BXP20 v Minister for Immigration
[2020] FCCA 1901
•17 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BXP20 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1901 |
| Catchwords: MIGRATION – Application for remedies in relation to decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant Partner visa – whether in considering whether there are compelling reasons for waiving Schedule 3 criteria on the ground the applicant feared persecution if returned to his country of citizenship the Tribunal did not consider the applicant’s claim but instead relied on the Refugee Review Tribunal having decided the applicant was not entitled to protection – whether Tribunal relied on unwarranted assumptions in drawing particular facts – whether the Tribunal ignored relevant material – whether the Tribunal relied on general adverse credibility findings in not accepting applicant’s claims – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.476 Migration Regulations 1994 (Cth), Schedule 2, cl.820.211(2)(d)(ii), Schedule 3, criterion 3001, 3003, 3004 |
| Cases cited: Choi v Minister for Immigration and Border Protection [2018] FCA 291 Libke v The Queen [2007] HCA 30 MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478 Re Minister for Immigration and Multicultural Affairs [2003] HCA 30 SZVAP v Minister for Immigration and Border Protection [2015] FCA 1098 |
| Applicant: | BXP20 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1156 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 8 April 2020 |
| Date of Last Submission: | 9 April 2020 |
| Delivered at: | Sydney |
| Delivered on: | 17 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Nair, by video |
| Solicitors for the Applicant: | Lee & Lee Associates |
| Counsel for the First Respondent: | Ms C Winnett, by video |
| Solicitors for the First Respondent: | HWL Ebsworth Lawyers |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs as assessed or agreed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1156 of 2017
| BXP20 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant applies for remedies under s.476 of the Migration Act 1958 (Cth) in relation to a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Partner (Temporary) (Class UK) (subclass 820) visa (Partner visa).
Background
The applicant is a citizen of the People’s Republic of China. He first arrived in Australia on a student visa on 2 September 2009. That visa ceased on 3 November 2010. The applicant lodged a further student visa which he subsequently withdrew. The applicant held a bridging visa until 29 November 2010. The applicant remained unlawfully in Australia until 30 April 2012 when he lodged an application for a protection visa. A delegate of the Minister refused that application on 8 August 2012 and, on 4 December 2012, the Refugee Review Tribunal (RRT) affirmed the delegate’s decision. The applicant again remained unlawfully in Australia until he lodged a valid application for a Partner visa on 9 July 2015.
To have been entitled to the Partner visa the applicant had to comply with criteria that included those stated in Subclass 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). Relevant to this proceeding is cl.820.211(2)(d)(ii) of Schedule 2 which applied to persons who did not hold a substantive visa at the time they applied for a Partner visa. That subparagraph required that the person who did not hold a substantive visa at the time he or she applied for a Partner visa must satisfy “Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria”. Relevant to the case before me is criterion 3001, which requires that the applicant make a valid application for a Partner visa within 28 days after the “relevant date”.
The applicant did not comply with criterion 3001 because his last substantive visa expired on 3 November 2010. The principal question, therefore, the applicant addressed in his application to the Minister for a Partner visa, and to the Tribunal on review, was whether there are compelling reasons for not applying criterion 3001 to the applicant. This was the principal question the Tribunal considered in deciding to affirm the delegate’s decision not to grant the applicant a Partner visa.
Applicant’s claims
Before the delegate the applicant relied on a number of matters for claiming there were exceptional circumstances for not applying criterion 3001.[1] First, the applicant claimed he feared persecution if he returned to China. Relevant to one of the grounds on which the applicant relies is the submission dated 5 May 2016 the applicant’s representative provided to the delegate,[2] which contains what counsel for the applicant, in his written submissions,[3] identified as “four fear-causing circumstances”, these being the following claims:
a)the applicant had been arrested in China in 2008 “with 12 other brothers and sisters at a private religious gathering”;
b)the applicant “had been tortured and detained for 3 days”;
c)the applicant had been “informed by his wife … that she had been arrested in December 2011 and detained for a month for holding private religious gatherings”; and
d)the applicant’s wife had warned him “not to return to China as he will be put under surveillance”.
