BAQ17 v Minister for Immigration
[2019] FCCA 1311
•17 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAQ17 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1311 |
| Catchwords: MIGRATION – Application for review of decision of the Administrative Appeals Tribunal (AAT) – proceeded on basis of one sole ground in further amended application – whether the AAT fell into legal error by failing to properly notify the applicants regarding their opportunity to attend an interview with the delegate – whether the AAT overlooked certain evidence in making a finding of adverse credibility against the applicants – whether a “critical” finding made by the AAT was based on an erroneous construction of certain information rendering it legally unreasonable – whether the AAT made a finding that was legally unreasonable by erring on its finding that the failure of the applicants to lodge a complaint against their migration agent undermined their claims – ground not made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 |
| Cases cited: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 361 ALR 227 |
| First Applicant: | BAQ17 |
| Second Applicant: | BAR17 |
| Third Applicant: | BAS17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 725 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 4 April 2019 |
| Date of Last Submission: | 4 April 2019 |
| Delivered at: | Sydney |
| Delivered on: | 17 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms T. Baw |
| Solicitors for the Applicant: | Sarom Solicitors |
| Counsel for the Respondents: | Mr T. Reilly |
| Solicitors for the Respondents: | Minter Ellison Lawyers |
ORDERS
The application made on 13 March 2017, and as further amended, is dismissed.
The first and second applicants pay the first respondent’s costs set in the amount of $7206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 725 of 2017
| BAQ17 |
First Applicant
| BAR17 |
Second Applicant
| BAS17 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 13 March 2017, amended on 27 September 2017, further amended on 5 March 2019, and yet further amended again on 12 March 2019, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 8 February 2017 which affirmed the decision of the Minister’s delegate not to grant protection visas to the applicants.
The evidence before the Court is:
1 The first applicant’s affidavit of 13 March 2017, annexing a copy of the Tribunal’s decision.
2 The first applicant’s affidavit of 29 September 2017, annexing a transcript of the Tribunal hearing (“T”).
3 An amended bundle of relevant documents (“the Amended Court Book” – “ACB” – “RE 1”).
4 A supplementary bundle of relevant documents (“the Supplementary Court Book” – “SCB” – “RE 2”).
The applicants before the Court are husband, wife, and their daughter (a child). (The “first”, “second”, and “third” applicants respectively). All are citizens of Fiji, of Indian ethnicity. They arrived in Australia on 11 December 2013 as holders of visitor visas authorising a stay for three months.
The first applicant applied for a protection visa on 26 August 2014 ([4] at ACB 378, also see ACB 49). The second and third applicants applied as members of his family unit. [An earlier application made in March 2014 was found to have been invalid (see [4] at ACB 378)].
The Minister’s delegate refused the grant of the protection visas on 14 January 2015 (ACB 155 – ACB 165). The applicants applied for review to the Tribunal on 27 January 2015 (ACB 177). The Tribunal made its decision on 8 February 2017 (ACB 377 – ACB 424).
The basis of the application was the first applicant’s claim that he and his family had experienced harm in the past in Fiji. He feared harm if they were to return because they feared eviction from Native Land Lease areas of Indo-Fijians. He also feared harm because of political instability.
The first applicant also claimed that he and the second applicant had suffered during the times of three coups in Fiji (1987, 2000 and 2006). Their home had been variously broken into, looted, and burned down.
The Tribunal’s Decision
The Tribunal had many, and significant, concerns about the credibility of the first and second applicants. These included the many and various inconsistencies in their evidence and claims, the changing nature of the (in particular) first applicant’s evidence, the omissions in their evidence, and the failure to mention serious claims at an earlier stage in the visa application process and the process for review.
The Tribunal found that the first and second applicants were not witnesses of truth, and had fabricated their account of events and claims to protection (see [59] – [171] at ACB 388 – ACB 409).
The Tribunal had regard to country information before it and accepted that there had been, generally, problems in Fiji during the coups. It also found that Hindu temples had been burnt down in 2011. It also noted that there had been tensions between indigenous Fijians and Fijians of Indian ethnicity, and that gender-based violence could occur.
Nonetheless, based on its comprehensive adverse credibility finding, the Tribunal did not accept that the applicants had suffered from the claimed “problems”, or that they were of adverse interest ([172] – [181] at ACB 409 – ACB 411).
The Tribunal also considered the applicants’ claims to have economic difficulties in Fiji, including the capacity to subsist. The Tribunal found that the applicants would not face serious or significant harm for this reason if they were to return to Fiji ([182] – [186] at ACB 411).
The Tribunal also had regard to country information that Indo-Fijians of Hindu background could face a low level of official and societal discrimination. However, the Tribunal found they had not suffered this in the past, and such discrimination did not give rise to a real chance of serious or significant harm in the future ([190] at ACB 415).
The Tribunal specifically considered the claim to fear harm because of land issues and found this also would not give rise to serious or significant harm.
Further, the Tribunal considered and rejected that the applicants would face serious or significant harm for reason of the security situation in Fiji, their child being educated there, mental distress, or because of the general political situation ([191] – [198] at ACB 415 – ACB 417).
The Tribunal also considered the particular circumstances of the second and third applicants. It found they would not face serious or significant harm on the basis of their gender, ethnicity religion, age or location ([199] – [207] at ACB 417 – ACB 419).
