AXG15 v Minister for Immigration

[2015] FCCA 3259

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXG15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3259

Catchwords:
MIGRATION – Protection (class XA) visa – whether it was appropriate for the tribunal to apply the “what if I am wrong test?” – whether tribunal failed to apply the “what if I am wrong test?” – whether tribunal’s findings were illogical or irrational.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Dhiman v Minister for Immigration and Multicultural Affairs [2000] FCA 221
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Minister for Immigration v SZMDS (2010) 240 CLR 611

Applicant: AXG15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 488 of 2015

Judgment of: Judge Jarrett

Hearing date: 22 October 2015

Date of Last Submission: 22 October 2015

Delivered at: Brisbane

Delivered on: 11 December 2015

REPRESENTATION

Solicitor for the Applicant: Mr Selliah

Solicitors for the Applicant: Rasan T Selliah & Associates

Counsel for the Respondents: Mr Richardson

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the second respondent be substituted with “Administrative Appeals Tribunal”.

2. The application filed on 3 June, 2015 as amended on 22 October, 2015 be dismissed.

3. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 488 of 2015

AXG15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question.  Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a ‘real substantial basis’ for the applicant’s claimed fear of persecution.  Similarly, if the non-occurrence of an event is important to an applicant’s case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.

per Sackville J in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [62].

1. On 6 May, 2015 a refugee review tribunal affirmed a decision of a delegate of the first respondent to refuse to grant to him a Protection (Class XA) visa.  In this application to judicially review the decision of the refugee review tribunal, the applicant argues that the tribunal ought to have applied what is colloquially known as the “what if I am wrong test”, a statement of which I have set out above.

2. The applicant seeks the issue of constitutional writs of certiorari and mandamus. The first respondent opposes the application.  The second respondent has entered a submitting appearance.

3. On 27 July, 2015 directions were made to prepare the matter for hearing.  The applicant was given the opportunity to file an amended application setting out his grounds of review and any particulars in respect of those grounds.  The parties were also directed to file written submissions. 

4. The applicant has filed written submissions.  Appended to them was a proposed amended application that the applicant now wished to pursue.  He applied for leave to amend.  The amendment was not opposed and I granted the leave that he sought.

5. Both the applicant and the first respondent have filed written submissions.  I have had regard to the written and oral submissions of each of the parties.

Background

1. The applicant is a citizen of Sri Lanka of Tamil ethnicity and Hindu religion.  He arrived on Cocos Island by boat on 28 July, 2012.  He applied for a protection visa on the 16 January, 2013.

2. The applicant’s claims were set out in statutory declarations outlining why he feared returning to Sri Lanka.  His first statement was made in January, 2013.  In that statement he claimed:

   a)He was rounded up in 1990 in Batticaloa by the Sri Lankan Army because he has a facial scar indicative of involvement in the Sri Lankan civil war.  He was beaten and accused of being part of the Liberation Tigers of Tamil Ealam;

   b)He was tortured and beaten for 5 days, including having his hands set alight.  He was subjected to constant harassment and intimidation;

   c)He left Sri Lanka and went to Kuwait in 1991 and returned in 1994.  Ten days after he returned he received a letter from LTTE to meet them. They questioned him about where he worked and demanded a tax from him and eventually he paid 100,000 rupees. The next day the “EPRLF” took him away in a van.  They knew that he had paid the LTTE and he had to pay the same amount to them;

   d)He went to Saudi Arabia for some time to work, but later returned to Sri Lanka;

   e)In mid-2007 his brother was killed. His brother owned a white van and worked as a tour guide in Negombo.  Sometimes his friends, who worked for an army intelligence group, would borrow the van and used it to kidnap people.  After his brother found this out he told his friends that he would not lend them the van any more.  He ended his friendship with those people.  However, the army found out and his brother was visited by the army and threatened and told not to say anything;

   f)A month later someone asked to hire his brother’s van as a tour guide and he took his friend with him.  Along the way the applicant’s brother and his friend were killed by the people who hired it and the van was stolen.  His body was burned with tyres and 70,000 rupees was taken from his account.  The applicant’s family tried to get camera footage from the bank to see who withdrew the money and they made a complaint to the police and tried to obtain a court order but nothing was done;

   g)The applicant’s family was threatened by the authorities after pursuing the brother’s murder for 5 – 6 months;

   h)In October, 2011 the applicant purchased a lorry.  In January, 2012 people from the army intelligence unit came to his house and took the van for two hours.  He did not get it back for 4 days and the odometer had 1000 km on it.  He washed it the next day and found blood in the back.

