ASG17 v Minister for Immigration
[2019] FCCA 1492
•5 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ASG17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1492 |
| Catchwords: MIGRATION – Protection Visa – decision of Administrative Appeals Tribunal – whether credibility findings were “illogical” and “unreasonable” – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 476 |
| Cases cited: ARG15 v Minister for Immigration & Border Protection [2016] FCAFC 174 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration & Multicultural & Indigenous Affairs v SZFDJ [2006] FCAFC 53 |
| Applicant: | ASG17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 100 of 2017 |
| Judgment of: | Judge Kendall |
| Hearing date: | 22 January 2019 |
| Date of Last Submission: | 22 January 2019 |
| Delivered at: | Perth |
| Delivered on: | 5 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Walker (acting pro-bono) |
| Counsel for the First Respondent: | Mr P MacLiver |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 100 of 2017
| ASG17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed in this Court on 20 February 2017, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 23 January 2017.
The Tribunal affirmed a decision of a delegate of the first respondent, the then Minister for Immigration for Immigration and Border Protection (the “Minister”), not to grant the applicant a Temporary Protection (Class XD) (subclass 790) visa (the “visa”).
This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain relief from this Court, the applicant must show jurisdictional error on the part of the Tribunal.
Background
The Court received and has reviewed a 182 page Court Book (“CB”) and detailed written submissions filed by the Minister on 15 January 2019. These written submissions accurately summarise the factual background to this matter at [3] to [9]. The summary was not disputed by the applicant and the Court adopts (with some minor alterations) that factual background as follows.
The applicant, a citizen of Vietnam, arrived in Darwin on 19 May 2013 (CB 18).
On 30 June 2014, the applicant applied for the visa to the former Department of Immigration and Border Protection (the “Department”) (CB 3-57). The applicant also provided a statutory declaration in support of his visa application (CB 31-33).
The applicant’s claims were as follows:
a)he was involved in a violent altercation with Vietnamese officials as a result of a dispute over the amount of compensation offered by Vietnamese authorities to him to acquire his property for a road construction project (the “altercation”). The applicant fled following the altercation. His wife received a summons addressed to him but he did not comply with the summons (CB 32 at [7]-[9]);
b)he feared harm as a result of unauthorised access to his personal information through the former Department’s website in February 2014 (CB 3); and
c)he feared harm because he had sought asylum in Australia (CB 32 at [11]).
On 13 October 2014, the applicant attended an interview before a delegate of the Minister (CB 81-82). The applicant’s legal representative provided country information after this interview concerning the treatment of political dissidents in Vietnam (CB 83-90).
On 30 April 2015, the delegate refused to grant the visa (CB 101-114).
On 7 May 2015, the applicant lodged an application with the Tribunal seeking review of the delegate’s decision (CB 114-124). At that time, the applicant was no longer represented (CB 117).
On 7 October 2016, the applicant appeared before the Tribunal to give evidence and present arguments.
On 17 October 2016, the applicant provided documents in support of his application (CB 147-153).
On 23 January 2017, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant the protection visa (CB 160-170).
Tribunal Decision
The Tribunal’s decision spans 16 pages and is 91 paragraphs in length. Approximately four of those pages are devoted to a summary of the relevant law in relation to the refugee criterion, the complementary criterion and credibility assessments of refugee applicants (CB 171-174 at [72]-[91]). Approximately two pages consist of country information extracts that the Tribunal referred to in the body of the Tribunal’s decision (CB 175-176 at Annexure B).
Again, the Minister’s written submissions accurately summarise the Tribunal’s decision. That summary was not disputed by Counsel for the applicant. Having reviewed the Tribunal decision in detail, the Court adopts this summary as its own. Other than as expanded upon below, that summary provides as follows.
The Tribunal began by setting out the history of the application, the applicant’s claims and the delegate’s findings.
The Tribunal summarised the applicant’s claims as follows:
7.He is married and has two children. His wife, children, parents and siblings live in Vietnam.
8.The applicant fled Vietnam in April 2013 and has never been back to that country.
9.He claims he fears returning to Vietnam because at the end of February 2013 the local government announced the commencement of a road construction project in his town. He claims that according to the relevant plans, his house had to be demolished.
10.The local government offered the applicant 33 million Vietnamese Dong (VND), whereas he claims that his house was worth around 170 million VND. The applicant rejected the government’s offer of compensation but the government officials forced him to accept the offer within 5 days or he would be liable for the costs of delaying the project.
11.The applicant objected to the unfair treatment by the village authorities. One of them was the deputy assistant. They were not happy to help the applicant. He claims an argument began and this escalated to an altercation. The applicant claims that he was hit in his face by one of the officials.
12.The applicant claims that in self-defence, he reached for a stick to hit back and at this stage a road traffic officer became involved and attacked him. While the applicant was being assaulted, his neighbours came to the scene and asked the officers to stop beating him. However, the officers called for back-up force. The applicant claims he hurt them and decided he would run away otherwise he would be arrested.
13.The applicant claims he knew if he stayed he would be arrested, “So I grabbed my driving license and fled to another area called Gia Lai district.” He writes that he stayed there with a work mate for almost 52 days. During this time the applicant’s wife received a summons from the local authorities. The summons was addressed to the applicant. He writes, “I did not attend and it caused the authorities to put my house under surveillance to arrest me.” The applicant writes, “It was clear that the risk was so real and I could not return home anymore. I could not live in any other area in Vietnam either so I decided to flee the country.”
14.The applicant claims that if he returns to Vietnam he will be arrested and put in prison by the Vietnamese authorities.
15.The applicant claims he will be harmed by the Vietnamese authorities, including village and district officials for confronting them over the projects, for defending himself when he was attacked by them, and for failing to appear before them after being summoned.
16.The applicant writes his fear is aggravated by the fact that he has since fled the country and applied for protection in another country.
17.The applicant claims that given the gravity of the issues he has had with the local government authorities in Vietnam, he will most definitely not be protected by any other authority in Vietnam.
18.The applicant claims that he would be at risk of being located and arrested by the Vietnamese authorities anywhere in Vietnam and that they have the capability to track people down and to cause them harm regardless of where they choose to live in Vietnam.
The Tribunal then summarised the delegate’s findings as follows:
• The applicant arrived on a people smuggler boat in Darwin on 19 May 2013 without travel documentation, although he presented his driver’s licence;
• The applicant initially gave a false name and a false date of birth to the Department. He claims that on the boat he was told by other individuals to provide a false identity;
• The applicant was informed by the Department that his personal details were inadvertently released on the Department’s website as a result of what has become to be known as a “data breach”. While the delegate accepts personal information about the applicant may have been released, the delegate did not accept the information was accessed by any IP addresses in Vietnam, or that this release gives rise to a real chance of serious harm, or a real risk of significant harm, if the applicant returns to Vietnam;
• In relation to the claims that he was involved in conflict with authorities due to his house and land being resumed for a road project, the delegate found a number of inconsistencies in the applicant’s evidence and ultimately rejected these claims. Specifically, the delegate rejected the claim that the applicant was involved in an argument that turned violent in February 2013 with local government officials. The delegate concluded the applicant is of no adverse interest to the Vietnamese authorities as a result of matters relating to the road construction project;
• The delegate also considered, amongst other things, whether the applicant faces any harm as a result of returning to Vietnam as a failed asylum seeker and concluded that based on country information he does not. The delegate considered country information indicates the penalty imposed on returnees who depart Vietnam without a passport or equivalent travel document is a fine of between two million and five million VND. The delegate found country information reports that the Vietnamese government treats persons who paid people smugglers to arrange their departure as victims of criminal activity rather than criminals.
