BNH16 v Minister for Immigration - [2016] FCCA 2704

FEDERAL CIRCUIT COURT OF AUSTRALIA

BNH16 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2704

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visas – whether the Tribunal made adverse credibility findings without factual findings supported by evidence – adverse credibility findings did not lack an evident and intelligible justification – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476.

First Applicant:

BNH16

Second Applicant:

BNI16

Third Applicant:

BNJ16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1570 of 2016

Judgment of:

Judge Street

Hearing date:

20 October 2016

Date of Last Submission:

20 October 2016

Delivered at:

Sydney

Delivered on:

20 October 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Ms A Lucchese

Sparke Helmore

ORDERS

The application is dismissed.
The First and Second Applicants to pay the First Respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1570 of 2016

BNH16

First Applicant

BNI16

Second Applicant

BNJ16

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 26 May 2016 affirming a decision of the delegate not to grant the applicants Protection (Class XA) visas. The first and second applicants are the parents of the third applicant, who is a child. The applicants are all citizens of Rwanda. The claims of the applicants were assessed as against that country.
The first applicant was granted a Student TU-573 visa on 28 October 2013. The applicants arrived in Australia on 16 November 2013. The applicants applied for protection on 28 November 2013. The second and third applicants initially made no specific claims for protection. Rather, the first and second applicants relied upon being members of the family unit of the first applicant.
The first applicant claimed to fear harm by reason of deserting the Criminal Intelligence Division “the CID”, for whom he worked as a police officer. The first applicant alleged to fear harm because of an assignment he was given and did not complete in relation to a proposal that he poison a particular person. The first applicant claimed to fear harm on the basis that he would be perceived as having a connection with opposition figures or activists, and as such opposed to the Rwandan government. The first applicant claimed to fear harm by reason of having sought protection in Australia.

The Delegate’s Decision

The delegate identified concerns with the credibility of the first applicant. The delegate was not satisfied the first applicant had a real chance of being persecuted for a Refugees Convention reason. The delegate was not satisfied that the first applicant’s fear was well founded. The delegate was not satisfied that Australia had protection obligations to the first applicant. The delegate was not satisfied the first applicant has a real chance of being subject to significant harm should he be returned to Rwanda.
The delegate was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the first applicant being removed from Australia to Rwanda, there is a real risk that the first applicant will be subject to significant harm. The delegate was not satisfied that the first applicant met the criteria under s.36(2) of the Act and refused to grant the first applicant a Protection (Class XA) visa. On that basis, the delegate also refused to grant a protection visa to the second and third applicants.

