AVL15 v Minister for Immigration
[2020] FCCA 1600
•18 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AVL15 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1600 |
| Catchwords: MIGRATION – Protection (Class XA) visa – decision of the Administrative Appeals Tribunal – whether Tribunal addressed the wrong question – whether Tribunal failed to consider claim – whether Tribunal made unreasonable credibility findings – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 476 |
| Cases cited: CHQ15 v Minister for Immigration & Border Protection [2016] FCAFC 146 Minister for Immigration & Multicultural Affairs v Lay Lat (2006) 151 FCR 214 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| First Applicant: | AVL15 |
| Second Applicant: | AVM15 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1172 of 2015 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing date: | 29 August 2018 |
| Date of Last Submission: | 29 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 18 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Sorenson |
| Solicitors for the Applicant: | Goz Chambers Lawyers |
| Counsel for the First Respondent: | Mr Yuile |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth), the name of the First Respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Application, as amended, be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1172 of 2015
| AVL15 |
First Applicant
| AVM15 |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed in this Court on 25 May 2015, the Applicants seek judicial review of a decision of the Refugee Review Tribunal (Tribunal) dated 29 April 2015 (Tribunal’s Decision). The Tribunal’s Decision affirmed a decision of a delegate the First Respondent (Minister) to not grant the Applicants a Protection (Class XA) visa (Visa).
This application is brought pursuant to s.476 of the Migration Act 1958 (Cth) (Act). The Applicants filed an amended application dated 5 December 2017 (Amended Application) in which they provide three grounds of review, which the Court will address in these reasons for judgment.
Background
The Applicants are citizens of Nigeria[1]. They are husband and wife. They arrived in Australia on 8 October 2012 as the holders of a Class UC Subclass 456 Business (Short Stay) visa[2].
[1] Court Book (CB) 12 and 28.
[2] CB 195.
On 12 October 2012, the Applicants applied for the Visa[3] (Visa Application). The First Applicant was the primary applicant. The Second Applicant raised no claims for protection and was included in the Visa Application as a member of the First Applicant’s family unit[4]. The First Applicant’s claims for protection can be summarised as follows[5]:
a)The First Applicant is on the “black list” of the social cultism group the “Black Axe Fraternity” (Fraternity). The First Applicant was previously a member of a rival fraternity called Aiye. The Fraternity came to his home to kill him but as he was not there at the time they vandalised the home and left a note on his gate.
b)The First Applicant has been kidnapped and he has escaped death from the Fraternity several times. His friend was killed by the Fraternity.
c)The Fraternity is located all over Nigeria and once someone is on their black list they will be killed. The police cannot do anything.
d)The First Applicant is now a Christian and a pastor however he continued to be targeted.
[3] CB 1-34.
[4] CB 28-34.
[5] CB 18-22 and 171-174.
The Applicants attended an interview with the delegate of the Minister (Delegate) on 19 November 2012[6]. It appears that information in support of the Visa Application was provided to the Delegate at the interview or sometime after[7].
[6] CB 79-80.
[7] CB 150-187.
On 29 November 2012, the Delegate refused to grant the Applicants the Visa (Delegate’s Decision)[8]. The Delegate was not satisfied that the First Applicant met the refugee or complementary protection criterion.
[8] CB 190-210.
The Applicants sought review of the Delegate’s Decision on 11 December 2012[9].
[9] CB 235-240.
On 17 March 2014, the Applicants’ representative forwarded submissions and other information (including a statutory declaration) to the Tribunal[10]. The Applicants attended a hearing before the Tribunal on 19 March 2014[11].
[10] CB 288-318.
[11] CB 319-322.
On 2 April 2014, the Tribunal invited the Applicants to comment on inconsistencies between the First Applicant’s evidence, the Second Applicant’s evidence and other research completed by the Tribunal[12]. A response was provided to the Tribunal on 16 April 2014[13]. This again included a statutory declaration.
[12] CB 327-329.
[13] CB 337-345.
On 29 April 2015, the Tribunal affirmed the Delegate’s Decision not to grant the Applicants the Visa[14].
[14] CB 353-382.
Tribunal’s Decision
The Tribunal’s Decision appears at Court Book pages 353-382. The Court notes the Minister’s submissions filed 20 February 2017 (Minister’s Submissions) accurately summarise the Tribunal’s Decision. The Court adopts those submissions as its own. With some amendments, they provide as follows.