The Tribunal then summarised the evidence at the hearing, noting, in particular, the following evidence:
a)when the Tribunal asked the applicant why he had given a false name and date of birth to the Department upon his arrival in Darwin, the applicant conceded that he had done this. He added that he was told on the boat to Australia not to disclose his true identity to anyone in Australia. He said he did not know what was wrong and what was right. The Tribunal told the applicant the fact that he had given false identity raised questions in its mind about the credibility of his evidence (CB 163 at [26]);
b)when asked whether he had a Vietnamese passport when he departed Vietnam, the applicant said he did have one. He said he obtained the passport in late April 2013 and it took over a week to obtain it. He said it is a genuine passport but that he did not apply for it. Instead, someone else assisted him to get it. He said he was afraid of being recognised and arrested if he applied for the passport himself (CB 163 at [27]);
c)the applicant had travelled through Laos and Thailand en route to Australia and had not applied for protection in any of these countries (CB 163-164 at [28]);
d)the applicant’s changing evidence as to the number of days he was in hiding and the date of the altercation (CB 164 at [29] and [32];
e)the applicant’s account about one of his two houses being demolished and the receipt of compensation (CB 164-165 at [31] and [40];
f)the applicant’s account of the claimed fight (CB 164 at [32] and [33]);
g)the applicant’s account of the summons he says he received. Specifically (at [37]), it was noted that when asked what he believes will happen to him if he returns to Vietnam, the applicant said he would be arrested and imprisoned for a long sentence. The applicant claimed he was summonsed and it was alleged that he had been involved in protests against a public servant. The applicant told the Tribunal that he originally had documents to prove this but he had lost them. When asked how he managed to lose such important documents, the applicant said his wife was keeping the documents and sent them to him. He said that on the day before the hearing he looked for the documents but could not find them. He said he would continue to look for the documents and send them to the Tribunal if he found them. Further, at [40], the Tribunal noted that it had asked the applicant how many warrants were issued for his arrest. He said his wife told him there were three warrants but that only a copy of one had been sent to him. He said his wife lost two of the warrants. The Tribunal put it to the applicant that it seemed surprising that he would lose such documents. The Tribunal then asked the applicant to explain when his house was demolished. He replied that it was demolished after he left Vietnam. He said it was demolished in May. He said that after the argument with the authorities, they gave him five days to accept the compensation (CB 165 at [37]-[40]);
h)the applicant’s new claim that he had departed Vietnam illegally rather than legally, noting (at [38]) that the applicant said that if he returns to Vietnam he would be arrested because he left his country illegally and the government will consider him to be a traitor. The Tribunal put it to the applicant that it does not appear he departed illegally because he left using his own passport but, in any event, if he had departed illegally the country information indicates he would be fined between 2 to 5 million VND. The Tribunal asked the applicant whether he would be able to pay this amount. The Tribunal noted that the applicant appeared evasive in answering this question. He subsequently said that he could pay the fine but that he does not think this will be the only penalty. He said the local police would be waiting to arrest him (CB 165 at [38]); and
i)the applicant’s concerns about the legal avenues available to him in Vietnam to challenge the quantum of compensation (CB 166 at [43]-[45]).
Under the heading “Credibility Concerns”, the Tribunal stated that it had carefully considered the applicant’s claims and evidence and found that the applicant was not a reliable or credible witness in relation to critically important elements of his claims (CB 167 at [54]).
The Tribunal noted, for example (and as put to the applicant at the hearing), that the applicant gave a false name and date of birth to the Department upon arrival in Australia. The applicant’s explanation for this was that he was advised to do so by a fellow passenger. The Tribunal did not accept this as a reasonable or acceptable explanation in the circumstances of this case -- in particular, in light of his claim that he had travelled to Australia to seek protection (CB 167 at [54]).
The Tribunal considered (CB 167 at [55]) the applicant’s claim in relation to the alleged altercation in February 2013 and found the claim not to be credible in light of all the evidence. While the Tribunal accepted that conflict can arise out of land resumptions and, in particular, where a party considers there is insufficient compensation, in all the circumstances of this case and in light of its assessment of the unreliability of the applicant’s evidence, it did not accept that the dispute escalated into a physical altercation. It did not accept the applicant’s claim that he harmed a police officer in the claimed altercation, or that the altercation occurred at all.
Further, the Tribunal found that the applicant had been vague and inconsistent about his claim that he fled his town after the altercation, and that he remained in Gia Lai for a period of time. The Tribunal noted that in his written statement the applicant claimed that he remained there for ‘almost 52 days’. However, and as put to the applicant at the hearing, at the Protection Visa interview he claimed he stayed there for 20 days. The Tribunal found the applicant’s evidence at the Tribunal hearing on this point especially vague, in circumstances where he would be expected to recall the period of time he had to hide as claimed if he had, in fact, fled and hidden as claimed.
The Tribunal also found (CB 167 at [56]) the applicant’s account of all the circumstances which he claims led to his fear and which led to his fleeing Vietnam to be highly improbable. Specifically, it was noted that the applicant claimed that the resumption of his land was announced in late February 2013; however, he arrived in Darwin on a people smuggler vessel on 19 May 2013 – only a little over two-and-a-half months after the announcement of the land resumption. The Tribunal noted that during this time, the applicant claimed the offer of compensation was made, and refused by him, and he was involved in the altercation, and he fled to stay in Gia Lai for almost 52 days, and he had arranged his departure by people smuggler boat from Vietnam. In all the circumstances, the Tribunal found the applicant’s claims, and his claimed timeframe of incidents, improbable and that this further undermined the credibility of those claims.
Under the heading “Assessment of refugee protection claims”, the Tribunal accepted the applicant’s claim that part of his land was resumed and that he was offered compensation which he may have found insufficient but which he accepted (CB 168 at [58]).
The Tribunal accepted that there may have been some dispute and argument over the quantum of the compensation but given its concerns about the applicant’s credibility, it did not accept that the dispute escalated to a fight or that the applicant hit or harmed anyone from the Vietnamese authorities (CB 168 at [58]).
The Tribunal also did not accept that the applicant had to flee to Gia Lai or that any authorities issued summonses to him or warrants for is arrest (CB 168 at [59]).
The Tribunal also found the applicant’s explanation about why he did not seek protection en route to Australia to be incongruent with the acts of a person who genuinely feared for his wellbeing and his failure to seek protection in these countries to further undermine the credibility of his claims (CB 168 at [59]).
In relation to the data breach, the Tribunal found that, even if the Vietnamese authorities had access to the information, it did not consider that the applicant’s chance of serious harm amounted to a real chance because it found that he was of no adverse interest to the Vietnamese authorities (CB 169 at [60]).
The Tribunal also did not accept that the applicant would face harm upon return to Vietnam for reasons of having made an asylum claim in Australia (CB 169 at [61]).
In relation to the applicant’s claim to fear harm if he returned to Vietnam for reasons of his illegal departure from Vietnam, the Tribunal was not satisfied that the applicant departed illegally (CB 169 at [62]). The Tribunal determined that, in the event that it was wrong in relation to this issue, having considered the country information and the applicant’s capacity to pay a fine, it found that the applicant would not face a real chance of serious harm (CB 169 at [62]).
The Tribunal concluded that the applicant did not face a real chance of serious harm amounting to persecution now or in the reasonably foreseeable future if he returned to Vietnam and, for similar reasons, found that the applicant did not face a real risk of significant harm as a necessary and foreseeable consequence of him being removed to Vietnam (CB 169 at [65] and 170 at [67]).
Proceedings in this Court
When the applicant initially filed his application in this Court (on 20 February 2017), he was unrepresented.
Sometime after filing his application, the applicant was placed in immigration detention.
Upon receiving a “Notice of Intention to Remove from Australia”, an urgent interlocutory application was made on 10 July 2018 for an injunction to restrain the Minister from removing the applicant from Australia. Judge Cameron made the orders sought and the Minister was restrained from removing the applicant pending the determination of this application.
An order was made on 31 August 2018 granting the applicant leave to rely on amended grounds of review. There were two grounds of review. As discussed below, both grounds of review outline concerns in relation to the Tribunal’s assessment of the applicant’s credibility.
The Court received written submissions from the applicant dated 8 January 2019. These submissions were not filed until the date of the hearing. It appears, however, that these submissions were provided to the Minister and the Court informally on 11 January 2019. As noted above, the Court also received written submissions from the Minister dated 15 January 2019.
The matter came before the Court on 22 January 2019.
The applicant was represented by Mr Walker. Mr Walker acted for the applicant on a pro-bono basis. Regrettably, despite the best efforts of the Law Society of Western Australia and a few committed solicitors and barristers, the provision of pro-bono assistance to those seeking protection in this country is increasingly rare in this state. The Court is grateful for the assistance Mr Walker provided this applicant and the Court. Mr Walker appears regularly in this Court on a pro bono basis. Others would do well to emulate his considerable commitment in this regard.
The Minister was represented by Mr MacLiver. The Court thanks him for his assistance and notes the cooperative nature of the advocacy before the Court.
The Court has reviewed the Court Book, the written submissions of both Counsel and the transcript of the hearing before the Court on 22 January 2019 in preparing these reasons for judgment.
Ground 1
Ground 1 reads as follows:
1. The Tribunal committed a jurisdictional error by constructively failing to exercise its jurisdiction, and by failing to carry out, or alternatively to complete, its statutory task of review, by purportedly making findings that were material to the disposition of the Applicant’s application for review which lacked both a rational basis and an evidentiary foundation.
