BNE24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 179
•20 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BNE24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 179
File number(s): PEG 126 of 2024 Judgment of: JUDGE LIVERIS Date of judgment: 20 January 2025 Catchwords: MIGRATION – REVIEW OF A DECISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL – applicant self-represented – oral application to adjourn the hearing not allowed – whether the Tribunal erred in making adverse credibility findings – whether the Tribunal’s findings are illogical or unreasonable – no jurisdictional error established – amended application dismissed with costs Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 175, 190
Migration Act 1958 (Cth) ss 5J(1), 36(2)
Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021
Cases cited: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146
DAO16 v the Minister for Immigration and Border Protection [2018] FCAFC 2
Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham [2000] HCA 1
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105
SZSOV v Minister for Immigration and Citizenship [2013] FCCA 949
Division: Division 2 General Federal Law Number of paragraphs: 35 Date of hearing: 20 January 2025 Place: Perth Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Ms Woollett Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 126 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BNE24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LIVERIS
DATE OF ORDER:
20 JANUARY 2025
THE COURT ORDERS THAT:
1.The Applicant’s oral application for an adjournment of the hearing today is refused.
2.The name of the First Respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
3.The name of the Second Respondent be amended to read “Administrative Review Tribunal”.
4.The Amended Application filed on 28 December 2024 is dismissed.
5.The Applicant pay the First Respondent’s costs fixed in the sum of $5,400.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE LIVERIS
The applicant is a citizen of Indonesia. On 11 November 2016, he arrived in Australia pursuant to a work and holiday visa that was granted to him on 27 October 2016 and which ceased on 11 November 2017.
The applicant applied for a protection visa on 5 October 2017. In the application, the applicant provided reasons why he left Indonesia as, in effect, that he had been threatened with harm by several groups and the Government of Indonesia when he attended a demonstration against the religious racism on 4 November 2016. He said that he was arrested, jailed for three days and made to suffer inside the prison. He went on to say that the harm he experienced was being kicked and punched in the face and threatened to be killed by a police officer acting on orders of the Government of Indonesia. He said that this was being done to him because he is one of the activists against racism in religion. He said that he didn't try to seek help because too many of the people in the government are Christian.
He tried to return to Indonesia in June 2017, but the situation was still not safe, so he decided to come back to Australia and look for protection. He said that the group is everywhere in Indonesia because they are inside the government, and they will keep searching for him and harming him because he is a Muslim, and they do not like that he attends and keeps doing activist actions against racist religion in the country.
On 15 March 2018, the delegate of the Minister refused the applicant's visa application. On 16 March 2018, the applicant sought a review of the delegate's decision in the Administrative Appeals Tribunal. On 25 March 2024, the applicant attended a hearing before the Tribunal. On 26 March 2024, the Tribunal affirmed the delegate's decision to not grant the applicant a visa. The Tribunal accepted that the applicant attended the demonstration on 4 November 2016, that he took a bus to the rally and that six days later, he left Indonesia. However, the Tribunal wasn't satisfied that the applicant left Indonesia because he was harmed while he was being detained by the police as he had claimed. The Tribunal did not accept that the applicant was arrested by police, that he was detained for three days or for any period, did not accept that he was punched and kicked by police or was otherwise of any adverse interest to police or that they were looking for him.
The Tribunal also did not accept that the applicant would be harmed because he has proof that Christian people are racist towards Muslim people, even though that claim was not advanced at the hearing. It had been referred to in writing in the visa application. The Tribunal was not satisfied that the applicant would face any harm from police, politicians or any Indonesian authorities or that he would be subject to arbitrary arrest or be killed.
The Tribunal also did not accept that the applicant suffers from depression and anxiety or requires treatment for those conditions or that he faces serious harm or significant harm in Indonesia on this basis. The Tribunal pointed out that even if it accepted that the applicant suffered or would come to suffer depression or anxiety, it was not satisfied that this would meet the legislative criteria for a visa.
The Tribunal did not accept that the applicant would be of adverse interest to anyone in Indonesia as a person who attended the demonstration on 4 November 2016. The Tribunal noted that the demonstration took place over seven years ago and was attended by more than 100,000 people. The applicant was also able to leave Indonesia without adverse attention as well as return back to Indonesia. The Tribunal considered the claims made cumulatively and did not accept that the applicant would face a real chance of serious harm now or in the reasonably foreseeable future if he was returned to Indonesia.
The Tribunal found that the applicant does not have a well-founded fear of persecution within the meaning of section 5J(1) of the Migration Act 1958 and that he did not meet the criteria in section 36(2)(a). The Tribunal went on to consider the applicant's claims against the complementary protection criterion and on the same basis determined that the applicant did not face a real chance of serious harm. The Tribunal, therefore, found that the applicant did not meet the complementary protection criteria in section 36(2)(aa) of the Act.
On 3 April 2024, the applicant filed an application for review in this court. In the application as filed, the applicant set out grounds of review that alleged the Tribunal member relied on correct information and decided his case using facts from another case. He also alleged the Tribunal failed to consider many vital integers of his case. He further alleged that under section 44 of the Administrative Appeals Tribunal Act 1975, there is a description authorising him to take action in this court.
