CJS17 v Minister for Immigration
[2019] FCCA 440
•21 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CJS17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 440 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant for the most part believed but certain claims rejected and other fears found not to be well-founded – various errors by the Authority alleged – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.425, 473DC, 473DD, 473DE |
| Cases cited: ABA15 v Minister for Immigration [2016] FCA 1419 ADX17 v Minister for Immigration [2018] FCA 1967 ARG15 v Minister for Immigration (2016) 250 FCR 109 Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 CQG15 v Minister for Immigration [2016] FCAFC 146 DAO16 v Minister for Immigration (2018) 353 ALR 641 DGZ16 v Minister for Immigration [2018] FCAFC 12 Minister for Immigration v CRY16 [2017] FCAFC 210 Minister for Immigration v Li (2013) 249 CLR 332 Minister for Immigration v Rajalingam (1999) 93 FCR 220 Minister for Immigration v Singh (2014) 231 FCR 437 Minister for Immigration v SZMDS (2010) 240 CLR 611 Minister for Immigration v SZTQS [2015] FCA 1069 NAHI v Minister for Immigration [2004] FCAFC 10 Plaintiff M174/2016 v Minister for Immigration & Anor (2018) 353 ALR 600 Rawson Finances Pty Ltd v Federal Commissioner of Taxation (2013) 93 ATR 775 Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 Shi v Migration Agents Registration Authority (2008) 235 CLR 286 SZTAP v Minister for Immigration (2015) 238 FCR 404 Te Puke v Minister for Immigration (2015) 230 FCR 499 |
| Applicant: | CJS17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1718 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 26 February 2019 |
| Delivered at: | Sydney |
| Delivered on: | 21 March 2019 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr D Delany |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application as amended on 20 February 2019 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1718 of 2017
| CJS17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 12 May 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The applicant arrived in Australia at Cocos (Keeling) Islands as an irregular maritime arrival on 14 November 2012.[1]
[1] Relevant Documents (RD) 117
The applicant lodged an application for a Safe Haven Enterprise Visa (SHEV) on 26 May 2016.
Applicant’s claims
The applicant is a citizen of Sri Lanka of Tamil ethnicity and Hindu religion. He worked in a government position until May 2012. He lived in the same house from where he was born until he was internally displaced by the civil war with his wife, two children and mother-in-law.[2]
[2] RD 135-136 at [5]-[8]
In 2008 the applicant encountered members of a Special Task Force (STF) in his garden. They took him and detained him for one day.
On 13 November 2008 the applicant’s older sister’s husband went missing on the way from his house to local shops. The applicant helped his sister attempt to find her husband for two to three years. In particular, they visited the Tamil Makkal Viduthalai Pulikal (TMVP) camp to enquire about her husband’s whereabouts. They visited TMVP and STF camps numerous times. They filed a missing persons report with the police on 1 April 2009. Their efforts were fruitless.[3]
[3] RD 136-137 at [10]-[17]
The applicant claimed that on 5 April 2012, six men in plain clothes came to his house. He was asked to go with them to be investigated. He was dragged to the back of the house and bashed, however his wife and neighbours made a commotion and the men left. The applicant recognised one man as a member of the TMVP and he believes that the others were members of the Criminal Investigation Department (CID). He made a complaint about the incident to the police on 16 April 2012 and the police told him to inform them if anything happened again. The police advised him to relocate and he and his family relocated to a rented house in another part of his local town. The applicant claims he also stopped going to work in case the men came looking for him.
Around 25 April 2012 a colleague of the applicant at work told him that plain clothed men came to his workplace looking for him.[4]
[4] RD 137 at [21]
The applicant and his sister filed further reports about his missing brother-in-law in 2012. He became scared to stay in Sri Lanka and attempted to go to Saudi Arabia or Qatar. The applicant was cheated by a migration agent and lost his money and his passport. He kept himself confined to his home that he was renting until his father made arrangements for him to come to Australia by boat.[5]
[5] RD 137-138 at [22]-[25]
The applicant claimed that he was told of further visits to his home in 2012.[6]
[6] RD 138 at [27]
The SHEV application was rejected by the delegate on 6 January 2017[7] and was subsequently referred to the Authority for review.
