BRE16 v Minister for Immigration
[2018] FCCA 1412
•1 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRE16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1412 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal decision was unreasonable – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 425, 476 |
| Cases cited: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 266 ALR 367 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 139 ALD 181 |
| Applicant: | BRE16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1727 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 6 February 2018 |
| Date of Last Submission: | 6 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 1 June 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Stephen Hodges Solicitor |
| Counsel for the Respondents: | Ms S Palaniappan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 5 July 2016, amended on 21 September 2016 and further amended on 6 February 2018 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1727 of 2016
| BRE16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 5 July 2016, amended on 21 September 2016 and further amended on 6 February 2018, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 7 June 2016, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant.
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”) and the affidavit of Kimya Gul Khan made on 21 September 2016, attaching a transcript (“T”) of the applicant’s hearing before the Tribunal.
Background
The applicant is a citizen of Afghanistan of Hazara ethnicity and Shia Muslim religion (CB 31). He arrived in Australia as an “irregular maritime arrival” on 17 July 2012 (CB 32) and attended an entry interview with an officer of the Minister’s department on 20 August 2012 (CB 1 to CB 18). The applicant applied for the protection visa which was received by the Minister’s department on 7 November 2012 (CB 19 to CB 66). The applicant’s claims to fear harm were contained in a Statutory Declaration dated 29 October 2012 (CB 69 to CB 73).
In his Statutory Declaration the applicant claimed to fear harm on return to Afghanistan on the basis of his Hazara ethnicity “due to [his] religion, faith and appearance”. The applicant indicated that he had travelled to Iran in “mid-2007 for four years for work opportunities” ([11] – [12] at CB 69).
The applicant claimed that his brother ran a fuel business which operated throughout Afghanistan, including making deliveries to the “US and Western forces military”. This made the Taliban view the applicant’s brother with “concern and blame” ([13] – [14] at CB 70).
The applicant claimed to having been “singled out by the Taliban” in order to tell his brother to stop running the fuel business. The applicant’s brother was subsequently killed on 21 April 2010 by the Taliban when they “targeted” the applicant’s brother’s fuel tanker with “two missile rockets” ([16] - [19] at CB 70).
Two months after his brother’s death, the applicant claimed that he received a “written threat” from the Taliban. One month after that, he received another “written threat” from the Taliban. Following the threats, the applicant then fled to Pakistan and then made arrangements to travel to Australia ([21] at CB 70 to [31] at CB 71).
The applicant was invited to, and attended, an interview with the delegate scheduled on 11 September 2013 (CB 78 to CB 81). He was invited to attend a further interview with the delegate on 31 March 2014, however he did not attend that interview (CB 107.9 and CB 111.3).
The delegate refused the application for the visa on 19 May 2014 (CB 103 to CB 122). The applicant applied for review to the Tribunal on 2 June 2014 (CB 123 to CB 128). The applicant was invited to, and attended, a hearing before the Tribunal on 15 October 2015 (CB 135 to CB 137 and CB 154 to CB 156). The Tribunal affirmed the delegate’s decision on 7 June 2016 (CB 157 to CB 177).
The Tribunal highlighted “[k]ey relevant points” from the applicant’s hearing before it ([12]a. – [12]o. at CB 162 to CB 163). These included that the applicant claimed he was illiterate and could not read. The applicant indicated that there was an “error” on his visa application form where it said he could read Hazaragi as well as speak it. Further, because he was illiterate, he made a “mistake” in the dates that he said he travelled to Iran, “but gave some dates because he was under pressure to do so” ([12]a. at CB 162).
The Tribunal was not satisfied that the applicant had been “truthful about his experiences in Afghanistan” and this included his “alleged involvement with the fuel tanker business for which he was targeted by the Taliban” ([16] at CB 164). The Tribunal found that the applicant gave “inconsistent evidence regarding his involvement in and the size of the fuel tanker business” as between his entry interview, his Statutory Declaration, the departmental interview and the applicant’s hearing before the Tribunal ([17] – [18] at CB 164).
Further, the Tribunal found that ([19] at CB 164):
“[t]he applicant’s evidence surrounding his brother’s death in a tanker explosion, how he learned about it, his visit to the site, as well as the threats he received from the Taliban, was variously, vague, inconsistent, lacking in detail and implausible…”
The inconsistencies in his evidence included, amongst other things, that in his Statutory Declaration the applicant indicated that he received two “written threats” from the Taliban which prompted him to flee Afghanistan for Pakistan. However, at his departmental interview and the hearing before the Tribunal, the applicant made no mention of any “written threats”, but mentioned a “knock” at a window or door of his home, and a “shooting” through the window. The Tribunal did not find the applicant’s explanation for the inconsistency persuasive “but consider[ed] that the applicant introduced the shooting as an opportunistic embellishment of his evidence” ([20] at CB 164 to CB 165).
