CFV16 v Minister for Immigration
[2020] FCCA 294
•17 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CFV16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 294 |
| Catchwords: MIGRATION – Application to review decision of Administrative Appeals Tribunal – whether the Tribunal erred in making an adverse credibility finding or denied the Applicant procedural fairness – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5AAA, 424AA |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 SZVAPv Minister for Immigration and Border Protection (2015) 233 FCR 451; [2015] FCA 1089 |
| Applicant: | CFV16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2187 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 8 April 2019 |
| Date of Last Submission: | 23 April 2019 |
| Delivered at: | Sydney |
| Delivered on: | 17 February 2020 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr Johnson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2187 of 2016
| CFV16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal), dated 10 July 2016, affirming a decision of a delegate of the First Respondent not to grant the Applicant a Protection visa.
The Applicant, a citizen of Zimbabwe, arrived in Australia in February 2005 as the holder of a Student visa. He lodged an application for a Partner visa on 29 January 2009 on the basis of his relationship with an Australian citizen whom he married in March 2009. His sponsor withdrew her sponsorship later in 2009. His application was refused by a delegate of the First Respondent and that decision was affirmed on review by the then Migration Review Tribunal on 26 February 2013. In March 2013 the Applicant sought ministerial intervention under s.351 of the Migration Act 1958 (Cth) (the Act).
On 10 July 2013, the Applicant applied for a Protection visa. In support of his application he claimed to fear harm if returned to Zimbabwe due to the stigma associated with his marriage to a white woman. He claimed that his father, uncles and cousins from rural areas in Zimbabwe had disowned him because he married a white woman. He claimed that his family had strong traditional beliefs and would not forgive him for marrying a white woman, even though he and his wife had been separated for some years and she had withdrawn her sponsorship of his Partner visa application. He claimed to fear being assaulted or killed. He claimed that the authorities would not protect him because they would consider him a traitor and impute him with an adverse political opinion because he had married a white woman. He also claimed to fear significant harm because he would not receive adequate treatment in Zimbabwe for his stress and anxiety.
On 29 May 2014, a delegate of the First Respondent refused to grant the Applicant a Protection visa.
On 17 June 2014, the Applicant sought review by the Tribunal.
The Applicant was invited to and attended a Tribunal hearing on 23 June 2015. The Tribunal was subsequently reconstituted. The Applicant attended another Tribunal hearing on 5 July 2016. A transcript of this hearing is in evidence as an attachment to an affidavit of the Applicant of 20 October 2017, together with a seven page extract from the transcript of the Tribunal hearing of 23 June 2015.
In a letter in support of his application for review the Applicant claimed that evidence and information in regard to his political opinion “in comparison to my family members who are part of the Zimbabwe authorities” had not been presented to the delegate. He provided the Tribunal with copies of Zimbabwean online news reports in relation to people with the same family name as his name who he claimed were members of his family. They included a member of parliament and a prominent businessman. In a statutory declaration of 22 June 2015 he claimed to be under threat from named family members (his father, aunt and three uncles) who were said to be “from a sphere of strong influence politically and authority wise”.
The Applicant subsequently provided a supporting statement in which he claimed to fear harm from his family and the authorities on the basis that some of his family members were part of the then current “corrupt” Zimbabwe African National Union-Patriotic Front (ZANU-PF) political party, being both supporters and members who represented the party. He also claimed that he had expressed disagreement with their views and had stated that he supported the Movement for Democratic Change (the MDC) party.
In essence, the Applicant claimed to fear harm for opposing his family’s political views, as well as for going against traditional norms and marrying a white woman and publicly going against his family’s tradition, religion and beliefs. He claimed to fear he would be “deprived of [his] life” because he went against culture, politics and traditions. He claimed his family had direct influence with the authorities, as well as with ZANU-PF supporters. He also claimed that he would be stigmatised because of mental illness he had suffered because of anxiety, stress and depression.
The Applicant provided some other supporting documentation, including a letter dated 7 February 2009 which was said to be from his parents. It stated that they were unable to pay his fees after that date and did not want to hear from him anymore because he had not communicated with them since he left Zimbabwe. He provided an affidavit from a person in Zimbabwe who claimed to know his family and that it included named persons in prominent positions in the community and a statutory declaration from a person described as his first cousin, who “confirmed” the Applicant’s relationship with four named relatives and stated that he was “in a lot of trouble and has been for many years”.
The Applicant also provided what was described as an affidavit from his mother dated 25 June 2015 which confirmed his relationship with his father, aunt and uncles and claimed that, “[w]hat he has done while in Australia has caused him being marked by his family and his safety is not guaranteed”. Annotated excerpts from a social media transcript of conversations in 2007 and 2009 were said to indicate that there had been threats made to the Applicant.
It appears that the Applicant understood that not all the documents that he had tried to provide to the Tribunal had been received by it. However he gave it fresh copies of documents and news articles that he understood were missing and also additional documents. The Applicant no longer maintains his initial contention to the court that documents he submitted to the Tribunal were “lost”.
The Tribunal Decision
In its reasons for decision, the Tribunal referred to the Applicant’s immigration history and to the fact that the Tribunal as originally constituted had raised concerns with the Applicant about the credibility of his claims, including his new claims to have a political opinion and to have relatives in powerful positions with ZANU-PF who wished to cause him harm. It noted that he had been given the opportunity to produce evidence after the first Tribunal hearing.
The Tribunal recorded that at the hearing on 5 July 2016 it had raised a concern that on numerous occasions the Applicant had appeared to avoid its questions and had given answers which appeared pre-prepared. It gave an example of the Applicant’s non-responsiveness in relation to when he last had contact with family members. It stated that it had put to the Applicant its concerns about his credibility, as well as information pursuant to s.424AA of the Act.
The Tribunal stated that while it had informed the Applicant that it would take into account any information (in particular about his claimed family relationships) received up until the time it made its decision, nothing further was received before the Tribunal decision.
The Tribunal summarised the Applicant’s evidence in the departmental interview of November 2013, in which he claimed to fear harm from his family who had disowned him because he had married a white woman. His relatives were said to have strong traditional beliefs and to be from a conservative rural area in Zimbabwe. He claimed he had “dissociated” himself from his family after they were critical of his marriage and had had no contact with his family, at least since his separation from his wife in 2010.
The Tribunal had regard to the fact that after the delegate had refused his application, the Applicant claimed that his relatives were significant, influential and well-connected to the ruling party in Zimbabwe (the ZANU-PF); that they were violent and deadly; that he had provoked them, including with his anti-ZANU-PF, pro-MDC views; and that they had influence which spanned the country so that they could find him wherever he went in Zimbabwe. It referred to the information the Applicant had provided in support of his claim that his aunt was a well-connected ZANU-PF councillor; that three of his uncles had prominent political or sporting roles and connections; and that his father was in an area “police neighbourhood watch”. The Tribunal recorded that the Applicant claimed that he had opposed his family’s political opinion (as well as their cultural beliefs) and had let them know his views about discrimination concerning white farmers in Zimbabwe, that he opposed the ZANU-PF land grabs and supported the MDC.
It also recorded the Applicant’s oral evidence that he had experienced problems with his family for some four years before his protection visa application and that he knew “well beforehand” of their involvement in ZANU-PF.
The Tribunal did not find the Applicant to be a credible, truthful or reliable witness in relation to many matters said to be central to and related to his claims. At paragraphs 90 to 132 of its reasons the Tribunal gave detailed reasons for its adverse credibility finding. This aspect of the decision is the focus of the grounds of judicial review.
The Tribunal stated that it had “significant concerns” about the Applicant’s credibility and a number of concerns about his evidence as to past events and what he feared on return, which it set out in detail.
First, the Tribunal had regard to several concerns in relation to the “changing information” the Applicant had provided about the positions and influence of his family and relatives in Zimbabwe and the nature of the harm he would face.
It explained first that it was concerned about the Applicant’s failure to mention his political opinion and his “party influential, political and significantly connected family members” in his protection visa application or before the delegate and the fact that these matters were raised only after his application was refused. It noted that the Applicant’s claims in the protection visa application of July 2013 were based on the stigma of being looked down upon because of his interracial marriage and the claim that he had been disowned and outcast and would have nowhere to go and that because of “political tension” he would be uncertain about what would happen to him.
The Tribunal acknowledged that the Applicant had referred to “authority/government/political thugs against my personal political life choices” in his protection visa application form, but found that (as the Applicant had agreed) the “politics” he had referred to was about black and white marriage and nothing to do with ZANU-PF or MDC.
The Tribunal found that the protection visa claims were very different to the Applicant’s claims to the Tribunal that he had family members who were part of the current corrupt ZANU-PF political party; that his family had political influence, social status and direct influence with the authorities and ZANU-PF youths; that he had expressed his views supporting the opposition MDC party in 2008; that he had embarrassed the family; and that because he did not show support or loyalty for ZANU-PF and the regime, his family members wanted to mistreat and harm him.
The Tribunal was “significantly concerned” about the Applicant’s new claim to be against the ruling party and in favour of the MDC opposition party. It noted that he claimed that between 2008 and 2010 he had posted on social media adverse, highly political comments against his own high powered relatives (who he said had no problem killing people) and had suggested that they were corrupt and using public money.
