AZAED v Minister for Immigration

[2015] FCCA 1026

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZAED v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1026

Catchwords:
MIGRATION – Judicial review of a decision of the Refugee Review Tribunal – applicant lacked credit – no jurisdictional error revealed – application dismissed with costs.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.16.01

Migration Act 1958 (Cth), ss.424AA and 425(1)

Cases cited:

Minister for Immigration and Citizenship v SZNSP & Anor (2010) 184 FCR 485
Minister for Immigration and Citizenship v SZMDS & Anor [2010] HCA 16
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152

Applicant: AZAED

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 273 of 2013

Judgment of: Judge Simpson

Hearing date: 9 May 2014

Date of Last Submission: 9 May 2014

Delivered at: Adelaide

Delivered on: 30 April 2015

REPRESENTATION

Counsel for the Applicant: Mr S Ower

Solicitors for the Applicant: McDonald Steed McGrath

Counsel for the Respondents: Mr K Tredrea

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application for review filed on 12 September 2013 is dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant shall pay the respondent’s costs fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 273 of 2013

AZAED

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. I have before me an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 14 August 2013, in which the Tribunal affirmed a decision of a Delegate to the Minister that the Applicant not be granted a Protection Visa (Class XA) (“the visa”).

2. The grounds of the application were as follows:

   “1.The Second Respondent (“the Tribunal”) committed jurisdictional error in that the decision was irrational, illogical, and not based on findings or inferences of fact supported by logical grounds.

   Particulars

   1.1The Tribunal found the Applicant to not be a credible witness relying upon:

   (a)     the Applicant’s use of a false identity to enter Australia;

   (b)     the Applicant’s possession of a false UK drivers licence;

   (c)     the Tribunal finding certain parts of the Applicant’s account of matters being not “plausible”;

   (d)     the Applicant failing to produce documentary material; and

   (e)     “aspects” of the Applicant’s conduct being not consistent with him holding a genuine fear of harm.

   1.2The Tribunal failed to give weight to the statement of the Applicant’s mother, which corroborated the Applicant’s claims.

   1.3The Tribunal’s finding as to matters that were said to be not plausible were not subject to a process of reasoning, but arbitrary and capricious.

   1.4The Tribunal’s finding as to the plausibility of the Applicant being detained for six months was not inconsistent with the country material.

   2.The Tribunal committed jurisdictional error by failing to comply with s.425 of the Migration Act 1958 (Cth) and thereby denied the applicant procedural fairness.

   Particulars

   2.1The Tribunal failed to give specific notice to the applicant that the period of time in which he alleged that he was detained constituted an issue arising in relation to the review.

   2.2The Tribunal’s conduct of the hearing held pursuant to s.425, and its general questioning, did put the applicant on notice that this issue was an issue arising in relation to the review.

   2.3The Tribunal failed to invite the applicant to ask the applicant to expand upon this issue and ask the applicant to explain why the account should be accepted.

   2.4The Tribunal rejected the Applicant’s evidence as to period of time in which he alleged that he was detained on the basis of information it obtained after the hearing held pursuant to s.425.”

3. Prior to the commencement of the hearing in this matter, Counsel for the Applicant indicated that the Applicant would not be proceeding with grounds 1.3 and 1.4.

Background

1. The Applicant is a citizen of Albania.  He arrived in Australia on 17 July 2012 using a false Italian passport in the name of ‘Francescola Gamba’.  The Applicant conceded that the photograph in the passport was not his.

2. The Applicant made the following claims:

   a)He is Catholic;

   b)Around July 2009 he met a Muslim girl named ‘Albana Ismaili’ from a nearby city and commenced a relationship with her.  They became engaged around February 2011;

   c)The Applicant approached Albana’s youngest brother about their relationship.  Albana’s brother did not approve of the relationship.  On 21 March 2011, the Applicant met Albana’s three brothers and two cousins in a park.  Albana’s family threatened to kill the Applicant if he did not agree to leave her.  The meeting led to a fight;

   d)On 24 March 2011, the Applicant claims he was arrested by police and taken into custody.  He was detained for approximately six months and was released after his first court date; and

   e)The Applicant fears that Albana’s family will harm him if he returns to Albania.

The Delegate

1. The Delegate refused the Applicant’s visa application.  The Delegate was not satisfied that the Applicant was in a relationship with a Muslim woman in Albania and that her family disapproved of their relationship.  In relation to the Applicant’s credibility, the Delegate made the following finding:

   “Overall I do not find the applicant a witness of truth and he has sought to embellish his claims in order to strength (sic) his claim for protection.”

2. On 15 February 2013, the Applicant applied to the Tribunal for review of the Delegate’s decision.

The Tribunal’s proceedings and decision

1. The Applicant appeared at the Tribunal hearing held on 5 July 2013.  At the hearing, the Tribunal put to the Applicant information that it had obtained from the South Australian Police in relation to the Applicant’s use of false identities to travel domestically in Australia, relevantly, a British driver’s licence with the Applicant’s photograph but a different name. 

