CBO15 v Minister for Immigration

[2017] FCCA 76

FEDERAL CIRCUIT COURT OF AUSTRALIA

CBO15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 76

Catchwords:
MIGRATION – Judicial review – failure to consider – unreasonableness – credibility.

Legislation:

Migration Act 1958 (Cth), s.486E

Cases cited:

Ex Parte Durairajasingham (2000) 168 ALR 407

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Bugdaycay v Secretary of State for the Home Department & Anor [1987] 1 AC 514
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1986] 185 CLR 259
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No.2) [2004] FCAFC 263
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24

Applicant: CBO15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2284 of 2015

Judgment of: Judge Harland

Hearing date: 13 December 2016

Date of Last Submission: 13 December 2016

Delivered at: Melbourne

Delivered on: 19 January 2017

REPRESENTATION

Counsel for the Applicant: Mr Krohn

Solicitors for the Applicant: Ambi Associates

Counsel for the Respondents: Mr Yuile

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application for judicial review filed 1 December 2016 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2284 of 2015

CBO15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant relies on the grounds 6 and ground 7(a) and (c) in his amended application for judicial review filed on 1 December 2016.

2. The applicant is a Sri Lankan citizen of Tamil ethnicity and is a Sri Lankan citizen. He is Hindu.

3. On 9 December 2016 the applicant’s solicitor emailed my associate and the solicitor for respondents to notify the court “for the sake of clarity” that the applicant abandoned grounds 1 to 5 and particulars (b) and (d) of the amended application filed 1 December 2016. This was after the first respondent filed his written submissions. Grounds 1 to 5 were set out in the applicant’s originating application. The applicant’s written submissions were also filed on 1 December 2016. In those submissions prepared by counsel he simply said that no submissions were made in support of grounds 1 to 5. This unhelpful approach has been drawn to the attention of the applicant’s counsel previously. As it is apparent that at the time of preparing the amended application and submissions the applicant no longer sought to rely on grounds 1 to 5, they should have been crossed out. The first respondent’s written submissions indicate that it was unclear as to whether or not those grounds were being pressed.

4. Ground 6 complains that the Tribunal failed to consider integers of the applicant’s claims or material questions of fact raised by the material when assessing various aspects of the applicant’s credibility and the applicant’s treatment as an illegal returnee.

5. Ground 7 complains that the decision was legally unreasonable based on the assessment of aspects of the applicant’s credibility.

Ground 6(a) and (b)

1. Under ground 6(a) the applicant complains that when the Tribunal assessed his credibility it did not consider whether or not the applicant’s difficulty in recalling and speaking about events were because the events were so traumatic for him. When assessing the credibility and inconsistencies in his claims, the Tribunal did not consider the evidence he gave to the delegate that when he came to Australia he forgot dates and does not want to think about the things he experienced. The delegate refers to this at Court Book 112 that was in the context of an incident with the applicant claimed that he and three of his friends were taken by the Sri Lankan Army (“SLA”) and were questioned about suspected links with the Liberation Tigers of Tamil Eelam (“LTTE”). The applicant says they were asked hundreds of questions and they beat his leg injuring him. The delegate recorded:

   [T]he applicant couldn’t recall the exact date of when this incident occurred but stated it was in October or November and it was either 2010 or 2011. The applicant stated that he does not want to think about these incidents anymore and has forgotten many details since his arrival in Australia.

2. The applicant argues that this is significant because many of the Tribunal’s concerns about the applicant’s credibility and inconsistencies in his evidence was with respect to dates. For example at [30] of the Tribunal decision the Tribunal said:

   [t]he Tribunal has serious concerns about the credibility of the applicant’s claims… based on the numerous inconsistencies between the applicant’s evidence in the hearing, his evidence to the Department is outlined in the delegate’s decision, a copy of which is provided the Tribunal and what he included in his statutory declaration outlining his claims, attached to his visa application.

