AUQ18 and Ors v Minister for Immigration and Anor
[2020] FCCA 1737
•30 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUQ18 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1737 |
| Catchwords: MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to a decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision not to grant a Protection visa – whether the Tribunal acted unreasonably or irrationally in finding the first applicant was not a witness of truth – whether the Tribunal acted unreasonably or irrationally by relying on a general adverse credibility finding it made on the basis of its consideration of some of the claims for protection when not accepting other claims – whether the Tribunal was required to give notice to the first applicant that her credibility might be an issue before the Tribunal and whether in any event the first applicant had been given such notice – whether Tribunal failed to consider a claim – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 425, 430, 476 |
| Cases cited: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 SZSEI & Anor v Minister for Immigration & Anor [2017] FCCA 1820 SZVHO v Minister for Immigration and Border Protection [2016] FCA 1499 The Republic of Nauru v WET040 [No 2] [2018] HCA 60 Tran v Minister for Immigration & Anor [2019] FCCA 2859 WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 |
| First Applicant: | AUQ18 |
| Second Applicant: | AUR18 |
| Third Applicant: | AUS18 |
| Fourth Applicant: | AUT18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 473 of 2018 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 25 March 2020 |
| Date of Last Submission: | 25 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2020 |
REPRESENTATION
| Counsel for the Applicants: | Ms E Bathurst |
| Solicitors for the Applicants: | Legal Aid NSW |
| Counsel for the First Respondent: | Mr J Kay Hoyle |
| Solicitors for the First Respondent: | Minter Ellison Lawyers |
ORDERS
The application is dismissed.
The first applicant pay the first respondent’s costs set in the amount of $5,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 473 of 2018
| AUQ18 |
First Applicant
| AUR18 |
Second Applicant
| AUS18 |
Third Applicant
| AUT18 |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is an application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicants a Protection (Class XA) visa (Protection visa).
The applicants
There are four applicants, all of whom are citizens of Afghanistan. The first applicant (applicant) is the mother of the second and fourth applicants, and the third applicant is the brother of the applicant (brother).
The applicant is an ethnic Tajik, and a Muslim. She was born and raised in Peshawar, Pakistan, but in 2011 she moved to Kabul where she married. The second applicant (daughter) was born in Kabul; and the brother moved in with the applicant in Kabul.
The applicant, daughter, and brother entered Australia on 15 September 2014 holding Subclass 600 (Visitor) visas (Visitor visa). The applicant was sponsored by her sister who is an Australian citizen (sister).
On 9 December 2014 the applicant, daughter, and brother lodged an application for a Protection visa. The applicant made claims for protection on her own behalf, but the daughter and brother each applied for a Protection visa as a member of the applicant’s family unit. The fourth applicant (son) was born after the applicant lodged her application for a Protection visa. The son made an application for a Protection visa on his own behalf. He did so by being joined as an applicant to the protection visa the applicant, brother, and daughter made.
Claims for protection
The applicant’s claims for protection were initially stated in answers to questions contained in the form of application for a Protection visa. The applicant’s claims may be summarised as follows:[1]
a)The applicant was employed by a particular government agency in Kabul (Agency).
b)People and relatives from the applicant’s village started talking about the characters of the applicant and the applicant’s husband (husband), and that they had become non-Muslims because they joined the government.
c)The situation in Kabul and Afghanistan was not good “because the election of 2014 was near”. The applicant’s husband decided he would not come home every day because the applicant’s and husband’s home was very far from the city. The applicant and the husband decided to call the brother from Pakistan to live with the applicant. After the brother moved in with the applicant the husband did not come home for three weeks at a time.
d)After eight months of “struggling and ignoring them”, the applicant could not continue with the situation, and she left her job because the husband advised her to do so.
e)The applicant and the husband began looking for protection visa conditions in many countries, and realised it takes a long time. The applicant and husband feared that if the Taliban became aware the applicant and husband were planning to leave the country they “may take a strict action” against the applicant.
f)After a few days the sister called the applicant and said she wanted to invite the applicant and her family to Australia to support the sister mentally, because the sister was living alone with her child, and she had a very tough time due to domestic violence. The applicant accepted the sister’s invitation.
g)After the applicant entered Australia, the people in the village believed the applicant and the brother had become non-Muslims, and they warned that if they ever return the applicant and the brother will be punished.
h)The Taliban offered the husband to work with them as a spy, but the husband rejected the offer; they are against the applicant and the husband working with the government; they sent warning letters to the applicant and the husband; and the Taliban believe the applicant has changed her religion because she was granted a visa to enter Australia.
[1] CB121-124
In support of her claims the applicant submitted a copy of the following documents:
a)A letter dated 15 May 2014 addressed “To Whom It May Concern” purportedly from the Agency stating that the applicant “has been working for” the Agency since 2013 in the position stated in the letter, and that the applicant “is working in the same position till now and is successfully performing her duties and responsibilities as per her job description as per her request we would grant her three months leave”.[2]
[2] CB81
b)A letter dated 25 September 2013 purportedly from the “General Director” of the Agency stating “[Agency] attentive to your stable honest effort during your tasks and gratitude you and honored you with this appreciation letter and wish you success during your truthful service for your country”.[3]
[3] CB189
c)An undated “Personal Statement” purportedly from the husband which included the following:[4]
[4] CB172
I have finished my primary and secondary education in a school located in . . . then in year 2003 I continued my higher education in . . . High School. After graduation, I was recruited for serving . . . in … for about 2 years. Then for two months I was hired to stay with . . . in [country outside Afghanistan].
After returning to my homeland I started working with [same name of person as the author of the letter in (b)] [name of the Agency] as his security assistant. During my job with . . . I visited several places inside and outside the country.
Currently I am facing several security problems which includes anonymous dead [sic] threats. Now I and my family are surviving from anguish and fear. Due to daily life needs I want to continue my current job. But as my entire family is living in Australia, I would like to ask you to look after them. Because my absence can make them face lots of problems.
d)A document titled “Personal Information”, being a resume of the husband.[5] The document sets out the husband’s date of birth, his education, work experience, “Official Trips”, languages, and his “Professional Background” under which appear the words “Security issues”. At the bottom of the document appears the following:
Because of working with high level officials of the Government of Afghanistan, my life and the life of my family is in danger. I was threatened to death by Taliban many times and I have the evidences and documents to prove this fact. That is why I urge your government to save me and my family from the danger and let me live in your country. The life for me and my family in Afghanistan is impossible and it is possible that the enemies of Afghanistan take my life at any moment.
e)Name badges and certificates which purport to show the husband’s attendance at various environmental conferences.[6]
f)A statutory declaration made by the sister “indicating that she was not aware of her sister’s intention to seek asylum in Australia at the time that she sponsored her to come for a visit”.[7] The sister may have made that statutory declaration because she had made an earlier statutory declaration in connection with the applicant’s application for a Visitor visa.[8] In that statutory declaration the sister said the applicant lived in Kabul with her husband and their daughter; the husband works as a security officer and security assistant to a person in the Agency; and the applicant also worked in the Agency. The sister further declared the applicant “would not wish to be separated from her husband for too long”; the applicant “has a home and she is comfortable in Kabul with a wide network of friends and family”; the husband has a very large family in Kabul, including his mother, six sisters, and five brothers; and the applicant is very close with the husband’s family and her mother in law.
g)Two letters handwritten in a language other than English, but which are written on what purports to be a Taliban letterhead.[9] A Dari-speaking interpreter translated these documents during the applicant’s interview with the delegate. The letters, as so interpreted, are as follows:[10]
Taliban has said that [name of applicant’s husband] we have information about you that you are working with government and you go to government departments and can go to different embassies, freely come and go from these places. We want you to seriously work with us as a spy. And you give us all the information we require from you from government. If you don’t provide us this information, your family and yourself will be in trouble/danger.
