AQX20 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 264
•27 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AQX20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 264
File number(s): SYG 313 of 2020 Judgment of: JUDGE KAUR-BAINS Date of judgment: 27 February 2025 Catchwords: MIGRATION – judicial review – protection visa – when do credibility findings give rise to jurisdictional error – whether there was an evidential basis for the Tribunal’s finding from which it made adverse credit findings – no jurisdictional error disclosed – application dismissed Legislation: Migration Act 1958 (Cth) ss 36, 476 Cases cited: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
SZRHL v Minister for Immigration and Citizenship (2013) FCA 1093
SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451
Vo v Minister for Home Affairs (2019) 269 FCR 566
Division: Division 2 General Federal Law Number of paragraphs: 32 Date of hearing: 31 January 2025 Place: Sydney Counsel for the Applicants: Mr D Godwin Solicitor for the Applicants: Parish Patience Legal & Migration Services Solicitor for the First Respondent: Ms C Saunders of Australian Government Solicitor Second Respondent: Submitting Appearance Save as to Costs ORDERS
SYG 313 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AQX20
First Applicant
AQY20
Second Applicant
AQZ20 (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
27 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to Minister for Immigration and Multicultural Affairs
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 Kaur-Bains
The first applicant is a citizen of Pakistan. He claims to fear harm if returned to Pakistan on the basis he is a Shia Muslim and because while he was a bank employee he exposed corrupt activities of certain employees at the bank. The other applicants sought visas as family members of the first applicant.
The applicants seek judicial review to this Court of a decision of the Administrative Appeals Tribunal made on 6 January 2020. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicants a Protection (Class XA) (subclass 866) visa (protection visa). This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
The issue arising for determination is whether there was an evidential basis for the Tribunal’s finding, that when the first applicant was interviewed by the delegate, the first applicant said that in November 2013 he was still working at the bank, which finding the Tribunal used to make adverse credit findings against the first applicant. The first applicant says he did not ‘expressly state’ to the delegate that he was still working at the bank in November 2013.
For the reasons set out, I find there was an evidential basis for the Tribunal’s finding, that when the first applicant was interviewed by the delegate, the first applicant’s evidence was that in November 2013 he was still working at the bank. Therefore, no jurisdictional error is disclosed and the application must be dismissed.
TRIBUNAL’S DECISION
On 6 December 2019, the applicants appeared before the Tribunal in person with the assistance of a migration agent and an interpreter in the Urdu language.
First Applicant’s Claims
The Tribunal summarised the first applicant’s evidence at the hearing from [10] to [30] of its reasons in support of his protection claims. I adopt the summary of the first applicant’s claims from [2] of the applicants’ written submissions as follows:
The applicant claimed that he had been employed in a bank in Pakistan. He claimed that his role was to try and make arrangements for repayment of money that customers owed to the bank. He claimed that on one occasion he had recovered some money, but before he could credit this to the account of the customer, the applicant’s superior directed him to pay the money into the account of another employee. The applicant refused to do this and later he informed the Bank’s audit team of this request. As a result of this the audit team found further instances of the superior and the other employee misdirecting money and they were dismissed from the bank. A third manager was also later terminated by the bank. The applicant claimed that this then led to these former employees taking revenge on the applicant causing him physical harm. The applicant tried to evade them but they found where he lived. For this reason he travelled to Australia. The applicant’s family continue to be harassed in Pakistan.
From [47] to [91] of the reasons, the Tribunal noted inconsistencies concerning the first applicant’s evidence as to his protection claims. Broadly, the Tribunal recorded its concerns as follows:
(a)When the first applicant ceased employment at the bank in Islamabad and the details as to the bank he said he was employed ([47]-[53] and [60]- [62] of the reasons).
(b)The first applicant’s interactions with ‘CC’, an alleged corrupt senior manager at the bank at which the applicant was employed ([54]- [57] of the reasons).
(c)The anonymity of the people who made threatening phone calls ([58]- [59] of the reasons).
(d)The first applicant’s education and employment history provided in his student visa application ([63]-[64] of the reasons).
(e)Omission of significant claims from the written statement ([72]- [73] of the reasons).
(f)Inconsistent evidence concerning a police report ([74]- [78] of the reasons).
(g)Omission of significant claims in a letter dated 16 April 2015 from the first applicant’s lawyer. The letter was silent as to the first applicant exposing corruption at the bank ([79]-[82] of the reasons).
(h)Highly improbable aspects of the first applicant’s evidence, such as 5 years after the applicant’s departure, his family members in Pakistan continued to suffer harm ([83]- [91] of the reasons).
From [92] to [100], the Tribunal made several adverse credibility findings and found, considered cumulatively, the concerns the Tribunal held about the first applicant’s credibility led the Tribunal to find he was not a witness of truth and the account of events on which his protection claims were based were false ([92] of the reasons).
Accordingly, the Tribunal found that the first applicant did not satisfy ss 36(2)(a) or 36(2)(aa) of the Act and as a result the other applicants, being part of the first applicant’s family unit, were unable to satisfy the criteria under ss 36(2)(b) or (c) of the Act ([110] of the reasons).
