BOP17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 908
Federal Circuit and Family Court of Australia
(DIVISION 2)
BOP17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 908
File number: MLG 735 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 4 November 2022 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant protection visa – whether Tribunal acted unreasonably or made findings that were illogical or irrational – whether Tribunal erred by misapprehending applicant’s evidence and relying on its misapprehension – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 5J, 36, 476, 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 2.05
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 at [187]
ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174
Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12
Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500; [2016] FCAFC 185
Division: Division 2 General Federal Law Number of paragraphs: 71 Date of hearing: 1 August 2022 Place: Perth Counsel for the Applicant: Mr R Selliah Solicitor for the Applicant: Rasan T Selliah & Associates Counsel for the First Respondent: Mr A Cunynghame Solicitor for the Respondents: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 735 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BOP17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
4 November 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
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).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
Before the Court is an application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 23 March 2017. The Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a Protection (Class XA) visa (protection visa). The application is filed pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
The grounds raised by the applicant assert that the Tribunal decision was unreasonable because of adverse credibility findings that were illogical or irrational, and that the Tribunal erred by misapprehending the applicant’s evidence and relying on its misapprehension to make adverse credibility findings. For the reasons explained below, the applicant’s grounds do not establish jurisdictional error in the Tribunal decision.
BACKGROUND
The applicant is a citizen of Malaysia. She arrived in Australia most recently in July 2015 as the holder of a tourist visa.
On 3 September 2015 the applicant applied for a protection visa. In her protection visa application, the applicant claimed that she would face harm from money lenders in Malaysia who chased her for debts incurred by her husband who had disappeared. She also claimed that her husband hit and tortured her.
The application for a protection visa was refused by a delegate of the Minister on 24 February 2016.
On 7 March 2016 the applicant lodged an application with the Tribunal seeking review of the delegate’s decision.
On 7 February 2017 the Tribunal wrote to the applicant advising that it was unable to make a favourable decision on the information before it, and invited her to attend a hearing on 10 March 2017 to give evidence and present arguments. The applicant attended the hearing.
On 23 March 2017 the Tribunal affirmed the delegate’s decision.
TRIBUNAL DECISION
The Tribunal accepted that the applicant is a citizen of Malaysia and that Malaysia is the receiving country for the purposes of assessing her claims for protection.
The Tribunal had serious doubts about the credibility of the applicant’s claims regarding the problems she allegedly experienced in Malaysia from the people her husband allegedly borrowed money from. The Tribunal described aspects of the applicant’s evidence as confusing, implausible, vague and unconvincing.
The Tribunal did not accept that the applicant’s husband borrowed 130,000 ringgit from unknown people and then disappeared on 31 January 2015. The Tribunal also did not accept that the applicant was visited by any unknown people, either at home or at her workplace, and threatened. The Tribunal considered it implausible that if the applicant had received a visit from people who claimed she was now responsible for a debt owed by her husband, those people would not disclose basic details such as how much she had to repay, the manner in which she was meant to pay the money back to them or by when the money was to be repaid. Further, the Tribunal did not accept that the applicant reported these incidents to the police.
The Tribunal did not accept the applicant’s claim that she was allegedly raped on four occasions by the unknown people. The Tribunal noted that these claims were made for the first time at the hearing before it, and considered that her failure to mention anything in respect of these events in her protection visa application or prior to the hearing raised serious doubts about her credibility. The Tribunal did not accept the applicant’s explanations about why the claims were not made at an earlier time, and found her evidence about the claimed rapes to be vague and unconvincing.
The Tribunal noted that the applicant, in her protection visa application, claimed that her husband always hit or tortured her, and that she experienced difficulties in her marriage. At the hearing before the Tribunal, the applicant made no reference to claims that she was physically abused by her husband or tortured by him. The applicant made no claim during the hearing that she feared harm from her husband if she returned to Malaysia despite claiming in her protection visa application that her husband was a danger to her. The Tribunal did not accept that the applicant suffered any problems in her marriage with her husband as she claimed, including any physical abuse, torture or mistreatment.
The Tribunal was therefore not satisfied that the applicant had a well-founded fear of persecution in accordance with s 5J of the Migration Act.
The Tribunal found that the applicant did not satisfy the refugee criterion set out in s 36(2)(a) of the Migration Act. The Tribunal also found that the applicant was not a person in respect of whom Australia has protection obligations under the complementary protection criteria in s 36(2)(aa) of the Migration Act.
Accordingly, the Tribunal affirmed the decision not to grant the applicant a protection visa.
PROCEEDINGS BEFORE THIS COURT
The applicant commenced proceedings in this Court by way of an application filed on 10 April 2017. The application was filed within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The applicant now relies on an amended application which was annexed to her written submissions and formally filed on 2 August 2022,[1] after leave was granted at the hearing for the applicant to rely on the amended application.
[1] The amended application was electronically lodged after 4:30pm on 1 August 2022, which is deemed to have been filed on 2 August 2022 pursuant to r 2.05(4) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
The amended application abandons the two grounds contained in the applicant’s original application and raises the following two new grounds, referred to as grounds 3 and 4, reproduced without alteration:
Ground three:
Decision of the Second respondent was legally unreasonable and infected by jurisdictional error because of the Second respondent’s credibility findings against the Applicant and the reasoning leading those findings were irrational and illogical.