Further, there were inconsistencies in the applicant’s evidence as to when his family allegedly moved to Kabul ([21] at CB 165). The Tribunal’s concerns about the applicant’s credibility were further “compounded” by inconsistencies in his evidence “regarding the dates when he lived in Iran and Pakistan”, and inconsistencies about his employment in Afghanistan and Iran ([22] at CB 165 to [24] at CB 165 to CB 166).
The Tribunal found that “in view of the multiple inconsistencies in the applicant’s evidence and other concerns” it was not satisfied that he had “been truthful about his experiences Afghanistan or that his evidence [could] be relied upon”. For this reason, the Tribunal was not satisfied that he had “ever owned a fuel tanker with his brother or was involved in a fuel transportation business with him, nor that his brother was killed when the Taliban blew up a tanker he was allegedly driving” ([27] at CB 166).
Therefore, the Tribunal was not satisfied that the applicant had ever been targeted, threatened or shot at by the Taliban because of his association with his brother. The Tribunal was not satisfied that the applicant was of adverse interest to the Taliban “or anyone else” in Afghanistan for the reasons that he claimed. The Tribunal noted that although the applicant had claimed to be illiterate, this did not assuage its concerns about the credibility of his evidence ([27] at CB 166 to [28] at CB 166 to CB 167).
The Tribunal found that the applicant did not meet the criteria in s.36(2)(a) or s.36(2)(aa) of the Act for the grant of the visa.
Before the Court
As mentioned above, the applicant filed the application to the Court on 5 July 2016, and amended that application on 21 September 2016. On 28 January 2018, nine days before the date of the final hearing, applicant filed a further amended application and written submissions addressing the grounds of that application. The Minister filed written submissions on 31 January 2018 dealing with the grounds of the further amended application.
The Application to the Court
The further amended application to the Court is in the following terms:
“Ground 1
The AAT’s decision generally and particularly with regard to the applicant’s joint ownership of a fuel tanker with his brother, his involvement in the fuel transportation business and the circumstances of his brother’s death is so unreasonable that no reasonable decision maker could make it.
Particulars
a. The AAT gave consideration to the applicant’s response as recorded in the entry interview record [CB 13] which states that the applicant stated ‘…I had owned a tanker with my brother’.
b. The AAT accepted that the applicant was illiterate at [CB 166, paragraph 28].
c. The applicant told the AAT that he was ‘a half shareholder and was not involved in the business operated by his brother’ [CB 164, paragraph 18]. The applicant did not say those words at the AAT and the summary asserted by the AAT is not fair or reasonable having regard to the evidence. The AAT appears from the Khan affidavit page 13 to have interrupted the applicant’s answer when giving evidence on this issue.
d. The AAT raised concerns that the applicant in his statutory declaration had stated that it was his brother that owned and ran a fuel business at [CB 164, paragraph 17] which was different to his oral testimony to the AAT.
e. The AAT’s finding derived from the entry interview, the applicant’s statutory declaration and the evidence to the AAT given the applicant’s illiteracy, lacks reasonableness.
f. Some of the numerous inconsistencies that are relied on by the AAT to establish the applicant’s lack of credibility cannot reasonably be said to be inconsistent. For example:
(i) In the entry interview, the applicant is recorded as stating the following: ‘I owned a tanker with my brother…’.
(ii) In the same interview, the applicant said both ‘the Taliban lit the tanker on fire’ and ‘after they destroyed my tanker’.
(iii) In his statutory declaration, at [CB 70], the applicant asserted that his brother owned and ran a fuel business providing fuel throughout Afghanistan.
(iv) In his statutory declaration, at paragraphs 18-20, the applicant gave details of the death of his brother at the hands of the Taliban.
(v) In reaching its findings on credibility, the AAT found inconsistencies that do not exist or are petty in the extreme.
g. Although during the hearing the AAT did ask questions about the finance of the tanker, the finding that the evidence given by the applicant was ‘vague, inconsistent, lacking in detail and implausible’ was unreasonable. In particular, the finding that the applicant could not afford a half share of a tanker involved inferences and conjecture that are not supported by the evidence. To some extent they were illogical and flew in the face of the proposition put to the applicant during the family that his family was ‘very wealthy’.