[1] CB112
[2] CB112
[3] Applicant’s Outline of Submissions, [10]
Second, the applicant claimed he is in a genuine de facto relationship with the sponsor who has two sons, the younger of which (younger son) has a moderate intellectual disability who requires constant supervision at home and at school. The younger son is dependent on the applicant, and his condition has improved over the past two years. Third, the applicant claimed the sponsor fell off a chair in March 2016 as a result of which she suffered a renal injury, and this requires the applicant’s care and assistance for daily living.
Before the Tribunal the applicant submitted additional materials and made additional claims. These included the following:
a)A report purportedly prepared by a psychologist, Ms Ng (Ng Report), who appears to be part of the “Wellbe Counselling & Psychology Practice”.[4] The Ng Report stated the applicant reported a recent history of being in a car accident leading to personal injury on his back and subsequent symptoms of post-traumatic stress disorder; and the applicant reported “difficult traumatic situations including the witnessing” when he was 19 years of age “of his father in the act of successfully committing suicide in china [sic] via jumping off a tall building”. At the end of the report, under a signature and description of the person whose purported signature it is, there is printed “Date: August 08th 2016”. In the first paragraph of the Ng Report, however, it is stated that the applicant had seen Ms Ng “for one psychological consultation on the 02/02/17”.
b)A report purportedly prepared by a Dr Lam, a general practitioner, dated 22 February 2017 (Lam Report).[5] Dr Lam reported the applicant was “most certainly not in a fit state of health to travel”; that “his health, and in particular, his mental health, would be placed in significant and severe risk should he return to China, where he is unlikely to obtain the appropriate medical support and treatment”; the applicant was involved in a motor vehicle accident on 30 October 2016, after which he displayed symptoms that were “consistent with severe posttraumatic stress disorder”; and the applicant suffered a “left shoulder labral tear as a result” of the accident which will require surgery and “extensive rehabilitation”.
c)A document titled “Clinical notes” consisting of notes “Printed on 26th January 2017” purportedly recorded by Dr Lam on consultation with the applicant and his friend “on 17/11/2016”.[6]
d)A letter dated 17 January 2017 purportedly from Dr Lam addressed to the “Wellbe Counselling & Psychology Practice . . . Dear Psychologist”.[7] It begins by thanking the “psychologist” for seeing the applicant, and then refers to the motor vehicle accident in which the applicant was involved, and various symptoms of the applicant’s mood as observed by various friends of the applicant.
e)A statutory declaration purportedly made on 9 March 2017 by Mr Le, in which he stated he was the solicitor acting for the applicant in his motor vehicle claim for his accident that occurred on 30 October 2016.[8] Mr Le said the applicant recounted that the accident consisted of the applicant having been “rear-ended while parked on the side of Carlingford Road, Epping”.
f)A statement by the applicant stating, among other things, that his current state of health is not good; because of the car accident the applicant lacks the ability to look after his family, requiring the sponsor to work; and the younger son is making progress.[9]
g)A statement by the sponsor dated 8 March 2017.[10] The statement deals with a number of matters, including the applicant’s interactions with the younger son, and the sponsor and her children relying on the applicant.
[4] CB234-235
[5] CB236
[6] CB239
[7] CB261.
[8] CB251
[9] CB277
[10] CB275
The applicant appeared before the Tribunal on 16 March 2017; and the applicant, through his representative, provided to the Tribunal submissions (post-hearing submission) and further information after the hearing.[11] With that submission the applicant’s representative provided to the Tribunal:
a)another statutory declaration “made on 17 March 2017” by the applicant’s lawyer, Mr Le, stating that on 30 October 2016 the applicant recounted to Mr Le that he was “rear-ended while parked on the side of Bonar St, Wolli Creek”, and this was “contrary to my statement on 17 March 2017, which falsely stated that the accident occurred on Carlingford Road, Epping”, this being “a mistake that I made on my part in making my declaration”;[12] and
b)a purported letter from Dr Lam stating that in her clinical notes she “made a minor error in documenting the location of his motor vehicle accident, which occurred on 30 October 2016”, that error being that “the accident was in Wolli Creek, not Marrickville”; and that she personally viewed documentation provided by a tow truck company which recorded that the accident occurred at Wolli Creek.[13]
[11] CB284
[12] CB289
[13] CB285
Tribunal’s reasons
The Tribunal found the applicant’s evidence to be “evasive, implausible and unreliable”;[14] and, for the “following reasons”, the Tribunal did not accept the applicant’s claims. The “following reasons” are arranged under three headings.