We Taliban [first name of applicant’s husband] we requested before from you that you come and work with us as a spy and you didn’t give any attention to our warning and forgot about it. Now, there’s a new warning again. So you be ready for death of yourself and family.
[5] CB173
[6] CB174, 176, 177, 191, 192
[7] CB268
[8] CB94-96
[9] CB268. The documents appear to be those at CB213-214.
[10] CB268
The applicant provided further details of her claims during her interview with the delegate on 4 December 2015. The applicant there said the husband still works at the Agency; he does not tell the applicant much about his work, but he is happy. According to the delegate’s decision the applicant said:[11]
There was a mosque near their house which was frequented by Taliban members. One day, some men from the mosque asked her husband to come to the mosque. At the mosque, they told him they knew he was working for the government and asked him to be a spy for them. They think working for the government means working for the Americans and NATO. It is like a crime.
Because her husband was happy with his work and is very honest, he did not accept this offer. Meanwhile, she had started working for the [Agency] too. Her husband started receiving threatening calls. He was told he and his wife should stop working or else she and their children would be kidnapped.
She ceased working after eight months, after discussing her fears with her husband. She had taken her daughter to work with her because she was afraid she might be kidnapped from childcare. It was a very difficult time for her. Her husband only came home every two or three weeks, although they kept in regular contact by phone. She lived under constant threat and does not want to recall those moments. She asked her brother . . . to come and stay with her. . . .
Her husband is still living in his village. He lives in fear. He is being followed. He received two threatening letters in 2013. He hides himself at home and goes to work in hiding (that is, he does not tell any of his friends or family that he is leaving for work). The people in the village are looking for any opportunity to get a hold of him.
She heard from relatives in Afghanistan that people in her village think she and her brother and children have accepted the Christian religion in order to come to Australia. She has not converted to Christianity; she is still a Muslim.
[11] CB269
Tribunal’s reasons
The Tribunal found the applicant is not a witness of truth, and that the account of events on which her claims for protection are based is false.[12] The Tribunal’s finding is based on a number of “concerns the Tribunal holds about the applicant’s credibility”.[13]
[12] CB492, [48]
[13] CB492, [48]
The Tribunal’s first concern related to the applicant’s evidence that, on receiving the threats from the Taliban, the husband took the precaution of remaining away from the family home, and only returning there once every fortnight, but at the same time leaving the applicant and the daughter, a child, at home by themselves. The Tribunal found that, on the applicant’s account, the Taliban knew where the family lived, given the Taliban had left threatening letters at the applicant’s home; and the threats the applicant claimed the Taliban made were to harm not just the husband, but also the applicant and the daughter. In those circumstances the Tribunal said it found it difficult to accept that the applicant and the brother would have been willing for the husband to be away from the home, but not the applicant and their child.[14]
[14] CB485, [13]
The Tribunal put this concern to the applicant during the hearing. The applicant said that, at the beginning, the husband did not take the Taliban’s threats seriously, and only did so after the letters had been received; and the applicant remained in the home after the husband stopped living there because the applicant and the husband thought that if they left together the Taliban would think they had run away, and this would have increased the risk of the Taliban harming them. The Tribunal was not persuaded by this explanation because the Taliban could well have thought that, because of the husband’s absence, the husband had himself run away, and was not going to assist the Taliban.[15]
[15] CB485, [14]
The Tribunal also referred to two other matters relevant to its concerns about this aspect of the applicant’s evidence.
a)One is the explanation the applicant’s representative gave in a letter dated 19 December 2017, namely, the applicant and the daughter were left at home by themselves because there was no other option. The Tribunal did not find this explanation persuasive because the applicant, husband, and daughter had the option of living away from their home and, in particular, living in the city of Kabul where the applicant and the husband were working.[16]
b)The second matter is the submission the applicant made that she and her family could not live together in the city of Kabul because attacks take place there, the government cannot prevent them, and civilians are harmed by them; the husband could stay safely in his workplace where there were guards; the applicant herself travelled to and from work in groups; going to live somewhere else could draw attention to them; it would be hard to access services like health; and the Taliban can track and locate people of interest to them.[17] The Tribunal did not find these submissions persuasive explanations for the applicant and the daughter remaining home alone when the Taliban had threatened to kill them if the husband did not cooperate with them.[18]
[16] CB485, [15]
[17] CB485-486, [16]
[18] CB486, [17]
The second concern the Tribunal identified related to the applicant’s evidence about the extent to which she had informed members of her family that the husband and the applicant had been threatened by the Taliban, and the explanations the applicant gave in response to the Tribunal’s putting to the applicant it had difficulty accepting the applicant’s evidence. The applicant’s evidence was as follows:
a)The applicant said the brother did not know anything about the applicant’s problems with the Taliban until after he arrived in Australia with the applicant.[19]
b)In response to the Tribunal’s question how the applicant had concealed from the brother when he was staying with the applicant the difficulties she and the husband were having with the Taliban, the applicant said she concealed those difficulties from everyone in the family; she did so because if one person were to find out then everyone would know; and if someone asked her why the husband had not come home the applicant would say he was at the office. Immediately after giving this evidence the applicant said that her mother knew about the applicant’s and the husband’s difficulties with the Taliban because the applicant’s mother could be trusted.[20]
c)In response to the Tribunal’s question whether, if the applicant’s mother knew about the difficulties the applicant and the husband had with the Taliban the applicant’s father would know, the applicant said that her father had heart problems, and the applicant was not sure whether her father knew about the difficulties; but the applicant’s mother did not tell the brother when she sent the brother to Afghanistan to live with the applicant.[21]
d)The applicant said that the only explanation she gave the brother about her decision to visit the sister in Australia was that the sister had invited them to come to Australia.[22]
e)In response to the Tribunal’s question whether the sister told the applicant at the time the applicant applied for a Visitor visa that the sister would need to indicate that she intended only to visit Australia, the applicant said it was the sister’s intention that the applicant, the brother, and the daughter visit Australia, and that the applicant told the sister they would return to Afghanistan.[23]
f)In response to the Tribunal’s putting to the applicant that it had difficulty accepting her evidence that: (i) nobody in her family, apart from her mother, knew about the danger she and the husband were in from the Taliban; or (ii) the brother would have stayed with the applicant for some months and not have known that, throughout that period, the applicant and the husband were in fact hiding from the Taliban, and she was making arrangements to come to Australia to, in effect, save her and the daughter’s lives; or (iii) throughout the process of making arrangements to obtain a visa to come to Australia the sister was completely unaware of the reasons the applicant wanted to come to Australia; the applicant said: (iv) the applicant and the husband did not want everyone to know what was going on; (v) if the applicant’s “in laws” knew they would share it and tell others, then it would be public; and (vi) if either family knew about the applicant’s and the husband’s problem that would put them under a lot of pressure.[24]
[19] CB486, [19]
[20] CB486, [21]
[21] CB486, [22]
[22] CB487, [23]
[23] CB487, [25]
[24] CB487, [26], [27]
Although the Tribunal did not expressly state it did not accept the applicant’s evidence that she concealed from all of her family, other than her mother, the difficulties the applicant claimed she and the husband faced from the Taliban, that is the effect of this part of the reasons; and that is because the Tribunal devoted most of its attention to the responses the applicant gave to the Tribunal’s putting to the applicant it had difficulty accepting the applicant’s evidence. Thus, the Tribunal:
a)found it was highly unlikely that the families of the applicant and husband would tell others about the difficulties of the applicant and the husband in a manner that would put them at risk;[25]
b)did not accept that, even if the applicant thought it was unlikely the applicant’s and the husband’s families could help them, the “applicant and her husband said nothing to their respective families about the danger they were in”;[26]
c)did not believe that, in their claimed circumstances, possible pressure from their families would prevent the applicant and the husband from telling their families about their situation;[27]