The Tribunal’s Decision

The applicants applied for review on 22 October 2014. By letter dated 15 February 2016, the applicants were invited to attend a hearing on 11 March 2016. Prior to the hearing on 11 March, detailed written submissions were provided by the applicants’ migration representative as well as further evidence. The Tribunal expressly referred to that material in its reasons.
The applicants attended the hearing on 11 March 2016, as well as attending a further hearing on 16 March 2016, where the applicants gave evidence and presented arguments. The applicants’ migration representative was present on both hearings. The applicants were also given an opportunity to provide further information and submissions on or before 30 March 2016. Further submissions were provided to the Tribunal on 30 March 2016. Those submissions sought to address the credibility concerns in relation to the first applicant’s evidence.
The second and third applicants’ claim to fear harm were in substance, derivative from the first applicant’s claim. The Tribunal correctly identified the relevant law and summarised the applicants’ claims and evidence. The Tribunal made comprehensive adverse credibility findings against the first applicant, which were the subject of detailed reasons in respect of the inconsistencies and grounds of implausibility in respect of the first applicant’s evidence. The Tribunal also made adverse credibility findings in respect of the second applicant’s evidence.
The Tribunal did accept that the first applicant had worked as a police officer. The Tribunal expressly took into account in evaluating the first applicant’s credibility, a psychologist’s report provided by Mr Borenstein dated 17 February 2016. The Tribunal did not accept that the evidence of the first applicant in the hearing was inconsistent or confused on the basis of the first applicant suffering from Post-Traumatic Stress Disorder (“PTSD”). The Tribunal did not accept the first applicant’s explanation of mental confusion in relation to the inconsistencies in his evidence.
The Tribunal did not accept that the first applicant’s PTSD diagnosis or other factors outlined in the written and oral submissions explained the cumulative impact of the deficiencies identified by the Tribunal in the evidence. The Tribunal was not persuaded that the cumulative impact of the deficiencies in the evidence identified by the Tribunal in its reasons, were explicable by the first applicant suffering from PTSD, language difficulties, lack of effort or skill of immigration advisers, the passage of time, or any other reason. The Tribunal found that the problems identified with the first applicant’s evidence were the product of a lack of truth in key aspects of the first applicant’s claims.
The Tribunal found that its assessment of the first applicant’s credibility was supported by the plausibility concerns identified by the Tribunal in relation to the first applicant’s claims. The Tribunal found that the plausibility concerns were not the product of deficiencies, or the alleged deficiencies, in the applicant’s evidence. The Tribunal found that the cumulative effect of the deficiencies in the first applicant’s evidence together with the plausibility concerns are so significant that they taint the entirety of the applicants’ claims.
The Tribunal was not satisfied that the first applicant and the second applicant had been truthful witnesses in relation to key aspects of their claims. The Tribunal was not satisfied the first applicant was a person who refused to act according to cultural practices of the CID to engage in extrajudicial activity.
The Tribunal was not satisfied that the first applicant deliberately foiled a poisoning attempt on a particular person in terms of asking to have his wife warn the person. The Tribunal was not satisfied the first applicant came under suspicion relating to the poisoning attempt.
The Tribunal was not satisfied the first applicant became aware of a plan to harm another person by framing him for a grenade attack or any other reason or, that the first applicant tipped off the other person about that threat to him and assisted him and his wife leave the country. The Tribunal was not satisfied the first applicant was detained and tortured as a result of authorities discovering his conversations with that particular person. The Tribunal was not satisfied with the general claims of the first applicant including refusing a summons, warning targets and being targeted and detained and harmed on multiple occasions.
The Tribunal was not satisfied that the first applicant fled his police duties in 2012, was arrested and convicted of desertion and subsequently detained for 70 days. The Tribunal was not satisfied the first applicant was given assignments with a view that he could come to harm or that there was an intent by authorities to harm the first applicant.
The Tribunal was not satisfied the first applicant left Rwanda in 2013 due to fears of harm as claimed. The Tribunal was not satisfied the second applicant was issued with a summons for the first applicant after his departure from Rwanda or that there is an outstanding summons for the first applicant.
The Tribunal was not satisfied that the second applicant has at any point been questioned or harassed by authorities looking for the first applicant. The Tribunal accepted that the first applicant applied for asylum in Uganda but was not satisfied that this was because the first applicant feared or faced any real chance of persecution or significant harm in Rwanda. The Tribunal was not satisfied that any past conduct of the first applicant during his time in the CID had created an adverse interest by authorities in the first applicant that would lead to a real chance of him or the other applicants facing serious or significant harm.
The Tribunal was not satisfied that the first applicant holds a political view in opposition to the regime such that he has been or, would be politically active in Rwanda or in relation to Rwandan political issues in Australia. The Tribunal was not satisfied the first applicant would wish to be politically involved in opposition to the regime either in Rwanda or in Australia.
The Tribunal was not satisfied the first applicant has any substantive contact with opposition figures in relation to advocacy against the government that would create a real chance of serious or significant harm to the first applicant or other applicants. The Tribunal was not satisfied that the first applicant holds a position of an activist with opposition views such that he faces a real chance of serious or significant harm. The Tribunal was not satisfied the applicant has any substantial connection with opposition figures or activists, either inside or outside of Rwanda that would create a real chance of serious or significant harm to any of the applicants upon return to Rwanda.
The Tribunal found that it did not have independent evidence before it that would establish that the first applicant would face a real chance of serious or significant harm on the basis of having left the police force and Rwanda. The Tribunal found that it did not have independent evidence before it indicating that the first applicant would be perceived to be in opposition to the regime as he has left the police force or the country. The Tribunal was not satisfied the first applicant faces a real chance of serious or significant harm for any of the reasons claimed or any other reason.
The Tribunal was not satisfied that the second applicant faces a real chance of serious or significant harm for any of the reasons claimed. The Tribunal was not satisfied the second applicant was questioned or harassed by authorities looking for the first applicant.
The Tribunal noted that the third applicant’s claims were made on the basis of being a member of the family unit. The Tribunal was not satisfied that the third applicant faces serious or significant harm given the Tribunal’s findings with respect to the first applicant and second applicant. The Tribunal was not satisfied that either the first, second or third applicants have a well‑founded fear of being persecuted for a Convention reason for any of the reasons claimed or any other reason.
The Tribunal was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of either the first, second or third applicants being removed from Australia to Rwanda, there is a real risk that they will suffer significant harm for any of the reasons claimed or any other reason. The Tribunal was not satisfied that the applicants met the criteria under s.36(2) of the Act and affirmed the decision of the delegate in respect of the first, second and third applicants.