Ground 3
The AAT denied the applicant procedural fairness by not asking the applicant to expand upon aspects of his account that the AAT considered open to doubt.
Particulars
a. At [CB 164, paragraph 18], the AAT did ‘not find it plausible that the applicant had the financial capacity to fund his share of even a single petrol tanker, which he claimed his brother was operating for 6-7 years before he was targeted.’
b. That finding contributed to the AAT’s conclusion, at [CB 166, paragraph 27], that ‘the Tribunal is not satisfied that the applicant ever owned a fuel tanker with his brother or was involved in a fuel transportation business with him, nor that his brother was killed when the Taliban blew up a tanker he was allegedly driving, as claimed.’
c. The AAT did not indicate at the hearing that it doubted that the applicant owned a share of the fuel tanker with his brother. The AAT did not ask the applicant to expand on this matter. The AAT did ask questions at pages, 17 and 23 of the affidavit of Kimya Gul Khan dated 21 September 2016 filed in these proceedings, about the cost of the tanker. The applicant’s answers were accepted without giving the applicant any indication that the AAT did not accept that he could have afforded the share in the tanker. At page 17 of the Khna (sic) affidavit the AAT actually put to the applicant that his family were quite wealthy. So, far from putting the applicant on notice that there would be a finding that he could not afford the half share in the tanker, the AAT in fact gave an indication of his view that his family was wealthy. The applicant gave evidence of his family owning land (page 10 of the affidavit), of him personally owning a car (page 10 of the affidavit), working in both Afghanistan (Page 10 and elsewhere in the affidavit) and in Iran (page 11 and elsewhere), the AAT accepted that the applicant had been employed [paragraphs 25 and 26];
d. The applicant stated that the land had been owned by his father (affidavit page 10) who died in 2012 and that he owned it now.
e. It was not suggested to the applicant that his evidence of the joint purchase of the tanker was incredulous, implausible, false or impossible.”
[Errors in original. I note also that ground 2 of the amended application was not pressed in the further amended application.]
At the final hearing, the applicant was represented by a solicitor. The Minister was represented by counsel. Leave was granted for the applicant to proceed by way of the further amended application, following no objection by the Minister.
Before the Court, the applicant’s solicitor explained that, in essence, the matter raised by the grounds of the further amended application related to the applicant’s claim that, with his brother, he was a joint owner of a fuel tanker.
The specific complaint was that in this context, the Tribunal’s decision, as it related to the circumstances of the applicant’s brother’s death, was so unreasonable that no reasonable decision-maker could have made the decision. It appears the allegation of unreasonableness was said to arise from the Tribunal’s finding in relation to “numerous alleged inconsistencies” in the applicant’s evidence.
To make good his assertion, the applicant referred to the following, which in large part reflected the particulars to ground one as they appeared in the further amended application.
First, at the Tribunal hearing, the Tribunal raised inconsistencies in the applicant’s evidence between what he told the delegate at the interview, and what he told the Tribunal (before the Court, the applicant referred to T20).
It was not clear why the applicant referred to this before the Court. The submission was that it was the “first” occasion during the hearing that the Tribunal raised inconsistencies in the applicant’s evidence. However, as the applicant subsequently submitted, this matter was not “adverse” to the applicant when regard is had to the Tribunal’s decision.
It is to be remembered that ground one asserts unreasonableness in the Tribunal’s decision. It is difficult to see how something that plays no part in the Tribunal’s analysis (as expressed in its decision record), can be relevant to revealing that the Tribunal’s decision was unreasonable, unless its omission led to some flaw in the chain of reasoning. However, there was no assertion by the applicant that this occurred in this case.
Second, and similarly, the applicant also referred to T21 where the Tribunal member is said to have raised concerns about “dates and places”. Before the Court, the applicant conceded that there was, on the applicant’s part, “confusion about dates and places”.
This can be illustrated as follows (T21.7 to T22.5):
“[Member]: can you understand that for someone in my position the dates are quite important. I am not concerned whether you got the exact date or whether it was June or July, but when there is a difference of 18 months over such a serious incident for which you have no supporting evidence apart from your word, it does make it difficult for me. April 2010 you said your brother died and he said that when he returned that event was three months after he returned from Iran. According to the dates that he gave was June 2011. So don’t worry too much about the 18 months but it’s a big discrepancy.
[Client]: so that is the big mistake I have made, so as that interviewer he was insisting a lot that you have to provide a date and I was telling that I don’t remember because of this trip I had through this ocean it has actually caused loss of memory, I don’t have anything in my mind, but he was telling that it is not important so you just need to give a date which I did so this was based on assumptions that as I was not sure.
