BFD17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Case [2023] FCA 887

FEDERAL COURT OF AUSTRALIA

BFD17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 887  

Appeal from: BFD17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 70
File number(s): NSD 175 of 2022
Judgment of: BURLEY J
Date of judgment: 2 August 2023
Catchwords: MIGRATION – appeal from decision of the Federal Circuit and Family Court of Australia dismissing an application for judicial review of the decision of the Administrative Appeals Tribunal affirming the decision of a delegate of the Minister to refuse to grant the appellants protection visas – rejection of appellants’ evidence due to lack of credit – whether failure to consider evidence of corroborating witnesses – failure established – appeal allowed.
Cases cited:

BFD17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 70

BHM15 v Minister for Immigration and Border Protection [2018] FCA 917

BTF15 v Minister for Immigration and Border Protection [2016] FCA 647

BXK15 v Minister for Immigration and Border Protection [2018] FCAFC 76

BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292

DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611

Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50

Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) [2003] HCA 30; 73 ALD 1

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407

SZDGCv Minister for Immigration and Citizenship [2008] FCA 1638; (2008) 105 ALD 25

WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74; (2004) 80 ALD 568

Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 72
Date of hearing: 25 November 2022
Counsel for the Appellants: Ms T Baw
Solicitor for the Appellants: Craddock Murray Neumann
Counsel for the First Respondent: Mr G Johnson
Solicitor for the Respondents: HWL Ebsworth Lawyers

ORDERS

NSD 175 of 2022
BETWEEN:

BFD17

First Appellant

BFM17

Second Appellant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MULTICULTURAL AFFAIRS AND MIGRANT SERVICES

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

BURLEY J

DATE OF ORDER:

2 AUGUST 2023

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The orders made by the Federal Circuit and Family Court on 10 February 2022 be set aside and, in their place, the following orders be made:

(a)A writ of certiorari be issued quashing the decision of the second respondent dated 15 February 2017.

(b)A writ of mandamus be issued requiring the second respondent, differently constituted, to determine the application for review according to law.

3.The first respondent pay the appellants’ costs of an incidental to the appeal and the proceedings in the Federal Circuit and Family Court.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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Details
AGLC
BFD17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 887
Case
[2023] FCA 887
Decision Date

CaseChat Overview and Summary

The appeal concerns a decision of the Federal Circuit and Family Court of Australia dismissing an application for judicial review of the decision of the Administrative Appeals Tribunal affirming the decision of a delegate of the Minister to refuse to grant the appellants protection visas. The appellants challenged the Tribunal's decision to reject their evidence due to lack of credit and its failure to consider evidence of corroborating witnesses. The primary judge held that the Tribunal's decision was not affected by jurisdictional error. The appellants now appeal to the Federal Court of Australia.

The legal issues before the court were whether the Tribunal fell into jurisdictional error in its handling of the evidence of corroborating witnesses and in its credibility findings. The appellants argued that the Tribunal failed to give proper, genuine and realistic consideration to the corroborating evidence and made credibility findings without any logical or rational basis. The Minister contended that the Tribunal was entitled to reject the appellants' evidence and did not err in its assessment of the credibility of the appellants' claims.

The court found that the Tribunal did not err in its consideration of the evidence of corroborating witnesses. The court held that the Tribunal was entitled to reject the evidence of the corroborating witnesses as it was aligned with the incredible claims of the appellants. The court also found that the Tribunal's credibility findings were not legally unreasonable, illogical, or irrational. The court held that the Tribunal was entitled to make findings about the appellants' credibility based on the inconsistencies and implausible aspects of their claims.

The appeal was allowed. The orders of the Federal Circuit and Family Court were set aside, and a writ of certiorari was issued quashing the decision of the Tribunal. A writ of mandamus was issued requiring the Tribunal to determine the application for review according to law. The Minister was ordered to pay the appellants' costs of the appeal and the proceedings in the Federal Circuit and Family Court.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders made by the Federal Circuit and Family Court on 10 February 2022 be set aside and, in their place, the following orders be made:

(a) A writ of certiorari be issued quashing the decision of the second respondent dated 15 February 2017.