The Tribunal affirmed the decision not to grant the applicants’ protection visas ([111] of the reasons).
RELEVANT LAW
Relevantly, at the material time, the Act provided as follows:
36 Protection visas—criteria provided for by this Act
…
(2) A criterion for a protection visa is that the Applicant for the visa is:
(a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
(b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa of the same class as that applied for by the applicant.; or
(c) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as that applied for by the applicant.
(2A) A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment
GROUND IN THE APPLICATION
In the amended application filed 20 August 2020, the applicants alleged jurisdictional error by the Tribunal on the following ground (as written):
The Tribunal failed to attain the state of satisfaction required by the applicable law as its reasoning was underpinned by a false premise
Particulars
The Tribunal reasoned that the applicant's evidence to it was not credible as he had told the delegate that he was still employed by the bank in November 2013 when his evidence to the Tribunal was that he resigned in February 2013. The applicant did not tell the delegate that he was employed by the bank in November 2013.
Applicants’ contentions
In the applicants’ written submissions, the applicants say the first applicant did not expressly state to the Tribunal that he was still working at the bank in November 2013, rather the first applicant told the delegate that he wished to refer to his resignation letter. Therefore, the applicants contend that the Tribunal was wrong when it said at [52] of the reasons that ‘[w]hen interviewed by the delegate, the [first] applicant also said that in November 2013 he was still working at the bank’.
The applicants, without objection, relied on an affidavit by Sophia Gabriel Mackenzie, which annexed a transcript of the interview before the delegate to make good their argument that the first applicant had not said to the delegate that he was still working at the bank in November 2013. The applicants say that the following parts of the transcript of the delegate’s interview do not disclose that the first applicant had said he was still working at the bank in November 2013 because “he never said any particular date to the delegate” (Tp 5.25-6):
Delegate: Now, how long after you had your meeting with Mr. Sultan? Oh, I'm sorry, Mr. Khan. Did sorry, when was that? When did you have a meeting ... ?
Interpreter (I): with IMRAN
Delegate: in November. Oh, sorry. In November you recorded WASEEM. Then how long after the recording, did you make with meeting with Khan? Can you remember the days or ... ?
Applicant: Like in one week.
Delegate: Okay. And then how long after your meeting with him, did was WASEEM sacked?
Applicant: I think in six seven days, seven, eight days.`
(Tp56: transcript of interview with the delegate):
The applicants also refer to the following parts of the transcript of the interview with the delegate and say that part of the transcript did not disclose that the first applicant had said he was still working at the bank in November 2013, because fairly read the first applicant by saying “yeah” was saying “yeah” to the delegate’s comment where the delegate said “and we’ll wait for the letter” (Tp 23.25-30).
Delegate: Can you remember your last day of work?
Delegate: Is it December or November?
Delegate: Because you met with Imran KHAN in November.
Delegate (corrected in Court): Then, you said you were attacked. Was it before or after you were attacked?
Applicant: The attack was after
Delegate: OK. So said, the end of November. Alright.
Delegate: And we'll wait for the letter
Applicant: Yeah.
(Tp 61: transcript of interview with the delegate)
The applicants say that was consistent with the first applicant’s evidence earlier to the delegate, which is set out below, when the delegate asked the first applicant when he resigned and the first applicant said he had documents and he had not brought the documents, but would send them to the Tribunal (Tp 21.21-21.38):
Delegate: When did you resign?
Applicant: I have all the documents. What time? When I coming to this whole documents
Applicant: I have all the copies but I did not bring it here with me. It's back in Pakistan.
Applicant: They have posted out to me and I was going to bring it along with myself today. So in one or two days, I'll be receiving all those documents.
Delegate: Okay. And did they give you a letter?
Applicant: An experience letter.
Delegate: And what did that say? Can you remember?
Applicant: Like normally.
(Tp 59: transcript of interview with the delegate)
The applicants contend the Tribunal incorrectly and without an evidential basis found that the first applicant said to the delegate that he was still working at the bank in November 2013, and then based on the said finding made material adverse credibility findings against the first applicant (at [71] of the reasons), on the basis that evidence was inconsistent with evidence given before the Tribunal that the first applicant’s employment had ended in February 2013 (Tp 14.33-17.6).
The applicants relied on the Full Court decision in Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309 (Logan, Griffiths and Moshinsky JJ) at [63] to [65] (Gill) to support the contention that findings of fact by the Tribunal are not impervious to judicial review and that jurisdictional error could be established if, for instance, findings were based on no evidence (Tp 31.30-37.26).
Minister’s contentions
The Minister emphasises that the finding that the Tribunal actually made at [52] of its reasons was that the first applicant had said that in November 2013 he was still working at the bank (Tp 38.8-29). The Minister says no finding was made by the Tribunal that the first applicant had given evidence before the delegate as to the date that he had resigned from the bank (Tp 38.8-29). This submission addressed the fact that originally, the applicant’s counsel identified that the delegate made a finding of fact that the applicant had resigned from the bank in November 2013 (Tp 5.32-41). However, at the hearing before me, the applicant’s counsel accepted that the Minister’s position was correct as to a proper reading of [52] of the Tribunal’s reasons, that at [52] of the reasons, the Tribunal had found the first applicant had said that in November 2013 he was still working at the bank (Tp 60.33-40).