The Tribunal considered the Applicant’s explanation for why he had made no mention of these matters in his protection visa application form: that he filled in the form in a “rushed” manner, that he did not realise that he had to include this information, that he did not get legal advice and that he was “stressed”. The Tribunal did not find these responses persuasive, particularly given the Applicant’s claim that he was well aware of these matters years before lodging his protection visa application and claimed that these matters would cause him harm upon return to Zimbabwe. It also had regard to the Applicant’s ability to articulate, his intelligence, and the significant detail he had provided in his protection visa application form.
The Tribunal was of the view that if the Applicant had considered that these matters would lead to him suffering harm in Zimbabwe, he would have mentioned them, and that such omissions “undermine” his claims to have had and expressed anti-government, anti-family political opinion and to have influential and powerful and politically connected family members.
The Tribunal also had regard to the fact that the Applicant had told it (in submissions and in oral evidence) that he “forgot” to mention these matters at the departmental interview, even though he was given an opportunity at the end of the interview to tell the delegate anything further about his claims. It did not find his explanations (that he was just trying to present his case, that he only said things broadly and did not have legal advice, and that it was only when he got the decision from the delegate that he realised he had not presented, and should have presented, all of the details) to be persuasive. It found that the Applicant’s failure to make any mention in the departmental interview of his political opinion or his highly corrupt and politically influential family “undermines that these claims are true”.
Further, the Tribunal was concerned that these new claims arose after the delegate had suggested in the decision that the Zimbabwean authorities would not be aware of the Applicant’s relationship with a white woman and would not have any interest in this relationship and that he would not face harm from the authorities. The Applicant had argued to the Tribunal that the authorities would have an interest in him and his relationship because of his highly connected political family.
The Tribunal was of the view that the Applicant would have mentioned the claimed influence and connections of his family members and his highly provocative political comments and anti-ruling party political opinion in his protection visa application form and interview with the delegate if these matters were genuine. It also was of the view that his failure to do so undermined these claims and indicated that he was “prepared to change his claims and tell untruths in order to support his claims for a protection visa”.
The Tribunal also noted that the delegate had suggested at the interview that it would be reasonable for the Applicant to relocate to Bulawayo to avoid his immediate family in Harare and his extended family in rural Zimbabwe and that he had not been able to explain satisfactorily how he would be found by his family wherever he was in Zimbabwe. It observed that the Applicant was now able to explain to the Tribunal that because of his family’s significant political influence and connections spanning the whole country he would be found anywhere in Zimbabwe and could not relocate anywhere.
The Tribunal stated that, as it put to the Applicant, it would think that he would have been able to explain this to the delegate at interview if it was the case. It reiterated its view that the Applicant’s failure to mention his significant family connections and influence to the delegate undermined these claims. It found that the Applicant’s failure to mention to the delegate the significance of his family and their connections indicated that these claims were not true and were made up by the Applicant after the delegate dismissed his application.
Second, the Tribunal had regard to its concerns about the Applicant’s changing evidence concerning his relationship with his family members in Zimbabwe and the nature of their positions in Zimbabwe.
It observed that when it had asked the Applicant about contact with his family members, his answers were evasive. This caused the Tribunal “particular concern”. It also noted that, despite the Applicant’s claim to have no relationship with his family, he had produced to the first Tribunal a 2015 statutory declaration from his mother in support of his claims which confirmed that he was related to the people to whom he now claimed to be related. The Tribunal observed that, as it had put to the Applicant, this indicated that he had a relationship his mother. This was inconsistent with his earlier evidence that he had had no contact with his family since his separation from his former wife, that his family would never forgive him for his marriage, and that he would be isolated and have no one in Zimbabwe who would support him.
The Tribunal found it highly unlikely that the Applicant was “suddenly” (after his application was dismissed) able to obtain supporting statements from people in Zimbabwe (his mother, cousin and a family friend) even though he claimed he had been and would be shunned by people in Zimbabwe. It considered that this undermined the credibility of his claims and the statements obtained in support.
Third, the Tribunal had regard to concerns about the Applicant’s failure to refer to his influential and powerful relatives, his political opinion or his fear of harm for those reasons in the detailed 12 page ministerial intervention application he made in March 2013 or at his February 2013 hearing before the MRT in relation to his Partner visa. It had put these concerns to the Applicant pursuant to s.424AA of the Act.
The Tribunal noted that in seeking ministerial intervention the most significant concerns raised by the Applicant were that he did not talk to or have a close relationship with anyone in Zimbabwe and so had nowhere to go, that he had not spoken to his family in years, that there would be a cultural stigma in Zimbabwe associated with depression and that taking anti-depressants, smoking and drinking would be seen as a sign of weakness.
The Tribunal was not persuaded by the Applicant’s explanation for his failure to mention in his application for ministerial intervention his political family and political opinion claims or that he would face harm because he had relationships with white women. He claimed that at that time he was focused on his past marriage and breakup, did not think it was important or relevant to say anything about his fear of harm in Zimbabwe and did not know about protection visas at that time. The Tribunal was of the view that if the Applicant was writing a detailed letter to the Minister asking not to be removed from Australia, he would have mentioned that he feared harm in Zimbabwe. It found that his failure to do so undermined his claims made some four months later in support of the protection visa application.
Fourth, the Tribunal noted that at the MRT hearing the Applicant had told the MRT about his family and the circumstances awaiting him in Zimbabwe (that his parents had disowned him and were not aware of the separation and that he had not spoken to them since 2009), but had made no reference to the main claims he made to the Tribunal in support of his protection visa application. The Tribunal considered that the Applicant would have mentioned such claims (which were significantly different and more extreme and which he claimed had existed since 2008) if they were true. It found that his failure to do so indicated that he had “exaggerated and fabricated” claims for the purpose of his protection visa application.
Fifth, the Tribunal was concerned that the Applicant’s evidence about his parents’ knowledge of his relationship with his former girlfriend was vague and evasive and that “when he finally did respond to its questions” his evidence suggested that, despite his parents knowing that he was in a relationship with a white woman, they continued to pay his school fees. The Tribunal was of the view that this seemed inconsistent with the picture the Applicant had painted of his family and their views about him dating a white woman. In so far as the Applicant said that he could not recall the first conversation he had with his father about his relationship, the Tribunal considered that if the Applicant’s father was a strict Muslim who wanted the Applicant to marry a person he chose (as the Applicant claimed) this would have been a significant conversation for the Applicant, who would have been apprehensive. The Tribunal was of the view that the Applicant’s evasive evidence in this respect undermined his claims.
The Tribunal also had regard to inconsistent evidence from the Applicant as to how long his father continued to pay his school fees, including after he had made it known that he had started dating a white woman. It was of the view that the Applicant’s changing evidence and the evidence that his father continued to pay his school fees while he was serious in dating a white woman undermined his credibility and his claim that his father and family were conservative, backward, strict and violent and completely opposed to him dating a white person.
Sixth, the Tribunal found that the Applicant’s claims about receiving telephone abuse from 2007 to 2013 because he had a relationship with a white woman were “unlikely” in light of his failure to change his telephone number. It noted the Applicant’s changing evidence in relation to the frequency of such abusive messages. It was of the view that if the Applicant was distressed and seeking counselling, as he claimed, he would have at least thought about changing his telephone number so that he did not have to receive continuous abuse. It considered it unlikely that the Applicant was receiving regular and long-term abuse because he had a relationship with a white woman, and yet, as he claimed, he did not think about or want to change his telephone number.
Seventh, the Tribunal found that the Applicant’s evidence about his Facebook and social media usage was inconsistent, changing and evasive. The Tribunal noted that, in contrast to the Applicant’s claims about his social media accounts and his evidence that he used his own name for those accounts, when he showed the Tribunal his telephone with a Facebook account open, it was in a different name. The Applicant did not explain why he had made no reference to this account. The Tribunal also had regard to the Applicant’s inconsistent evidence about the extent and time of his activity on Facebook and the fact that his Facebook friends included 15 people with the same family name.
The Tribunal referred to issues it had raised with the Applicant in this respect. It considered that the Applicant’s admission that he had Zimbabwean Facebook friends did not suggest that he was being isolated by the Zimbabwean community. It noted that when this was put to him he had changed his evidence to claim that it was more his family who had rejected him. The Tribunal considered that this undermined the Applicant’s claim that his actions were culturally taboo and had and would lead to isolation and stigmatism and that he had no one to turn to upon return to Zimbabwe.
Finally, the Tribunal stated that it had further concerns about the Applicant’s claim that he faced harm as a result of his political opinion, which he said he had voiced by making provocative comments online from 2008-2009 and by telephone from 2007-2010. It had regard to the fact that when asked about the political opinion he had voiced, he had given evasive evidence and he had limited knowledge of the Zimbabwean land grab policy which he said he opposed. In particular, he claimed that this policy began in 2008 (not 1997 as indicated in country information). The Tribunal expressed the view that if this was the Applicant’s political opinion that he had been voicing, he would know more about when the policy commenced.
On the basis of all these matters, the Tribunal was not satisfied that the Applicant was a witness of truth.
It made this finding in circumstances where it went on to consider explanations the Applicant had provided for difficulties with his evidence. It did not find that these explanations overcame the difficulties with his claims.
