Awu17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 307
•2 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AWU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 307
File number(s): MLG 423 of 2017 Judgment of: JUDGE SYMONS Date of judgment: 2 December 2021 Catchwords: MIGRATION – Application for judicial review of decision of the Administrative Appeals Tribunal – where Tribunal found central claims fabricated – whether Tribunal’s credit reasoning irrational or illogical – finding on objectively peripheral matter informed analysis – application allowed. Legislation: Migration Act1958 (Cth), ss.36(2)(a), 36(2aa) Cases cited: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83
DQQ17 v Minister for Immigration and Border Protection [2018] FCA784
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99
Division: Division 2 General Federal Law Number of paragraphs: 41 Date of last submission/s: 9 November 2021 Date of hearing: 9 November 2021 Place: Melbourne Applicant: In person Counsel for the First Respondent: Ms J. Lucas Solicitor for the First Respondent: Australian Government Solicitor ORDERS
MLG 423 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: AWU17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
2 DECEMBER 2021
THE COURT ORDERS THAT:
1.A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent dated 7 February 2017.
2.A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine the application for review according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS
INTRODUCTION AND BACKGROUND
By an application filed on 2 March 2017, the applicant seeks judicial review of a decision of the second respondent (“the Tribunal”) made on 7 February 2017. The Tribunal affirmed a decision of a delegate of the first respondent (“the Minister”) to refuse the applicant a Protection (Class XA) visa (“the visa”). The Minister opposes the application. The Tribunal enters a submitting appearance and has not participated in the proceeding.
The applicant is a citizen of Malaysia who first arrived in Australia on 31 July 2015 on a tourist visa.
On 29 September 2015, the applicant made an application for the visa.
In Part C of the application form for the visa the applicant identified her reasons for leaving Malaysia. The applicant explained that she had met a Korean boy while working in a Korean cold storage facility in Malaysia and they had “fallen for each other”. Despite the applicant being of Muslim faith and the boyfriend being a Christian, the two had decided to marry. The applicant’s family did not allow this and forced the applicant to resign her employment.
The applicant claimed that her boyfriend then asked her to elope with him and the applicant flew to Korea where she met her boyfriend’s family. The pair moved to the house of a friend but after a few weeks, the boyfriend went missing and didn’t return home. The applicant went to the home of her boyfriend’s parents, where she witnessed the father pointing a knife to her boyfriend’s stomach. The applicant was really scared and arranged a flight back to Malaysia.
The applicant went to see her parents and to seek their forgiveness, but they disowned the applicant and threatened to kill her. The applicant ran away from home and rented a small room in a village. However, she was spotted by a cousin and her parents came to her home and tried to beat and torture her. The applicant managed to evade them and fled to Australia.
The delegate refused the application for a visa on 10 March 2016. The delegate refused the application for the essential reason that the delegate could find no reason why the applicant could not seek assistance or engage the protection of police and because the delegate considered it was not plausible that the applicant’s family would have the ability to find her anywhere she might go in Malaysia and so did not accept the applicant’s claim that she could not move elsewhere in Malaysia. The delegate did not interrogate the applicant’s central claim to be in a relationship with a Korean boyfriend (CB 66-67).
On 22 March 2016, the applicant made an application to the Tribunal for merits review of the delegate’s decision and on 13 December 2016, the applicant attended a Tribunal hearing during which she gave evidence assisted by an interpreter in the Bahasa Malaysia language.
THE DECISION OF THE TRIBUNAL
After identifying the criteria for a protection visa, the Tribunal recorded the background to the applicant’s visa application and the applicant’s claims for protection, as they had been narrated in the visa application form.
The Tribunal then, between [22] and [28] (CB 100), identified the claims made by the applicant during the Tribunal hearing. Paragraphs [23] and [25] assume particular significance in the context of the grounds identified in the application and, to the extent relevant, record as follows:
[23]…The applicant claimed that her highest level of education was the equivalent to grade six because she had to pay for education. When the Tribunal said that it had country information that education is free up to year 11, the applicant changed her testimony claiming that her mother did not allow her to go to school because she was not clever enough…
…
[25]The applicant claimed that her troubles started when her father objected to the applicant seeking to marry a Christian man who was a Korean national. The applicant claimed that his name was Hemnam and she was unaware of his full name. The Korean national and the applicant met when they were working at a cold storage business in Johor. The applicant described her father as very pious. The applicant claimed that she did not know her fiancé’s full name and did not know to which Christian denomination her fiancé belonged. The applicant claimed that she was living with the Korean national for about eight months when she told her father although her father was not aware of this as she had told her family she was sharing accommodation with another young woman.