[Member]: which interviewer are you talking about?
[Interpreter]: so he says that the interview with the department of immigration.
[Member]: ahom, ok. The other point that the immigration said was that in your application you said you were in Pakistan from the 1st of June 2011 until January 2012.
[Client]: so you know that in Afghanistan I am an illiterate and I am not sure about those dates and year. All I was told that I was in Pakistan for 6 months and 5 months in Indonesia. I am not sure which date, which month and which year it was. So they have put the date themselves.
[Member]: ok if I look at what you said to me today, you said you arrived on the 17th of July 2012; you said you were in Indonesia for 5 months. So if you take 5 months away from July then it appears you were in Indonesia from February 2012 to July 2012. If you were in Pakistan for 6 months before that then it also suggest that you were in Pakistan from around June 22011 until 2012 roughly.
[Client]: so considering that continuum again what I was told is that on 17th of July 2012 that is the date they give me that this is the date you arrived in Australia. And before that I was in Indonesia for 5 months and 6 months in Pakistan so that is how I told that. When I left Afghanistan I went to Pakistan and was there for 6 months and then came to Indonesia and stayed there for 5 months and on the 17th of July 2012 was the date I arrived here.
[Member]: so what are you saying is that the incident with your brother did not take place in April 2010 but may be took place in April 2011, is that right? Several months before you left.”
[Errors in original.]
Third, the Tribunal raised inconsistencies in the applicant’s evidence concerning his role in the fuel tanker business, and the size of the fuel tanker business (T23.3 to T23.7 and T.23.9 to T24.4):
“[Member]: ok. Another thing that the department decision raises is that you were inconsistent in your evidence about your role in the business and the size of the business. And they also raised the point of how it was possible that you were able to afford such an expensive item as a tanker? Or, hang on, according to this what you are saying here is that your brother owned a few businesses which provided fuel throughout Afghanistan, to all areas with outlets with many clients, and you said that again today including the foreign forces in the US. A tanker is not a cheap piece of equipment; it is not just like buying a truck to transport customers between your village and Sangi Masha. A tanker is a very sophisticated piece of equipment and costs a lot of money.
[Client]: so the amount I shared was 8lug (interpreter - so 8lug means 800000)- -
[Member]: 800000 Afghani? And how much is that in dollars?
[Client]: so if you calculated that in a way that 50 000 Afghani is 1000 dollar, so it makes 16000?
[Interpreter]: so should I continue with what he said?
[Member]: so 16000 dollars?
[Client]: yes, all together its 32000 (32 thousand) and my part was 16000.
[Member]: ok”
…
[Member]: so you won’t providing the fuel, you were only providing the Tanker, is that correct?
[Client]: yes it was just about the transportation of that petrol, so we hadn’t had any share or any role in that so it was the business man who was doing that. They were just telling us this amount of petrol should be transferred from this place to the other place and we were just transporting that. And charging only fare for that that is it.
[Member]: ahuh. And one other concern I would like to discuss with you is why there is no mention in your application, either at entry of when you submitted your application to the department of any employment that you had as driving a truck or not a truck but driving people between places. There is no mention of that.
[Client]: ummmm I have said that all of those at the beginning and also with my representative when we prepared the application, however, why they haven’t included and haven’t mentioned that, it can partly be related to the interpreter, because the interpreter was talking in a dialogue-someone who is grown up in Quetta, so some of the things that I was telling she was not sure and I couldn’t oppose as well. So I was thinking what whatever I say she will translate that so I don’t know if she has mention that or not or she misunderstood. But I have mentioned.
[Member]: the normal practice is that when you do a statement like that is usually read back to you before you sign it. And the firm that you had representing you is a very respectable firm.”
[Errors in original]
Fourth, in the context of the fuel tanker business, the following was also said by the applicant to be relevant to his ground (T17.2):
“[Member]: so what do you think might happen if you went back to Afghanistan now?
[Client]: how can I go there? I cannot go there; first of all if I go there they will target me. Secondly I am Shia Hazara and they will target me because of that. [In context “they” was a reference to the Taliban.]
[Member]: how did the Taliban know that you had any connection with that fuel tanker?
[Client]: so it was my brother who was doing that and they actually have people who are reporting to them in every place, and every area we call them informants so they do that, they report who is doing what and I don’t know who has done that.
[Member]: So what was your connection to the tanker?
[Client]: so I was only a shareholder and apart from that it was only his business and he was doing this and I wasn’t involved in anything else apart from that.
[Member]: so who knew that you were a shareholder?
