AZAFG v Minister for Immigration
[2015] FCCA 1134
•4 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AZAFG v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1134 |
| Catchwords: MIGRATION – Judicial review – Independent protection assessment – claim for refugee status – whether decision unreasonable, illogical or irrational – allegation of lack of procedural fairness – allegation of lack of intelligibility in decision-making process – no jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth) ss.5AA; 46A; 476 |
| Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14 AZABM v Minister for Immigration & Citizenship [2012] FCA 860 Aala (2000) 204 CLR 82 VEAL v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88 Minister for Immigration & Multicultural Affairs: ex-parte Lam (2003) 195 ALR 502 Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | AZAFG |
| First Respondent: | MINISTER FOR IMMIGRATION BORDER PROTECTION |
| Second Respondent: | INDEPENDENT PROTECTION ASSESSMENT REVIEWER ROGER FORDHAM |
| File Number: | ADG290 of 2014 |
| Judgment of: | Judge Brown |
| Hearing date: | 23 March 2015 |
| Date of Last Submission: | 23 March 2015 |
| Delivered at: | Adelaide |
| Delivered on: | 4 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr O'Leary |
| Solicitors for the Applicant: | Paula Denise Stirling |
| Counsel for the Respondents: | Mr d'Assumpcao |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 1 August 2014 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG290 of 2014
| AZAFG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| INDEPENDENT PROTECTION ASSESSMENT REVIEWER ROGER FORDHAM |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment should be read in conjunction with the reasons provided in the case of AZAFF. To all intents and purposes, the reasons are identical as they deal with the same factual situation and legal contentions.
The applications were listed for hearing together with Mr O’Leary of counsel appearing for both AZAFF and AZAFG and with Mr d’Assumpcao appearing for the Minister for Immigration & Border Protection “the Minister”.
AZAFG “the applicant” seeks the issue of constitutional writs to quash a recommendation of an independent protection assessor, Mr Fordham made on 12 March 2012.
Mr Fordham, “the IPA” recommended to the Minister that the applicant not be recognised as a person to whom Australia holds protection obligations pursuant to the Refugees Convention.
AZAFF and AZAFG are sisters born on 5 November 1997 and 30 November 2001 respectively. Accordingly both applicants are minors. They have instituted these proceedings through their litigation guardian, Sister Mary Symonds, a member of the Order of the Sisters of Mercy.
The applicants arrived together in Australia, at Christmas Island, by boat in March of 2011. Each claimed to have no travel documents or other form of identification, when landed at Christmas Island.
On arrival, both the applicant and AZAFF were interviewed by a delegate of the Minister. They claimed to be homeless orphans, who had lived on the streets of various Vietnamese cities with together. The applicant further claimed to have supported herself by collecting cans and bottles, which she sold for small sums of money, which enabled her to buy bread.
In a statement provided to the Department in July of 2011, the applicant indicated that she feared returning to Vietnam because she had been chased and beaten by the police there, who had harassed her because she was a homeless child. As such, the applicant claimed to be at real risk of suffering harm, at the hands of police, if returned to Vietnam.
These proceedings arise because the applicant claims that Australia owes her protection obligations pursuant to the Refugees Convention, to which Australia is a signatory. Essentially, the applicant claims that she faces a real chance of suffering harm because she is a member of a group of persons, who are at risk of persecution in Vietnam, at the hands of the authorities there, namely homeless street children in Vietnam and/or impoverished children in Vietnam.
The applicant’s claim for refugee status depends on her satisfying the definition of “refugee”, provided by Article 1A(2) of the United Nations 1951 Convention and 1967 Protocol Relating to the Status of Refugees (“Refugees Convention”) which provides that a “refugee” is a person who:
“… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
As the applicant did not have a valid visa, when she arrived at Christmas Island, she is deemed to be an unauthorised marine arrival within the terms of section 5AA of the Migration Act 1958 (Cth) “the Act”.
One of the consequences of being an unlawful maritime arrival is that such persons are excluded from applying for protection visas, by orthodox channels, to enable them to remain in Australia pursuant to the provisions of the Refugee Convention.
However, as Australia obtains obligations under the Refugees Convention, pursuant to section 46A(2) of the Act, the Minister is invested with a discretion to grant an unauthorised marine arrival if the Minister “thinks that it is in the public interest to do so …”.