In particular, the Tribunal had regard to the Applicant’s explanation for the delay in lodging his protection visa application for three years after he knew his marriage was over (and some seven years after he claimed he had started provoking his powerful family members who would want to harm him on return). It was of the view that if the Applicant had genuine fears about returning to Zimbabwe, he would have made earlier enquiries about his options, including whether he could claim protection having regard to his political claims. It considered it highly unlikely that the Applicant did not know about protection visas or make relevant enquiries and found that the Applicant’s delay in claiming protection despite his claimed significant fears of harm undermined the claimed fears.
The Tribunal reiterated that it did not accept the Applicant’s explanations for why he had omitted to present information until after his protection claims had been refused by the Department. On the Applicant’s own evidence, it did not accept that he was not educated. It considered that he could have made his own enquiries and noted that he had an agent in relation to his Partner visa review application. It did not accept that the Applicant was concerned that he had a fear of being found out as seeking protection. This did not explain why, when he claimed protection, he did not refer to a significant part of his claims.
The Tribunal considered the Applicant’s evidence that he had been distressed and taking medication since the “messy” situation with his wife. The Tribunal was prepared to accept that the Applicant and his wife had difficulties in their marriage, that the relationship had broken down, that this caused the Applicant distress, and that he had unfortunately suffered two separate incidents of assault and had sought counselling after such episodes. It referred to letters of support in that respect and also to documentary evidence that the Applicant was assaulted in 2013 and 2016. However it found that there was no evidence indicating that the Applicant was suffering from a particular disorder or that he required any particular assistance or treatment in the future. In so far as the Applicant had said that it was not so much about treatment, but more that he would be alone in Zimbabwe, the Tribunal had regard to its findings that the Applicant would not be alone in Zimbabwe and that his claims about being isolated and abandoned were not true.
The Tribunal was not satisfied that there was a real chance or real risk that the Applicant required any particular treatment that he would not be able to access that would lead him to suffering a real chance of serious harm or real risk of significant harm if he returned to Zimbabwe.
The Tribunal accepted that it could be stressful for the Applicant to give evidence, but was not prepared to accept on the evidence before it that there was any mental health issue that could explain the difficulties with his evidence. On the evidence before it, the Tribunal did not accept that the Applicant was suffering from any mental health illness.
The Tribunal also had regard to issues in relation to the Applicant’s evidence about his family. It noted that, as it had put to the Applicant at the hearing, when completing his protection visa application form he gave no evidence about any relatives in Zimbabwe and did not suggest that he had relatives who were politically and otherwise powerful and connected throughout the country.
It considered the statements provided and the evidence from a witness (the Applicant’s cousin) that the Applicant’s family members were well connected and violent people. However, having regard to its credibility concerns and the Applicant’s failure to mention these relatives and their power in his initial claims, the Tribunal was not prepared to give weight to the statements and evidence suggesting that the Applicant’s relatives had political and other connections, were politically powerful or influential or were connected to the ruling powers or the Zimbabwean authorities.
In relation to the oral evidence from the Applicant’s cousin, the Tribunal also had regard to the fact that, contrary to the cousin’s earlier written statement which included the names and positions of claimed relatives, the cousin had been unable to provide much detail about the Applicant’s claimed relatives and their positions in his oral evidence. The Tribunal was not prepared to put any weight on the evidence of the cousin. The Tribunal was also not prepared to give any weight to newspaper reports and photographs referring to people with the same family name who the Applicant claimed were his powerful relatives.
In so far as the Applicant had suggested that the Tribunal could contact “people in Zimbabwe” to find out about his relatives, the Tribunal recorded that it had told the Applicant that it was not going to contact people who he said sought to cause him harm in a country where he feared harm, but that it would take into account any information he provided prior to its decision. The Tribunal noted that it did not receive any further evidence from the Applicant and nor did it receive a request for an extension of time to produce any particular additional evidence. In those circumstances it had considered it appropriate to proceed to a decision.
The Tribunal acknowledged that while some country information could support the Applicant’s claims of being ostracised, being disowned and isolated, other country information indicated the opposite and, indeed, suggested that it could be considered a matter of prestige for a black man to be in a relationship with a white woman. Having regard to its concerns about the Applicant’s credibility, the Tribunal was not prepared to accept that the country information was corroborative of the Applicant’s claims.
The Tribunal stated that it had considered the documents produced by the Applicant to support his claims. It noted that he claimed that he had not kept any of the threatening telephone and Facebook messages that he had received over the years. He claimed he had not known he would need those messages one day. While the Tribunal acknowledged that this may be plausible in some situations, having regard to the significant concerns it had about the Applicant’s evidence, the Tribunal was not prepared to accept this explanation.
The Tribunal referred to the letter purportedly from the Applicant’s parents dated 7 February 2009. It found that this letter was inconsistent with the Applicant’s evidence about when his parents last paid his fees. It did not give the letter any weight.
As to Facebook, the Tribunal observed that, according to the Applicant’s submissions, there had been pictures of him with his wife with (negative) comments and inbox messages on Facebook, but he had deleted these and could not download them, so he had no evidence. It found inconsistencies in his claims as to when he last received abuse via Facebook. It also noted that he had provided translations of words on a Facebook page that did not, in fact, appear on the pages he produced. Instead the pages produced showed him saying things such as “of course” he was going back home and that there was “no place like home”. The Tribunal was not prepared to accord any weight to the claimed Facebook evidence, having regard to its significant credibility concerns.
The Tribunal concluded that, considered cumulatively, the concerns it held about the Applicant’s credibility led it to conclude that he was “not a witness of truth” and had “exaggerated and fabricated accounts of events, as well as the claimed fears, upon which he has based his protection claims”.
The Tribunal made findings on the Applicant’s claims on this basis. It was prepared to accept that he was a 31 year old Zimbabwean from Harare who was educated in Zimbabwe and had done some study in Australia, and that he had been married to a white woman and was in a current relationship with another white woman. It was prepared to accept that his family may have been “slightly upset” with his choice of a wife and that he may not have kept very close relations with his parents while he was married. However it considered that the Applicant had significantly exaggerated this in an attempt to bolster his claims. It noted that the Applicant had said that his father continued to pay his fees after he found out that he was dating a white woman. It did not accept that the Applicant’s father (or family members) had any “real difficulties” with the Applicant’s choice to date or to marry a white woman, that anyone held a grudge against him or that he had shamed the family or relatives. It noted that the Applicant said that his father was Muslim and his mother was Christian, but that his father did not mind that he was a Christian when growing up and that he went to a Christian school. The Tribunal observed that while the Applicant claimed that his father was a strict Muslim, he also claimed that his father believed that religion was a personal choice and did not have a say in the Applicant’s religion. It found that this was indicative of the family’s general attitude to the Applicant’s choices in life, being non-interventionist and accepting.
The Tribunal noted that in his ministerial intervention application the Applicant, who was not yet divorced, had said that divorce was taboo. It was prepared to accept that he would divorce his wife, but noted that he had not suggested to it that he would face harm for getting divorced. On the evidence before it, the Tribunal was not satisfied that the Applicant would face a real chance of serious harm or real risk of significant harm from getting a divorce.
The Tribunal did not accept that the Applicant’s relatives had political influence and positions as claimed. It did not accept that he faced harm for having married or dated white women in Australia, nor that he faced being stigmatised, psychological trauma, being isolated or harmed, degrading treatment or being treated differently because he had had relationships with white women. It did not accept that the only family or friends he had communicated with or obtained support from were those in Australia, that he had received threats or adverse comments, that he was disowned or abused mentally or verbally.
The Tribunal did not accept the Applicant’s claim that he had nowhere to go in Zimbabwe, that he would be deprived of a normal life or that he faced a real chance or real risk of being adversely affected by political tension. It did not accept that he faced any chance or risk of harm from the authorities or that he faced any risk of harm when he divorced his wife. It did not accept that he would be perceived as weak or as having been taken advantage of by a woman, or by a white woman, or that he would face the stigma of being a male victim of domestic violence (which it did not accept).
On the evidence before it the Tribunal did not accept the Applicant’s assertion that his relatives were able to use witchcraft to kill people they did not like and that they had done so. Nor did it accept that family members had been killed or harmed by witchcraft or due to their political opinions. It did not accept that the Applicant had been victimised by the Zimbabwean community in Australia, or elsewhere, because of his choice to marry or date a white woman.
The Tribunal did not accept that the Applicant had a pro-MDC political opinion, or an anti-ZANU-PF political opinion, or that there was any reason to consider that he would express political opinions in Zimbabwe.
Even if there were some postings on Facebook of the Applicant drinking and smoking and with white women, the Tribunal did not accept that he would suffer harm for this, or for any of his activities in Australia, or if he continued to attend to such activities (smoking, drinking or any claimed behaviour) in Zimbabwe.
