, and second report later report dated 10 October 2020 …. The first report diagnoses the Applicant with PTDS and moderate depression. The basis of that diagnosis is supported by detailing of the events experienced by the Applicant in Colombia which is consistent with her claims and the evidence in the proceedings. The last report states that the Applicant has continued to receive psychological treatment for about the past 4 years, from 2017 to 2020, and that she still experiences symptoms of PTSD and depression “as a consequence of the described life events”: CB513.
For the following reasons, this complaint does not identify a jurisdictional error in the Tribunal’s decision.
First, the Tribunal referred to and considered the psychologist’s reports at [14], [31], [61] and [80]. It is clear from these paragraphs that the Tribunal considered the psychologist’s reports, including the content of the reports, in making its decision. That the Tribunal did not expressly refer to the psychologist’s reports in its decision at [83] does not mean the Tribunal did not have regard to the psychologist’s reports in making its findings at [83].
Second, the applicants’ complaint at AS [66] appears to be that the Applicant’s mental health conditions of PTSD and moderate depression diagnosed by the psychologist in February 2016 were a form of “serious harm” the subject of the Tribunal’s consideration in the second sentence of [83]. This complaint misunderstands the second sentence of [83]. When one reads the second sentence with the first sentence, the Tribunal’s reference to “serious harm” in the second sentence was serious harm from guerillas or the paramilitary “before [the Applicant] departed Colombia in 2013”, which was the focus of the first sentence. In the second sentence of [83] the Tribunal was not intending to refer to harm suffered by the Applicant following her arrival in Australia. Further, the psychologist did not give evidence that the Applicant suffered psychological harm while she lived in Colombia. Further, as stated by the first respondent at RS [55], “the Applicant did not claim that her psychological conditions alone met the definition of serious harm for the purpose of s 5J of the Act”.
For the above reasons, ground 2(c) does not identify a jurisdictional error in the Tribunal’s decision.
Ground 2(d)
It is contended in ground 2(d) that:
The Tribunal’s finding of an alleged inconsistency about the timing of when she first made inquiries about leaving Colombia was minor and peripheral; yet it was used as the basis to disbelieve her claim. There was no inconsistency, in her oral evidence the Applicant was providing more detail and expanding upon her written evidence.
This ground challenges the Tribunal’s findings at [85] as follows:
The Tribunal also notes the applicant's evidence about getting information to leave Colombia for Australia is inconsistent. In her written claims she indicated that in August 2013 local residents alerted her that male strangers came looking for her. She was overcome by fear so she asked a young man who was living in her house and he told her that he had a friend who was studying in Australia. He gave her the contact details of an agent. However in her oral evidence to the Tribunal she indicated she first started making enquiries about leaving Colombia in September 2013. Initially she indicated a man living in her place told her that she could study overseas. She then corrected her evidence and said he had already told her about this before the last incident, in August 2013. She indicated she had previously told him she wanted to leave Colombia and they were having a general conversation about going overseas and she told him she would like to go overseas to study.
The applicants’ written submission appears to make three complaints concerning the Tribunal’s reasoning process.
The first complaint is explained at AS [69] as follows:
The Tribunal transcript demonstrates that the Tribunal simply labelled something [as] “inconsistent” but on a deeper analysis, the Applicant was merely expanding on the account that she gave in her written statement, there was no objective inconsistency. In her written statement she does not state that her conversation with the man was the first time she ever had that conversation: CB221[103]. At the Tribunal hearing, there was no correction, the Applicant simply gave more information than in her statement that about the number of times that she had a conversation with the man about going overseas to study. There was no indication that she was struggling to remember what was in her statement, she expanded upon her evidence with more detail…
For the following reasons, I consider that it was open to the Tribunal to find that “the applicant’s evidence about getting information to leave Colombia for Australia was inconsistent”.
The Applicant stated in the 2015 Statement at [103]-[104]:
In August 2013 male strangers went to the suburb of Marcela to look for me and the local residents alerted me that the people who were searching for me were not pleasant … I was overcome by fear … I was desperate … So I asked a young man who was living in the house where I was renting a room and he had a friend who was studying in Australia. He gave me the contact details of the agency. I went and asked …
Pages 14 and 15 of the transcript record the following exchange between the Tribunal member and Applicant concerning this topic:
TM: When did you first start making inquiries about leaving Colombia?
A: The first time I started making inquiries about leaving Colombia was in September 2013.
TM: Tell me about how you made enquiries, what did you do, who did you talk to?
