BWH17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FCA 1282
•28 October 2022
FEDERAL COURT OF AUSTRALIA
BWH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1282
Appeal from: BWH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2020] FCCA 838 File number(s): VID 306 of 2020 Judgment of: HESPE J Date of judgment: 28 October 2022 Catchwords: MIGRATION – refusal of grant of Protection visa – appeal from Federal Circuit Court of Australia – judicial review of decision by Administrative Appeals Tribunal (Tribunal) under Pt 7 of Migration Act 1958 (Cth) – jurisdictional error – whether treatment by Tribunal of corroborative evidence unreasonable, irrational or illogical Legislation: Migration Act 1958 (Cth) ss 36, 65, 414 Cases cited: Minister for Immigration and Border Protection vSabharwal [2018] FCAFC 160
Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485; [2010] FCAFC 50
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1; [2003] HCA 30
SZDGC v Minister for Immigration and Citizenship (2008) 105 ALD 25; [2008] FCA 1638
WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568; [2004] FCAFC 74
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 31 Date of hearing: 31 August 2022 Counsel for the Appellant: Mr J Tito Solicitor for the Appellant: Victoria Legal Aid Counsel for the First Respondent: Mr J Barrington Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
VID 306 of 2020 BETWEEN: BWH17
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
HESPE J
DATE OF ORDER:
28 OCTOBER 2022
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The Appellant pay the First Respondent’s costs of the appeal, to be assessed by a Registrar on a lump sum basis if not agreed.
3.The name of the First Respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
HESPE J:
INTRODUCTION
This is an appeal from the judgment and orders of the Federal Circuit Court of Australia (as it was then styled) (Circuit Court) dated 15 April 2020, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal had affirmed a decision of a delegate of the Minister made on 18 December 2015 under s 65 of the Migration Act 1958 (Cth) (Act), refusing to grant the Appellant a Protection (subclass 866) visa.
The issue in the appeal is whether the primary judge erred in failing to find that the Tribunal fell into jurisdictional error on the basis of legal unreasonableness and irrationality or illogicality. The Appellant contends that the primary judge ought to have concluded that the Tribunal had irrationally rejected corroborative evidence.
The context in which the issue arises concerns the state of satisfaction of the Tribunal, formed upon its review under s 414 of the Act, that the Appellant did not satisfy at least one of the criteria in s 36(2) of the Act, which provides:
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
(b)a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
BACKGROUND FACTS
The Appellant is a national of Pakistan. She came to Australia on 23 May 2014 on a Visitor (subclass 600) visa. On 11 June 2014, the Appellant lodged an application for a Protection visa claiming a well-founded fear of persecution on return to Pakistan on a number of grounds, including on the basis of her religion as a convert from Islam to Christianity. In support of her claim, the Appellant provided documents to the Department, including copies of purported death threats.
In her oral evidence to the Tribunal, the Appellant explained how she was first exposed to Christianity in Pakistan, her reasons for conversion and her experiences of harm and threats. The Tribunal summarised that evidence as follows (Tribunal Reasons [45]–[48]):
[45][The Appellant] said she was born into a Muslim family and her father was a strict Muslim who forced her and her sisters to undertake various religious practices.
[46]The [Appellant] said she was attracted to Christianity through her friendship with two Christian women … whom she lived with at a hostel … in 2007. They treated her well, particularly in contrast with other Muslim women at the hostel whom the [Appellant] said displayed “hateful behaviour” … She claims to have converted to Christianity one day in the shower at the hostel in 2007. She prayed daily in the evenings … She did not learn about Christianity at that time through other means, and when asked if she read the Bible, the [Appellant] replied “no”.