As a result of this legislative discretion, invested in the Minister, an administrative protocol has been devised by the Department, which is designed to provide specific advice to the Minister as to whether Australia’s protection obligations, arising under the Refugees Convention, have been engaged in the case of each person who arrives in Australian territory, at an excised offshore place (such as Christmas Island) and claims to be a refugee.
The protocol envisages two distinct and independent steps. Firstly, a delegate of the Minister considers any claim for refugee status pursuant to a process known as Protection Obligations Determination “the POD”.
Thereafter, there would be a process known as an independent protection assessment “the IPA”. This being an independent and arm-length review of any decision made by Departmental officers.
On 15 September 2011, a delegate of the Minister was not satisfied that the applicant was not a person to whom Australia owed protection obligations. As a consequence of this, the applicant sought an IPA, which was conducted by the second respondent, Mr Fordham.
As indicated above, Mr Fordham did not accept that the applicant was a refugee within terms of the Refugees Convention and recommended as such to the Minister. As a consequence of Mr Fordham’s recommendation, the applicant has commenced proceedings in this court pursuant to section 476 of the Act, seeking a judicial review of Mr Fordham’s decision.
Her application was lodged on 1 August 2014 and delineates three grounds on which it should be declared that the decision was not made in accordance with law and therefore the Minister should be restrained from relying upon it. These grounds are as follows:
“1. The second respondent did not base his decision on findings or inferences of fact supported by probative evidence or logical grounds and/or afford the applicant procedural fairness in that:
a. The second respondent had no probative evidence or logical grounds to support his conclusion that the applicant was educated (which conclusion was material to his rejection of the applicant’s claim that she was a street child);
b. In so far as the second respondent may have relied on his own assessment of the applicant’s reading, writing or oral skills in the Vietnamese language, and/or her appearance and demeanour while conversing in Vietnamese, such assessment did not constitute probative evidence or logical grounds. Any such assessment should have been the subject of expert evidence.
2. The second respondent failed to afford the applicant procedural fairness in that:
a. The second respondent did not disclose to the applicant the evidence support an inference that the applicant was educated (which conclusion was material to his rejection of the applicant’s claim that she was a street child).
b. In so far as the second respondent may have relied on his own assessment (or the assessment of another person) of the applicant’s reading, writing or oral skills in the Vietnamese language, and/or her appearance and demeanour while conversing in Vietnamese, the second respondent did not disclose his qualifications (or the qualifications of the other person) to make such an assessment.
3. The second respondent’s decision and findings or inferences of fact were unreasonable in that:
a. The second respondent’s conclusion that the applicant was educated (which conclusion was material to his rejection of the applicant’s claim that she was a street child) lacked an evident and intelligible justification.
b. In so far as the second respondent may have relied on his own assessment of the applicant’s reading, writing or oral skills in the Vietnamese language, and/or her appearance and demeanour while conversing in Vietnamese, such assessment did not constitute a reasonable process of inquiry for the purposes of ss36 and 46A of the Migration Act 1958 (Cth).”
During the course of the IPA, Mr Fordham questioned the applicant in respect of her account of her life in Vietnam as a homeless and impoverished street child. Ultimately, Mr Fordham rejected much of the applicant’s account, as he did not believe her to be a credible witness.
In particular, Mr Fordham concluded that the applicant did not respond to him in the manner of an uneducated and illiterate minor. As such, he concluded that the applicant had not been abandoned by her parents; was not a street child; but rather was a person who had been educated and cared for, if not by her own parents, but by some responsible person, who had paid for the applicants travel, by boat, to Christmas Island.
Part of this assessment, by Mr Fordham, consisted of him assessing the applicant’s writing in Vietnamese, which Mr Fordham assessed to be that of an educated person, rather than an impoverished and itinerant one.
Mr O’Leary submits that in making this assessment Mr Fordham fell into jurisdictional error as there was no probative evidence to support the conclusion reached by him.
Rather, if this was to be the basis of a finding adverse to the applicant, it is submitted that the issue should have been the subject of independent and expert assessment, rather than that conducted by Mr Fordham himself, during the IPA, without prior reference to the applicant for comment.
As a consequence of this omission, Mr O’Leary submits that Mr Fordham denied the applicant procedural fairness. In particular, it is asserted that the applicant was not given an opportunity to comment upon Mr Fordham’s alleged linguistic expertise, in the Vietnamese language or comment in respect of this process.