The Application to the Court
The sole ground of the further amended application is in the following terms:
“Ground One
1. The Second Respondent (Tribunal) made a critical finding; namely, that the Applicants had not been denied the opportunity to put forward all their claims at the start of the process, in circumstances where the Tribunal failed to consider relevant material and fell into legal unreasonableness.
Particulars
a. The Applicants had failed to attend their protection visa interview with the Delegate in part because the Department of Immigration (the Department) did not notify them directly.
b. The Applicants had completed a Form 956 (CB124-126) appointing an agent by the name of Hermis Simar, however, the Tribunal (and the Department) failed to consider that it stated on the form:
i. on Qu 16 that the type of assistance that the agent was providing was in the specific matter of “Request for Freedom of Information”;
ii. on Qu 18 that the agent was only authorised to receive written communication on behalf of the Applicants in relation to that specific matter in Qu 16; and
iii. that matter was not in respect of their protection visa application.
c. Accordingly, the Department should have sent the written invitation to attend the protection visa interview directly to the Applicants.
d. The Applicants failed to attend their protection visa interview in part because their then agent had not notified them of the Department’s invitation to do so, a fact which was known to the Tribunal.
e. The Tribunal had erroneously construed the Applicants’ two statements outlining the events that led to the agent’s failure to notify them as being inconsistent, however, when properly construed one merely elaborated in more detail than the other; there was no inconsistency. The Tribunal also failed to consider the Applicants oral evidence. Alternatively, any alleged inconsistency (which is denied) was immaterial.
f. The Tribunal erred in concluding that the Applicants’ failure to lodge a complaint about the migration agent undermined their claim about him. However, the Tribunal was legally unreasonable in failing to accept their explanation that they had deferred doing so in order to concentrate on their visa process. The Tribunal also failed to consider their evidence that they did not have the money to make a complaint.”
The Applicants’ Argument
There are three parts to the applicants’ ground as pleaded, especially when regard is had to each of the particulars.
The First Part of the Ground
First, and with particular reference to particulars (a) – (d), that the Tribunal fell into legal error in relation to whether the applicants were properly notified of the opportunity to attend an interview with the delegate. Specifically, that in making its adverse credibility finding, the Tribunal “overlooked” evidence in support of the applicants’ claims to fear harm.
The background to this issue is as follows. When the applicants lodged their (valid) application for the visas on 26 August 2014 (ACB 49 – ACB 111) they also notified the Minister’s department that they had appointed a migration agent to assist them (“Form 956”) (dated 16 September 2014). (See ACB 124 – ACB 126). The migration agent (Mr S. Hermis of Phillip Silver & Associates (Australia) Pty Ltd – “the first agent”) who was mentioned in that form was appointed as their “authorised recipient” of correspondence from the Minister’s department.
However, the first applicant set out in the relevant form containing that notification that the type of assistance for which the migration agent had been engaged was: “Request for Freedom of Information” (“FOI”) (item 16 at ACB 125).
The Minister’s delegate requested the applicants to attend an interview (ACB 128 – ACB 132). That request was sent to the first agent and not the applicants (ACB 132). A subsequent invitation notifying of a rescheduled time on the same date was also sent to the first agent (ACB 138 – ACB 142).
The applicants now argue that the interview request was not made in connection with their FOI request. Therefore, the interview request should have been sent to them, and not their migration agent. The migration agent did not tell them of the interview request, and they did not attend, in part, because of this.
Before the Court, the Minister did not dispute that the invitation should have been sent to the applicants directly and not their migration agent. It is not necessary, therefore, in this judgment to refer to the applicants’ lengthy oral submissions which sought to argue for this point.
In this context the applicants now argue, in essence, that the Tribunal’s reasoning was affected by jurisdictional error because the Tribunal made a finding that the applicants had not been denied the opportunity to put forward all of their claims to protection at the “start of the (visa) process”.
Before the Court, the applicants sought to emphasise that in the application for the visas the first applicant made clear that there were further matters that they wished to raise beyond what was in the protection visa application.
The applicants’ counsel referred the Court to the delegate’s decision. (The date of the decision is 14 January 2015 at ACB 155 – ACB 165). The delegate found (at ACB 162.5):
“Whilst the applicant has made claims which are serious in nature, the claims lack substantiating detail. Had the applicant attended the scheduled Protection visa interview, I would have elicited further information from him and checked all the available evidence relating to his claims, in order to determine the veracity of the claims made. Since the applicant did not attend the interview I have had no opportunity to do this. Consequently, I am not able to accept the claims made by the applicant.”
Further, the applicants referred the Court to the explanation provided by the first and second applicants as to their expectation that they would be able to provide further claims at the interview with the delegate.
The applicants’ counsel referred the Court to various parts of their Statutory Declaration of 2 July 2016 (at ACB 279 – ACB 281):
1. “3. On 27 August 2014, we lodged our second protection visa application in Sydney. At the time of the lodgement, we both thought that we would provide a short summary of our claims, as we thought that we would elaborate further, once we had engaged a migration agent or solicitor to assist us, or in the very least, when we would be called for an interview by the Department of Immigration and Border Protection (the Department).”
2. “7. When the Department scheduled its protection visa interview for us to attend, we did not receive any written notification at all because the correspondence in relation to the scheduled interview was sent to Simar Hermis. Despite receiving correspondence on our behalf, Simar Hermis did not contact us to advise that the Department had scheduled an interview for us.”