Particulars
a. In its reasons for decision at [54] the Tribunal recorded a finding that the Applicant was not a reliable or credible witness in relation to critically important elements of his claims;
b. The only example there offered was that he had given a false name and date of birth to the First Respondent’s department upon his arrival in Australia;
c. The Tribunal said of the Applicant’s explanation (that he had been advised to do so by a fellow passenger on his boat) that it did not accept it as a reasonable or acceptable explanation in the circumstances of the case, and in particular in light of his claim that he had travelled to Australia to seek protection;
d. Further, the Tribunal, at [55], while accepting the Applicant’s claim that he had been in a dispute with the authorities in Vietnam over a plan to resume his land and the adequacy of the compensation offered, found his associated claim that he had been in a violent altercation over those issues not to be credible;
e. The only justification offered for that negative finding was a general reference to “all the circumstances of this case” and to its “assessment of the unreliability” of his evidence;
f. Further again, the Tribunal at [56] found that the Applicant’s “account of all the circumstances which he claims led to his fear and which led to his fleeing Vietnam to be highly improbable” - by reference only to the time period during which he had said the relevant events occurred; and
g. The Tribunal’s findings referred to at a., d. and f. above were material to the disposition of the Applicant’s review application, because they contributed in significant ways to the Tribunal’s rejection of his claim that he feared harm upon return to Vietnam because he risked persecution and adverse treatment by the authorities as a result of his actions during the altercation.
Ground 1 rests on the applicant’s interpretation of the Tribunal’s approach and reasoning at [54]-[56] in its decision. In full, those paragraphs provide:
Credibility concerns
54.The Tribunal carefully considered the applicant’s claims and his evidence in the light of the principles laid out in the case law on the assessment of credibility in protection claims. Those principles are summarised in the section on relevant law which is appended to this decision record. Having considered the claims and evidence, the Tribunal finds the applicant is not a reliable or credible witness in relation to critically important elements of his clams. For example, and as put to the applicant at the hearing, the Tribunal finds he gave a false name and date of birth to the Department upon arrival in Australia. The applicant’s explanation of this is that he was advised to do so by a fellow passenger, however, the Tribunal does not accept this as a reasonable or acceptable explanation in the circumstances of this case, and in particular in light of his claim that he had travelled to Australia to seek protection.
55.The Tribunal considered his claim as to the asserted altercation in February 2013 and finds the claim not to be credible in the light of all the evidence. While the Tribunal accepts that conflict can arise out of land resumptions and in particular where a party considers there is insufficient compensation, in all the circumstances of this case and in light of its assessment of the unreliability of the applicant’s evidence, it does not accept the dispute escalated into a physical altercation. It does not accept his claim that he harmed a police officer in the claimed altercation, or that the altercation occurred at all. Further, the Tribunal found the applicant has been vague and inconsistent about his claim that he fled his town after the claimed altercation, and that he remained in Gia Lai for a period of time. In his written statement he claims he remained there for almost 52 days, however, and as put to the applicant at the hearing, at the PV interview he claimed he stayed there for 20 days. The Tribunal found the applicant’s evidence at the Tribunal hearing on this point especially vague, in circumstances where it would expect he would be able to recall the period of time he had to hide as claimed, if he had in fact fled and hidden as claimed.
56.The Tribunal also found the applicant’s account of all the circumstances which he claims led to his fear and which led to his fleeing Vietnam to be highly improbable. Specifically, he claimed the resumption of his land was announced in late February 2013, however, he arrived in Darwin on a people smuggler vessel on 19 May 2013, only a little over two-and-a-half months after the announcement of the land resumption. During this time, he claims the offer of compensation was made, and refused by him, and he was involved in the fight, and he fled to stay in Gia Lai for – almost 52 days, and arranged his departure by people smuggler from Vietnam. In all the circumstances, the Tribunal found the applicant’s claims, and his claimed timeframe of incidents, improbable and that this further undermines the credibility of those claims.
Applicant’s submissions in relation to ground 1
The applicant stressed that the particular findings taken issue with at [54]-[56] (and referred to in particulars (a), (d) and (f)) were:
a)at [54] the Tribunal recorded a finding that the applicant was not a reliable or credible witness in relation to critically important elements of his claims (the “First Finding”);
b)at [55], while accepting the applicant’s claim that he had been in a dispute with the authorities in Vietnam over a plan to resume his land and the adequacy of the compensation offered, the Tribunal found his associated claim that he had been in a violent altercation over those issues not to be credible (the “Second Finding”); and
c)at [56], the Tribunal found the applicant’s “account of all the circumstances which he claims led to his fear and which led to his fleeing Vietnam to be highly improbable”, by reference only to the time period during which he had said the relevant events occurred (the “Third Finding”).
The applicant submitted that each of these findings was destructive of the applicant’s case, so that in each case the findings were material to the Tribunal’s disposition because they contributed to the rejection of his claims to fear harm for Convention reasons.
The applicant submitted that ground 1 is to the effect that the opinion reached by the Tribunal as to its state of satisfaction under s.65 of the Act was based on findings or inference of fact which were not supported by some probative material or logical grounds.
The applicant argued:
a)where the question of credibility is determinative of a Tribunal decision, to simply assert that the tribunal considers the applicant’s account to be “implausible” or “highly unusual” does not constitute a finding on the question raised. Such expressions are more in the nature of observations or side comments, rather than findings. The reasoning process and supporting evidence that forms the basis on which a finding that evidence is rejected should be disclosed and clear findings made in direct and explicit terms. It is not sufficient simply to make general passing comments on general impressions made by the evidence where the issue is important or significant;
b)the Tribunal will have erred if it simply makes a finding that a claimed event is “implausible” unless the event is “inherently unlikely” or “inherently improbable” or “so far out of accord with what was likely to occur”;
c)to characterise, without explication, a claim as “implausible” or “highly unusual” has been held not to constitute a finding. Such expressions are more in the nature of observations or side comments, rather than findings;
d)for the Tribunal to act within jurisdiction in making adverse credibility findings in a case such as this, it should in its statement of reasons point to (for example) basic inconsistencies within an applicant’s evidence or to probative material or independent country information which led it to conclude that the claimed event was implausible;
e)a statement by a tribunal that the evidence of the applicant was a fabrication might be a bare assertion, relied upon by the tribunal to relieve itself of the obligation to take account of the possibility of the occurrence of past events in assessing the prospect of the occurrence of future events of persecution;
f)a bare conclusion is not an adequate discharge of an administrative agency’s responsibilities unless the ground or argument that it is rejecting is frivolous;
g)credibility findings must be rationally made and based upon facts having logical and probative weight;
h)while a court conducting judicial review of a tribunal decision should exercise particular care, as the task of making findings has been entrusted by the legislature to the tribunal and not to the court, credibility findings are susceptible to challenge;
i)there must be a legitimate articulable basis for the Tribunal’s finding and the Tribunal must offer a specific, cogent reason for any stated disbelief;
j)minor inconsistencies cannot support an adverse credibility finding; and
k)trivial errors by an asylum applicant do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible.
In relation to the First Finding (relevant to [54] in the Tribunal’s decision), the applicant submitted:
a)insofar as this finding consists of an overarching or general statement, it is properly described as a bare conclusion or assertion and, accordingly (at least if taken in isolation), is not a finding that discharges the Tribunal’s duty to make findings in accordance with law; and
b)if it is taken instead as being a general conclusion that arises from the particular findings of credibility made by the Tribunal, then it is necessary to consider each of those particular findings. They are the findings identified in particulars b, d and f.
Counsel for the applicant noted the Tribunal’s finding at [54] (in relation to the First Finding) that the applicant had given a false name and date of birth on arrival. The Tribunal then rejected his explanation for doing so. The applicant submitted:
a)this finding was not reasonable or acceptable and is suggestive of other, particularly policy, reasons and justifications;
b)there is no reason expressed for rejecting this explanation as being untrue. No reference is made to patterns of behaviour or of explanations that one might think could be recorded in departmental analyses. Nor is there reference to any other material, objectively recorded or otherwise, against which the plausibility of the explanation is considered;
c)it is not self-evident or obvious that the explanation was not true, or was not given honestly. On the contrary, it appears to be quite plausible that other passengers on a refugee boat might well give advice on such matters; and
d)as the expressed basis for the overall conclusion that the applicant’s evidence overall was unreliable, this is no foundation, not even a highly tenuous and fragile one, for an overall assessment of unreliability. As there was never any finding based on his demeanour in giving evidence, or on inconsistencies within his evidence or between that evidence and other material, in truth the Tribunal had no basis for that important conclusion.