[Client]: it was a village and in a village when you do something all the people know and sometimes you want to do something you want to consult with someone else and say for example I want to do this and they say if it is ok not. So the people know that we had money and we started that work, its not like something very secretive that no one knows. The people around know, everybody know who is doing what.
[Member]: so your family was quite wealthy, were they?
[Client]: Not wealthy, we couldn’t call it we were very wealthy. My father owned that land and it was left from my father. So we were hard worker, I was working and my brother was working and we made some money. However, we were not so poor and no so wealthy, in the middle.
[Member]: so where did you made money from?
[Client]: so I was working, I worked in Iran and I worked in Afghanistan. So I earned that money.”
[Errors in original.]
Before the Court, the applicant’s submission was that in relation to the fuel tanker business and how it was financed, the applicant had provided “cogent and logical” evidence. The applicant submitted that the “many references” to the fuel tanker at the hearing before the Tribunal, “could not in any way” be said to reveal inconsistency or implausibility in the applicant’s evidence.
The applicant emphasised before the Court that the Tribunal appeared to pursue a line of questioning that suggested that the applicant did not have sufficient funds to pay his half portion of the cost of the fuel tanker, yet it asked the applicant if his family was wealthy.
The complaint was that the Tribunal proceeded on a number of
“in-built” assumptions that the fuel tanker was an expensive piece of equipment, and that a wealthy family would be able to buy it.
The Tribunal found that the applicant’s evidence concerning the ownership of the fuel tanker, and the death of his brother, was inconsistent and implausible. The applicant’s submission before the Court was that, on this basis, the Tribunal found adversely to the applicant’s credit, which in turn, informed its decision to affirm the delegate’s decision.
The applicant also sought to explain his complaint before the Court as follows. At the entry interview, the applicant was asked why he left Afghanistan. He responded that he “owned a tanker with [his] brother”, which was set on fire by the Taliban. He was then pursued by the Taliban and he fled Afghanistan because of this (CB 13).
The applicant told the Tribunal that he had a half share in the fuel tanker, but was “not involved” in the business. The applicant’s submission to the Court was that this meant that the applicant was a “silent partner”.
The applicant also submitted that the Tribunal accepted that the applicant was “illiterate” ([28] at CB 166). It was not explained how this finding on the applicant’s illiteracy was said to reveal unreasonableness in the Tribunal’s decision.
In that context, I note that the report of the applicant’s entry interview on which the applicant relied in his submissions to the Court, was not completed by the applicant. Rather, it is reasonable to infer that the “entry interview” document was completed by the interviewer during, or after, the interview with the applicant (see CB 1.6 and CB 18).
Nor was it ever satisfactorily explained how the applicant’s characterisation before the Court of the applicant’s evidence to the Tribunal, that he “was not involved in the business”, could be taken to mean he was a “silent partner”, revealed unreasonableness on the part of the Tribunal.
In relation to his brother’s death, the applicant submitted before the Court that at the entry interview, the applicant stated, “…the Taliban let (sic) [lit] the tanker on fire” (CB 13). In his Statutory Declaration, the applicant asserted that his brother owned and operated a business providing fuel and he gave details of his brother’s death ([13] –[20 at CB 70).
The complaint was that the Tribunal was concerned by what the applicant described before the Court as “petty details”. This was that the applicant was unable to identify a precise place where his brother was killed. The submission before the Court was that the applicant had said it took him one and half days to go to where his brother was killed, and therefore it was “probably” a “remote place” that was “convenient for [the] Taliban to attack”.
I pause to note that the applicant’s submissions here contain the same type of supposition that he says, in part, characterises the Tribunal’s decision.
In any event, and further, the applicant also submitted that at the Tribunal hearing the following exchange occurred (T15.7):
“[Client]: yes I myself went there when I was reported and I become aware that that incident happened I myself went there and I saw they were all burned. Nothing left.
[Member]: so if there was nothing left, how do you know it was your brother’s truck?
[Client]: so it was only the burned parts of the car or the truck which was left there, nothing else left there.”
The submission to the Court was that the Tribunal’s question (as set out above at [43]) was indicative of how the Tribunal approached the task of identifying “so-called” inconsistencies and implausibilities in the applicant’s evidence.
Before the Court, in his oral submissions, the applicant’s solicitor sought to give an interpretation of what the applicant had meant by the words, “nothing [else] left”. He said that the “most likely” interpretation was that the fuel tanker (or “truck”), and the building (at the site of the burnt out fuel tanker) was “completely burnt out” and “there were no bodies, or there was nothing”. The submissions took issue with the Tribunal’s question, and described it as “pecky [sic: picky? petty?] detail”.