   The applicant also refers to [31] to [34]. Whilst it is clear from these passages that part of the Tribunal’s concerns about the applicant’s credibility related to inconsistencies about dates, as pointed out by the respondent the credibility concerns went further than that.

3. At [28] and [29] the Tribunal accepted that the applicant and his family did not have a permanent home with living conditions that were not ideal. It also accepted that “the applicant may have witnessed horrific events during those years of the conflict when he was displaced.”

4. Significantly at [32] the Tribunal’s concerns about the incident where the applicant claimed he and three friends were detained and questioned by the SLA in November 2011. The Tribunal records at [32] that as it put to the applicant, there was no mention of any incident in November 2011. There is reference to an incident in late 2009 but the details of this incident in his statutory declaration were different in material respects to the incident he gave evidence about at the Tribunal hearing. The Tribunal sets out these differences.

5. At [24] and [25] the Tribunal refers to two authorities which describe the correct approach to assessing credibility when making administrative decisions. The first respondent refers to another: Ex Parte Durairajasingham (2000) 168 ALR 407.

6. At [33] the Tribunal states that it does not accept the applicant’s explanation “that he was confused and did not know what to tell and what to omit, adequately explains the discrepancy in his evidence regarding when this incident took place.”

7. At [34] the Tribunal deals with another incident. Again its outlines its concerns about credibility which are not limited to a difference in dates. It also expresses concerns about the circumstances of the events.

8. The Tribunal goes on to say at [35] that it does not accept that the applicant was taken and questioned about 25 times between 2010 and 2012 as “the applicant gave clear evidence that he did not have problems other than the three alleged incidents”.

9. Ground 6(b) also concerns the Tribunal’s assessment of the applicant’s credibility with respect to when his knee was injured. In his written submissions the applicant’s counsel refers to page 10 of the Court Book where in his entry interview the applicant refers to going to Vavuniya in 2007, working at the rice mill with his uncle until August 2008 when he returned to Jaffna at his father’s request. The applicant complains that at [26] and [27] of his submissions that the Tribunal did not refer to this and if it had “it would have seen a strong pattern in the applicant’s claims ...” and would have seen that the only inconsistency was in the dates. The difficulty for the applicant is that at [33] the Tribunal refers to the applicant’s statutory declaration, his detailed entry interview and his evidence before the delegate as recorded in the delegate’s decision.

10. The first respondent submits that even the language the applicant used in his submissions, as quoted above, invites a merits review. The respondent further submits that, particularly with respect to ground 6(b), the applicant is seeking that the Court engages in a weighing exercise. The issues of weight and findings of fact is a matter for the Tribunal and not the Court. See NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10.

11. The applicant relies on an English case of Bugdaycay v Secretary of State for the Home Department & Anor [1987] 1 AC 514. Parts of the text and the top and the bottom of the pages are cut off in the photocopy provided to the court. The applicant acknowledges that the case deals with a different legislative scheme but draws attention to a passage on page 531 of the decision, where after acknowledging the limitations of the power of review, states:

    The resolution of any issue of fact and exercise of any discretion in relation to an application for asylum as a refugee lie exclusively within the jurisdiction of the Secretary of State, subject only to court’s power of review.  The limitations on the scope of that power are well known and need not be restated here.  Within those limitations the court must, I think, be entitled to subject an administrative decision to the more rigorous examination to ensure that it’s in no way flawed, according to the gravity of the issue which the decision determines.  The most fundamental of all human rights is the individual’s right to life, and when an administrative decision under challenge is said to be one which may put the applicant’s life at risk, the basis of the decision must surely call for the most anxious scrutiny.

12. The applicant acknowledges that it is not binding but says it is not inconsistent with Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1986] 185 CLR 259 (“Minister for Immigration and Ethnic Affairs v Wu Shan Liang”).  I do not find this decision helpful as the context of its legislative scheme is unknown. Whilst professing not to be doing this, I find the applicant is seeking to do what the Minister for Immigration and Ethnic Affairs v Wu Shan Liang says he cannot. At page 272 the plurality said:

    These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed (25). In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court.