d)did not believe the applicant’s family would behave in any way that would increase the risk of one of their own family members being harmed;[28]
e)did not accept there was no discussion between the applicant and the sister “about this”, that is, about “the applicant having to return to Afghanistan to danger”, when the applicant was in Afghanistan, because the applicant told the sister of this one week after she arrived in Australia; and[29]
f)did not accept the applicant did not tell the brother the situation she was in and why it was necessary to leave Afghanistan.[30]
[25] CB487, [27]
[26] CB487, [27]
[27] CB487, [28]
[28] CB488, [28]
[29] CB488,[29]
[30] CB488, [30]
The third concern the Tribunal identified related to the applicant’s evidence of the circumstances in which the applicant claimed to have left Afghanistan. The applicant said that when the Taliban had left letters at the applicant’s home stating that they would harm the applicant and her family, she chose to remain living there and undergo the process of applying for a visa to come to Australia. That took “some months”. The Tribunal put to the applicant that it had difficulty accepting that in those circumstances the applicant would not have lived with the husband in Kabul, or she would not have gone to Pakistan.[31] The Tribunal was not persuaded with the responses the applicant gave, these being that:
a)the applicant and the husband did not wish to be away from each other (the Tribunal did not find this to be persuasive because the applicant and the husband “were virtually living separately in Afghanistan” and the applicant in any event eventually did come to Australia);[32]
b)had the applicant and husband moved together to another place in Afghanistan the Taliban would think they were trying to escape from them (the Tribunal did not find this persuasive because it did not accept that the possibility of the Taliban thinking the family were trying to escape would cause the applicant just to stay at home and not to go somewhere else straight away);[33]
c)the applicant could not go to Pakistan because the Taliban are present there (the Tribunal did not find this persuasive because it seemed highly improbable that the applicant would not explore the possibility of staying with family in Pakistan if only temporarily out of fear that the Taliban might locate her there, but instead remain at the family home where the Taliban knew the applicant lived);[34] and
d)the applicant said that while she was in Afghanistan she and the husband enquired and learned that getting a protection visa in another country would take a long time (the Tribunal did not find this persuasive because it does not explain why the applicant would remain at home with her child by herself and then with the brother when faced with immediate danger).[35]
[31] CB489, [34]
[32] CB489, [35], [36]
[33] CB489, [35], [36]
[34] CB489-490, [37]
[35] CB490, [38]
The Tribunal’s fourth concern related to what it found to be inconsistent statements the applicant made in her application for a Visitor visa and in her application for a Protection visa. These related to whether she was employed at the time she left Afghanistan, and where the brother resided.
a)In her application for the Visitor visa, the applicant said she was working with the Agency, and, in support of that claim, the applicant submitted a letter from the “Head of Human Resources” (HR letter) which stated the applicant had been working in the position stated in the letter from a particular time and that she remained in that position. The letter also stated that, at the applicant’s request, the Agency agreed to grant her three months leave. In support of the applicant’s application for the Protection visa, on the other hand, the applicant claimed that she had stopped working for the Agency at a date that was one month before the date of the HR letter.[36]
b)In her application for the Visitor visa the applicant stated the brother was living in Peshawar, Pakistan. The brother in his application for the Visitor visa, signed June 2014, made the same statement, and he supported that statement with a letter dated May 2014 from a college in Peshawar advising that the brother was a student at that college who finished exams in April 2014 and that, after visiting the sister would resume classes at the college. On the other hand, before the Tribunal, the applicant and the brother said the brother came from Pakistan in April 2014 to live with the applicant and he remained there until September 2014 when he came with the applicant to Australia. Further, the applicant told the Tribunal that everyone in her family, including her sister in Australia, was aware from April 2014 that her brother was living with her in Afghanistan.[37]
[36] CB491, [42]
[37] CB491, [44]
The Tribunal did not accept the applicant’s explanations for what the Tribunal considered to be inconsistencies.[38]
[38] CB492, [45]-[47]
The Tribunal also considered two reports from psychologists that the applicant showed symptoms of anxiety, depression, and post-traumatic stress disorder, as well as behavioural difficulties displayed by the applicant’s children caused to some degree by the applicant’s failure to engage with them because of her own mental health. The Tribunal noted that the symptoms are “self-reported to the psychologist” and, for that reason, and given the Tribunal found the applicant is not a witness of truth, the Tribunal found the accounts reported in the psychologists’ reports to be false.[39]
[39] CB493, [51]
The Tribunal said that in assessing the applicant’s credibility it had regard to the brother’s evidence. The only reason the brother gave for being told to go live with the applicant is that his mother told him to go and stay with the applicant because the husband was not staying at the home. The brother did not have any specific plan as to how long he would remain in Afghanistan. He said the applicant was quiet and she said nothing to him about any difficulties with the Taliban, and he further said that from her behaviour it would have been hard to see there was any problem at that time. The brother also said that he understood they were leaving Afghanistan and visiting Australia only to visit the sister.[40] The Tribunal, however, found that the brother’s evidence did not overcome the concerns the Tribunal had with the applicant’s evidence, even though it corroborated the applicant’s evidence that she told no one about her difficulties with the Taliban. The Tribunal found it highly improbable that if the applicant were truly in danger she would not have said anything about that to the brother. Further, the Tribunal referred to a letter the brother sent to the sister in April 2014 in which he stated he never got to see the applicant because she lived in Afghanistan.[41]
[40] CB493, [52]
[41] CB493, [53]
Given these findings, the Tribunal did not accept the husband went to live at his workplace, or that the brother came to live in Afghanistan to stay with the applicant because of her fear of the Taliban. It found there was no credible evidence of the reasons the applicant left Afghanistan and came to Australia, or why she does not want to return to Afghanistan; and it found there was no credible evidence that the applicant suffered harm in Afghanistan or that any person in Afghanistan seeks to harm her, or that the applicant worked with the Agency.
The Tribunal referred to the documents submitted by the applicant. After identifying the documents,[42] the Tribunal said it carefully considered the contents, but its consideration “does not overcome the concerns that the Tribunal holds about the credibility of the applicant and her brother as witnesses and the claims the applicant has made about she and her husband being in danger because of her husband’s refusal to assist the Taliban”.[43] In this context the Tribunal also said that because the applicant is not a witness of truth, and because she has been so discredited by the concerns the Tribunal had earlier identified in its reasons, the Tribunal found there was “no credible evidence about the employment of the applicant’s husband” and there was “no credible evidence that anyone in Afghanistan seeks to harm him”.[44] The Tribunal also referred to its having put to the applicant at the hearing “that false documents are widely available in Afghanistan and the Tribunal may not give weight to the documents she has submitted”. After recording the response the applicant gave, namely, that it did not follow from the prevalence of false documents in Afghanistan that the documents on which the applicant relied were false, the Tribunal acknowledged the applicant’s submission but said that the Tribunal “considers the prevalence of false documents in Afghanistan together with the concerns it holds about the applicant’s credibility”. The Tribunal, therefore, concluded that, “[c]onsidered together, the Tribunal determines not to give evidentiary weight to the documents submitted by and on behalf of the applicant and which have been discussed above”.[45]
[42] CB494-495, [58]
[43] CB495, [60]
[44] CB495, [60]
[45] CB496, [61]
The Tribunal also disbelieved the applicant’s evidence that people in her village believe that she and the brother have converted to Christianity because they obtained a visa to, and have visited, Australia; that “these people” have threatened to harm the applicant and the brother on those grounds if they return to the village; and the Tribunal disbelieved the claim made in the form of application that people in her village decided the applicant and the husband had become “non-Moslems” because they worked for the government.[46]
[46] CB494, [56]
In this part of its reasons the Tribunal noted that “the applicant and the representative said that the Tribunal did not question the applicant about this particular claim of a perceived conversion based on coming to Australia”.[47] That appears to be a reference to the following exchange at the hearing before the Tribunal;[48]
INTERPRETER: It was also part of our claim now they are suspecting we have converted him to Christianity. You didn’t ask me any question with regards to that.