[47]The [Appellant] tried to attend church in around June 2007 but became scared after being warned by a priest (via a boy standing outside) at a church she chanced upon in Islamabad one day to stay away. Specifically she approached the boy, asked to see the priest in order to get baptised, and when the boy returned from relaying the message to the priest he said the priest told her to go away, never to return and that if any Muslims or extremists came to know that she wanted to be baptised they would kill her along with the priest and the boy. The [Appellant] left the church and never returned, nor did she attend church at all whilst in Pakistan thereafter. However she claims she attended Christmas celebrations in the G7 area in Islamabad on Christmas day in 2010, 2011 and 2013 (she was in America at Christmas in 2012). She provided to the Department photographs of herself allegedly when visiting the area. The Tribunal accepts the [Appellant] may have visited this area in Islamabad on Christmas day in 2010, 2011 and 2013 as claimed.
[48]The Appellant said during her second visit to the United states in 2012/2013 she attended the Holy Apostles [C]hurch in New York City, and helped out at their soup kitchen (on about five occasions according to her statutory declaration provided to the Department), feeding homeless people.
The Tribunal did not accept that the Appellant attended church services whilst in the United States in 2012/2013 but did accept that she helped out at the Holy Apostles soup kitchen, as claimed (Tribunal Reasons [48]). The Tribunal also accepted that the Appellant formed a friendship with a priest from the Church of the Holy Apostles in New York and that the friendship continued after her return to Pakistan (Tribunal Reasons [48]).
The Tribunal went on to discuss the Appellant’s evidence as follows (Tribunal Reasons [51]):
[51]After the [Appellant] returned to Pakistan from the United States she claims to have attended Christmas celebrations on Christmas day in 2013 at the same area in Islamabad (G7) as before. The next day, on 26 December 2013, she claims she was in the Commercial Market area, Rawalpindi, not far from her hostel when two people on a motorcycle approached her, accused her of having converted to Christianity (and leaving Islam and insulting the prophet Mohammad which, she argued, is blasphemous), gave her a letter (a translated copy of which the [Appellant] provided to the Department), slapped her on the face, pushed her to the ground, and threatened to kill her. One of the men on the motorbikes told her he belonged to the Tehrik-i-Taliban Pakistan (TTP). She reported the matter to the police at the Newtown Police Station, Commercial Market area, and gave the policeman the TTP’s letter. The policeman tore up her complaint application and on a copy of the application he wrote “no action” (in English). (The [Appellant] provided a copy of this document to the Department and the Tribunal.) The [policeman] told the [Appellant] to go away before allegedly saying that they cannot do anything about the people who want to kill her and that the police are afraid of them. According to the [Appellant’s] oral evidence at hearing, the policeman told her maybe a Muslim fundamentalist will kill her, or maybe one of their police officers who are Muslim fundamentalists will kill her and gave the example of Salmaan Taseer, former Governor of Punjab who was assassinated by his own police guard because he had supported a Christian girl.
[52]Shortly after this incident with the TTP the [Appellant] said she moved out of the hostel where she was staying in Rawalpindi to one of Mr [X]’s houses in Islamabad. In around April 2014 the trust’s office was broken into and trashed. Afterwards she moved her office to the ground floor of the building Mr [X] owned (she lived in the basement of the same building). The [Appellant] provided to the Department copies of two photographs of an office space with some furniture upturned and some papers on the ground, allegedly her damaged office space …
[53]After her office was trashed the [Appellant] claimed she received a threatening letter from the TTP in around May 2014 at her office (she provided a translated copy of the letter to the Department, dated 14 May 2014). After the [Appellant] left Pakistan (on 23 May 2014) Mr [X] told her another threatening letter had been delivered to her office, this time from an imam from a mosque, which he found in October 2014. As well, Mr [X] told her that someone had fired bullets at her office that same month. A few months later the [Appellant] said Mr [X] moved away from this area and whilst he still owns the building where her office was located, it is currently empty. To support her claims the [Appellant] provided to the Department a translated copy of a letter dated 1 October 2014 addressed to “Apostate [Appellant]” from Imam of Mosque Maulana Qurban Usman Muhammad, Jhang and a copy of a photograph of a door with bullet holes.