[14] CB296, [23]
Credibility
Here, the Tribunal:
a)refers to having put the applicant on notice at the hearing that it would be considering the matter of credibility, and that the applicant may seek an adjournment to make written submissions about credibility concerns the Tribunal might raise;[15]
b)records the Tribunal member put to the applicant that the applicant’s lawyer and general practitioner recorded the motor vehicle accident having occurred at different locations, and the applicant’s being shocked to hear about Dr Lam’s statement;[16]
c)records the Tribunal put to the applicant that the Ng Report was dated 8 August 2016, but it reported that Ms Ng saw the applicant on 2 March 2017;[17]
d)records the account of the motor vehicle accident the applicant gave to the Tribunal in which he said he had lost consciousness, and the Tribunal putting to the applicant that none of the reports in front of it stated the applicant had lost consciousness;[18]
e)records the Tribunal put to the applicant the statement recorded in the Ng Report that the applicant had witnessed the act of his father successfully committing suicide in China when the applicant was 19 years of age, and also put to the applicant the statement that he made to the RRT that, after he was released from detention in China in 2008, the applicant learned his father had a heart attack, and after asking which of the two statements were true, the applicant’s stating that his father had committed suicide but he did not die;[19]
f)records the Tribunal put to the applicant that the RRT did not find the applicant to be a credible witness;[20]
g)records the Tribunal explaining to the applicant why his statements about the applicant’s father’s suicide may lead the Tribunal to come to a view that the applicant has been untruthful, and give no weight to the Ng Report or to his claims that he cannot return to China; and that it sought the applicant’s comments;[21]
h)refers to the submission the applicant’s representative made in the post hearing submission that the applicant’s father attempted suicide, but had been rescued in 1996, but then passed away in 2008, and the Tribunal not accepting this explanation.[22]
[15] CB296, [24]
[16] CB296, [25]-[27]
[17] CB296, [29]
[18] CB296-297, [30]
[19] CB297, [31], [32], [33]
[20] CB297, [34]
[21] CB297, [34]
[22] CB297, [35], [36]
The Tribunal concluded this part of its reasons as follows:
The Tribunal finds that the applicant has been untruthful and manipulative in a deliberate and well-considered attempt to remain in Australia at any cost. He has blithely and unconscionably lied about his father’s death along with his mental and physical health and wilfully manipulated people to support these lies and untruths in an attempt to support his claims.
Credibility of documentary evidence
In this section of its reasons the Tribunal records its findings in relation to documents the applicant provided in support of his application. The Tribunal:
a)found that Mr Le’s purported statutory declaration was unreliable and “potentially concocted to support the applicant’s claim that he has been in an accident and hence unable to return to China”;[23]
b)found that the statements and reports by Dr Lam rely on the applicant’s untruthful claims and, for that reason, considers them to be unreliable and puts no weight on “Dr Lam’s claims that the applicant is unfit to travel and unlikely to obtain the medical attention he requires if he travels to China”;[24]
c)found that the Ng Report is either deliberately fabricated to support the applicant’s claims or, if not fabricated, it is based on untruthful statements made by the applicant, and for that reason the Ng Report is unreliable;[25] and
d)found it was not satisfied the applicant’s claimed mental health issues are not fabricated, and, for that reason, the Tribunal found it was not satisfied the applicant’s claimed mental health issues constitute a compelling reason to waive the Schedule 3 criteria.[26]
[23] CB297, [37]
[24] CB298, [41]
[25] CB298, [45]
[26] CB298, [46]
Compelling reasons
In this section of its reasons, the Tribunal:
a)was not satisfied the applicant’s claim to fear persecution if he were to return to China is truthful or reliable, or that he would suffer harm if he returned to China to lodge a Partner visa application;[27]
b)accepted the younger son has been showing improvements, but, without wishing to entirely dismiss any contribution the applicant may have made to improve the younger son’s condition, the Tribunal was not satisfied the younger son would not have continued to make progress without the applicant’s assistance;[28]