Particulars: Particulars of findings made unreasonably/based on no probative evidence
i)The Tribunal misunderstood the evidence of whether the applicant’s husband was working or not working to arrive a credibility findings in paragraph 22 -23. That the applicant’s husband was working is not supported by the transcript of the hearing (transcript p6).
ii)The finding of implausibility at paragraph 23 that the lenders did not give details apart from borrowing 1300,00 ringgit and how to pay money back to them or whom is irrational and illogical.
iii)Findings in paragraph 25 about inconsistency in PV application and the hearing of Tribunal regarding her contact with people and the omission of physical harm is irrational and illogical because there were evidence to the Tribunal that a person who lives in the caravan park assisted her to complete the PV application form (see transcript).
iv)Findings and reasoning process in the paragraph 26 to 27 about the rape incidents as she was claiming first time and the series of finding connected to this claim is illogical and irrational and the Tribunal misunderstood the evidence. The applicant gave evidence to the Tribunal that a male person assisted to complete and write the PV application and the circumstances why she did not tell him the details - see transcript p3, 16-17
v)Findings and reasoning process in the paragraph 37 in relation to the claim of her husband is illogical and irrational and the Tribunal misunderstood the evidence. It is unreasonable not asking particular questions about the claim she made in her PV application in appropriate way. The applicant thought that her husband’s claim had been accepted or no issues in that claim during the interview - See transcript p.19.9 to 20
Ground Four
The Tribunal erred by misapprehending the evidence of the Applicant and then using its erroneous findings about the evidence to make negative credibility findings.
Particulars:
Same particulars in ground Three
Consideration
It is convenient to address both grounds together given that they both rely on the same particulars. Ground 3 asserts that the Tribunal decision was legally unreasonable because the findings of the Tribunal were illogical or irrational, and ground 4 asserts that the Tribunal erred by misapprehending the applicant’s evidence and then relying on its misapprehensions to make adverse credibility findings.
For the purposes of ground 3 of the application, the applicant relies on the principles relating to illogicality and irrationality as expressed by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16. In that case, Crennan and Bell JJ said at [131] and [135]:
131.… The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
135.… Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. 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…
The Full Court of the Federal Court referred to these principles in ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 (ARG15), and continued at [47]:
Subsequent authorities have established that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “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 and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal” (see Minister for Immigration & Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 (SZRKT) at [148] per Robertson J; SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58; 202 FCR 1 (SZOOR) at [84] per McKerracher J (with whom Reeves J agreed); and Minister for Immigration & Border Protection v SZUXN [(2016) 69 AAR 201;] [2016] FCA 516 at [52] per Wigney J). Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error (see also the observations of Beech-Jones J in BKE v Office of Children’s Guardian [2015] NSWSC 523 at [113] and the cases referred to therein).
For the purposes of ground 4, the applicant referred the Court to ARG15 at [83], where the full Court made the following observations about judicial review of credibility findings:
Many of the relevant legal principles which guide the review or a judicial review of findings concerning credibility were recently discussed by the Full Court in CQG15 v Minister for Immigration & Border Protection [(2016) 253 FCR 496;] [2016] FCAFC 146 (CQG15) at [36]–[44] per McKerracher, Griffiths and Rangiah JJ. They may be summarised as follows:
(a)McHugh J’s oft quoted comments in Ex parte Dumairajasingham [(2000) 168 ALR 407; [2000] HCA 1] (which were cited by the primary judge in the proceedings here) to the effect that a finding on credibility is the function of the primary decision-maker (or Tribunal) par excellence, does not mean that such findings are not susceptible to review for jurisdictional error on several potential grounds;
(b)the issue whether or not a credibility finding is tainted by jurisdictional error is “a case specific inquiry” and it is not one which should be analysed by reference to fixed categories or formulas (SZRKT at [77] per Robertson J);
(c)in each case, what the decision-maker has decided must be analysed in detail in order to determine whether or not a jurisdictional error has occurred (SZRKT at [77] per Robertson J); and
(d)without derogating from what is said above regarding the danger of relying too heavily on “fixed categories or formulas” (which includes the danger of blindly repeating McHugh J’s comments in Ex parte Dumairajasingham), adverse credibility findings might involve jurisdictional error on recognised grounds such as:
(i)failure to afford procedural fairness;
(ii)reaching a finding without a logical or probative basis;
(iii)unreasonableness; and/or
(iv)other grounds as discussed by Flick J in SZVAP v Minister for Immigration & Border Protection [2015] FCA 1089; 233 FCR 451 at [20]–[21] and in SZSHV v Minister for Immigration & Border Protection [2014] FCA 253 at [31], as referred to approvingly by the Full Court in CQG15 at [40]–[42].
I now turn to consider the particulars raised by the applicant in the light of these principles.
Particular i
The applicant submits that the Tribunal’s finding that her husband was not working is not supported by the transcript of the hearing before the Tribunal. The applicant further submits that the Tribunal misunderstood the evidence and relied on its misunderstanding to make adverse credibility findings at [22] and [23] of its reasons. These paragraphs relevantly read as follows:
22.The Tribunal has serious doubts about the credibility of the applicant’s claims regarding the problems she allegedly experienced in Malaysia from the people her husband allegedly borrowed money from, for a number of reasons.