Next, under the heading “Assessment of Claims and Findings”, the Tribunal found that the applicant was a national of Malaysia and that Malaysia was the applicant’s “receiving country” for the purposes of s.36(2)(aa) of the Migration Act1958 (Cth) (“the Act”).
The Tribunal then, between [31] and [36] (CB 101) identified a range of propositions directed at the assessment of credibility. The Tribunal observed that “[t]he applicant’s statements must be coherent and plausible, and must not run counter to generally known facts”.
The Tribunal recorded, at [37] (CB 102) that it had “a number of significant concerns” with the claims of the applicant, describing them as “inconsistent, implausible and fabricated”.
However, the Tribunal identified, at [38] and [39] (CB 102) what it described, compendiously, as the “accepted claims”, being the aspects of the applicant’s personal circumstances that it accepted and a number of false or mistaken claims that had been made at the time of application but had, during the hearing, been corrected and found by the Tribunal to be credible. Among the accepted claims were that the applicant had had limited education and that the applicant travelled to the Republic of Korea between February 2014 and April 2014.
The Tribunal then, under the heading “Credibility Concerns” recorded the following reasons at [40] and [41] that are directly challenged in this application. They read (reproduced in full):
[40]During the scheduled hearing, the applicant provided non-critical claims that were contradicted by the applicant that invited the Tribunal to consider the applicant may have been exaggerating or fabricating other evidence. For instance when the applicant claimed she did not begin or complete secondary school because her family could not afford it; when the Tribunal queried the plausibility of this given that education is free up to year 11, the applicant changed her testimony to claim her mother thought she was not clever enough. The Tribunal notes that the applicant’s question 86 in form 866 indicated that the applicant did attend secondary school between 2000 and 2004. The Tribunal finds that the applicant provided inconsistent claims about her education. Based on the evidence before it; the Tribunal is unable to determine the extent of the applicant’s education based on the applicant’s inconsistent oral evidence. In making this finding, the applicant has invited the Tribunal to consider other inconsistent or unreliable evidence.
[41]The Tribunal also notes that applicant claimed she was living with a Korean man called Hemnam but did not know his full name; that she intended to marry him and travelled to South Korea where she met the fiance’s parents. As discussed during the scheduled hearing, had the applicant genuinely been engaged in a relationship with a Christian man from Korea with whom she lived with for eight months and travelled to his home country to meet her claimed fiance’s parents, it would have been reasonable for the Tribunal to expect the applicant to have known more fundamental personal details about her fiancé. The applicant in making such an implausible claim about her claimed betrothed has invited the Tribunal to consider that the applicant had fabricated her critical claim that she was in a serious relationship with a Christian which led to the applicant’s estrangement from her immediate family at all. Based on the implausibility of the applicant’s lack of knowledge about her claimed fiancé and in the context of its earlier finding about providing inconsistent evidence, the Tribunal does not accept the applicant was ever in a relationship or engaged with a Christian man of any denomination or nationality in the past. Based on these adverse credibility findings, the Tribunal does not accept the applicant travelled to South Korea for the purposes of marrying a Korean national or that she was abandoned by her fiancé when the fiancé’s parents disapproved of being Muslim. The Tribunal finds that the applicant had fabricated her existence of this inter-religious relationship for migration purposes.
The Tribunal next considered the applicant’s claim that her parents had been actively looking for her to harm her based on her seeking to marry a Christian but rejected the claim due to what the Tribunal described as an inconsistency between the applicant’s evidence at the hearing and her written claims concerning the number of incidents in which the applicant’s father had threatened violence towards his daughter ([43] CB 103).
Based on its rejection of the “foundation” claim that the applicant was in a relationship with a Christian man, the Tribunal did not accept that the applicant had been disowned by her parents for the claimed reason and made subsidiary findings rejecting each of the applicant’s claims concerning the breakdown of that relationship and the attempts made by the applicant’s family to locate her or to inflict harm upon her ([44] CB 103).
The Tribunal also did not accept that the applicant had a genuine personally held fear of persecution anywhere within Malaysia at the time of her application given her failure to relocate in the year leading up to her departure for Australia and in the context of other adverse credibility findings ([45] CB 104).
