CIJ16 v Minister for Immigration

[2018] FCCA 2980

FEDERAL CIRCUIT COURT OF AUSTRALIA

CIJ16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2980

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal misapprehended evidence – whether the Tribunal made a finding that was unreasonable, irrational, or illogical – whether the Tribunal applied the wrong test for a well-founded fear – findings on credibility – no jurisdictional error found – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Cases cited:

W148/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 679;

(2001) 185 ALR 703

Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62;

(1989) 169 CLR 379

Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22;

(1997) 191 CLR 559

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240

CLR 611

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174;

(2016) 250 FCR 109; (2016) 154 ALD 221

Randhawa v Minister for Immigration, Local Government & Ethnic Affairs

[1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6;

(1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61;

(2006) 151 FCR 214

Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA

1126; (1998) 86 FCR 547

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146;

(2016) 253 FCR 496

First Applicant: CIJ16

Second Applicant: CIQ16

Third Applicant: CIR16

Fourth Applicant: CIS16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG  2291 of 2016

Judgment of: Judge Nicholls

Hearing date: 20 March 2018

Date of Last Submission: 27 April 2018

Delivered at: Sydney

Delivered on: 23 October 2018

REPRESENTATION

Counsel for the Applicants: A N Silva and N G Silva by direct access

Solicitors for the Respondents: A Keevers of Sparke Helmore

ORDERS

1. The application made on 24 August 2016, amended on 13 January 2017 and further amended on 20 March 2018 is dismissed.

2. The first and second applicants pay the first respondent’s costs set in the amount of $5000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2291 of 2016

CIJ16

First Applicant

CIQ16

Second Applicant

CIR16

Third Applicant

CIS16

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 24 August 2016, amended on 13 January 2017 and further amended on 20 March 2018, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 3 August 2016, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse protection visas to the applicants.

2. The evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”). Also in evidence is the affidavit of the first applicant of 22 December 2016 annexing a transcript (“T”) of the hearing before the Tribunal.

Background

1. The applicants are citizens of Fiji (CB 15, CB 30, CB 37 and CB 44). The first and second applicants are husband and wife, and the third and fourth applicants are their children. The applicants made their application for the visas which was received by the Minister’s department on 16 September 2014 (CB 1 to CB 135). The first applicant made claims to protection. The second, third and fourth applicants applied as members of the first applicant’s family unit.

2. The first applicant’s claims to fear harm were contained in a Statutory Declaration dated 16 September 2014 and attached to the visa application (CB 91 to CB 94). The first applicant claimed to fear harm on the basis of his Indian ethnicity. He claimed that in 2000, he was contracted by five village leaders to do electrical work on houses in the village of Seveni. When he was not paid the correct amount for his work and requested the money, he was “punched and threatened that [he would] be killed”, called a “Kai India” and told that “[y]ou people don’t belong to Fiji” ([4] – [7] at CB 91).

3. The first applicant claimed he went to the police “[b]ut nothing came out” ([7] at CB 92). Approximately two weeks later, his car was stolen and found “in a badly burned state” ([10] at CB 92). The first applicant claimed that he then closed his business and left for Australia ([12] at CB 92).

4. He returned to Fiji in 2012, and after telling a friend and his business partner what had happened to him in 2000, the next day one of the village leaders and two people not known to the first applicant, came to his house and “threatened and assaulted [him] for ‘spreading lies’ about them” ([7] at CB 91 to CB 92 to [22] at CB 94).

5. The first applicant claimed to have gone to the police but was told by an “Indian policeman” that the police “won’t do anything because you are Indian and you are complaining against those Fijian thugs” ([22] at CB 94). Further, the applicant claimed that in 2013, he was told by a neighbour that one of the village leaders and “his gang” came and asked for the first applicant and “threatened [his] mother in law”, but he was not there at the time, and they told his neighbour that the “next time they see [him] they will kill [him]” ([23] at CB 94). The first applicant then left with his family “earlier than planned” ([23] at CB 94).

6. The first applicant attended an interview with the delegate on 10 December 2014 (CB 145 to CB 147 and CB 160.6). The delegate refused the application for the visas on 22 January 2015 (CB 150 to CB 170). The applicants applied for review to the Tribunal on 13 February 2015 (CB 171 to CB 173).

7. The applicants were invited to, and the first applicant attended, a hearing before the Tribunal on 21 July 2016 (CB 178 to CB 181 and CB 192 to CB 194). The applicants’ representative provided further country information to the Tribunal by email on 22 July 2016 following the hearing (CB 204 to CB 229). The Tribunal affirmed the delegate’s decision on 3 August 2016 (CB 230 to CB 243).

8. The Tribunal did not find the first applicant to be a “credible or a truthful witness” ([53] at CB 240). While the Tribunal found that it was “plausible” that the first applicant “might have been assaulted in 2000 after demanding money … [it] found the [first] applicant’s evidence regarding the problems which this caused to be lacking in credibility” ([54] at CB 240). At [55] of its decision record (at CB 240) the Tribunal stated:

   “According to his evidence, the [first] applicant did not take any action to obtain payment from the men after he was assaulted. While he claims to have reported the assault to the police, the men were not arrested or charged and the applicant did not pursue the matter further. In these circumstances, even if I accept that he was assaulted when he demanded payment, I can think of no plausible reason why the village leaders would have wanted to pursue or harm him.”