In addition, Mr O’Leary submits that Mr Fordham’s conclusion that the applicant was educated and therefore not a street child was one which was reached without evidence or other intelligible justification. As such, he submits that it is inherently unreasonable and that therefore Mr Fordham did not properly exercise the jurisdiction conferred upon him.
The nature of the ministerial discretion, contained in section 46A(2) and the constraints on its exercise, were considered by the High Court in Plaintiff M61/2010E v Commonwealth of Australia.[1] The High Court concluded that those making inquiries, on which the Minister would act, were bound to act according to law and afford procedural fairness to the persons potentially affected by the Minister’s decisions. The applicant is clearly within the category of such a person, as the Minister will act in accordance with Mr Fordham’s recommendations.
[1] See Plaintiff M61/2010E v Commonwealth of Australia (2010) 272 ALR 14
Accordingly, as the applicant is seeking an injunction restraining the first respondent from acting upon the recommendation of Mr Fordham, the original jurisdiction of the High Court is engaged. Pursuant to section 476 of the Act, the Federal Circuit Court has been conferred with this original jurisdiction of the High Court, in relation to migration decisions. There is no dispute between the parties in this case that the Federal Circuit Court has jurisdiction to deal with the application herein or that it has not been brought within the prescribed timeframe.
In exercising its judicial review jurisdiction, pursuant to section 476 of the Act, it is the function of the court to consider whether Mr Fordham’s recommendation reveals any error of law, including any denial of procedural fairness to the applicant, in its reasoning or in the procedures followed before its making. This function does not comprise any consideration of the merits of the applicant’s claim to be entitled to protection in Australia pursuant to the Refugee’s Convention.
The IPA
The applicant stated that she was born in Quangbinh Vietnam and was Catholic by religion. She claimed that her father was a poor fisherman and she had been abandoned by her parents, when she was a child. As a consequence of this abandonment, she claimed to have been evicted, with her sister, from her poor family hut by local villagers, who were hostile towards Catholics.
Thereafter, she and her sister had walked to Saigon, then to Ba Ria and eventually to Vung Tau. During this itinerant existence, she and her sister had slept in public places and begged for food. From time to time, they had collected empty bottles and cans, which they had sold to buy bread. In both Ba Ria and Saigon, the applicant and her sister had slept in parks or on the street. They were often harassed by police and on one occasion, they had been severely beaten by police.
In Vung Tau, the applicant and her sister had reached an area where there were some boats. They had boarded one of the boats to ask for food. After having eaten a bowl of rice, the applicant and her sister fell asleep. Once they awoke, they found that the ship had put to sea. Implicit in this statement was the assertion that the applicant had not planned to come to Australia, when she boarded the boat in question.
Mr Fordham interviewed the applicant about these various claims. Under the heading claims and evidence, he made the following observations:
·both applicants appeared comfortable and responded well to questions and were confident when challenged;
·as Saigon, Vung Tau and Ba Ria had significant Catholic populations, of around ten percent, he was surprised that the applicant’s Catholicism put she and her sister at risk;
·he was surprised that the applicant had not indicated that she and her sister had moved and mixed with other street children for protection;
·in response, the applicant indicated that she and her sister had been helped by groups of university students from time to time;
·Mr Fordham suggested to the applicant that education in Vietnam is both compulsory and free. In this context, he asked the applicant if her parents had ever tried to take her to school. The applicant indicated that she could not remember.
·in this context, Mr Fordham described the following episode, which appears to be central both to the adverse findings of credit made by Mr Fordham and the grounds of review in this case:
“I pointed to a piece of writing in Vietnamese on the DIAC file which I had assumed was written by the Claimant. I put to them that the writing appeared to be complete and correct even in the form of accent marks on it. I said that this indicated to me a reasonable level of learning rather than a few meetings with university students.
She said that it was as a result from the university students who helped from time to time.
At this point the younger sister pointed out that the work I was referring to was, in fact, hers rather than that of her sister.
I pointed out that was impressive. She then said that following arrival volunteers had provided some tuition. She then clarified that the volunteers taught English.
I put to her that what had impressed me was her Vietnamese writing.
