AQV16 v Minister for Immigration and Border Protection
[2018] FCA 134
•19 February 2018
FEDERAL COURT OF AUSTRALIA
AQV16 v Minister for Immigration and Border Protection [2018] FCA 134
Appeal from: AQV16 v Minister for Immigration [2017] FCCA 904 File number: SAD 108 of 2017 Judge: WHITE J Date of judgment: 19 February 2018 Date of publication of reasons: 22 February 2018 Catchwords: MIGRATION – appeal from Federal Circuit Court (FCC) – single unparticularised ground of appeal relating to the adverse credibility findings in the Administrative Appeals Tribunal – whether Appellant has shown any error in FCC decision – appeal dismissed. Cases cited: CGQ15 v Minister for Immigration and Border Protection [2016] FCAFC 146
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Date of hearing: 19 February 2018 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 24 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr D O’Leary Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
SAD 108 of 2017 BETWEEN: AQV16
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
WHITE J
DATE OF ORDER:
19 FEBRUARY 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The Appellant is to pay the costs of the First Respondent of and incidental to the appeal to be taxed in default of agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
WHITE J:
At the conclusion of the hearing of this appeal on 19 February 2018, I announced my decision that the appeal should be dismissed. I said that I would publish reasons later. The following are my reasons.
The Appellant is a citizen of Bangladesh who arrived in Australia by boat in December 2012. On 20 May 2013, he applied for a protection visa but that application was refused by a delegate of the Minister for Immigration and Border Protection (the Minister).
The Appellant then applied to the former Refugee Review Tribunal (the RRT) for a review of the delegate’s decision. A hearing on that application (the first hearing) took place on 18 June 2015 in the Administrative Appeals Tribunal (the Tribunal) (which had taken over the function of the RRT). The Appellant was assisted in that hearing by his migration agent. The hearing was then adjourned.
As the Tribunal member who had conducted the hearing on 18 June 2015 was not available to continue the hearing, a second hearing before another Tribunal member took place on 4 November 2015. Again, the Appellant was assisted by his migration agent.
By a decision made on 24 February 2016, the Tribunal (constituted by the second member) affirmed the decision of the delegate of the Minister not to grant the Appellant a protection visa.
The Appellant then applied for judicial review to the Federal Circuit Court (the FCC). That application was unsuccessful: AQV16 v Minister for Immigration [2017] FCCA 904. The Appellant then applied for, and was granted, an extension of time in which to appeal to this Court.
On his application for judicial review in the FCC, the Appellant, who was then represented by senior counsel, pursued only one ground of review, namely:
The Tribunal committed jurisdictional error in that it made adverse findings against the Applicant in respect of credibility. Those adverse findings were illogical, unreasonable, irrational and could not have led to the conclusion drawn either cumulatively or on their own.
There then followed seven particulars. They did not include any complaint with respect to the change in composition of the Tribunal between the two hearings.
The Notice of Appeal to this Court (prepared for the Appellant by his former solicitor) contains a single unparticularised ground:
The Learned Judge erred in finding that the Tribunal did not commit jurisdictional in making illogical, unreasonable and irrational findings.
The Appellant is now unrepresented. Neither he, nor his former solicitor, provided any outline of the submissions to be made on the appeal. Nor did they provide any particularisation of this ground of appeal.
The claim for protection
The basis for the Appellant’s claim for protection can be summarised as follows. In April 2012, he had travelled to a neighbouring village to meet a friend (M). While the Appellant was having breakfast with M, a fight had broken out nearby involving several people. Neither the Applicant nor M had been involved in the fight. During the fight one man was injured and apparently knocked out. Later the Appellant was informed that he had died from his injuries. The Appellant returned to his own village in the evening of the day in which the fight had occurred. Some days later, he was informed by M’s father that M had been arrested by the police on suspicion of murder of the deceased man and that the police had the Appellant’s name and would be coming for him. Later, he heard that the police were in fact making enquiries about him. He then went into hiding and, in November 2012, left Bangladesh to travel to Australia.
The Appellant sought protection on the basis that M had been involved in a political group and that he feared persecution on the basis of an imputed political opinion by reason of his friendship with M. He also sought protection on the basis of his membership of a social group, namely, “failed asylum seeker returnee”.
The Tribunal decision
The Tribunal’s reasons are detailed and lengthy. They are suggestive of close attention to the Appellant’s claims. The Tribunal member concluded that the Appellant was not a witness of truth and that he had not told the Tribunal the truth in relation to critical aspects of his claims. The Tribunal member identified seven matters giving rise to his concerns about the Appellant’s credibility:
(a)an apparent discrepancy between the Appellant’s statement at one time that his friend M lived “about 2 to 2.5 to 3 hours” away from the Appellant’s own home and his statement that the friend’s house was located “almost 90 minutes away” from the Appellant’s village. The Tribunal member regarded the Appellant’s reconciliation of these statements as being “vague and unpersuasive”;
(b)an apparent discrepancy in the Appellant’s statements as to the number of persons who had attended the breakfast with the Appellant and his friend. The Tribunal member said that he would not draw any adverse credibility inference from this discrepancy considered by itself but that, taken in combination with other matters, it did give rise to credibility concerns;
(c)conflicting statements as to whether M was associated with a political party and as to whether the fight had been political in nature;
(d)the circumstance that the Appellant did not know the political party with which M was associated, even though he described M as “a very good friend” whom he had known since they were very young;
(e)the circumstance that the Appellant had not mentioned the fight or false charges being made against him in the explanation he had given in the Entry Interview on 23 December 2012 as to his reason for leaving Bangladesh as he had said only that:
No business in Bangladesh. There are always problems due to political situations. There is protesting.
