AXG15 v Minister for Immigration and Border Protection
[2016] FCA 492
•4 May 2016
FEDERAL COURT OF AUSTRALIA
AXG15 v Minister for Immigration and Border Protection [2016] FCA 492
Appeal from: AXG15 v Minister for Immigration and Border Protection [2015] FCCA 3259 File number: QUD 1152 of 2015 Judge: LOGAN J Date of judgment: 4 May 2016 Catchwords: MIGRATION – Administrative Appeals Tribunal – Protection (Class XA) visa application – Migration Act 1958 (Cth) – whether Federal Circuit Court failed to find that Tribunal should have applied the “What if I am wrong?” test – whether Federal Circuit Court failed to find that Tribunal engaged in illogical, irrational and unreasonable reasoning – adverse credibility finding – Tribunal Reasons are to be read in context as a whole and not piecemeal – so read, Tribunal not in doubt as to absence of credibility – Tribunal not bound to consider that findings as to appellant’s evidence might be wrong – no jurisdictional error – appeal dismissed. Legislation: Migration Act 1958 (Cth) s 36(2)(a) Cases cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Attorney-General (NSW) v Quin (1990) 170 CLR 321
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang, (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220
Re Minister for Immigration and Multicultural Affairs; Ex parte Abebe (1999) 73 ALJR 584
SFGB v Minister for Immigration & Multicultural and Indigenous Affairs (2003) 77 ALD 402
SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113
SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451
Date of hearing: 4 May 2016 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 28 Solicitor for the Appellant: Rasan T Selliah and Associates Counsel for the First Respondent: Mr S McLeod Solicitor for the First Respondent: Sparke Helmore Lawyers Solicitor for the Second Respondent: The second respondent entered a submitting appearance save as to costs ORDERS
QUD 1152 of 2015 BETWEEN: AXG15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
4 MAY 2016
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the first respondent’s costs of and incidental to the appeal, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)LOGAN J:
The Refugee Review Tribunal (the Tribunal) concluded that the appellant is a national of Sri Lanka. By an application to the first respondent, the Minister for Immigration and Border Protection, on 16 January 2013, the appellant sought the grant to him of that class of visa under the Migration Act 1958 (Cth) (the Act) known as a Protection (Class XA) visa (Protection visa). On 1 October 2013, a delegate of the Minister refused that visa application. The appellant then sought the review on the merits of that decision by the Tribunal. Following a hearing, which the Tribunal conducted on 28 January 2015, the Tribunal decided on 6 May 2015, for reasons which were then published in writing, to affirm the decision of the Minister’s delegate to refuse the visa application.
I note that as a result of legislative change to the system for the external review on the merits of decisions of this kind, that the role hitherto undertaken by the Tribunal has been assumed by the Administrative Appeals Tribunal. The name of the second respondent to this appeal appropriately reflects that legislative change. As might be expected, the Administrative Appeals Tribunal took no active part in the hearing of the appeal. The role of contradictor was undertaken by the Minister.
Following the adverse outcome before the Tribunal, the appellant sought the judicial review by the Federal Circuit Court of the Tribunal’s decision. On 11 December 2015, that court dismissed with costs the appellant’s judicial review application.
The appellant now appeals to this Court from that judgment. There are two grounds of appeal, namely:
Ground 1
1.The Honourable Court erred in finding that the Second Respondent made no Jurisdictional error in Ground 1, by holding that “the tribunal was in no doubt about the applicant’s claim. That finding meant that there was no occasion for the tribunal to apply the what if I am wrong test”. The tribunal’s conclusion that he fabricated his claims that the army intelligence unit took his truck for human rights violations or carrying bodies was based on primary findings upon which the tribunal had doubt and speculation.
Ground 2
2.The Honourable Court erred in not finding that the Second Respondent committed jurisdictional error by engaging in illogical, irrational and unreasonable reasoning in making conclusions on particular matters, leading to a constructing failure to exercise jurisdiction. Errors are significant and errors are made on jurisdictional facts.