The Tribunal was not prepared to accept that the Applicant’s family and their attitudes were as claimed by him. It did not accept his assertion that he had no friends and family in Zimbabwe. While it accepted that he had spent 11 years in Australia, it was not satisfied that because of this the Applicant faced a real chance of serious harm or real risk of significant harm upon return to Zimbabwe. Nor did the Tribunal accept that because he had suffered from stress or anxiety in the past, the Applicant faced a real chance of serious harm or real risk of significant harm in Zimbabwe. It reiterated that it had found that he did not suffer from a mental health condition. Nor, on the evidence before it, did the Tribunal accept that the Applicant required any particular treatment or counselling in Zimbabwe. The Tribunal also did not accept that the Applicant’s family sought to cause him any harm because he did not finish his university studies or that for any reason he would be imputed as causing harm or shame to his family in Zimbabwe.
The Tribunal did not accept that the Zimbabwean authorities had any adverse interest in the Applicant or that there was any reason to consider that he faced a real chance of serious harm from the authorities for any reason.
The Tribunal did not accept that the Applicant had not known that he could lodge a protection visa application earlier. It found that he had done so as a last resort in order to attempt to remain in Australia and not because he had genuine fears. It was not satisfied that the Applicant had any genuine fears about returning to Zimbabwe and found that after his claims had been rejected by the delegate, he then fabricated further claims in an attempt to obtain a Protection visa.
In light of country information, the Tribunal concluded that it rejected any claims that the Applicant faced harm from his family based on his relationship with a white woman. The Tribunal recorded that it had put to the Applicant that he could return to Harare, live with his family and get work. It found on the evidence before it (including as to the Applicant’s ability to survive in Australia) that the Applicant was very resourceful, educated, had work experience and was intelligent. It was of the view that he could live with his parents until he got a job in Zimbabwe.
The Tribunal considered that the Applicant had fabricated fears of harm for having drunk alcohol and smoked in Australia.
The Tribunal was not satisfied that the Applicant faced a real chance of serious harm for any reason or from any person, family members, the authorities, organisation or group. It was not satisfied that he had a well-found fear of persecution for a Convention reason.
The Tribunal considered the complementary protection criterion in light of the fact that it had not accepted that the Applicant was a witness of truth and had found that he was prepared to make up claims in order to support his protection visa application. It did not accept that he had any genuine fears of facing significant harm in Zimbabwe or (on the evidence before it) that he faced a real risk of significant harm in Zimbabwe. It referred to the fact that it did not accept any of the Applicant’s claims concerning threats or attitudes towards him because he had married or dated white women, had not finished his studies, or because he drank alcohol or smoked. It did not accept that he had powerful or politically connected or influential family members or that he had a strict and backward and racist family. It reiterated that it did not accept that anyone had threatened him at all or sought to cause him harm, or that his activities in Australia or Zimbabwe could lead to him facing a real risk of significant harm. It did not accept that the Applicant had any political opinion or that he had expressed a political opinion. While the Tribunal accepted that the Applicant had spent over 10 years in Australia, it did not accept that this meant he faced a real risk of significant harm upon return to Zimbabwe. It acknowledged that the Applicant had suffered stress or anxiety in the past, but did not accept he faced a real risk of significant harm for such reasons.
The Tribunal concluded that it did not accept that the Applicant faced any harm in the future from anyone in Zimbabwe. It was not satisfied that he would attract significant adverse interest by anyone in Zimbabwe such that he would face a real risk of harm. It was not satisfied that any other aspect of the Applicant, or his family situation, would attract any significant adverse interest by anyone in Zimbabwe such that he would face a real risk of significant harm. It considered the Applicant would return to Harare, continue living with his family members and would work. It was not satisfied that he met the complementary protection criterion.
The Tribunal affirmed the decision not to grant the Applicant a protection visa.
This Application
The Applicant sought review by application filed in this court on 12 August 2016. He relies on an amended application filed on 20 October 2017. Under the heading Grounds of the Application, the Applicant asserted generally that the Tribunal had failed to apply the correct law and that there was a breach of the rules of natural justice and procedural fairness and referred to what he described as a list of grounds in an attachment. The attachment listed six grounds of review.
However in pre-hearing written submissions (which the Applicant told the court had been prepared with the assistance of a lawyer, although there is no lawyer on the record and the Applicant appeared for himself at the hearing) it was stated that four of the listed grounds (grounds 1, 3, 4 and 6) were not pressed. The Applicant confirmed this at the hearing.
The Applicant also clarified in submissions that some of the issues raised in the amended application in relation to ground 5 (that there was a “breach of the rules of natural justice and procedural fairness in making of the decision”) were not pressed.
However the Applicant sought to rely on all the matters raised in the written submissions (which were not limited to the grounds as pleaded).
Credibility finding issues (ground 2)
Ground 2 in the amended application is as follows:
·The making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made..
oFailing to take a relevant consideration and taking irrelevant into account in the exercise of power – The applicant is actually related to these politicians and state actors stated but member chose not to believe this as she says anyone could have same surname despite statutory declarations but accepted Facebook people with same surname despite there being many applicant doesn’t know.
oExercise of discretionary powers in bad faith
oNo regard for merits of the particular case but off her natural justice and thought or belief.
oAn exercise of power in such a way that the result was uncertain without establishing if the evidence is true in regards to the Relationship to family members applicant fears instead member concluded he is not a witness of truth without establishing the matter No evidence to say he is not related to the Political and influential persons applicant fears besides tribunal members own belief that he is not telling truth and an Facebook account that has been sitting for years without full use since 2009.
(emphasis and errors in original)
The Applicant’s written submissions recharacterised this ground as a contention that the Tribunal:
…improperly exercised its power in respect of its finding, particularly regarding his credibility. Such erroneous adverse credibility finding leads to the consequence that his evidences on which his protection claim is based had not been properly evaluated.
In support of this contention, the Applicant’s submissions took issue with the Tribunal’s understanding of its inquisitorial role and submitted that it had: failed to make necessary inquiries; failed to give the Applicant an opportunity to comment; relied on “untested assumptions” or “speculation”; and had made its credibility finding based on “objectively” minor or trivial matters of fact, inconsistencies or omissions. Aspects of the Tribunal’s fact finding and its ultimate finding were said to involve illogicality, irrationality or legal unreasonableness.
Consideration
Before considering the new issues raised in the written submissions, I have considered this ground as pleaded.
As the First Respondent submitted, the pleaded ground of review is little more than an attempt to seek merits review. It was within the jurisdiction of the Tribunal to determine whether it accepted that the Applicant’s family members had political connections (as the Applicant claimed before the Tribunal). It considered, but did not accept, these claims. This did not amount to a failure to have regard to a relevant consideration or integer of the Applicant’s claims. The fact that the Tribunal found that the Applicant’s evidence showed that he had Facebook friends, including relatives who appeared to be in Zimbabwe (as the Applicant had acknowledged at the Tribunal hearing), did not amount to taking into account an irrelevant consideration (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 per Mason J at [15]-[25] and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [73]). Nor was it illogical for the Tribunal to take such evidence into account in considering the Applicant’s claims that he had been disowned and would be isolated in Zimbabwe. It cannot be said that no rational or logical decision maker would have reasoned in this way (cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130]-[135] per Crennan and Bell JJ).
The claims that the Tribunal exercised its power in “bad faith” and had no regard for the merits of the case were not particularised. In so far as these contentions may be seen as asserting bias, that is not established. It was open to the Tribunal, and indeed appropriate for it to raise its concerns with the Applicant at the hearing. The Tribunal gave extensive and cogent reasons for its conclusion as to the Applicant’s credibility, including in relation to the claim that his family members had political connections. As discussed further below, its factual findings were reasonably open to it on the material before it. It has not been established that the Tribunal was “so committed to a conclusion as to be incapable of alteration whatever evidence or argument might be presented” (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [72]).
The Tribunal was entitled to assess the evidence and attach such weight to it as it regarded appropriate. Even if the Tribunal were to disbelieve every element of an applicant’s claim that would not, without more, be sufficient to establish bias (see SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [15]). In fact in this case the Tribunal accepted some of the Applicant’s claims (in particular about his relationships with white women) but was not satisfied that he faced harm on this basis. It has not been established that the Tribunal pre-judged the matter and had a mind closed to any argument to the contrary.
The last particular to ground 2 suggests that the Tribunal was obliged to “establish” the truth of the Applicant’s claim about his family members and appears to imply that as there was “no evidence” to “say” that the Applicant was not related to the political and influential persons he claimed to fear, the Tribunal should have accepted his claims.
However the Tribunal was not required to accept uncritically any and all claims made by the Applicant. The Tribunal is not required to accept a claim merely because positive evidence to the contrary is absent (see SZATG v Minister for Immigration and Multicultural and Indigenous Affairs 2004) 215 ALR 358; [2004] FCA 1595 at [36]).
As discussed below, the Tribunal’s approach was not such that its fact finding or the outcome involved illogicality, irrationality or legal unreasonableness.
Ground 2 as pleaded is not made out.
The Tribunal’s Role
In its reasons the Tribunal stated that it was not required to accept uncritically an applicant’s claims and that the mere fact an applicant claimed to fear harm for a particular reason did not establish this. It pointed out that it was for the Applicant to satisfy the Tribunal that all the statutory elements were made out and to provide evidence to establish a claim (see s.5AAA of the Act); that it was not for the decision-maker to make an applicant’s case; and that it did not have any responsibility or obligation to specify or assist the Applicant in specifying his claims or to establish or assist him in establishing his claims.