The Tribunal, having found the applicant to have “provided a number of implausible, inconsistent and fabricated foundational, critical and even non-critical claims” did not accept that the applicant satisfied ss.36(2)(a) or 36(2)(aa) of the Act for reason of any inter-religious relationship ([46]-[48] CB 104).
The Tribunal also considered whether the applicant might suffer relevant harm in the form of discrimination, unemployment or financial hardship as a single Muslim Malay woman if she was to return to Malaysia. However, based on country information and the applicant’s circumstances, including her proven ability to find work in the past, the Tribunal did not accept that the applicant would face either serious or significant harm arising from her gender, religion and/or marital status ([49]-[51] CB 104-105).
PROCEEDINGS IN THIS COURT
The application for judicial review filed on 2 March 2017 contains the following ground:
1.The Tribunal’s finding that the Applicant’s evidence was fabricated lacks logical and probative basis.
PARTICULAR
The absence of logical grounds and probative materials to support the Tribunal’s finding of fabrication in relation to the applicant’s evidence is inferred from its reasoning in paragraphs 40 and 41.
On 4 October 2021, I made orders to progress this matter to hearing. These orders included that the applicant file and serve, on or before 15 October 2021, any amended application with proper particulars of the grounds of the application, any supplementary court book and written submissions. The applicant did not file any material responsive to this order.
On 29 October 2021, the Minister filed written submissions that were responsive to the single ground of review.
The matter came before me for final hearing on 9 November 2021.
On that day, the applicant appeared unrepresented and with an interpreter in the Bahasa Malaysia language. The Minister was represented by Ms Lucas of counsel.
In accordance with the practice recommended by cases such as DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9], at the commencement of the hearing I invited the applicant to tell me what it was that she would like to say, in support of her application, to the effect that the Authority was wrong in its decision to affirm the decision of the delegate to refuse her the visa.
The applicant told the Court that the Tribunal had not paid much attention to her case and had not understood its seriousness. When directed to her application and the ground of review that it identified, the applicant told the Court that the Tribunal had found she had fabricated her evidence when this was not the case. When directed to paragraphs [40] and [41] of the Tribunal’s statement of reasons, the applicant was not able to articulate – beyond the complaint that she had not fabricated her evidence – any further error with the Tribunal’s approach.
The Minister, through his counsel, accepted that as a matter of legal principle a finding of credibility may give rise to legal error where it is made without logical or probative basis or where it is unreasonable. The Minister submitted however that the Tribunal’s findings recorded at [40] and [41] were open to it and reflected an entirely conventional and orthodox approach to fact finding.
The Minister submitted that the Tribunal’s assessment of the applicant’s credibility was made on the basis of a number of factors that included:
(a)inconsistencies in the applicant’s evidence, including evidence regarding her education; that she had failed to complete secondary school because her parents could not afford it but then changed her evidence when questioned about the fact that education was free to say that she left school because her mother told her she was not clever enough. There were also inconsistencies in the applicant’s evidence regarding the number of times her father had threatened violence towards her;
(b)the implausibility of the applicant’s lack of knowledge about her claimed fiancé, including that, despite living with him for eight months and travelling to his home country to meet his parents, the applicant did not know his full name; and
(c)the Tribunal’s concerns that the applicant did not hold a subjective fear of being harassed or harmed by her family members given the proximity she lived to her family. It would be reasonable to expect the applicant to either not have returned to Malaysia or to have relocated to another city or state before coming to Australia.
The Minister made the further submission that it was not the case that the Tribunal’s finding on credit could be said to be based on an objectively minor matter of fact which was the basis for the rejection of the entirety of the applicant’s evidence and claims. Instead, while inconsistencies in the applicant’s evidence concerning her education invited the Tribunal to consider other inconsistent and unreliable evidence, it was not the sole basis for the Tribunal’s finding of fabrication.
The Minister submitted that it was of some significance that the Tribunal had accepted aspects of the applicant’s claims and had also accepted that the applicant had made a number of false or mistaken claims at the time the visa application was submitted but then later corrected them in the hearing before the Tribunal and the Tribunal found those corrections to be credible.
CONSIDERATION
The principles concerning judicial review of credibility findings are settled. Findings of this character are amenable to review but within defined parameters which recognise that the Tribunal, as finder of fact, enjoys certain advantages that are not available to the court on judicial review.