The Tribunal’s Decision commenced by outlining the background to the Visa Application and identifying that the issues were whether the Applicants met the refugee or complementary protection criterion[15].
[15] CB 354, [1]-[9].
The Tribunal then outlined aspects of the Applicants’ personal information and their claims for protection, as made in the Visa Application and before the Delegate[16]. The Tribunal summarised the Delegate’s Decision[17].
[16] CB 355-357, [10]-[20].
[17] CB 357, [21]-[22].
The Tribunal outlined and summarised the information it had received before the Tribunal hearing, including the Applicants’ written submissions dated 17 March 2014, the statutory declaration, the attached documents and the country information[18].
[18] CB 357-360, [23]-[27].
The Tribunal provided a detailed account of the evidence given by the Second Applicant at the hearing[19]. The Tribunal recorded the questions it had asked the Second Applicant and her responses. The Tribunal then adopted the same approach and detailed the First Applicant’s evidence at the Tribunal hearing[20].
[19] CB 360-364, [28]-[51].
[20] CB 364-367, [52]-[72].
The Tribunal indicated that it had advised the Applicants that it had concerns about the credibility of their evidence including the lack of documents, failing to advise the Minister’s department (Department) of an aspect of the First Applicant’s claim and country information that was inconsistent with their claims[21].
[21] CB 367-368, [73]-[78].
The Tribunal detailed how it had written to the Applicants pursuant to s.424A of the Act and invited them to comment on these credibility concerns (Section 424A Letter)[22]. The Tribunal summarised the responses that were provided to the Section 424A Letter.
[22] CB 368-371, [79]-[82].
At [83], the Tribunal stated:
I note the regrettable length of time since the hearing before me. I have written these reasons after consulting the relevant department and tribunal files, the audio recordings of the department interview and the hearing and written notes taken by me during the hearing. My findings are based on matters raised or foreshadowed at the hearing and I have had regard to the applicants’ response to those matters at the hearing and in the representative’s written submissions. The country information referred to below is consistent with the country information before me that I raised with the applicant’s at the hearing.
The Tribunal then turned to assess the First Applicant’s protection claims.
The Tribunal accepted that the First Applicant had studied at the University of Benin as he had claimed. The Tribunal also accepted that he was a Christian, an ordained deacon, an assistant pastor and had preached publicly[23]. However, at [87] the Tribunal stated as follows[24]:
However, I otherwise found the applicants' claims to be implausible and significantly lacking in credibility. I raised some of my concerns about the applicants' credibility in a letter sent to them after the hearing. I acknowledge, as was submitted in the response to that letter, that the inconsistencies in some of the evidence provided by the applicants should be given little weight because it is common for there to be some exaggerations or confusion in evidence provided by protection applicants and I have taken this into account in assessing the inconsistencies put to the applicants in the letter after the hearing and in my assessment of the applicants' credibility generally. I accept that this may explain the inconsistencies in the statements about the number of men who were discussing whether to kill the applicant in 2008 and the time when the applicant returned home after that incident. I also accept that the second applicant may not have the same knowledge of the applicant's activities and that this should be taken into account in assessing the differences between the evidence given by the applicant and the second applicant about the applicant's involvement with the group. As a result, I give these inconsistencies less weight in assessing the applicants' credibility.
[23] CB 327, [86].
[24] CB 372, [87].
The Tribunal gave weight to the inconsistencies in the Applicants’ claims. The Tribunal found that the First Applicant’s claim that he was a “main speaker” and had spoken publicly against the Fraternity four days before his house was ransacked in August 2012 was “highly implausible” given the First Applicant failed to disclose this to the Department either orally or in writing. The Tribunal also found that the First Applicant’s explanation that he had forgotten about these matters until he was reminded by a telephone call from a friend in Nigeria was equally implausible[25].
[25] CB 372, [88].
The Tribunal did not accept the First Applicant’s claims of the Fraternity attacking him in 2005 and 2008. It noted it was implausible that the First Applicant would not report this to the police. It also found implausible the claim that the individuals who had allegedly attempted to kidnap and kill him in 2008 would not be able locate him again while he was working publicly as a real estate agent[26]. The Tribunal gave some weight to the fact that the Fraternity did not locate or contact the First Applicant for at least four years after 2008.
[26] CB 372-373, [89].