MEMBER:No, because that is related to your claim that the Taliban threatened you and for that reason you had to leave Afghanistan, and I need to decide whether or not I accept that. If I believe that then I am willing to believe that since you left people think that you’ve become Christian.
[47] CB494, [57]
[48] T35.5. The transcript is annexed to the affidavit of K Wrigley, 14.05.2018
The Tribunal said it did not question the applicant about “this particular claim” because through the course of the hearing “considerable concerns arose with respect to the credibility of the core of her account, namely, her fear of harm from the Taliban because of her husband’s refusal to help them”.[49] The Tribunal said its concerns about the applicant’s credibility were such that the Tribunal “cannot accept as credible other residual claims”, and that the “Tribunal saw no purpose in questioning her about that at the hearing”.[50]
[49] CB494, [57]
[50] CB494, [57]
The Tribunal then addressed other claims it considered arose from the material before it and, for reasons it is not necessary to set out here, the Tribunal concluded it was not satisfied that the applicants satisfied the criteria under s.36(2)(a) and s.36(2)(aa) of the Act.
Ground 1 of application
The application contains four grounds of review. The first is as follows (errors in original):
In concluding that the First Applicant was not a witness of truth and the account of events on which her protection claims were based was false, the Tribunal erred as there was no logical or probative basis for this conclusion.
Particulars
i. It was illogical or irrational for the Tribunal to rely on:
A. the following minor (and explainable) inconsistencies in the First Applicant’s evidence:
I. the First Applicant’s initial evidence that no one in her family knew about the threat posed by the Taliban, followed by her evidence that only her mother knew about the threat;
II. the evidence in the First Applicant’s visitor visa application that as at June 2014 she was still employed by a government organisation, as compared to her evidence to the Tribunal that she left her employment with that organisation in April 2014;
III. the evidence in the First Applicant’s visitor visa application that as at June 2014, the Third Applicant resided in Pakistan, as compared to her evidence to the Tribunal that from April 2014 he was living with her in Afghanistan; and
B. its own speculative conclusions that:
I. it was implausible the Applicant’s husband would have lived in Kabul from early 2014, with the First, Second, and Fourth Applicants remaining in their home village, if both he and the First Applicant were at risk of harm from the Taliban at that time;
II. it was implausible that the First Applicant only told her mother about the difficulties she and her husband were experiencing in respect of the risk posed to them by the Taliban, as the cumulative basis for the Tribunal’s conclusion that the First Applicant was not a witness of truth and that the account of events on which her protection claims were based was false.
Parties’ submissions
In their written submissions the applicants referred to each of the matters identified in the particulars, and made submissions why those matters either were “minor (and explainable) inconsistencies”, or constituted “speculative conclusions”.
a)In relation to the first particularised matter the applicants submit the inconsistency is “minor”;[51] the words “no one knew” are ambiguous because it could reasonably have been construed to refer to persons in the village, an ambiguity heightened by the applicant’s giving evidence that by “everyone I didn’t mean my mum (indistinct) to other people”;[52] the applicant’s evidence was consistent throughout her visa application that neither the sister nor the brother knew about her and the husband’s problems with the Taliban; and the brother corroborated the applicant’s evidence.[53]
b)In relation to the second particularised matter the applicants submit the inconsistency is “very minor and explicable”; the “difference is only one month”, with the applicant only having stated that she left her employment in “approximately” the middle of April 2014; and that the applicant’s “memory of the precise day” not exactly aligning with the date stated in the first letter “is of insufficient consequence to found a finding that the First Applicant fabricated the entirety of her evidence”.[54]
c)In relation to the third particularised matter the applicants submit that the inconsistency between the applicant’s Visitor visa stating that in June 2014 the brother resided in Pakistan and the applicant stating to the Tribunal that the brother was living with her in Afghanistan “is explainable”; and the applicant gave the Tribunal a “not wholly unbelievable” explanation, namely, the applicant considered that the brother was staying with her temporarily. The applicants submit this “is not wholly unbelievable”. The applicants also submit that the brother’s having finished his year-10 exams on 14 April 2014 was not inconsistent with the brother’s having moved to Afghanistan in the middle of April 2014.[55]
d)As for the fourth and fifth particularised matters, the applicants submit the Tribunal’s finding that two of the applicant’s claims were “implausible”, “concerned speculation by the Tribunal (as opposed to specific findings that the evidence she gave was false)”.[56]
[51] Applicant’s Outline of Submissions, [24]
[52] Applicant’s Outline of Submissions, [24]
[53] Applicant’s Outline of Submissions, [25]
[54] Applicant’s Outline of Submissions, [26]
[55] Applicant’s Outline of Submissions, [27]
[56] Applicant’s Outline of Submissions, [31]
On the basis of these submissions, the applicants submit it was not open to the Tribunal “to aggregate those speculative conclusions with the minor factual inconsistencies . . . to reach a global conclusion that the First Applicant was not a witness of truth”.[57] The applicants further submit this was not a case “where the inconsistencies revealed a pattern of deception by an applicant – something that is usually warranted before the Tribunal wholly rejects an applicant’s evidence as being false, as occurred here”. It appears the applicants also submit that the Tribunal ignored the corroborating evidence that was constituted by documents on which the applicant relied and, for that reason, the Tribunal made an error of the sort it was found the Refugee Review Tribunal made in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs.[58]
[57] Applicant’s Outline of Submissions, [32]
[58] WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74
The Minister, on the other hand, submits the applicants’ written submissions do not take into account all of the matters on which the Tribunal relied in finding that the applicant gave false evidence.
Approach
After I make some observations about the relevance of prior inconsistent statements to assessing the credibility of testimony, I will in relation to each of the inconsistencies ground 1 identifies consider whether it was reasonably open to the Tribunal to find that there was an inconsistency. I will then consider whether, as the applicants submit: (a) the Tribunal rejected claims on the basis they were “implausible”; and (b) assuming it did, consider: (i) whether the Tribunal relied on “speculative conclusions” in finding the claims to be implausible; and, if so, (ii) whether the Tribunal relied on such “speculative conclusions” in combination with the inconsistencies the applicants submit are minor; and, if so, (iii) whether the Tribunal’s finding that the applicant is not a witness of truth is irrational or illogical. I will consider separately whether the Tribunal made an error of the sort identified in WAIJ.
Open to find inconsistencies?
A person’s making a statement that is inconsistent with statements the person makes before a tribunal or court is a well-known and accepted basis for doubting the credibility of the statement the witness makes before the tribunal or court. The logic by which prior inconsistent statements can raise such doubts was described by Wigmore: the inconsistency “always shows that the witness has made some sort of mistake at some time, and thus demonstrates a capacity to err” (emphasis in original). More particularly, the making of inconsistent statements means that both “statements cannot be correct; one of the two must be incorrect; therefore [the witness] shows a capacity to err”.[59]
[59] J H Wigmore Evidence in Trials at Common Law, Vol 3A revised by J H Chadbourn Little Brown & Company, Boston, 1983, Vol 1A §1017, pages 994-995
It is a matter for the fact finder, however, acting reasonably, to weigh the significance of a prior inconsistent statement; and there are at least three matters that are likely to bear on the significance of a prior inconsistent statement. The first is the extent to which the subject of the inconsistent statements is relevant to the issues in a proceeding. All other things remaining equal, the more central to a fact in issue is the subject of the inconsistent statements, the greater will be the significance of the inconsistency. The second matter is the extent of the inconsistency. All other things remaining equal, the greater the inconsistency, the greater the weight that may be accorded to it. The third matter is whether there is some reasonable explanation for the inconsistency.