[54]At the Tribunal hearing the [Appellant] said she is afraid of those people who have threatened her in the past and who gave her threatening letters on return to Pakistan: that is the TTP and a mosque leader. She said that even normal Muslims are very extreme when it comes to their religion. She said if she returns first of all the authorities at the airport will ask what she has done in Australia and would find out about her conversion and they will kill her. When asked to clarify if she fears the authorities will kill her as a Christian convert or those others (for example Muslim extremists and/or the TTP) will kill her and the authorities would do nothing, the [Appellant] replied that she fears everyone: the authorities, common Muslims, and those who gave her death threats.
The Tribunal made the following findings in respect of the evidence (emphasis added):
[55]As discussed with the [Appellant] at hearing, the Tribunal has significant concerns about the credibility of her evidence about her claimed Christian conversion and the claimed incidences in Pakistan as a result for the following reasons.
a.The [Appellant’s] oral evidence about her motivations to convert (to Christianity) and the circumstances in Pakistan were vague, general and unconvincing … At hearing she noted that she was very young at the time, which the Tribunal accepts. However her vagueness in this respect causes the Tribunal to doubt her claims, particularly when combined with other concerns as set out below.
b.Apart from her claim that she prayed in the evenings … when living at a hostel … and visited an area in Islamabad where Christmas celebrations were held on Christmas day in 2010, 2011 and 2013, the [Appellant] did not actually practice her claimed Christian religion at all in Pakistan. As mentioned, she said she wanted to attend church but was scared after being warned by a priest (via a boy) at a church in Islamabad in June 2007. The Tribunal considers such behaviour — approaching a priest at a church randomly, without first investigating the viability of converting — at odds with her claims that Christian converts from Islam are at risk of serious harm in Pakistan.
c.Further, the Tribunal found the [Appellant’s] oral evidence about the Christmas celebrations she purportedly attended in Islamabad to be vague and evasive, which casts doubt about the reasons for her visits to the area and the extent of her involvement in the celebrations. For example when asked what the celebrations involved, she responded with a question, asking the Tribunal to tell her what they do in Australia. Her response was then vague and general, stating only that there were decorations, and that people gathered together, wore new clothes, and were happy.
d.The [Appellant’s] evidence about being targeted by the TTP because of her claimed Christian conversion lacked credibility for the following reasons.
iShe was unable to explain how the TTP came to know she was a Christian convert … The Tribunal notes in this regard the [Appellant] stated in her statutory declaration provided to the Tribunal that she practised her Christian religion in Pakistan in private. When this concern was discussed at hearing the [Appellant] said she has no idea how the TTP knew (of her conversion) and that she was in shock when they approached and threatened her the first time on 26 December 2013. She failed to mention at hearing that they came to know that she was Christian because of her attendance at Christmas celebrations the day before, despite this fact being clearly stated in the translated copy of a letter from the TTP [see footnote 16, below] provided. The representative argued at hearing (and in her written submission provided to the Tribunal) that by that time the [Appellant] had been publicly working and had a local profile as an animal rights activist. Therefore it is conceivable that people had become aware of her Christian faith. However for reasons above whilst the Tribunal accepts the [Appellant] did some work as an animal rights activist, it found her profile to be low and limited. The representative submitted as well that the attack happened after the [Appellant] attended Christmas celebrations, and her identity documents indicate that she is the daughter of Mohammad, which shows that she was initially a Muslim. The Tribunal accepts the [Appellant’s] identity documents show she is Muslim however this alone does not explain how the TTP or others came to know she was a Christian convert. Further, the fact that the [Appellant] failed to mention the reason behind the attack on 26 December 2013 was because she had attended Christmas celebrations the day before at all at hearing causes the Tribunal to doubt her claims.