c)was not satisfied the applicant has provided the level of care and assistance to the sponsor and the younger son the applicant claims he had and, for that reason, the Tribunal was not satisfied that any hardship that may accrue to the sponsor and the younger son as a result of the applicant having to go offshore to lodge an application amounts to a compelling reason to waive the Schedule 3 criteria;[29]
d)was not satisfied that the applicant’s reported medical conditions have not been fabricated to support his claim to remain in Australia, and it was not satisfied the applicant cannot return to China to lodge a Partner visa application there;[30]
e)was not satisfied that the applicant and sponsor’s evidence about the amount of care and support each requires on a daily basis is reliable; or that the sponsor requires ongoing daily care from the applicant, or that she would suffer harm that could be considered to be a compelling reason if the applicant were required to go offshore;[31]
f)accepted the applicant may require surgery on his shoulder in the future, but found it was not urgent surgery, and there was no reliable evidence that the applicant could not wait the several months it would take to process the application offshore before he had the surgery, or the applicant would be unable to process his compensation claim;[32] and
g)was not satisfied that there are no other arrangements that could be made for the younger son to continue his routine apart from allowing the applicant to lodge his application for a Partner visa on shore.[33]
[27] CB299, [51]
[28] CB299-300, [55]
[29] CB300, [56], [57]
[30] CB300, [60]
[31] CB301, [66]
[32] CB301, [68]
[33] CB301, [70]
Grounds of application
The applicant relies on the further amended application which contains the following ground (particulars omitted and numbers in square brackets added):
The Tribunal did not consider whether there were “compelling reasons” which warranted waiving relevant “Schedule 3 criteria” to satisfy a relevant criterion for the grant of the partner visa sought by the applicant. [1] The Tribunal did not consider for itself whether the applicant’s return to China posed a risk to the applicant’s safety. [2] The Tribunal relied on unwarranted assumptions. [3] The Tribunal ignored relevant material. [4] The Tribunal proceeded on an erroneous view of the law that its view as to the general credibility of the applicant was determinative.
It will be seen that this ground contains four separate grounds, these being the grounds that appear after each number I have added. I will consider each of these grounds.
Ground [1] – failure to consider claimed fear of harm
In his counsel’s written submissions, the applicant submits the Tribunal did not consider whether the applicant’s claimed fear of persecution, and in particular what counsel for the applicant has identified as the “four fear-causing circumstances”, constituted a compelling reason for not applying the Schedule 3 criteria. The applicant submits the Tribunal instead relied on the RRT’s assessment of that claim, without the Tribunal considering for itself whether the applicant’s claimed fear of persecution in China was a compelling reason for not applying the Schedule 3 criteria. Counsel for the applicant submitted the Tribunal made the same error Bromberg J found the Migration Review Tribunal (MRT) made in MZYPZ v Minister for Immigration and Citizenship.[34] Counsel for the applicant particularly relied on the Tribunal’s stating that it was not its “role to make a finding about the applicant’s claim to fear persecution if he should return to China”.[35] The Minister, on the other hand, submits the Tribunal did consider and formed its own mind about this part of the case; and that although the Tribunal referred to the RRT’s decision, it relied on it, not for the purpose of accepting and applying the findings the RRT had made, but in aid to the Tribunal’s considering for itself this part of the applicant’s claims.[36]
[34] MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478
[35] CB299, [50]
[36] First Respondent’s Outline of Submissions, [42], [43]; First Respondent’s Submissions in response to Applicant’s Submissions filed 24 March 2020, [7]-[11]
Before I consider the competing submissions, it will be necessary to set out the facts and decision in MZYPZ.