In written submissions the Applicant contended that the Tribunal had erroneously stated that it did not have any responsibility or obligation to specify, or to assist him in specifying, any particulars of his claims or to establish or assist him in establishing his claims. It was also submitted that as the role of the Tribunal was inquisitorial, it was necessary for it to make “certain inquiry to establish the facts properly”, particularly having regard to the fact that it was difficult for a self-represented applicant to present materials which covered every aspect of concern to the Tribunal.
It was suggested that if the Tribunal solely depended on evidence presented by the Applicant, the fact-finding process would be impaired and that this would lead to a jurisdictional error amounting to an improper exercise of “judicial” (sic) power. It was suggested that the Tribunal “will not be immune from improper exercise of his power by limiting or omitting his role of proper investigation including asking proper questions”.
The Applicant also contended that the Tribunal had not asked “the necessary questions” to exercise its power “judicially and properly” to make findings of fact, including in assessing the evidence relating to his claimed powerful political relatives and his family’s position towards his marriage in the past. It was submitted that, instead, the Tribunal had made an adverse credibility finding which “made redundant” a proper evaluation and inquiry into the evidence upon which the Applicant’s protection claims were based.
The Respondent submitted that there was no general duty on the Tribunal to call witnesses at its own behest or to otherwise search for evidence to make out an Applicant’s claims and that the Tribunal was entitled to rely upon the evidence before it and to reject the claims it rejected by reference to the adverse credibility findings it made.
Consideration
It is the case that all substantive issues raised by the evidence before the Tribunal must be considered, even if an applicant does not articulate all such claims. However it is no part of the Tribunal’s function to make good a case which an applicant has not articulated (see SBBA at [8]). Rather, it is well established that, as Gummow and Hayne JJ stated in Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [187], it is for an applicant to advance whatever evidence or argument he or she wishes to advance in support of a contention that he or she has a well-founded fear of persecution for a Convention reason and for the Tribunal to then decide whether that claim is made out. The same may be said in relation to the complementary protection criterion. The function of the Tribunal is to respond to the case that the applicant advances (Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 at [78] per Kirby J). That is what the Tribunal acknowledged and undertook in this case.
The Tribunal’s explanation of its role included a reference to s.5AAA of the Act (see the Migration Amendment (Protection and Other Measures) Act 2015 (Cth), Items 1 and 15 in Schedule 1). Section 5AAA provides that it is the responsibility of a protection visa applicant to specify particulars of his or her claim to be a person in respect of which Australia has protection obligations and to provide sufficient evidence to establish the claim and also that the Minister (and hence the Tribunal) does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim or to establish, or assist in establishing, the claim. The Tribunal did not fall into error in acknowledging the effect of this provision or otherwise as contended in relation to its role.
In so far as the Applicant claimed that the Tribunal had failed to ask “proper questions”, the Full Court of the Federal Court expressly found in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 at [36] that s.425 of the Act does not require the Tribunal to actively assist the Applicant in putting his case at the hearing or to carry out an inquiry in order to identify what that case might be. It is apparent from the transcript of the Tribunal hearing that it raised dispositive issues with the Applicant. It also put information to him under s.424AA of the Act.
More generally, as pointed out in Minister for Immigration and Citizenship v SZNVW & Anor (2010) 183 FCR 575; [2010] FCAFC 41 at [22], the applicable provisions in the Act do not support the view that the Tribunal is duty-bound either to press an applicant to call further evidence on an issue, to seek an adjournment to enable him to do so or “to seek out such evidence itself”. As Keane CJ stated at [36]:
The Tribunal was not obliged to conduct an inquiry to discover whether the [Applicant’s] case might be better put or supported by other evidence.
The Tribunal, as originally constituted, gave the Applicant an opportunity to provide further documentation in support of his claims. That did not mean that the Tribunal was obliged to accept claims on the basis of the further documentation.
Whether failure to make an inquiry such as to demonstrate or lead to jurisdictional error
The Applicant submitted that to exercise its power properly, the Tribunal had to make a “proper investigation, including making specific inquiry”. It was submitted that there were “so many aspects on a range of issues which needed to be raised” and that if the Tribunal did not make inquiry on issues it was “interested in”, the Applicant would be “at a loss” to decide what information to present.
The general contention as to the Tribunal’s role is considered above. In addition it was contended that the Tribunal should have made specific inquiries “into details” to verify whether the Applicant had family members who were part of the current ZANU-PF political party or had political influence and social status and influence with the authorities and ZANU-PF youths.
The First Respondent contended that this was not a case in which the Tribunal was under a duty to make inquiries in the sense considered by the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39.
It was noted that at the second Tribunal hearing, in response to the Tribunal expressing concern that the Applicant had only raised his concerns about the existence of politically connected relatives before the Tribunal, the Applicant had stated generally that the Tribunal could even “call the country and find out how we’re related” (transcript, p.64). No particular source of information or kind of inquiry was suggested by the Applicant. The Tribunal responded that it was not going to call a country and talk to people whom the Applicant had said would cause him harm and also that he had to provide his evidence. The Applicant acknowledged that he understood this (transcript, p.64).
The First Respondent submitted that in circumstances where the Applicant claimed that he feared harm from family members with political connections, it would have been highly inappropriate for the Tribunal to have even attempted to make contact with the individuals whom the Applicant claimed would harm him upon return.
Consideration
While in certain exceptional circumstances the Tribunal’s failure to inquire may ground a finding of jurisdictional error on the basis of legal unreasonableness (see Minister for Immigration and Citizenship v Le (2007) 164 FCR 151; [2007] FCA 1318 at [60] and [63]), it has not been established that the Tribunal failed to obtain important information on a critical issue which it knew or ought reasonably to know was readily available. Similarly, it has not been established that the Tribunal failed to make an obvious inquiry about a critical fact “the existence of which was easily ascertained” in the sense considered in SZIAI at [25]. The Applicant’s general suggestion at the Tribunal hearing that the Tribunal could make (unspecified) inquiries in Zimbabwe, was not such as to bring this case within the circumstances considered in SZIAI. The Tribunal’s approach to the issue of potentially contacting named persons said to be feared by the Applicant was not irrational or illogical. There was an evident and intelligible justification for its unwillingness to do so and the Applicant was given the opportunity to provide further evidence in that respect after the hearing.
Whether failure to give the Applicant a chance to respond to the Tribunal’s concerns.
The Applicant also submitted that to exercise its power properly, the Tribunal was obliged to give him a chance to respond to its “comments”. It was noted that in its reasons the Tribunal had observed that, as it put to the Applicant, it considered that he would have mentioned the influence and connections of his family members and his highly provocative political comments and anti-ruling party political opinion in his protection visa application form (and in his interview with the delegate) if these matters were genuine. It was submitted that the Tribunal gave the Applicant “no chance” to respond and explain the situation and had deprived him of natural justice in this respect.
Consideration
As the First Respondent submitted, it is apparent from the transcript of the second Tribunal hearing that the Tribunal made it clear to the Applicant that it had to make up its own mind whether claims were true (and that just because he had provided statements from people as to certain claims that did not, in itself, mean that such claims were true). The Tribunal expressed concern when the Applicant’s responses appeared unresponsive and invited the Applicant to indicate if he did not understand its questions. It raised with him various inconsistencies in his evidence and difficulties it had in accepting specific aspects of his claims (as it subsequently recorded in its reasons) and detailed some of these concerns (and the Applicant’s responses) in its reasons.
The particular “concern” said not to have been put to the Applicant related to his failure to mention the influence and connections of his family members and his highly provocative political comments and anti-ruling party political opinion in his protection visa application and interview with the delegate.
The Tribunal did raise its concerns in this respect (and in relation to other matters relevant to the credibility of those claims) such as to put the Applicant on notice of dispositive issues. It specifically raised with him his failure to mention anything about his high-powered relatives in his protection visa application and interview with the delegate (transcript, p.62). In particular, it put to him that he had failed to mention his new claims that he had an anti-ZANU-PF opinion or fear, that he had highly connected ZANU-PF family members, or that they would kill him for reason of his political opinion (transcript, p.63-64). It also raised concerns about why he did not tell the delegate that his family could find him anywhere in Zimbabwe because they were so highly connected (transcript, p.64).
After raising various other issues and giving the Applicant the opportunity to explain if he had any other fears and to say anything further (transcript, p.71-73), the Tribunal summarised its concerns. It put to the Applicant particular information under s.424AA of the Act in relation to his cousin’s oral evidence, the ministerial intervention request and the MRT hearing (transcript, p.74-81) as well as a dob-in letter to which it ultimately gave no weight.
Towards the end of the hearing the Tribunal returned to its difficulties believing that the Applicant would have completely forgotten to mention his family members (transcript, pp.83 and 86) and gave him an opportunity to provide further evidence.
In other words, at the hearing the Tribunal highlighted, in a number of ways, the discrepancy between the Applicant’s initial claims and his claims to the Tribunal. It sought clarification. In doing so it put to the Applicant for comment its concerns that he had not mentioned such claims about influential and connected family members and his political and anti-ruling party political opinion in his protection visa application form or his interview with the delegate. It was not necessary that it use the precise words in which it summarised those concerns in paragraph 103 of the reasons for decision.