   i)Ten days later they returned to borrow the truck again, but he refused.  They began to threaten him, entered the home and took the key without permission and took the truck.  He made a complaint to the police but they did not help and said the truck would be back.  They told him to come back if it was not returned in a couple of days.  He told them there was blood on it when it was given back last time but the police were not interested.   Shortly after he got back, the army intelligence unit brought the truck back;

   j)The next day they returned in a white van and told him he had to come to meet their boss, but he refused.  They took him forcibly and asked why he complained to the police, beat him and asked him questions.  They brought in his son and beat him in front of him and they threatened to kill the family.  He begged them to stop and said they could take the truck whenever they wanted and he would not complain to the police.  They released the applicant and his son.  He believes they did it because he was a Tamil;

   k)The army intelligence unit would take the truck about two or three times a month.  He saw blood on it and found a broken women’s anklet and every time it had been driven about 1000 kms.  Other truck driver friends say they saw it being driven to Mankulam to Mullaitiu.  He knows others who did this but they receive favours in return.  Others were suspicious of him and his business suffered;

   l)He moved the truck to his wife’s friend’s house and disabled the engine by cutting the diesel pump and found somewhere safe to send his son and he fled to Australia;

   m)Five or six days after he left the army intelligence unit came to the home.  His wife told them he had left the country and they said they would wait for him.  Two or three months after being in Australia his wife told him they had found the truck.  The truck was towed and brought back to the house and the army intelligence unit regularly passed the house;

   n)Since he left Sri Lanka his wife and son do not sleep at the home.   

3. The applicant feared that if he returned to Sri Lanka he will be detained, interrogated, beaten on arrival for leaving illegally and he will be punished heavily as a Tamil because the Sri Lankan authorities believe Tamils who apply for asylum are linked to the LTTE.  He said that he cannot return to Batticaloa as the army will interrogate and torture him.  He claimed that they are keeping an eye on his house and waiting for him to return so they can punish him “for denying them”.  He claimed that he was worried the army will blame him for wrong things they have done with the truck.  He cannot relocate as Tamils are discriminated against and he would have to register with local authorities and it is not reasonable for his family.  The authorities will not protect him as he is Tamil and they have not protected him in the past.

4. The applicant supplemented his claims with a further statement made in May, 2013.  In that statement, he claimed that:

   a)after his January, 2013 statement he spoke with his wife and she told him that in September, 2012 people came to the house and enquired about the applicant;

   b)she thought they were army intelligence and they came inside looking for the applicant and his son and took their voter registration card as well as his wife’s;

   c)he was not sure why they took the cards but they may have thought he would return to vote;  

   d)the men told his wife that the applicant and son should return; and

   e)on 24 September, 2012 his wife notified the human rights commission about the incident as she wanted them to know about it in case anything happened to her.  His wife had not told him earlier as she did not want to worry him.

5. On 14 April, 2015 the applicant’s migration agent provided written submissions to the tribunal and noted that the applicant’s son had been recently questioned about the applicant at the airport when his son attempted to depart Sri Lanka.  His son had pending court processes in relation to the incident.

6. The applicant’s migration agent put to the tribunal that the applicant faced serious harm if he was to return to Sri Lanka because of:

   a)his Tamil ethnicity;

   b)his imputed political opinion in support of the LTTE and/or opposing the Sri Lanka government on account of his Tamil ethnicity;

   c)his origins in Batticaloa;

   d)his repeated complaints to the police, President and human rights commission to investigate his brother’s murder;

   e)his repeated complaints to police about the use of the truck by the army;

   f)his illegal departure and extended presence in Australia as an asylum seeker;

   g)his membership of particular social groups namely:

   i)Tamils who made complaints about human rights violations; and

   ii)Tamils who are returned failed asylum seekers. 

7. The applicant, by his agent, claimed that he was at real risk of torture, cruel and inhuman treatment and degrading treatment or punishment if he was returned to Sri Lanka.

8. The applicant’s agent submitted that a key component of the applicant’s claim was that the complaints the applicant made regarding the use of the truck by the army intelligence unit and the death of his brother.  He argued that the making of those complaints and the human rights complaints that he made, would be seen by the authorities as the applicant acting in defiance of them and in that way, those actions by the applicant were relevant to his claim that a political opinion adverse to that of the government would be imputed to him.