With reference to the Second Finding (relevant to [55] in the Tribunal’s decision), the applicant submitted:
a)the Tribunal accepted that part of the applicant’s land had been resumed, that he was offered compensation that he may have found inadequate and that there may have been some dispute and argument (at [58]). However, it found his claim as to the asserted altercation “not to be credible in light of all the evidence” (at [55]);
b)there is a “stark difference and tension” between these two findings. It is notable that the Tribunal offers no tangible analysis or explanation for its differential findings. There is nothing to which the reader can point to and say “that is why the Tribunal accepted that there was conflict, but not that there was an altercation”;
c)there is no identification of which parts of “all the evidence” are relied upon to found the conclusion that the factual claim is not credible;
d)once again, there is no resort to any independent material or to claimed standards of behaviour in Vietnam to justify the striking tension between what factual claims were and were not accepted;
e)the two claims (conflict and altercation) were intertwined and that fact underlines the crying need for an explanation of the Tribunal’s approach; and
f)the reference within [55] to “its assessment of the unreliability of the applicant’s evidence” does not supply the missing explanation. In the context, it can be only a reference to the Tribunal’s non-acceptance of the applicant’s explanation of why he had earlier offered a false name and date of birth. This is an impermissible “boot-straps” argument.
In regard to the Third Finding (relevant to [56] in the Tribunal’s decision), the applicant submitted:
a)this finding, expressed at the beginning of [56], on a plain reading of the Tribunal’s statement, was related to the observations in the second half of [55] and in [56] itself. The Tribunal described the claims as being both “highly improbable” and also as (merely) “improbable”;
b)by repeatedly using “improbable” the Tribunal has done no more than state a view on the likelihood of the occurrence of that event, and, in effect, record that it had not been persuaded that the event described had occurred as claimed. The Tribunal has not purported to find, on the basis of probative material, that the applicant was dishonest or fraudulent. Nor did it form any adverse impression of him in respect of the presentation of his “evidence”;
c)this is not a case where the Tribunal has pointed to basic inconsistencies in accounts given by the applicant on previous occasions. Nor was there probative material before it to show that any part of his claims was untrue;
d)there was no independent country information inconsistent with the applicant’s claims regarding the events he said had caused him to flee; and
e)it follows that the Tribunal has failed to carry out the review process it was charged to perform.
Mr Walker, for the applicant, emphasised that, overall, the Tribunal’s adverse credibility findings were not soundly based on a satisfactorily disclosed foundation. Importantly, there was no expressed basis upon which the Tribunal found the relevant factual claims to be unreliable or not credible. In particular:
a)no reason is offered, and none is self-evident, for the non-acceptance “as a reasonable or acceptable explanation” of the applicant’s explanation for why he had initially given a false name and date of birth;
b)nor is any reason given, or evident, for the non-acceptance of the claim that there had been an altercation arising from the land dispute, especially as the claim that the dispute had occurred had been accepted; and
c)the characterisation of the applicant’s “account of all the circumstances which he claims led to his fear and which led to his fleeing Vietnam” as “highly improbable” evidently was justified only by reference to the suggested timeline and dates, which, when account is properly taken of the need to allow for minor failures of memory in the context of a refugee claim, do not permit the characterisation ascribed by the Tribunal.
In concluding, it was contended that the Tribunal’s adverse credibility findings are based on ephemera and lack a rational basis and an evidentiary foundation. None spring from observations of the manner in which the evidence was given and none rest on any internal inconsistency within the applicant’s accounts. Further, none rest on self-evident truths or truisms of experience. Crucially, in no instance did they spring from a testing or measurement against disclosed standards or data.
At hearing, the applicant did not substantively expand upon his written submissions.
Minister’s Submissions
The Minister submitted that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be shown. This is measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions.
It was urged, specifically in relation to credibility findings, that considerable caution must be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error. This is because assertions of illogicality and irrationality can all too readily be used to conceal what is, in truth, simply an attack on the merits of the Tribunal’s findings and decisions. The deployment of illogicality or irrationality to achieve merits review should not be sanctioned.
In relation to the First Finding (relevant to [54] in the Tribunal’s decision) it was submitted:
a)in its reasons for decision at paragraph [54] the Tribunal stated that the applicant was not a reliable or credible witness in relation to critically important elements of his claims. The Tribunal gave an example that it found that the applicant had given a false name and date of birth upon arrival in Australia, and the Tribunal did not accept his reasons for doing so as being reasonable or acceptable in the circumstances of the case, particularly in light of his claim that he travelled to Australia to seek protection;
b)the Tribunal’s finding that the applicant was not a reliable or credible witness does not lack a rational basis or evidentiary foundation, as alleged by the applicant;
c)firstly, the Tribunal gave a logical reason for this finding within paragraph [54] itself, namely that the applicant gave a false name and date of birth upon arrival in Australia. There is an evidentiary basis for this finding given that the applicant had conceded at the Tribunal hearing that he had done so. Giving false details logically leads to doubting the credibility of a witness and provides support for the Tribunal’s finding;
d)nor was the Tribunal bound to accept the applicant’s explanation for giving the false information. A decision-maker does not require rebutting evidence before lawfully holding that a particular factual assertion by an applicant is not made out;
e)the Tribunal’s finding at [54] that the applicant is not a reliable or credible witness must be considered in the context of the decision as a whole. This is particularly so given that the Tribunal’s finding of the applicant giving a false name and date of birth was merely an example of the applicant’s lack of credibility given by the Tribunal at [54];
f)in the course of its reasons the Tribunal had considered the following circumstances in relation to the applicant’s claims:
i)the applicant changed his evidence as to the number of days he was in hiding, ranging between half a month and a month and a half;
ii)the applicant changed his evidence as to the date of the altercation;
iii)the applicant stated that he departed Vietnam illegally, which he had not previously claimed. The Tribunal found that, on the evidence before it, the applicant left Vietnam using his own passport;
iv)the applicant appeared evasive in answering the Tribunal’s question about whether he would be able to pay a fine for illegally departing Vietnam; and
v)the Tribunal found the applicant’s claims and claimed timeframe of incidents to be improbable, further undermining the credibility of the claims; and
g)taken together, the Tribunal’s finding that the applicant is not a reliable or credible witness is not illogical or irrational. It was a conclusion that a rational or logical decision-maker could reach on the same evidence.
In respect of the Second Finding (relevant to [55] in the Tribunal’s decision) it was submitted:
a)at [55] the Tribunal found that the claimed altercation was not credible in the light of all of the evidence. The Tribunal accepted that conflict can arise out of land resumptions, but in all the circumstances of this case and in light of its assessment of the unreliability of the applicant’s evidence it did not accept that the dispute escalated into a physical altercation;
b)accordingly, the Tribunal provided logical reasons for finding that the claimed altercation was not credible. The finding was also supported by the Tribunal’s further finding at [55] that the applicant gave vague and inconsistent evidence about fleeing his town after the altercation, and remained in Gia Lai for a period of time;
c)the Tribunal’s finding that the altercation was not credible must be considered in the context of the decision as a whole. This is particularly so given that the Tribunal expressly stated at [55] that it made this finding in “the light of all the evidence” and in “all the circumstances of the case”; and,
d)the Tribunal’s finding that the altercation was not credible therefore cannot be said to be illogical or irrational. The fact that the Tribunal did accept that part of the applicant’s land has been resumed, and that he was offered and accepted compensation which he may have found insufficient (reasons at [58]), does not mean that the Tribunal was bound to accept the applicant’s claims about the altercation and his fleeing to Gia Lai. There is no “stark difference and tension between these two findings”.
In respect of the Third Finding (relevant to [56] in the Tribunal’s decision) it was submitted:
a)at [56] the Tribunal found the applicant’s account of all the circumstances which he claimed led to his fear and to his fleeing Vietnam to be highly improbable. This was because the applicant claimed that the resumption announcement occurred in late February 2013, yet he arrived in Australia only a little over two and a half months later, and during this time the applicant claimed an offer of compensation was made and refused by him, he was involved in the altercation, he fled and went into hiding in Gia Lai for “almost 52 days” and arranged his departure by people smugglers;
b)the Tribunal concluded at [56] that, in all the circumstances, it found the applicant’s claims, and his claimed timeframe of incidents, improbable;
c)the Tribunal’s finding was reasonably open to it on the material before it, and for the reasons which it gave. Therefore, the applicant’s claim that the Tribunal’s finding lacked a rational basis and evidentiary foundation should be rejected; and
d)each matter is fact specific. Even if different minds might not have reached the same conclusion as the Tribunal, it is only if the Tribunal’s conclusion is one at which no other decision-maker could arrive on the same evidence that will amount to jurisdictional error.
The Minister’s submissions at hearing substantively echoed what was appeared in the Minister’s written submissions. The Minister did advance a further argument however, that, were the Court to find that the finding in [56] did amount to a jurisdictional error (which was not conceded), it was not a finding that affected the decision as a whole. Rather, it was argued that that it is clear on the Tribunal’s reasons as a whole and in light of all of the matters that the Tribunal took into account that, even without the finding at [56], the Tribunal would have found that it did not accept that the applicant’s evidence in relation to the critically important elements of his claim was believable.