2. The Tribunal granted the Applicant with an adjournment under s.424AA of the Migration Act 1958 (Cth) (“the Act”) , as well as two subsequent requests for further time to respond to the information raised at the hearing, and to provide documentation in relation to his detention in Albania.

3. Also at the hearing, the Tribunal put to the Applicant its concerns that it had in relation to the plausibility of his claims and his credibility as a truthful witness.  The Tribunal member explained his main concern to the Applicant by simply stating: “So primarily I have a problem with your credibility due to your past with false identities.”[1]

   [1]     Page 23 of the Tribunal’s Transcript which was annexed as JMG1 to the Affirmation of Ms McGrath filed 11 November 2013.

4. At paragraphs [37] to [56] of its reasons, the Tribunal set out in detail its considerations.

5. The Tribunal member made the following finding:

   “I do not accept the applicant to be a credible witness, and do not accept that he has provided a truthful account of his circumstances.  My reasons for reaching this conclusion are cumulative …”

6. The Tribunal comprehensively disbelieved the Applicant’s claims and had this to say:

   “I do not accept any material particular of the applicant’s claims.  I do not accept that he is Catholic and was involved in a relationship with a girl who was Muslim.  I do not accept that he broached the question of marriage with the girl’s family, and I do not accept that he was the victim of assault at their hands for this or any other reason.  I do not accept that the applicant was arrested by the Police and held in prison for six months without appearing in Court.  I do not accept that the girl’s family were connected with the Albanian government or Police so as to orchestrate his prolonged detention.  I do not accept that the applicant genuinely fears further harm from the family on account of his previous relationship with the girl, on religious grounds, or for any other reason.  I do not accept that the applicant’s claimed fear of harm should he return to Albania is truthful or genuine.”[2]

   [2]     See para [48] of the Tribunal’s decision.

7. And later said:

   “For the reasons set out above, I have reached the view that the applicant has not provided genuine or truthful claims.  I do not accept that his claimed fear of persecution is well-founded.  As I do not accept any aspect of the applicant’s claims, I do not have substantial grounds for believing that there is a real risk he will suffer significant harm if returned to another country.”[3]

   [3]     See para [53] of the Tribunal’s decision.

8. On 14 August 2013, the Tribunal affirmed the Delegate’s decision. 

Ground one

1. In relation to ground one, the Applicant submits that the decision of the Tribunal was irrational, illogical and not based on findings or inferences of fact supported by logical grounds, by reason of the manner in which the Tribunal dealt with a statement of the Applicant’s mother.  They submit that the mother’s evidence went to the heart of the plausibility findings and that, in particular, she corroborated the injuries sustained by the Applicant, as well as the Applicant’s statement that he had had a six month period in jail.  They submit further that the mother’s statement was corroborative evidence in the sense that it was, “evidence independent of the person whose evidence is sought to be corroborated”.  They rely on the case of Minister for Immigration and Citizenship v SZNSP[4] and point out that in that case the Full Court stated the manner in which the Tribunal could reject corroborative evidence.  The Court stated:

   “When a decision-maker has conducted a hearing of the kind which is conducted by the RRT and has heard the applicant, and has reached the tentative conclusion that the applicant’s claims have been fabricated, the decision-maker is entitled in our opinion to reject evidence which would, if accepted, have corroborated the applicant’s account.  That does not mean that any evidence of corroboration could be rejected.  It would depend upon the nature, content and quality of the corroborative evidence before a decision-maker could determine to reject it out of hand.[5]”

   [4] (2010) 184 FCR 485.

   [5] Page 491 at [36].

2. Somewhat ironically, the Respondent relies on the same passage from the case of SZNSP (supra) to argue that the Tribunal was not acting illogically or irrationally in the decision that it made. 

3. The Respondent submits that a decision will only be regarded by a Court as being illogical or irrational when no rational or logical decision-maker could have arrived at the decision with regard to the same evidence.  Where reasonable minds could differ about such reason, it cannot be said to be illogical or irrational. 

4. Counsel for the Respondent points out that illogicality and irrationality will not amount to jurisdictional error in every case and that it must be such as to affect the decision.  He submits further that the approach to be taken by a Court in assessing a claim of irrationality and illogicality is to ask whether it was open to the decision-maker to engage in the process of reasoning in which he or she engaged, and to make the findings he or she made on the material before him or her.

5. The Respondent points out that this is not a case in which the credibility of the Applicant turned on a single finding or factor that was against the Applicant.  Instead, the Tribunal found against the Applicant on his credibility cumulatively on a number of findings and factors, and that to succeed on this ground, the Applicant must demonstrate that the Tribunal’s ultimate conclusion on credibility, based on all of the factors, was not one that a rational or logical decision-maker could have reached.  The Respondent further points out that the Applicant’s complaint is only with respect the reasoning of the Tribunal on one of the factors relied upon by the Tribunal and with respect to an alleged failure to give weight to evidence supporting the Applicant’s claims. 