3. “9. This was the first occasion that we were let down by a migration agent and more so, we feel the Department was negligent in not sending us the correspondence in relation to the scheduled interview in relation to our protection visa claims. We were therefore unable to provide adequate verbal or written submissions in relation to our claims at the time our protection visa application was being processed.”
Further, the applicants’ counsel referred to what the first applicant had stated in the visa application:
1. “Question 44: Have you experienced harm in that country?
Answer: Yes, will provide document later in the process.” (At ACB 66).
2. “Question 49: Do you have any documentary evidence to support your claim for protection (including but not limited to membership cards, court documents, photographs, press articles)?
Answer: Yes. Will provide later.” (At ACB 69).
3. “Question 15: If you cannot provide a document, please indicate which document and explain why.
Answer: Evidence of claiming my protection visa as during the process I will submit it from gathering.” (At ACB 56).
“4. Question 16: Did you receive assistance in completing this form?
Answer: No.” (At ACB 57).
The submission arising from this before the Court was that the applicants were not represented at the time of making the application for the visas. That this documentation was consistent with what was set out in the Statutory Declaration (otherwise variously referred to in this judgment as written submission or statement).
That is, the submission before the Court was that in the protection visa application the applicants provided “a summary of the claims” and would provide further documents to support these claims and submissions, and evidence, later during the process.
It is important to note what the first applicant actually stated in the protection visa application. As set out above, what he said he would submit later in the process was further documentation. (For example: “will provide document later in the process”).
The Statutory Declaration which was drafted after the delegate’s decision makes clear that in the protection visa application they “thought” they would provide “a short summary of our claims” and “would elaborate further”, either with the assistance of a migration agent or at the interview with the delegate.
In context, this could only reasonably be understood as providing elaboration and documentary evidence in support of the “summary of claims” set out in the protection visa application.
For reasons which will become clear below, it is important to note that this says nothing about an opportunity later in the process to provide new claims not included in the “summary” of claims.
The applicants’ argument in relation to the first part of the ground is therefore as follows. There is no reference in the Tribunal’s decision record to “Form 956” as lodged with the application for the visas. This is significant because what was on this form (as referred to above) provides the basis for the applicants to assert that they expected to attend the interview with the delegate and were denied that opportunity, because they were not directly notified of the request to attend, and nor did their migration agent tell them about it.
The Tribunal had no regard in making its decision, and in particular, its adverse credibility finding, to important evidence which corroborated their written and oral evidence to it, as to their failure to attend and the lost opportunity that ensued.
The Second Part of the Ground
The second part of ground one is stated at particular (e). This focuses on two statements (Statutory Declarations) provided by the applicants to the Tribunal, which outlined what they said were certain events as to why their first agent failed to notify them of the request to attend the delegate’s interview.
The applicants assert that the Tribunal’s finding that the two statements were inconsistent was based on an erroneous construction of the statements, which rendered its “critical” finding (that they had not been denied the opportunity to put forward all of their claims) as legally unreasonable.
The first of these statements (referred to by the Tribunal as the “second statement”) is reproduced in the Amended Court Book at ACB 230 – ACB 234. It is the Statutory Declaration of the first applicant. The other Statutory Declaration (referred to by the Tribunal as the “third statement”) is at ACB 279 – ACB 307. It is a joint declaration made by the first and second applicants. Before the Court the applicants sought to compare the relevant parts of the Statutory Declarations.
The applicants submitted that with reference to [7] – [13] (at ACB 230 – ACB 231) of the first Statutory Declaration, the first applicant set out what he had been charged by the first migration agent. That is $300 for an initial consultation, and then a further $700 to obtain the copy of the file from the Minister’s department.
They were going to borrow the money to pay the $700, but were unable to do so. Following a three month period with no contact from the migration agent (the first agent), the second applicant went to the agent’s office and was asked to fill out another “Form 956”. The second applicant had gone to the agent’s office to pay the $700, but was given a letter which revealed that their application had been refused.
The parts of the second Statutory Declaration relied on by the applicants now are at [4] – [7] (at ACB 280). The applicants now submitted that these paragraphs provided a “broad” outline of what had relevantly occurred. In that light, while there was no mention in the second Statutory Declaration of the amounts charged by the migration agent and what was paid, this (second) Statutory Declaration was broadly consistent with the first.
Before the Court, the applicants also referred to the transcript of the Tribunal hearing of 5 September 2016 (at T 33, line 19 and following) and a Third Statutory Declaration made by both applicants (ACB 351 – ACB 368), at ACB 360.6 to submit that the applicants gave a consistent account of these events.
In submissions on this second part of the ground, the applicants specifically referred to AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 (“AVV15”) at [23] – [25], and [28], to submit that a reasonable approach is necessary in assessing the credibility of an asylum seeker, and that it is reasonable to expect some inconsistencies in their accounts. In that regard, “minor” inconsistencies on peripheral matters should not be given undue weight by the Tribunal.
The applicants’ argument was that in the current case, the Tribunal focused on the $700 outstanding payment, which was a minor matter, and was peripheral to the claim that they had not been informed of the interview by the migration agent.
The Third Part of the Ground
The explanation for the third part of the ground is expressed at particular (f). This part is explained as follows.
The Tribunal did not accept the applicants’ explanation that they had not lodged a complaint about the conduct of their first agent to the appropriate authority at the earliest opportunity.
The submission was that the Tribunal (with reference to [164] of its decision at ACB 407 – ACB 408) did not consider the explanation given at the Tribunal hearing (T 34, Line 39 and following) where the second applicant gave evidence that to make such a complaint they needed to hire a lawyer, that would cost money, and they did not have that money.