In undertaking a review of this kind, 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 at [77]. In this regard, I accept, as the Minister submitted, that the Tribunal’s assessment of the applicant’s credibility (as a whole) was informed by the matters identified at [30] above. However, in the context of this judicial review, the dispositive question is what matters informed the Tribunal’s preliminary finding that it did not accept the applicant’s fundamental claim to apprehend harm by reason of her relationship with a Christian man of Korean nationality and whether these matters and/or the process of reasoning adopted by the Tribunal exposed legal error.
I accept, as the Minister submits, that the applicant’s evidence concerning the extent of her education in Malaysia and the reasons why it was abbreviated, exposed inconsistencies that were of concern to the Tribunal and which prompted it to interrogate the applicant’s evidence concerning her central claim of being in a relationship with a Korean national. However, it is clear from the Tribunal’s reasons at [41] that those inconsistencies also operated contextually to undermine the veracity of the central claim and supplied part of the reason for its rejection.
The Tribunal’s findings as to the nature and extent of the applicant’s education in Malaysia were not just objectively minor (as the Minister appears to accept) but were also peripheral in the scheme of the claims made by the applicant in support of her application for the visa. To what extent and for what reason the applicant had been educated in Malaysia had no direct bearing on the acceptance or rejection of her claim to have been in a relationship with a Korean national of Christian faith. In other words, the fact that the applicant had given inconsistent evidence in relation to a non-central claim, did not, ipso facto, lead rationally to the conclusion that the applicant’s evidence in respect of a different subject matter was implausible or, logically justified the serious finding that the applicant had fabricated her central claim for migration purposes. This is not a case, as the Minister observes, where the Tribunal made a wholesale finding rejecting the applicant’s evidence in its entirety. The Tribunal’s approach was more nuanced, as is evidenced by its acceptance of aspects of the applicant’s account, including where there had been movement in the information provided by the applicant across the course of the review.
The error in approach was especially acute in circumstances where the Tribunal failed to assess the significance of the inconsistency concerning the duration of the applicant’s education found to exist and the weight to be given to it or to give any consideration as to whether there was an acceptable explanation for the inconsistency such that it should attract little if any weight: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83 at [28]. Further, it is not apparent from the Tribunal’s decision whether, at the hearing before the Tribunal, the Tribunal gave the applicant an opportunity to explain the inconsistencies that it had identified in her account of her education in Malaysia, including whether she was able to explain the dates recorded in her application for the visa.
As noted above, the inconsistency in the applicant’s evidence concerning her education was a matter upon which the Tribunal relied (contextually) when it rejected the applicant’s fundamental claim concerning her relationship with a Korean national. While I have found that this matter did not provide a logical or rationally probative basis for the Tribunal’s conclusion that the applicant had fabricated this claim, the question remains whether the Tribunal’s erroneous reasoning was material to the decision to refuse the applicant the visa, in the sense that it deprived her of the realistic possibility of a different outcome in her application: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45].
The Tribunal’s reasons show that the adverse credibility finding recorded in [41] was critical to its conclusion that the applicant had not been disowned by her parents for the claimed reason and the applicant’s father had never attempted to carry out physical harm in the past or that her parents and siblings had ostracised her and to its ultimate, dispositive conclusion, that the Tribunal did not accept the applicant would face a real chance of serious harm or a real risk of significant harm arising from the fabricated claim that she was in an inter-religious relationship.
The centrality of the adverse credibility findings supports a conclusion that the Tribunal’s irrational and illogical reliance on the inconsistencies it identified in the applicant’s evidence concerning her education involved jurisdictional error.
Although there was a further reason for the impugned adverse credibility finding concerning the applicant’s relationship with a Korean national– being the Tribunal’s concern that the applicant did not know fundamental personal details about her fiancé - this strand of reasoning was bound up inextricably in the Tribunal’s analysis that included the circumstances of the education evidence so that it could not be said that this finding provided a separate and independent basis for the conclusion or was capable, alone, of sustaining the Tribunal’s finding. Even taking the most generous view of the Tribunal’s reasons, the only matters identified by the Tribunal as supporting this finding was the applicant’s evidence that she did not know her former fiancé’s full name and that she did not know to which Christian denomination he belonged (refer [25] CB 100).
DISPOSITION
For the reasons above, the application is allowed and I will make orders to set aside the decision of the Tribunal and remit the matter for re-determination according to law.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 2 December 2021
0
5
1