[Footnote 16 to the Tribunal Reasons reads: “In the translation of the letter the TTP purportedly stated that they had been keeping an eye on all of the [Appellant’s] activities and that on 25th December she went to celebrate Christmas, noting that a person who abandons her religion/Islam is an apostate and the punishment is the death penalty”.]
iiThe [Appellant’s] oral evidence about other aspects of her claims in this respect was vague and at times evasive. For instance she told the Tribunal the 14 May 2014 letter from the TTP was found at her office (underneath the door) yet was unable to say whether she opened the letter, or someone else.
iiiThe Tribunal finds it odd that when the [Appellant] reported the 26 December 2013 incident to the police she advised them in writing (according to the translated copy of the letter she has provided) that she was a Christian convert and had abandoned Islam. Such behaviour is at odds with someone who claims that converts from Islam to Christianity are considered apostates, blasphemous, and face serious harm from extremists and from the authorities in Pakistan as a result. When this concern was discussed at hearing the [Appellant] questioned how she was supposed to know the police’s reaction. She added that she needed help at the time and said it was the biggest mistake of her life. She failed to answer why she told the police that she was a Christian convert from Islam at that time. Furthermore the Tribunal found the [Appellant’s] oral evidence about her engagement with the police about this matter implausible and at times nonsensical. For instance, she said she wrote a complaint application (at a nearby photocopy shop) which the policeman read then tore up and threw away. Yet she has provided (to the Department) a photocopy of that application with “no action” written on it in English: it is unclear to the Tribunal why the police officer would tear up and then throw away the original copy as claimed, whilst writing “no action” in English on a copy of that application before returning it to the [Appellant].
e.The [Appellant’s] oral evidence to the Tribunal about the threatening letter from an imam that Mr [X] allegedly found at her office after she left Pakistan and the gunshots fired at her office door was vague and at times evasive. For example, when asked who the letter was addressed to and from whom, the [Appellant] did not answer, saying only that he is in a mosque and is called a Muslim leader/imam. She said she has already forgotten, did not remember which mosque, and has forgotten the nature of threat because she was too scared to look at the letter, it was a long time back, and she had given the letter to her lawyer. When asked why the leader of the mosque sent a letter threatening to kill her in October 2014 the [Appellant] replied that she has no idea and does not know how he found out that she was a Christian convert.
f.An inconsistency exists between the [Appellant’s] oral evidence to the Tribunal and her oral evidence to the Department at interview (and her written claims in her statutory declaration provided to the Department and Tribunal) in relation to whether or not she read the Bible in Pakistan …
56.The combination of these concerns causes the Tribunal to doubt the [Appellant’s] core claims to have explored and “converted” to Christianity in Pakistan, and to have been assaulted and threatened by TTP members as a result. For these reasons the Tribunal does not accept the [Appellant’s] claims to have converted to Christianity in Pakistan, to have been attacked by two men on a motorbike, allegedly TTP, in December 2013 and threatened, to have had her office damaged and a threatening note left on the wall in April 2014, or to have received a threatening letter from the TTP dated May 2014. Nor does the Tribunal accept that her office was shot at in October 2014, or that she received a threatening letter from an imam dated October 2014 (via Mr [X]) after she had left Pakistan, as claimed. The Tribunal accepts the [Appellant] may have visited an area in Islamabad where Christmas celebrations were held in the past around Christmas time on occasion and has photographs of her doing so. However the Tribunal is not satisfied for the reasons above that any problems arose from these visits.
57.In reaching this conclusion the Tribunal has had regard to the translated copies of the letters allegedly from the TTP dated 26 December 2013 and 14 May 2014 accusing the [Appellant] of apostasy and deserting Islam, the copy of the [Appellant’s] application to the police following her alleged assault on 26 December 2013, a translated copy of the note left on the wall at her office, photographs of an office door with bullet holes, photographs of the [Appellant’s] office after it had been ransacked, and the translated copy of a letter from an imam dated 1 October 2014. It has also considered the written statements provided by Mr [X] in support of the [Appellant’s] claims. With respect to the photographs, the Tribunal notes there are no identifying features, and the photographs could be of any office. The letters from the TTP, an imam and Mr [X] do not overcome the serious credibility concerns the Tribunal has with the [Appellant’s] evidence as discussed above and the Tribunal gives them little weight. The application to the police following the [Appellant’s] alleged assault and threat by the TTP in December 2013 is written by the [Appellant] herself and the Tribunal gives it little weight.