First inconsistency. I do not understand the applicants to submit it was not open to the Tribunal to consider the applicant’s statement that only her mother knew about the applicant’s troubles with the Taliban was inconsistent with the statements she had given before that nobody knew of those troubles. In any event, I am not satisfied it was not open to the Tribunal to so find; and the applicants submitting the applicant’s statement that “no one knew” was ambiguous, only reinforces the point that it was reasonably open to the Tribunal to consider the evidence the applicant gave to be inconsistent with the statements the applicant previously made to the effect that she had told nobody about the problems she was experiencing with the Taliban.
Second inconsistency. As for the second inconsistency - the applicant’s stating before the Tribunal that her employment had ceased in April 2014 but in her application for a Visitor visa the applicant stating she was still an employee in June 2014 – counsel for the applicant emphasised the applicant’s having given two dates which differed by only one month. This, however, does not address the inconsistency the Tribunal identified. The inconsistency was not between, or only, two dates, but between the applicant, on the one hand, relying on a purported letter dated 15 May 2014 in support of her Visitor visa application that represented the applicant was still employed and, on the other, the applicant relying on another letter purportedly from the same employer stating that her employment had ceased in April 2014. I am not satisfied it was not open to the Tribunal to find the inconsistency it did find.
Third inconsistency. I am not satisfied it was not reasonably open to the Tribunal to find that the claim the applicant made in support of her application for a Protection visa that the brother resided with her in Kabul was inconsistent with what, by making an application for a Visitor visa, the applicant represented about the brother’s residency. That the applicant’s representing in her application for a Visitor visa that the brother was a resident in Pakistan may be “explainable”, and that the applicant gave an explanation that “is not wholly unbelievable”, as counsel for the applicants has submitted, does not mean the Tribunal was compelled to accept the explanation the applicant gave for the inconsistency.
Challenge based on “implausibility”
This part of ground 1 is directed to the Tribunal’s not accepting two of the applicant’s claims. The first is that the applicant’s husband lived in Kabul from early 2014, while the applicant, daughter, and brother remained in their home village in circumstances where the applicant claimed she and the husband believed they were at risk from the Taliban (Remaining in the Village Claim). The second claim is the applicant’s having told her mother, and no one else, about the danger she and the husband faced (Non-Disclosure of Danger Claim).
The particulars to ground 1 contend the Tribunal found these two claims to be “implausible”. That, however, is not the word the Tribunal used in relation to the claims; and it does not reflect the structure of the Tribunal’s reasons. As my summary of the Tribunal’s reasons should indicate, the Tribunal structured its reasons as follows. It arranged its reasons according to what it identified as its concerns about the applicant’s evidence. In relation to each concern, the Tribunal recorded the concern it had, the fact that it communicated that concern to the applicant, and the applicant’s responses to the Tribunal’s concerns; and the Tribunal then considered each of the responses. Having done this in relation to each of the concerns, the Tribunal made a general finding about the applicant’s credit (it found the applicant was not a witness of truth), it made a finding about the brother’s credit (it found the brother’s evidence did not overcome the concerns the Tribunal had about the applicant’s credit, and otherwise was not a witness of truth), and then it made findings about each of the claims the applicant made, including the Remaining in the Village Claim and the Non-Disclosure of Danger Claim, based on the adverse credit findings it made in relation to the applicant and the brother.
In these circumstances the Tribunal did not in terms find that each of the Remaining in the Village Claim and the Non-Disclosure of Danger Claim was implausible. I will assume, however, that the Tribunal did find that each of the Remaining in the Village Claim and the Non-Disclosure of Danger Claim was implausible, and consider whether, for the reasons the applicants submit, the Tribunal made any jurisdictional error in arriving at, or in relying on, such finding. I will first briefly discuss “implausibility” as a ground for not accepting evidence.
Implausibility as a reason for not accepting evidence. A finding that testimonial evidence is implausible is a finding that the fact, event, or state of affairs that is asserted by the testimonial evidence is inherently unlikely to be true. That is the meaning McHugh J gave to “implausible” in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham.[60] In that case it was submitted the Tribunal breached s.430 of the Act by failing to set out the reasons for finding evidence to be “utterly implausible”. McHugh J did not accept that submission (emphasis added):[61]
However, this was essentially a finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason 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.
[60] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1, at [67]
[61] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1, at [67]. The High Court referred to this part of McHugh J’s judgment with approval in The Republic of Nauru v WET040 [No 2] [2018] HCA 60, at [38].
Thus, to the extent the Tribunal found that each of the Remaining in the Village Claim and the Non-Disclosure of Danger Claim is implausible the Tribunal should be taken to have found that the events these claims alleged occurred are inherently unlikely to have occurred.
Tribunal’s findings of implausibility. The ground on which the applicants rely for attacking the Tribunal’s not accepting the Remaining in the Village Claim and the Non-Disclosure of Danger Claim is the submission that the Tribunal relied on “speculation”, “as opposed to specific findings that the evidence she gave was false”. Two things may be said about that submission.
First, the submission implies it was not open to the Tribunal not to accept the Remaining in the Village Claim and the Non-Disclosure of Danger Claim on the ground they were implausible without making specific findings that the applicant’s evidence was false. If that is the submission the applicants intend to make, I do not accept it. As McHugh J held in Durairajasingham, a finding that evidence is implausible is a finding that, in the fact finder’s view, it is inherently unlikely that the fact or state of affairs intended to be asserted by the evidence is true. That does not entail the necessity for making any specific finding of fact. Thus, that the Tribunal made no finding that the applicant’s evidence the Tribunal found to be implausible was not false does not disclose any jurisdictional error by the Tribunal.
Second, it is the case that the Tribunal’s not accepting testimonial evidence because it has formed the view it is implausible is not immune from judicial review for unreasonableness or irrationality. But the onus is on an applicant to allege and prove that in the particular circumstances of the case the Tribunal’s finding evidence to be implausible and, for that reason, not accepting it, is unreasonable or irrational. The applicants, however, have not identified the ground on which they submit the Tribunal’s finding that the Remaining in the Village Claim and the Non-Disclosure of Danger Claim were implausible was based on speculation, other than relying on the submission that the Tribunal did not make specific findings that the evidence the applicant gave was false, a matter I have found does not disclose any jurisdictional error.
Perhaps the applicants intend to submit that in finding the Remaining in the Village Claim and the Non-Disclosure of Danger Claim were implausible the Tribunal relied on some unstated generalisation about human affairs that is irrational or unreasonable.[62] If that is what the applicants intend to submit, they have not identified the generalisation on which they submit the Tribunal relied, or the ground on which they submit such generalisation is unreasonable or irrational. Perhaps more relevantly, the applicants have not identified any generalisation on the basis of which they contend a reasonable decision maker in the position of the Tribunal could not but have considered the Remaining in the Village Claim and the Non-Disclosure of Danger Claim to be plausible.