Legal Unreasonableness
In all, the applicants also relied on Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 (“Stretton”) at [10] – [11] for the propositions that:
1. “10. This concept of legal unreasonableness is not amenable to minute and rigidly-defined categorisation or a precise textual formulary…”
2. “11.The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.”
[Emphasis Added by the Minister in submissions.]
Consideration
It is important to begin with the by now trite, but unfortunately often forgotten proposition, that Tribunal decisions are to be read fairly, and holistically (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”).
It may also be said, having regard to relevant authorities, that legal unreasonableness may be revealed in two contexts. (See Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”) at [108], Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (“Singh”) at [44], Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 (“Stretton”) at [10] – [11], Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713; (2018) 357 ALR 408 (“SZVFW”) at [11], and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (“SZMDS”) at [129] – [131] per Crennan and Bell JJ).
One, unreasonableness as a result of some identifiable error. That is, that the decision maker reached a conclusion involving some error in the decision making process.
Two, without such a specific error, but nonetheless the outcome (the conclusion) is legally unreasonable. From the relevant authorities this can be said to involve the exercise of some statutory discretion.
The applicants’ ground, and the arguments in support, assert legal unreasonableness as a result of what are said to be, essentially, three errors by the Tribunal. What are expressed to be the three parts of the sole ground of the application, assert identifiable error on the part of the Tribunal. These are as follows:
1 Particulars (a) – (d): the Tribunal’s findings that, in effect, the applicants were not denied the opportunity to put forward all of their claims to fear harm as early as possible, without considering that they were not given that opportunity by the misdirection by the Minister’s delegate of the interview request, and the failure of the migration agent to tell them about it.
2 The Tribunal’s finding of inconsistency between the two Statutory Declarations, when no inconsistency is apparent.
3 The Tribunal’s finding that the applicants could have made complaints about their migration agents.
What the authorities also make clear, in my respectful view, is that consideration of legal unreasonableness requires a careful consideration of the circumstances of each case (SZVFW at [84], Stretton at [7] and [11], Singh at [42]).
The circumstances in this case include a proper understanding of the Tribunal’s entire reasoning. After all, a challenge to the reasonableness of three findings made by the Tribunal not only requires consideration of whether those particular findings were unreasonable in the circumstances presented, but their place in the chain of reasoning expressed in the entire decision record.
The key and central finding in this decision is the Tribunal’s comprehensive disbelief of the applicants’ claims and evidence. As the Tribunal stated at [171] (ACB 409):
“171. Considered cumulatively, the concerns the Tribunal holds about the adult applicants’ credibility as discussed above lead the Tribunal to conclude that the applicants are not witnesses of truth and that they have fabricated accounts of events and claimed fears, upon which they have based their protection claims.”
The Tribunal’s decision record is lengthy. It is 47 printed pages containing 225, sometimes lengthy, paragraphs. The Tribunal’s adverse credibility conclusion set out at [171], is preceded by an extensive presentation of the evidence before it ([5] – [59] at ACB 378 – ACB 388), and comprehensively explained reasons that informed the conclusion at [171]. (See [60] – [170] at ACB 389 – ACB 409).
In this part of the decision record the Tribunal set out in detail nine broad reasons as to why it found adversely to the first applicant’s credit, four specific reasons in relation to the second applicant, and six further reasons that related to both of them. That is in total 15 reasons relating to the first applicant, and 10 relating to the second. Taking into account the reasons common to both, that means nineteen reasons in total.
The applicants’ ground now in all of its three parts relates only to essentially three findings made in just one (the second “Sixthly”) of all of the many reasons that the Tribunal gave as the bases for the adverse credibility finding, that related jointly to the first and second applicants. Noting this was, as set out above, in addition to the many bases on which the adverse credibility finding was made that related to them individually. I will return to this contextual point below.
In the meantime, I am not persuaded that the Tribunal’s impugned findings are, individually, unreasonable for the reasons given by the applicants now.
First, as set out above, particulars (a) – (d) of the ground take issue with the Tribunal’s finding at [160] (ACB 407):
“160. The Tribunal considers that their changing/inconsistent evidence about what was meant to occur with the first agent undermines their credibility and the blame they attach to their first agent and his actions.”
The complaint is that the Tribunal’s finding was legally unreasonable because it did not take into account the applicants’ evidence concerning the department’s conduct in relation to the interview request, and the first agent’s failure to notify them of that request. That is, their explanation that the reason they did not attend the interview was because of the impugned, negligent conduct of their first agent, and the Minister’s department.
The Tribunal’s finding at [160] was that the applicants changing, and inconsistent evidence concerning the first agent undermined their credibility.
I agree with the Minister’s submission that there is nothing in those words from which it can reasonably be said that the Tribunal rejected their claims that the Minister’s department did not send the interview request to them, or that it should have sent it to them, or that their first agent did not tell them of the interview request.
The finding at [160] is a broadly expressed conclusion arising, in context, from what immediately precedes it. It is focused on what the Tribunal described as their changing and inconsistent evidence.
The Tribunal’s impugned finding was not concerned with the truth, or otherwise, of whether the Minister’s department sent the request to the agent, or whether the agent did, or did not, tell them of it. Rather, it is their own evidence, the changing and inconsistent evidence about these events, that was in part the basis for the adverse credibility finding, as expressed at [160].