A: So, in the place where I was sleeping, one of the rooms was rented by one guy who told me that - about the existence about this student agency or agency for students, that helped people go or leave the country, to go and study somewhere else. And he had already told me about this, and then when these men came looking for me in Bogota, that prompted me to go, desperately, to this agency, and make enquiries. I told them that I wanted to leave the country, I didn’t tell them why, and they told me that perhaps we should apply for a Student visa.
TM: Sorry, when did he tell you about leaving the country and going to Australia, this man?
A: No, so, we didn’t talk about having – or me leaving the country, one day we have this conversation in which he said that he would like to leave the country and – as well and – but he didn’t tell me anything about coming to Australia specifically.
…
TM: The way your written statement I written, you have asked this man, made enquiries about living in Australia of this man, after the problem of August 2013 … so when did you have the conversation with him about coming to Australia, that implies it was after the problem?
A: So, before that we had already – I had already had a conversation with this young man, just a general conversation about Australia. But at that point, that was earlier, a few months before what happened in 2013. So, at the time that this thing happened … I went to him and I ask him and that is when he gave me the information about this agency.
I consider there is a clear and obvious inconsistency between the Applicant’s versions of events in the 2015 Statement at [103]-[104] and in oral evidence to the Tribunal. The Applicant stated in the 2015 Statement at [103]-[104] that, after the August 2013 incident, she spoke with the young man who rented a room in the same house, the young man “gave [the Applicant] the contact details of the [student] agency”, and the Applicant then contacted the student agency. But the Applicant initially told the Tribunal that the young man told the Applicant about the student agency before the August 2013 incident so that, upon the August 2013 incident occurring, “that prompted [the Applicant] to go [directly] to this agency and make enquiries”: P-14 lines 25-30. That the Applicant changed her evidence at P-15 after the Tribunal member put the inconsistency to her does not avoid the inconsistency
In light of the clear and obvious inconsistency in the Applicant’s versions of events, it was open to the Tribunal to make a finding of inconsistency in the first sentence of [85].
The second complaint is that, even if it was open to the Tribunal to find in the first sentence of [85] that the Applicant’s evidence was inconsistent, “contrary to AVQ15 at [28], it failed to assess the significance of that alleged inconsistency and the weight to be given to it”: AS [70].
In AVQ15 at [28] the Full Court stated that “even where it is reasonably open to find that a person has given inconsistent evidence, the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it”.
An onus lies on the applicants to persuade the Court that the Tribunal failed to assess the significance of the inconsistency and identify matters which permit the Court to infer that the Tribunal failed to assess the significance of the inconsistency: see SZGUR at [67]; Singh at [41] and [60]. In the present matter, as in BJO18 at [157], “the basis or bases upon which this court might infer such failures were not explored beyond assertion” by the applicants.
Where the Tribunal assesses the significance of an inconsistency and the weight to be given to it, the Tribunal’s statutory obligation to give reasons under s 430 of the Act does not require the Tribunal to record the assessment. Therefore, as in BJO18 at [157], the fact that the Tribunal’s reasons do not include an assessment of the significance of this inconsistency and the weight to be given to it does not mean the Tribunal did not consider this issue.
I am not persuaded that the Tribunal failed to consider the significance of the inconsistency. In relation to the Applicant’s evidence about getting information to leave Colombia for Australia, the inconsistency explained in paragraph 114 above was objectively significant. Based on the inconsistency, the Tribunal at [85] did not accept the Applicant’s evidence about getting information to leave Colombia for Australia. It appears from the Tribunal’s reasons at [85] that the Tribunal assessed the significance and weight of the inconsistency, considered that the inconsistency was significant and, on the basis of the inconsistency, did not accept the Applicant’s evidence about getting information to leave Colombia for Australia.
The third complaint, explained at AS [71], is:
The Tribunal’s finding that the Applicant worked and saved $6000 to $8000 over a period of two years is demonstrative of her preparing to study overseas long before August 2013, is also illogical and irrational. The fact that the Applicant saved money is not demonstrative of what she was saving money for, there is no logical or rational connection to any inference that it was to study. Again the finding lacks any probative foundation.
The Applicant gave the following evidence at the hearing before the Tribunal in November 2020:
TM: You had funds to pay for the visa, to pay for the airfares, to pay for the courses, to support yourself when you came here. How much did all of that cost you?
A: … I don’t remember exactly how much the course cost because that was quite a long time ago, but I think maybe around $8,000 or $6,000. The airfare was about $1,500. And I have been working for two years for – to save money for whatever I needed it for. So I did have my savings for when I needed them.
The Tribunal at [85] considered the Applicant’s evidence about getting information to leave Colombia. The structure of the Tribunal’s reasons is as follows:
(a)The Tribunal firstly explained an inconsistency in the Applicant’s evidence about getting information to leave Colombia.