The Tribunal found that the fact that the First Applicant had travelled to the United Kingdom in 2011 but did not seek protection was inconsistent with his claim that attempts had been made on his life in 2005 and 2008 by members of the Fraternity[27]. This was further evidence for the Tribunal that the First Applicant was not at risk of harm at the hands of the Fraternity.
[27] CB 373, [90].
The Tribunal noted that, while asylum seekers cannot be expected to provide corroborating documentary evidence, it gave some weight to the lack of documentary evidence (particularly police reports) provided by the First Applicant, which it expected would be available given the First Applicant’s evidence that police had investigated the incidents he claimed to have occurred[28].
[28] CB 373, [91].
The Tribunal continued at [92][29]:
I also give some weight to the length of time between when the applicants were granted their visas to come to Australia and when they departed Nigeria. I do not consider the applicants' claims that their departure was delayed because they were making arrangements for the care of their children and had spent the money on hotels that they had intended to spend on their travel to Australia to sufficiently explain the length of time between when their visas were granted and when they came to Australia. I note that no documents have been provided indicating the expenses of the applicants had to pay in staying in hotels or any correspondence about why they were unable to attend the conference they had intended to attend. I give the absence of any corroborating evidence of this sort some weight in assessing the credibility of the applicant's explanation. As a result, I do not accept the applicants' explanation for the length of time between when they were granted their visas and when they departed Nigeria and I find that length of time, being almost one month, to be inconsistent with their claims that their house was destroyed and there was an attempt to shoot the applicant less than a month before the visas were granted.
[29] CB 373, [92].
Having regard to inconsistencies in the First Applicant’s evidence, the Tribunal found that the First Applicant was not at university with Mr E, who he claimed was killed during the war between the First Applicant’s fraternity and the Fraternity. The Tribunal further found that the First Applicant did not, in fact, know Mr E[30].
[30] CB 373, [93].
The Tribunal found that the “discrepancies and implausibility” of the Applicants’ claims were so great that it could not accept them as simply exaggerations or embellishments of genuine underlying claims. As a consequence, the Tribunal found that the Applicants had “deliberately fabricated” their claims in relation to the Fraternity and the threat from their friend’s family. The Tribunal also found that the text message that the First Applicant produced at the hearing had been falsely created[31].
[31] CB 374, [94]-[95].
At [96], the Tribunal stated[32]:
[32] CB 374-375, [96].
In light of the above, I do not accept the following:
a. The applicant has converted from Islam to Christianity.
b. The applicant was a member of the fraternity either while at university or at any other time. ·
c. The applicant was ever involved in disputes or conflicts with the BA fraternity or members of the BA fraternity either while at university or at any other time.
d. The applicant ever undertook work for or on behalf of the ex-governor any other political figure in Nigeria either while at university or at any other time.
e. The applicant was kidnapped, attacked or threatened with harm in 2005 or 2008 by members of the BA fraternity or anyone else.
f. The applicant was injured, either from being pushed from a moving car, being drugged or in any other way, in 2005 and 2008 or at any other time.
g. The applicants' home was destroyed by members of the BA fraternity or anyone else in August 2012 or at any other time.
h. The applicants and their children were required to live in hotels in August 2012 or at any other time.
i. Members of the BA fraternity, or anyone else, attempted to shoot the applicants or their children in their hotel room, or anywhere else, in August 2012 or at any other time.
j. The applicant is on any "blacklist" held by the BA fraternity or is otherwise of any interest to the BA fraternity.
k. The applicant converted the friend or anyone else from Islam to Christianity.
I. The friend has a brother who is a conservative Muslim who objects to the friend having converted to Christianity from Islam
m. Members of the BA fraternity or anyone else came looking for the applicants' children in 2013.
n. The friend was killed by members of the BA fraternity or anyone else in the course of those people looking for the applicants' children or at any other ·time.
o. The family of the friend hold the applicants responsible for the death of the friend (which, I have found, has not occurred).
p. The applicant received a telephone call from a lawyer in Nigeria telling him that the friend had been killed.
q. The applicant has received a text message threatening to take revenge on the applicants and their children for the death of the friend.
r. The applicant has ever spoken, either publicly or privately, about having been part of the fraternity or any other secret society or cult (because, as I have found, he has never been a member of the fraternity or any other secret society or cult).
s. The applicant has ever been a member of the group.
t. The applicants have ever attended "crusade" or any other meetings organised by the group.