Further, it is important to note the question posed by the Tribunal to which, what was set out at [160], was a part of the answer.
That question is set out at [155] (ACB 406):
“155. Sixthly, the Tribunal was concerned about the applicants’ allegation that it took them until their third statement and a second hearing for them to put forward all of their claims.”
That is, the Tribunal’s concern was that the applicants had not put forward all claims to fear harm in a reasonably timely manner. But only did so following a third written statement, and a second hearing before the Tribunal.
As set out above, the applicants made an invalid application for the visas in March 2014. The valid application was made on 26 August 2014. The first migration agent (for the limited FOI purpose) was appointed on 16 September 2014 (see ACB 124 – ACB 126). The request to attend the interview was first made on 19 December 2014 (ACB 128), and then subsequently on 23 December 2014 (ACB 138). The delegate’s decision was made on 14 January 2015.
The Tribunal’s decision is meant to be read fairly, including holistically. In this light, what the Tribunal set out at [5] – [54] plainly informs the context, and basis, for the Tribunal’s subsequent findings.
The Tribunal set out, in detail, the various opportunities that the applicants had to present their claims. The Tribunal’s description (at [165], ACB 408 – see below) of the applicants “evolving claims” plainly arises from the factual scenario set out at [5] – [54].
For current purposes, what the Tribunal set out was as follows:
1. Summary of claims made to the Department ([5] – [25] at ACB 378 – ACB 380).
2. The first written statement dated 26 January 2015 ([28] at ACB 380 – ACB 381.
3. Second written statement dated 18 April 2016 ([29] at ACB 381 – ACB 383).
4. The first hearing before the Tribunal on 22 April 2016 ([30] – [38] at ACB 383 – ACB 384).
5. The third written statement dated 2 July 2016 at ([41] – [43] at ACB 384 – ACB 386).
6. The second hearing before the Tribunal on 29 August 2016 ([44] – [51] at ACB 386 – ACB 387).
7. The applicant’s fourth written statement ([52] at ACB 387).
The very clear point that the Tribunal was making at [165] was that the applicants had had more than ample time and opportunity over a number of years to put forward all of their claims. That they did not do so was of concern.
What the Tribunal addressed at [156] – [159] (at ACB 406) was the applicants’ explanation as to why they had not put forward all of their claims at an earlier time. This explanation sought to blame the first migration agent, and the Minister’s department, for not properly notifying them of the interview before the delegate. That is, that they claimed (as set out in the written statements on which they now rely) that they would have put forward their claims at the interview, but were denied the opportunity to do so by the conduct of the first agent and the department.
The point that the Tribunal sought to make, amongst others, at [161] – [165] (at ACB 407 – ACB 408) which followed (“Further”) [160] was that the applicants had had ample time and opportunity (otherwise than at an interview with the delegate) to have put forward the complete set of claims, and did not do so.
That is precisely the point made clear at [161] (ACB 407):
“161. Further, the Tribunal considers it is highly unlikely that once their claims had been refused for the reasons (they claimed) namely that both the Department and their first agent had been negligent, that they would not have taken more care in the second statement which was being submitted to the Tribunal.”
That is, even in circumstances where they did not attend the interview (which on any fair reading, was not held against them in the adverse credibility finding), they still had ample opportunity to put forward all of their claims, and they did not do so. That was the point also clearly made at [165] (ACB 408]:
“165. The Tribunal considers that the applicants had plenty of time between the time of their arrival in December 2013 and the time of lodgement of their (second) protection visa application forms in August 2014 to put forward all of their claims. The Tribunal is not prepared to accept their assertions that it took them until their third statement and a second hearing for them to put forward all of their claims, and that this was the fault of others, not their own. The Tribunal considers that their evolving claims undermines their credibility, and their claims.”
There is nothing in the circumstances presented to say that that finding, and all the other findings that informed it, was legally unreasonable. The Tribunal gave an intelligible justification for the adverse finding as to the applicants’ credibility and gave reasons probative of, and arising from, the evidence and circumstances before it.
The applicants’ mischaracterisation now of the Tribunal’s relevant reasoning cannot be accepted. The Tribunal made no finding that it rejected the applicants’ explanation of the conduct of their first agent, and the Minister’s department. As set out above, the Tribunal noted that explanation but, in essence, found that the applicants still had ample opportunity to have made their claims at an earlier time before it.
The second part of the ground (particular (e)) relies on the Tribunal’s finding that there was a contradiction between the second and third statements. The particular directs attention to the same part of the Tribunal’s decision record as did particulars (a) – (d). (“Complaints about agents and the Department” at ACB 406). In particular [157] (at ACB 406) :
“157. The Tribunal had concerns that the adult applicants gave inconsistent evidence about the claimed behaviour of the first agent. As put to the applicants at the second hearing (and referred to in the applicants’ fourth statement):
· Their second statement claimed that they paid an initial $300 to the first agent and were requested to produce a further $700. However by this time (September 2014) they had finished all the money they had brought with them to Australia and did not have an income. They were “looking to borrow this $700”; it was only at the end of January 2015 that they borrowed the money and then the female applicant went to the first agent’s office.
· Their third statement (after the first hearing) claimed that after they lodged their protection visa application they engaged the first agent. At the time of engaging him they paid him the monies that he asked for. They were advised he would take certain steps but they never heard from him.”