13. The applicant urges the Court to infer that the Tribunal did not deal with the applicant’s claim that the experience was so traumatic he did not want to think about it. He points to the delegate’s decision. He complains that the Tribunal did not make a finding about it. It is well established that the Tribunal is not required to refer to every piece of evidence. I am not satisfied that the Tribunal did not have regard to the entry interview as the applicant asserts. The first respondent referred to Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630. It is worth setting out [46] and [47] of that decision:

    It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons.  It may be that some evidence is irrelevant to the criteria and some contentions misconceived.   Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court.  It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications.  Each of the applications it decides is, of course, of great importance.  Some of its decisions may literally be life and death decisions for the applicant.  Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’.  Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

    The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

14. It is important to look at the Tribunal’s reasons in context in this respect rather than singling out sentences about the dates. It is clear that the difference in dates was of concern to the Tribunal but that was by no means the only basis for its findings about credibility. When this is done the applicant’s argument in support of ground 6(a) and (b) cannot be sustained.

15. The first respondent also submits that the applicant’s claim that his alleged trauma may have affected his account does not amount to a claim that squarely arises on the material. See NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263.

16. The first respondent makes an important point about the delegate’s decision. The applicant draws attention to Court Book 112 but does not refer to Court Book 114 where the delegate says that during the interview “the applicant would often change his statement when adverse information was put to him, to validate his claim.”

Ground 6(d)

1. This sub-ground is another credibility complaint. Essentially the applicant disagrees with the Tribunal’s finding. Again the applicant refers to the delegate’s decision and the audio recording of the interview with the delegate, which is not before the Court. The applicant says that his evidence before the delegate was “substantially consistent with his evidence at the hearing”. In oral submissions counsel for the applicant said that at [31] and [32] the Tribunal refers to inconsistencies in the statutory declaration and his evidence before the Tribunal but does not refer to the applicant’s evidence before the Tribunal which was “substantially consistent”.  The applicant says that if it had it may have affected its assessment of the applicant’s credit.  This submission suffers from the same deficiency as the earlier credibility submissions.

2. His complaints really invite a merits review. The Tribunal had the advantage of hearing the applicant’s evidence. It is for the Tribunal to assess the applicant’s credibility. I note that whilst not raised in oral submissions, in his written submissions the applicant refers to particular points of the recording of the Tribunal hearing and at one point where the applicant became distressed. The recording is not before the Court. I fail to see how the references to this assist the applicant’s case. Rather it impresses as indirectly seeking that the Court engage in a merits review. 

Ground 6(c)

1. Ground 6(c) complains about the way the Tribunal used country information with respect to the treatment of illegal returnees. The applicant complains that the Tribunal did not consider how long the investigations of the applicant may take place and how long the applicant remained in prison and whether or not the applicant had a well-founded fear of persecution if he remained in prison for some time.

2. The Tribunal addresses the country information at [57] to [59]. It notes that it put that information to the applicant and noted that returnees are treated in accordance with standard procedures regardless of their ethnicity.  The Tribunal stated that the country information suggests that everyone is granted bail based personal recognisance. A family member must stand guarantor but no payment is required. The applicant has family members and there was nothing to suggest that they would not stand guarantor.  The Tribunal also noted that no person who was just a passenger on a people smuggler’s boat has been given a jail term, rather they have been fined. The Tribunal found that the applicant had family members who could assist him and did not accept that he would not be able to pay a fine. The Tribunal concluded that the information suggests that imprisonment does not happen in practice and that the chance of the applicant facing a term of imprisonment now or in the reasonably foreseeable future was remote. 

3. The Tribunal did what it was tasked to do. It assessed the country information, put that information to the applicant and applied it to the applicant’s circumstances. There is simply no basis for the applicant’s complaint that the Tribunal should have asked itself and answered further questions.