9. The applicant appeared before the tribunal on 15 April, 2015 to give evidence and present arguments.  The tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.  The applicant was represented in relation to the review by his registered migration agent who attended the hearing.  The applicant’s migration agent provided further written submissions and documents after the hearing on 28 April, 2015.

The tribunal’s decision

1. The tribunal assessed the applicant’s claims against his country of origin – Sri Lanka.

2. The tribunal accepted that:

   a)the applicant was rounded up and beaten and tortured in 1990;

   b)he was harassed for tax by the LTTE and EPRLF in 1994;

   c)was harmed during the Sri Lankan civil war as he claimed;

   d)the applicant’s brother was killed in 2007, although not in the circumstances claimed by the applicant;

   e)the applicant’s mother and brother requested an investigation into the death of the brother who had been killed;

   f)the applicant’s brother’s death was investigated and letters were sent to the applicant’s mother about that;

   g)the investigations and subsequent human rights complaint were made by the applicant’s mother and another of his brothers and not the applicant; and

   h)the applicant’s wife owned a truck which the applicant drove for a living.

3. However, the tribunal did not accept any of the applicant’s other claims.  It rejected his claims about the army using his van.  It rejected his claims about having been detained and assaulted by the army, or that his son had been detained and assaulted.  It rejected his claims that the army regularly took his truck and used it for illicit purposes.  It did not accept that the applicant’s brother’s van was borrowed by the army or that the brother’s money was taken from his bank account.  The tribunal did not accept that the applicant had complained to police or made a human rights complaint about his brother’s death in 2007.  It did not accept that his wife’s 2012 human rights commission complaint was a serious complaint because she did not want it investigated.

4. The applicant had also claimed that his wife and son had been living in hiding since the applicant had left Sri Lanka.  The tribunal rejected this claim on the basis that the applicant’s wife was a teacher and continued to teach at the same school, his son continued to attend school and his wife and son returned to their family home in the mornings and the evenings but did not sleep there.  He claimed that they slept at their Aunt’s home about 500 meters away.  The tribunal also considered that the applicant’s claims about his family being in hiding contradicted his claims that his wife was visited by the army three or four times.

5. The applicant added a further claim at the hearing before the tribunal that the army intelligence unit had extorted money from his wife after she sold the van that the applicant used to drive when he was in Sri Lanka.  She had paid them 1 million rupees.  He also claimed that the army (the same people who the applicant alleged had killed his brother in 2007) had searched for him in a hotel where his family were staying in Negombo in November, 2014.  The tribunal rejected each of these claims.

6. The tribunal rejected the applicant’s claims pursuant to s.36(2)(a) and s.36(2)(aa) of the Act. The tribunal held that illegally departing, being Tamil, seeking asylum, or having a facial scar would not be a sufficient reason to make the fear of suffering significant harm upon return to Sri Lanka well founded.

The grounds of review

1. The applicant’s first ground of review set out in his amended application is as follows (errors in the original):

   (1)     The Second Respondent made jurisdictional error by failing to apply or incorrectly applying the real chance test and failed to apply the “what if I am wrong? approach to the real chance test.

   Particulars

   1.1    The Second Respondent at Paragraph 33 made a finding that “The Tribunal had some doubts about the applicant’s claims about the truck being taken and complaining to police because it was coincidentally the same set of circumstances claimed about his brother in 2007”. At paragraph 35 the Second Respondent stated that “However the Tribunal considers that the AIU would need to use the applicant’s truck for such things lacks credibility. Further, the tribunal does not accept the presence of some blood or finding an anklet on the truck means they were transporting bodies or involved in human rights abuses and finds this is speculative .......... Further, the applicant claimed that others in the area saw his truck being used by others which further reinforces the tribunal’s view that it was visible and less likely that it was being used for human rights abuses. The tribunal does not accept the AIU took the truck for human rights violations or carrying bodies but finds the applicant’s claims in that regard are fabricated”. At paragraph 41 the Second Respondent does not accept the applicant’s truck was taken by the authorities or that he made a complaint to police.  The Tribunal did not accept that police or authorities had any interest in him.