In relation to the First Applicant’s claim regarding his membership of particular social groups comprising of the former Fraternity, while the Tribunal accepted that each social group existed, it did not accept that the First Applicant is or was a member of any of those particular social groups given its rejection that the First Applicant was ever a member of a fraternity or any secret society, had converted to Christianity (as opposed to being born into) or had ever preached against secret societies or cults[33]. The Tribunal did not accept that the Applicants face a real chance of suffering serious harm because of membership of any particular social groups.
[33] CB 375, [98].
In relation to the First Applicant’s claim regarding his religion, the Tribunal accepted that the First Applicant was a Christian pastor and had publicly preached about his beliefs. However, the Tribunal was not satisfied that the First Applicant had converted to Christianity from Islam and it did not accept that he had any profile as a convert. Further, based on country information, the Tribunal did not accept that Christians, including pastors who publicly preached about their Christian beliefs, faced a real chance of suffering serious harm because of their religion[34].
[34] CB 375-376, [99]-[100].
Having considered all the material before it and the Applicants’ claims, both singularly and cumulatively, the Tribunal found that the Applicants did not face a real chance of serious harm due to their religion or membership of any particular social group or for any other reason, on return to Nigeria[35]. Accordingly, the Tribunal was not satisfied that the Applicants met the refugee criterion.
[35] CB 376, [101].
Having regard to its anterior findings, the Tribunal did not accept that the Applicants faced a real risk of significant harm because they were Christian, because the First Applicant converted from Islam to Christianity (which it did not accept), because the First Applicant was a Christian pastor who preached about his Christian beliefs, because the First Applicant was a member of a fraternity or any other secret society (which it did not accept), because the First Applicant converted his friend from Islam to Christianity (which it did not accept), because the friend was killed by the Fraternity (which it did not accept), or for any other reason[36].
[36] CB 376, [105].
The Tribunal therefore concluded that the Applicants did not satisfy the complementary protection criterion.
Accordingly, the Tribunal affirmed the Delegate’s Decision and refused to grant the Applicants the Visa[37].
[37] CB 376-377, [107].
Judicial Review Application
As noted, the Applicants filed an Amended Application on 5 December 2017. The Amended Application contains three grounds of review as follows:
1. Failure to address the question which the Second Respondent was actually required to address; ie: whether the Applicants have a well-founded fear of persecution or significant harm by virtue of the First Applicant being a former member of a social cultist group who then actively preached against them and instead addressing the question of alleged credibility of details his accounts of individual incidents of retribution
2. Failure to consider the Applicants' claims that they meet the criteria for grant of Protection Visas, including whether they had a well-founded fear of persecution or significant harm by virtue of the First Applicant being a former member of a social cultist group who then actively preached against them; including by failing to assess basic credibility of their knowledge of social cultist groups
3. Unreasonably and irrationally drawing ultimate conclusion as to whether Applicants had well-founded fear of persecution or serious harm by virtue of First Applicant being a former member of a social cultist group who then actively preached against them, merely on basis of assessment of alleged credibility of details his accounts of individual incidents of retribution, rather than of their basic knowledge of social cultist groups.
The Court has considered the Amended Application, the Court Book, an outline of submissions from the Applicants dated 5 December 2017 (Applicants’ Submissions), the Minister’s Submissions and an outline of submissions filed by the Minister on 12 July 2017 (Minister’s Supplementary Submissions). The Court has also considered the transcript of the hearing (Transcript) where Counsel for the Applicant and Counsel for the Minister both made oral submissions.
Consideration
Counsel for the Applicant indicated at the hearing that the grounds were “interlinked”[38]. Counsel for the Applicant stated that each of the grounds was “somewhat re-framing”[39] the Applicants’ central point that the Tribunal had considered the “peripheral detail” as opposed to the substantive matters it was required to consider[40]. Counsel’s oral submissions did not expand on the Applicants’ Submissions to any great extent. In reply, Counsel for the Applicant stated as follows:
[…] And that is that it’s still put on behalf of my client, that the tribunal failed to properly address the direct question of whether my client feared persecution on the basis of having been involved with this particular group and fearing retribution from that group. Because all the matters that were put to him or issues that were raised – of all of those, none of them went fundamentally to the characteristics of the group and his knowledge of that. And that’s his central complaint and I just reiterate it by way of reply[41].