(b) A writ of mandamus be issued requiring the second respondent, differently constituted, to determine the application for review according to law.

3. The first respondent pay the appellants’ costs of an incidental to the appeal and the proceedings in the Federal Circuit and Family Court.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The appellants were represented by Ms T Baw and the Minister was represented by Mr G Johnson, both of counsel. Both filed and relied upon written submissions. 2. BACKGROUND2.1Claims for protection and evidence The appellants’ claims for protection are set out in their visa application and respective statutory declarations. The appellants also gave oral evidence at a department interview on 9 December 2014 and rely on various other material, including witness affidavits, photographs and oral evidence, which is summarised in the decisions of the delegate and Tribunal. Relevantly, the appellants rely on the corroborating evidence listed at particulars (a)(i) to (iv) in ground 1 (see [4] above). The first appellant claims to fear harm if returned to Nigeria on the basis that Boko Haram had tried to recruit her son (the second appellant), and that when she confronted the leader of the local Boko Haram group about the recruitment, she and her son were later attacked in their family home which caused them to flee from Nigeria. The second appellant claims to fear harm on the ground that he would be forcibly recruited by Boko Haram and that he was also attacked in the same incident as that claimed by the first appellant and fled. The appellants also claim to fear harm on the basis of their Christian religion, as advocates of western education and as members of Rotary.2.2Decision of the Tribunal In its reasons, the Tribunal notes that it had regard to the Department’s file in relation to the appellants, the delegate’s decision and various other material which it lists at [28]. The Tribunal summarises (at [30]–[53]) the appellants’ claims for protection by reference to the visa application and evidence given in statutory declarations, in the department interview, at the Tribunal hearing and in the appellants’ post-hearing written response and makes a number of factual findings (at [55]), including: that the appellants are Nigerian nationals and have lived in Benin City, Edo State for most of their lives; they are Christian and the first appellant was a Pastor involved with a Church in Edo State; they lived nearby to the Church; they are closely associated and involved in Rotary; and the second applicant was a student at a school in Benin City, Edo State. However, the Tribunal expresses (at [56]) “significant concerns” as to the appellants’ credibility regarding the difficulties they claim to have faced and their reasons for fearing return to Nigeria. In particular, the Tribunal notes:... they have provided evidence inconsistent with independent information as to the extent and activities of Boko Haram in Edo State, and inconsistencies in evidence as to central aspects of the difficulties they claim they faced at the hands of Boko Haram and [B] which leads the Tribunal to find they are not credible as to ever having faced the particular difficulties and incidents of harm they claim. The Tribunal is of the view that they have fabricated claims and concocted evidence to achieve an immigration outcome.