9. The Tribunal also considered that the first applicant had arrived in Australia in 2001 and “returned to the same address in Fiji 7 times over the next 11 years” ([59] at CB 241). The Tribunal did not “accept that someone who was in continuous fear of the men who assaulted him in 2000 would have behaved in this way”. Further, the first applicant did not obtain a “457 visa” until 2003, and the Tribunal found that had the first applicant genuinely feared harm in Fiji, he would have sought protection in the intervening period ([59] at CB 241).

10. The Tribunal found that the first applicant had not been in a dispute with the village leaders who he had claimed “assaulted him in 2000” and that he had “concocted” the claim to support his application for protection ([60] at CB 241). While accepting that the first applicant’s car had been stolen and burned, the Tribunal found there was no credible evidence to suggest that the village leaders were responsible ([61] at CB 241).

11. As the Tribunal did not accept that the first applicant had been involved in a dispute with village leaders in 2000, the Tribunal did not accept that the first applicant had been assaulted in 2012, or that he had been pursued by the village leaders to his mother-in-law’s house in 2013 ([63] at CB 241 and [65] at CB 242). The Tribunal also discussed “other significant problems” with the first applicant’s evidence concerning events after 2000. This included that the first applicant’s claims concerning events in 2013 were “lacking in credibility” ([66] – [68] at CB 242).

12. While the Tribunal considered that some of the “problems” with the first applicant’s evidence were “relatively minor” when considered in isolation, on the totality of the evidence, the Tribunal found the first applicant not to be a “truthful or a credible witness” ([69] at CB 242).

13. The Tribunal found that the applicants did not meet any of the criteria for the grant of the protection visas, and affirmed the delegate’s decision

    
    

    ([73] – [76] at CB 243).

Before the Court

1. By order made by a Registrar of the Court on 17 November 2016, the matter was set down for final hearing on 20 March 2018, and, amongst other things, the parties were given the opportunity to file written submissions. The applicants filed written submissions on 27 February 2018. The Minister filed written submissions on 13 March 2018. The applicants’ written submissions indicated that they would be seeking leave at the final hearing to rely on a further amended application.

2. At the final hearing, the applicants were represented by counsel. The Minister was represented by a solicitor. The applicants’ counsel sought leave to rely on a further amended application, and with no objection from the Minister, leave was granted. The applicants’ counsel also indicated that ground two of the further amended application was not pressed.

3. At the final hearing, the applicants and the Minister were given the opportunity to file further written submissions in relation to ground six of the further amended application. The applicants filed further written submissions on 6 April 2018. The Minister filed further written submissions on 27 April 2018.

The Application to the Court

1. The grounds of the further amended application to the Court are in the following terms:

   “1. The Tribunal made jurisdictional error since it misapprehended the main applicant’s evidence about his interaction with the police in 2012 and used that misapprehended evidence to make an adverse credibility finding.

   Particulars

   At [64] (CB241) the Tribunal refers to conflicting evidence of the applicant about his interaction with police in 2012 whereas the applicant’s evidence was consistent.

   The applicant claimed that the police (Native Fijian police Officer in Charge) told him that the police would investigate whereas they did not, but when he went again to inquire an Indian police officer advised him in confidence that he would not be assisted because of his ethnicity. CB 94 [22]. See transcript Pg 10 ln 32 – Pg11 ln1-7 for the discussion during the Tribunal hearing:

   MS SMIDT: Let me just check something here. The police said they would investigate further but you left after two days. Do you know anything about what happened?

   INTERPRETER: No, I don’t know anything about that.

   There was no further question asked by the Tribunal. Both evidence is consistent and there is no conflict between them.

   …

   3. The Tribunal made a jurisdictional error by making a finding that there was no plausible reason for village elders to pursue or harm the main applicant and this finding was unreasonable, irrational and illogical.

   Particulars

   The Tribunal at [55] (CB240) made this finding in spite of the fact that the main applicant has reported the village elders for assaulting him when he demanded the payment that was due to him and also the main applicant reported to the police the they were the same persons who burned his car.

   4. The Tribunal made jurisdictional error in making a finding of implausibility about the anger of the person whose business was ruined, unreasonably, irrationally and illogically.

   Particulars

   The Tribunal’s finding in [67] (CB242) that the persons whose business was ruined by the main applicant would remain angry after four months that they want to harm or kill the main applicant is implausible was unreasonable, irrational and illogical.

   5. The Tribunal made jurisdictional error in applying a wrong test for well-founded fear.

   Particulars

   The Tribunal accepted that the applicant’s car was stolen and burned in 2000. On the condition that the Tribunal accepted that the main applicant was involved in a dispute with village elders, the Tribunal held at [61] (CB 241) that there was no credible evidence that they were responsible for the theft of his car because it applied a wrong test because the applicant was only required to establish facts on the balance of probability. The events were so closely linked in time and the fact that the car was burned rather than stolen too be used elsewhere or sold means possibility for revenge and these were not looked at by the Tribunal.