Consideration
The Court notes that the applicant made submissions to the effect that, taking the findings in “isolation” it is clear that they amount to no more than bare assertions.
This is problematic. If the Court were to view findings in “isolation” it would be using an eye keenly attuned to error and would risk not considering the Tribunal’s reasons as a whole. Such an approach would be contrary to long-standing and well accepted principles of proper judicial review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
Ground 1 stresses the core legal principles relevant to jurisdictional error tied to irrationality or illogicality. The parties agreed that the test for irrationality or illogicality has been summarised in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”), (per Crennan and Bell JJ) as follows:
130. In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
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.
…
135 …Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
Findings of credibility are generally findings of fact par excellence: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] (“Durairajasingham”). However, they are not immune from judicial review. Indeed, in CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146 (“CQG15”) the Full Court of the Federal Court outlined those circumstances where a credibility finding may be recognised as having been affected by jurisdictional error, including on grounds of illogicality or unreasonableness (at [36]-[44]).
In Minister for Immigration & Border Protection v SZUXN (2016) 69 AAR 210 (“SZUXN”), Wigney J stated:
56. An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…
In addition to the submissions made by the applicant generally in relation to the Tribunal’s approach to assessing the applicant’s credibility (see [52] above), the Court notes also that:
a)the Tribunal did make observations about the way the applicant responded to questions put to him (describing him as “evasive” at [38]);
b)the Tribunal did note there were inconsistencies with the applicant’s accounts (at [29], [32] and [38]); and
c)there is no “disclosed standards or data” that the Tribunal is to test or measure an applicant’s claims against or assess and make determinations of an applicant’s credibility against. The Tribunal is not obliged to have rebutting evidence available before rejecting a factual assertion made by the applicant: Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at 348. Hence, to the extent that the Tribunal did not refer to country information (or other objective external data) to support its credibility findings this does not amount to an error.
Having addressed the applicant’s broader submissions, and having discussed the legal principles applicable to determining if a credibility finding is illogical or irrational, the Court now turns its attention to the three core findings the applicant takes issue with.
The First Finding
Particulars (a), (b) and (c) of Ground 1 are all matters relevant to [54] of the Tribunal decision.
These particulars provide:
a. In its reasons for decision at [54] the Tribunal recorded a finding that the Applicant was not a reliable or credible witness in relation to critically important elements of his claims.
b. The only example there offered was that he had given a false name and date of birth to the First Respondent’s department upon his arrival in Australia.
c. The Tribunal said of the Applicant’s explanation (that he had been advised to do so by a fellow passenger on his boat) that it did not accept it as a reasonable or acceptable explanation in the circumstances of the case, and in particular in light of his claim that he had travelled to Australia to seek protection.
Again, for ease of reference, [54] of the Tribunal’s decision provides:
54. The Tribunal carefully considered the applicant’s claims and his evidence in the light of the principles laid out in the case law on the assessment of credibility in protection claims. Those principles are summarised in the section on relevant law which is appended to this decision record. Having considered the claims and evidence, the Tribunal finds the applicant is not a reliable or credible witness in relation to critically important elements of his claims. For example, and as put to the applicant at the hearing, the Tribunal finds he gave a false name and date of birth to the Department upon arrival in Australia. The applicant’s explanation of this is that he was advised to do so by a fellow passenger, however, the Tribunal does not accept this as a reasonable or acceptable explanation in the circumstances of this case, and in particular in light of his claim that he had travelled to Australia to seek protection.
The Court notes that at [87]-[91] (CB 173-174) the Tribunal refers extensively to the legal principles and the jurisprudence relevant to credibility findings in relation to persons applying for protection visas. This is what the Tribunal is referring to in the opening sentence of [54] (CB 167).
It is apparent that when the Tribunal states “having considered the claims and evidence, the Tribunal finds the applicant is not a reliable or credible witness in relation to critically important elements of his claims”, the Tribunal is not simply referring to the fact that the applicant gave a false name and date of birth. Rather, the Tribunal is referring to all of the evidence the applicant has provided, including what was recorded in his written claims, the delegate’s decision and the evidence provided at the Tribunal hearing (which was extensively discussed at [22]-[48] in the Tribunal’s decision) (CB 163-166).
In this context, the particular reference to the “false name and date of birth” can be seen as but one example of what ultimately caused the Tribunal to find that the applicant was not credible and not reliable. It cannot be seen here to be the sole basis for the Tribunal finding that the applicant “was not a reliable or credible witness in relation to critically important elements of his claims”.
When one reads the Tribunal’s decision as a whole, the Tribunal’s concerns about the applicant’s credibility are manifest. In this regard, the Court notes:
a)the Tribunal noted that the delegate had found a number of inconsistencies in the applicant’s claims concerning the conflict with the authorities due to his house and land being “resumed” for a road project (CB 162 at [9]);
b)at [29] (CB 164), the Tribunal put to the applicant inconsistencies between the time he alleged he stayed in Gia Lai (ranging from half a month, to one and a half months to six or nine months);
c)the Tribunal noted that the applicant (or his wife in Vietnam) appeared to have lost or misplaced documents that were of critical importance to his claims (CB 165 at [37] and [40]);
d)in his visa application the applicant indicated that he left Vietnam “legally” using his passport (a passport which he also claimed he had no difficulty obtaining (CB 26)). He maintained that claim before the delegate (CB 102). However, the applicant then claimed to have departed Vietnam illegally at the Tribunal hearing (CB 165 at [27] and [38]);
e)the Tribunal expressed concern over the plausibility of the applicant’s claim that the road project was announced at the end of February 2013, and that he left Vietnam in April 2013, and that all the things he claimed occurred in relatively short period of time in between these two dates. The Tribunal noted that the events he claimed occurred included the announcement of the project, the offer of compensation, the refusal of the offer of compensation, the argument and fight where he claims he was harmed, his running away into hiding, and his arranging a passport with the people smuggler to come to Australia. The Tribunal noted that applicant responded by saying only that, when he was going to Gia Lai, he travelled there by bus and someone on the bus gave him a phone number for a people smuggler (CB 165 at [41]);
f)the Tribunal highlighted that the applicant’s evidence that he did not seek protection in Laos or in Indonesia (which he passed through prior to coming to Australia) and his explanation for not doing so was incongruent with the acts of a person who genuinely feared for his wellbeing if faced with the prospect of being returned to Vietnam and that, as such, his failure to seek protection in Laos or Indonesia further undermined the credibility of his claims (CB 168 at [59]).
In circumstances where the applicant admitted he had provided false details and the Tribunal did not accept as reasonable the explanation for doing so (which the Court will address below), it was open for the Tribunal to draw an adverse view of the applicant’s credibility. It cannot be said that no reasonable mind would not form the view that the giving of false details raised doubts or concerns as to the credibility of a witness.
Insofar as the applicant takes issue with the Tribunal rejecting his explanation as to why he provided a false name, and using this as an example or reason for finding the applicant not credible and unreliable, the Court notes as follows:
a)the Tribunal put to the applicant that the fact that he had given a false identity raised questions in its mind about the credibility of his evidence (CB 163 at [25]). The applicant responded that he was advised to do so by a fellow passenger and did not know “what was wrong or what was right” (CB 167 at [54]);
b)it is a matter for the Tribunal, as the finder of fact, to accept or reject the evidence (and in this case the explanation) the applicant proffered to the Tribunal: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27];
c)the Tribunal, having rejected the applicant’s explanation, is not required to make a positive finding of fact or a determination of why the applicant gave a false name. It is sufficient that the Tribunal be affirmatively satisfied that the reason the applicant provided was unreasonable and unacceptable. The Tribunal can then assesses this and afford any weight its sees fit in forming a view as to the applicant’s credibility;
d)to the extent that the applicant is submitting that the rejection of the explanation is suggestive of “other, particularly policy, reasons and justifications”, the Court notes that this impliedly raises a concern as to bias or bad faith. These are serious allegations and must be clearly proven: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J. There is nothing in the Tribunal’s decision to suggest that the rejection of the applicant’s explanation was dictated by policy or “other reasons”. Nor would a reasonable third party apprehend that the Tribunal had a closed mind to the issue at hand;
e)the Tribunal is not required to give a “sub-set of reasons why it accepted or rejected individual pieces of evidence”: Durairajasingham at [67] per McHugh J;
f)the Tribunal did not accept the explanation provided and it was open to it to not accept it. While the applicant may disagree, as already indicated, and as the Minister submitted, it cannot be said that no reasonable mind would not form the view that the giving of false details raised doubts or concerns as to the credibility of a witness: SZMDS at [135];
g)a “[m]ere illogicality in the process of reasoning…which leads the tribunal to reject a particular assertion of fact by an applicant does not amount to jurisdictional error”: Minister for Immigration & Multicultural & Indigenous Affairs v SZFDJ [2006] FCAFC 53 at [19] per Ryan, Tamberlin and Mansfield JJ; and
h)even if the Court were so satisfied that the reasons for rejecting the explanation were somewhat (“merely”) illogical, it is not satisfied that the particular reason given here was irrational or capricious, or rises to an “extreme” level.