Again, this presupposes that the applicant was telling the truth about his brother’s death. The Tribunal is not obliged to uncritically accept the applicant’s evidence (Randhawa v Minister for Immigration, Local Government & Ethnic Affairs[1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1; FCR at 451 per Beaumont J and Minister for Immigration & Ethnic Affairs v Guo Wei Rong[1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481; CLR at 596 per Kirby J). In my view, it was not “petty”, or “picky” or “trivial” for the Tribunal to ask this question, given the state of the applicant’s evidence as to how he knew it was his brother’s truck. If the applicant’s evidence was that there was “nothing” there, not even “bodies”, then it was reasonable for the Tribunal to ask how he knew that was the location of his brother’s claimed death.
The applicant’s submissions before the Court continued in a similar vein. It is not necessary to set these out in detail. In essence, the applicant’s complaints were that the Tribunal identified inconsistencies that “[did not] exist”. Further, that it identified implausibilities which “are open to other conclusions” (see further below).
This last part of the applicant’s submissions before the Court (see above at [47]) reveal the great weakness in the applicant’s ground one, and the attempt to explain it before the Court.
The Tribunal’s decision cannot be said to be unreasonable in circumstances where the dispute is simply that minds may differ on the evaluation of the evidence.
As was said in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 266 ALR 367 (“SZMDS”) (at [130]) per Crennan and Bell JJ:
“In the context of the Tribunal's decision here, ‘illogicality’ or ‘irrationality’ sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is ‘clearly unjust or ‘arbitrary’ or ‘capricious’ or ‘unreasonable’ in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.”
Further, SZMDS (at [78]) per Heydon J:
“The issue was one on which minds might differ. The Federal Court evidently operated on one assumption or conclusion about that issue. The Tribunal operated on another. The difference was one of degree, impression and empirical judgment. It did not stem from an error in logic by the Tribunal member. The difference could not be said to reveal an absence of any basis whatsoever for her conclusion.”
See further, Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 139 ALD 181 (at [76]):
“As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion ‘if upon the facts [the result] is unreasonable or plainly unjust’. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
[Footnotes omitted.]
A further weakness in the applicant’s explanation of his case was, in large part, to focus on the other material before the Court, instead of the one primary source for the contention which the ground argues. That is, the Tribunal’s reasoning as expressed in its reasons for decision. After all, to make out his ground, it is the Tribunal’s reasoning and findings, as expressed in its decision record, that must be found to be unreasonable in the sense explained by the relevant authorities.
What the Tribunal said, or did not say, at the Tribunal hearing may be relevant to ground three of the amended application, but ground one asserts jurisdictional error on the basis of what is said to be the “unreasonableness” in the Tribunal’s reasoning, as expressed in its decision record.
As the Minister correctly submitted, “the starting point in relation to ground one” is the Tribunal’s reasoning as expressed in the decision record. After all, to make out ground one, it is the Tribunal’s actual reasoning that is being impugned by the assertion of unreasonableness.
What I understood of the applicant’s submissions to the Court in relation to ground one is as follows. The Tribunal’s findings in relation to the applicant’s claimed ownership of the fuel tanker, and his brother’s death, were unreasonable. These findings were of such importance that this unreasonableness infected the Tribunal’s decision as a whole, therefore revealing jurisdictional error.
The applicant’s account which formed the basis of his claim to fear harm at various stages after his arrival in Australia, during the process of his application for the visa and then before the Tribunal, were set out in the Tribunal’s decision record.
The applicant relies now on the entry interview, and what is set out in the report of that interview. However, the Tribunal’s decision record reveals that the Tribunal did not place any relevant, or undue, reliance on what was said by the applicant at the entry interview.
As is plainly set out in its decision record, the Tribunal identified three sources for the applicant’s claims. In its decision record, it summarised the claims made by the applicant on each of those occasions.
These were, one, in his protection visa application and accompanying Statutory Declaration ([9] at CB 159 to CB 160). Two, at the interview with the delegate held on 11 September 2013 ([10] at CB 160 to 162), and three, the hearing before the Tribunal ([12] at CB 162 to CB 163). The reference to the applicant’s entry interview in the Tribunal’s decision record, was as that was reported in the delegate’s decision (see [17] at CB 164).
There is nothing on the evidence before the Court to say that the Tribunal’s summary of the claims was not a fair summary, or that the Tribunal misunderstood, or misconstrued, the applicant’s claims and evidence as these were given on each of the three occasions by the applicant.