[38] Transcript P2:L18.
[39] Transcript P5:L10-13.
[40] Transcript P3:L41-44.
[41] Transcript P12:L36-43.
Ground 1
The crux of Ground 1 appears to be expressed in [11] of the Applicants’ Submissions:
The Applicants contend the RRT failed to address correct question of whether they had well-founded fear of persecution or significant harm on a relevant basis and instead addressed the question of alleged credibility of details their accounts of individual incidents of retribution; as outlined above in Paragraph 4 of these Submissions. The RRT recognised at Paragraphs 25 and 98 of its Decision that the Applicants claimed to fear persecution or significant harm on the basis of the First Applicant being a former member of a social cultist group who then actively preached against them. However, it then failed to address the basic credibility of their knowledge of social cultist groups, by virtue of association with which they claimed to fear persecution or harm and instead proceeded at Paragraphs 72-5, 79 and 88-96 of its Decision to reject their claims on the basis of a therefore necessarily incomplete assessment of alleged credibility of details their accounts of individual incidents of retribution.
(Without alteration)
The Minister submitted that the Tribunal addressed the correct question and did so in an entirely conventional way. The Tribunal first made findings of fact as to the alleged incidents and events which “fed into” the Tribunal’s assessment of whether the Applicants had a risk or chance of harm.
The Court agrees with the Minister, the Tribunal adopted an entirely orthodox and conventional approach when addressing the question of whether the Applicants had a well-founded fear of persecution.
It is apparent that the Tribunal addressed the question of whether the Applicants had a well-founded fear of persecution based on their membership of a particular social group and their religion[42]. It appears what the Applicants take issue with is how the Tribunal came to make that determination. The Applicant is taking issue with the way in which the Tribunal came to its credibility findings and suggesting that there was a better approach or that the Tribunal did not take a particular approach the Applicants believe was more appropriate (i.e., testing the Applicants knowledge of social cultist groups).
[42] CB 375, at [98]-[99].
It is well established that when addressing whether an applicant has a well-founded fear of persecution:
a)It is for an applicant to advance whatever evidence and arguments that they have in order to satisfy the Tribunal of the facts that are necessary to establish their claims[43].
b)The Tribunal is to then make findings as to the primary facts and identify inferences which may be drawn from those findings of fact to assess whether the fear is well-founded[44].
c)Determining what is likely to occur in the future will require findings as to what has occurred in the past and therefore the logical starting point for the Tribunal will be to consider and determine whether the incidents occurred and if so, whether it is for a protected reason[45].
[43] Minister for Immigration & Multicultural Affairs v Lay Lat (2006) 151 FCR 214.
[44] Minister For Immigration And Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 294 (Kirby J).
[45] Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559, at 574-575.
Here, the Tribunal considered the First Applicant’s claims and the evidence he had provided in support of it. The Tribunal then embarked upon a fact-finding process whereby it assessed the evidence to determine if it accepted the First Applicant’s evidence and account of the incidents that formed the basis of his claim. The Tribunal accepted some aspects of the First Applicant’s evidence, such as his being a pastor. However, the Tribunal also had multiple concerns with and did not accept the First Applicant’s evidence. The matters which the Tribunal did not accept largely turned upon the credibility of the evidence.
Undoubtedly, findings as to the credibility of an applicant’s claims are required in order to make the necessary findings of fact which will then inform the Tribunal’s assessment of whether the fear is well-founded. That is exactly what the Tribunal did in this case. There is no one method in which the Tribunal may assess an applicant’s credibility. It is entirely a matter for the Tribunal. While it is open to the Tribunal explore an applicant’s knowledge on a particular topic (such as a particular religion or social practise) it is by no means mandated or required. The fact that the Tribunal does not do so and instead assesses other matters in making its findings regarding credibility does not amount to jurisdictional error or mean that the credibility assessment is “necessarily incomplete”. It is simply the Tribunal exercising its fact finding function.
The Tribunal did not unduly focus on “peripheral detail” as opposed to the “central” issue of whether the Applicants had a well-founded fear of persecution. The “peripheral details” the Applicants’ Counsel refers to were vital to the Tribunal properly undertaking its task and addressing the question of whether the Applicants had a well-founded fear of persecution.