This is not a case where the Tribunal’s rejection of the applicant’s explanation, or its finding at [54] on the applicant’s credibility as a whole, shows a failure on the part of the Tribunal to attend “conscientiously and appropriately to its statutory obligations”: SZDFO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1192 at [10] per Allsop J (as His Honour then was). The Tribunal undertook its fact-finding function with care and it did so forensically. It addressed the applicant’s claims in light of the evidence before it and decided that it was not satisfied that the applicant met the criterion for the grant of the visa.
The Court is mindful that where the Tribunal makes an adverse credibility finding on an objectively minor fact and uses this to reject the entirety of the application, this will amount to error: CQG15 at [36]-[44]. The Court is also mindful that an initial credibility finding impugned by jurisdictional error may “cascade” into other credibility findings and therefore amount to jurisdictional error: ARG15 v Minister for Immigration & Border Protection [2016] FCAFC 174 at [97]-[99].
However, the Court does not accept that these principles are applicable to the facts of this case.
The Tribunal did not reject the applicant’s entire case on the basis of one minor fact. It is clear from the findings outlined above that the Tribunal rejected the applicant’s claim to have been involved in an altercation with the police over a land dispute on the basis of “credibility concerns” generally – not simply because the applicant had provided a false name on arrival.
The Court is not satisfied the First Finding is impugned with any error.
The Second Finding
Particulars (d) and (e) were relevant to [55] of the Tribunal’s decision.
For ease of reference, these particulars provide:
d.Further, the Tribunal, at [55], while accepting the Applicant’s claim that he had been in a dispute with the authorities in Vietnam over a plan to resume his land and the adequacy of the compensation offered, found his associated claim that he had been in a violent altercation over those issues not to be credible;
e. The only justification offered for that negative finding was a general reference to “all the circumstances of this case” and to its “assessment of the unreliability” of his evidence;
Again, for ease of reference, [55] of the Tribunal’s decision provides:
55. The Tribunal considered his claim as to the asserted altercation in February 2013 and finds the claim not to be credible in the light of all the evidence. While the Tribunal accepts that conflict can arise out of land resumptions and in particular where a party considers there is insufficient compensation, in all the circumstances of this case and in light of its assessment of the unreliability of the applicant’s evidence, it does not accept the dispute escalated into a physical altercation. It does not accept his claim that he harmed a police officer in the claimed altercation, or that the altercation occurred at all. Further, the Tribunal found the applicant has been vague and inconsistent about his claim that he fled his town after the claimed altercation, and that he remained in Gia Lai for a period of time. In his written statement he claims he remained there for ‘almost 52 days’, however, and as put to the applicant at the hearing, at the PV interview he claimed he stayed there for 20 days. The Tribunal found the applicant’s evidence at the Tribunal hearing on this point especially vague, in circumstances where it would expect he would be able to recall the period of time he had to hide as claimed, if he had in fact fled and hidden as claimed.
The Court notes the applicant’s submission that the Tribunal was required to, or ought to have, identified which parts of “all the evidence” were relied upon.
Where there is evidence that is contrary to findings of material fact made by the Tribunal, it is not necessary for the Tribunal to give a line-by-line refutation of the evidence: Durairajasingham at [66] per McHugh J. Further, the Tribunal’s “failure” to refer to, or itemise, all of evidence before it will not amount to jurisdictional error: Durairajasingham at [70] per McHugh J.
To succeed the applicant must show that there was no probative evidence upon which the Tribunal could base its finding of fact that the applicant had not been involved in the altercation.
This requires the Court to again consider whether it was open to the Tribunal to make that finding.
At [9]-[13] (CB 161), the Tribunal accurately summarised the applicant’s “conflict” and “altercation” claim:
9. He claims he fears returning to Vietnam because at the end of February 2013 the local government announced the commencement of a road construction project in his town. He claims that according to the relevant plans, his house had to be demolished.
10. The local government offered the applicant 33 million Vietnamese Dong (VND), whereas he claims that his house was worth around 170 million VND. The applicant rejected the government’s offer of compensation but the government officials forced him to accept the offer within 5 days or he would be liable for the costs of delaying the project.
11. The applicant objected to the unfair treatment by the village authorities. One of them was the deputy assistant. They were not happy to help the applicant. He claims an argument began and this escalated to an altercation. The applicant claims that he was hit in his face by one of the officials.
12. The applicant claims that in self-defence, he reached for a stick to hit back and at this stage a road traffic officer became involved and attacked him. While the applicant was being assaulted, his neighbours came to the scene and asked the officers to stop beating him. However, the officers called for back-up force. The applicant claims he hurt them and decided he would run away otherwise he would be arrested.
13. The applicant claims he knew if he stayed he would be arrested, “So I grabbed my driving license and fled to another area called Gia Lai district”. He writes that he stayed there with a work mate for almost 52 days. During this time the applicant’s wife received a summons from the local authorities. The summons was addressed to the applicant. He writes, “I did not attend and it caused the authorities to put my house under surveillance to arrest me.” The applicant writes, “It was clear that the risk was so real and I could not return home anymore. I could not live in any other area in Vietnam either so I decided to flee the country.”
The Tribunal then recorded the applicant’s evidence concerning the altercation, and his leaving the country as a result of it, as follows:
29.The applicant talked of leaving his hometown and travelling to Gia Lai province where he first said he had stayed for about half a month. He then said he stayed there a month and a half. He said he stayed with some people he knew from his province. The Tribunal put it to the applicant that it appeared from the delegate’s decision record that he might have stayed six or nine months, however the applicant said he recalled he went there in late February and returned to Nghe An on 20 April. When asked why he returned, the applicant said his wife told him police were looking for him. He said he was afraid of going back to his village. He then said he did not have a fixed address and moved from place to place waiting for a people smuggler to organise his trip. The Tribunal asked the applicant why he went to Nghe An rather than stay in Gia Lai. He replied that he was worried about being arrested by the local authorities in Gia Lai. The applicant also referred to staying some time in Son Thanh village. He said his own village, Vien Thanh, is some 12 kilometres away from Son Thanh village. He said his sister lives in Son Thanh and that he only stayed there one day.
30. The applicant confirmed his claim that he faces harm is based on claim that his house was to be resumed by the authorities and that he did not accept the compensation that he was offered. He said as a result of this he got into a fight. He said his house and land was valued 170 million Dong but the authorities offered him 33 million Dong.
31. The Tribunal referred the applicant to the finding where the delegate did not believe he had a fight or that police are interested in him and that finding relies to some extent on the finding that the applicant’s wife continues to live in his house in Vietnam. The applicant then said he believes that his house has since been demolished. He said he had two houses. The Tribunal asked the applicant whether the house which the authorities sought to resume was the house he was living in. He said the two houses were on the same block of land and that he was living in the house that the authorities wanted to demolish. He said his wife and children are now living in the other house. The applicant told the Tribunal that he received 33 million Dong by way of compensation.
32.The Tribunal asked the applicant to give detail about his claimed fight. He said that on that day there were three people from the village committee, namely the Deputy Chairman, the land management officer, and a police officer. He said it was early February, and then he said it was the 25th or 26th February 2013. He said he was told he had to demolish the house but that the offer of compensation was 33 million Dong and that was too low. The applicant refused the offer of compensation and the request to vacate the house, and an argument began and got intense. He told the Tribunal that the police officer started to hit him. The applicant said he defended himself and hit the policeman on his head and the policeman collapsed. The Deputy Chairman made a phone call asking for backup and the applicant ran away. He said he used a wooden stick to hit the policeman.
33. The Tribunal asked the applicant whether he had been hurt during this fight. He said that he had been. He said he had been hit on his head and slapped in the face. When asked whether there was anyone else around, the applicant said there were some people who lived near his home. He said there were seven or eight of his neighbours who turned up and witnessed the fight.
…
37. When asked what he believes will happen to him if he returns to Vietnam, the applicant said he would be arrested and imprisoned for a long sentence. He claims he was summonsed and it was alleged that he had been involved in protesting against a public servant. The applicant told the Tribunal that he originally had documents to prove this but he had lost them. When asked how he managed to lose such important documents, the applicant said his wife was keeping the documents and sent them to him. He said that on the day before the hearing he looked for the documents but could not find them. He said he would continue to look for the documents and send them to the Tribunal if he found them.
