BWH17 v Minister for Immigration

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FEDERAL CIRCUIT COURT OF AUSTRALIA

BWH17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 838
Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal failed to consider corroborating evidence – whether the Tribunal’s findings were irrational or illogical – whether the Tribunal purported to act as the arbiter of genuine religious feeling.
Legislation:
Migration Act 1958, s.91R(3)
Cases cited:
BXN16 v Minister for Immigration [2019] FCCA 2820
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; (2016) 70 AAR 413; [2016] FCAFC 146
Maan v Minister for Immigration and Border Protection (2017) 253 FCR 564; (2017) 72 AAR 394; [2017] FCA 906; [2017] FCA 906
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; (2013) 136 ALD 41; (2013) 302 ALR 572; [2013] FCA 317
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347; [1994] FCA 1105
SZLSP v Minister for Immigration and Citizenship (2012) 127 ALD 495; [2012] FCA 451
SZSWO v Minister for Immigration and Border Protection [2015] FCA 285
Applicant: BWH17
First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL
File number: MLG 878 of 2017
Judgment of: Judge Riley
Hearing date: 11 November 2019
Date of last submission: 11 November 2019
Delivered at: Melbourne
Delivered on: 15 April 2020

REPRESENTATION

Counsel for the applicant: Chris Oldham
Solicitors for the applicant: Ravi James Lawyers
Counsel for the first respondent: Jonathan Barrington
Counsel for the second respondent: No appearance
Solicitors for the respondents: DLA Piper

ORDERS

  1. The application filed on 1 May 2017 and amended on 29 October 2019 be dismissed.

  2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 878 of 2017

BWH17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

  1. This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

The applicant’s claims

  1. In his outline of submissions filed on 4 November 2019, the first respondent outlined the applicant’s claims as follows:

    8.In summary, the applicant claimed that:7

    7 CB 479 [11]-[13].

    8.1.her mother died when she was young;

    8.2.in 2004, at about 13 years of age, she ran away from her home in Rawalpindi because her father was very violent, and she has not seen her father or her two sisters since;

    8.3.she has lived in various…

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Details
Case
[2020] FCCA 838
Decision Date

CaseChat Overview and Summary

This matter concerned an application by BWH17 (the applicant) against the Minister for Immigration. The applicant sought judicial review of a decision made by the Administrative Appeals Tribunal (the Tribunal) concerning their protection visa application. The core of the dispute revolved around whether the Tribunal had adequately considered all the evidence presented, particularly corroborating evidence, and whether its findings regarding the applicant's credibility were rational and logical.

The legal issues before the court were whether the Tribunal failed to consider corroborating evidence, whether its findings were irrational or illogical, and whether it improperly acted as the arbiter of genuine religious feeling. The applicant argued that the Tribunal's adverse credibility findings were not based on probative material or logical grounds, and that the Tribunal had failed to consider crucial corroborating evidence, leading to an irrational and illogical conclusion.

The court considered the principle that while credibility is primarily a matter for the Tribunal, this does not preclude judicial review of credibility findings. The court referenced established precedent, including *Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham* and *CQG15 v Minister for Immigration and Border Protection*, to explain that adverse credibility findings can be challenged on grounds such as a lack of logical or probative basis, irrationality, unreasonableness, or a failure to afford procedural fairness. The court highlighted that a Tribunal's decision must be based on findings or inferences of fact that are grounded upon probative material and logical grounds. The court also noted that a failure to consider relevant corroborating evidence, especially when that evidence underpins the rejection of an applicant's claims, can constitute jurisdictional error.

The application filed on 1 May 2017 and amended on 29 October 2019 was dismissed. The applicant was ordered to pay the first respondent's costs of the proceeding, fixed in the sum of $7,467.

Orders

Orders of the court

The application filed on 1 May 2017 and amended on 29 October 2019 be dismissed.

