AQV16 v Minister for Immigration

[2017] FCCA 904

FEDERAL CIRCUIT COURT OF AUSTRALIA

AQV16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 904

Catchwords:
MIGRATION – Refusal by AAT to grant protection visa – credibility – judicial review – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.195

Cases cited:
CGQ15 v The Minister [2016] FCAFC 146
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Applicant: AQV16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 87 of 2016

Judgment of: Judge Young

Hearing date: 7 April 2017

Date of Last Submission: 7 April 2017

Delivered at: Darwin

Delivered on: 7 April 2017

REPRESENTATION

Counsel for the Applicant: Mr S. Ower

Solicitors for the Applicant: MSM Legal

Counsel for the Respondents: Mr D. O’Leary

Solicitors for the First Respondent: Sparke Helmore Lawyers

ORDERS

1. The application filed 29 June 2015 be dismissed.

2. The Applicant pay the Respondent’s costs of and incidental to the application fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

No. ADG 87 of 2016

AQV16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgement were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘AAT’) to affirm the decision of a delegate to refuse the applicant a protection visa.  The grounds have been narrowed very considerably and the applicant moved only on a single ground although with multiple sub-grounds set out in paragraph 3 of the initial application.  These were really an attack on the Tribunal’s credibility findings against the applicant.

3. It was said by the applicant’s counsel, quite properly, and this was agreed by the counsel for the Minister, that credibility findings may be the subject of judicial review for jurisdictional error if there is not a probative or evident or logical or rational basis for the conclusion and I think both counsel referred to the decision in CGQ15 v The Minister [2016] FCAFC 146, a relatively recent decision of the Full Court of the Federal Court, and counsel for the Minister also referred to Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, in particular, at paragraphs 131 and 135 which I will not read in their entirety but which I will refer to.

4. The nub of those paragraphs is that the test for irrationality or illogicality is not whether there might be different views or whether there might be different reasonable views but whether there is only one conclusion that might be reached and the decision-maker has not reached it.  In other words, that the decision was not open on the material available to the decision-maker.

5. This led to a detailed consideration of the Tribunal’s findings.  The credibility findings that were said to be lacking sufficient probative or evident basis or, in other words, were irrational were six.

6. The factual matrix or the narrative set out by the applicant is as follows.  The applicant is from Bangladesh. He said that in April 2012 he had travelled to a neighbouring village to meet his friend, Mijanu, and, in the neighbouring village, he was having breakfast with Mijanu and, while he was having breakfast, a fight developed near or in front of something called a rail gate in the village and in that fight or brawl a young man was injured and later died.

7. The applicant said that he later heard that the police were making inquiries about him and he initially went into hiding and then eventually fled to Australia.  That is it in very basic terms.  What was said ultimately was that the refugee claim was based on a claim that he would be imputed with a political opinion being the opinion of his friend, Mijanu, with whom he had had breakfast because, as the narrative unfolded, it was said that the applicant and Mijanu became involved in the fight and it was ultimately said to be a fight over politics.

8. The Tribunal examined the applicant’s narrative carefully and, as I have mentioned, there were six particular matters that were said to be evidence of an inconsistency, or in one case perhaps, an implausibility that permitted the Tribunal to conclude that the applicant lacked credibility and his narrative was untruthful in its entirety.

9. The six matters were as follows.  In the applicant’s written claims, and I will call it a statement of claims, prepared with professional assistance and provided in support of his protection visa application he had said that he had travelled some 90 minutes to Mijanu’s village or, at least, that Mijanu’s village was 90 minutes away from his own.  In an earlier hearing before a differently constituted Tribunal the applicant had said that the time between the two villages or between Mijanu’s village and the applicant’s home was two and a half to three hours.

10. The Tribunal questioned the applicant about the apparent discrepancy between those statements and it is apparent from paragraph 29 that the applicant said, essentially, that the explanation for the discrepancy between the explanations is that it depends on the mode of transport being used.  On the face of it, that appears to be a perfectly reasonable explanation and, without more, I agree with counsel for the applicant that that would be a very flimsy basis for making an adverse credibility finding against the applicant.  Counsel for the Minister conceded as much.