The Minister says the transcript of the questioning by the delegate needed to be read against the material that was before the delegate, which included the first applicant’s written statement, dated 22 June 2015 (CB 358-360), where the first applicant said at [15] of the statement, the following:
In or about November 2013, I recorded on my mobile phone my conversation with Mr Sultan when he was asking me to deposit recovered sum into his personal account. I also found few files in which the large sum was recovered but not deposited into the UBL account.
The Minister then points to the relevant parts of the transcript of the delegate’s interview as follows:
Delegate: in November. Oh, sorry. In November you recorded WASEEM. Then how long after the recording, did you make with meeting with Khan? Can you remember the days or ... ?
Applicant: Like in one week.
Delegate: Okay. And then how long after your meeting with him, did was WASEEM sacked?
Applicant: I think in six seven days, seven, eight days.`
(Tp56: transcript of interview with the delegate) (emphasis added)
The Minister says that based on the exchange recorded in the preceding paragraph and the content of the first applicant’s statement before the delegate referred to at [20] of this judgment, it was open to the Tribunal to find the first applicant’s evidence to the delegate was that in November 2013 he was still working at the bank.
The Minister submits that in the event I find the Tribunal erred in its finding of fact, such a factual error could not result in the Tribunal’s adverse credibility findings and the decision itself being illogical, irrational, or unreasonable, given the numerous other adverse credibility findings made by the Tribunal (Minister’s written submissions at [27]). In support of this position, the Minister relied on the following authorities: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [53]; SZRHL v Minister for Immigration and Citizenship (2013) FCA 1093 at [35] and Vo v Minister for Home Affairs (2019) 269 FCR 566 at [43].
Relevant Legal Principles
Before considering the parties’ arguments, I set out the relevant legal principles as to when credibility findings give rise to jurisdictional error, based on there being no probative evidence for a finding.
The Full Court (McKerracher, Griffiths and Rangiah JJ) in CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 (CQG15) was considering when adverse credibility findings can give rise to jurisdictional error. At [38] the Full Court said:
There are several other potential bases upon which credit findings can be challenged. Recitation of the expression that credibility is a matter par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:
(a) failure to afford procedural fairness;
(b) reaching a finding without any logical or probative basis;
(c) unreasonableness; and/or
(d) jurisdictional error as discussed by Flick J in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 (SZVAP).
(emphasis added)
The observations at [38] in CQG15 were referred to with approval in Gill at 64.
In SZVAP, Flick J considered in some depth whether findings as to credit can give rise to jurisdictional error, relevantly at [14] to [23] of the judgment. At [22] his Honour referred to several instances where credit findings had given rise to jurisdictional error, including:
…….. Jurisdictional error may also be exposed where the Tribunal applies “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470 at [37], (2009) 181 FCR 113 at 126 per Logan J.
CONSIDERATION
The basis for the challenge to the Tribunal’s decision is that there is no probative evidential basis for the Tribunal’s finding at [52] of its reasons, that “the applicant also said that in November 2013 he was still working at the bank”.
I find that based on the exchange with the delegate recorded at [21] of this judgment and the content of the first applicant’s statement before the delegate referred to at [20] of this judgment, it was open to the Tribunal to find the first applicant’s evidence to the delegate was that in November 2013 he was still working at the bank. The reason for this is, because the first applicant accepted the assumption of fact in the delegate’s question, which assumption was based on the statement of the first applicant dated 22 June 2015 (referred to at [20] of this judgment), that the applicant in or about November 2013 recorded on his mobile a conversation with WASEEM (Sultan). The first applicant, by answering “like in one week”, to the question posed by the delegate that “In November you recorded WASEEM. Then how long after the recording, did you …meeting with Khan”, accepted the assumption of fact in the delegate’s question, being that in November the first applicant recorded WASEEM. The delegate took the year 2013, from the first applicant’s statement it had before it. I note there was no issue that at the time the first applicant recorded WASEEM and met with Khan, the first applicant’s evidence was that he was still working at the bank. For these reasons, I find there was an evidentiary basis on which the Tribunal made the finding at [52] of its reasons, that the first applicant before the delegate had given evidence that in November 2013 he was still working at the bank.
The applicants say that the first applicant did not “expressly” say the words recorded at [52] of the Tribunal’s reasons. By this I take it that the first applicant’s complaint is that he did not say the words “in November 2013”, he was still working at the bank. However, I find that on a fair reading, when the Tribunal at [52] uses the words “the applicant also said ”, the Tribunal is expressing that the applicant’s evidence was to the effect that he accepted that in November 2013 he was still working at the bank, which for the reasons set out in the preceding paragraph I find there was an evidentiary basis for so finding.
CONCLUSION
As no jurisdictional error has been disclosed, the amended application must be dismissed.
I will hear the parties as to costs.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 27 February 2025
SCHEDULE OF PARTIES
SYG 313 of 2020 Applicants
Fourth Applicant:
ARA20
0
9
1