DECISION OF THE CIRCUIT COURT
The Appellant sought review of the Tribunal’s decision by the Circuit Court on two grounds:
(1)The Tribunal fell into jurisdictional error by failing to consider all of the corroborating evidence that supported the Appellant’s protection claim.
(2)The Tribunal fell into jurisdictional error in determining that some or all of the Appellant’s evidence upon which her claim was based lacked sufficient credibility and/or plausibility, when such a finding was illogical and/or irrational.
In relation to the first ground, relevantly, the primary judge concluded that the Tribunal did not fail to take account of the TTP letters, but had expressly referred to them at paras 51, 53, 55(e) and 57 of its reasons for decision (Primary Judge Reasons [12]). It could not be said that the Tribunal had overlooked the letters (Primary Judge Reasons [16]).
In relation to the second ground, the primary judge recorded the Appellant as having argued that the Tribunal’s findings about the TTP letters were irrational and illogical because there were no findings that the Appellant had provided bogus documents (Primary Judge Reasons [33]). The primary judge concluded (at [12]) that:
[I]t seems to me to be implicit in the Tribunal’s findings set out above that the Tribunal considered that the TTP letters were bogus or fabricated. The Tribunal did not expressly say so, perhaps for reasons of courtesy. However, it is implicit in the Tribunal’s reasons for decision that it did not accept that the TTP letters were genuine.
In the alternative, the primary judge found (at [38]) that the TTP letters fell into the category described by McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1 at 12 [49] (Callinan J agreeing at 40 [173]–[174]); [2003] HCA 30, where their Honours said:
In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant’s argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.
The primary judge concluded (at [42]) that ground 2 was not made out.
GROUND OF APPEAL
The Appellant’s contention centred around a statement in para [57] of the Tribunal Reasons (and reproduced in bold in para [8], above) which was said by the Appellant to involve an irrational or illogical rejection of corroborative documentary evidence. The essence of the Appellant’s contention was that the primary judge ought to have found that it was not open to the Tribunal to reject the corroborative letters from the TTP or to accord them little weight based on concerns the Tribunal had with the Appellant’s credibility. In the absence of an express finding that the Appellant had lied, before rejecting the letters, the Tribunal needed to undertake a forensic examination of the letters and, based on that examination, express a view as to their genuineness or otherwise. The Tribunal, it was said, had adopted inverse reasoning by first assessing the Appellant’s credit and then weighing the corroborative evidence instead of evaluating the corroborative evidence in the process of coming to its view about the credibility of the Appellant.
LEGAL PRINCIPLES
The issue in this case concerns the Tribunal’s process of reasoning and, in particular, the manner in which the Tribunal dealt with certain documents which the Appellant relied upon as corroboration of her story.
The relevant principles may be summarised as follows.
(1)The Tribunal must act judicially in reaching its state of satisfaction: WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 at 573 [19] (Lee and Moore JJ); [2004] FCAFC 74. A decision resulting from non-compliance with that duty is not a decision which the Tribunal is authorised to make. A state of satisfaction reached (or failed to be reached) irrationally may involve non-compliance with that duty: Applicant S20/2002 73 ALD at 4 [9] (Gleeson CJ).
(2)Illogicality, irrationality or legal unreasonableness in the reasons for an administrative decision may establish jurisdictional error. An illogical or irrational administrative decision, or an illogical or irrational finding of fact or reasoning along the way to making the decision, may establish jurisdictional error if, for example, the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn: Minister for Immigration and Border Protection vSabharwal [2018] FCAFC 160 at [45] (Perram, Murphy and Lee JJ).
(3)It is not necessarily irrational or illogical for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness: Applicant S20/2002 73 ALD at 5 [12] (Gleeson CJ).