Proceedings before this Court

The applicants’ proceedings were commenced on 22 June 2016, at which time the applicant was represented. The grounds of the application are as follows:-
a. The Second Respondent (The Tribunal)erred by disposing of the Applicant’s claim that he had been detained and tortured by the Rwandan authorities by merely making an adverse credibility finding without any factual findings supported by clear and cogent evidence.
Particulars
i. At D[103] the Tribunal questioned the Applicant’s credibility based on “inconsistencies and his evidence as to the number and timing of detention”. That was not a proper basis for disposing of the Applicant’s evidence in support of his claim that he was still of interest to the authorities.
ii. At D[122] & [123] the Tribunal it found that certain events were “not plausible” or were described as bearing “extreme implausibility”. That was not a proper basis for disposing of the Applicant’s evidence in support of his claim that he was still of interest to the authorities.
b. The Tribunal erred by disposing of the Applicant’s evidence that he was diagnosed as suffering severe and chronic symptoms of Post Traumatic Stress Disorder, provided by an expert, merely on the basis that it did not overcome “the cumulative impact of the deficiencies identified in the evidence” at D[138]. That was not a proper basis for disposing of the Applicant’s expert evidence in support of his claim that he had difficulties in recalling or recounting specific traumatic experiences.
(Errors and emphasis in the original)
By an order of the Court made on 10 August 2016, the applicants were given an opportunity to file an amended application, affidavit evidence and submissions. Time for that opportunity was extended on 22 August 2016. No such documents were filed. On 12 September 2016, the applicants’ legal representative filed a notice of withdrawal of lawyer. That document noted that the notice of intention to withdraw had been served on the client at least seven days before the filing of the document on 12 September 2016.
On 15 September, the first applicant wrote to the Court referring to the withdrawal of the lawyer from his case and asserting that he needed more time to look for another lawyer who can charge a reasonable cost. The first applicant stated that he was in financial hardship at the moment and that is why he is looking for a lawyer who could help at a low cost. On 15 September 2016, the applicants were sent an email by Court staff referring to the email dated 15 September 2016, copied to the parties, identifying that the matter remained listed for hearing and that any adjournment application must be supported by an application in a case and an affidavit that explains why an adjournment is necessary. The email expressly recorded that the current explanation in the email is not sufficient. No application in a case or affidavit was filed.
At the commencement of the hearing, the Court explained to the applicants that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained to the applicants that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicants. The Court explained that this meant, in summary, the Court was considering whether the Tribunal’s decision was lawful and whether the Tribunal’s decision was fair.
The Court explained to the applicants that if satisfied the Tribunal’s decision was affected by relevant legal error, the Tribunal’s decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the Tribunal’s decision was affected by relevant legal error, the application would be dismissed.
The Court explained that it would have identified the evidence, then hear submissions from the first and second applicants if they wished, then hear submissions from the first respondent in reply and then hear submissions from the first and second applicants in reply. The first and second applicants confirmed that they understood the nature of the hearing as explained by the Court.
From the bar table, the first applicant contended that the decision was unfair because the Tribunal did not look at all the evidence and contended that there was no reason why the Tribunal had rejected the applicant’s evidence. The first applicant also complained that the Tribunal had not taken into account the report of the psychologist, Mr Borenstein. The first applicant maintained that if he went back, he would be tortured or harmed or killed. The first applicant complained that the Tribunal did not ask the applicants for more evidence to address the concern of the Tribunal. The first applicant took issue with the adverse findings by the Tribunal in relation to the applicants’ fears.
The solicitor for the first respondent then responded to the submissions advanced orally by the applicant and also in relation to the grounds in the application. The first respondent submitted that there were reasons by the Tribunal identifying the inconsistencies and implausibilities in relation to the applicant’s adverse credibility findings made by the Tribunal and that those adverse credibility findings were open to the Tribunal. The solicitor for the first respondent said that, in substance, the applicant’s submissions had re-agitated the same grounds as covered by the application, that the credibility findings could not be said to be illogical and that the Tribunal had clearly taken into account the psychologist’s report. The solicitor for the first respondent submitted that the grounds in the application failed to identify any jurisdictional error.
In reply, the first applicant asked for more time to put on more information. The first applicant contended that he had not had an adequate chance to put on information and referred to the email that he had sent to the Court and said that he did not have a lawyer to help him prepare the documents or a submission. The first applicant said he did not have enough money to pay the lawyer who had been acting and that he was working and hoped to get enough money. The adjournment application was opposed by the first respondent.
The first applicant was asked what steps he had taken to obtain a lawyer since he became aware that his lawyer was ceasing to act. The first applicant responded that he had spoken to a lawyer however, he needed money. The first applicant did not identify the taking of proper or adequate steps to obtain legal representation after being served with the notice of intention of ceasing to act or with the notice of ceasing to act. Nor, did the first applicant adequately explain the failure to put on further affidavit evidence in circumstances where the applicant had been told that the explanation advanced in the email was not sufficient. The substance of the applicants’ grounds are in essence, the same matters raised in the applicant’s email.
The Court is not satisfied that there would be any utility in granting an adjournment. The adjournment would only unnecessarily add to the costs of the parties and utilise limited Court time. The Court is of the view that the applicants have had a reasonable opportunity to obtain further legal representation and in all the circumstances, that an adjournment is not warranted in the interests of the administration of justice. It is for these reasons that an adjournment was refused.