(CB 164-165)
At [58]-[59], the Tribunal addressed the altercation as follows:
58. In relation to the applicant’s claim that part of his land has been resumed in Vietnam, the Tribunal accepts that this is plausible and it is prepared to accept this occurred. It also accepts the applicant was offered compensation which he may have found insufficient, however, the applicant’s evidence is that he accepted the offer of 33 million VND. The Tribunal accepts the applicant’s claim that there may have been some dispute and argument over the quantum of the compensation, however, for the reasons discussed above (see Credibility Concerns) the Tribunal does not accept that the dispute escalated to a fight, or that the applicant hit or harmed anyone from the Vietnamese authorities.
59. The Tribunal formed the view that although the subject of land resumption, and what he believes is inadequate compensation, the applicant has embellished this claim to suggest he faces serious harm for this reason now or in the reasonably foreseeable future in Vietnam. For the reasons discussed above, the Tribunal does not accept the applicant had to flee to Gia Lai from his village, or that the authorities issued one or more summonses or warrants for his arrest as he has claimed. In light of this finding, the Tribunal decided to place little weight on the post-hearing document which was submitted by the applicant and which is translated as being a summons for the applicant to appear before the People’s Committee of the Vien Thanh village on 28 February 2013. The Tribunal also finds the applicant’s evidence that he did not seek protection in Laos or in Indonesia, and his explanation for not doing so, incongruent with the acts of a person who genuinely feared for his wellbeing if faced with the prospect of being returned to Vietnam. It considers this failure to seek protection in Laos or Indonesia further undermines the credibility of his claims.
(CB 168)
It is evident from [58]-[59] that the Tribunal relies upon the credibility concerns outlined in [55] to reject the “altercation claim”.
Simply put, the Tribunal was not satisfied the applicant’s evidence of an altercation was credible.
The Court accepts the Minister’s submission that there are logical and cogent reasons given by the Tribunal at [55] to inform the conclusion that the altercation did not occur and was an embellishment of a conflict that had occurred. The evidence relied on by the Tribunal in this regard included:
a)the delegate’s decision, wherein the delegate canvassed the inconsistencies in the applicant’s recount of the altercation (which varied in details as to the number of local government officers involved and the injuries the applicant and the officers sustained), and the finding that these “incoherent statements” led to doubts as to credibility (CB 106) (CB 164 at [31]);
b)the inconsistencies between the evidence in the applicant’s written claims and his oral evidence in relation to the time he spent in Gia Lai and as to what actually occurred after the alleged altercation (CB 164 at [29]);
c)concern over the plausibility of the timeline of events provided by the applicant (CB 165 at [41]);
d)general concerns as to the credibility and reliability of the applicant as a witness (CB 167 at [54]);
e)the Tribunal’s finding that the applicant’s evidence in relation to the altercation and his fleeing to Gia Lai was “vague” – such that this undermined the credibility of his claims generally (CB 167 at [55]); and
f)the Tribunal’s finding that the fact that the applicant did not seek protection in Laos or in Indonesia was “incongruent” with the acts of a person who genuinely feared return to Vietnam – a fact that, again, undermined his claims broadly (CB 168 at [59]).
In this context, the Court notes the delegate’s decision, wherein it is stated:
Country information indicates land confiscation is an issue that affects local farmers and villagers in Vietnam. While this is the case, I note many instances of implausibility and inconsistencies in the information provided by the applicant, the most notable of which I have discussed above. On assessment of all the available information before me, I do not accept the following claims:
• The applicant was involved (in the manner claimed) in an argument that turned violent with local government officials in February 2013.
Reading the Tribunal’s decision as a whole, the Court is again satisfied that the Tribunal has not drawn arbitrary, capricious or irrational conclusions at [55] in rejecting the applicant’s claim that he was involved in an altercation.
The Tribunal is not required to disprove the applicant’s claims, or to offer or rely upon rebutting evidence (which, perhaps is what the applicant is suggesting when he refers to independent material or claimed standards of behaviour in Vietnam) before the Tribunal finds that it cannot accept a particular factual assertion or aspects of the applicant’s evidence: SZTKA v Minister for Immigration & Anor [2014] FCCA 1791 at [36] per Judge Nicholls.
Here, the Tribunal was undertaking its statutory task. It was required to make findings as to the applicant’s claim to have been involved in an altercation. It carefully considered that claim. It was not satisfied, on the materials before it, that that altercation had occurred. The Court is satisfied that the findings made were open to the Tribunal on the evidence before it.
There is no error in relation to the Second Finding.
The Third Finding
Particular (f) pertained to [56] of the Tribunal Decision.
Particular (f) provides:
(f) further again, the Tribunal at [56] found that the Applicant’s “account of all the circumstances which he claims led to his fear and which led to his fleeing Vietnam to be highly improbable” - by reference only to the time period during which he had said the relevant events occurred.
For ease of reference, [56] provides:
56. The Tribunal also found the applicant’s account of all the circumstances which he claims led to his fear and which led to his fleeing Vietnam to be highly improbable. Specifically, he claimed the resumption of his land was announced in late February 2013, however, he arrived in Darwin on a people smuggler vessel on 19 May 2013, only a little over two-and-half months after the announcement of the land resumption. During this time, he claims the offer of compensation was made, and refused by him, and he was involved in the fight, and he fled to stay in Gia Lai for “almost 52 days”, and arranged his departure by people smuggler from Vietnam. In all the circumstances, the Tribunal found the applicant’s claims, and his claimed timeframe of incidents, improbable and that this further undermines the credibility of those claims.
(CB 167-168)
The Court notes that the Tribunal made the following remarks at [41]:
41. The Tribunal expressed some concern over the plausibility of the applicant’s claim that the road project was announced at the end of February 2013, and that he left Vietnam in April 2013, and that all the things he claimed occurred in relatively short period of time in between these two dates. The things he claims occurred include the announcement of the project, the offer of compensation, the refusal of the offer of compensation, the argument and fight where he claims he was harmed, his running away into hiding, and his arranging a passport with the people smuggler to come to Australia. The applicant only responded by saying that when he was going to Gia Lai, he travelled there by bus and someone on the bus gave him a phone number for a people smuggler.
(CB 165)
These matters were all put to the applicant. On the basis of the applicant’s response (which, in the absence of a transcript of the Tribunal hearing, the Court accept is accurately reflected in [41]), and in light of all of the evidence before the Tribunal, it cannot be said that there is anything illogical or irrational in the conclusions drawn by the Tribunal here – specifically, that the timeline suggested was improbable and that this further undermines the credibility of the claim as to the alleged altercation.
The applicant relied extensively upon the case of W64/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 970 (“W64/01A”).
The applicant submitted that here, like in W64/01A, the Tribunal made bare assertions, did not point to inconsistencies, did not refer to country information and did not appear to form an adverse impression of the applicant in respect to his presentation of the evidence.
In particular, the applicant referred to [30]-[32] of W64/01A:
30. The statement by the Tribunal that the evidence of the applicant and his wife “with regard to their reasons for leaving Iran” was a “fabrication” stood as a bare assertion. It was relied upon by the Tribunal to relieve itself of the obligation to take account of the possibility of the occurrence of past events in assessing the prospect of the occurrence of future events of persecution. As stated by the United States Court of Appeals in Bastanipour v Immigration and Naturalization Service 980 F.2d 1129 (7th Cir. 1992) at 1131:
“A bare conclusion is not an adequate discharge of an administrative agency’s responsibilities unless the ground or argument that it is rejecting is frivolous.”
31. This was not a case where the Tribunal could point to basic inconsistencies in accounts given by the applicant or his wife on previous occasions and nor was there probative material before the Tribunal to show that any part of the applicant’s claims was untrue. There was no independent country information inconsistent with the applicant’s claims regarding the events he said caused him to flee with his family. By describing the three events as “implausible” and by relying upon that statement to dismiss the applicant’s claims in their entirety, the Tribunal misapprehended and incorrectly applied the relevant law.
32. The Tribunal had made no positive or affirmative findings which discredited the applicant in respect of the claimed events thereby permitting the Tribunal to discount possibilities arising out of the applicant’s claims that it otherwise would have been obliged to consider.
(Without alteration)
Neither party adverted to the fact that W64/01A was overturned on appeal: Minister for Immigration & Multicultural Affairs v W64/01A [2003] FCAFC 12. On appeal, His Honour French J (as he then was) stated at [45]:
At the heart of his Honour’s conclusion that the Tribunal erred in law was his proposition that the only basis for its complete rejection of the respondent’s claims was that the Tribunal had formed the opinion that occurrence of the three events referred to by the Tribunal was unlikely. This was linked to his Honour’s conclusion, later in the reasons, that:
“The statement by the Tribunal that the evidence of the [respondent] and his wife ‘with regard to their reasons for leaving Iran’ was a ‘fabrication’ stood as a bare assertion. It was relied upon by the Tribunal to relieve itself of the obligation to take account of the possibility of the occurrence of past events in assessing the prospect of the occurrence of future events of persecution.”