   6. The Tribunal made jurisdictional error in how it dealt overall with the credibility of the main applicant.

   Particulars

   Even if the Tribunal did not make jurisdictional error due to each of the errors pointed out in Grounds 1 to 5 when taken individually, when the errors are taken together, due to the way Tribunal made its overall credibility finding, it made jurisdictional error.”

   [Errors in original.]

Consideration

1. Ground one asserts that the Tribunal “misapprehended” the first applicant’s evidence about his “interaction with the police in 2012”, and that the Tribunal’s finding arising from this misapprehension informed its adverse finding about the first applicant’s credibility.

2. The particulars directed attention to [64] (at CB 241) of the Tribunal’s decision record, which is as follows:

   “The applicant gave conflicting accounts of his interactions with the police following the alleged assault in 2012. He told the delegate that an Indian officer told him he would not be assisted because of his ethnicity, but told me at the hearing that the police had told him they would investigate, but he had left the country and did not know whether they had taken any action in response to his complaint. In addition as noted above, DFAT have advised the Fijian police do not generally discriminate against Fijian Indians and I find it unlikely that an Indian police office would have warned the applicant that he would receive no assistance because of his ethnicity.”

3. The applicants’ submission before the Court was that the Tribunal found there was a “conflict” about what the first applicant told the police as between the account given in his protection visa application and his evidence given to the Tribunal.

4. To make good that proposition, the applicants referred to a Statutory Declaration dated 16 September 2014 made by the first applicant which accompanied the protection visa application (CB 91 to CB 94).  In particular, at [22] (CB 94) the first applicant described:

   “The next day Arun called and told me that they have decided to delay the signing of the contract with a view to not proceeding with it. Just two days before I left, Mansa and two others not known to me came to my house and threatened and assaulted me for “spreading lies” about them. I also saw them speaking to my neighbour Paula who is a Fijian. I went to the police station to report the matter but when I went there I saw Timodi at the police station talking to two policemen including the Officer in Charge Jonetani. I reported to the Officer Jonetani he asked another person to take my complaint and told me that he will call me but they did not do anything. When I went to inquire about it an Indian policeman was in the front counter and he said quietly these bastards won’t do anything because you are Indian and you are complaining against those Fijian thugs, but don’t waste your time.”

5. In submissions before the Court, the applicants sought to draw a distinction between [64] (at CB 241) of the Tribunal’s decision record and what the Tribunal stated at [27] (at CB 237).  The argument was that [64] (at CB 241) of the Tribunal’s decision record is set out under the heading of “Consideration of The Applicant’s Claims and Evidence”, and [27] (at CB 237) of the Tribunal’s decision record is set out under the heading of “Claims and Evidence”.  That is, the setting out of the Tribunal’s understanding of the first applicant’s claims and evidence is to be found at [27] of the Tribunal’s decision record (at CB 237).

6. Paragraph 27 of the Tribunal’s decision record is in the following terms:

   “In his submissions to the primary decision maker the applicant said that during a visit to Fiji in August 2012 he had gone to a restaurant with a friend called Arun. While they were there Manasa and Timodi entered, but left quickly after seeing the applicant. The applicant told Arun about the problems he had faced with the men in 2000. As a result Arun and his business partner withdrew from a proposed business deal with Manasa, Timodi and two other men to do some work in a village called Visesi. The following day Manasa and another two men came to the applicant's house and accused him of spreading lies. They assaulted and threatened him. He went to the police to report the incident. He saw Timodi at the police station. The Fijian office (sic) he first spoke to directed him to an Indian officer who told him in a whisper that the police would not help him because he was Indian.”

7. Before the Court, the “fundamental mistake” on the part of the Tribunal was explained as follows.  The submission was that the first applicant’s account was that “when he went to the police station, the officer there directed him to another officer, and they told him that they will contact him”.  He went to the police station the next day and met “the Indian police officer”.

8. The Tribunal’s misunderstanding is said to be that the Tribunal reported the first applicant’s account as being that when the first applicant went to the police station, the officer in charge directed him to an Indian officer on the same day, and the Indian officer said nothing would be done to assist him.

9. It would appear therefore, that the asserted misunderstanding was centred on whether the first applicant said he was referred to the Indian officer on the first occasion he went to the police station, or on the subsequent day.

10. The applicants submitted that the part of the transcript of the Tribunal hearing where the Tribunal discussed the first applicant’s attendance at the police station needs to be understood in light of the fact that the Tribunal had “already” misunderstood the first applicant’s claim in this regard.  That is, the Tribunal approached the hearing “with that frame of mind”.

11. The applicants referred to the following parts of the transcript (T10 line 32 to T11 line 6).

    “[TRIBUNAL MEMBER]: Did you go to the police?

    INTERPRETER: Yes, I did go to the police.

    [Tribunal member]: What did they say?

    INTERPRETER: They reported that report and they told me, "Go to the hospital, get yourself treated and we'll investigate it further."

    [Tribunal member]: What injuries did you have?

    INTERPRETER: He used an iron rod to hit me. My nose, I had - he hit me on the nose and also back of the head. I still have a mark or scar because of that.