   3.2 The Delegate stated in her finding that “I accept that applicant was a truck driver who owned his own vehicle and that this vehicle was forcefully taken by local members of the AIU for various periods of time between January and July 2012. I accept that applicant and his son were detained and beaten in early 2012 as punishment for reporting his truck being taken by AIU. I accept that the applicant holds a subjective fear he will be harmed if is returned as a failed asylum seeker because he will be perceived to be a supporter of the LTTE.”

2. This ground of review centres upon the tribunal’s reasons at paragraphs 31 – 35.  They are as follows:

AIU take truck, complaint to police and AIU take and beat applicant and son

31.    The tribunal has considered the documents relating to the applicant’s truck and accepts the applicant’s wife owned a truck, which the applicant drove for a living.

32.    The applicant claimed AIU took his truck a number of times and returned it but he suspected (and as submitted by the agent) the AIU were committing human rights violations, such as abduction and torture with it. The applicant complained to police who did not take the complaint; the truck was returned within 2 hours and he and his son were taken by AIU the next day and beaten and threatened for making the complaint. As a result, the applicant claimed he let the AIU continue to take the truck, which was about two to three times a month.

33.    The tribunal had some doubts about the applicant’s claims about the truck being taken and complaining to police because it was coincidentally the same set of circumstances claimed about his brother in 2007. The applicant said in his brother’s case it was based on false friendship with AIU but he was not friends with them.

34.    The applicant claimed he complained to police after his truck was taken a second time but they refused to take note and told him to return if it was not returned the next day. The applicant claimed he made the complaint as he did not want to be accused of doing anything wrong with the truck as he had found blood in the truck after the AIU took it first time. He surmised that they were using it to transport bodies as they could not get vans into the forest but he did not know, it was only a suspicion.

35.    However the tribunal considers that the AIU would need to use the applicant’s truck for such things lacks credibility. Further the tribunal does not accept the presence of some blood or finding an anklet on the truck means they were transporting bodies or involved in human rights abuses and finds this is speculative. Further, the truck was an open truck and had the applicant’s name and address clearly visible on it which would make it highly visible if it were transporting bodies, abductees or torture victims. The applicant claimed the AIU might want to implicate him later or he might be investigated for the abuses. However the tribunal considers given the high visibility of the truck if it were carrying bodies, or abductees, it would also be contrary to AIU interests and particularly so, if they were not carried in an official vehicle as opposed to local one.  Further, the applicant claimed that others in the area saw his truck being used by others which further reinforces the tribunal’s view that it was visible and less likely that it was being used for human rights abuses. The tribunal does not accept the AIU took the truck for human rights violations or carrying bodies but finds the applicant’s claims in that regard are fabricated.

(my emphasis)

1. Later in the reasons, at [41] the tribunal found:

   [41] The tribunal does not accept the applicant’s truck was taken by authorities or that he made or lodged a complaint to police. The tribunal does not accept the police or authorities have any interest in him.

2. The applicant argues that by use of the terms “had some doubts” (in paragraph 33), “speculative” (in paragraph 35), and “less likely” (in paragraph 35) the tribunal was demonstrating that it had doubts about the particular matters to which it was referring when it used those terms. 

3. In those circumstances, the applicant argues that the tribunal was bound to apply the “what if I am wrong test” but did not do so.  The applicant points to the way in which the test was explained in Rajalingam (above).  But it is important to pay regard to the way in which Sackville J explained the operation of the “test”.  The applicant focussed upon the use of the word “speculative” by the tribunal, no doubt prompted by Sackville J remarking in Rajalingam at [60]:

   The Principles

   It follows from the observations of the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur.  This result, perhaps surprising at first glance, comes about because the ultimate question before the RRT is whether it is satisfied that the applicant has a well-founded fear of future persecution, in the sense of having a “real substantial basis” for the fear. The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring.

   (my emphasis)

4. Whilst Sackville J was there considering reasonable speculation about the chances of hypothetical future events occurring, the tribunal in the present case used the word in reference to speculation in which the applicant had indulged concerning the possible uses to which the army intelligence unit had put his truck.

5. As I have set out above, the “what if I am wrong test” is predicated upon the tribunal being uncertain as to whether an alleged event occurred, or a finding that it was slightly more probable than not that the relevant event did not occur as claimed.  But where the tribunal has no real doubt about the finding, the tribunal is not obliged to apply the “what if I am wrong test”.  In Dhiman v Minister for Immigration and Multicultural Affairs [2000] FCA 221 the Full Court (Sundberg, Katz and Hely JJ) said at [12]:

   The complaint here was that the Tribunal had failed to consider whether it might be wrong as to its conclusion about the reason for the father's death. As the primary judge said, where the Tribunal has found facts on the basis that they are slightly more probable than not, it should ask itself whether it might be wrong. But where it has no real doubt as to a finding, there is no such obligation. See Guo and Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 52-53 (Merkel J) .