23.The Tribunal finds aspects of the applicant’s evidence confusing and implausible. According to the applicant’s evidence she claimed that she last saw her husband on 31 January 2015 when he told her that he was going outstation for some work related issues. Yet, she subsequently claimed that her husband was not working at the time. However, when asked if her husband worked she claimed he was running some kind of business involving vehicle registration…
The first observation I make about these paragraphs is that the concern about credibility at [22] operates as a preface to the credibility concerns that the Tribunal had about the applicant’s evidence discussed from [23] to [35]. It does not relate solely to the concerns expressed at [23].
The applicant relies on the following exchange in the course of the hearing before the Tribunal in asserting error at [23]:
Member: Since when have you not known about your husband’s whereabouts?
[Applicant]: The last time I saw him was 31 January 2015. He came and told me that he’s going outstation, outside for some ...
Member: What sort of work did your husband do?
[Applicant]: He was not working at that – he was working some time at business, business in the sense in – there’s an office in ... , he helped people to do ... and all these things.
Member: Isn’t that a job, isn’t that working?
[Applicant]: He’s not working much. Whenever people ask, he will come back ...
Member:So did he tell you how long he was going outstation for work purposes when he left on 31 January?
[Applicant]: No, because from the time we got married, we were not talking to each other, we were not in good terms. We used to fight a lot. There are times he just said I’m going away, and within a week he would come back, and sometimes he would come after four weeks, so, I didn’t pay much attention.
I do not accept, based on the way in which the evidence was given, that the Tribunal misinterpreted the applicant’s evidence in relation to her husband’s work. In particular:
(a)the Tribunal’s summary that the applicant claimed she last saw her husband on 31 January 2015 when he said he was going outstation for some work-related issues is directly supported by the extracts of the evidence of the applicant given at the hearing set out in the preceding paragraph;
(b)the Tribunal’s summary that the applicant subsequently claimed that her husband was not working at the time is supported by the evidence in the transcript that when asked what sort of work her husband did, the applicant’s initial response was ‘[h]e was not working at that –’; and
(c)the Tribunal’s summary that when she was asked if her husband worked, she claimed he was running some kind of business involving vehicle registration is at least in part supported by the transcript. In the transcript, the applicant is clearly recorded as saying that her husband was involved in some form of business. It is not clear from the transcript that this business involved vehicle registration, but neither party has taken issue with this and I note that there are obvious gaps in the transcription of the evidence.
Having found that the Tribunal did not misinterpret the applicant’s evidence, the jurisdictional error asserted by ground 4 is not established. Further, it should be noted that the Tribunal did not make any finding about whether or not the applicant’s husband was working, and it did not need to. Rather, it simply summarised the applicant’s evidence to highlight the inconsistencies. The statement that the applicant said her husband was not working is accurate, and is not made less so by the fact that she later qualified that by saying that he is not working much.
The Tribunal’s finding or observation that parts of the applicant’s evidence were confusing and implausible was open to it based on the applicant’s oral evidence before it. It is not a finding that no logical decision-maker could have reached based on the applicant’s oral evidence at the hearing insofar as it related to her husband’s work.
Particular i does not establish the jurisdictional error asserted in ground 3 or ground 4.
Particular ii
Particular ii challenges the Tribunal’s finding at [23] that it was implausible that the lenders did not give details to the applicant about her husband’s debt and how to pay it, aside from disclosing the borrowed amount of 130,000 ringgit. The finding of implausibility is said to be irrational and illogical. The Tribunal relevantly said at [23]:
… The Tribunal also notes that the applicant claimed that she was first approached by unknown people, who she claimed looked like they belonged to a gang, on 8 February 2015 at her office, who asked her where her husband was and told her that he owed them money and as he had run away, she now had to pay what he owed them. Apart from telling her that her husband had borrowed 130,000 ringgit, these people did not tell her (nor does it appear from her evidence that she asked them) when her husband allegedly borrowed this money, whether he had paid any of the money back that he allegedly borrowed or how much he owed them, which she was now allegedly responsible for. The Tribunal finds it implausible that if the applicant had received a visit from people informing her that she was now responsible for paying back a debt allegedly owed by her husband, that those people would not disclose these basic details regarding the money that she now allegedly had to repay. More particularly, the Tribunal has difficulty accepting that the applicant herself would not seek further information from these people who appeared to be gangsters about the money that her husband allegedly borrowed. Even if the applicant and her husband had a lot of misunderstanding, as the applicant explained in response, the Tribunal finds it far-fetched that if she had been approached by these people demanding her to repay money that her husband allegedly owed, that she would not make some general enquiries about her husband’s actions and instead not pay these people much attention, as she asserted during the hearing.
In written submissions, the applicant explained the asserted jurisdictional error in the following manner at [12]:
… And the finding of implausibility at paragraph 23 that the lenders did not give details apart from borrowing 1300,00 ringgit and how to pay money back to them or whom is irrational and illogical. Money lenders simply said your husband borrowed money and they showed the applicant’s Malaysian ID, her workplace salary pay slip because husband gave the money lenders these details as surety (transcript 6).
Counsel for the applicant did not elaborate on the submission in any material way at the hearing, other than to assert that the Tribunal did not consider the transcript or the applicant’s evidence at the hearing.