I put to the advisor that the problems I had with the matter was that the independent information before me could lead me to find that a person practicing Catholicism at a regular level would not face persecution. Secondly, the level of written language and presentation of the minors indicated a greater level of learning than a few casual lessons in the street.”[2]
[2] See casebook at page 120 [88]-[93]
Following the interview, Mr Fordham arranged for further information, which he considered adverse to the applicant, to be put formally to her for comment. This information included the following matters:
·Mr Fordham was dubious that the applicant had been a street child from an early age;
·he was dubious that the applicant had been able to travel about 1,000km to Vung Tau without any assistance and survive, given her age;
·there was independent information to the effect that children had been put on the boat, on which the applicant had arrived at Christmas Island, by their parents, who had paid a people smuggler to this effect;
·the applicant and her sister appeared to have a healthy and confident appearance, which belied their purported experience of having lived on the street for the past six to eight years;
·country information available to Mr Fordham indicated that Catholics were not at risk of persecution in Vietnam.[3]
[3] See casebook at pages 94-103
The applicant’s advisor formally responded to these matters in a letter dated 24 February 2012. The applicant’s advisor objected to Mr Fordham purportedly making his own subjective assessment of how street children from Vietnam would appear. In addition, it was submitted that there was other country information available, which indicated that Catholics were ill-treated in Vietnam.
Mr Fordham found that the applicant and her sister both spoke Vietnamese fluently and had no difficulty conversing with him through a Vietnamese interpreter. It was accepted that she was a citizen of Vietnam and was a Catholic by faith. It was also accepted that both the applicant and AZAFF were minors. However, Mr Fordham did not accept that the applicant and her sister had been street children for the past six or seven years.
In particular, Mr Fordham found that the applicant’s responses (and those of her sister) to his questions were not the responses of uneducated and illiterate minors. Rather, he considered their responses to be intelligent, and well argued with polite confidence.
In this context, Mr Fordham rejected the applicant’s claim that she and her sister, at the age of eight and five respectively, had been able to cope, on the street, with no education, for a number of years. After which, they had been able to travel a significant distance in Vietnam, before boarding a boat with thirty other people, who also coincidentally claimed to come from the same region and like the applicant herself, many of them claiming to be homeless street children.
Mr Fordham summarised his view of this evidence as follows:
“This set of claims, of itself if implausible as it suggests that two, extremely young children could travel from one end of the country to the other, surviving with no outside support for the next six or seven years and then suddenly find themselves aboard a boat smuggling many other minors, from the same region, where they paid no passage and all purely by coincidence. The nature of this account is implausible but, other evidence supports the finding that this is implausible.”[4]
[4] See casebook at page 133 at [189]
As a consequence of these various matters, Mr Fordham made the following findings of fact:
·the applicant and her sister had not been abandoned and were not street children;
·rather the applicant and her sister were educated individuals, who had previously been cared for by a responsible guardian, who had paid for the children’s passage to Australia;
·as such, Mr Fordham rejected the applicant’s claim that she had been abandoned and orphaned, at an early age. In addition, he rejected the claim that the applicant and her sister had been evicted from her home because of their Catholicism.
·in this context, Mr Fordham rejected the applicant’s account that she was a member of a particular social group of impoverished homeless street children in Vietnam and accordingly was not at risk of police ill-treatment, if she returned to that country.
Other claims relating to the fears of persecution on the basis of the applicant’s Catholicism and that she might be targeted on her return to Vietnam, as a failed asylum seeker, were also rejected by Mr Fordham. This was the basis of Mr Fordham’s recommendation that the applicant not be recognised as a person to whom Australia owed protection obligations under the Refugee’s Convention.
Ground One
It was clearly Mr Fordham’s finding that the applicant was not an uneducated street child, as she contended. It is contended on her behalf that this finding was based on no probative evidence and occurred against a background of procedural unfairness because it was not supported by independent expert evidence but rather was based on Mr Fordham’s subjective assessment.
Mr O’Leary, counsel for the applicant, asserts that Mr Fordham’s conclusion that the applicant had received some form of education and was therefore not an illiterate street child was not supported by probative evidence.
Necessarily, it is the underpinning of this submission that this conclusion was tainted by illogicality, unreasonableness or irrationality. In particular, it is submitted that the conclusion reached by Mr Fordham was based on unsupported assumptions, on his part, which were unexplained to the applicant and her representative.
These criticisms are supported by the following contentions:
·firstly, it is implicit in the conclusion reached by Mr Fordham that he had expertise in assessing Vietnamese language in its written form, but this is not revealed in the decision in question;
·secondly, he could evaluate the extent of learning disclosed from written Vietnamese. Again a matter not disclosed in the relevant reasons;
·thirdly, the sample of writing, which was provided by the applicant, was sufficient to enable him to evaluate the level of education of the person who wrote it; and
·finally, Mr Fordham had sufficient expertise to enable him to evaluate the sample in question.