6. Here, the tribunal’s finding that the applicant had fabricated his claims that the army intelligence unit took his truck for human rights violations or carrying bodies, was a positive finding that the applicant’s claims were untrue.  The tribunal was in no doubt about the applicant’s claims.  That finding meant that there was no occasion for the tribunal to apply the “what if I am wrong test”.

7. Moreover, I accept the first respondent’s submissions that the tribunal applied the correct test as articulated in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 when it considered whether there was a real chance that the applicant would suffer harm if he was to return to Sri Lanka.

8. The first respondent argues that the following passages of the tribunal’s reasons demonstrate that the tribunal applied the correct test:

   a)at [87] of the tribunal’s reasons, it found, based on country information, that Tamils do not face a real chance of serious harm solely on account of their ethnicity from the Sri Lankan authorities and further did not accept that the applicant faces a real chance of harm for reasons of his ethnicity;

   b)at [99] of the tribunal’s reasons, it recorded that it was not satisfied that the applicant faces a real chance of serious harm because of his imputed Tamil ethnicity, or because of his membership of a particular social group, or because of any actual or imputed political opinion;

   c)at [112] of the tribunal’s reasons, it expressed that ultimately it was not satisfied that the applicant had suffered serious harm in the past and was not satisfied that he faces a real chance of serious harm upon return to Sri Lanka for a Convention reason;

9. In my opinion the applicant’s first ground of review raises no jurisdictional error.

10. The applicant’s second ground of review set out in his amended application is as follows (errors in the original):

    (2) The Second Respondent committed jurisdictional legal error by coming to a conclusion that was so illogical, irrational and unreasonable that no reasonable decision maker could have reached it.

    Particulars

    2.1. The second respondent made a finding at paragraph 37 of the decision that there was no reference to physical assault, which was made without any factual foundation and based on a false factual premise.

    2.2. In the same paragraph, the second respondent made a further finding that he would be willingly getting into their van, which was made without any factual foundation and based on a false factual premise.

    2.3. In paragraph (40), the second respondent contended that the applicant continuing to live and work in the area was further evidence that the applicant was not of interest to the police, authorities or anyone. This contradicts the applicant's evidence and is based on a false factual premise.

1. The gravamen of this ground appears to be that in respect of each of the factual matters referred to in the particulars to the ground, the tribunal made findings for which there was no support in the evidence.  His argument is that there was no evidence to support the findings so made. 

2. As to the first matter, the tribunal said at paragraph 37 of its reasons:

   The tribunal does not accept the applicant and his son were taken, threatened or beaten and assaulted. The tribunal considers the applicant’s account was evasive and told in a piecemeal meal fashion, and not free flowing. For instance, at first he described the assault as being interrogated and asked questions and did not refer to any physical assault. When pressed further by the tribunal about what he meant by assault or beating he eventually said he was trampled on the floor with their boots and a steel bar. When asked for more specifics he said he had internal injuries. He described his injuries from his 1990 beating. The tribunal again explained it was interested in understanding the extent of his injuries or nature of the beating in 2012. The applicant then said he had swelling all over his body and did not go to the hospital but had treatment at home. Further, his description of being dropped in a quiet place near the police station and getting a ride home on a three wheeler lacked credibility as it is inconsistent with his claim about the severity of his injuries of swelling all over his body and requiring two weeks medical treatment at home.

3. The applicant submits that the emphasised sentence in the above paragraph “is nothing more than speculation and made without any factual foundation and based on false factual premise”.  In my view, that appears to be an argument that the tribunal made that finding without evidence.

4. I have in evidence before me, a transcript of the tribunal’s hearing. The transcript reveals the following exchange concerning the relevant incident:

   Member:Mhm. So why would you get into the van with them?

   Interpreter:   Okay. Okay. So uh they asked me to come but uh 1 told them that I can come to the police – not, not to the army camp. They said no, no we will let you go come, they put you- their hand uh around my shoulders so- and they didn’t force but they almost like took me inside the van.