The relevant evidence given by the applicant at the hearing is set out in the following exchange which occurred after the applicant alleged that approximately one week after her husband left someone came to her office:
Member. What happened when they came to your office?
[Applicant]: They came and they asked for me, so I went and met them at the reception and they wanted to talk to me, so I went downstairs, and they asked me your name is [applicant]? I told yes, my name is [applicant]. Then they asked where’s your husband ...? At that time I thought they were his friends, so I told them ... They told he didn’t go for – outstation for work purpose, he has run away and he’s hiding because he borrowed money from us. And they were talking in a very rude manner, and they told he needs to give us money, so you ... money to us. Because he has given my Malaysian ID, my workplace salary pay slip ..., he has given that as a surety or something like that.
Member: How did you find that out?
[Applicant]: They showed me.
Member: Did they tell you how much your husband had borrowed?
[Applicant]: They told, our money, ... and thirty thousand, Malaysian money.
Member: Sorry? One hundred and eighty thousand?
[Applicant]: Hundred and thirty thousand--
Member.A hundred and thirty thousand rupees your husband borrowed from them?
lnt: She is writing 1 3 0 0 0 0.
Member: 130, yep. When did your husband borrow this money?
[Applicant]: I don’t know.
Member: Did they tell you?
[Applicant]: They didn’t tell me anything about that.
Member:Did they tell you anything other than that he borrowed 130,000 from them?
[Applicant]: No. Me and my husband have a lot of misunderstanding. He never tells me what he’s doing and what is his involvement(?).
Member:Did these people show you anything to prove that your husband had actually borrowed this money from them?
[Applicant]: No, they just showed me my documents, they didn’t show any other proof.
Member:And so, do you know if your husband had ever paid any of that money back?
[Applicant]: No, they didn’t tell me anything about that. They just told me he need to pay us, and you have to pay ...
Member:What else did they say? Did you have to pay them then and there, or did you have to pay them by a certain amount of time? Did you pay them in a lump sum? What else – how were you meant to pay back this money to them?
[Applicant]: They came after that also. The first time they came, they just told me that my husband has borrowed much money but I didn’t pay much attention to that, because I don’t know who they are and I was not quite sure that that true or lie.
Member:So what, they just came the first time and said your husband borrow – owes us money and that’s it, they left it at that?
[Applicant]: No, they told you have to pay this money. I told I don’t know who you are. They told you’re paying back – you have to pay you this much money, but that’s all
The Tribunal did not misunderstand the applicant’s relevant evidence and the finding of implausibility was not illogical or irrational.
The applicant focuses on the Tribunal’s failure to refer to her evidence that the people who visited her had her Malaysian ID card and her workplace payslip. It is true that the Tribunal did not refer to this evidence at [23] of its reasons. However, the Tribunal’s finding of implausibility was not in any way based on any evidence as to how the alleged money lenders were said to have found the applicant. Rather, the Tribunal’s finding of implausibility was based on its belief that, contrary to the evidence given by the applicant, if people had approached her claiming that she was required to pay a debt incurred by her husband, they would have told her details such as when her husband borrowed money, whether he had paid back any of the money and how much was currently owing and, if they failed to provide these details, the applicant would have asked for these details herself. The Tribunal’s finding of implausibility was not unreasonable, illogical or irrational.
Particular ii does not establish either of the jurisdictional errors alleged in grounds 3 and 4.
Particular iii and particular iv
Particular iii focuses on [25] of the Tribunal reasons, which on its own is an uncontroversial identification of some of the inconsistencies in the applicant’s written and oral evidence. The applicant’s real complaint appears to be not the identification of inconsistencies at [25], but the rejection of the applicant’s explanation of these inconsistencies, which is set out at [28] of the Tribunal’s reasons.
The applicant’s explanation for the inconsistencies identified at [25] overlaps in part with her explanation for failing to mention prior to the Tribunal hearing her claim that she had been raped four times. This is the subject of particular iv, which refers to [26]-[27] of the Tribunal’s reasons. It is convenient to address particulars iii and iv together.
The Tribunal said at [25]-[28]:
25.The Tribunal also finds the applicant’s evidence regarding her contact with these unknown people and what they did to her inconsistent. Firstly, the Tribunal notes according to the applicant’s protection visa application she claimed that these people first came to her home a few weeks after her husband suddenly disappeared and threatened her to pay and after that they started coming to her home and workplace daily and threatening her. However, the applicant’s evidence in the hearing was that these people first came to her office on 8 February 2015 and told her that she had to pay what her husband allegedly owed them and then they came to her home two days after that. She also claimed in the hearing that during this visit to her home, she was slapped. Yet, there was nothing in the applicant’s protection visa application suggesting that she had been physically harmed by these people.
26.More significantly, the applicant also claimed in the hearing, for the first time, that she had been raped on four occasions by these people. The applicant claimed that she was first raped after she had reported the first visit by these people to the police. She claimed the day after she had been visited at her home, she went to a small police station to make a complaint but the police told her as this was a money matter she should negotiate with the people to settle the issue. The next day, the unknown people came to her office and one of them said how dare she make a complaint to the police. Then, when she was going home, one of them followed her and no sooner had she entered the house, the person followed her in and raped her. She claimed that she was raped a further three times after this incident. She could not tell when these incidents happened but they were between 8 February 2015 and 13 March 2015. The applicant claimed that with the three other incidents, they came and knocked on the door and she opened the door thinking it was her husband and they entered and raped her.