Mr O’Leary submits that Mr Fordham provided no explanation of any of these assumptions. Accordingly, it is submitted that the reasoning process in which he engaged, was an irrational or illogical one.
In this regard, Mr O’Leary relies on what was said by Crennan & Bell JJ in Minister for Immigration & Citizenship v SZMDS:[5]
“…"illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.”
[5] See Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [130]
In this context, Mr O’Leary categorises Mr Fordham’s decision making process as being illogical because it is one which has inherently taken place in the intellectual working of his own mind. As such, there is no obvious stream of reasoning to which either this court or the applicant herself can have regard in order to understand why Mr Fordham reached the conclusion, which he did. Essentially, it is submitted that there is no proper foundation for the conclusion which Mr Fordham reached.
In this context, Mr O’Leary places emphasis on what was said by the Full Court of the Federal Court (Allsop CJ, Robertson and Mortimer JJ) in Minister for Immigration & Border Protection v Singh[6] where a distinction was made between unreasonableness in respect of the outcome of the exercise of power under review and an examination of the reasoning process itself of the decision-maker concerned and whether that process itself was unreasonable. Both of which related to the court’s jurisdiction to oversight administrative decision-makers.
[6] Minister for Immigration & Border Protection v Singh (2014) 308 ALR 280 at 290
This distinction was also noted by the High Court in Minister for Immigration & Citizenship v Li[7] where jurisdictional error arising from unreasonableness can be identified from the explicit reasoning of the decision-maker concerned, where, for example, the decision-maker reaches a conclusion which is evidently illogical (process). And, on the other hand, where the court cannot identify how the conclusion was reached (outcome). Therefore there is jurisdictional error because the supervising court is unable to see any evident and intelligible justification for the decision reached.
[7] Minister for Immigration & Citizenship v Li (2013) 297 ALR 225
Mr O’Leary would, I think, characterise Mr Fordham’s decision in the latter category. He submits that the court and indeed the parties themselves are unable to see the intelligible path by which Mr Fordham concluded that the handwriting concerned was that of a well-educated person, as his reasoning occurred within the confines of Mr Fordham’s mind.
It is Mr O’Leary’s submission that this lack of a logical connection between the evidence and Mr Fordham’s conclusion that the applicant was an educated and previously well cared for child is heightened given the lack of independent and expert evidence regarding the applicant’s level of literacy.
As Hayne J noted in Minister for Immigration & Multicultural Affairs v Jia Legeng[8] specialist tribunals and decision-makers accumulate a great deal of generic information in respect of the type of matters, which they are called upon to determine.
[8] Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 563 [180]
In the refugee field this information, in large part, relates to the conditions in the various countries from which claimants for asylum are said to have fled. Such information may be of critical importance in determining how a particular individual’s claim will be determined. In such circumstances, as Hayne J noted the rules of procedural fairness must be applied appropriately.
In this context, Mr O’Leary submits that there has been a significant level of unfairness accorded to his client because she has not been told firstly of Mr Fordham’s expertise to assess her or her sister’s literacy skills in written Vietnamese and secondly, she was not aware that this aspect of the inquiry was likely to be crucial in the finding of fact leading to the adverse conclusion that she was not a disadvantaged street child.
To support his contention, Mr O’Leary relies on what was said by Kiefel J in Rodriguez v Telstra Corporation Limited.[9] The case concerned an administrative tribunal’s decision regarding the origin of a psychiatric injury relevant to the assessment of workplace compensation. In this context, Her Honours said as follows:
“The more flexible procedure provided for does not justify decisions being made without a basis in evidence having probative force…The drawing of an inference without evidence is an error of law…Similarly error is shown when the Tribunal bases its conclusion on its own view of a matter which requires evidence.
It may be said that expert evidence is sometimes over-utilised and is called in situations where an arbiter of fact is in a position to determine the matter for itself. Sometimes all that is necessary is for a method or process to be explained, so that the Court or Tribunal can then apply it to the facts it finds. On the other hand, there are cases where a whole question is, in effect, relegated to experts to give evidence upon it. This was such a case. The Tribunal was not put in a position where it could simply draw its own inferences. In an area which required an understanding of a disorder it could only receive opinions, have the bases for them explained if they differed and apply logic to determine which were to be accepted.”