Further, the Tribunal did not only address the credibility of details of the Applicants’ accounts of individual incidents in making its findings. The Court refers to [9] of the Minister’s Supplementary Submissions which set out in significant detail the concerns the Tribunal had with the Applicants’ evidence and which make apparent that it was not the inconsistencies in the individual incidents that caused the credibility findings, it was the cumulative consideration of all of the concerns. So much is apparent from [95] of the Tribunal’s Decision where it commences with “On balance”, which indicates that the inconsistencies, lack of plausibility and lack of corroboration as a whole informed the finding of fact.
The Tribunal made the necessary findings of fact. It expressed no doubt in those findings. While the Applicants referred to Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220 in support of their argument, the Court does not consider it does. It is apparent from the Tribunal’s reasons that the Tribunal in this matter expressed no doubt in its findings that the First Applicant’s claim was not genuine and dismissed as unfounded the factual assertions made by the First Applicant. It was not necessary to go any further[46].
[46] Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220, at 67 and 140.
The Tribunal correctly addressed the question of whether the Applicants had a well-founded fear of persecution. Ground 1 is dismissed.
Ground 2
Ground 2 is similar to Ground 1 and, on one view, having rejected the submission that the Tribunal only addressed the credibility of details of the Applicants’ accounts of individual incidents Ground 2 must also fail.
Nevertheless, in Ground 2 the Applicants submit in [15] of the Applicants’ Submissions:
In addressing only alleged credibility of details of the Applicants' accounts of individual incidents of retribution, the RRT also failed to consider their claims in support of their Applications for Protection Visas. In particular, by failing to first address the basic credibility of their knowledge of social cultist groups, by virtue of association with which they claimed to fear persecution or harm, the RRT failed to review the Minister's refusal to grant a Visa by addressing as required whether the Applicants had a well-founded fear of persecution by virtue of treatment of persons falling within the category to which the Applicants belong […] It also failed to consider whether the Applicants had such a fear by virtue of the impact of this behaviour on the Applicant personally.
For the reasons already given above, there is no merit in the argument that the Tribunal failed to consider the Applicants’ claims properly because it did not address their knowledge of social cultist groups. It was a matter for the Tribunal if it wished to test the Applicants’ knowledge in determining the credibility of the Applicants’ claims. Further, if the Applicants’ knowledge of social cultist groups was of such significance to establishing their credibility or their claim, they could have expressed this to the Tribunal in response to the Section 424A Letter or at the hearing. It does not appear that they did so.
The Court cannot accept that because the Tribunal did not test the Applicants’ knowledge then it did not properly consider the Applicants’ claims. The Tribunal considered and made a finding upon the Applicants claims to have a well-founded fear of persecution on the basis of being a member of a particular social group and because of their religion.
In regards to the claim of being a member of a particular social group, the Tribunal accepted that the groups the First Applicant claimed to be a member of were “particular social groups”. However, the Tribunal did not accept that the First Applicant was a member of these particular social groups as claimed. In doing so the Tribunal gave proper, genuine and realistic consideration to the First Applicant’s evidence in support of his claim to be a member of these groups. The Tribunal ultimately was not satisfied by the First Applicant’s evidence and rejected the factual basis of the claim. Having rejected the factual basis of the claim (i.e., the membership of the groups), it was a necessary consequence that the Applicants would not face harm for that reason.
In regards to the claim concerning the Applicants’ religious beliefs and activities, the Tribunal accepted that the First Applicant was a Christian pastor and, furthermore, that he would continue to act as a pastor on return. The Tribunal did not, however, accept that the First Applicant had converted from Islam to Christianity. Based on the country information, and the finding that the First Applicant did not have a profile as a convert, the Tribunal determined that the Applicants did not face a chance or risk of harm for reasons of their religion. It is apparent that the Tribunal properly and actively considered this claim, and the integers of the claim (i.e., that the First Applicant was a convert).
Furthermore, it is apparent from the Tribunal’s detailed account of the evidence and materials before it (including the questions asked by the Tribunal of the Applicants at the hearing), that the Tribunal had actively and intellectually engaged with the claims and the evidence.
Ground 2 is dismissed.