[62] As to the use of generalisation in fact finding, see my discussion in Tran v Minister for Immigration & Anor [2019] FCCA 2859, at [23]-[28]
It is possible that by submitting the Tribunal relied on speculation as “opposed to specific findings that the evidence she gave was false” the applicants intend to submit that it was not open to the Tribunal to make the general finding that the applicant was not a witness of truth without making specific findings that particular evidence the applicant gave was false. That the applicants intend to make this submission is supported by their submission that “where the inconsistencies revealed a pattern of deception by the applicant – something that is usually warranted before the Tribunal wholly rejects an applicant’s evidence as being false, as here”. If that is what the applicants intend to submit, I would not accept it. A submission to that effect was not accepted by the Full Federal Court in CQG15 v Minister for Immigration and Border Protection:[63]
Next, the contention that the Tribunal had to find “specific evidence of falsity” before concluding that the appellant was not a witness of truth and that only “a direct conflict of evidence” could achieve this, cannot be accepted. To the contrary, it is clear on authority that the Tribunal does not need to possess rebutting evidence before holding that a particular factual assertion is not made out: see, for example, Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 301; 34 ALD 347 per Heerey J (at 348). This is not a case like WAIJ where the majority, Lee and Moore JJ, held (at [52]) “[t]he Tribunal appears to have considered that it could disregard documents that it was otherwise bound to consider if it surmised that it was possible that the documents could have been fabricated”. In that case, it was held that the Tribunal had erred, but not for the reasons advanced by the appellant in his argument.
[63] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146, at [65]
Challenge based on overall unreasonableness
Finally I refer to the applicants’ submission that it was not open to the Tribunal “to aggregate those speculative conclusions with the minor factual inconsistencies . . . to reach a global conclusion that the First Applicant was not a witness of truth”.[64] I have not accepted the Tribunal relied on any speculative conclusions. For that reason I do not accept this submission. I also do not accept that the Tribunal’s conclusion that the applicant was not a witness of truth was unreasonable or irrational only because the Tribunal relied on the inconsistencies it identified. The inconsistencies formed only a part of the matters on which the Tribunal relied for making that finding; and none of the inconsistencies, minor or not minor, could be said to have been entirely irrelevant in the assessment of the applicant’s credibility, particularly when considered with the other material on which the Tribunal relied.
[64] Applicant’s Outline of Submissions, [32]
Challenged based on WAIJ
The final question is whether the Tribunal made an error similar to that which the Tribunal was found to have made in WAIJ. In that case the Tribunal said it gave no or little weight to documents on which the visa applicant relied because the documents did not overcome the problems the Tribunal had with the visa applicant’s evidence. Lee and Moore JJ said (omitting references):[65]
The Tribunal determined the matter adversely to the appellant by disregarding the documents it had been directed to consider by the order made by consent in this Court, stating that the documents “do not overcome the problems I have with the applicant’s evidence”.
Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material . . . . Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the Tribunal in assessing the credibility of an applicant’s claims. However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error.
[65] [2004] FCAFC 74, at [26] and [27]
As I have noted elsewhere,[66] this part of the Full Federal Court’s judgment must be read with the Full Federal Court’s judgment in Minister for Immigration and Citizenship v SZNSP.[67] There, the Tribunal found the applicant had fabricated her claim of fear of persecution and, because of the adverse credibility findings it made against the applicant, the Tribunal decided not to give any weight to a witness statement that apparently corroborated the applicant’s claims. The words the Tribunal used were: “Given the adverse credibility finding, the Tribunal does not give weight to the document”.[68] The Full Federal Court said:[69]
[I]t was open to the RRT to assess the credit of the first respondent and then, in the light of that assessment, consider what weight should be given to the witness statement. This was the process followed by the RRT which it described in the sentence “Given the adverse credibility finding, the Tribunal does not give weight to the document”. Although expressed in the most cryptic terms, this statement shows that the RRT made an assessment of the value of the witness statement and then considered its effect in the light of the view it had formed to that point about the credibility of the first respondent.
[66] SZSEI & Anor v Minister for Immigration & Anor [2017] FCCA 1820, at [25]
[67] [2010] FCAFC 50 (North, Lander and Katzmann JJ)
[68] [2010] FCAFC 50, at [13]
[69] [2010] FCAFC 50, at [33] (North and Lander JJ; Katzmann J agreeing at [42])
Burley J reviewed these and other cases in SZVHO v Minister for Immigration and Border Protection.[70]
[70] [2016] FCA 1499
In the case before me the Tribunal first assessed the credit of the applicant and then, in the light of that assessment, considered the weight it should give to the documents and witness statements. As the Full Federal Court held in SZNSP, it was reasonably open to the Tribunal to take that approach. But there are two additional things that should be noted.
a)First, in assessing the applicant’s credit the Tribunal did take into account some of the documents because they disclosed matters that were inconsistent with the evidence that the applicant gave in support of her application for review.
b)Second, the Tribunal considered the weight that it should give to the documents on which the applicants relied. It did so in the context of country information the Tribunal found showed the prevalence of false documents in Afghanistan. The Tribunal, however, acknowledged that that by itself did not mean the documents on which the applicants relied were false. In determining whether to give weight to the documents on which the applicant relied the Tribunal took into account both the country information that showed the prevalence of false documents in Afghanistan and the adverse credibility finding it made against the applicant. In the words of the Tribunal, it “considers the prevalence of false documents in Afghanistan together with the concerns it holds about the applicant’s credibility”.[71] It was reasonably open to the Tribunal to proceed in this way.
[71] CB496, [61]
Conclusion
For these reasons, ground 1 fails.
Ground 2
Ground 2 is as follows:
The Tribunal erred in unreasonably concluding that because the Tribunal did not believe the First Applicant in respect of her claim that she feared harm from the Taliban, it did not believe the First Applicant’s claim that she feared harm on account of a perception that had developed within her community in Afghanistan that she had converted to Christianity.
Particulars
i. The only bases on which the Tribunal reached the above conclusion were:
A. that it did not believe the First Applicant in respect of her claim that she feared harm from the Taliban (see Reasons [56]-[57]); and/or
B. that her claim that she feared harm on account a perception in her community that she had converted to Christianity was “directly related” to her claim that she feared harm from the Taliban.
ii. There is no reasonable connection between the First Applicant’s claim that she feared harm from the Taliban, and her claim that she feared on account a perception in her community that she had converted to Christianity and, as such, it was unreasonable for the Tribunal to conclude that because it not believe the First Applicant in respect of her claim that she feared harm from the Taliban, it did not believe the First Applicant’s claim that she feared harm on account of a perception that had developed within her community in Afghanistan that he had converted to Christianity.
iii. It was unreasonable for the Tribunal to conclude that it saw no purpose in questioning the First Applicant on this aspect of her claim because it had concluded that she could not be believed in respect of her claim that she feared harm from the Taliban.
Parties’ submissions
In their written submissions the applicants submit there was an arbitrariness in the Tribunal’s deciding not to ask the applicant questions about her claim that a perception had developed within her community in Afghanistan that she had converted to Christianity (Perceived Conversion Claims), and deciding that claim on the basis of how it was going to decide what the Tribunal considered to be the core of the applicant’s claims, namely, fear of harm from the Taliban because of her husband’s refusal to help them (Core Claim). The basis on which the applicants submit the Tribunal acted arbitrarily by adopting this approach is there was no reasonable connection between the Perceived Conversion Claims and the Core Claim such that the Tribunal’s rejection of the former claim necessarily entailed the latter claim. The Minister, on the other hand, submits the Tribunal did not act arbitrarily because the Perceived Conversion Claims were bound up with what the Tribunal considered to be the applicant’s Core Claim.
Issues and approach
It will be seen that the ground, when read with the particulars and the written submissions, is directed to two things and, for that reason, should be taken to make two claims. The first is directed to the reason the Tribunal gave for not accepting the Perceived Conversion Claims. Ground 2 claims the Tribunal’s reason was unreasonable. The second thing to which ground 2 is directed is the Tribunal’s decision not to ask the applicant any questions about the Perceived Conversion Claims. Ground 2 claims this decision was also unreasonable.