[9] Rodriguez v Telstra Corporation Limited [2012] FCA 30
Mr O’Leary submits that expertise in assessing proficiency in a foreign language is clearly a matter requiring specialist skills. As such, it is not analogous to generic country information, which an assessor such as Mr Fordham is likely to accumulate whilst discharging his functions to provide advice to the Minister.
In support of his submission, Mr O’Leary relies on a variety of cases in which evidence as to the causes of a truck jack-knifing; comparisons of handwriting; and the identification of voices speaking in a foreign language, from an audio tape; were characterised as matter requiring expertise to express.[10]
[10] See Clark v Ryan (1960) 103 CLR 486; R v Bonthyon (1984) 38 SASR 45; and R v Leung & Wong [1999] NSWCCA 287
Mr d’Assumpcao, counsel for the Minister contends that Mr Fordham, in making his overall assessment of the applicant and her credibility, was not performing a task requiring specific expertise. Rather he drew a number of conclusions from the evidence available to him, which led him to disbelieve the applicant’s account that she had lived on the streets of Vietnam for most of her life. This ultimate conclusion did not depend solely on Mr Fordham’s view of the handwriting of the applicant’s sister.
In particular, the sources of evidence, apart from the handwriting issue, which led Mr Fordham to his conclusion included the following:
·The confidence of each of the applicants during the interview process;
·The content of their answers to questions put to them, which Mr Fordham assessed as being intelligent and well-argued and politely put;
·The implausibility of the claim of having walked to Saigon and then accidentally boarding a boat coming to Australia;
·The physical appearance of the applicant in circumstances where she claimed to have been living an impoverished life for many years;
·Country information regarding people smuggling.
In these circumstances, Mr d’Assumpcao submits that the finding of fact, about the nature of the applicant’s sister’s handwriting, is to be characterised as a minor matter of credit, which arose because Mr Fordham did not accept that a person, who was in the situation as claimed by the applicant and her sister, would be able to write in such a manner.
Essentially, it is the applicant’s characterisation of her situation, which Mr Fordham disbelieved, which was central to his finding, not the issue of the handwriting. As such, it is not a matter requiring specific expertise or training nor is Mr Fordham’s conclusion lacking in any evident and intelligible justification. To the contrary, it is submitted that there any many sources of such intelligible justification.
In this context, it is submitted that Mr Fordham’s finding that as to the credibility of the applicant cannot be characterised as being irrational or illogical as it did not have a single origin in the evidence but many. As such, even if illogicality attached to one strand of the reasoning – the handwriting issue – there were other alternative streams of reasoning available to justify the ultimate conclusion reached by him.
In this context, what was said by Besanko J in AZABM v Minister for Immigration & Citizenship[11] appears to be apposite. He rejected the proposition that one illogical stream of reasoning necessarily rendered the entirety of a relevant decision-maker’s irrational. He said as follows:
“There were five reasons given by the Tribunal in support of its conclusion that the appellant did not have a genuine fear of persecution. Even if one of those reasons lacked substance, it is not possible to say, having regard to the other reasons, that the Tribunal’s conclusion was irrational or illogical.”
[11] AZABM v Minister for Immigration & Citizenship [2012] FCA 860 at [38]
Of course, the centrality or otherwise of one flawed piece of reason to the ultimate conclusion reached must be examined on a case by case basis to determine whether there has been a jurisdictional failure by the Tribunal concerned. In this context, Mr O’Leary relies on what was said by Gleeson CJ in Re Refugee Review Tribunal and Anor; Ex parte Aala:[12]
“Decisions as to credibility are often based on impression, and an unfavourable view taken upon an otherwise minor issue may be decisive. As a result of the conduct of the Tribunal, the prosecutor was deprived of a fair opportunity of presenting his case, and of correcting an erroneous and factual assumption relevant to his credibility.”
[12] Re Refugee Review Tribunal and Anor; Ex parte Aala (2000) 204 CLR 82 at [4]
In my view, reading Mr Fordham’s extensive reasons as a whole, it cannot be said that the handwriting issue, although minor in the scheme of things, was decisive in reaching the decision which he did. The decisive factor was that Mr Fordham regarded the applicant’s entire account of having been homeless and supported from a young age and then unwittingly boarding a boat leaving for Australia to be inherently implausible.