MZYPZ
In MZYPZ the visa applicant for a Partner visa claimed there were compelling reasons for waiving the Schedule 3 criteria, one of these being that he feared returning to Sri Lanka. The visa applicant had previously applied for a protection visa, but the RRT had affirmed a delegate’s decision not to grant the visa applicant a protection visa. The MRT found the applicant’s claimed fear of return was not a compelling reason because it found he made “an application for a protection visa in the past and that this application was refused”.[37] The MRT did not otherwise consider the applicant’s claimed fear of return. The visa applicant submitted the MRT made a jurisdictional error because it relied on the RRT’s rejection of the visa-applicant’s application for a protection visa and, by so doing, the MRT foreclosed, and did not consider for itself, whether compelling reasons existed.[38]
[37] MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478, at [23]
[38] MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478, at [26]
Bromberg J found there was “at least some probative material” before the MRT that could have supported a finding that it was unsafe for the visa applicant to return to Sri Lanka, but the MRT did not engage with that material and give it genuine consideration, but instead rejected the material “on the basis of its unstated assumption that, because the [visa applicant’s] application before the RRT was rejected, the material before the [MRT] must have been rejected by the RRT and thus should now be rejected by the” MRT.[39] In addition, his Honour noted that the MRT’s assumption was not necessarily well founded because, although the outcome of the RRT review in that case was before the MRT, it was not apparent the MRT had before it the RRT’s reasons.[40] His Honour further noted, however, that “it would have been permissible for the [MRT] to have had regard to any findings made by the RRT about the issue of the [visa applicant’s] safety, so long as it did so assisted by an accurate account of the relevant evidence and submissions upon which those findings were made”.[41]
[39] MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478, at [27]
[40] MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478, at [28]
[41] MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478, at [29]
Did the Tribunal consider the applicant’s claim of fear?
The question, then, is whether the Tribunal in the case before me, addressed the applicant’s claims of fear of harm on the basis that, because the RRT had considered and rejected the applicant’s claims for protection, the Tribunal was bound to reject it without itself considering whether the applicant did face the harm he claimed he would.
It is true that the Tribunal’s statement that it was not its “role to make a finding about the applicant’s claim to fear persecution if he should return to China” by itself could suggest that the Tribunal was of the view that the RRT’s adverse determination of the applicant’s claims for protection foreclosed the Tribunal’s considering for itself whether the applicant feared harm if he were returned to China and, if so, whether that would constitute a compelling reason for not applying the Schedule 3 criteria. Unlike the MRT in MZYPZ, however, the Tribunal did not simply refer to the RRT’s determination without considering for itself the applicant’s claim.
a)First, the Tribunal directly engaged with a particular aspect that was relevant to the claim that the applicant feared harm if he returned to China, namely, the period that passed between the applicant’s first entering Australia in December 2010 and the day on which he lodged his application for a Protection visa, namely, on 30 April 2012.[42]
b)Second, the Tribunal made a finding that it was not satisfied that the applicant’s claim to fear persecution was truthful or reliable, or that the applicant would suffer harm if he returned to China to lodge his application for a Partner visa in China. The Tribunal’s finding must be viewed in the context of the other adverse credibility findings the Tribunal made against the applicant, and in particular it’s finding that the applicant has been “untruthful and manipulative in a deliberate and well-considered attempt to remain in Australia at any cost”. Given the applicant’s claim that he feared harm if he returned to China was entirely based on the applicant’s evidence, the inference is available to be drawn, and I find, that the Tribunal relied, and substantially relied, on the adverse credibility finding it had made against the applicant.
c)Third, although the Tribunal referred to the RRT’s decision, the inference is available to be drawn, and I find, that the Tribunal had before it, not only the result of the RRT’s decision, but also the RRT’s reasons, and the Tribunal read and considered the RRT’s reasons. At the hearing the Tribunal informed the applicant that the “Tribunal that heard your refugee claim found you to be not a credible witness”,[43] which suggests the Tribunal had before it the RRT’s reasons for decision which contains an adverse credibility finding. Also suggestive is the Tribunal’s reference in its reasons to the RRT’s and the Department’s having tested the applicant’s claims for protection, and finding the applicant was not a credible witness.[44] Thus, what the Tribunal considered to be relevant was not so much the RRT’s and the Department’s having found the applicant was not credible, but the RRT’s and the Department’s having tested the applicant’s claims.