[7] RD 220-236
In its decision, the Authority noted at [4][8] that it had regard to new information, being the most recent Department of Foreign Affairs and Trade (DFAT) country report for Sri Lanka published on 24 January 2017, after the decision of the delegate. The Authority was satisfied that there were exceptional circumstances to justify consideration of that new information.
[8] Relevant Documents (RD) 252
The Authority accepted the applicant’s claims concerning the disappearance of his brother-in-law and his efforts with his sister to find him.
At [15][9] the Authority did not accept the applicant’s claims concerning the visit by six men to his home. The Authority did not find it plausible that the men would be put off by the applicant’s wife making a commotion, because of the applicant’s delay in reporting the incident to the police and because of inconsistencies in the claimed dates of the incident.
[9] RD 255
The Authority accepted that the applicant moved his family into a rented house but did not accept the asserted reason for that move.[10] The Authority accepted that the applicant attempted to go to Saudi Arabia or Qatar but was cheated.[11] It did not accept the applicant’s claims concerning ongoing visits to his home in 2012.[12] The Authority considered the applicant’s position as a Tamil male from a former Liberation Tigers of Tamil Eelam (LTTE) controlled area but concluded that there was not a real chance of the applicant being harmed for that reason.[13] Likewise, the Authority was not satisfied that the incident with the STF in 2008 gave rise to a real chance or risk of harm.[14]
[10] RD 256 at [16
[11] RD 256 at [18]
[12] RD 256-257 at [19]
[13] RD 257-258 at [21]-[25]
[14] RD 258 at [26]
The Authority considered whether the applicant would suffer harm as a returning Tamil asylum seeker who departed Sri Lanka illegally. The Authority found that the applicant would be detained at the airport on return but that he would only spend up to 24 hours in custody at the airport and then conceivably spend a further period in prison pending bail, but noted that the applicant’s family would be able to assist him in acting as surety or guarantor.[15] The Authority was not satisfied that there was a real chance of the applicant being mistreated during investigation or detention and that it found the Sri Lankan Immigrants and Emigrants Act is a non discriminatory law of general application.
[15] RD 259
The current proceedings
These proceedings began with a show cause application filed on 2 June 2017. The applicant filed an amended application on 20 February 2019. That was filed significantly late and after the Minister had filed his written submissions. Nevertheless, at the trial on 26 February 2019 I granted the applicant leave to rely upon the amended application. The grounds in it are:
1.The change of government and the new information of the country information the Immigration Assessment Authority's (hereinafter referred as "IAA") decision has become legally unreasonable. (See Australian Retailers Association v Reserve Bank 2005 FCA 1707 at [457]-[459]).
Particulars
a)The delegate's decision was dated 6 January 2017 and the political situation was drastically changed on 26 October 2018 and the return of the Mahinda Rajapaksa which was not taken to consideration by the delegate. Rajapaksa's administration was accused of serious human rights violations during the final stages of the conflict between the government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE). It is a matter of record that the Sri Lankan military indiscriminately attacked civilians, hospitals and schools, executed prisoners and interned thousands of Tamils with widespread use of torture and sexual violence. Thousands of Tamils and other minorities with links to the Tigers were also forcibly disappeared. For a beleaguered Tamil population in the north and east of the country, the concern will be that history could repeat itself with the threat of further discrimination and violence looming. With no real accountability processes for previous crimes committed, Rajapaksa's return could see Tamil activists and perceived dissidents targeted once again.
b)The new Report of the UN Rapporteur Ben Emmerson QC dated 23 July 2018 (Emmerson Report) in support of the applicants' protection claims in Australia.
c) According to the 2018 Emerson report, Tamils also experience pervasive and insidious forms of stigmatisation.” at [para 55] of the said report.