The Tribunal explained in its reasoning as follows (at ACB 406):
“158. The Tribunal put to the applicants that their third statement indicates that the lack of submissions was the fault of the first agent and the applicants had done everything they were meant to do, but their second statement indicated that they had not done everything they were meant to do, as they had not given him the money he required to get the file from the Department.
159. The female applicant claimed at the second hearing that the $700 was due once he had told them he had obtained a copy of the file however he did not thereafter contact them to ask them to pay the $700 (which money they did not have anyway). This was repeated in the fourth statement. In the fourth statement they said that they called the agent a few times and the receptionist told them that once they paid the deposit the agent would advise them accordingly; the applicants do not indicate that they paid the deposit referred to as required by the receptionist.”
As set out above, the applicants submitted to the Court that there was no inconsistency, merely that one statement was expressed in broader terms than the other.
With reference to the Tribunal’s reasoning, as set out above, what emerges from the two statements is as follows. In the second statement before the first Tribunal hearing, the first applicant said that they met with a migration agent (the first agent) on, or soon after 15 September 2014. They were charged a consultation fee of $300, and asked to pay a further $700 so as to obtain the file from the Minister’s department ([9] at ACB 230). It is implicit that they did not pay the $700, because the first applicant also stated they did not have the money to do so, and were looking to borrow the $700 ([10] at ACB 231). It was not until three months later (that is, the end of January 2015) that they had this money, and the second applicant went to the agent’s office.
This is what the Tribunal recorded at the first dot point at [157]. There is nothing in the second statement to indicate that the Tribunal’s understanding of what was said here was mistaken.
In the third statement, the applicants stated, relevantly, to the Tribunal’s reference of it in its decision record, that (at ACB 280):
“4. Sometime after the lodgement of our protection visa application, we appointed Simar Hermis, a migration agent with Phillip Silver and Associates in Bankstown. At the time of engaging Simar Hermis, we had paid him the monies that he asked for. We were advised that he would speak to our case officer and obtain a copy of our file from the Department.”
Again, I cannot see that the Tribunal’s summary of what was said was mistaken as to what was actually said.
The applicants now assert that there was no inconsistency, simply that the third statement was absent the detail of the earlier statement. The Tribunal’s relevant reasoning is at [158] (at ACB 406):
“158. The Tribunal put to the applicants that their third statement indicates that the lack of submissions was the fault of the first agent and the applicants had done everything they were meant to do, but their second statement indicated that they had not done everything they were meant to do, as they had not given him the money he required to get the file from the Department.”
The actual inconsistency found by the Tribunal, therefore, was that in one statement the applicant stated that they had paid him the monies he had asked for, that is, in context, inclusive of the $700. Yet in the other, the statement was that they had not paid the $700.
It is to be noted that the real concern for the Tribunal, as is clear from its reasoning, was not necessarily whether the applicants had in fact paid the $700 or not. The concern for the Tribunal was the applicants’ claim before it that it was the fault of their agent that they had not made submissions earlier. In support of “blaming” their agent, they said in one statement that they had done everything they were meant to do in relation to what he had asked of them. That is, they had “paid him the monies”, so it was his fault, not theirs, that the submissions were not made.
Yet in the other statement the first applicant had said they had not paid him all of the monies. The $700, on his account in the earlier statement, was that the $700 was not paid. By the time they had the money (towards the end of January 2015), and the second applicant attended at the agent’s office, the agent’s receptionist told them the agent had ceased to act for them.
In the circumstances, it was reasonably open to the Tribunal to find that the two accounts were inconsistent. I agree with the Minister’s submissions that in that light, the Tribunal’s finding was not legally unreasonable given that reasonable minds could differ about this finding. (With reference to SZMDS at [131] and SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58).
As set out above, the applicants relied on AVQ15 for, amongst other matters, the propositions that a thoughtful and careful approach is required of the Tribunal in assessing credibility, and that inconsistencies in minor or peripheral matters not central to an applicants’ claims should not be given undue weight.
There is nothing before the Court to indicate from its comprehensive and exhaustive decision record that the Tribunal failed to meet the first proposition.
Nor, in context, can it be said that the Tribunal’s finding of inconsistency (in relation to particular (e), and indeed, in relation to all of the other particulars) was in relation to a matter of a minor nature, or peripheral.
In their narrow focus on three, out of many findings made by the Tribunal, the applicants now have, it must be said, lost sight of what the Tribunal found adverse to them at the impugned part of the decision record. (The (second) “Sixthly” at ACB 406 – ACB 408, and with reference to particular (e) at [156] – [159] (at ACB 406).
What was central to the Tribunal’s adverse credibility finding in this part of its reasoning was that the applicants had not taken the opportunities to present all their claims in a timely fashion.
Inconsistencies in the applicants’ explanation as to why that was not the case cannot, objectively, or reasonably, be said to be minor, or peripheral.
After all, the applicants now continue to claim in their ground, as they did before the Tribunal, that they were denied the opportunity to put forward their claims at the interview with the delegate because of the conduct of their agent. What they told the Tribunal about their dealings with that agent is therefore relevant to their own explanation in response to the Tribunal’s concerns about how they presented their case. It cannot be said to have been unreasonable of the Tribunal to have had concerns about the applicants seeming inability over time to give a consistent, and comprehensive, account of their claims to fear harm at some earlier time before the Tribunal.
Before the Court, the applicants also submitted, on the specific matter of the $700, that at the second Tribunal hearing the second applicant told the Tribunal that the $700 was due to be paid once the migration agent had obtained a copy of their file from the Minister’s department.