Contrary to the contention that the Applicant was not given the opportunity to respond to and explain the situation (in particular in relation to the late raising of his claims about his family) such matters were raised with the Applicant at the hearing and he was given an opportunity to respond. As set out above, the Tribunal addressed his responses in its reasons. This contention is not made out.
Whether the Tribunal made its credibility finding based on objectively minor or trivial matters of fact, inconsistencies or omissions, and/or based its findings on untested assumptions and speculation and/or the fact finding or outcome involved illogicality, irrationality or legal unreasonableness.
In written submissions the Applicant contended that the adverse credibility finding was the basis for rejecting his “entire evidence” and/or “whole claim” and that it was based on “objectively” minor or trivial matters of fact or inconsistencies or omissions, irrational and/or illogical. This concern was presented in several ways.
It was submitted that the Tribunal fell into jurisdictional error when it progressed from adverse findings of “incongruity and inconsistency” to a finding that the Applicant was not a witness of truth and that the claims about political family members on which his protection visa claim was based were false. Such a finding was said to be illogical and/or irrational and based on speculation.
The Applicant contended that none of the Tribunal’s findings were of sufficient strength to be determinative as to credibility. There was also said to be no logical or probative basis for the “ultimate” finding that the Applicant was not a witness of truth and that his evidence was false in the absence of any findings of falsity or fabrication in relation to any of the evidence. It was submitted that the Applicant’s claims were not inherently contradictory and that the Tribunal did not disclose its reasoning process for “jumping” from trivial or minor inconsistencies to an adverse credibility finding. This was said to have led the Tribunal to dismiss the Applicant’s claim without further examining the evidence on which it was based. In post-hearing submissions the Applicant referred generally to SZGLP v Minister for Immigration and Citizenship [2008] FCA 1198 and WAIJ v Minister for Immigration and Indigenous Affairs [2004] FCAFC 74 as relevant authorities.
The Applicant suggested that the Tribunal had made no express finding of falsity or that he was deliberately lying or that he had relied upon or provided any specific piece of evidence which was false. It was submitted that this was not a case in which the inconsistencies revealed a pattern of deception and that there was no direct conflict of evidence or any other reason for the Tribunal to make its finding of falsity.
It was submitted that the inconsistencies identified by the Tribunal could each fairly and objectively be described as minor and that minor inconsistencies could not support an adverse credibility finding. The Applicant contended that, at most, the identified inconsistencies and incongruities in his evidence taken together provided a basis to doubt his evidence, but that it was neither logical nor rational to find that his evidence was false. In these circumstances, it was said not to be open to the Tribunal to “aggregate” the cumulative effect of minor incongruities and inconsistencies to reach a conclusion that the Applicant was not a witness of truth and that his account of events was false in the absence of findings of falsity, a pattern of deception or that the Applicant had lied or fabricated evidence.
The Applicant submitted that the Tribunal had made “a range” of untested or unwarranted assumptions or speculations about people’s behaviour or reactions and that such assumptions had been used as “dogmatic standard answers” in assessing his credibility on the basis that because the Applicant’s behaviour or reaction deviated from such standard answers, his credibility should be undermined and discounted. It was submitted that in a culturally and socially diverse environment such simplistic behaviour modelling “does not work” and hence that the Tribunal had committed a jurisdictional error.
It was submitted generally that unwarranted assumptions made by the Tribunal as to matters relevant to formation of its adverse credibility finding had caused it to rely on speculations to make findings of incongruity or inconsistency as the basis on which it disbelieved and disregarded the Applicant’s evidence. This was said to constitute a failure by the Tribunal to duly consider the question raised by the material before it.
The Applicant took specific issue with what were said to be untested assumptions or speculations by the Tribunal in paragraphs 117 to 122 of its reasons (which contain the discussion of the fifth concern it expressed about the Applicant’s credibility summarised at [40]-[41] above). The Tribunal was said to have been of the view that the Applicant’s parents should have ceased to pay his school fees as they were against him dating a white woman. This was said to involve an untested assumption.
The Tribunal was also said to have relied on untested assumptions as to how people should behave in considering that the Applicant would have changed his telephone number after years of telephone abuse. It was submitted that the Tribunal had overlooked cultural issues and had failed to inquire into why the Applicant did not change his telephone number. It was said to be erroneous to conclude that he was not a reliable witness because he behaved “against what the Tribunal regarded as standard reaction”.
In addition, the Applicant submitted that the Tribunal made an untested assumption and engaged in speculation at paragraphs 126-130 of its reasons (see [43]-[44] above). It was suggested that the Tribunal had found that the Applicant’s Facebook friends must be his personal friends living in one location, such that he would not be isolated if he returned to his home country and had expected that people should only use one name on social media. It was contended that this could not be the basis for an adverse credibility finding.
The Applicant also took issue with the Tribunal’s approach to his failure to mention in his MRT hearing or his application for ministerial intervention, claims he made to the Tribunal about the significant profiles of his family members and that they sought to cause him harm, that he had provoked anyone with his relationship or his political opinion in Zimbabwe or that he would face harm because he had had relationships with white women. The Applicant submitted that the Tribunal had erred in making what was described as an “untested assumption” that he would have made such claims at those earlier times. It was contended that the Tribunal was supposed to deal with the evidence and claims before it, but that it had failed to do so on the erroneous basis that these claims should have been raised at an earlier stage in different contexts.
Further, in relation to the Tribunal’s concern that the Applicant had failed to mention his political opinion and his influential, political and significantly connected family members in his visa application or before the Department and the fact that these matters only arose after his protection visa application was refused, the Applicant submitted that such a “new ground of argument” should not be rejected “simply” because the claim had not been raised before the Department. This argument was put on the basis that the “deadline” for making a claim was the time of the Tribunal hearing.
It was submitted that the Applicant had put his “evidences and arguments in each stage” with a different focus depending on his understanding of the requirements at each stage and that the evidence and arguments he had presented at each stage were not inherently contradictory, but rather were complementary. It was submitted that the task of advocacy at each stage was different and that the Applicant could not foresee the advocacy task in the next stage.
The Applicant submitted that there was an absence of a logical or probative basis for the Tribunal’s inferences or findings of fact and adverse credibility finding.
The First Respondent acknowledged that in a particular case adverse credibility findings resulting in the rejection of claims that were based upon minor or trivial inconsistencies may constitute a determination based on illogical or irrational findings or inferences of fact (see SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 at [25] to [26] as cited in CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [43]) and that such an error would be jurisdictional error. However it was contended that in this case the Tribunal’s reasons did not reflect a determination of the Applicant’s credit based on minor or trivial concerns, but rather reflected several concerns about the Applicant’s claims which, when taken together, provided a cogent and rational basis for the Tribunal’s adverse credibility findings and rejection of the Applicant’s claims.
The First Respondent also submitted that, having regard to each of the Tribunal’s credibility concerns, this was not a case in which illogicality, irrationality or unreasonableness in some other sense was apparent in the Tribunal’s approach to fact finding or its conclusion. It was pointed out that the fact that other findings may have been available in relation to certain parts of the Applicant’s claims or in relation to aspects of the Tribunal’s credibility concerns, would not in itself indicate irrationality, illogicality or unreasonableness (see SZMDS at [130] per Crennan and Bell JJ). It was contended that this was not a case in which the Tribunal’s findings were findings that would not have been available to a reasonable decision maker on the basis of the material before the Tribunal (see SZMDS at [130]-[135]).
The Applicant’s response was that it was for the court to determine whether the matters raised by the Tribunal at paragraphs 90 to 132 of its reasons were matters of trivial or minor concern or whether the Tribunal was entitled to take minor or factual inconsistencies as a whole into account as a basis for finding that he was not a witness of credit in the absence of clear reasoning in that respect.
Consideration
Jurisdictional error is not established on any of the bases contended for by the Applicant.
As described in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [11] per Allsop CJ the consideration of whether a decision is legally unreasonable is:
…not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
Legal unreasonableness can arise where there is an underlying error in the decision-making process or can be outcome focused where there is no evident and intelligible justification for the decision (see generally Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18). However, as stated in SZMDS at [96] (and also see SZVAPv Minister for Immigration and Border Protection (2015) 233 FCR 451; [2015] FCA 1089 at [14] – [15] and DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2 at [30]), a high degree of caution must be exercised before finding that adverse findings as to credit expose jurisdictional error, in order to ensure that the court does not embark impermissibly on merits review.
To establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme illogicality must be demonstrated” measured against the standard that it is not enough for the question of fact to be one on which “reasonable minds may come to different conclusions” (Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [148] and also see CQG15 at [60]). As Crennan and Bell JJ stated in SZMDS at [135]:
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.
Illogicality also must be shown to have affected the decision in question. In other words, as stated in CQG15 at [61] “even emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”.
It is the case that in SZLGP Gordon J found jurisdictional error in circumstances where the Tribunal had relied on what were, at most, minor or trivial inconsistencies between the initial claims made in support of a protection visa application and the claims (of the same nature) made to the Tribunal in making a finding that the Applicant had fabricated the fundamental aspects of his claims. Her Honour stated at [25]:
25. Notwithstanding the breadth of the Tribunal’s discretion to make weight and credibility determinations, the requirement described in WAIJ to make those determinations “judicially” imposes limits that credibility and weight determinations be made rationally and logically, and be articulated properly.