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.
Though this is an exercise of appellate not original jurisdiction, it is necessary, in order to give context to the submissions made in support of these grounds of appeal, to set out particular passages from the Tribunal’s reasons, and also to make reference to the basis upon which the appellant had claimed to have a well-founded fear of persecution.
The details of the basis of the appellant’s claim to fear persecution were set out by the Tribunal at [4] and [5] of its reasons. It was put to the Tribunal by the appellant’s agent, that the appellant claimed to face serious harm because of his Tamil ethnicity, his imputed political opinion in support of the LTTE and/or opposing the Sri Lankan government on account of his Tamil ethnicity; origins in Batticaloa; his reputed complaints to the police, the President and the Human Rights Commission to investigate his brother’s murder, and reputed complaints to police about the use of a truck by the Army Intelligence Unit (AIU); his illegal departure and extended presence in Australia as an asylum seeker; and his membership of the particular social group of Tamils who made complaints about human rights violations and Tamil returned failed asylum seekers.
There was no suggestion either before the Federal Circuit Court or on the appeal, that the Tribunal had failed to address what have come to be called the “integers” of the appellant’s particular claim for a Protection visa. A study of the Tribunal’s reasons discloses, in any event, a very detailed engagement indeed by the Tribunal with the basis of the appellant’s claim. A good deal of that engagement entailed reflection by the Tribunal about the credit it should give to the appellant’s account in support of his claim. In that regard, and while each party accepted, as unreservedly I do in light of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, the Tribunal’s reasons needed to be read as a whole and not narrowly with an eye attuned to error, particular passages nonetheless came to ground the submissions concerning the merits of the appeal grounds. These passages are to be found between [31]–[49] inclusive and contain those parts of the Tribunal’s reasons where the Tribunal member addressed the subject of the claimed taking of the appellant’s truck by the AIU and the subsequent complaint to police and claimed taking and beating of the appellant and his son with a result that his family had to go into hiding:
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.
Assault
36.The applicant claimed, because of his complaint, the next day he was taken by the AIU and threatened and beaten, as was his son. When he saw his son being beaten, he promised to allow them to take it whenever they wanted and he would not complain and they were released. In his statement he claimed they beat, yelled and threatened to kill his family and beat and tortured his son with boots.
37.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.
38.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.
39.Having considered the evidence at hearing, the tribunal does not accept the applicant or his son were taken, beaten or threatened and the tribunal considers the applicant has fabricated his claim.
40.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 if the AIU wanted to harm him or his family they would have done so during that time. The applicant said they did not harm them as long as the applicant lived the life AIU wanted, which was allowing them to have the truck whenever they wanted. He said they said there would be no harm to them as long as he listened to them. However, this is at odds with his claim that they want to harm him because he complained to police about human rights violations. 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.
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.
Family in hiding
42.The applicant claimed when he left Sri Lanka he put his son in hiding at a teacher friend’s home 25 kms away and stored and disabled the truck at another friend’s home. In his statement he claimed his wife and youngest son did not sleep at home for fear.
43.However, on his evidence, the applicant’s wife is a teacher, continuing to work at the same school and the youngest son has continued to attend school and is studying for O levels and living at home. The applicant claimed they went home in the mornings and afternoons but did not stay overnight but slept at the aunty’s house, 500 meters away. The tribunal does not accept that is in hiding or that they could not be found. Further, they could be easily found at their schools.
44.The tribunal does not accept the applicant’s family have been living in hiding or that they could not be found by AIU or authorities or harmed if they wanted to. The applicant said it was a puzzle why they had not been harmed but he thought it was because they wanted him and maybe they were waiting for him to return. However, this is inconsistent with his statement which claimed they threatened to kill the family.
45.Further, his evidence that the family were in hiding contradicted his claims that AIU visited the home three (or four) times, including when they demanded for money the day after the wife sold the truck in November 2013 and she paid them money a few days later.