Two things may be said about this submission. One, the Tribunal did not overlook this evidence. It made specific reference to it at [159] (ACB 406). That is, as part of its reasoning in relation to the migration agent’s conduct, and how it may have impacted on the applicant’s capacity to make out their claims in a more timely fashion.
Two, there is no error in the Tribunal’s finding at [159] that what the second applicant relevantly said at the second Tribunal hearing was repeated in the applicants’ fourth (that is, post second Tribunal hearing) statement (see ACB 351.9 – ACB 356.3 and in particular ACB 360.7 – ACB 360.10).
There is nothing in the transcript of the second hearing, or the fourth statement, to say that it was not reasonably open to the Tribunal to find that: “…the applicants do not indicate that they paid the deposit referred to as required by the receptionist”.
In all, particular (e) is not made out.
The third part of the ground is found at particular (f). This asserts that the Tribunal erred in its finding that their failure to lodge a complaint about their migration agent (with the relevant authority) undermined their claims about him.
This finding is said to be legally unreasonable because the Tribunal failed to accept their explanation that they had deferred doing so in order to concentrate on the visa application, and that the Tribunal did not consider their evidence that they did not have the money to make that complaint.
The complaints, in particular (f) are focused on [164] (at ACB 407) of the Tribunal’s decision record, which is also a part of the (second) “Sixthly” consideration. In that light, what is generally said about that part of the Tribunal’s reasoning in this judgment (as set out above) also applies to particular (f).
Paragraph 164 (at ACB 407 – ACB 408) is in the following terms:
“164. The Tribunal was further concerned because, although the applicants appeared to complain and rely upon defects of their previous agents (which they had listed in detail in their third statement), as put to them at the second hearing, they had not made any attempt to complain about those agents to the relevant authority (MARA), including for example against the first agent and his actions which they claim led to the refusal of their claims by the Department on 14 January 2015. They then said to the Tribunal that they will lodge complaints against their former agents but their priority has been this Tribunal process. The Tribunal does not accept this explanation, noting for example that there was a period of over one year from the time their claim was refused (fault of first agent and Department) and the first Tribunal hearing, during which time they could have complained about that agent (and the Department). Further, they suggested that the second agent was also at fault by about May 2016, yet even by the time of the post-second hearing submissions (September 2016) they had not made a complaint to MARA about that agent. The Tribunal considers that their failure to lodge complaints about their claimed agents at the first opportunity (January 2015 concerning the first agent and May 2016 about the second agent) undermines their claims about these agents.”
I understood the gravamen of the applicants’ complaint in relation to this particular was that there was no “intelligible justification” by the Tribunal to explain why it did not accept their explanation.
Contrary to the applicants’ particular, and the submissions in explanation of it before the Court, that “intelligible justification”, that rationale, is to be found in [164]. (See [111] above).
The question of the complaints about the conduct of their migration agents (the first and second) was raised at the Tribunal hearing of 5 September 2016 (at T 34, Line 9 to T 35, Line 5):
“[Tribunal Member]: Did you lodge a complaint about him?
Interpreter [Second Applicant]: We didn’t lodge a complaint because in that time we checked it and we were given a 30-day notice.
[Second Applicant]: 28 days’ notice (foreign language)
Interpreter: Sorry, 28 days’ notice to leave Australia.
[Second Applicant]: (indistinct)
[Tribunal Member]: That was quite some time ago. Did you lodge a complaint afterwards?
[Second Applicant]: (indistinct)
[Tribunal Member]: Did you lodge a complaint against the other agent that you sacked?
Interpreter [Second Applicant]: We will lodge a complaint. We have discussed this with our solicitor.
[Tribunal Member]: You don’t have to tell me what you discussed.
Interpreter [Second Applicant]: Because our main focus and the priority has been this hearing, and after this hearing we plan to lodge a formal complaint.
[Tribunal Member]: So you’ve had all this time to complain about your previous agents but you haven’t done so.
Interpreter [Second Applicant]: To hire a lawyer and then lodge a complaint, for that you need money. We don’t have enough money to go through this.
[Tribunal Member]: I thought that you were – I mean you wrote a pretty good letter in English complaining about the tribunal. So it would seem to me that you’d be able to make a complaint and if, really, this agent was the reason why you’ve suffered and you’ve not attended an interview then I would think that you would have complained earlier.
Interpreter [Second Applicant]: Yeah, but our first priority has been the tribunal and once we resolve this and when this issue is solved, only then we can look at that aspect.”
[Emphasis Added.]
The actual finding made by the Tribunal was that it did not accept the applicants’ explanation as to why they did not lodge complaints with the relevant authority about the conduct of their migration agents.
It is to be remembered that it was the applicants who raised the allegations against these agents with the Tribunal. In particular, that the first agent had deprived them of the opportunity to attend the interview with the delegate.
The second agent was said not to have made submissions on their behalf, even though they had paid him to do so. Further, the second applicant gave evidence that the second agent had told her not to answer questions at the first Tribunal hearing.
For this see T 12, Line 39 to T 13, Line 43:
Interpreter [Second Applicant]: Yes, I admit that I was given an opportunity and my husband was also given an opportunity but, as I have mentioned in our second Statutory Declaration, we were following the advice of Chandra Buddhipala. Because he asked us, “When you go into the hearing room, try to be brief.”