(b)The Tribunal then expressed an opinion, based on its observation of the Applicant giving evidence at the hearing, that “it appeared … the applicant may have been struggling to remember her written claims”.
(c)The Tribunal then accepted “the applicant may have had a conversation with a man living in her house about studying overseas”, but was “not satisfied that conversation arose because of any fear, or as a consequence of anything frightening happening in August 2013”. By this latter finding, the Tribunal rejected the Applicant’s explanation of how she got information to leave Colombia for Australia. The Tribunal rejected the Applicant’s explanation for the reasons previously provided at [85], one of which was the inconsistency in the Applicant’s evidence.
(d)The Tribunal then expressed a view, again following from its rejection of the Applicant’s explanation of how she got information to leave Colombia for Australia, that “the applicant had been preparing to study overseas long before August 2013”. Given that the Tribunal had rejected the Applicant’s explanation of how she got information to leave Colombia for Australia, I consider that it was open to the Tribunal to express a view about when the Applicant commenced considering studying overseas.
(e)The Tribunal then stated that its view that the Applicant had been preparing to study overseas long before August 2013 was “demonstrated by her working and saving $6,000 to $8,000 over a period of more than 2 years”.
The applicants’ complaint is that it was not open to the Tribunal to make the finding in sub-paragraph (e) above, that is find that its view that the Applicant had been preparing to study overseas long before August 2013 was “demonstrated by her working and saving $6,000 to $8,000 over a period of more than 2 years”.
I disagree with the applicants’ complaint. There is a clear consistency between the Tribunal’s view that “the applicant had been preparing to study overseas long before August 2013” and the Applicant’s evidence explained in paragraph 122 above. It was clearly open to the Tribunal to find that its view was demonstrated by the Applicant’s evidence.
Ground 2(d) does not identify a jurisdictional error in the Tribunal’s decision.
Ground 2(e)
It is contended in ground 2(e) that:
The Tribunal’s finding that it was effectively implausible that the Applicant would have visited her daughter and her sister would have visited her daughter if they genuinely feared persecution is unfounded. The Tribunal lacked any popular perception or everyday experience about Colombia to draw upon, and failed to consider the explanation of the sister.
The applicants’ written submission under this ground makes separate challenges to the Tribunal’s findings at [84] and [96].
Challenge to Tribunal’s finding at [84]
The Tribunal stated at [84]:
The Tribunal notes in her written claims that the applicant stated she was receiving threats by telephone and had to change her number several times. She claimed to avoid endangering her daughter and mother-in-law's family, in March 2010 she relocated to Bogota. …. In December 2011 she visited her mother and daughter. However at her hearing she claimed that they started threatening her in 2010 and then several times in 2011 when she received threatening phone calls. She indicated this was happening before she stayed with her daughter and mother-in-law. She indicated she stayed with her daughter and mother-in-law because she did not have anywhere else to go. The Tribunal asked when it was that she stayed with her daughter and mother-in-law. She indicated it was in January 2010. The Tribunal accepts that these events are purported to have occurred a long time ago and it may be difficult to remember precise dates. However it has serious concerns about the applicant's claims that she left her daughter in the care of her father and mother-in-law to avoid endangering, yet when she thought she was in danger herself, she stayed with her daughter. The Tribunal does not accept the applicant had nowhere else to go. It does not accept that even staying for only a short period explains her decision to stay with her daughter, if it was the case she was trying to protect her daughter from harm. It is of the view that, if the applicant genuinely feared she was being sought out to be harmed, she would not have gone to stay with her daughter. It is not satisfied the applicant feared endangering her daughter. It is concerned this claim has been manufactured.
It is stated at AS [75] and [78] that, in relation to the Tribunal’s finding that it had “serious concerns about the applicant’s claims that she left her daughter in the care of her father and mother-in-law to avoid endangering, yet when she thought she was in danger herself, she stayed with her daughter”:
(a)“the situation was assessed from an Australian decision-maker in a developed country, not assessed from the perspective of a mother with first-hand past experiences living for years in Colombia while moving locations to avoid detection”;
(b)“there was no popular perception or everyday experience for the Tribunal to draw on about Colombia which is apparent on the evidence”; and
(c)“the Tribunal failed to consider the perspective of being a mother and that she wished to see her daughter”.
For the following reasons, the applicants’ complaint does not identify a jurisdictional error in the Tribunal’s decision.
First, I found it difficult to understand the precise nature of the jurisdictional error advanced by Ms Baw on behalf of the applicants.