   Wife saw it an uh she was scared.  Then I assured her don’t worry, I’ll be- I’ll be back.  When they took me inside, they dragged me and put me into a room and locked the room.  So, after half an hour, I was sitting on the floor of the room; they came to me and said uh Boss wanted- wants to see me, and uh so they asked me to come out. 

   Okay so, there was a table and they were in civil and I was um bawling my hand and they- they asked me ‘what is your name?’ I said[name removed].  Did- then they asked me, ‘Did you go yesterday and complain about to the Karthanguli station?’  ‘What did you complain ag- against us?’ 

   [cough] Then I said uh that I complain that uh I [indiscernible] my lorry without uh my commission.

   Then they asked me uh ‘other than that, what else have you told?’

   So uh when I said uh this is what I told then uh they started assaulting me.

   Okay, then they asked me how bloodstains were in your lorr- lorry. So who did you kill and what have you done with the body, have you worked for L TTE uh who did you kill-and these were the questions and assault.

   Okay, the person who was addressed as the Boss he said that ‘bring that fella out also’.

   So there- there was another like [indiscernible]. He had a, he had no shirt on his body. Then, it was my e- eldest son.

   Member:Okay. I’ll just ask, when you said they started assaulting you, what did you mean by that?

   Interpreter:   Okay, m- the- the reason for their assault was that uh that I had complained against them and then they are putting the blame that uh how did I get the bloodstain and how did I kill someone and uh how, for whom I am.

   Member:Okay, so when I um mean assault, my understanding of assault is some kind of physical hitting, are you saying they all just questioning you?

   Interpreter;   Okay, so the question [coughing] and put me down the floor, trampled me [coughing] on our [indiscernible] and they had a steel bar they hit me with that. Then only they brought my son.

   Member: So, where did they hit you with it and how many times did they were you hit with it?

   Interpreter:   There’s no hmm no count of it-there was so much assault of my body and uh l had uh internal injuries.

   Member:D’you have bruises, were you bleeding, what [indiscernible].

   Interpreter:   I had [coughing] marks but all are healed now.

   Member:Okay, uh but [applicant speaking] the injuries l susta- sustained in 1990. I still have but not this, after this injury but uh the ones I had it in 1990, I have all over the body. I can show.

   Member:No, what I’m trying to understand is, what kind of- when you say assault, what kind of assault?  What does that mean and what kind of injuries and what [indiscernible].

   Interpreter:   Okay. Okay, when the assaulted uh because of the baton charges, I had swelling um and uh all ma, all over the body I had swelling, um and it was there for few days.

5. Having regard to that transcript, the tribunal’s approach to this question is curious.  Whilst the applicant did not immediately describe the “assault” in terms of the physical beatings that he said he received, the tribunal’s initial question and the applicant’s initial answer were as general and vague as each other.  The tribunal’s initial question was: “So why would you get into the van with them”.  There was no question about the assault.  The applicant mentioned the assault in general terms.  When subsequently asked by the tribunal what he meant by the “assault”, the applicant, instead of answering directly (a phenomenon that could be explained for a multitude of reasons), the applicant gave evidence about the reason for the assault.  But he was bought back on track by the tribunal and he described the assault as he was asked to do.

6. I accept the applicant’s submission that the second respondent made an error of fact when it recorded at paragraph 37 of the decision that at first the applicant described the assault as being interrogated and asked questions and did not refer to any physical assault.  But the mistaken view of the facts was not significant.  It was only one of the matters relied upon by the tribunal to conclude that the applicant’s account was evasive and told in a piecemeal fashion, and not free flowing.  It was only one of the matters upon which the tribunal relied to conclude that the applicant’s claims were not credible.

7. As to the second of the particulars, in paragraph 38 of the tribunal’s reasons, it records:

   Further, that he would willingly get into their van after having made a complaint lacks credibility, particularly given his knowledge of what had happened to his brother. The tribunal finds the applicant’s explanation that his wife saw it and they took him by nicely by the shoulder unpersuasive.

8. The applicant argues that there was no evidence that he ever willingly got into a van as the tribunal records he had.  I have set out the relevant evidence above.  It was not suggested that any other evidence was relevant.  It can be seen from that evidence that the applicant said:

   They said no, no we will let you go come, they put you- their hand uh around my shoulders so- and they didn’t force but they almost like took me inside the van

9. In addition, the applicant pointed me to the following exchange in at the tribunal hearing:

   Member:Yeah, sorry. Can you tell me about your abduction the next day?