11. However, counsel for the Minister pointed out that the Tribunal had found the explanation to be vague and unpersuasive.  My interpretation of that phrase, in the context of this case, is that it was unpersuasive because it was vague.  Counsel for the Minister pointed to three indicators of vagueness in the applicant’s narrative.  Again, in paragraph 29, the Tribunal recorded the applicant as saying that the discrepancy in the times may, and I emphasise may, be due to the mode of transport adopted, it may have been because he was taking a mode of private transport in reference to the shorter journey time. He later said that there are some, and again I emphasise some, means of transport that are slower than others.

12. The description vague there is, I think, merited given the lack of specificity about the applicant’s answers.  As I mentioned, counsel for the Minister concedes that, by itself, those vague answers would be a flimsy and probably insufficient basis for any adverse credibility finding but the fact remains that the answers were, I am satisfied, vague and that the description of the Tribunal of them was merited.

13. The second matter concerned the breakfast.  The applicant gave evidence, as I have mentioned, that he was having breakfast with his friend, Mijanu, when a fight broke out.  In his statement of claims he simply refers to having breakfast with my friend.  During the Tribunal hearing he referred to having went to breakfast with his friend and some other people; six or seven other people and, later, others came.

14. The Tribunal pointed out that inconsistency.  Counsel for the Minister said, whatever importance might be attributed to that inconsistency the fact remains that it is an inconsistency.  Clearly, it is an inconsistency.  Whether or not it is significant is another matter.  By itself, again, it would be a very flimsy basis and maybe an insufficient basis for an adverse credibility finding.

15. The third matter was of more substance in my view.  The third factor was that the written statement of claims made in support of the protection visa application made no mention of any political aspect to the fight or the brawl that I have mentioned and the political aspect was raised for the first time in the hearing before the delegate and, later, of course, before the Tribunal, certainly, before the second Tribunal and it is clear from paragraph 32 that it was mentioned to the Tribunal in the first hearing, or the first Tribunal.

16. Given that the claim advanced by the applicant ultimately rested on an assertion that he had a well-founded fear of persecution based on imputed political opinion it is, to say the least, noteworthy that the political aspect to the fight was not raised in the written statement of claims. I was taken in argument to the material before the delegate or, rather, the transcript or the record of the interview before the delegate and it is clear that the delegate was concerned about this issue and returned to it in the interview.

17. Counsel for the applicant suggested that the raising of the political issue in front of the delegate was casual and accidental and that it was, in those circumstances, unjustified for the Tribunal to reach an adverse credibility finding based on that.  On my reading of the delegate’s questions the inconsistency between the failure to raise the political aspect in the written statement of claims and the subsequent raising of the political matter or the political basis to the fight is unexplained and it is natural that the Tribunal would go to that issue and would give it some close consideration.

18. In my view there was a probative and evident basis for the Tribunal reaching its conclusion that the applicant’s failure to explain that inconsistency raised a serious doubt about his credibility.

19. The fourth matter was a related one.  In the claims raised before the Tribunal the applicant had said that he did not know that his friend, Mijanu, was associated with a political party or, rather, did not know which political party his friend, Mijanu, was associated with.  That takes on some added significance because, by the time of the delegate’s interview on 15 July 2014, the applicant varied his narrative somewhat.  In his written statement of claims he had indicated that he and Mijanu had not participated in the fight that they had observed.  In the interview with the delegate, some 14 or 15 months later, the applicant said that he was directly involved in the fight and that Mijanu had also been directly involved in the fight and that there was a political aspect to the fight.  That is, the fight was about politics.

20. The applicant said that he did not know which political party Mijanu was associated with.  That was after telling the Tribunal that Mijanu was a very good friend of the applicant’s and they had known each other since they were very young and that they continued to visit each other’s home and saw each other once to three times a month and that the applicant was friends with Mijanu’s friends, that they breakfasted together, they were good friends and loitered together and, yet, the applicant did not know which political party Mijanu was associated with.

21. While that may perhaps have been characterised in the Tribunal’s reasons as an inconsistency it is, I think, implausibility.  That is, it is inherently implausible given the close relationship between the applicant and Mijanu over many years that he did not know what political party his friend, Mijanu, was involved with.  Again, that appears to me to be a significant matter and a matter that would give rise, inescapably, to concerns about whether or not the applicant was telling the truth.

22. The fifth matter was there was no mention made at the entry interview of, really, any of these matters, that is of the fight, of the fear of arrest on trumped up charges, the fact that the fight was about politics, none of that was mentioned in the entry interview and the reasons given in the entry interview for the applicant leaving Bangladesh were, and I quote, there was “no business in Bangladesh.  There are always problems due to political situation.  There is protesting.” 