Second, the applicants’ complaints about the Tribunal’s reasoning process appear to overlook the fact that, based on the Tribunal’s reasoning process at [84], the Tribunal’s finding of “serious concern” was based to a notable extent on an inconsistency in the Applicant’s claims. The inconsistency is between the Applicant’s claim that “she left her daughter in the care of her father and mother-in-law to avoid endangering” her, and the Applicant’s claim that she stayed with her daughter “when she thought she was in danger herself”. This basis for the Tribunal’s “serious concern” did not rely on any “popular perception”.
Third, in relation to the assertion that the Tribunal “failed to consider the perspective of being a mother”, Ms Baw has not explained why the Court should infer that the Tribunal failed to consider the perspective of being a mother. In the meantime, it appears evident that the Tribunal considered the perspective of being a mother. The Tribunal had serious concerns, as would many decision-makers, that a mother who cares for her daughter would endanger her daughter by staying with her not long after receiving “threatening phone calls” (Tribunal at [84]), being calls in which the caller “accused [the Applicant] of being guerilla collaborators” and which were “horrible” (2015 Statement at [91]).
Challenge to Tribunal’s finding at [96]
The Tribunal stated at [96]:
The Tribunal has taken into account the statutory declarations provided by the applicant from various witnesses, supporting her claims to have had difficulties in Colombia. It is not satisfied those statements overcome the problematic nature of the applicant's evidence, as discussed above. It notes her claims are essentially repeated in those statements, including from her sister [S], that the applicant stayed with her former mother-in-law for a period of time but threats continued so she had to change her telephone number several times and ended up returning to Bogota. [S] also asserts that she heard that some men turned up in Bogota asking about the applicant. The Tribunal notes from evidence provided by the applicant that [S] left Colombia on 12 July 2017 to live with her husband in London but that [S] returned to Colombia in July 2019 and stayed for a month. The Tribunal is of the view this strongly suggests [S] was not fearful of returning to Colombia, despite the claims that her husband was murdered by the Black Eagles, casting further doubt on the claim that her husband was murdered, and on the claim that the family is of adverse interest to guerrillas and the paramilitary. The Tribunal is of the view this casts significant doubt on the reliability of the witness's assertions.
The Applicant’s sister stated in a statement dated 6 November 2020 at CB 521:
I went to Colombia in July 2019 I needed to get some documents because I am in the process (words missing) to be able to bring my children and my mother. I arrived in the city of Barranquilla (Atlantico) and reunited with them because I needed to see them. I was only there for a month I already had to return to London (England). I could not endanger my life and those of my family. I just want to reunite with them here and for all [of] us to be safe.
The applicants’ complaint at AS [80] is that “the Tribunal failed to consider the sister’s explanation in reaching its finding at … [96]” and “it failed to contemplate that in the direct experience of the sister, having lived in Colombia, it was safe for her to be there for only a month, and from the perspective of a mother it was a worthwhile the risk to obtain the necessary documents for them to unite with her in the UK.”
In relation to the assertion that “the Tribunal failed to consider the sister’s explanation in reaching its finding”, it is clear from the Tribunal’s decision at [96] that the Tribunal considered the sister’s statement at CB 514-521. The applicants must persuade the Court that the Tribunal, despite considering the statement, did not consider a particular paragraph of the statement. The circumstances in which, on a judicial review application, a court will be persuaded that the Tribunal considered most of a witness’s statement, but overlooked one part of the statement, are likely to be rare. Ms Baw has not explained why the Court should infer that the Tribunal overlooked the sister’s explanation. I am not persuaded that the Tribunal overlooked or failed to consider the sister’s explanation.
In relation to the assertion that the Tribunal “failed to contemplate [an aspect of] the direct experience of the sister”, the meaning of this complaint is unclear, as is the manner in which it might constitute a jurisdictional error.
Ground 2(e) does not identify a jurisdictional error in the Tribunal’s decision.
Ground 2(f)
It is contended in ground 2(f) that “the ease and willingness that the Tribunal made findings that the Applicant lied bespeaks of a ‘quest to disbelieve’”.
The applicants’ written submission does not address or explain ground 2(f). AS [33] states that in EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518 at [148] the court “warned against a quest to disbelieve in reaching a conclusion of fabrication against an applicant”. Taking into account the vagueness of ground 2(f) and the absence of a written submission addressing or explaining the ground, I am not persuaded that ground 2(f) identifies a jurisdictional error in the Tribunal’s decision.
COSTS
I will hear submissions on costs at the delivery of judgment.
I certify that the preceding one hundred and forty-three (143) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 17 June 2025
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