The Tribunal member regarded the Appellant’s explanation for not having mentioned the fight, namely, that he had been afraid and had only later realised that he should speak the truth about what had occurred, as reflecting poorly on his credibility;
(f)a document which the Appellant provided in the nature of statement from a witness to the fight gave an account of what had occurred which was different from the Appellant’s account. The Tribunal considered that that document did not support the Appellant’s claims; and
(g)the differences between the Appellant’s oral evidence before the Tribunal, on the one hand, and the account given to the Department in his written statement in support of his application for the protection visa, on the other.
In light of these findings as to credibility, the Tribunal did not accept the Appellant’s claims that he was suspected by the Bangladesh police of involvement in the death of anyone, or that he was the subject of false charges, or that he had gone into hiding in Bangladesh, or that he had left Bangladesh because the authorities were looking for him. The Tribunal did not accept that the Appellant is of any adverse interest to the police in Bangladesh due to any incident in April 2012 or because of his connection with his friend M. It did not accept that there is a real chance that the Appellant will be imputed with a political opinion of support of the unknown political opinion of his friend M.
The FCC judgment
The FCC Judge accepted that credibility findings may be the subject of judicial review for jurisdictional error if there was no probative, evident, logical or rational basis for the findings, relying on CGQ15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]‑[38] and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131], [135]. In [131] of CGQ15, Crennan and Bell JJ said:
[131]What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
The relevant principles have been summarised more recently in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [18]. Those principles indicate, amongst other things, the necessity of analysing in detail the decision made by the decision‑maker and the reasoning involved. They also indicate that a high degree of caution should be exercised before a finding is made that adverse credit findings give rise to jurisdictional error lest the Court embark impermissibly upon merits review.
As the FCC Judge noted at [4], in the context of this case, irrationality or illogicality will not be established if rational or reasonable minds might have adopted different reasoning or have reached different conclusions on the issue in question.
The appeal
It is appropriate to bear in mind that on appeals of the present kind, it is for appellants to demonstrate error. In the present case, that requires the Appellant to show that the FCC Judge erred in failing to conclude that the Tribunal member, acting reasonably and rationally, could not have made the credibility assessment he did and the findings consequential on that assessment. The Appellant does not establish this merely by pointing out that alternative conclusions were open.
Even though the Appellant formerly had legal representation, he has not identified any errors of this kind. The ground of appeal set out above merely asserts, in an unparticularised way, that the FCC Judge erred, in effect, in not upholding the grounds upon which he had sought judicial review.
The Appellant’s oral submissions did not elaborate the position. Most of his submissions concerned his retainer of his former solicitor, the amounts he had paid her, and the advice he had received. Despite my attempts to focus the Appellant’s attention on the issue of irrationality, illogicality or unreasonableness, he did not make any material submission on the topic.
I agree with the submission of counsel for the Minister that the Appellant has not identified any error of principle in the approach of the FCC. It is apparent that the FCC Judge identified correctly the legal basis on which the Tribunal decision could be reviewed on the ground pursued by the Appellant.
Secondly, the FCC Judge considered separately each of the six matters said to constitute the irrationality or unreasonableness in the Tribunal’s approach. It is not necessary in these reasons to set out the FCC’s reasoning. It sufficient to say that the FCC Judge considered that some of the matters were of greater weight and significance than others (particularly the matters summarised in subparas (c), (d) and (e) in [12] above) and accepted that some of the other matters, considered by themselves (particularly the matters summarised in subparas (a) and (b) in [12] above), may have provided only a “flimsy” basis upon which to base an adverse finding of credibility. However, he concluded that there were matters, which by themselves and considered together, gave rise “unavoidably” to a question about the Appellant’s credibility. The FCC Judge expressed his conclusion as follows:
[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.
In short, the FCC Judge’s reasons disclose close attention to the issue for determination, to the legal principles to be applied and to the factual matters upon which the Appellant (by his counsel) referred. No error in his understanding of the legal principles or in his reasoning has been demonstrated. Had I been the Judge at first instance, I would have reached the same conclusion as the FCC Judge for reasons similar to those given by him.
I am satisfied that the Appellant has not shown any error in the decision of the FCC Judge and that the appeal must be dismissed.
These are my reasons for the order of dismissal made on 19 February 2018.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. Associate:
Dated: 22 February 2018
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