(4)A party’s credibility may have been so weakened that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It is not irrational for a decision-maker, applying inquisitorial processes, to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party: Applicant S20/2002 73 ALD at 12 [49] (McHugh and Gummow JJ).
(5)To demonstrate jurisdictional error on the basis that the decision‑maker engaged in a process of reasoning that was illogical, irrational and not based on findings or inferences of fact supported by logical grounds, it is not sufficient to show that the question of fact was one in respect of which reasonable minds might differ: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148] (Robertson J); [2013] FCA 317.
As Robertson J said in SZRKT 212 FCR at 137–8 [150]–[156], in considering whether a decision‑maker engaged in a reasoning process that was irrational or illogical, it is necessary to examine the terms of the reasons for decision.
CONTENTIONS
The Appellant contended that the reasoning in S20/2002 73 ALD 1 did not apply in the absence of a finding that the Appellant had lied or misled the Tribunal. Merely casting doubt on the credibility of the Appellant’s story was not sufficient for the Appellant’s credibility to be regarded as so weakened to treat the corroborative evidence as of no weight.
The Appellant relied upon the decision of Finkelstein J in SZDGC v Minister for Immigration and Citizenship (2008) 105 ALD 25 at 30–1 [23]; [2008] FCA 1638 where, in referring to the statements of McHugh and Gummow JJ in Applicant S20/2002 73 ALD at 12 [49], his Honour said:
That proposition is no doubt true. But the circumstances for its application will be rare indeed. Even experienced advocates can only point to a handful of cases where a witness’ credit has been so badly destroyed in cross-examination that it is possible to make findings of fact based on that evidence alone and simply disregard any corroborative evidence.
The Appellant also relied upon WAIJ 80 ALD at 574–5 [26]–[28] (Lee and Moore JJ), contending that the Appellant’s claims in this case had not been discredited by comprehensive findings of dishonesty or untruthfulness and there was no cogent material to support a conclusion that the Appellant had lied. The corroborative material had not been found on probative grounds to be worthless.
CONSIDERATION
The Appellant’s submissions do not reflect the reasoning process of the Tribunal.
As is apparent from the Tribunal Reasons extracted above, unlike SZRKT 212 FCR 99, this is not a case where the Tribunal failed to consider the TTP letters or failed to refer to the letters in the course of its reasons. This is not a case of the Tribunal ignoring relevant material.
Nor is this a case like WAIJ 80 ALD 568, where the Tribunal considered it unnecessary for it to consider purportedly corroborative material merely because it considered it unlikely that the events described by the Appellant had occurred.
Even more so than in the case of the Tribunal’s reasons in Applicant S20/2002 73 ALD 1, the Tribunal’s reasons in this case do not support a conclusion that the Tribunal first formed a view about the Appellant’s credit before considering the TTP letters. It is apparent from the Tribunal’s course of reasoning that, in reaching its conclusions concerning the alleged incidents in Pakistan, the Tribunal considered the allegedly corroborative TTP letters. The conclusions reached about the Appellant’s credibility were not reached in isolation from the TTP letters.
It is apparent from the Tribunal’s reasons that the Tribunal did not accept the Appellant’s claim to have received the letters from the TTP dated December 2013 and May 2014, or a letter from an imam dated October 2014 (Tribunal Reasons [55]–[57]). Having found that the Appellant did not receive the letters, it is evident that the Tribunal did not accept those documents to be genuine. Such reasoning is not irrational or illogical. It was open to the Tribunal to reach that conclusion without undertaking a forensic analysis of the form of the letters. As Gleeson CJ said in Applicant S20/2002 73 ALD at 5 [12]:
The essence of the complaint is that the tribunal failed to consider the evidence as a whole, but first considered, and disbelieved, the evidence of the applicant/appellant, without taking account of the corroboration, and then considered and rejected the corroboration because of the rejection of the evidence of the applicant/appellant. I do not accept that this is a fair criticism of the tribunal’s reasons. In my view, all that the member was saying was that, for reasons already given at length, she found the applicant/appellant’s story implausible, and in some important respects unbelievable, and that she also rejected the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons that she had already given for rejecting the claim she was considering.