    [Tribunal member]: Let me just check something here. The police said they would investigate further but you left after two days. Do you know anything about what happened?

    INTERPRETER: No, I don't know anything about that.”

12. The applicants’ submission was that there is nothing inconsistent between what the first applicant said in his Statutory Declaration and the evidence he gave to the Tribunal at the hearing.

1. That is, the applicants submitted, that the inconsistencies found by the Tribunal were due to a misunderstanding about the following.  One, the “Indian officer” was not the officer conducting the investigation.  Two, the Indian officer did not give the first applicant information about the investigation.  He only “speculated” (he gave an “opinion”) that the police would not help the first applicant.

2. The first applicant’s evidence to the Tribunal at the hearing that he did not know what was happening in the investigation was because the officer in charge of the investigation did not call him.  In this light, what the Indian officer told the first applicant was not an “update” on the progress of the investigation, but simply his opinion, and therefore the first applicant’s answer to the Tribunal’s question was “correct and truthful”.

3. Before the Court, the applicants have attempted to dissect, and selectively construe, some parts of the first applicant’s evidence to the Tribunal, and to seek to persuade the Court that the first applicant was telling the truth.

4. The determination of whether the first applicant told the truth to the Tribunal is not a task for this Court, in this matter.  The immediate question for the Court, raised by ground one, is whether the Tribunal’s analysis reveals any misunderstanding, or misstatement, of the relevant evidence, such that its adverse finding, which contributed to its adverse credibility conclusion, is susceptible to a finding of legal error.  That is, whether the Tribunal misunderstood the evidence relevant to its impugned finding.

5. This properly directs attention to that finding, which is set out at [64] (at CB 241) of the Tribunal’s decision record (see above at [21]).  What the Tribunal found was a conflict in the first applicant’s accounts of his interactions with the police as follows.

6. One, the first applicant “told the delegate” that an Indian officer told him he would not be assisted because of his ethnicity.

7. Two, the first applicant told the Tribunal at the hearing that the police “told him they would investigate”.  He did not know whether they had taken any action in response to his complaint because he had left the country.

8. Whether the first applicant visited the police station on one or two occasions, whether he spoke to the Indian officer on the first or second occasion, the identity of the officer who was conducting the investigation, and whether the Indian officer gave him “information” or was “speculating”, were not elements on which the Tribunal relied to find the first applicant had given “conflicting accounts”.

9. What the Tribunal relied on is clearly as set out at [37] and [38] above in this judgment.

10. I pause to note that in its decision record (at [64] at CB 241), the Tribunal referred to what the first applicant “told” the delegate.  What the first applicant relevantly told the delegate is set out in the delegate’s decision record (at CB 162.1):

    “…The applicant then referred to how Manasa had gone and beaten him after which he went to the police station but did not get any help from them. The applicant said the second time he met Manasa was the next day after 24/8/2012.”

11. However, given the matters referred to by the Tribunal at [64] (at CB 241) of its decision record, the Tribunal’s use of the word “told” is a more general description of what the first applicant had put before the delegate in his Statutory Declaration.  In any event, before the Court, the parties ultimately argued this point with reference to the Statutory Declaration and the Tribunal hearing, and not what the first applicant “told” the delegate orally at the interview. 

12. With reference to [37] above, the first applicant did relevantly state in his Statutory Declaration (at [22] at CB 94), amongst other things, that the Indian officer told him that the police would not assist him “because you are Indian”.

13. That is, as the Tribunal stated, an Indian officer told the first applicant he would not be assisted because of his ethnicity.  It was reasonably open to the Tribunal to understand this part of the first applicant’s Statutory Declaration in this way.

14. For current purposes, it is important to note that the Tribunal did not rely on the other elements in the first applicant’s account of the interaction with the police to find inconsistency in his account.

15. At [64] (at CB 241) the Tribunal found that what the first applicant relevantly told the delegate, that is, in relation to whether he would be assisted by the police, was in contrast to the evidence he gave at the Tribunal hearing on this question.

16. As set out above, at the Tribunal hearing the first applicant’s evidence was that the police told him to go to the hospital (there was no reference to any hospital in the Statutory Declaration) and that they would investigate.  He did not know what had happened in the investigation because he had left the country.

17. Given what is in the transcript of the Tribunal hearing before the Court, it was reasonably open to the Tribunal to understand that this was the evidence the first applicant gave to it on the matter of whether the police assisted, or would assist him, in relation to the alleged assault in 2012. This was also the view of the first applicant’s evidence as expressed by the Tribunal at [29] (at CB 237) of its decision record.

18. The Tribunal’s reasoning is as follows.  The first applicant “told” the delegate (in the Statutory Declaration) that an Indian police officer told him he would not be assisted.  This is in contrast to his evidence to the Tribunal at the hearing that the police told him that they would investigate.  That is the extent of the Tribunal’s reliance on the evidence of what was in the first applicant’s Statutory Declaration and his relevant oral evidence to the Tribunal.

19. I find there was no “misunderstanding” of this aspect of the first applicant’s two accounts.  The Tribunal’s finding at [64] (at CB 241) of its decision record was reasonably open to it on the material before it.  Ground one is not made out.