46.The tribunal does not accept the wife and sons have been in hiding since the applicant left Sri Lanka as claimed in his statement as it is inconsistent with his other claims that authorities have visited her at home 2 or 3 months after he arrived in Australia and also in September 2012 when they took their voter cards and were enquiring about him. Further the tribunal does not accept being in hiding 500 meters away at aunt’s house and going home in the morning to get ready for school is in hiding.
47.The tribunal does not accept his family did not sleep at home since his departure or that his older son was in hiding. On his evidence his son obtained a passport and visas and travelled to Russia and returned to Sri Lanka. He left Sri Lanka and returned through the airport and encountered no difficulty. The agent submitted they caught him the second time in November 2011 but he came to attention for a suspected false Greek visa on the third time he went through the airport. Given the applicant’s son applied for and was granted a passport, obtained visas and went in and out of the airport twice in 2011 without a problem the tribunal does not accept the son was in hiding or that he could not be found by AIU or authorities if they wanted to. Further, given the applicant’s wife continued to work as a teacher and the other son continued to study and live in the area the tribunal does not accept they were in hiding.
48.Further, at hearing he claimed his eldest son was living at home since he was on bail after being caught trying to leave Sri Lanka with a false visa.
49.The tribunal considers the applicant has also fabricated his claims of the family being in hiding or living in fear.
It should also be recorded that at [69] the Tribunal stated:
Having considered the evidence at hearing, the tribunal does not accept AIU took the applicant’s truck or committed human rights violations in it or that his truck was taken, or the applicant complained to police. The tribunal does not accept AIU assaulted and beat the applicant and his son or that they were looking for him or his son or that the son or the family were hiding since the applicant left Sri Lanka. Even if they were interested in him because he could provide access to his truck (which is not accepted), he has now sold that in 2013. The tribunal does not accept the authorities at the airport questioned his son about him or that AIU or authorities or anyone was looking for him.
Yet further, at [72], the Tribunal stated:
The tribunal does not accept the AIU are interested in him. Further, even if they wanted access to the truck (which is not accepted) AIU have had plenty of opportunity to harm his family if they wanted to because of getting rid of the truck or leaving the country, but have not which further reinforces the tribunals view that they have not had an interest and do not now or will in the future have an interest in him or the family.
On the basis of the Tribunal’s findings with respect to the appellant’s credibility, which included those findings which appear in the paragraphs from the Tribunal’s reasons which I have set out, the Tribunal concluded that it was not satisfied that the appellant was a person in respect of whom Australia had protection obligations under the Refugee Convention such that he did not satisfy the criterion set out in s 36(2)(a) of the Act.
Turning then to the first ground of appeal, the appellant submitted that this was a case where, having regard to the observations made by Sackville J, with whom North J agreed, in Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220 (Rajalingham), the Tribunal had to adopt what was said at 240, [63] of that case and had failed in the “obligation to apply correctly the principles for determining whether an applicant has a ‘well-founded fear of being persecuted’ for a Convention reason”.
More particularly, the appellant’s submission, again to adopt the language of Sackville J, at 240, [63] in Rajalingham, had failed to engage in reasonable speculation, “to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not”. This has been described by some as the “what if I am wrong” approach, although I respectfully agree with Sackville J’s observation that it is simply an aspect of the obligation to apply correctly principles for determining whether an application has a well-founded fear or persecution.
In this case, by an examination of the Tribunal’s reasons, in particular the statement at [33] that the Tribunal had some “doubts” about the applicant’s claim and when one looked in particular at [31]–[35] of the Tribunal’s reasons, it was put that this was one of those cases where, even though the Tribunal was not persuaded in relation to the appellant’s perception as to the use of his wife’s truck by the AIU, the Tribunal member should, nonetheless, have proceeded to consider a position which would prevail if that particular adverse disposition to accepting the appellant’s account was not formed.