The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,467.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The applicant also relied on CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; (2016) 70 AAR 413; [2016] FCAFC 146, the Full Court of the Federal Court said that:36.Before considering the arguments in detail, there is one topic which this appeal usefully highlights. That credibility is a matter par excellence for the Tribunal is an expression often used. It stems from Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 74 ALJR 405 per McHugh J. At [67]-[68] his Honour, sitting in the High Court’s original jurisdiction as a single judge, said (footnotes omitted):67In addition, the prosecutor alleges that the Tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor’s claim that members of PLOTE tried to recruit him were "utterly implausible". However, this was essentially a finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word "implausible". The disbelief arose from the Tribunal's view that it was inherently unlikely that the events had occurred as alleged. 68But there is a more fundamental reason why the argument based on s 430 fails to support a claim for prerogative relief. Even if, contrary to my view, there was a breach of s 430(1) by the Tribunal, it would not amount to a jurisdictional error. In Minister for Immigration and Ethnic Affairs v Eshetu, Gummow J referred to the requirement that, before granting a protection visa, the Minister and, on review, the Tribunal be "satisfied" that the prosecutor was a refugee. That requirement arose from ss 36 and 65 of the Act. His Honour said:"A determination that the decision-maker is not 'satisfied' that an applicant answers a statutory criterion which must be met before the decision-maker is empowered or obliged to confer a statutory privilege or immunity goes to the jurisdiction of the decision-maker and is reviewable under s 75(v) of the Constitution."The prosecutor argued at the hearing that s 430(1)(c) "feeds into the ascertainment of the Minister's satisfaction" and that it is "an integral part of ascertaining the jurisdictional fact". (emphasis added [in CQG15])37.It is important to note that McHugh J’s observations and his Honour’s use of the phrase “par excellence” were made in the specific context of a claim that the Tribunal had not complied with its statutory obligation under s 430 of the Migration Act to give reasons for its decision. Nothing said by McHugh J suggests that the Tribunal’s adverse findings on credibility are not amenable to judicial review on jurisdictional error grounds. There is a risk that a mechanical use of the phrase “par excellence” as a formula fails sufficiently to appreciate this important reality. The fact that credibility is a matter for the Tribunal to determine as a question of fact does not mean that challenges to credibility are not open. This appeal illustrates three of a number of potential bases of challenge to credibility findings on well‑established legal precedent. In the present appeal, the foundation for the challenge is on the basis of no logical or probative basis for the finding in relation to ground 1, illogicality and/or irrationality in relation to ground 2, and, in relation to ground 3, a lack of natural justice. 38.There are several other potential bases upon which credit findings can be challenged. Recitation of the expression that credibility is a matter par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:(a) failure to afford procedural fairness;(b)reaching a finding without any logical or probative basis;(c) unreasonableness; and/or(d) jurisdictional error as discussed by Flick J in SZVAP.…40.The contention advanced for the appellant is that, at most, the identified inconsistencies and incongruities in his evidence, taken together, provided a basis to doubt or not to accept the evidence. However, it was neither logical nor rational, the appellant argues, to find that his evidence was false when there was not one finding of falsity or fabrication in relation to any of the appellant’s evidence. The appellant stresses that, despite the entire orthodoxy of the remarks by McHugh J in Durairajasingham, the Tribunal is only empowered to make a determination under the Migration Act where it is based on findings or inferences of fact that are grounded upon probative material and logical grounds: WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74; 80 ALD 568 (at [22]); Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 per Gummow J (at [145]); and more recently, as discussed by Flick J in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; 233 FCR 451 (at [20]-[21]), where his Honour said:20Whatever may be the difficulties, however, adverse findings of fact founded upon credibility - like other findings of fact - may expose jurisdictional error. A finding of fact founded simply upon a conclusion that a witness is not to be believed is no more immune from judicial scrutiny than is any other finding of fact.21In an appropriate case findings of credibility by an administrative decision‑maker may expose legal error.41.Indeed, as also noted in SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 (at [31]), Flick J held that adverse findings as to credit by the Tribunal do not shield its decision-making process from scrutiny. His Honour there said:31In the context of judicial review being undertaken of a decision of a Refugee Review Tribunal, adverse findings as to credit by the Tribunal do not shield its decision-making processes from scrutiny. Thus, for example, in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [78], (2013) 212 FCR 99 at 121, Robertson J observed: [78]It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.The Tribunal in that case had found the claimant had been “untruthful”, including in the account he had given as to his having studied Persian in Pakistan. The Tribunal, however, had failed to refer in the course of the hearing or in its reasons to a document from Punjab University corroborating the claimant’s account. Notwithstanding the findings as to credit, the decision of the Tribunal was set aside. The Minister appealed unsuccessfully. Robertson J relevantly concluded: [119]The key features of the present case therefore are, first, that the Tribunal did not consider the Punjab University transcript and, second, the matter to which that transcript went founded the Tribunal’s rejection of the applicant’s claims, on the basis that he had been untruthful. This was not a case where the Tribunal took a nuanced approach to questions of credit by considering whether its disbelief of the applicant in one respect nevertheless did not mean that it disbelieved him generally: rather, the Tribunal’s approach was to disbelieve the applicant generally. In the former case it may more readily be seen that such a finding on credit goes only to a matter of fact and thus is quintessentially the province of the Tribunal.