On 28 December 2024, in accordance with orders made by a Registrar on 27 August 2024, the applicant filed an amended application. He abandoned the initial three grounds and pleaded a single ground of review which, broadly speaking, raises issues about whether the Tribunal made findings that were illogical or legally unreasonable.
The applicant appeared today on his own behalf. He made submissions that suggested that he has had some legal assistance in preparing his amended application and presenting his case, although I note that a legal representative has not ever filed a notice in proceedings in this court for the applicant. The applicant did not file a written outline of submissions but made some oral submissions to me further to his ground of review. During his submissions, the applicant raised the possibility of an adjournment of the hearing to enable him to engage legal representation and have a lawyer represent him. That was raised for the first time at the hearing.
Under section 175 of the Federal Circuit and Family Court of Australia Act 2021, there is no general entitlement for a person to be represented by a lawyer in proceedings in this court. However, in migration proceedings, an applicant's self-representation is a factor that needs to be taken into account in considering whether a case should be adjourned or not.
The court has a broad discretion in relation to adjourning applications, but that must be considered having regard to the overarching purpose of the civil practice and procedure provisions contained in section 190 of the FCFCOA Act. I did not consider that the general circumstances presented by the applicant warranted the exercise of a discretion to adjourn the proceedings to another day on the basis that he contended, and I did not allow the adjournment application.
In general terms, in the application, the applicant has the onus of establishing jurisdictional error. I explained to the applicant at the start of the hearing that the court does not have jurisdiction to determine the merits of the visa application or jurisdiction to issue him with a visa. The court's jurisdiction is confined to determining whether the tribunal made jurisdictional error when it determined the visa application as a review of the delegate's decision.
The applicant said to me today that there was a lack of evidence about certain events in his application because the incident happened some time ago. An important part of the Tribunal's reasoning was to reject elements of the applicant's account because it did not consider them credible. The Minister's counsel took the court and the applicant through a summary of the credibility findings that were made by the Tribunal and made submissions as to why the Minister contends they were legally sound.
I will go through now an analysis of ground one pleaded in the amended application to explain why, for the reasons that I will set out, I do not find that the ground has been made out or that the Tribunal otherwise made any jurisdictional error in determining the applicant's case.
The principles that apply to legal unreasonableness and illogicality in the context of credibility findings were set out by the Full Court of the Federal Court in DAO16 v the Minister for Immigration and Border Protection[1] that:
[1] [2018] FCAFC 2.
The relevant principles can be summarised as follows.
(1)While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146 (CQG15) at [37]–[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration & Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration & Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2)Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:
135.… A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(Emphasis added)
(3)By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration & Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration & Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration & Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].
(4)Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration & Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:
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 …
(citations omitted)
(5)A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]–[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].
It is evident from these principles that credibility findings may be challenged in judicial review proceedings. However, the threshold for establishing jurisdictional error is high. An applicant must show more than emphatic disagreement with the findings of the Tribunal. An applicant must show that no rational or logical decision-maker could have arrived at the same conclusion on the evidence.
The ground of the amended application directs my attention to a number of paragraphs in the Tribunal's reasons, starting at paragraph 53. In that paragraph, the Tribunal stated that the overall narrative advanced by the applicant was inherently implausible. The Tribunal identified a number of concerns that it had that it thought may be more readily explained on the basis that the police did not and had never had any adverse interest in the applicant. These included his release by police, that he was able to freely depart Indonesia, his decision voluntarily to come back to Indonesia, the lack of any warning from his family of adverse police attention and his ability to freely return and subsequently depart Indonesia without attention. When the Tribunal asked the applicant about these factors and suggested to him that his overall narrative was inherently implausible because of them, he said only that he was telling the truth or claimed that he couldn't understand why certain things did or did not take place.
As a consequence of the Tribunal's assessment of the applicant's evidence and its questioning of him, the Tribunal approached the applicant's evidence with considerable caution. Also, when the Tribunal's reasons are read as a whole, as they must be, the Tribunal's concerns about the applicant's evidence also built in a concern about his delay in applying for the visa. As a general principle, it is open to the Tribunal to take a delay in applying for a protection visa into account in assessing the credibility of an applicant, but the facts of each case would affect the applicability of this general principle.[2]
[2] Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105.
In this case, the Tribunal pointed out that the applicant didn't apply for a protection visa immediately after the harm he claimed to have experienced. He was in Australia for over six months, where he could have done so, but he didn't. He also returned to Indonesia voluntarily in this time despite the experiences that he had claimed to have suffered there.
After he returned to Australia again, having been able to freely leave the country, he says to seek protection from police, he waited approximately three months before applying for the protection visa. The Tribunal asked the applicant about this. He said that he was hoping or waiting for things to settle down in Indonesia. The Tribunal did not accept that this was plausible but instead thought that the effect of both periods of delay and a voluntary return to Indonesia undermined the genuineness and depth of the applicant’s claims to fear harm in Indonesia. I do not consider there is any error in this approach.