…
26. Here, the inconsistencies (or rather, omissions) in the first appellant’s evidence adverted to by the Tribunal are at most minor or trivial. Further, the Tribunal’s reasons disclose no legitimate articulable basis for the finding, based on those omissions, that the first appellant fabricated fundamental aspects of his refugee claims. Instead, the Tribunal, even while acknowledging that it is not to be expected that an applicant will include every detail in the initial application, concludes without reasons that these are details that should have been provided, finds that they are details so weighty or important as to go to fundamental aspects of the claims, makes an adverse credibility finding, and infers that the claims were fabricated. Once the bases for these findings and inferences of fact are tested in the manner outlined, it is apparent that the Tribunal’s determination is based on illogical or irrational findings or inferences of fact. It is a decision not supported by reason. To put the matter another way, “because it is based upon such findings … the determination is an unreasoned decision”.
In CQG15 the Full Court of the Federal Court recognised (as has also been recognised in many other cases) that adverse findings as to credit are not immune from scrutiny and may expose jurisdictional error on recognised grounds, such as a failure to afford procedural fairness, reaching a finding without any logical or probative basis, unreasonableness, or as discussed by Flick J in SZVAP (see CQG15 at [38]). The Court referred with approval to authorities indicating that jurisdictional error would be established where a finding on credit was based on an objectively minor matter of fact (at [41]), on unwarranted assumptions as to matters relevant to formation of a view as to credibility which caused the Tribunal to disbelieve and disregard evidence (at [42]), and/or where such a finding relied on minor or trivial omissions without disclosing a legitimate articulable basis for a finding of fabrication of fundamental aspects of claims (at [43]).
Seen in context, the Tribunal did not have regard to “simply” a minor inconsistency or make an unwarranted assumption in this aspect of its reasoning. It was reasonably open to it to consider the Applicant’s changing evidence in this respect and to be of the view that the evidence that his father continued to pay his school fees while he was serious in dating a white person undermined his credibility and also his claim that his father and family were conservative, backwards, strict and violent and completely opposed to him dating a white person.
Contrary to the Applicant’s contention, the Tribunal did not speculate or make unwarranted assumptions in identifying an inconsistency. It was open to it to find that the Applicant had changed his evidence and that it was inconsistent with the basis on which he claimed to fear harm from his family in relation to his relationship with a white woman.
Nor I am persuaded that the Tribunal made untested assumptions indicative of illogicality that people on the Applicant’s Facebook page must be his personal friends living in one location such that he would not be isolated if he returned to Zimbabwe or that it had an expectation that people should have only one name on social media.
Again, the Tribunal had regard to the fact that the Applicant’s evidence about his Facebook and social media usage was inconsistent, changing and evasive. Further, in relation to the name he used, the Tribunal reasoning did not reveal an “expectation” that people should have only one name on social media, but rather responded to the fact that the Applicant’s evidence was that he used only his given first and family names for his social media accounts, but when he showed the Tribunal what he said was his Facebook account it was in the name of a person with completely different names. The Tribunal’s concern in that respect was that it had asked the Applicant for the names of his social media accounts and he had made no reference to an account in another name.
More generally, there was considerable discussion in the Tribunal reasons for decision about the Applicant’s changing evidence about whether he had been active on Facebook in the last few years. The Tribunal put to the Applicant that it appeared from his evidence, as well as the evidence on his Facebook account, that he used Facebook and had Facebook friends, a number of whom appeared to be in Zimbabwe, including relatives and school friends, and that it did not appear that he had been isolated by these people because of his relationship with white persons. The Tribunal explained to the Applicant its concern that it seemed highly unlikely that he would remain Facebook friends with people who had isolated and disowned him, threatened him and would be violent towards him and that this undermined his claims that he had been threatened and isolated by Zimbabweans. In response, the Applicant said there might be people who might not talk to him, but they were still Facebook friends and he did not talk too much on Facebook. The Tribunal put to him that if he returned to Zimbabwe he could draw upon the support of these people, in response to which he said that he did not know where they were.
The Tribunal’s reasoning in relation to the Applicant’s evidence in this respect was that it was inconsistent, changing and evasive. Such reasoning is not reasoning in which no reasonable decision-maker could have engaged. It was not the sole reason for the adverse credibility finding. Seen in the context of the Applicant’s claims, the Tribunal’s concerns in this respect were not so trivial that they were matters to which it could not properly have regard.
Further, in light of the Applicant’s claim that he had been effectively isolated by the Zimbabwean expatriate community, as well as by Zimbabweans in Zimbabwe, it was reasonably open to the Tribunal to be of the view that his admission that he had Facebook friends in Zimbabwe and in the expatriate community did not suggest that he was being isolated by that community. The Tribunal considered that this undermined the Applicant’s claim that his actions were culturally taboo and had and would lead to cultural isolation and stigmatism and that he had no one to turn to upon return to Zimbabwe. Such reasoning did not involve untested assumptions or speculation that Facebook friends must be personal friends of the Applicant who lived in one location. Nor was it otherwise such as to involve irrational or illogical reasoning.
It was also reasonably open to the Tribunal to have regard to the fact that, despite the fact that the Applicant claimed to fear harm as a result of his political opinion, which he claimed he had voiced by making provocative comments online from 2008 to 2009 and by telephone from 2007 to 2010, he had little knowledge of the policies to which he was opposed. He told the Tribunal that his political opinion at the time was that ZANU-PF was taking farms against white peoples’ interest and that he was against the land grabs and the racist treatment of the white minority in Zimbabwe. The Tribunal was of the view that if this was the Applicant’s political opinion, which he had been voicing, it would think that he would know more about when the policy commenced. However the Tribunal found that when it asked the Applicant when the land grabs commenced, his evidence was evasive. When asked again, the Applicant said 2008. The Tribunal put to him that, according to a DFAT report, the Zimbabwean government had in fact implemented its compulsory land redistributions policy in 1997 and that it escalated during the 2000s. No irrationality or illogicality in the sense considered in SZMDS is apparent in this aspect of the Tribunal’s findings.
In conclusion, this is not a case in which the Tribunal’s reasoning was capricious or arbitrary or involved reasoning which no rational or logical decision-maker could engage in on the same evidence or was such as to involve an adverse conclusion that no rational or logical decision-maker could arrive at on the same evidence in the sense considered in SZMDS at [130] – [131]. It cannot be said that no reasonable decision-maker could have followed the path adopted by the Tribunal.
As indicated, I have borne in mind that consideration of whether a decision is vitiated by illogicality, irrationality or legal unreasonableness may encompass findings on the way to the ultimate decision and that credit findings may be challenged if a finding is reached without any logical or probative basis or as otherwise summarised in CQG15 at [38]. However, contrary to the Applicant’s submissions, it was not necessary for the Tribunal to make an express finding of falsity or fabrication in relation to any particular item of the Applicant’s evidence or to make an express finding that he was “deliberately” lying (see CQG15 at [65]-[66]). I am satisfied that there was “ample foundation” in this case for the Tribunal to reach the conclusion that “the applicant is not a witness of truth and the applicant has exaggerated and fabricated accounts of events, as well as claimed fears, upon which he has based his protection claims”.
I am satisfied that the Tribunal’s findings were rationally made and based upon facts having logical and probative weight and inferences that were reasonably open to be drawn on the material before the Tribunal. The findings were articulated properly. The Tribunal did not rely on only minor inconsistencies and trivial errors in the Applicant’s account to find that he was not credible. Rather, it had regard to several matters of significance to central elements of his claims, as well as to issues in relation to particular aspects of his evidence, including inconsistent, changing and evasive evidence. While on their own, some of the matters taken into account by the Tribunal might be seen as minor, the Tribunal did not base its credibility finding on minor inconsistencies or a combination of minor inconsistencies such as to reveal that it was a decision not supported by reason. It was reasonably open to the Tribunal to have regard to the combination of concerns to which it referred, and to reason in the properly articulated manner that it did.
It has not been established that there was a lack of logical or rational foundation for the Tribunal’s findings such as to constitute the extreme illogicality necessary to demonstrate jurisdictional error. Nor has legal unreasonableness in fact finding or otherwise been established. The Tribunal identified several reasons, including reasons of central significance in relation to the Applicant’s claims which it took into account in finding the Applicant not to be a credible witness. It provided detailed and logical reasons in relation to each of those matters. There was a logical and probative connection between the facts and the Tribunal’s inferences and findings. Even if other findings in relation to certain of these issues might have been available, that does not in itself indicate jurisdictional error. It cannot be said that there was an absence of a logical or probative basis for the adverse credibility finding or for the ultimate finding of the Tribunal.
The Applicant’s contentions do not establish jurisdictional error.
Natural Justice Issue
The other ground relied on by the Applicant (ground 5 in the amended application) is that the Tribunal denied him natural justice. As explained in the Applicant’s written submissions, only two aspects of this ground were pressed. These are as follows:
Breach of the rules of natural justice and procedural fairness in making of the decision for instance 1) refusing to accept that applicant is related to the actual family members in politics and positions of influence who risk applicants safety who are in the newspaper articles and on statutory declarations by witnesses but saying because applicant has family members or people with same surname on friend list and people of Zimbabwean origin on inactive Facebook account means he is not in fear besides him not knowing majority of the friends on Facebook or communicating to them at all as he doesn’t actively use the account. 2) Because applicant managed to survive getting help from charities in Australia he should survive in Zimbabwe...