To be in a position to assess these claims, it will be necessary first to identify the claims ground 2 contends the Tribunal rejected for reasons that were unreasonable or arbitrary; the reasons the Tribunal gave for not accepting the claims; and the reasons the Tribunal gave for deciding not to ask the applicant questions about those claims.
The claims rejected
It is apparent from the Tribunal’s reasons that it was aware the Perceived Conversion Claims consisted of two claims. One (PCC1) was a claim that people in the applicant’s village believed the applicant and the husband “became non-Muslims” because they worked for the government. The applicant made that claim in the answer she gave to question 44 of the form of application for a Protection visa (errors in original):[72]
People of my village my relatives who live in that village started talking about my and my husband’s characters that they have became non-Muslims, they joined government and many more like this. As time passed we felt more danger because my daughter was growing she needed to be in childcare while I was on job but I didn’t let her because I felt fear.
[72] CB121
It is apparent that the applicant’s establishing PCC1 depended entirely on the Tribunal accepting the applicant’s claim that she and the husband were employed by the government; and this, in turn, depended on the Tribunal accepting the applicant’s evidence that she and the husband were employed by the government. That is so because if the Tribunal did not accept the applicant and the husband worked for the government it necessarily meant villagers could not have been found to have perceived the applicant and the husband as becoming non-Muslims because they were employed by the government.
The second claim that formed part of the Perceived Conversion Claims is the claim the applicant made before the delegate, and which is recorded in the delegate’s reasons (PCC2);[73] and that is that “[s]ince she came to Australia, people in her village are saying that she must have converted to Christianity to get an Australian visa”, and that “people will punish her as a warning to others not to abandon their Muslim faith”.
[73] CB267
Reasons for rejecting PCC1 and PCC2
It is clear on the face of the Tribunal’s reasons that it did not accept PCC1 and PCC2 because it had formed the view that the applicant was not a witness of truth; and the Tribunal formed that view in the course of weighing the concerns it identified in relation to claims other than PCC1 and PCC2, and its assessment of the responses the applicant gave to the Tribunal’s concerns.
Reasons for deciding not to ask applicant questions
As I have already noted, in its reasons for decision the Tribunal said it decided not to ask the applicant questions about PCC1 and PCC2 because through the course of the hearing “considerable concerns arose with respect to the credibility of the core of her account, namely, her fear of harm from the Taliban because of her husband’s refusal to help them”.[74] The Tribunal said its concerns about the applicant’s credibility were such that the Tribunal “cannot accept as credible other residual claims”, and that the “Tribunal saw no purpose in questioning her about that at the hearing”.[75] This reason, however, does not sit well with what the Tribunal member said at the hearing.
[74] CB494, [57]
[75] CB494, [57]
In the passage from the transcript of the hearing reproduced above, the applicant brought to the Tribunal member’s attention the member’s not having asked the applicant questions “with regards to that”, which is a reference to the applicant’s statement that “[i]t was also part of our claim now they are suspecting we have converted him to Christianity”. The Tribunal member said he did not propose to do so because “that is related to your claim that the Taliban threatened you and for that reason you had to leave Afghanistan” (that is, the Core Claim). This indicates the Tribunal member decided not to ask the applicant questions about PCC1 and PCC2 because the member was of the view that its determination of these claims would turn on the determination of the Core Claim.
I find that the reason the Tribunal decided not to ask the applicant questions in relation to PCC1 and PCC2 is the reason the Tribunal gave at the hearing, namely, that the Tribunal, “at that stage of the proceeding”, was of the view that the determination of PCC1 and PCC2 would depend on the determination of the Core Claim. I so find because that is the view the Tribunal expressed at the time the Tribunal member informed the applicant he did not intend to ask the applicant questions about the Perceived Conversion Claims. What, then, am I to make of the reason the Tribunal gives in its reasons for deciding not to ask the applicant questions, namely, that by the time it made the decision not to ask the applicant questions about the Perceived Conversion Claims it saw “no purpose in questioning” the applicant about “residual claims” because it had formed an adverse view of the applicant’s general credibility? This question was not raised and, therefore, was not addressed by the parties. Nevertheless, it is a question I cannot ignore.
If what the Tribunal said in its reasons is taken literally, the Tribunal had already decided it would not accept the applicant as a credible witness at the time it indicated to the applicant the Tribunal member did not intend to ask her questions about PCC1 or PCC2. That, however, would be inconsistent with what the Tribunal member said immediately before it indicated to the applicant that the Tribunal member did not intend to ask her questions about these claims. The Tribunal member there said “that I haven’t made any decision about your credibility”.[76] In the absence of any suggestion of bad faith (and by this I should not be taken to suggest there is any basis for alleging bad faith), the apparent inconsistency is to be explained by error or infelicity of language. I am inclined to ascribe it to both. One, admittedly strained, reading of the Tribunal’s reasons is that the Tribunal intended to say that the Tribunal’s asking the applicant questions about PCC1 and PCC2 could not have resulted in the Tribunal accepting those claims because, having considered the matters in the manner set out in its reasons, the Tribunal would have in any event formed the view that the applicant is not a witness of truth. This reading implies that the Tribunal initially decided not to ask the applicant questions about PCC1 and PCC2 because it was of the view that the determination of those claims would depend on the determination of the Core Claim, but when the Tribunal considered the matter further it appreciated that the determination of the Core Claim did not necessarily entail the determination of PCC1 and PCC2.
Did the Tribunal act unreasonably or irrationally in not accepting PCC1 and PCC2 for the reasons on which it relied?
[76] T34.35. The transcript is annexed to the affidavit of K Wrigley, 14.05.2018
As I have already noted, the Tribunal did not accept PCC1 and PCC2 because it had concluded that the applicant was not a witness of truth; and it formed that conclusion in the course of its considering the Core Claim. Assuming, as I have found, the applicants have not established that the Tribunal acted unreasonably or irrationally in concluding the applicant was not a witness of truth, the question is whether it was not reasonably open to the Tribunal to rely on that general adverse credibility finding for not accepting PCC1 and PCC2. That question is to be answered in the negative.
A fact finder’s finding that a person is not in general a witness of truth is capable of constituting a rational basis for the fact finder not accepting evidence from that person, unless the evidence is inherently probable or is otherwise corroborated by evidence given independently of the person. In Re Minister for Immigration and Multicultural Affairs the High Court recognised that a finding that a person is not a witness of truth can afford a rational basis for not even accepting apparently corroborative evidence:[77]
In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.
[77] Re Minister for Immigration and Multicultural Affairs [2003] HCA 30, at [49]
This passage refers to its not being open to a fact finder relying on a general adverse credibility finding as a ground for not accepting apparently corroborative evidence. It applies with greater force in relation to the evidence of the person whom the fact finder has found not to be a witness of truth.
I do not accept, therefore, that the Tribunal acted irrationally or unreasonably in rejecting PCC1 and PCC2 without having questioned the applicant about those claims, on the basis of its finding that the applicant is not a witness of truth.
Did the Tribunal act arbitrarily in deciding not to ask the applicant about PCC1 and PCC2?
I have found that the reason the Tribunal decided at the hearing not to ask the applicant questions in relation to PCC1 and PCC2 is the reason the Tribunal gave at the hearing, namely, that the Tribunal was then of the view that the determination of PCC1 and PCC2 would depend on the determination of the Core Claim. That view was correct in relation to PCC1 because that claim did depend on the Tribunal accepting what was also a necessary element of the Core Claim, namely, that the applicant and the husband were or had been employed by the government. The Tribunal’s not accepting that the applicant and the husband were not or have not been employed by the government would necessarily have meant it could not accept PCC1 because the perceived conversion that was the basis of this claim was said to have arisen from the applicant and the husband being employed by the government.