In any event, the applicant was presented with an opportunity to correct any potentially erroneous impression arising from the interview, including the handwriting aspect of it. Mr Fordham wrote to the applicant’s advisor, following interview, advising of his concern that the applicant’s account of her life in Vietnam and the circumstances in which she left there to be implausible.
These concerns were buttressed by Mr Fordham’s impressions of the applicant as being healthy and confident in appearance, which he did not view as being consistent with how he would expect an ill-educated child, who had lived on the street for six to eight years to appear.[13] It is, I think clear, that the handwriting issue was not central to Mr Fordham’s ultimate finding and, in any event, the applicant was given an opportunity to comment on it. In my view, ground one is not made out.
[13] See casebook at page 96
In my view, Mr Fordham’s decision in this matter cannot be regarded as being vitiated by unreasonableness either in the sense of the conclusion reached by him or the manner in which he reached it, a part of which included an examination of the piece of handwriting in question. Mr Fordham considered many aspects of the applicant’s claims, to which the handwriting became incidental. In my view what was said by French CJ in Li is apposite to this:
“The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgement with which a court disagrees even though that judgement is rationally open to the decision-maker;”[14]
[14] Li (supra) jat [30]
To my mind it was rationally open to Mr Fordham to conclude that the applicant was not an ill-educated person. It might be sight that he gave too much consideration to some aspects of the evidence concerning this issue, but, in my view, that fell within his decision-making prerogative.
Ground Two
This ground is closely related to ground one. The applicant contends that she was denied procedural fairness because she was not able to comment upon or test Mr Fordham’s purported expertise in assessing her proficiency in the Vietnamese language.
As indicated above, I do not regard this issue as being greatly influential in shaping Mr Fordham’s ultimate conclusions and recommendation. In any event, the applicant was given an opportunity to comment on the handwriting issue during the course of the actual hearing. It was not a matter which arose abstrusely during the interview process and about which Mr Fordham took private note for his later utilisation in the assessment of the application.
To the contrary, Mr Fordham explicitly raised the piece of writing in question with both applicants, as soon as it came to light. He said he was impressed by it and gave the reason why – it was correctly accented. He also pointed out to the applicant that he did not think it was consistent with the efforts of a person who claimed to have little or no education apart from some rudimentary lessons provided by university students in the street.[15]
[15] See casebook at page 120 [88] – [92]
As such, I do not think that the issue was not raised properly with the applicant. To the contrary, Mr Fordham raised the issue as soon as it occurred to him. More significantly, he indicated to the applicant what potential influence the issue may have in his overall assessment of her case, when he said:
“… the level of written language and presentation of the minors indicated a greater level of learning than a few casual lessons in the street.”[16]
[16] Ibid at [93]
After the issue of handwriting was raised, Mr Fordham offered the applicant the opportunity of a break, so that she could discuss the matter with her advisor privately. In this context, it was later submitted that the applicant who acknowledged the writing to be hers was a keen learner with a sharp brain.
Accordingly, it is implicit that the applicant did not dispute either that the writing in question originated with a person with whom she was associated or that it was written with a certain level of proficiency. This reinforces my view that the issue cannot be characterised as an ambush or that Mr Fordham’s view of the writing is necessarily either spurious or inherently illogical.
In VEAL v Minister for Immigration & Multicultural & Indigenous Affairs[17] the High Court pointed out that considerations of fairness dictate that a person whose interests are likely to be affected by a particular decision should be given an opportunity to deal with the adverse information. In my view, the applicant was given such an opportunity, which was adequate in the circumstances prevailing. As such the process was not inherently unfair to her.
[17] VEAL v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88 at [19]
In Re Minister for Immigration & Multicultural Affairs: ex-parte Lam[18] the High Court (McHugh & Gummow JJ) observed that
“the particular requirements of compliance with the rules of natural justice will depend upon the circumstances. Different procedures may be required, even of the same repository of power, from one situation to the next …”
[18] See Re Minister for Immigration & Multicultural Affairs: ex-parte Lam (2003) 195 ALR 502 at [48]
In the same case, Gleeson CJ spoke of a concept he entitled “practical injustice”. He said as follows:
“Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”
The issue of the applicant and her sister’s proficiency in written Vietnamese occurred during the process of the hearing. It was not a matter which can be characterised as an ambush. Mr Fordham indicated what he thought the writing indicated to him.
This occurred in the context of him having indicated to the applicant he did not believe much of her story about how she had come from what she said was her original family home to Australia. The applicant was given an opportunity to comment and was aware of the context in which the writing might be relevant. I can find no merit to ground two.