4. The first respondent points out that it is clear from [50] and [57] to [58] that the Tribunal found that the applicant did not have a profile which would be of interest to the authorities and that any time the applicant spent in jail would be for a short period whilst waiting for bail.

5. There is no substance to this ground.

Ground 7(a) and (c)

1. Ground 7 complains that the Tribunal’s decision was illogical and unreasonable in two respects.

2. Ground 7(a) complains that the assessment of the applicant’s credibility was illogical and unreasonable by not considering the applicant’s evidence before the delegate that he forgot dates and did not want to think about the things he experienced.  The applicant argues that if the Court is not persuaded that it failed to consider the evidence he gave to the delegate that when he came to Australia that he forgot dates and does not want to think about the things he experienced, then it is still a jurisdictional error because the decision was unreasonable.

3. It is necessary to refer to the authorities on unreasonableness. In Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) Crennan and Bell JJ said, at [130-131] and [135]:

   In the context of the Tribunal's decision here, “illogicality” or “irrationally” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.  The same applies in the case of an opinion that a mandated state of satisfaction has not been reached.  Not every lapse in logic will give rise to jurisdictional error.  A court should be slow, although not unwilling, to interfere in an appropriate case. 

   What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions.  The complaint of illogicality or irrationality was said to lie in the process of reasoning.  But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based.  If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

   … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn …

1. In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 the High Court said at [66]:

   This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

2. The decision must be “so unreasonable that no reasonable person could have come to it”: see Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24 at p.41.

3. Ground 7(c) again disagrees with the finding the Tribunal made about inconsistencies in the applicant’s evidence about when he was detained in an army camp. The applicant’s counsel in his oral submissions:

   The point put simply, your Honour, is that there may have been differences but they were not inconsistent in the sense that they were not things which were contradictory or couldn’t stand with each other – that it may be that the applicant gave some further details in the statutory declaration or some further details on the other occasion, but they were not contradictory and, in that sense, not inconsistent.  And in that sense, it’s submitted that the finding at that point was affected by unreasonableness.[1]

   [1] Page 10 of the transcript.

4. It is difficult to characterise this as submission as anything other than seeking that the Court engage in a merits review. It is of some concern that this submission is made by experienced counsel. In his written submissions the first respondent characterises the applicant’s arguments under ground 7 as being disappointed or emphatically disagreeing with the Tribunal’s finding. That is a good characterisation.

5. In his written submissions the first respondent argues that the applicant conflates unreasonableness and illogicality. He also points out that the authorities have set a high bar with respect to both arguments. With respect to ground 7(a) the Tribunal did accept and take into account that the applicant suffered some trauma but that did not explain all the inconsistencies in the applicant’s evidence.

6. With respect to ground 7(c) the respondent submits that the applicant does nothing more than disagree with the findings the Tribunal reached. I agree.

Conclusion

1. The first respondent made an overarching submission that the applicant’s submissions really asks the Court to engage in a rehearing on its merits.

2. The first respondent submits that the applicant’s submissions ignore the overarching finding the Tribunal made that the applicant was not a witness of truth and that for the most part his claims could not be believed. I accept the first respondent’s submissions.  This is clear from reading the Tribunal’s decision in context, not singling out small parts of the decision.

3. I accept the first respondent’s submissions and draw attention to [23] of his written submissions. In that paragraph he states that is clear that the applicant looked at the decision “with an eye keenly attuned for error” which is an approach the courts have rejected repeatedly. This accords with my assessment of the overall approach of the applicant. I have concerns about the merits of the argument raised by the applicant’s legal representatives bearing in mind the obligations of s.486E of the Migration Act.

4. There is no merit in any of the applicant’s grounds.

5. I dismiss the application.

6. The first respondent seeks costs in the sum of $5,800 which is well below the amount allowed in the Federal Circuit Court scale of costs. I will make that order.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 19 January 2017