The Tribunal’s consideration of the applicant’s claims and his evidence is set out at [13] (at CB 163) to [28] (at CB 166 to CB 167) of its decision record.
The Tribunal accepted that the applicant was an Hazara Shia from Afghanistan ([13] at CB 163). It accepted that Afghanistan was the only country to which he had a right of return ([14] at CB 163).
The Tribunal understood the applicant’s claims to fear harm to be as follows ([15] at CB 164):
“The applicant’s claims for protection are premised on his assertion that the Taliban targeted and threatened him because of his association with his brother, whom they allegedly killed in his fuel tanker for transporting petrol to the American forces, and that this prompted him to leave Afghanistan. He also fears harm as a Hazara and Shia.”
On the evidence before the Court, there is nothing to show that the Tribunal misunderstood or misconstrued the basis for the applicant’s claims to fear harm.
The Tribunal found that it was not satisfied that the applicant had been truthful about his experiences in Afghanistan. The Tribunal noted this was particularly so in relation to his claimed connection to the fuel tanker business and the reasons he left Afghanistan ([16] at CB 164).
The Tribunal based this finding on its evaluation of the applicant’s evidence given over the three occasions it had referred to earlier in its decision record (see above at [60]).
The matter of the fuel tanker business and the circumstances of the death of the applicant’s brother were not the only matters in respect of which the Tribunal found inconsistencies. However, for current purposes, it is sufficient to note that the Tribunal found inconsistencies in the applicant’s various accounts about the fuel tanker business and his brother’s death. The Tribunal set out the evidence he gave in this regard ([17] – [19] at CB 164).
There is nothing in this analysis to say that the Tribunal’s reporting of these various accounts given by the applicant was unreasonable, unfair or inaccurate. The Tribunal’s findings of inconsistency were all reasonably open to it on what was before it. It is possible that another decision-maker may have come to a different view on each item. But this does not establish unreasonableness.
Further, the Tribunal’s reasoning does provide an intelligible justification for the conclusion that the applicant was not truthful in his account. The Tribunal gave reasons which were probative of, and cogently arose from, the evidence before it.
The applicant’s complaint now, that the Tribunal’s concerns were “trivial” or “petty” or “picky”, are no more than an expression of grievance with the findings made.
The applicant (and his solicitor) plainly do not agree with the Tribunal’s reasoning. That is not the basis on which unreasonableness can be made out. As the Minister’s counsel correctly submitted, what the Tribunal makes of the evidence before it, and what weight it gives to the evidence, is for the Tribunal to decide.
That determination and the reasons that inform it, must be reasonable and intelligible. The applicant’s disagreement does not reveal that the Tribunal failed to comply with this requirement.
In all, ground one is not made out.
Ground three of the further amended application asserts that the Tribunal denied the applicant procedural fairness because it did not ask him to “expand on aspects of his account”, which the Tribunal considered to be “open to doubt”.
Again, the applicant focused on the matter of the fuel tanker business and in particular, to the matter of the applicant’s capacity to fund his claimed share of the fuel tanker.
The applicant pointed to the Tribunal’s finding that it ([18] at CB 164):
“…[did] not find it plausible that the applicant had the financial capacity to fund his share of even a single petrol tanker, which he claimed his brother was operating for 6 - 7 years before he was targeted”.
I understood the applicant to argue that this, in part, informed the Tribunal’s conclusions that the applicant did not own a petrol tanker with his brother, nor was his brother killed by the Taliban.
In his written submissions, the applicant made reference to SZBEL v Minister for Immigration and Multicultural and Ingenious Affairs [2006] HCA 63; (2006) 228 CLR 142; (2006) 93 ALD 300; (2006) 231 ALR 592 (“SZBEL”) at [47] to argue that, given that it was open to doubt, the Tribunal should have asked the applicant at the hearing to explain why his account of the “attack” on the fuel tanker and his brother, should be accepted.
In the circumstances of this case, it would have been of enlightenment to the applicant, if the applicant (through his solicitor) had also looked at SZBEL at [44]:
“The Tribunal did not accord the appellant procedural fairness. The Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review.”
[Emphasis added.]
As was also made clear in CME15 v Minister for Immigration & Anor [2017] FCCA 3042; (2017) 327 FCR 205 (at [34] – [35]):
“[34] One, the words of s.425(1) of the Act impose procedural fairness obligations on the Tribunal to give applicants sufficient opportunity to give evidence and make submissions about determinative issues arising in relation to the review (SZBEL at [44]).