27.As the Tribunal put to the applicant in the hearing, there was no mention in her protection visa application about her being physically harmed by these people during any of the alleged visits to her home, let alone being raped on a number of occasions. Instead, the applicant claimed that they came to her house and damaged her house things and also threw stones at midnight and scared her. The Tribunal finds, given the seriousness of these alleged incidents, that the applicant’s failure to mention anything in respect of these events in her protection visa application and her delay in only raising this during the hearing raises serious doubts about the credibility of these claims. While the applicant responded that she is not fluent in English and that she had asked help from an unidentified boy to help her write her statement in English, the Tribunal does not accept the applicant’s explanation. Firstly, the Tribunal notes that the applicant’s protection visa application does not indicate that she received any assistance with completing her application form and it also provides that she is fluent in English, as well as Tamil and Malay. Given the Tribunal’s concerns about the applicant’s credibility generally, and the information in the applicant’s protection visa application, which she confirmed as true and correct in the hearing, the Tribunal does not accept the applicant told some boy who she did not know who lived in the same caravan park as her to help her write her statement in English and because he was a stranger she did not tell him she was raped. Secondly, the Tribunal notes the applicant’s evidence in the hearing that she applied for the protection visa after reading information about the visa from the internet. The Tribunal finds that this evidence does not suggest the applicant is unable to read and understand English and leads the Tribunal to not accept the applicant’s claim that she did not know what was written in her application. Further, the Tribunal notes the applicant’s evidence that when she got the rejection letter from the Department she realised there was some inconsistency and that what the boy had written down was different to what she had told him. Again, the applicant’s evidence suggests that she is able to read English, consistent with the information in her protection visa application. Even accepting that someone else wrote the applicant’s claims in her protection visa application (which the Tribunal does not accept), the Tribunal finds on the basis of her evidence, that the applicant can read English and it does not accept that she would have signed the form confirming the information provided was correct if it was not.
28.As such, the Tribunal does not accept the alleged assistance the applicant received from this unidentified boy in the caravan park she was staying in at the time she made the application is the reason for the other inconsistencies between her claims in her protection visa application and her evidence in the hearing such as the damage to her house things and having stones thrown at her house which she failed to. mention during the hearing until the Tribunal specifically raised these claims; her asking her friends to support her settle this problem but no-one being willing to help, which is inconsistent with her evidence in the hearing that she stayed at her friend’s house after she allegedly fled her home on 14 March 2015 until she departed the country; and that she moved to another state but they traced her there, which she did not raise during the hearing.
The applicant’s submissions in relation to this ground draw attention to various parts of the transcript of the hearing before the Tribunal where the applicant discusses her language ability and the assistance that she received in preparing her protection visa application from a young boy who was residing in the same caravan park as her at the time she completed the application. In particular:
(a)when asked by the Tribunal what languages she is fluent in, the applicant replied ‘Malay, Tamil, … English not very well, but I can understand when other people speak’;
(b)when the Tribunal expressed concern that the late stage at which the applicant raised her claim to have been raped can cast doubt on her credibility, the applicant replied:
Yeah, that can create doubt, but I have already mentioned I’m not fluent in English. Actually, I … while I was in Mildura … I was living there and I went to another boy and asked help from him to write my statement in English. I told you I can’t — I’m not fluent in English, … of the form and I told him to write the same for me. I don’t know much about him, he is …, when I go and tell him that…
(c)after the Tribunal identified various other inconsistencies between the applicant’s written evidence and the oral evidence she gave to the Tribunal, the following exchange took place:
[Applicant]: Okay, I’m now telling you what had happened to me, and ... explain ... there I went and told that boy this what happened to me and he put that in writing. When I ... letter, I realise there are couple inconsistencies, and ... I told you I don't know much English, I told the boy something and he put chat in writing, ... –
Member:Well, your protection visa application says you’re fluent in English, Tamil and Malay. It also – you confirmed at the beginning of the hearing that everything in that protection visa application is true and correct. I have some – I’m having difficulty with your explanation now for all the inconsistencies that I’ve identified.
[Applicant]: Actually, I can understand English, but believe me – I can understand, but when I talk back, it’s hard for me. After coming here I’m starting to learn, even ... I can understand English. Actually, I told the ... look, my husband took money from some people and run away and they are after me, so I told him, and you were mentioning about ... all these things that I didn’t mention, that’s why on the last day they came and banged the door and they ... damaged property, they did a lot of things. But when I – that’s what I told. I heard them banging, they damaged property, they threw stones, I can – I was able to hear that, but I didn’t go out to see. I came running. I came running from the back door. That’s what I told the boy. I don’t know what he … I don’t want to tell a stranger that I have been raped, that’s why I didn’t ... From the website I understood that immigration will ... interview. I knew that I will be called for an interview and at that time I can tell what I have – I had experienced. I can't just go and tell the stranger that I got raped, then he would go and tell everyone, then I would be ... shame. In my society, if anyone, including my mum or my relatives, come to know that I got raped, no one will respect me.