Evidence

Evidence Before The Court

Relevantly for present purposes, in light of its concerns about the credibility of the fundamental claim, the Tribunal did not give any weight to the oral evidence of friend (d), the statutory declarations of daughter (b) and neighbour (a), or the statement of the Community (c) (together, the corroborating evidence) (at [129]–[130]).2.3Decision of the primary judge Before the primary judge, the appellants asserted that the Tribunal fell into jurisdictional error in that its decision was legally unreasonable because it failed to give proper, genuine and realistic consideration to the corroborative evidence (primary ground one). The appellants also argued that the Tribunal erred in making credibility findings without any logical or rational basis (primary ground two). The primary judge rejected both grounds and concluded that the Tribunal’s decision was not affected by jurisdictional error (at [35]).2.3.1Primary ground one At [17], the primary judge noted the Tribunal’s findings (at [56]–[94]) as to the fabrication of evidence relating to Boko Haram activity in Edo State and found at [19] that “having made the findings that it did, the Tribunal was entitled to look at the evidence of the applicants, and that of the corroborating witnesses, in such light”. At [23], the primary judge said:It is in the entirety of the evidentiary context that the Tribunal’s treatment of the applicants’ claims, and the purported substantiation of such claims by corroborating witnesses, ought to be viewed. At [129] – [130] in particular of its reasons, the Tribunal was seen to have actively intellectually engaged in a consideration of the corroborating evidence. The Tribunal specifically referred to the evidence of [witness name withheld] and other corroborating witnesses but said “…given the fundamental lack of credibility of the applicants’ evidence, the Tribunal does not give any weight to these statutory declarations and their contents”. In making that finding, the Tribunal made it clear that to the extent that such corroborating evidence was aligned with the evidence of the applicants, it would not be accepted. Such was not an unorthodox or unacceptable way for the Tribunal to undertake a deliberative process”. After referring to Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) [2003] HCA 30; 73 ALD 1 at [49] per McHugh and Gummow JJ, and Minister for Immigration and Citizenship v SZNSP[2010] FCAFC 50, at [37], per North and Lander JJ (with whom Katzmann J agreed) (see [54]–[57] below), the primary judge concluded at [26]:The facts of the present matter are not at one with those in BXK15 v Minister for Immigration and Border Protection [2019] FCAFC 76, where the majority there held that there had been no consideration by the Tribunal of the evidentiary value of the witness statements. That case is distinguishable from the facts of the present case which is aligned with the factual scenario in S20/2002. Each case will necessarily differ in terms of the factual matrix within which the Tribunal will be called upon to consider whether it should assess corroborative evidence in the light of other evidence before it, or whether no weight should be given to it. An administrative decision maker ought not to be required to always have regard to corroborative evidence, particularly in circumstances where the veracity of such evidence was incapable of acceptance because it aligned so closely with other claims of the applicants which were incredible. Such was the case here. 2.3.2Primary ground two

Decision

Reasons for decision

The appellants also claim to fear harm on the basis of their Christian religion, as advocates of western education and as members of Rotary.2.2Decision of the Tribunal In its reasons, the Tribunal notes that it had regard to the Department’s file in relation to the appellants, the delegate’s decision and various other material which it lists at [28]. The Tribunal summarises (at [30]–[53]) the appellants’ claims for protection by reference to the visa application and evidence given in statutory declarations, in the department interview, at the Tribunal hearing and in the appellants’ post-hearing written response and makes a number of factual findings (at [55]), including: that the appellants are Nigerian nationals and have lived in Benin City, Edo State for most of their lives; they are Christian and the first appellant was a Pastor involved with a Church in Edo State; they lived nearby to the Church; they are closely associated and involved in Rotary; and the second applicant was a student at a school in Benin City, Edo State. However, the Tribunal expresses (at [56]) “significant concerns” as to the appellants’ credibility regarding the difficulties they claim to have faced and their reasons for fearing return to Nigeria. In particular, the Tribunal notes:... they have provided evidence inconsistent with independent information as to the extent and activities of Boko Haram in Edo State, and inconsistencies in evidence as to central aspects of the difficulties they claim they faced at the hands of Boko Haram and [B] which leads the Tribunal to find they are not credible as to ever having faced the particular difficulties and incidents of harm they claim. The Tribunal is of the view that they have fabricated claims and concocted evidence to achieve an immigration outcome. The Tribunal sets out a number of “cumulative credibility concerns” which it considered provided the basis for rejecting the appellants’ evidence regarding their fear of return to Nigeria. The primary concern was that the appellants provided evidence which was inconsistent with independent country information as to the extent and activities of Boko Haram in Edo State (at [56]–[94]). The Tribunal also had credibility concerns arising from the second appellant continuing to attend school despite the approaches by Boko Haram (at [100]); the first appellant’s claim that her husband had disappeared (at [101]–[109]); the first appellant’s failure to change her mobile phone number despite receiving threatening messages from Boko Haram (at [112]–[115]); and the first appellant’s “vague and inconsistent evidence” concerning her fear of her husband’s family (at [118]–[121]). In making the credibility finding, the Tribunal reasoned, at [128]–[130]:[128]In making this finding the Tribunal accepts that information has been consistent over time between the first and second named applicant's [sic], particiculary [sic] as to the approach and attack by Boko Haram in August 2013. However the Tribunal considers that while such consistent evidence could be indicative of genuine claims for protection, in this matter it does not outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicants are not credible witnesses.[129]In making this finding the Tribunal has considered the oral evidence of each of the applicants supporting the other's claims. It accepts their evidence was generally consistent. It has also considered the oral evidence of [friend (d)] who indicated the applicant's children in Nigeria were not in a safe place. She said the applicants were not safe and Boko Haram is looking for them. She said it is because Boko Haram wanted the second named applicant to join them but the applicants refused. She said they should not return and it is not safe for them to live in Nigeria. However, the Tribunal has found on these set of claims that the applicants are completely lacking in credibility. The Tribunal considers that the evidence of [friend (d)] and that of the applicant in support of each other's case does not lead the Tribunal to change its view, for the reasons outlined above, that the applicants are not credible witnesses as to these claims.[130]In making this finding, the Tribunal has considered the statutory declarations made by [daughter (b) and Community (c)] as to the burning of the church/house in August 2014, affidavit of [neighbour (a)] and letter from the President of Rotary Club in Nigeria date 18 November 2014. However, given the fundamental lack of credibility of the applicants’ evidence, the Tribunal does not give any weight to these statutory declarations and their contents.