Ground Three
Again, there is a significant overlap between this ground and the preceding two grounds. It is asserted on behalf of the applicant that Mr Fordham’s finding that she was an educated person and therefore could not be the subject of persecution on the basis that she was an uneducated street child is an unreasonable one.
I accept that it is an inherent requirement of the exercise of the power conferred on Mr Fordham that it be exercised reasonably and if it was not so exercised, it amounts to a failure of jurisdiction. In Minister for Immigration & Citizenship v Li[20] Gageler J expressed this principle as follows:
“Implication of reasonableness as a condition of the exercise of a discretionary power conferred by statute is no different from implication of reasonableness as a condition of an opinion or state of satisfaction required by statute as a prerequisite to an exercise of a statutory power or performance of a statutory duty. Each is a manifestation of the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject-matter, scope and purposes of the statute.” Citations removed
[20] Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [90]
Again in Li, Gageler J considered that the authority conferred on a decision-maker by statute was subject to the deeply rooted common law principle that such authority be exercised both according to law and reason. In the case, under the heading Judging Unreasonableness His Honour said as follows:
“Review by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’.”[21]
[21] Li (supra) at 256 [105]
Essentially, an administrative decision maker is required to provide an intelligible and reasonable explanation as to why a particular decision has been reached. In my view, Mr Fordham did provide such an intelligible and reasoned explanation as to why he concluded as he did. His conclusion was essentially based on his finding that the applicant’s account of how she came from her place of birth to Christmas Island, via Saigon and other cities in Vietnam was inherently implausible.
This conclusion was not based solely or indeed significantly on the issue of the applicant’s sister’s handwriting sample. It was based on the applicant’s demeanour and information about Vietnam and people smugglers who operated there, which was available to Mr Fordham.
He did not accept that a child of the applicant’s age and presentation could have functioned, without adult support, for many years on the streets of Vietnam. Further, he regarded the applicant’s account of how she boarded the boat in question to be inherently implausible. In my view, these are findings of fact, which fell to Mr Fordham to make, within the exercise of the jurisdiction conferred upon him.
In my view, an assessment of credibility is a fact finding exercise which falls within jurisdiction. As McHugh J observed the making of findings of fact on the credibility of any witness is a function of a primary decision maker “par excellence”.[22]
[22] See Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]
In my view, in all the circumstances of this case, it cannot be said that Mr Fordham’s conclusion that the applicant’s account lacked credibility is one which is lacking in either transparency – given the letter in which the applicant was asked to comment about Mr Fordham’s views of her presentation; or intelligibility, given the various reasons Mr Fordham provided for not accepting the applicant’s account of her life and circumstances in Vietnam.
This is not a merits review and accordingly my authority to intervene is limited to jurisdictional error. As Gleeson CJ and McHugh J have pointed out, very often the characterisation of some other person’s reasons as illogical or unreasonable is liable to be no more than an emphatic way of disagreeing with those reasons.[23] I am not entitled to substitute my own findings for those of the Tribunal, if the conclusion reached by it were rationally open to it.
[23] See Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40] per Gleeson CJ and McHugh J
I am also well aware that I am not entitled to review the reasons of the Tribunal in an over-zealous fashion searching for error.[24] In addition, the test of whether an administrative decision maker’s determination is unreasonable is to be applied with stringency and any conclusion that a decision is unreasonable is accordingly likely to be rare.[25]
[24] See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
[25] See Minister for Immigration & Citizenship v Li (supra) at 258 at [113] per Gaegler J
As the Full Court of the Federal Court pointed out in Minister for Immigration & Border Protection v Singh[26] the reasoning process in respect of any review for legal unreasonableness will invariably be fact dependent. In this case, in my view, Mr Fordham carefully provided his view of the facts and the conclusions which he drew from them.
[26] Minister for Immigration & Border Protection v Singh (2014) 308 ALR 280 at [48]
As such, in my view, there is an intelligible narrative as to why he ultimately concluded that the applicant had not been an orphan living on the streets of Vietnam for many years and so liable to persecution at the hands of the authorities in that country.
For the reasons set out above, I do not consider that the applicable authorities authorise me to set aside the relevant decision of the Independent Protection Assessor, Mr Fordham. Costs according to the schedule should follow the event.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 4 May 2015
[19] Ibid at [37]
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