The applicant’s assertion of illogicality as set out in the oral and written submissions appears to simply be an assertion that the Tribunal should have known that the applicant did not speak English fluently. This is an overly simplistic view of the matter and does not reflect the level of detail in which the Tribunal engaged with the applicant’s evidence before rejecting her explanation as to why she failed to mention certain claims in her written application.
The Tribunal carefully considered the applicant’s explanations for the inconsistencies in her written and oral evidence. In her protection visa application form, in response to a question asking the applicant which languages she speaks, reads or writes, the applicant responded that she speaks, reads and writes, in order of preference, English, Malay and Tamil. She did indicate that if she is called for an interview she would need a Tamil interpreter. She also indicated in her written application that she did not receive assistance from an interpreter or anyone else in completing the application. There is no error in the Tribunal relying on the information in the applicant’s written protection visa application. The Tribunal’s observation that the applicant confirmed at the commencement of the hearing that the information in her protection visa application was true and correct is supported by a reading of the transcript.
The Tribunal rejected the applicant’s explanation that a boy helped her complete the form in part based on its overall concerns about the applicant’s credibility. However, the Tribunal also went on to consider whether, even if a person did assist the applicant, she had provided an adequate explanation for the inconsistencies between her written and oral evidence. The Tribunal rejected any assertion that the applicant was unable to read and understand English. This finding was made in the context of the applicant’s evidence that she applied for a protection visa after reading about protection visas on the internet, and that she realised upon receipt of the delegate’s decision that there were inconsistencies between what she told the boy and what he had written down. Based on its finding that the applicant was able to read and understand English, the Tribunal did not accept that the applicant would have signed her protection visa application form if she did not believe it was correct.
These findings were clearly open to the Tribunal on the evidence before it. Again, while a different decision-maker may have reached a different decision, it cannot be said that based on the evidence before the Tribunal, the Tribunal’s finding was not open to it. The Tribunal’s conclusion was also consistent with further evidence given by the applicant at the hearing, which was not referred to by the Tribunal in its reasons. That evidence was the applicant’s evidence that she can understand English but it was simply hard for her to talk back in English. The Tribunal’s findings about the applicant’s English ability in the context of signing her application were focused more specifically on her ability to read English, rather than to speak English. It is implicit in the Tribunal’s findings that the Tribunal is of the view that the applicant had sufficient reading ability in English to be able to read over her application and identify anything that was inaccurate prior to signing her application.
There is one further consideration that should be mentioned in the context of the applicant’s claim to have been raped. One of the reasons put forward by the applicant for not raising this claim earlier is that she did not wish to tell a stranger that she had been raped due to the shame associated with rape in her society.
The Tribunal referred to and rejected this explanation at [27] of its reasons for the same reasons it rejected the applicant’s explanations for the other inconsistencies in her written and oral evidence. The Tribunal also expressed concern that, given the seriousness and significance of the issues, the applicant would wait until the hearing to first raise the claims. The Tribunal’s rejection of the applicant’s explanations for not raising her claim to have been raped at an earlier occasion was open to it on the evidence. The Tribunal did not reject as implausible at any sort of general level the suggestion that a survivor of rape might be unwilling to discuss her rape with a stranger due to shame or cultural sensitivities. The Tribunal’s findings at [27] and the surrounding paragraphs should be viewed in the context of its reasons as a whole, including the general and specific concerns about the credibility of the applicant. It should also be borne in mind that the Tribunal had the advantage of being able to witness the applicant’s demeanour while she gave her evidence.
It should be noted that the Tribunal rejected the applicant’s claims to have been raped four times not only because of the lateness in raising these claims, but because it considered the applicant’s evidence regarding these incidents to be vague and unconvincing. In this regard, the Tribunal referred to inconsistencies in the applicant’s evidence as to whether there were neighbours around when someone allegedly followed her to her house the first time she claimed to be raped. The Tribunal also considered the applicant’s evidence to be unconvincing insofar as she suggested that, after she had been raped the first time, she would simply open the door when these people came and knocked the next three times, without taking any precautions. These findings were open to the Tribunal on the evidence before it.
There was one place in the applicant’s written submissions where the applicant submitted that her evidence about whether there were neighbours around was not inconsistent, based on information about the position of her house which was not before the Tribunal. Any consideration of whether the Tribunal’s findings were illogical or irrational needs to be based on the evidence that was before the Tribunal.
The conclusions that I have expressed above in relation to particulars iii and iv primarily relate to ground 3, which is the assertion of illogicality or irrationality in the Tribunal reasons. Having considered the relevant evidence given by the applicant as set out in the transcript, and the Tribunal’s summary of that evidence in its reasons, I find that there is no basis to any assertion that the Tribunal misapprehended this evidence, and therefore these particulars do not give rise to the jurisdictional error asserted in ground 4.