[120]The court is not involved in traversing findings of fact about the corroborative evidence because the Tribunal did not deal with it. The unexplored possibilities include that the transcript was false, that the applicant had studied the Persian language but was a bad student or had a bad memory, and that there was an ambiguity in what studying Persian meant, whether it was language or culture and history. It is for the Tribunal to deal with the material before it and to resolve any conflicts in it.[121]To adopt the language of Buchanan J in Minister for Immigration and Citizenship v SZCOQ [2007] FCAFC 9 at [61], relied on by the Minister, these considerations bear upon the material elements which must be satisfied, or rejected, when dealing with an applicant’s claims; (2013) 212 FCR 99 at 132.See also: MZYWL v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 895 at [24] per Bromberg J. Such findings, like all findings, must be rationally made and based upon facts having logical and probative weight. Prior to the decision in Minister for Immigration and Citizenship v SZRKT, supra, in SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470 at [37], (2009) 181 FCR 113 at 126, Logan J had also observed that “the adjectives ‘ignorant’, ‘arbitrary’ and ‘perverse’ aptly apply to a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”. Similarly, an ultimate conclusion founded in part upon adverse findings as to credit may be set aside if the decision-maker has proceeded in a manner which gives rise to a reasonable apprehension of bias: e.g., SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80.(emphasis added [in CQG15])42.The passage in SZRKT [2013] FCA 317; 212 FCR 99, cited by Flick J in SZSHV, was also followed by his Honour in SZVAP, where he also noted the following passage from WAGO v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 437; 194 ALR 676 per Lee and RD Nicholson JJ (at [54]) (Carr J agreeing (at [57])):The unwarranted assumptions of the Tribunal as to matters relevant to formation of a view on the credibility of the corroborative witness caused the Tribunal to disbelieve and disregard that evidence and constituted a failure by the Tribunal to duly consider the question raised by the material put before it: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 per Gleeson CJ at [4]. Although the remarks of the Chief Justice in Aala were directed to entitlement to review by constitutional writ on the ground of absence of authority for the Tribunal to make a decision that exercised the decision-making power in a manner that was not procedurally fair, his Honour's comments are equally pertinent to an unauthorised exercise of decision-making power that results from the Tribunal failing to take into account relevant material. In misunderstanding the material before it, the Tribunal thereby failed to have regard to relevant material, resulting in a decision for which the Tribunal had neither authority nor jurisdiction under the Act: Yusuf per McHugh, Gummow and Hayne JJ at [82]-[85]. It follows that grounds for review of the Tribunal's decision arise under s 476(1)(b) and (c) of the Act.43.The appellant also points to SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198, where Gordon J considered some of the United States authorities on the issue of the leap between minor or trivial inconsistencies or omissions and a general credit rejection. Her Honour said (at [25]-[26]):25Notwithstanding the breadth of the Tribunal’s discretion to make weight and credibility determinations, the requirement described in WAIJ to make those determinations “judicially” imposes limits that credibility and weight determinations be made rationally and logically, and be articulated properly. It is worth noting in this context that such requirements are not unique to Australia. Indeed, the United States Court of Appeals for the Ninth Circuit has stated that for a migration Tribunal’s adverse credibility finding to survive appellate scrutiny, there must be a “legitimate articulable basis” for the Tribunal’s finding and the Tribunal “must offer a specific, cogent reason for any stated disbelief”: Stoyanov v INS (9th Cir 1999) 172 F3d 731, 736 (internal citations and quotation marks omitted). The Court in Stoyanov went on to state that “minor inconsistencies cannot support an adverse credibility finding” and that “trivial errors by an asylum applicant do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible”: Stoyanov at 736 (internal citations and quotation marks omitted [in CQG15]).26Here, the inconsistencies (or rather, omissions) in the first appellant’s evidence adverted to by the Tribunal are at most minor or trivial. Further, the Tribunal’s reasons disclose no legitimate articulable basis for the finding, based on those omissions, that the first appellant fabricated fundamental aspects of his refugee claims. Instead, the Tribunal, even while acknowledging that it is not to be expected that an applicant will include every detail in the initial application, concludes without reasons that these are details that should have been provided, finds that they are details so weighty or important as to go to fundamental aspects of the claims, makes an adverse credibility finding, and infers that the claims were fabricated. Once the bases for these findings and inferences of fact are tested in the manner outlined, it is apparent that the Tribunal’s determination is based on illogical or irrational findings or inferences of fact. It is a decision not supported by reason. To put the matter another way, “because it is based upon such findings … the determination is an unreasoned decision”. (emphasis added [in CQG15])44. Again, in WAIJ, Lee and Moore JJ (at [27]) said:`Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material. (See: S20/2002 per McHugh, Gummow JJ at [49]). Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the Tribunal in assessing the credibility of an applicant’s claims. However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error. (See: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ at [82]-[85]).

Ratio Decidendi

Legal Principle Established

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