The Tribunal also assessed the applicant's evidence as to the three days he claimed to spend in detention to be vague and lacking in detail and not having the appearance of events being genuinely recalled. This was a matter for the Tribunal to determine, hearing the applicant's evidence and raising its particular questions and concerns with him. But in making the findings, the Tribunal had regard to the possibility that in recalling past events, the applicant had tried to put them out of his mind and forget them and that recalling incidents caused him significant distress.
The Tribunal also noted the inconsistencies between the applicant's visa application and his evidence at the hearing, including in relation to the status of his university course. In the visa application, the applicant claimed that he had completed and passed his studies at university as an accountant in June 2016, having started in June 2012. That was at Universitas Putra Indonesia. However, at the hearing the applicant claimed that he was studying business management at the university, that he started a 4-year course in mid-2012. The applicant said that he hadn't finished that course and had one semester left to complete.
When the Tribunal asked him about the inconsistencies, the applicant reiterated that he had not finished university. He said that maybe the friend who helped him with the protection visa application made the error. When the Tribunal asked him why, if he started his course in June 2012, he had not completed it yet, the applicant said that he decided to put off the last six months of the course. The Tribunal didn't accept what the applicant said about this though took into account that it is not unreasonable for a person to obtain assistance from a friend in completing a visa application.
The claim that the applicant had not completed university was central to the claim that he had arranged the 13 students from the university to go to the demonstration with him and also that the police came looking for him at the university. The Tribunal thought that the inconsistency between the visa application and the evidence at the hearing was an important part of the claim. And in not accepting the plausibility of the applicant's explanation, the Tribunal took into account that the information in the visa application was given voluntarily. The Tribunal took into account that at the start of the hearing, the applicant asked to correct a matter in the application, but he did not point to any errors in the university and education details.
In my view, all of the matters pointed to by the Tribunal in reaching the conclusion that the applicant was not a credible witness and approaching his evidence with considerable caution reflect a sound analysis of the evidence. The Tribunal went into matters such as inconsistencies in the narrative, the absence of detail and implausibility and the interaction of these factors in making the findings that it did.
I do not consider that any of the circumstances identified by the Tribunal were objectively minor matters. In my view, the findings were rationally made and based upon facts that had logical and probative value. They were articulated and analysed and set out clearly. I do not consider that the Tribunal made any error in the way it approached its assessment, and, in my view, there is no error as alleged.
Further, in the particulars of the ground of review, it is included that the Tribunal was required to give reasons for its decision and not a subset of reasons as to why it accepted or rejected individual pieces of evidence. Reference is made in the amended application to CQG15 v Minister for Immigration and Border Protection.[3] A materiality particular is pleaded at ground 1(i) that alleges the error is material on the basis of the Tribunal’s findings at paragraph 54 in rejecting the credibility of the applicant, and the brevity of reasons at paragraph 58.
[3] [2016] FCAFC 146.
At paragraph 58, the Tribunal summarised its concluded findings, that it did not accept that the police arrested the applicant, detained him for three days or any period whatsoever, that he was punched and kicked by police, that he was of any adverse interest to police, that the police were looking for him following his departure in November 2016, or subsequently whether at his home, university or anywhere else, or that he is of any adverse interest to the police whatsoever. As for the contention or suggestion of brief reasons, brevity alone is not a jurisdictional error.[4]
[4] BSG21 v Minister for Immigration and Multicultural Affairs [2024] FedCFFamC2G 1205, citing SZSOV v Minister for Immigration & Anor [2013] FCCA 949 at [44]; see also Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [62] – [69].
In any event, the Tribunal's summary of conclusions at paragraph 58 are to be read together with the detailed analysis of the evidence and the applicant's credibility, and the process of consideration and reasoning that the Tribunal undertook in reaching the findings that it did at that paragraph in not accepting aspects of the applicant's claims.
The proposition in the particulars that is attributable to CQG15 is an extract from Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham.[5] at paragraph 67, where McHugh J set out that:
If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word "implausible". The disbelief arose from the Tribunal's view that it was inherently unlikely that the events had occurred as alleged.
[5] [2000] HCA 1.
In my view, in this case, the reasons for why the Tribunal did not accept the matters set out in paragraph 58 and otherwise treated the applicant's evidence with caution are clearly set out in the reasons. I do not consider that any jurisdictional error has been made out, and in the circumstances, the amended application should be dismissed.
Counsel for the Minister has applied for an order that the applicant pay costs fixed in the sum of $5,400. The applicant asked for a payment arrangement, and it was explained that this consideration is a different one to whether an order for costs should be made at all.
The applicant had no further submissions to make. In circumstances where the amended application is dismissed, I will order the applicant pay the Minister’s costs fixed in the sum of $5,400, which I note is within the amount specified in Sch 2, Pt 2, Div 1 of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Liveris. Associate:
Dated: 14 February 2025
0
15
4