With respect, this approach isolates various elements of the Tribunal’s reasons from each other in a way that fails to do them justice. When read together the conjugation of difficulty in accepting various elements of the evidence, the implausibility of the claims and their non-acceptance coalesce in an unsurprising finding of fabrication. That finding, read in context, suggests that the conclusions of implausibility were more than conclusions about likelihood. For not only were the respondent’s claims implausible, they were not accepted. That is to say, the Tribunal did not believe them. To read its reasons as leaving open any real possibility that the claims were true is to read them as islands of reasoning rather than as an archipelago.
Further, in The Republic of Nauru v WET040 [No.2] (2018) 93 ALJR 102, the High Court found the trial judge in that case had reasoned erroneously in relying upon the judgment in W64/01A. At [26], their Honours Gageler, Nettle and Edelman JJ stated:
Evidently, her Honour based it on the judgment of Lee J in W64/01A v Minister for Immigration and Multicultural Affairs, unaware that the judgment was later overturned on appeal. Crulci J also relied on certain of the observations of the majority of the Full Court of the Federal Court of Australia (Tamberlin and R D Nicholson JJ) in W148/00A v Minister for Immigration and Multicultural Affairs although the majority also observed that “a reviewing body must not set aside [a] finding [of credibility] simply because it thinks that the probabilities of the case are against, or even strongly against, the finding”. More fundamentally, the Tribunal’s implausibility findings were not speculative or matters of conjecture or unsupported by basic inconsistencies.
(Emphasis in original)
The Court notes that in Durairajasingham at [67], McHugh J stated:
… the reasons for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged.
In SZKOK v Minister for Immigration & Anor [2010] FMCA 90 at [30], Smith FM held that the Tribunal may reject an applicant’s claims on the basis of the inherent unlikelihood of the applicant’s narrative. This is what has occurred here at [56]. The Tribunal has found that the applicant’s claims, and the timeline he has given, are inherently unlikely and therefore not believed.
Here, as above, the applicant is isolating various elements of the Tribunal’s reasons. Contrary to the applicant’s submissions, the Tribunal’s findings as to “improbability” were based on, and supported by, inconsistencies in the evidence of the applicant concerning what caused him to flee Vietnam. Not only was the timeline improbable (read “implausible”, as above), there were other inconsistencies in the evidence that the Tribunal had already referred to at [54]-[55].
Read in context, the conclusion at [56] is more than a conclusion about likelihood. Rather, a clear conclusion was drawn that the applicant’s claims were not credible.
Overall, it cannot be said that the Tribunal failed to undertake its statutory task of review. It did not fail to make a finding. It did not simply express a view as to the likelihood and plausibility of the applicant’s account of events. It is clear, when reading the reasons as a whole and without an eye attuned to error, that the Tribunal clearly and affirmatively (that is, without doubt) disbelieved the applicant’s evidence and his core claim.
The Court is not satisfied there was any error in relation to the Third Finding
Conclusion in relation to ground 1
For the reasons identified above, it cannot be said the credibility findings made by the Tribunal in [54]-[56] were illogical or irrational in the sense described by Crennan and Bell JJ in SZMDS.
Here, the Court has asked itself “whether the Tribunal’s findings or reasoning … constituted extreme illogicality or irrationality, in the sense that no logical or rational decision-maker could have made the same finding, or employed the same reasoning…”: SZUXN at [57]. The Court is satisfied that here there is no extreme illogicality or irrationality in the reasons provided by the Tribunal. The Tribunal has not made findings or employed a process of reasoning that no logical or rational decision-maker could have made on the facts of this case.
Ground 1, accordingly, must be dismissed.
Ground 2
Ground 2 relied upon the same particulars of Ground 1, and reads:
Each of the findings referred to in Particulars a., d. and f. to Ground 1 above was legally unreasonable and in making each of them the Tribunal committed a jurisdictional error.
Applicant’s Submissions
As noted, the applicant relied upon the particulars advanced in relation to of Ground 1. In almost all respects the submissions advanced as to “illogicality” were submitted in the alternative as evidence of “unreasonableness”.
It was submitted that the requirement that a statutory power be exercised within the bounds of reasonableness is an implied condition of the statutory conferral of the power. The precise content of that which is required must be determined as a matter of statutory construction of the relevant provisions. Part of that process will involve a consideration of the nature of the repository of the power. Whether the decision in a particular case meets the required standard of reasonableness (and is therefore within power) must be decided by the court on review after considering the facts of the particular case.
It was conceded that where reasons are available, the Court’s focus should be on those reasons and, where they provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered legally unreasonable.
The applicant then outlined the oft cited authorities on legal unreasonableness.
The applicant’s substantive submission was that the First, Second and Third Findings at [54]-[56], were all findings that could not have been made by logical, rational or reasonable minds, and were thus “unreasonable” in the relevant sense.
Minister’s Submissions
The Minister also largely relied on his submissions in relation to Ground 1.
With reference to the First Finding, it was said that the Tribunal’s finding as to the applicant’s credibility was reasonably open to it on the evidence, and did not lack an evident or intelligible justification. There was no unreasonableness of a kind identified in the main authorities.
In respect of the Second Finding, the Minister submitted that the Tribunal’s finding was, again, not unreasonable. The Tribunal provided sound reasons for making its finding, including that the applicant gave vague and inconsistent evidence about his claim that he fled his town after the claimed altercation, and that he remained in Gia Lai for a period of time. The finding cannot be said to lack an evident and intelligible justification.
The Third Finding was also said not to be unreasonable. Rather, it was within the boundaries of the Tribunal’s decisional freedom to find that the number of claimed events occurring within the particular timeframe was highly improbable. Further, the fact that reasonable minds might differ on this point is not sufficient to establish jurisdictional error on the basis of unreasonableness.
Consideration
There is no single test or formula for determining whether a decision is “unreasonable”.
In DAO16 v Minister for Immigration & Border Protection (2018) 353 ALR 641, the Full Court (Kenny, Kerr and Perry JJ) summarised the principles of legal unreasonableness in credibility findings as follows:
3. RELEVANT PRINCIPLES: LEGAL UNREASONABLENESS
The relevant principles can be summarised as follows.
(1)While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:
135. … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(Emphasis added)
(3) By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].” Equally jurisdictional error may be established by “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; (2009) 181 FCR 113 at [37].
(4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:
56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…
(citations omitted)
(5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].
(Without alteration)
For the reasons already outlined above in relation to ground 1, the Court is not satisfied the findings made by the Tribunal here were illogical, irrational, arbitrary, perverse or capricious. The findings were reasonably open to the Tribunal to make on the basis of all the material before it. They cannot be said to be unreasonable as that term is defined in the above authorities.
Significantly, the Court notes that:
a)this was not a case where the credibility of the applicant was damned by an objectively minor fact. Rather, there were a number of concerns and inconsistencies that, cumulatively, lead the Tribunal to draw adverse credibility findings;
b)there is no clearly identified “[u]nwarranted assumption” by the Tribunal that caused the Tribunal to disbelieve and disregard the applicant’s evidence. It cannot be said that there was, accordingly, a failure to consider the question raised by the material put before the Tribunal; and
c)The Tribunal’s rejection of the applicant’s claims was logically justified (for the reasons already outlined above). It was not based on assumptions or assertions. Rather, it was based upon a careful analysis and consideration of the evidence as a whole.
The relevant question here is not whether it would have been more reasonable for the Tribunal to have reasoned in another way or to have come to a different view. Rather, the important question is whether it was unreasonable for the Tribunal to determine as it did.
The Court is satisfied that it was not unreasonable for the Tribunal to conclude as it did. There was an evident and intelligible justification for the Tribunal’s concerns as to the applicant’s credibility. These concerns formed the basis of the Tribunal’s ultimate rejection of the applicant’s claim to fear harm.
Ground 2, for these reasons and for the reasons expressed in ground 1, does not give rise to jurisdictional error.
Conclusion
The issues raised here were complex and the law relied on detailed and challenging. The Court thanks Mr Walker for acting pro-bono and for assisting an applicant who would otherwise have been unrepresented and who, undoubtedly, would have been unable to advance his case.
While the Court is sympathetic to the situation the applicant now finds himself in and does not doubt that life in Vietnam will prove more challenging than his life in Australia, that is not a factor the Court can assess here. Rather, the Court can only assess whether there is jurisdictional error on the face of the Tribunal’s decision.
For the reasons provided above, the Court finds that there is no jurisdictional error demonstrated by the two grounds of review, or otherwise apparent in the Tribunal’s decision.
The applicant’s application for judicial review is, accordingly, dismissed.
I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 5 June 2019
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