20. Ground three asserts the finding by the Tribunal that there was “no plausible reason for the village elders to pursue the first applicant” was “unreasonable, irrational and illogical”.

21. The particulars and written submissions directed attention to [55] (at CB 240) of the Tribunal’s decision record, which is as follows:

    “According to his evidence, the applicant did not take any action to obtain payment from the men after he was assaulted. While he claims to have reported the assault to the police, the men were not arrested or charged and the applicant did not pursue the matter further. In these circumstances, even if I accept that he was assaulted when he demanded payment, I can think of no plausible reason why the village leaders would have wanted to pursue or harm him.”

22. The background to this paragraph is that the first applicant claimed to have been assaulted in 2000 after demanding money which was owed to him as part of a business contract with certain village elders.

23. The essence of the applicants’ argument is that the Tribunal found there was “no plausible reason” for the village elders to pursue, or harm, the first applicant despite the fact that he had reported the village elders for assaulting him. Further, the Tribunal made this finding despite the first applicant having reported the village elders to the police for burning his car.

24. The applicants argue now that it is “perfectly plausible” that the first  applicant would have been of adverse interest to the village elders, given that he had complained to the police about their assault of him, their refusal to pay him the debt they owed, and for burning his car.

25. The applicants referred to W148/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 (“W148/OOA”) (per Lee J) at [21]:

    “A circumstance is “implausible” if it is beyond human experience of possible occurrences, that is to say, inherently unlikely. The Tribunal had no material before it to be able to say that in Iran it was inherently unlikely that the appellant would be taken to hospital for treatment from a place of detention or could escape from custody whilst a patient in such a hospital. As Tamberlin and R D Nicholson JJ stated, the Tribunal engaged in speculation.”

    (I note, respectfully, that Lee J was in the minority in that case).

26. The applicants argued that if a decision-maker states that “something is implausible”, this has the consequence of “ruling out any other alternatives” (see further below).

27. The applicants’ argument focused on certain evidence before the Tribunal and the Tribunal’s finding that there “was no plausible reason” as to why the village elders might want to pursue, or harm, the first applicant.

28. However, the applicants’ argument did not focus on all of the evidence on which the Tribunal relied to make its finding.  Nor did it address all of the Tribunal’s relevant reasoning which explained the impugned finding.

29. The Tribunal’s finding has a temporal focus.  Properly, the Tribunal focused on the likelihood of harm to the first applicant in the reasonably foreseeable future (Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 (“Chan Yee Kin”) and Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559).

30. On any plain, let alone a fair, reading, the Tribunal’s decision record reveals the following reasoning.  The Tribunal proceeded on the basis that the first applicant “might have been assaulted in 2000” when he demanded payment of the debt from the village elders ([54] at CB 240).

31. In this light, and focusing on the evidence of what occurred after the alleged assault, and on the matter of the reasonably foreseeable future, the Tribunal reasoned that on the first applicant’s own evidence, the first applicant did not pursue the matter of the debt with the village elders, and the police did not arrest or charge them over any of the incidents which the first applicant had referred to in his evidence ([55] at CB 240).

32. The Tribunal’s reasons were that after the assault, the first applicant did nothing, nor did the police do anything, to invite the continued interest of the village elders.  That is, the first applicant had been assaulted in the past, but on the evidence, that is where the village elders left the matter.

33. As the Minister submitted, it cannot be said there was “an absence of logical connection” in the Tribunal’s chain of reasoning (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (“SZMDS”)). 

34. Nor is it an instance of “extreme” illogicality which must be shown if the ground is to be made out (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109; (2016) 154 ALD 221) (“ARG15”). In short, the Tribunal’s “reason” as to why the village elders would not continue to wish to harm the first applicant, was logically connected to the evidence (of the first applicant himself), that he and the police had not done anything to invite their continued interest in harming him.  The Tribunal’s finding was reasonably open to it on what was before it.

35. As set out above, before the Court, the applicants argued that the Tribunal’s finding was “not possible”, and the use of the words “no plausible reason” (with reference to W148/00A) meant no other alternative reason, or finding, was available.

36. Before the Court, the applicants, in effect, argued that the evidence points to a different finding that should have been made by the Tribunal.  That is, that the village elders wanted to harm the first applicant in the future.

37. It is the case that, on all of the material before it, the Tribunal could have made a different finding.  However, the Tribunal’s finding was probative of the evidence before it and was open to the Tribunal for the reasons it gave.  No illogicality, unreasonableness or irrationality is made out simply because the Tribunal took one view as opposed to the applicants’ preferred view of the evidence (SZMDS at [131] – [133]). In all, ground three seeks impermissible merits review and is not made out.