The passage from which I have quoted at [64] of Sackville J’s judgment in Rajalingham followed an analysis by his Honour of approaches to the determination of refugee claims endorsed by the High Court in, materially, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 and Re Minister for Immigration and Multicultural Affairs; Ex parte Abebe (1999) 73 ALJR 584. For present purposes it is, in my view, sufficient to cite from that earlier analysis of Sackville J, his Honour’s observations at 238, [55]–[56] in Rajalingham:
It can be seen from this passage that if the RRT finds that it is only slightly more probable than not that an alleged relevant event has not occurred, it must take into account the chance that it did occur when determining whether there was a well-founded fear of persecution. It is clear that the comment in the joint judgment is not confined to a past event (as in Wu Shan Liang) involving persons other than the applicant. Their Honours give as an example a finding that it was slightly more probable than not that the applicant had not been punished for a Convention reason.
If on the other hand, it appears that the RRT had no “real doubt” that its findings were correct, it is not bound to consider whether those findings might be wrong. Nothing in the reasoning of the joint judgment suggests that if the RRT, although apparently having no real doubt as to its findings should have had doubts, it is bound to consider the possibility that the relevant event might have occurred. Doubtless, this is because an objective test of this nature would require the Court to transgress the boundaries of judicial review, by considering the merits of the RRT’s decision. The passage does not explicitly address the approach that should be taken by the Court where the RRT does not make it clear whether it had no real doubt about its findings as to past events (or non-events), or whether it made the findings on the bare probabilities.
Approaching the determination of the merits of this ground of appeal on the basis explained in Rajalingham, it appears to me that the doubts voiced by the Tribunal at [33] are nothing more than a precursor to a confronting by the Tribunal of an issue as to whether it accepted that the appellant’s apprehension as to the use of the truck by the AIU had any credit. The Tribunal had the benefit, in forming the views expressed at [35], of photographs of the truck in question (see pp 200-201 of the Appeal Book). One needs to bear this in mind when reading the Tribunal’s statement at [35], dismissive of the appellant’s credibility in relation to the apprehended use of the truck that:
[T]he 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 ultimate finding reflected in the last sentence of [35] is not redolent of any doubt at all by the Tribunal concerning the lack of credibility in the applicant’s account and apprehension as to the use of the truck. That means, in my view, that this is a case which falls within the category set out at [56] of Sackville J’s judgment in Rajalingham. The Tribunal just had no real doubt about the absence of credibility in relation to the appellant’s claim and apprehension concerning the truck. That being so, the Tribunal was not bound to consider whether the findings that it made might be wrong. It follows that the conclusion reached by the Federal Circuit Court judge, which is identical for all practical purposes to my own, was correct. This ground must fail.
The second ground of appeal has its origins in what is conceded to be a wrong finding of fact by the Tribunal in relation to whether the appellant had originally claimed in evidence to have been assaulted physically. The relevant passage from the transcript of the appellant’s evidence before the Tribunal was reproduced by the learned Federal Circuit Court judge at [36] of his Honour’s reasons for judgment:
I have in evidence before me, a transcript of the tribunal’s hearing. The transcript reveals the following exchange concerning the relevant incident:
o Member: Mhm. So why would you get into the van with them?
o Interpreter: Okay. Okay. So uh they asked me to come but uh I 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 them 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 LTTE 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.
o Member: Okay. I’ll just ask, when you said they started assaulting you, what did you mean by that?
o 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.
o 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?
o 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.
o Member: so, where did they hit you with it and how many times did they were you hit with it?
o Interpreter: There’s no hmm no count of it-there was so much assault of my body and uh I had uh internal injuries.
o Member: D’you have bruises, were you bleeding, what [indiscernible].
o Interpreter: I had [coughing] marks but all are healed now.
o Member: Okay, uh but [applicant speaking] the injuries I 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.
o 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].
o 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
It looks as if the Tribunal misunderstood what the appellant had meant when he stated that he had been assaulted by the police, perhaps because of some reservation grounded in the subtleties of an understanding of the criminal law on the part of the Tribunal member that an assault might be constituted without physical contact. It is though, as I have stated and as it was before the Federal Circuit Court, common ground that the Tribunal was in error in regarding the appellant, at [38], as “not referring to any physical assault” at first in his description of events at the police station.