Particular 1
The Applicant did not elaborate on the first particular, except in so far as the submissions outlined above in relation to Ground 2 also raised procedural fairness concerns.
Consideration
The first particular to this ground misstates and misunderstands the basis for the Tribunal’s adverse credibility finding and hence its rejection of the Applicant’s political family claim. It did not reason in the manner described in this particular.
In so far as illogicality appears to be suggested because the Tribunal accepted that Facebook friends with the same surname were the Applicant’s relatives, that acceptance did not compel the Tribunal to also accept that the Applicant had other (prominent) Zimbabwean relatives who he feared would harm him and who had the same family name. The Tribunal gave clear, cogent and rationally probative reasons for its findings about the political family claims and the Applicant’s credibility.
To the extent that this ground reflects the Applicant’s submission that the Tribunal’s approach was based on an erroneous credibility assessment, for the reasons set out above, ground 2 is not made out.
Moreover, as set out above, at the hearing the Tribunal raised its concerns about the Applicant’s political family, Facebook and credibility claims. It also put to him that just because people said certain things (as in letters of support) did not mean that they were true.
Further, as the First Respondent submitted, the Tribunal’s failure to accept the Applicant’s claims about his relationship to family members with political connections (or otherwise) is not in itself indicative of a denial of natural justice. This was a matter of fact for the Tribunal to determine.
In so far as this aspect of ground 5 involves a concern that the Tribunal gave no weight to the newspaper articles and statutory declarations the Applicant provided, the Tribunal considered the weight to be accorded to the various documents provided by the Applicant. It not only referred generally to having considered the documentary evidence provided, it also addressed the weight to be given to various items of potentially corroborative information.
In particular, the Tribunal acknowledged receipt of news articles referring to persons with the same family name as the Applicant, the content of the news articles and the Applicant’s claims in relation to the people mentioned therein. It also acknowledged that in response to concerns the first Tribunal had raised about accepting that the Applicant was related to these people, the Applicant had produced more evidence, in particular statements from a family friend, his mother and his cousin, stating that his claims were true and that he was related to the influential, political people claimed.
As indicated, the Tribunal explained to the Applicant that it had concerns about whether the evidence he had given in relation to his family was genuine, thus putting him on notice of a dispositive issue.
In the Tribunal’s view, the Applicant’s claim in this respect was discredited by its comprehensive findings of untruthfulness. This provided a basis for the Tribunal to proceed as it did, in giving no weight to the allegedly corroborative evidence (see Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 198 ALR 56; [2003] HCA 30 at [49] and WAIJ at [26]). The Tribunal considered this evidence, but having regard to its credibility concerns and the Applicant’s failure to mention the claimed relatives and their power in his initial claim, the Tribunal was “not prepared to give weight to the statements and evidence suggesting that the applicant’s relatives have political and other connections and are politically powerful or influential in any way or are connected to the ruling power or the authorities” or to the newspaper reports and photographs of people with the same family name.
It has not been established that the Tribunal failed to have regard to documentary evidence in a manner constituting jurisdictional error.
In addition to the Tribunal’s concern in relation to the Applicant’s claims about his family’s political connections (including the time at which they were raised) other concerns, such as about his Facebook and social media usage and relevant to his claim to fear harm based on his relationships with white women, were expressly raised with the Applicant during the second Tribunal hearing. The Applicant cannot be said not to have been aware of the Tribunal’s concerns about the truthfulness of those claims. It has not been established that the Tribunal failed to raise a dispositive issue with the Applicant (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63).
Particular 2
Particular 2 takes issue with the Tribunal’s remarks in relation to the fact that the Applicant had managed to survive getting help from charities in Australia. The Applicant appeared to submit that this was the basis for the Tribunal’s conclusion that the Applicant should be able to survive in Zimbabwe. This was said to be mere speculation.
Consideration
In so far as reference was made to ground 2 in this context, the Tribunal’s finding about the Applicant’s ability to survive in Zimbabwe was not a basis for its adverse credibility finding.
Rather, this matter was relevant to the Tribunal’s finding about whether the Applicant faced a real chance of serious harm or real risk of significant harm based on his former marriage to a white woman and the fact he was in a current relationship with a white woman (which it accepted was the case) or for economic or other reasons. The Applicant had also claimed he would be isolated in Zimbabwe. In those contexts, the Tribunal considered generally the Applicant’s circumstances and whether they gave rise to a real chance of serious harm or a real risk of significant harm. The Tribunal recorded that it had suggested at the hearing that the Applicant could return to Harare in Zimbabwe, live with his family and get work. It put to him that he was resourceful, in that he had been able to survive in Australia for the previous three years without working. It recorded the Applicant’s response that he was not resourceful and just got money from the Red Cross the same as every asylum seeker.
However the Tribunal also had regard to the Applicant’s earlier evidence that he had also been receiving money from friends and his cousin. The Tribunal observed that the Applicant had claimed that when he had financial difficulties after he lost his work rights, the only support was from his family in Sydney and his friends in Newcastle. It was of the view that the Applicant later downplayed the amount of funds he had been receiving and that he was again changing his evidence to respond to Tribunal concerns. It was of the view that the Applicant was very resourceful, educated, intelligent, had work experience in Australia and could live with his parents until he got a job.
In other words, the Tribunal addressed the Applicant’s evidence in the context of considering whether he faced harm from others or because he would be isolated or unsupported in Zimbabwe or for any other reason, including economic reasons.
The basis on which it is contended that this reasoning involved a denial of procedural fairness is not clear. It is apparent that at the hearing the Tribunal put to the Applicant its view that he could return to Harare, live with his family and get work. It has not been established that there was a denial of procedural fairness in this respect. Nor, if this was intended, can it be said that the Tribunal based its decision in this respect on speculation or illogical or irrational reasoning. The Tribunal had before it the evidence of the Applicant’s background, education and work experience and also his evidence at the hearing. These matters and its view that he was resourceful and intelligent, were matters the Tribunal was entitled to rely upon in making its findings.
This ground is not made out.
Other matters raised at the hearing
For the sake of completeness I note that at the hearing the Applicant suggested that his evidence at the Tribunal hearing was affected by the fact that he suffered from anxiety. He claimed that he had not really been able to explain matters because of the issues he had. He claimed that he could not talk. He also took issue with the fact that the Tribunal member was typing notes as she took his evidence.
The fact that the Tribunal member took notes while the Applicant gave evidence is not indicative of pre-determination (on the contrary). Nor, viewed from the perspective of the properly informed fair-minded lay person can it be said to be indicative of apprehended bias (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 at [28] and Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 at [65]).
I asked the Applicant what evidence about his mental health was before the Tribunal and he confirmed that it was only the material in the courtbook, including letters of support from Lifeline, evidence of hormonal issues and that he was a victim of assault, that he had been prescribed certain medication and that he had seen a therapist and a letter from Vocal Victims of Crime Assistance.
In relation to the Applicant’s appearance at the Tribunal hearing, the Tribunal recorded its satisfaction that the Applicant had understood the questions and proceedings and that he had been able to present evidence and arguments on his own behalf. It recorded that the Applicant had indicated that he had been distressed and claimed that this was a reason he was unable to express himself. The Tribunal accepted that it could be stressful to give evidence, but was not prepared to accept on the evidence before it that there was any mental health issue that could explain the difficulties with the Applicant’s evidence. On the evidence before it, the Tribunal did not accept that the Applicant was suffering from any mental health illness. In this way the Tribunal considered the Applicant’s fitness to participate in the Tribunal hearing.
There is no evidence before this court to establish that the Applicant was unfit to participate in the Tribunal hearing such that he was not afforded a meaningful opportunity to appear (cf SCAR and SZMSF v Minister for Immigration and Citizenship [2010] FCA 585).
In so far as the Applicant’s concern was with the impact of his claimed medical or psychological issues in the future, the Tribunal had regard to this evidence and to the Applicant’s claims in his request for ministerial intervention, as well as to his concern that mental health treatment in Zimbabwe was poorly resourced. The Tribunal expressly addressed the Applicant’s mental health, the claims he made and the evidence he provided in that respect. However it also had regard to the fact that, as it had put to the Applicant and as had been noted in the delegate’s decision record which the Applicant provided to the Tribunal, there was no evidence indicating that he was suffering from a particular disorder or that he required any particular assistance or treatment in the future. The Tribunal accepted that the Applicant had had counselling in the past, but also found there was no evidence before it that he required any ongoing treatment, and that he in fact had said that it was not so much about the treatment but more that he would be alone. The Tribunal considered this claim, but found that he would not be alone or isolated or abandoned in Zimbabwe. It was not satisfied on the evidence before it that there was a real chance or real risk that he required any particular treatment that he would not be able to access and that would lead to him suffering a real chance of serious harm or real risk of significant harm. In other words, the Tribunal considered the claims and evidence before it about the Applicant’s mental health issues.
As no jurisdictional error has been established on any basis contended for by the Applicant, the application must be dismissed.
I certify that the preceding two hundred and twelve (212) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 17 February 2020
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