The Appellant contended that the statement made by Gleeson CJ is confined to corroborating evidence in the form of witness statements and does not apply to documentary evidence tendered by an Appellant. That contention is rejected. The TTP letters were documents provided by the Appellant. Their provenance was unknown. In those circumstances, it was not irrational for the weight attributed to the documents to stand or fall with the finding made of the Appellant’s credibility. As North and Landers JJ said in Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 at 492 [36]; [2010] FCAFC 50:
There is nothing irrational about the [Tribunal] in those circumstances rejecting the document by giving it no weight. In circumstances where the provenance of the document is unproved, but it is proffered by a witness whose credibility has been destroyed, the document has no more credit than the person proffering it.
The Appellant contended that the reasoning in S20/2002 73 ALD 1 did not apply in the absence of a finding that the Appellant had lied or misled the Tribunal. Merely casting doubt on the credibility of the Appellant’s story, it was said, was not sufficient for the Appellant’s credibility to be regarded as so weakened as to treat the corroborative evidence as of no weight.
The Appellant’s contention that the reasoning in S20/2002 73 ALD 1 did not apply in the absence of a finding that the Appellant had lied or misled the Tribunal is rejected for two reasons:
(1)First, as a matter of legal principle, it is not necessary for the Tribunal to first expressly decide that an Appellant has lied before rejecting corroborative evidence: SZNSP 184 FCR at 491 [30] (North and Lander JJ). Whilst a tribunal may not disregard corroborative documents on the basis that it surmised that it was possible that the documents could have been fabricated (as in WAIJ 80 ALD at 580 [52] (Lee and Moore JJ)), the Tribunal may reject corroborative evidence if the Tribunal makes a finding that the applicant has fabricated their account: SZNSP 184 FCR at 491 at 491 [31], [33].
(2)Second, the contention does not accurately reflect the Tribunal Reasons read as a whole. The Tribunal did not disregard the existence of the letters in first making its credibility findings. The Tribunal assessed all the evidence together. It found that the Appellant did not in fact receive the letters from the TTP and that the incidents involving the TTP in Pakistan in December 2013 and April, May and October 2014 did not take place. The Tribunal did not accept the Appellant’s claims that she had been threatened by the TTP (which threats had taken the form of the letters). That finding necessarily entailed a finding that the TTP letters were not accepted as genuine but were fabricated. Having regard to the findings of the Tribunal, in the absence of evidence that the letters had a provenance independent of the Appellant, the TTP letters were not corroborative evidence.
The Appellant has seized on a single sentence in the Tribunal reasons. It may be accepted that the sentence at Tribunal Reasons [57] reading “[t]he letters from the TTP, an imam and Mr [X] do not overcome the serious credibility concerns the Tribunal has with the [Appellant’s] evidence as discussed above and the Tribunal gives them little weight” is not well expressed. The language it employs may be described as cryptic, in much the same way as North and Lander JJ described the sentence “[g]iven the adverse credibility finding the Tribunal does not give weight to the document” in SZNSP 184 FCR at 491 [33].
Having regard to the description of such terms as cryptic, it is unfortunate that the language has been repeated. Nonetheless, a single, poorly expressed sentence does not ground jurisdictional error. Although not clearly expressed, the sentence shows that the Tribunal made an assessment of the value of the documents in light of the view it had formed about the credibility of the Appellant. Reading the reasons as a whole, it is apparent that the Tribunal did not accept that the letters were genuine (instead using descriptors such as “purported” and “alleged”) or had a provenance independent of the Appellant.
The Circuit Court did not err in concluding that the Tribunal had not fallen into jurisdictional error. The appeal must be dismissed and the Appellant pay the First Respondent’s costs of the appeal, to be assessed by a Registrar on a lump sum basis if not agreed.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hespe. Associate:
Dated: 28 October 2022
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