It may well be that this case serves as a very useful reminder of the need for Tribunal members to bear in mind not only that it is unlikely that persons untrained in law will be attuned to subtleties as to what may or may not amount to an assault but that this unlikelihood is accentuated when evidence is given in a language other than English and then rendered into English by an interpreter who is also untrained in matters of law, but familiar with the language of an applicant, as well as English. It is important not to approach translated accounts with a mind attuned to subtleties of expression which may have meanings for those legally trained, but not for those who use language colloquially, especially if that is being rendered from a foreign language into English.
However this may be, what was said to follow from the error made by the Tribunal was that the reasoning of the Tribunal was illogical, irrational and unreasonable. In particular, it was put that this was a case which engaged with a statement made by the Full Court in SFGB v Minister for Immigration & Multicultural and Indigenous Affairs (2003) 77 ALD 402 (SFGB) at 407, [19] by the Full Court, referring in turn to a statement made in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-357. In SFGB, the Full Court observed:
If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error.
As the Full Court also stated at 407, [20] in SFGB by reference, in this instance, to Attorney-General (NSW) v Quin (1990) 170 CLR 321 at 355-356:
Indeed, unless the relevant fact can be identified as a “jurisdictional fact” there is no error of law, let alone a jurisdictional error in the tribunal making a wrong finding of fact.
The difficulty about this particular submission, so far as the Federal Circuit Court was concerned when it appeared as a ground of review was that (at [38] of the Reasons for Judgment):
… 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.
With respect, I share the view of the Federal Circuit Court Judge. Recently in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451, Flick J, with respect, helpfully, analysed authorities concerning adverse findings as to credit at [14]-[23]. I respectfully agree with all of the observations there made by Flick J. Of particular relevance for present purposes is a reference by his Honour, by way of example, to a judgment of Robertson J in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99, where at 121, [78] his Honour stated:
It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.
The difficulty for the appellant is that there were multiple findings made by the Tribunal which impacted upon the Tribunal’s assessment of his credibility. This was not a case where the erroneous factual finding in relation to the appellant’s accounts of events at the police station was the sole basis or even had what might be termed a “domino effect” in relation to other credibility assessments. For example, the Tribunal’s conclusion concerning the absence of credibility in the applicant’s account in relation to the use of his wife’s truck was in no way affected by the error of fact the Tribunal made in relation to what the appellant had said concerning events at the police station. An example of where an error in relation to an error of fact was seen to infect the Tribunal’s reasoning process with respect to credibility is to be found in the judgment I delivered in SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113.
For completeness, I should record that the appellant also contended that there was illogicality as between the Tribunal’s conclusion at [35] of its reasons, namely, non-acceptance that the AIU took the truck for human rights violations and the conclusion at [41], which is that the Tribunal did not accept that the truck was taken by the authorities at all. This though, entails a piecemeal reading of the Tribunal’s reasons, whereas reading them as a whole and, in particular, in light of [69], all that the Tribunal is doing is addressing particular aspects of the appellant’s claim, but against the overall rubric of just not accepting that the truck was taken at all by the AIU. An aspect of the consideration was addressing appropriately a particular claim made by the appellant relating to his speculation as to the use of the truck.
What follows from the foregoing and in essence, for the same reasons as those given by the Federal Circuit Court, is that I do not accept there is any merit in the second ground of the appeal.
It is not necessary for the purposes of this case, given the basis upon which I find an absence of merit in ground 2 to explore at all what is the content of unreasonableness in light of the judgments delivered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li). Suffice it to say, I accept that the metes and bounds of the jurisdictional error ground of unreasonableness are not limited by illogicality or irrationality: see Li at 364, [68] per Hayne, Kiefel and Bell JJ.
It follows that the appeal must be dismissed.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 27 May 2016
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