23. There has been judicial comment at various times about the dangers of putting too much weight on what is said at an entry interview given that an applicant or a person seeking protection may be afraid, may be mistrustful of authority and various other reasons including that the situation is inherently pressured and that the interview is conducted in a relatively short time.  It appears this interview was conducted over 47 minutes.

24. The Tribunal, at paragraph 35, again, unavoidably, in my view, was forced to consider this quite marked inconsistency between the first entry interview claims and the later claims.  The Tribunal accepted that the applicant might have been scared at the time and the Tribunal said, nevertheless, the Tribunal would have expected that someone in the applicant’s circumstances would have referred, in some way at least, to the reasons he later claimed were the reasons he left Bangladesh.

25. Given that the discrepancy between the claims at that point and the later claims was stark, again, it is, in my view, unavoidable that the Tribunal, giving appropriate weight, as it did, to the often difficult circumstances that a person might experience in an entry interview was entitled to point to that discrepancy and use it as a basis for doubting whether the applicant’s narrative was truthful.

26. The sixth matter is something which has been called the Hossein document. The person who, according to the applicant’s narrative, was killed or who died as a result of the fight was someone called Hassan.  Hossein was said to be his brother and, at a later time after arrival in Australia, the applicant produced a document which purports to be, and I say purport but I should also say that there was no suggestion that the document is not genuine, a police statement from the brother of Hassan, Hossein.

27. A translation of the document is included in the court book at page 105 and the relevant part of the statement is reproduced at paragraph 38 of the Tribunal’s reasons.  The Tribunal raised the concern that the document appeared to give a different version of events than the version of events given by the applicant.  It appears to me that, as the document does not purport to be the applicant’s document, it would be inappropriate to use this document and the inconsistencies between this document and the applicant’s narrative to draw an adverse credibility finding.

28. Nevertheless, the Hossein document and the applicant’s narrative clearly give a somewhat different version of the fight.  The Hossein document refers to Hassan and a second man, Dukhu, being taken from in front of the rail gate and then taken to an open unknown place.  There they are said to have been beaten and then left in front of the rail gate.  As noted, the applicant’s version of events had the fight and the beating or the brawl taking place in front of or near the rail gate.  There is no mention of any unknown place or the victims having been taken away.

29. The Tribunal at paragraph 39, and I agree with the submission of counsel for the Minister on this point, did not use the document as pointing to an inconsistency and thereby inferring from that the applicant’s narrative was untruthful but it simply said that the document does not support the applicant’s claims.

30. There were some other matters in that document that did not support the applicant’s claims.  Clearly, one was the date of the incident.  The applicant said the incident was on 24 April 2012.  The Hossein document said it was the 25 April 2012.  By itself, that is insignificant it might be thought.  The document, as the Tribunal noted, did not name the applicant or Mijanu.  Again, that is perhaps not of great significance because the document does refer to seven or eight other unknown individuals apart from the named individuals in the document.  And the Tribunal also noted the difference that I have just described, that is the Hossein document has the victims being taken to an unknown place, beaten and then returned. 

31. As I have noted I do not consider, by itself, that would ground an adverse credibility finding.  Nevertheless, as the Tribunal points out, it does not, in its terms, specifically support the applicant’s narrative and, in some sense, it might be thought to raise a whole set of different questions relating to the applicant’s credibility.

32. The Tribunal characterised these differences at paragraph 42 as so numerous and significant that it was not satisfied that the applicant told the truth in relation to critical aspects of his claims.  The Tribunal did not accept, for example, that the fight had taken place at all.

33. Clearly, these six matters should be approached somewhat differently.  Some by themselves would be insignificant or of little significance.  Others, particularly the failure to raise the political aspect of the fight, the apparent ignorance of the friend’s political affiliations and the failure at the entry interview to allude, in any sense, to the claims later raised, in my view, unavoidably give rise to a question about the applicant’s credibility.   

34. Whether a conclusion that the applicant was untruthful was the only conclusion available on all the material might be doubted.  It appears to me that it might rationally be open to reach another conclusion consistently with what the High Court said in Minister for Immigration and Citizenship v SZMDS but, if the test is whether or not the conclusion of the Tribunal was open to it, that is, was there a logical and probative basis for its conclusion, I am satisfied that the conclusion was open to it and that the conclusion or the decision was not, therefore, irrational or illogical. The application is dismissed.

35. I will make orders accordingly.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 4 May 2017