Particular v
Particular v is based on the Tribunal’s consideration of whether the applicant would face harm from her husband. The Tribunal said at [37]:
The Tribunal notes that the applicant claimed in her protection visa application that her husband always hit her and tortured her. In the hearing she made no claims that she was physically abused by her husband or tortured by him, although she did discuss that she had experienced difficulties in her marriage, with her husband allegedly going away for weeks at a time without telling her where he was going and when he would be back and fighting. The Tribunal observes that the applicant made no made claims that she feared harm from her husband if she returned to Malaysia in the hearing despite claiming in her protection visa application that her husband is a danger for her. Further, given the Tribunal’s concerns regarding the applicant’s credibility and those of her claims generally, the Tribunal does not accept that the applicant suffered any problems in her marriage as she claimed, including being hit always, tortured or mistreated in any other way, and that her husband is a danger for her. The Tribunal therefore does not accept that the applicant faces a real chance of persecution from her husband if she returns to Malaysia.
The applicant’s main complaint about the Tribunal’s findings at [37] appears to be that the Tribunal relied on the applicant’s failure to discuss at the hearing any physical abuse she endured from her husband in the past and the danger that she fears she would face from her husband if she was to return to Malaysia, in circumstances where the Tribunal did not ask the applicant any specific questions about the applicant’s claims of domestic violence.
I am not satisfied that the Tribunal acted unreasonably, or made findings that were illogical or irrational, in reaching the conclusion that she would not face a real chance of serious harm from her husband in the future in circumstances where it did not specifically ask her about whether her husband would harm her in the future.
To explain why this is the case, it is necessary to refer to the applicant’s claims and evidence in some detail.
In her protection visa application, the applicant provided the following answer to the question of why she left her home country (reproduced without alteration):
I’m married and have no children. My husband always hit me and torture me. Almost daily we will fight and he will hit me for no reason. One day my husband suddenly disappear. He never came back at all. After few weeks a group of man’s come to my house and threaten me to pay money. That’s the time when I got to know that my husband took money from illegal money lender and run away without paying them back. Now as I’m his wife I have a lot of commitment at that time so I can’t pay the loan as they demand. The money lender man’s start to como to my home and work place daily and threaten me. I’m all alone and I don’t have family support also. I have no choice so I just left my country for my safety.
The first part of that answer is the only reference to domestic violence in the applicant’s protection visa claim. The responses to questions about what she fears will happen to her if she returns to Malaysia all referred to harm that she fears from the illegal money lenders. There is no suggestion in her protection visa application that she will face harm from her husband in the future, and indeed the applicant’s claims are prefaced on her husband having disappeared.
Unsurprisingly, the delegate interpreted the applicant’s claims as relating to the harm the applicant feared from money lenders as a result of her husband’s debt. The delegate did not address the applicant’s assertion that she had been a victim of domestic violence in the past.
The applicant provided no additional evidence to the Tribunal prior to the day of the Tribunal hearing.
When it came to taking evidence from the applicant at the hearing about her claims for protection, the Tribunal’s first question to the applicant was ‘[c]an you tell me why you fear going back to Malaysia?’, to which the applicant answered ‘[m]y life will be in danger there’. The Tribunal then asked the applicant why her life will be in danger and the applicant responded ‘[t]hey are … and treating me badly, including torture, because of the debt of my husband’. The Tribunal then asked the applicant who it is that she fears will harm her and the applicant responded ‘[t]hey’re coming and telling that my husband has got all the money from them, and they can come and treating me badly, they… torturing me’. It can be seen from this initial exchange that, when freely invited to tell the Tribunal why she fears harm in her country, the applicant’s evidence focused on the harm she fears from money lenders and not her husband. She told the Tribunal that she did not divorce her husband because she does not know where he is.
There then followed a lengthy discussion about the applicant’s claims to fear harm from the money lenders. In the course of that discussion the applicant did refer to some issues in her marriage. For example, the applicant said that from the time she was married to her husband they were not on good terms and did not talk to each other, and that they used to fight a lot. The applicant gave evidence that she and her husband had ‘a lot of misunderstanding’. At another point in her evidence the applicant said that her husband ‘doesn’t care’ what happens to her or whether she lives or dies. The applicant said that she and her husband always fought, that he would take her salary money and that he mistreated her. It is unclear whether the applicant’s oral evidence about her marriage includes any past allegation of the type of physical violence referred to in her written application. In any event, the comments of the applicant provide context to her claims to have faced harm in the past from money lenders and why she fears she will face harm from them in the future. They do not give rise to any assertion that she will face harm from her husband in the future.
At the conclusion of the discussion about the applicant’s fears of harm from money lenders and the possibility of relocation, the Tribunal said to the applicant ‘[i]s there any other reason why you fear returning to Malaysia, apart from what you’ve told me today?’. The applicant then responded:
I can’t go back to Malaysia, I’m scared, there my life will be in danger and I don’t have any support. I’m not telling that no one is going to support me or something like that, but I won’t have any freedom, and I’ll be in danger. Actually you’re telling me to go in a new area. No one knows what’s going to happen. You don’t know how the situation’s going to change, even… I never knew this is going to happen. If I knew this was going to happen I would have made…
As can be seen from this response, when invited to identify whether she had any further fears in returning to Malaysia, the applicant did not mention any claim to fear future harm from her husband.
The Tribunal then asked the applicant’s migration agent if there was anything she wanted the Tribunal to ask the applicant and the following exchange took place, which was highlighted by the applicant in her submissions to the Court:
[Agent]:Actually that she doesn’t have any support from the family, and she has--
Member: What’s the question?