Ground 3
Ground 3 argues that the Tribunal’s credibility findings were, or the fact that the Tribunal did not assess the knowledge of the Applicants about socialist cults was, unreasonable or illogical. The Applicants’ Submissions at [20] state as follows:
It is further submitted on behalf of the Applicant that the RRT's decision was also unreasonable and/ or irrational, illogical or not based on findings or inferences of fact not supported by logical grounds, in the sense recognised as a ground of review in Re: Minister for Immigration and Multicultural Affairs, Ex Parte Applicant S20/2002 [2003] HCA 30 and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, per Gummow ACJ and Keitel J, at Paragraphs 40 and Crennan and Bell JJ, at Paragraphs 122 and 129-30. See also Minister for Immigration and Multicultural Affairs v Abdi [1999] FCA 1253, at Paragraph 32, in which it was held that findings or inferences not supported by probative material or logical grounds could result in an error law.(Without alteration)
In DAO16 v Minister for Immigration & Border Protection [2018] FCAFC 2, the Full Federal Court detailed the principles of legal unreasonableness in relation to credibility findings 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].
To the extent that the Applicants are suggesting that it was unreasonable or illogical for the Tribunal not to test the Applicants’ credibility by reference to their knowledge of socialist cults, the Court disagrees. The Tribunal is free to make determinations as to an applicant’s credibility in the manner it sees appropriate provided that such has a logical and probative basis. Here, the Tribunal’s approach to the assessment of the Applicants credibility:
a)Provided the Applicants extensive opportunities to answer the credibility concerns. It is relevant to note that the Tribunal did, in fact, accept the Applicants’ submissions in some regards in relation to the assessment of their credibility. For example, the Tribunal did not place weight on inconsistencies in the statements about the number of men who were discussing whether to kill the First Applicant or the specific time that the First Applicant returned home. These matters were put to the Tribunal in the Applicants’ response to the Section 424A Letter and it is apparent that the Tribunal took a rational approach to such inconsistencies; and
b)Took into account the Applicants’ explanations for any inconsistencies or failure to provide the information at an earlier time and considered whether such explanations were sufficient.
The Tribunal’s ultimate finding that the Applicants were not witnesses of truth and the claim was fabricated was based upon concerns including:
a)The First Applicant having raised a claim for the first time before the Tribunal and the non-acceptance of the Applicants’ explanation for this on the basis that it was implausible[47];
b)The lack of plausibility in many aspects of the First Applicant’s evidence;
c)The First Applicant’s evidence that he had not suffered any harm between 2008 and 2012 despite holding a public profile[48];
d)There was a delay in the Applicants’ departing Nigeria after the last claimed incident and the explanation offered by the Applicants was implausible[49];
e)There was inconsistencies in the First Applicant’s account of his relationship and interaction with Mr E[50]; and
f)There was a lack of corroborative evidence which one would expect in the circumstances as described[51].
[47] CB 372, at [88].
[48] CB 372-373, at [88]-[89].
[49] CB 373, at [92].
[50] CB 373, at [93].
[51] CB 373, at [91]-[92].
As is apparent from the above, it is not the case that the Tribunal relied on “peripheral details” or objectively minor facts to undermine and ultimately reject the Applicants’ credibility and claim[52]. Rather there were multiple concerns that were set out in some detail by the Tribunal and which when offered the opportunity to explain the Applicants had no acceptable answer for.
[52] CHQ15 v Minister for Immigration & Border Protection [2016] FCAFC 146, at [41].
It is also not the case that one credibility finding can be seen to have a cascading effect on the assessment of the Applicants’ credibility as a whole. Each of the Tribunal’s concerns has a logical and probative basis. They were reliant upon inconsistencies, implausibilities or a lack of supporting information. All of these matters are a reasonable basis to have concerns with an applicant’s evidence. The Tribunal, having noted these concerns then considered them, on balance and with regard to the fact that refugees may embellish their claims despite them being genuinely held, was nonetheless satisfied that the Applicants were not credible. The Court can identify no error in this regard. It was entirely open for the Tribunal to find that the Applicants were no credible witnesses and there was no obligation for the Tribunal to test the Applicants’ knowledge.
As the Minister submits, while a different Tribunal may have taken a different approach (and may have tested the Applicants’ knowledge) that is not the test. The test is whether it was reasonable for the Tribunal to have arrived at the conclusion it did. Here, it was entirely open to do so. There were numerous concerns with almost all aspects of the Applicants’ evidence.
Ground 3, accordingly, is dismissed.
Conclusion
The Applicants have failed to satisfy the Court that there has been any jurisdictional error as pleaded in the Tribunal’s Decision. The Amended Application is to be dismissed.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge C E Kirton QC
Associate:
Date: 18 June 2020
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