[35] Two, issues arising in the review are the issues that the delegate considered determinative, unless the Tribunal considers other issues to also be dispositive of the review.”
[Emphasis added.]
In the current case, it was quite clear that this issue did not arise for the first time before the Tribunal. In her decision record, the delegate noted a number of inconsistencies in the applicant’s evidence. Relevantly, the delegate stated that (CB 112.3):
“…[The applicant] listed his salary at that time as nil. He did not articulate how he or his brother could afford the large sums of money required to purchase one petrol tanker, let alone the number required to distribute fuel throughout Afghanistan as he claims. He did not articulate how they would source fuel, how they would sell it, how they would transport it, how they made business contacts in the industry, what registration or licences were required or any other specific details that I would expect from someone who started such a business.”
The delegate subsequently found (CB 113.3):
“In summary I do not accept:
- His family owned a petrol tanker or any related business.
- His brother was killed by the Taliban.
- He has been threatened by the Taliban.”
That, of itself, is sufficient to dispose of the applicant’s ground.
For the sake of completeness, I also note that the applicant’s migration agents also recognised that the delegate squarely raised this issue, when they wrote to him following the delegate’s decision in May 2014 (CB 129 to CB 131).
Relevantly, they stated (CB 129.7):
“In addition, the Department had significant concerns over your claims relating to your business activities and threats from the Taliban. At your entry interview, you stated you owned a patrol tanker your brother and it was destroyed and your brother was killed in the same act. In your written claims, you stated that your brother was the sole operator of a petrol company that provided fuel throughout Afghanistan to US and Western forces. At your PV interview, you stated you had a share in the fuel business and the older brother had been threatened first. You claim you asked your brother to stop the business but could not conivcne (sic) him and he was killed by the Taliba (sic). The Department found that you inconsistent with regard to your actual role in the business and the size of the business. In your PV Application you stated you no income. This does not explain how you were able to purchase of tanker, let alone purchase fuel or operate in the business of selling petrol...”
[Errors in original.]
In the circumstances, I reject the applicant’s claim, in light of relevant authorities, that the Tribunal failed to comply with its procedural fairness obligation pursuant to s.425 of the Act. The Tribunal was correct to note in its decision record that the matter of the applicant’s claim to be a half shareholder in the fuel tanker business, and the financing and operation of the business, were “issues already spelt out in the Department’s decision” ([18] at CB 164).
However, and further, the Tribunal did also raise this issue at the Tribunal hearing in a manner sufficient to satisfy its procedural fairness obligations.
The Tribunal made specific reference to what was relevantly stated in the delegate’s decision record in relation to the fuel tanker business and its financing (see T23).
On any fair, or reasonable reading of the transcript of the Tribunal hearing, this was sufficient to alert the applicant to the fact that, like the delegate, the Tribunal was also concerned with eliciting a reasonable explanation from the applicant as to how he could afford his share in the fuel tanker.
It must be said, that in his written submissions to the Court, the applicant, in recounting what the transcript revealed about the Tribunal hearing, stated ([14.4] of the applicant’s written submissions):
“At page 23 of the Khan affidavit, the AAT put to the applicant that he had been inconsistent in his statements about his role in the fuel tanker business, the size of the business and how it was possible for the applicant to afford ‘such an expensive item as a tanker’. After some further discussion, the client said that his share of the tanker was equal to $A16,000.”
I do not respectfully comprehend relevant authorities to require the Tribunal to do more than (SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138; (2008) 172 FCR 1; (2008) 103 ALD 248 at [7]):
“…provide the applicant with the opportunity to satisfy the Tribunal’s specific reservations about the applicant’s case. Thus, to some extent at least, the issues arising in relation to the decision under review will depend upon the view that the ultimate decision-maker takes about the material before the Tribunal, and will therefore be shaped by that person’s thought processes. This is not to say that the Tribunal member must expose all of his or her thought processes to scrutiny by the applicant, as part of the hearing. The High Court recognised this in SZBEL at [38]-[39]. The line between exposing every aspect of the reasoning process and making known to the applicant the issues that the Tribunal member sees as arising may not be easy to recognise in all circumstances, but it does exist.”
The Tribunal did put the applicant on notice of its “specific reservations” about the state of his evidence in relation to the fuel tanker business, its financing, and his brother. The fact that the applicant could not provide an explanation to satisfy those reservations does not reveal any failure of procedural fairness by the Tribunal.
In all, ground three is not made out.
Conclusion
There is no jurisdictional error arising from the grounds of the further amended application. It is appropriate to dismiss the application. I will make the appropriate order.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 1 June 2018
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