The Tribunal’s view, however, was not correct in relation to PCC2 because that claim was independent of the Core Claim; but that does not by itself manifest any arbitrariness or unreasonableness. At most it manifested a misunderstanding by the Tribunal at the time of the hearing about the connection between the Core Claim and PCC2. By the time it made its decision, the Tribunal does not appear to have continued to labour under any misconception. That is apparent from the reason for which the Tribunal rejected PCC2, being a reason for which it also relied for not accepting PCC1: the Tribunal did not reject PCC2 (and PCC1) because it had rejected the Core Claim; the Tribunal rejected PCC2 (and PCC1) because it found the applicant was not a witness of truth.
Conclusion
For these reasons ground 2 also fails.
Ground 3
Ground 3 is as follows:
In concluding that it did not believe the First Applicant in respect of her claim that she feared harm on account of a perception that had developed within her community in Afghanistan that she had converted to Christianity, the Tribunal erred in failing to comply with the requirements of s 425 of the Migration Act 1958 (Cth).
Particulars
i. The Tribunal failed to invite the First Applicant to give evidence and present arguments relating to her claim that she feared harm on account of a perception that had developed in her community that she had converted to Christianity.
ii. By reason of:
A. the delegate of the Minister not conclusively rejecting this aspect of the First Applicant’s claim on credibility grounds, but rather by reference to country information (see pages 10-11 and 18 of the reasons for the decision of the delegate of the First Respondent refusing the Applicants’ applications for protection visas);
B. the Tribunal not asking, and seeing no purpose in asking, any questions about this aspect of the First Applicant’s claim (see Reasons [57]);
C. the Tribunal merely stating to the First Applicant at the hearing before the Tribunal that this aspect of her claim was “directly related” to her claims regarding the threats from the Taliban the First Applicant was not on notice that the Tribunal that the Tribunal was having difficulty in accepting this aspect of her claim.
The elements of this ground, as amplified by the applicants in their written submissions, are as follows:
a)The delegate did not accept the Perceived Conversion Claims because the delegate had formed an adverse assessment of the applicant’s credit; the delegate rejected the claim on the basis of country information.
b)Because of (a), the applicant was entitled to assume, and did assume, that her credit in relation to the Perceived Conversion Claims would not be one of “the issues arising in relation to the decision under review” within the meaning of s.425 of the Act.
c)Because of (b), the Tribunal could not determine the Perceived Conversion Claims adversely to the applicant based on making an adverse credit finding without first giving to the applicant notice that it might determine the Perceived Conversion Claims on the basis of making a credit finding.
d)The Tribunal rejected the Perceived Conversion Claims on the basis of a credibility finding adverse to the applicant without giving the applicant notice that it might do so, contrary to s.425(1) of the Act.
There are a number of difficulties with this ground. First, the ground assumes that a basis for not accepting evidence - in this case, an adverse credibility assessment – is capable of being an issue “arising in relation to the decision under review” within the meaning of s.425 of the Act if the delegate did not rely on that basis for not accepting the claim. That assumption equates “issue” with evidence and even with chains of reasoning on which the Tribunal relies but on which the delegate has not relied in deciding not to grant the applicant a Protection visa. That is not correct.
In the context of an application for a Protection visa, the expression “issues arising in relation to the decision under review” in s.425 of the Act denotes those elements of an applicant’s claims for protection which the delegate did not accept and which, for that reason, were dispositive in the delegate’s decision not to grant a Protection visa. That is the effect of the following passage from the judgment of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (emphasis added):[78]
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
[78] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, at [35]
Applying these observations to the circumstances of the case before me, the delegate identified a number of matters that were determinative against the delegate granting the applicants a Protection visa. One of these was the delegate’s not accepting the Perceived Conversion Claims. Thus, one of the issues arising in relation to the delegate’s decision was whether the Perceived Conversion Claims should be accepted; and given the delegate had rejected those claims, the applicant was on notice this would be an issue before the Tribunal. There is no dispute that the applicant was aware this was an issue before the Tribunal.
Second, even if it were assumed a finding of credibility is capable of constituting an issue “arising in relation to the decision under review”, the delegate’s reasons cannot reasonably be construed as containing a finding or assumption that the applicant was a credible witness in relation to the Perceived Conversion Claims or in relation to any of the other claims she made. The delegate said he “found several reasons to doubt the credibility of” the applicant’s claims;[79] and the delegate found that the letters purportedly from the Taliban “were fabricated”.[80] In these circumstances, that the delegate may have not accepted the Perceived Conversion Claims without expressly relying on any adverse credibility assessment he made in relation to the applicant cannot reasonably indicate the delegate accepted the applicant was a credible witness. From the delegate’s decision alone, it ought reasonably to have been apparent to the applicant that the credibility of all of her claims would be an issue before the Tribunal and that, given the credibility of those claims depended on the credibility of the applicant’s evidence, the applicant ought reasonably to have known that her credibility would be an issue before the Tribunal.
[79] CB270
[80] CB271
Third, the Tribunal made it apparent to the applicant that her credibility in general was in issue, and the applicant was aware her credibility was in issue. That is apparent from the following exchange recorded in the Tribunal hearing which immediately proceeded the applicant’s commenting to the Tribunal that the Tribunal did not ask the applicant any questions about the Perceived Conversion Claims:[81]
INTERPRETER: What is concerning for me at this point of time is that you said you didn’t believe all of the whatever I said, I don’t know how – why you’re not believing me.
MEMBER:Okay, I’ll just reassure you that I haven’t made any decision about your credibility. Under the law if there is anything in the evidence before me that raises concerns about your credibility then I have to discuss those with you. Only once the hearing is finished then I consider all of the evidence I have and make a decision about your credibility and about your case.
[81] T34.35. The transcript is annexed to the affidavit of K Wrigley, 14.05.2018
Conclusion
For these reasons ground 3 also fails.
Ground 4
Ground 4 is as follows:
In concluding there was no purpose in questioning the Applicant, and therefore failing to consider in any detail, the First Applicant’s claim that she feared harm on account of a perception that had developed within her community that she had converted to Christianity, the Tribunal erred in failing to take into account a relevant consideration.
Particulars
i. The Tribunal concluded at Reasons [56]-[57] that because it did not believe the First Applicant in respect of her claim that she feared harm from the Taliban, that it “saw no purpose in questioning her” in respect of her claim that she feared harm from persons within her village in Afghanistan on account of their beliefs that she, and the Third Applicant, had converted to Christianity or had become “non-Moslems”.
ii. Accordingly, the Tribunal failed to consider a relevant integer of the Applicant’s claim for protection.
This ground in effect claims the Tribunal did not consider the Perceived Conversion Claims; and the basis of that claim is the Tribunal having proceeded on the basis that it saw no purpose in questioning the applicant about those claims.
The difficulty with this ground is that it equates the reason the Tribunal gave for not questioning the applicant about the Perceived Conversion Claims with the reason for which the Tribunal did not accept the claims. The Tribunal did not reject the Perceived Conversion Claims because it saw no purpose in considering it; what the Tribunal said it saw no purpose in doing was to question the applicant about the Perceived Conversion Claims. The Tribunal rejected the Perceived Conversion Claims because those claims relied on the Tribunal’s accepting the applicant to be a witness of truth, but the Tribunal found the applicant was not a witness of truth. In so finding, the Tribunal did consider and therefore take into account the Perceived Conversion Claims.
Ground 4, therefore, also fails.
Disposition and costs
The applicants have failed on each of the grounds on which they rely. I therefore propose to order that the application be dismissed.
Counsel for each of the parties agreed that costs should follow the event. Counsel for the Minister said that if the Minister were to succeed he would seek an order that costs be set in the amount of $5,600. I will also order that the applicant pay the Minister’s costs set in the amount of $5,600.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 30 June 2020
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