38. Ground four asserts the same error of law as in ground three but with reference to a different finding made by the Tribunal.  Ground four directs attention to [67] (at CB 242) of the Tribunal’s decision record, which is as follows:

    “While it is perhaps plausible the applicant might have been assaulted by men who believed that he had ruined a business deal they were involved in in the immediate aftermath of that event, I find the claim that they would have remained so angry that they wanted to harm or even kill him four months later implausible. I also find the claim that Manasa identified himself to the applicant's mother-in-law and threatened to kill him, then left and never returned implausible. If Manasa had been determined to harm the applicant I do not believe he would have identified himself and announced his intentions to the applicant's mother-in law, thus warning the applicant of his intentions. Furthermore, if Manasa had gone to the lengths of locating the applicant and travelling some two hours with the intention of harming the applicant, it is not plausible that he would have taken no further action to carry out his threat. In reaching this conclusion I acknowledge the applicant's evidence that he left his mother-in-law's house and stayed with a friend after learning that his life had been threatened. However, there is no suggestion that Manasa and his friend returned to his mother-in-law's house after his first visit which they would surely have done if they had been told that the applicant was staying there and were determined to harm him.”

    [Emphasis added.]

39. The complaint in ground four relates to the claimed incident in 2013 (see above at [7]). It is that the Tribunal’s finding that it was “implausible” that those whose business was “ruined” by the first applicant would remain “angry” after four months, such that they would want to harm or kill the first applicant, was “unreasonable, irrational and illogical”.

40. In essence, the thrust of the applicants’ complaint before the Court had two interrelated elements.  One, the Tribunal’s finding lacked an explanation that was probative of the evidence, as to why it was “implausible” that the businessmen would remain angry at the first applicant after four months.

41. Two, that it is “within human experience” (as was submitted by the applicants’ counsel) that such people would remain angry after such a short period of four months, as opposed to “say two or three years”.  The applicants argued that the “men” (the village elders) could have been angrier than the Tribunal thought, or appreciated, and it is possible that they could have remained angry for four months.

42. The applicants’ argument focused on that part of [67] (a CB 242) of the Tribunal’s decision record as emphasised above (at [69]).  If that is all the Tribunal had said on this matter, then the applicants’ ground would have some strength.

43. However, the applicants’ argument, again, is selective and too narrowly focused.  What is impugned at [67] (at CB 242) must be read in context of the remainder of [67] (at CB 242), and the entirety of the Tribunal’s reasoning.

44. It is to be remembered that the first applicant claimed to have been assaulted in 2000 and 2012 because of certain events in those years (see above at [4] – [6]).  Ground one was focused on the first applicant’s interaction with police in 2012, as those interactions related to alleged assaults in 2000 and 2012. Ground three was focused on the events of 2000. That remains as relevant background to ground four.

45. Ground four is focused on subsequent claimed events in 2013.  The first applicant had returned to Fiji in December 2013 (one of a number of times he returned to Fiji since first coming to Australia in 2001 as a visitor (see CB 15)).  The first applicant claimed that on return to Fiji, a certain village elder, “Manasa”, and other village elders, pursued him to his mother-in-law’s house where they threatened her.

46. The immediately impugned finding at [67] (at CB 242) of the Tribunal’s decision record must be read in context of earlier expressed findings by the Tribunal.  That is, the Tribunal found that the first applicant was not involved in a dispute with village elders in 2000, nor that he was assaulted by Manasa and other village elders in 2012  ([63] at CB 241).

47. In light of these findings, the Tribunal also did not accept that the claimed events in 2013 had occurred ([66] at CB 242).

48. The claimed events in 2013 were not presented by the first applicant as having occurred in a vacuum.  The first applicant’s account of past events giving rise to his claimed fear of harm originated in the claimed events of 2000, and as reignited in 2012.  What the first applicant said occurred in 2013 is given context, and meaning, by the earlier claimed events.

49. It was not illogical, unreasonable or irrational of the Tribunal to reason that in these circumstances, the claimed events in 2013 did not occur because the antecedent events of 2000 and 2012, which were said by the first applicant to have given rise to the events of 2013, did not occur.

50. However, the Tribunal also considered the claimed events of 2013 in the alternative, and on the basis that the earlier events had occurred.  In this context, the Tribunal found that the first applicant’s account of the events in 2013 was “lacking in credibility” ([66] at CB 242).

51. The impugned finding at the beginning of [67] (at CB 242) was only a part of the Tribunal’s explanation for its finding that the first applicant’s account of the claimed events in 2013 lacked credibility.  That explanation cannot be read in isolation of what follows at [67] and [68] (at CB 242) of the Tribunal’s decision record.

52. The Tribunal found it was “implausible” that Manasa identified himself to the first applicant’s mother-in-law at her house, threatened to kill the first applicant, and then “never returned”.  The Tribunal reasoned that if Manasa had been determined to harm the first applicant, he would not have identified himself and announced his intention to commit murder.

53. The Tribunal further explained ([67] at CB 242):

    “…Furthermore, if Manasa had gone to the lengths of locating the applicant and travelling some two hours with the intention of harming the applicant, it is not plausible that he would have taken no further action to carry out his threat. In reaching this conclusion I acknowledge the applicant's evidence that he left his mother-in-law's house and stayed with a friend after learning that his life had been threatened. However, there is no suggestion that Manasa and his friend returned to his mother-in-law's house after his first visit which they would surely have done if they had been told that the applicant was staying there and were determined to harm him.”

54. Even further, the Tribunal found that the first applicant had given “differing accounts” on how “Manasa and the others” came to know he was at his mother-in-law’s house ([68] at CB 242).  This finding is probative of the first applicant’s evidence at the Tribunal hearing. (See T14 lines 14 – 34, and then compare with T16 line 35 to T17 line 37).