[42] CB298-299, [48], [49]
[43] T8.2. A transcript of the hearing before the Tribunal is annexed to the affidavit of P.B. Lopez
[44] CB299, [50]
In those circumstances, I am satisfied the Tribunal itself considered the applicant’s claim that he feared persecution if he were to be returned to China, rather than relying on the RRT’s decision. The Tribunal did that which Bromberg J in MZYPZ said it was permissible for the Tribunal to do when considering an applicant’s claim of fear of harm in circumstances where a differently constituted tribunal had rejected such claim; that is, the Tribunal had regard to the applicant’s claims having been tested by the RRT, and to the RRT refusing the applicant’s claims for protection, but in the context of the Tribunal itself considering the applicant’s claim that he feared harm if he were to return to China.
The applicant also submits that the Tribunal did not consider the “four fear-causing circumstances”. It is not clear whether this is an additional claim to the Tribunal’s not having considered the applicant’s claim of fear, but had instead relied on the RRT’s decision. I will consider it as an additional claim. It is true the Tribunal did not make findings in relation to each of the “four fear-causing circumstances”. That by itself, however, does not mean it did not consider them. First, as submitted by the Minister, the Tribunal was not required to articulate and separately address each of the “four fear-causing circumstances”.[45] That has been confirmed by Allsop CJ in Choi v Minister for Immigration and Border Protection:[46]
First, the decision is not to be read with an eye attuned for error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259. As noted by the primary judge, it is not necessary for the Tribunal to address every single claimed circumstance individually in order for it to have given genuine and proper consideration to the totality of the applicant’s circumstances. It is acceptable for consideration of such matters to be grouped, and assessed as such. In MZYPZ, at [12], Bromberg J stated that “[i]n the evaluative judgment to be made, the decision-maker may consider a single circumstance or a multitude of circumstances. Ultimately, the question is whether the circumstances as a whole compel the decision-maker to exercise the discretion conferred”.
[45] First Respondent’s Submissions in response to Applicant’s Submissions filed 24 March 2020, [8]
[46] Choi v Minister for Immigration and Border Protection [2018] FCA 291, at [16]
Second, given the basis on which the Tribunal did not accept this part of the applicant’s claim – the Tribunal was not satisfied the applicant’s claim to fear persecution is truthful or reliable – it was not necessary for the Tribunal to address each of the “four fear-causing circumstances”, because each of these circumstances relied, and only relied, on the Tribunal’s accepting the applicant was a credible witness. Counsel for the applicant submitted that even if the Tribunal’s general adverse credibility finding were unimpeachable, the Tribunal ought to have considered each of the “four fear-causing circumstances”. That, however, cannot be the case. An unimpeachable adverse credibility finding would necessarily have been fatal to the applicant’s relying on the “four fear-causing circumstances”, given that each alleged circumstance was based on the Tribunal accepting the credibility of the applicant. The true intent of counsel’s submission is that it was not open to the Tribunal to make the general adverse credibility finding that it did make in relation to the applicant, a matter that is the subject of a separate part of ground 1.
Ground [1], therefore, fails.
Ground [2] – relying on unwarranted assumptions
This part of ground [2] claims the Tribunal relied on “unwarranted assumptions”. The applicant claims there are two such assumptions.
Applicant confirmed father died by suicide
The applicant submits that in finding that the applicant “has blithely and unconscionably lied about his father’s death”, the Tribunal relied on the assumption that at the hearing before the Tribunal the applicant confirmed either that his father had died by suicide or that he had told Ms Ng that his father had died by suicide; but this assumption is incorrect. The basis of this submission is that the applicant’s evidence on which the Tribunal relied for so assuming was given in answer to a “compound question”,[47] as that notion was explained by Heydon J in Libke v The Queen:[48]
“A compound question simultaneously poses more than one inquiry and calls for more than one answer. Such a question presents two problems. First, the question may be ambiguous because of its multiple facets and complexity. Second, any answer may be confusing because of uncertainty as to which part of the compound question the witness intended to address.” But compound questions have additional vices. It is unfair to force a witness into the position of having to choose which questions in a compound question to answer and in which order. Cross-examiners are entitled, if they can, to frame questions so as to seek a particular answer – either “Yes” or “No”. Even though the answers desired by the cross-examiner to a compound question may be all affirmative or all negative, the witness may wish to answer to some affirmatively and some negatively. To place witnesses in the position of having to reformulate a compound question and answer its component parts bit by bit is unfair to them in the sense that it prevents them from doing justice to themselves.