Ratio Decidendi

Legal Principle Established

In my view, the criticism of the reasoning of the Tribunal insofar as it concerns the evidence of friend (d) and community (c) is not in the same category. The evidence of friend (d) was general in nature and identified a broad threat from Boko Haram in the most general terms. Similarly, the evidence of Community (c), which is a letter from an unidentified individual giving indirect evidence of some vague “investigations” attributing an act of arson to Boko Haram required no further mention. 3.2 Ground 2 – legal unreasonableness, illogicality or irrationality In the second ground, the appellants contend that the Tribunal made four material findings (particulars 2(a)–(d)) that were adverse to the appellants’ credit, but were not based on or supported by probative evidence and lacked a rational or logical basis. This ground can be addressed in short form. It is trite to say that where intra-mural fact finding by a decision maker is challenged on this basis, particular care must be taken to avoid falling into a merits review; SZMDS at [38], [96]. It is not enough that the appellate court have a preference for a different result. In the present case in my view the criticised findings do not approach the level required to establish jurisdictional error on this basis. In the first particular the appellants allege that the Tribunal’s finding to the effect that the First Appellant’s credibility was undermined because she initially did not take seriously the approach by Boko Haram to recruit the Second Appellant lacked an intelligible justification. That challenge cannot be sustained. The Tribunal took the view at [100] that it was inherently implausible that the second appellant would be permitted to remain at school in circumstances where other boys from that school were known by the first appellant to have been forcibly recruited by Boko Haram. Whilst the first appellant offered an explanation for her position, it was open to the Tribunal to reject that explanation and to reach the conclusion that it did. The appellants’ submissions in relation to the second particular diverge from the pleading. They submit that the Tribunal erred in finding that it was “troubling” that the Tribunal failed to engage with critical issues when it conversed with the person who answered the telephone number listed in the Church’s website as being the first appellant’s husband. They also submit that it was irrational for the Tribunal to conclude that he necessarily was located at the church at the time of the call, given that it was a mobile number that was called. These submissions do not rise higher than criticisms of the factual findings of the Tribunal by way of impermissible merits review. The third particular points to what is said to amount to an error of fact finding by the Tribunal. In my view it cannot be said to give rise to a conclusion that the Tribunal fell into jurisdictional error by reason of engaging in legally unreasonable reasoning.