55. This finding was reasonably open to the Tribunal on what was before it.  The applicants now urge that, in effect, the first applicant’s account of relevant events was credible and the Tribunal should have so found.  The Tribunal was not obliged to uncritically accept the applicant’s account (Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1 at 451 per Beaumont J). The Tribunal’s finding, and its reasoning that informed it, is not unreasonable, illogical, or irrational, simply because the applicant urges that another finding should have been made. Ground four is not made out.

56. Ground five asserts that the Tribunal fell into jurisdictional error because it applied the wrong test in assessing “a well-founded fear”.  The particulars directed attention to [61] (at CB 241) of the Tribunal’s decision record which is as follows:

    “In reaching this conclusion I have noted the applicant's claim that his car was stolen and burned by the village leaders shortly after he was assaulted in 2000. I accept that the applicant's car was stolen and burned in September 2000. However, even if I accept that the applicant was involved in a dispute with village leaders in 2000 (which I do not), there is no credible evidence before me which suggests that they were responsible for the theft of his car.”

1. The ground was explained as follows.  The Tribunal accepted that the first applicant’s car was stolen and burnt in September 2000.  The first applicant had claimed that this was done by the village elders.  The Tribunal reasoned that even if the applicant had been involved in a dispute with village elders in 2000 (which it otherwise did not accept), “there is no credible evidence before” the Tribunal “which suggests that they were responsible for the theft of his car” ([61] at CB 241).

2. The transcript of the Tribunal hearing relevantly reveals (T4 line 14 to T5 line 5):

   “[TRIBUNAL MEMBER]: Sorry, that wasn't an entirely clear question. Did you have any further problems with them in 2000 because of the bills?

   INTERPRETER: In September 2000 they burned my car.

   [TRIBUNAL MEMBER]: How do you know it was them?

   INTERPRETER: I'm sure it was these people because I don't have any other enemies there.

   [TRIBUNAL MEMBER]: But it doesn't necessarily mean it's your enemy if they steal your car; they could just be a thief. Did you want to comment on that?

   INTERPRETER: My thinking is that it's only those people who have done it.

   [TRIBUNAL MEMBER]: I understand you made a report to the police about the car.

   INTERPRETER: Yes.

   [TRIBUNAL MEMBER]: But you weren't able to identify the people. You might have been speculating that this is who it was but you had no actual way of identifying them as the thieves.

   INTERPRETER: Yes, I didn't have any proof.

   [TRIBUNAL MEMBER]: Because you've previously said that somebody had actually observed the people who burnt your car. I'm assuming that means that they observed somebody burning the car who was an indigenous Fijian but they could not identify them by name or say who they were. Is that correct?

   INTERPRETER: That's correct.

   [TRIBUNAL MEMBER]: When you complained that the police hadn't done anything further, there doesn't seem to have been a lot more they could have done because nobody had identified the culprits.

   INTERPRETER: That's correct.”

3. The applicants now assert that the Tribunal’s error was that the first applicant was only required to establish the relevant facts on “the balance of probability”.

4. In essence, the complaint is that the theft, and burning, of the car were “so closely linked in time” that the “strong possibility for revenge” was not considered by the Tribunal ([36] of the applicants’ written submissions of 27 February 2018).  The applicants’ argument was that the Tribunal fell into legal error by not assessing this claim on the “real chance” test.  That is, the Tribunal considered the matter on the basis of “probability”, rather than “possibility” ([37] of the applicants’ written submissions of 27 February 2018).

5. Although it is by now trite to say, it is important, given the applicants’ explanation for their ground, to note that, to be “well founded”, a fear of “persecution” requires a “real chance of being persecuted” (Chan Yee Kin per Mason CJ at [12] (and see further Dawson and McHugh JJ) and Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 at 570 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).

6. In this light, given the use of the words “not-plausible” elsewhere in the Tribunal’s decision record (albeit other than in [61]), it is important to note that the term “well-founded”, “must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her to have no foundation” (ChanYee Kin per Dawson J at 397).

7. However, and again noting that the thrust of the applicants’ ground five is focused on one finding of fact by the Tribunal, there is a distinction between the making of findings of fact, and then the application of the “real chance” test.

8. As Kirby J said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 294:

   “…The process of determination involves the delegate's making findings as to primary facts, identifying the inferences which may properly be drawn from the primary facts, as so found, and then applying those facts and inferences to an assessment of the "real chances" affecting the treatment of the applicant if he or she were to be returned to [the country of claimed persecution].”

   [Emphasis added.]

9. The first applicant made certain claims as to past events.  It was for the first applicant to provide evidence and arguments to the Tribunal in sufficient detail to enable the Tribunal to establish the relevant facts (Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214 (“Lay Lat”) at [76]).

10. In the current case, the applicants’ submissions do not proceed from an understanding of the “process” described by Kirby J in Wu Shan Liang (as outlined above). What the applicants seek to impugn through ground five at [61] (at CB 242) of the Tribunal’s decision record, is plainly, a finding of fact made by the Tribunal.