[Agent]: Now she – actually I want to ask more about her marriage ...--
Member:No. It’s not her claim, so, her claim is harm from the loan sharks. That’s the harm that you fear, isn’t it? Harm from loan sharks, like, the ... loan sharks? Yeah.
[Applicant]: Problem is not the money, I have problem with ...
Member:Who are after you because of the money that your husband owed – borrowed from them? Do you have any fears in relation to your marriage and it not being accepted by your family?
[Applicant]: Actually, yes, because my parents – my parents never accepted my marriage. Even someone – if go now, they’re not going to support me--
Member: Are they going to harm you? Sorry.
[Applicant]: Even if someone go and – even if someone kill me in from of them, they won’t feel sorry for that.
Member: Okay, but are they going to harm you, your parents?
[Applicant]: They will just hit me because they are angry and they will use the words which can harm me.
Member:But you don’t live with your parents, do you? I understand you’re trying to say that she’s not gonna have the support of her parents because they didn’t agree with the marriage, is that what you’re getting--
[Agent]:Yes, certainly, and the other thing is that when they – when questioning her, that ... the last day they made the threat and the harassment on the 13th, I believe on 13th and 14th, Saturday, …
That the Tribunal considered the applicant’s representative was raising concerns about whether the applicant feared harm from her family who did not support her marriage is understandable in the context of an issue that had been discussed shortly before the question and the representative prefacing her comments or questions by noting that the applicant did not have support from her family. At the conclusion of this exchange there were another two occasions where the Tribunal invited the applicant’s representative to make submissions, and no submission was made about any harm that the applicant fears from her husband in the future. When the representative indicated that she had no further submissions to make the Tribunal asked the applicant if she wanted to say anything further. The applicant did make additional comments, but said nothing about fearing harm from her husband in the future or any harm she faced from her husband in the past. Just before the hearing concluded the applicant asked for one more opportunity to talk, which the Tribunal gave her. She made general submissions about not being able to go back to Malaysia because she was scared and her life will be in danger. There was no mention of her husband in that final comment.
When one considers the Tribunal’s reasons at [37] in the context of this background, it is clear that the Tribunal’s summary of the applicant’s evidence in that paragraph is accurate. There was nothing unreasonable in the Tribunal noting the applicant’s failure to claim to fear harm from her husband at the hearing in circumstances where the applicant made no claim to fear harm from her husband in the reasonably foreseeable future in her protection visa application, and in circumstances where the Tribunal gave the applicant multiple opportunities to tell the Tribunal about her claims for protection at the hearing. The Tribunal was not required to make the applicant’s case for her: see Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 at [187].
The applicant in her written submissions has again referred to factual assertions that were not before the Tribunal in the context of her submissions on this particular. In response to the Tribunal’s rejection of the applicant’s claim to have suffered problems in her marriage, the applicant submitted that she had an extra-marital affair with another man and gave birth to a child. The applicant acknowledged that the Tribunal was unaware of this fact and submitted that it would have been unreasonable for her to have an extra-marital affair if there were no problems in her marriage. When I asked the applicant’s Counsel at the hearing whether this evidence was before the Tribunal, the applicant’s Counsel conceded that it was not before the Tribunal and the events occurred after the Tribunal decision. I declined to given the applicant an opportunity to file evidence to support the submissions because there is simply no basis for finding jurisdictional error in the Tribunal reasons based on any extra-marital affair which post-dates the Tribunal decision. Any assessment of jurisdictional error should take place based on the state of affairs that existed at the time of the Tribunal decision: Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46 at [26]; Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12 at [28]; Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500; [2016] FCAFC 185 at [77].
There was nothing illogical, irrational or unreasonable in relation to the Tribunal’s finding at [37] and there is no basis for finding that the Tribunal misapprehended the applicant’s evidence.
Other matters raised in the applicant’s submissions
Toward the end of the applicant’s submissions, the applicant has identified a number of other paragraphs of the Tribunal’s reasons, which were not referred to in the particulars, and identified adverse credibility findings. After identifying these paragraphs, the applicant submitted that the Full Court’s comments at [99] in ARG15 are equally applicable in this case. The Full Court said at [99] of ARG15:
In these circumstances, the relevant legal deficiencies in the Tribunal’s adverse credibility finding relating to the appellant mother’s evidence concerning the dowry cannot be isolated or confined in the manner suggested by the Minister. In view of the Tribunal’s reliance upon that finding to support other parts of its reasons for rejecting the appellants’ claims, the error necessarily affected those other parts. In the particular circumstances here, it should be concluded that the error was so serious and significant to the Tribunal’s rejection of the appellants’ claims as to amount to a jurisdictional error.
I infer from this that the applicant’s purpose in referring to these paragraphs is to support a submission that it is not open to rely on other parts of the Tribunal’s reasoning to find that the Tribunal’s conclusion was supported by other adverse credibility findings. Relatedly, the applicant may be inferring that any error identified in the particulars was material because it affected the other adverse credibility findings. I have found that the matters raised in the grounds and particulars do not establish jurisdictional error. It is therefore unnecessary to consider whether any those paragraphs informed the Tribunal’s adverse credibility findings in other paragraphs.
Conclusion
I have considered both grounds raised by the applicant in the discussion of the particulars above and found that the applicant has not established that the Tribunal decision is affected by jurisdictional error. The application for judicial review must therefore be dismissed.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 4 November 2022
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