[47] Applicant’s Outline of Submissions, [32]-[38]
[48] Libke v The Queen [2007] HCA 30, at [127] (references omitted)
The applicant relies on the following passage from the transcript of the hearing before the Tribunal:[49]
[49] T7.5-T8.2
Member:[Quoting from the Ng Report] [The applicant] also reports a history of being in a very difficult traumatic situation. Including the witnessing of his father in the act of successfully committing suicide in China by jumping off a tall building.
Interpreter: Translates
Member:You were 19 years old at the time.
Interpreter Correct
MemberThat is true is it?
Interpreter That is true.
MemberI would like you to refer to your refugee protection application.
Interpreter Translates
MemberIt says you are in detention and released in 2008.
Interpreter Translates
MemberAfter you were released from detention you learned that your father had a heart attack as your father found out you had been in detention. That was in 2008. You said he had committed suicide in about 1996. Which statement is true?
Interpreter He committed suicide but he did not die.
MemberIf you commit suicide you die, you are dead. Suicide is dead.
Interpreter He tried to commit suicide. But it was not ….
Counsel submits the evidence the applicant gave, as recorded in this passage from the transcript, does not support the conclusion that the applicant “clearly affirmed this was a true statement”, “this” being a reference to the “witnessing” by the applicant “of his father in the act of successfully committing suicide in China by jumping off a tall building”. I do not accept this submission. It is clear that by saying “that is true” the applicant understood he was referring to the statement that he witnessed his father’s suicide by jumping off a tall building. That is apparent from the evidence the applicant gave to the Tribunal after he said “that is true”. The applicant insisted on the truth of the statement that he had witnessed his “father in the act of successfully committing suicide in China by jumping off a tall building”, but gave what the Tribunal regarded as an implausible explanation that the applicant’s father had committed suicide but he did not die. The applicant, through his representative’s post hearing submission, gave a modified explanation, namely, that the applicant’s father had attempted suicide. But that explanation was premised on the assertion that the applicant witnessed his father jumping off a tall building.
I also do not accept the submission that the question “You were 19 years old at the time” was a “compound question”. The question related to one enquiry – whether the applicant had witnessed his “father in the act of successfully committing suicide in China by jumping off a tall building” – and the question could only have reasonably been understood – as it was understood – as asking the applicant the age he claimed he was at the time he witnessed this event.
This part of ground [2], therefore, also fails.
Incongruity of dates
This part of ground [2] relates to the Ng Report bearing two dates, one being the date it appears to have been signed by Ms Ng (8 August 2016), and the day the purported consultation with the applicant occurred (2 March 2017). Counsel for the applicant submits that this “incongruity” (being the word the Tribunal used) was due to “inadvertence by the psychologist”.
Whether that is so is not the relevant question. The question is whether it was open to the Tribunal to find, as it did, that the Ng Report either has been deliberately fabricated to support the applicant’s claims or, if not fabricated, it was based on untruthful statements made by the applicant, and for either of those reasons the Ng Report is unreliable. That question is to be answered in the affirmative. What the Tribunal described as “the incongruity between the date” the Ng Report “was signed and the date of the alleged consultation” was a matter that could reasonably have raised in the mind of the Tribunal concerns, as it did, about the authenticity of the documents which called for explanation. As the Tribunal noted in its reasons, the applicant provided no explanation in response to the Tribunal’s concerns about the incongruity. The applicant did not suggest to the Tribunal what counsel for the applicant now submits, namely, that the incongruity is to be explained by inadvertence; and there is no evidence the applicant attempted to make any enquiry to Ms Ng about the incongruity.
This part of ground [2] also fails.