   Interpreter:   It’s about my abduction?

   Member:Yeah. Well my understanding is that, after you went to the police, they said come back if it’s- if the van’s not that the- truck’s not returned. And the truck was returned. And then the next day, you were taken by people.

   Interpreter:   Okay, they took me telling that they are th- th- superior they wanted to talk to me. They took me nicely.  Okay, when they took me from home, I was asked to sit on the seat and [applicant speaks] about two hundred metres away, they asked me to s- sit on the floor of the vehicle and they put the- their leg over me.

   Member:Sorry, can I ask what- what time of day was this that they came to the home?

   Interpreter:   Around four o’clock in the evening.

   Member:M’kay. And how many people came-just just quote for me the beginning?

10. The applicant submits that, at best, the tribunal’s statement that he had got into the van willingly was an expression of a conclusion that is nothing more than speculation by the tribunal and made without any factual foundation, or is based on a false factual premise.  

11. However, in my view, the transcript establishes just as the tribunal concluded – that the applicant willingly got into the van.  He may have been helped into the van by having an arm placed around his shoulder, but the applicant gave no evidence that he resisted getting into the van, or otherwise objected to what was going on.

12. The third matter relied upon by the applicant is the statement by the tribunal at paragraph 40 of its reasons:

    Further, after the claimed assault, they remained living and working and studying as normal in their home until the applicant’s departure in July, a period of nearly 6 months, without further harm. …The tribunal considers the fact that he continued to live and work in the area further reinforces the tribunal’s view that the applicant was not of interest to police or authorities or anyone.

13. The applicant directs my attention to the transcript of the tribunal hearing where the applicant gives the following evidence:

    Member:So, one of my concerns is that’s a long time to still continue to be living and working in the same area and nothing happened to you.

    Interpreter:   Okay, yeah I lived the way they wanted me to live. So if I- if I had lived the way they wanted to live, I don’t have any issues, I don’t have any problems.

    Member: And so that was letting them use your truck?

    Interpreter:   Yeah they continue using it.

    Member:Mhm. And is uh- that may not amount to serious or significant hann.

    Interpreter:   So I know what they what- what- they were using my vehicle for and also the- his threat that he would put the blame on me if I go against them.  So uh, as long as I am with agreeing to them, that’s okay. For some reason, this comes to- comes to the open the uh uh as the owner of the vehicle, I will be questioned. They will escape the blame.  I don’t have any proof that they have taken my vehicle. I- when I told the po- police, they didn’t take it as a complaint.  Okay, the same thing happened to my brother also. They used his vehicle.  You can’t work with him, also you can’t go against them so I- I had a big problem with this and I was worried about this.

14. Both parties referred me to the test for legal unreasonableness described by Crennan and Bell JJ in Minister for Immigration v SZMDS (2010) 240 CLR 611 as follows at [131]:

    What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

15. The applicant argues that given the tribunal’s reasoning set out above and what the applicant contends is a lack of evidence upon which the tribunal’s reasoning was based, reasonable minds could not adopt the tribunal’s reasoning and reach the conclusions reached by the tribunal.  However, the tribunal’s reasoning was not based upon a lack of evidence.  The evidence before the tribunal was that the applicant’s family remained living in the family home for six months following the alleged assault without harm.  The applicant’s son continued to go to school.  Whilst I accept that the applicant suggested that he was living “the way they wanted me to live”, the proposition that underpins the tribunal’s reasons is that the applicant and his family remained living where they were when the assault occurred.  That fact was established by the evidence.  The applicant gave no evidence of further harm being occasioned to him.

Conclusion

1. In the circumstances found by the tribunal, it was not obliged to apply the “what if I am wrong test?”  The tribunal made a finding that the applicant had fabricated his claims that the army intelligence unit took the truck for human rights violations or carrying bodies.  In those circumstances, there was no room for the operation of the “what if I am wrong test?”

2. Further, the tribunal’s fact finding was not illogical or irrational as the applicant claims. Whilst the tribunal made one factual error as I have set out above, that error was of no significance.

3. The applicant does not establish that the tribunal’s decision is affected by jurisdictional error.  The application filed on 3 June, 2015 must be dismissed with costs.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered 11 December, 2015.

Associate: 

Date:         11 December 2015