11. The relevant “test” therefore, in relation to such a finding of fact, is whether it was reasonably open to the Tribunal to make such a finding of fact on what was before it, and whether the finding was probative of, and explained with reference to, that material.

12. That finding, specifically, was that “there is no credible evidence before me which suggests that they [the village elders] were responsible for the theft of his car” ([61] at CB 240).

13. The first applicant’s own evidence to the Tribunal at the hearing on this matter is set out above at [89].

14. Given the first applicant’s own evidence, it was reasonably open to the Tribunal to make the finding at [61] (at CB 241) of its decision record. How the Tribunal then applied this finding of fact to an assessment of the “real chance” of persecution if the first applicant were to return to Fiji was not the subject of submissions in relation to ground five. In any event, no legal error is revealed in how the Tribunal approached this latter task. Ground five is not made out.

15. Ground six asserts the Tribunal fell into jurisdictional error in how it dealt “overall” with the credibility of the first applicant.

16. The particulars explain that even if the Tribunal did not “make jurisdictional error” when each of the matters at “grounds 1 to 5” (now excluding the matter in ground two as it was not pressed) were looked at individually, when the “errors” are taken together, jurisdictional error in the Tribunal’s approach to the question of the first applicant’s credibility is revealed.

17. That is, the applicants’ assert that when the Tribunal’s findings which informed its adverse view and finding in relation to the first applicant’s credibility are considered on an “aggregate” basis, the Tribunal’s finding as to the first applicant’s credibility was not open to it.

18. The applicants’ explanation of this ground before the Court was that even if the Court found that the Tribunal had not fallen into jurisdictional error in each of the individual matters raised in each of the other grounds of the application, nonetheless, when “the errors are taken together” then jurisdictional error is revealed in relation to the credibility finding.

19. It must be said that the applicants’ explanation contained, at least, one logical flaw, or to put it another way, proceeds from a proposition not available to them.

20. That is, the applicants’ argument really assumes that the “errors” asserted in grounds one, three, four, and five have been made out.  The argument that even if they are not made out, notwithstanding, those “errors” (which are not made out given what is set out above) are still susceptible to some “aggregation”. However, and in short, if the errors do not exist, as set out above, the basis for the “aggregation” argument is not available.

21. In any event, as the Minister submitted, the critical question is whether the Tribunal’s finding as to the credibility of the first applicant was reasonably open on what was before the Tribunal.  That is, whether the credibility finding has a logical connection to the evidence (Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547). This, in turn, depends on whether each of the individual findings which informed the Tribunal’s adverse credibility finding were also each reasonably open to it.

22. In the current case, as all of the matters raised in grounds one, three, four, and five were reasonably open to the Tribunal for the reasons set out above, there is therefore no jurisdictional error on an “aggregate” consideration (whatever that may mean) of the Tribunal’s credibility finding.

23. Although a copy of the judgment in ARG15 was handed up by the applicants at the hearing, neither party made reference to this decision in their submissions before the Court.  In particular, the reference there to the principles to be drawn from CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 (“CQG15”) (see ARG15 at [83], and in particular [83](d)):

    “…(d) without derogating from what is said above regarding the danger of relying too heavily on “fixed categories or formulas” (which includes the danger of blindly repeating McHugh J’s comments in Ex parte Dumairajasingham), adverse credibility findings might involve jurisdictional error on recognised grounds such as:

    (i)  failure to afford procedural fairness;

    (ii) reaching a finding without a logical or probative basis;

    (iii) unreasonableness; and/or

    (iv) other grounds as discussed by Flick J in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; 233 FCR 451 at [20]-[21] and in SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31], as referred to approvingly by the Full Court in CQG15 at [40]-[42].”

24. In my respectful view, this provides direction to this Court as to the approach to be taken in judicial review of cases involving an adverse credibility finding by the Tribunal (amongst other things).

25. At best, given their submissions in relation to grounds one, three, four, and five, the applicants’ complaint appears to rely on the proposition that somehow, the Tribunal’s adverse credibility finding, and each of the individual matters as viewed on an “aggregate” basis, was reached lacking a logical probative basis, or was unreasonable.

26. Plainly, given CQG15 and ARG15, the Tribunal’s finding on the first applicant’s credibility is not immune from review for jurisdictional error. I note (i) and (ii) at [83](d) of ARG15.

27. However, neither of these “grounds” are available in the current circumstances.  Each of the Tribunal’s findings which informed the adverse credibility finding on the first applicant (even beyond the matters raised by the applicants now), were reasonably open, and had a logical connection to the material before the Tribunal.

28. In their submissions, and illustrative of the core of their argument, the applicants argued that: “when the Court considers two or more attacks on the credibility finding the Court may find that those errors when taken together is serious enough to affect the whole of the decision…” ([5] of the applicants’ written submissions of 6 April 2018).

29. Jurisdictional error is not revealed simply because an applicant has made “two or more attacks” on the Tribunal’s adverse credibility finding.  Those “attacks”, if not made out, provide no basis on which to subsequently find jurisdictional error on an “aggregate” basis.  Ground six is not made out.

Conclusion

1. The grounds of the further amended application do not reveal jurisdictional error.  It is therefore appropriate to dismiss the application.  I will make the appropriate order. 

I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 23 October 2018