I accept the submissions of the first respondent that nothing said by the applicants from the bar table identified any jurisdictional error. This was a case in which the Tribunal engaged in orthodox reasoning in relation to the adverse credibility findings. Those adverse credibility findings were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification.
It is apparent from the Tribunal’s reasons that the Tribunal took into account the applicant’s claims and evidence and provided cogent reasons in support of the adverse findings made by the Tribunal. Those adverse findings were open. It is also apparent that the Tribunal took into account the psychologist’s report, and that it was a matter for the Tribunal as to what weight to give that evidence. The adverse findings by the Tribunal cannot be said to be illogical or irrational.
The proposition that the Tribunal made adverse credibility findings, raised in Ground a, without any factual findings supported by clear and cogent evidence is not supported by a fair reading of the Tribunal’s reasons. The Tribunal’s reasons reveal a considered conclusion on the first applicant’s credibility with detailed reasons for that conclusion. The Tribunal referred to the inconsistencies in the first applicant’s evidence regarding his involvement in the CID, inconsistencies regarding his evidence about his detention, inconsistencies in evidence concerning the assassination plot and the implausibility of key aspect of the first applicant’s claims.
The adverse credibility findings by the Tribunal were open and cannot be said to lack an evident and intelligible justification. The Tribunal identified clear and cogent evidence to support those adverse findings. No jurisdictional of the kind alleged in Ground a is made out. Ground a is, in substance, an impermissible challenge to the adverse findings of fact made by the Tribunal.
In relation to Ground b, it is apparent from the Tribunal’s reasons that it took into account the psychologist’s report and the alleged post‑traumatic stress disorder of the first applicant. It was a matter for the Tribunal to determine the first applicant’s credit and to determine what weight to give the psychologist’s report. I accept the first respondent’s submission that Ground b simply invites an impermissible merits review of the Tribunal’s findings.
I should add that there was no duty upon the Tribunal to invite the applicant to adduce further evidence. Further, it is apparent that the credibility of the first applicant was a live issue from the findings of the delegate. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal did not fail to provide procedural fairness to the applicants in the conduct of the review. No jurisdictional error has been made out.
The application is dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 10 November 2016