6. The Respondent further submits that not every lapse in logic will give rise to jurisdictional error and refer to the case of SZMDS[6] per Crennan and Bell JJ at para [135].  In the present case, even if there were irrationality or illogicality in the Tribunal’s reasoning that the Applicant complains of (which the Respondents do not concede) the Respondents submit that there was nevertheless a sufficient basis for the Tribunal to reach the conclusion that it did as to the Applicant’s credibility. 

   [6]   Minister for Immigration and Citizenship v SZMDS & Anor [2010] HCA 16.

7. The Respondent points to a number of findings and factors that the Applicant does not challenge and that were relied upon by the Tribunal to find a lack of credibility on the part of the Applicant.  They are as follows:

   ·Firstly, the existence and preparedness of the Applicant to use false identities giving rise to grave concerns by the Tribunal as to the Applicant’s credibility in all the circumstances;

   ·The Applicant’s failure to provide the documentary evidence requested, despite multiple adjournments, which led the Tribunal to conclude that the documentary evidence did not exist;

   ·The Applicant’s conduct which was inconsistent with a person holding a genuine fear of harm with regard to the Applicant’s three months spent in Albania after his release from detention and his return to Albania before his departure for Australia; and

   ·The fact that the motivation of Albana’s family to harm the Applicant is likely to have lapsed or at least reduced, following her marriage to another man with whom she had had a child.

8. I note the very cogent and logical findings of the Applicant’s lack of credibility as detailed in paras [39] – [48] of the Tribunal’s reasons.  In particular, I note that in para [47] of the Tribunal’s reasons, it says:

   “I have also considered the evidence in the statement of the applicant’s mother.  I have noted that it reiterates aspects of the applicant’s claims.  I do not consider that the statement carries sufficient weight, of itself or in corroboration of the applicant’s evidence, to allay the cumulative concerns I have recounted above.”

   The Tribunal clearly considered that the mother’s statement simply re-stated the Applicant’s own claims.

9. The Respondent submits that to be helpful to the Applicant, the mother’s statement should have included additional probative evidence, rather than simply re-stating what the Applicant had said.

10. In relation to the extract from the case of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[7] referred to by the Applicant, and as detailed earlier in these reasons, the Respondent submits that the Tribunal here clearly considered the evidence from the Applicant’s mother.  The Tribunal also looked at the nature, content and quality of this further evidence.  It is to be noted that the further evidence is not from an independent person but from the Applicant’s mother. 

    [7] (2006) 228 CLR 152.

11. In my opinion, the Tribunal gave the evidence from the Applicant’s mother such weight as the Tribunal considered appropriate, as it was obliged to do.  There is, in my view, no substance to this complaint, as a proper interpretation of the Tribunal’s reasoning shows that weight was given to the mother’s statement, but the weight that the Tribunal gave was not sufficient to overcome the Tribunal’s other concerns regarding the Applicant’s credibility.  It cannot be said in this case that the Tribunal gave no weight to the evidence. 

12. In my opinion, there was no jurisdictional error made by the Tribunal and ground one should be dismissed.

Ground two

1. In this matter, the Applicant complains that he was denied procedural fairness by the Tribunal’s alleged failure to put him on notice of its concerns regarding his claims of a lengthy detention in Albania.  For the reasons that follow, I consider that this ground is without merit. 

2. On a number of occasions during the Tribunal hearing, the Tribunal expressed its concerns in relation to the plausibility of the Applicant’s claims and his credibility in general.  At page 22 of the transcript, the Tribunal member commented:

   “When I see evidence that people have used false identities to enter Australia, it makes me think whether I should believe anything you are saying to me.  So your credibility is very much an issue. … I do not accept that you are credible, because you have used false identities in the past.”

3. In my view, with such statements the Tribunal properly put the Applicant on notice that all his claims and evidence were in issue.  The Tribunal gave the Applicant opportunities to address those concerns at the hearing, as well as after the hearing was concluded. 

4. In my view, the Applicant was clearly on notice of the determinative issues on the review, namely the credibility of his claims and evidence. In these circumstances, I do not consider that the Tribunal breached s.425(1) of the Act.

5. The Respondent submits that the Tribunal’s, “subjective appraisals, thought processes or determinations”, as to the Applicant’s evidence regarding the plausibility of his detention were not “information” that the Tribunal was required to give the Applicant under s.425A of the Act. The Respondent submits that as a result even if the Tribunal did not inform the Applicant of its, “prospective reasoning process” regarding this evidence, that would not amount to an error.

6. The Respondent submits that to the extent that particular 2.4 of ground two puts forward a claim that there was an error as a result of the Tribunal relying on the country information where it had not been previously provided to the Applicant, the Tribunal was not under an obligation to put to the Applicant information that is not specifically about the Applicant, including country information.  I agree with this aspect of the Respondent’s submission and find that ground two is without merit.

Conclusions

1. In the circumstances of no jurisdictional error being found, the application for judicial review should be dismissed. 

2. I make the orders to be found at the beginning of these reasons.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date: 30 April 2015