[Tribunal Member]: I just need to stop you there as well because that’s something you’ve mentioned in your Statutory Declaration so I had a look at the evidence, you know, afterwards and before this hearing and I don’t agree that you were brief. On many occasions I had to ask you to stop and listen to the actual question and answer the question and direct your attention to that.
Interpreter [Second Applicant]: I’m aware of that. Because I was very scared and with that fear in mind when the questions were being asked, I was unable to respond to those questions properly. Because the agent told us that she will make the submissions on our behalf and she will also respond to some of the questions. Actually, she said that she will respond to all the questions from our side – she will respond.
[Tribunal Member]: Sorry, madam, are you suggesting that when I asked you a question, you thought you didn’t have to answer? Is that what you’re suggesting?
Interpreter [Second Applicant]: Because that’s what I was advised by Chandra Buddhipala.
[Tribunal Member]: But you did answer.
Interpreter [Second Applicant]: But the answers were brief and I was unable to communicate properly with the member and I was very nervous and I still remember at one occasion even the member said, “We will go forward step by step.”
[Second applicant]: “Let’s calm down.”
Interpreter [Second Applicant]: “Let’s calm down”, because I was very scared. And when I came to know that Chandra Buddhipala hasn’t made any submission on our behalf, although we went to her place and spent two hours there, and it took me two hours in the train and bus to go to her house, and then I explained everything to her in detail but she didn’t do her work or her job properly and we were just sitting here unprepared. Because he charged us money – sorry, she charged us money and she assured us that she will do everything and she asked us not to worry about anything.
[Tribunal Member]: When I ask you a question and when you take the oath, as you’ve just done again now, I would expect that you would tell the truth. Now, are you telling me that you didn’t tell the truth last time?
Interpreter [Second Applicant]: I don’t tell lie because I’m from a Hindu religion and after taking an oath on Gita, I will not lie.”
[Emphasis Added.]
The Tribunal’s “intelligible justification” for not accepting their explanation, in the circumstances, was that it found they had had ample time, in relation to both agents, to have made complaints. This was reasonably open to the Tribunal given the serious nature of the allegations about both agents, and the impact that the applicants said this had had on their application.
That is, they were deprived of the opportunity to attend an interview to further their claims to fear harm, were told (on the second applicant’s view) not to give a complete explanation at the first Tribunal hearing, and had paid for submissions which were not provided.
As the Minister submitted before the Court, while reasonable minds may differ legal unreasonableness is not revealed.
What remains, therefore, of particular (f), is the complaint that the Tribunal did not consider their evidence that they needed a lawyer to make the complaint, and that they did not have money for this.
It is the case that the Tribunal is not required in its decision record to record, or report on, every piece of evidence before it. What is required is that the Tribunal set out the evidence on which it relies to make its findings of fact. In the current case, the Tribunal’s finding that it rejected the claim as to why they did not complain was reasonably open to it in the circumstances, and for the reasons it gave.
In this light, it was not necessary for the Tribunal to refer to other evidence that was put before it. This is not a situation where the Tribunal failed to consider a claim to fear harm arising from any such evidence, or that it failed to consider a substantial argument as to why the applicants feared harm.
To be clear, the ground asserts legal unreasonableness. The particular points to the Tribunal’s actual finding. Given that it was reasonably open for the Tribunal to make the finding that it did, then any omission at this part of the decision record to other evidence (on which it did not rely to make the finding) does not render the finding legally unreasonable in the requisite sense. That is, reasonable minds may differ as to the finding (SZMDS at [131]), or an intelligible justification has been provided (Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332 at [25] per French CJ, [89] per Gageler J and [76] per Hayne, Kiefel and Bell JJ, Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280 at [47] per Allsop CJ, Robertson and Mortimer JJ).
As set out above at [62], jurisdictional error, as asserted in this ground, is not made out when the totality of the Tribunal’s reasoning and its decision record is taken into account.
As also set out above, the critical finding made by the Tribunal was the adverse credibility finding made in relation to the first and second applicants. This finding was comprehensively explained far beyond the one set of findings impugned by the applicants’ ground now before the Court (the second “Sixthly” part of the decision record at ACB 406 – ACB 408).
As the Minister submitted, in their ground and in submissions, the applicants focused only on one of nineteen matters which informed the Tribunal’s adverse credibility finding.
The Minister referred the Court to Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (“SZUXN”) (per Wigney J at [55]:
“55. Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].”
[Emphasis Added].
Specifically in relation to findings on credibility, Wigney J said:
“56. An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31].Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.”
[Emphasis Added].
I note further that these parts of SZUXN were specifically quoted by the Full Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (“CQG15”) at [60].
In short, therefore, in the circumstances of this case, the impugned findings (at the second “Sixthly”) are but a minute part of the Tribunal’s comprehensive reasoning as to why the applicants were not to be believed in their claims.
Even if some error as asserted in the ground was to have been found at (the second) “Sixthly” (which for the reasons set out above, it is not), ultimately the impugned parts of the Tribunal’s reasoning are dwarfed by the other extensive comprehensive findings, such that they cannot be said to have been critical to the decision.
Further, given the findings set out above (that each of the particulars do not make out the ground as stated) what must be said is to respectfully draw on what was said in SZUXN by Wigney J at [56]. That is, that the assertion made by the applicants in their ground (of legal unreasonableness) is made: “…to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision”.
Conclusion
The sole ground is not made out. It is therefore appropriate to dismiss the application. I will make the appropriate order.
I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 17 May 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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Remedies
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Statutory Construction
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