Ground [3] – Ignoring relevant material
This ground is directed to the Tribunal’s conclusion that it “puts no weight on Dr Lam’s claims that the applicant is unfit to travel and unlikely to obtain the medical attention he requires if he travels to China”.[50] The applicant submits that the Tribunal did not accept Dr Lam’s claims because it found that Dr Lam had been misled by the applicant “in regard to the location of the accident”, but this “is an objectively minor matter of fact”.[51]
[50] CB298, [41]
[51] Applicant’s Outline of Submissions, [52]
This submission mischaracterises the reasons for which the Tribunal did not accept Dr Lam’s claims. The Tribunal did not accept Dr Lam’s claims because it found that the claims relied on “the applicant’s untruthful claims”. The “untruthful claims” included the matters Dr Lam set out in her reports that it was reasonably open to the Tribunal to find were based on what the applicant told Dr Lam. These were the applicant’s claims about his mental health, the applicant’s claims that he would be placed in significant and severe risk should he return to China, and the circumstances in which the motor vehicle accident occurred. The matters, at least when considered as a whole, and based as they are on adverse credibility findings in relation to the applicant, cannot reasonably be characterised as objectively minor matters of fact.
It is also necessary to be clear about the scope of the Tribunal’s finding. The Tribunal gave no weight to particular conclusions Dr Lam purportedly expressed, namely, the applicant is unfit to travel and unlikely to obtain the medical attention he requires if he travels to China. That finding is not directed to other matters recorded in Dr Lam’s clinical notes and documents prepared by other medical practitioners. That is apparent from the Tribunal’s accepting that the applicant has an injury to his shoulder that may require surgery in the future. Although counsel for the applicant seemed to submit, or at least imply, that Dr Lam’s opinion was or may have been based on the reports prepared by other medical practitioners, counsel did not submit that those reports contained opinions to the effect that the applicant is unfit to travel to China, or the applicant could not wait the several months it would take to process the application offshore before he had the surgery.
Ground [3], therefore, fails.
Ground [4] – erroneous view of the law
This ground is directed to the Tribunal having stated to the applicant during the hearing that if the Tribunal member comes to the view that the applicant is being untruthful about something, the Tribunal may come to the view the applicant is being untruthful about other matters. The applicant submits that the Tribunal “proceeded on the basis its view as to the general credibility of the [applicant] was determinative and that the other material could be discounted in light of it”.[52] The applicant submits that whether a particular claim is credible cannot be discounted on the basis of a view that an applicant is not credible in regard to other claims; that an applicant is not generally credible is not determinative of every claim; and that each claim has to be assessed for itself.
[52] Applicant’s Outline of Submissions, [59]. The quote is from the judgment of Flick J in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1098, at [30]
This ground mischaracterises the Tribunal’s reasons to the extent it claims the Tribunal discounted the applicant’s claims without considering each of the claims. Although it is true the Tribunal considered the applicant’s credibility, and made credibility findings adverse to the applicant, the Tribunal nevertheless identified, and considered each of the matters on which the applicant relied for claiming there were compelling reasons for waiving the Schedule 3 criteria.
It is also true that, when considering particular claims, the Tribunal relied on the adverse credibility findings it made against the applicant to the extent the claims relied on the evidence of the applicant. But it was reasonably open to the Tribunal to proceed in this way. Where a claim depends on the acceptance of testimony, it is a necessary task for the fact finder to form a view about the credibility of the witness; and it is within the scope of reasonable fact finding for the fact finder not to accept the uncorroborated evidence of a witness if, acting reasonably, the fact finder forms the view that the witness is not a credible witness. In extreme cases a finding that a person is not a witness of truth can afford a rational basis for not even accepting apparently corroborative evidence. This was recognised in Re Minister for Immigration and Multicultural Affairs:[53]
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.
[53] Re Minister for Immigration and Multicultural Affairs [2003] HCA 30, at [49]
Ground [4], therefore, also fails.
Disposition
The applicant has not succeeded on any of the grounds on which he relies. I propose to order that the application be dismissed.
Counsel for the parties agreed that costs should follow the event. Counsel for the Minister informed me that if the Minister were to succeed, I should order that the applicant pay the Minister’s costs as agreed or assessed. I propose to so order.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 17 July 2020
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