d)The Special Rapporteur was told about the surveillance of Tamil civil society, including women's groups and of fear of reporting alleged human rights violations and sexual violence to the authorities. [para 55] of the said report.
e)The Special Rapporteur said "When viewed side by side with the figures that show that Tamils have been, and still are, overwhelmingly and disproportionately affected by the operation of the Act (PTA), a figure emerges of wide spread institutional stigmatisation of a single community. [para 56] of the said report.
f)The Special Rapporteur said in his conclusion "The Tamil community remains stigmatised and disfranchised, while the trust of other minority communities is being steadily eroded.
g)In 2017, the Supreme Court of Sri Lanka ordered the State to pay over Rs. 2 million each to the parents of two Tamil youths tortured and killed in police custody by Batticaloa police, following the filing of a Fundamental Rights case. In this case the petitioners cited the former OIC of Batticaloa Police and four others as respondents. The petitioners stated that their deceased sons' arrest, detention are wrongful and illegal and that they were subjected to torture and killed that their fundamental rights guaranteed by Article 11, 13(1), 13(4) and 17 of the Constitution was violated by the respondents. The appellant is also from Batticaloa in Sri Lanka.
h)According the above new information as there is a material change in the applicants' circumstances which occurred after the Minister made a decision under s 65 of the Migration Act 1958 as the significant and rapidly deteriorating conditions emerging in the referred applicants' country of claimed of protection, such as a change in the political or security landscape.
i)There is a material change in the applicants' circumstances which occurred after the Minister made a decision under s 65 of the Migration Act 1958 as the significant and rapidly deteriorating conditions emerging in the referred applicants' country of claimed of protection, such as a change in the political or security landscape. at [915] of the Explanatory Memorandum.
2.The IAA referred in its finding at [para 32] without evidence that the impecunious applicant's family members could act as guarantors or pay the fines to enable the applicant's release which is an unfounded assumption and is a jurisdictional error.
Particulars
a)Mortimer J observed in ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [41] (in considering whether there had been a denial of procedural fairness in that case), “the circumstances of families are many and varied, and no stereotypical assumptions can be made about whether a family member is able (and willing) to provide assistance” of a substantial kind.
b)Applicant's father died on 23 November 2017. The applicant's elder brother … faced a train accident on 3 November 2005 where both of his legs were severed and as a result he became totally disabled and have no income. [AB 220-221]. Applicant's elder sister … was born blind. Hence the applicant has no way to recourse to financial assistance from his family members.
c)The findings and the conclusion reached by the IAA at [para 25 and 33] involved an unfounded factual assumption about the nature and extent of support that the applicant was able to obtain from his family members in Sri Lanka. (See DHK16 v Minister for immigration and Border Protection [2018] FCA 1353).
3. The IAA made a jurisdictional error by failing to consider inviting or failing to invite comment from the Applicant as to the new Department of Foreign Affairs and Trade Report dated 24 January 2017 (2017 DFAT Report) before relying upon that document in determining the review.
Particulars
a)IAA said in [para 4] "In making this decision I have had regard to new information, specifically new country information regarding Tamils and Sri Lankan returnees, from the most recent Department of Foreign Affairs and Trade (DFAT) country report for Sri Lanka which was published on 24 January 2017. This report was published after the delegate's decision and the delegate relied on 18 December 2015 version of the report. I am satisfied there are exceptional circumstances to justify considering this new information."
b)the IAA considered the said 2017 DFAT Report under s.473DC(1) of the Migration Act 1958 (Cth) (Act).
c)The IAA relied upon the 2017 DFAT Report in reaching its decision.
d)It was legally unreasonable for the IAA to fail to consider exercising s.473DC(1) of the Act so as to invite comment form the Applicant (See: Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 at [82]).
e) In any event, it was legally unreasonable for the IAA not so to exercise s.473DC(1) of the Act (See: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [21]).
4. found that there were inconsistencies and implausibility in parts of the applicant’s claims. In the circumstances, in relations to the claims which the IAA did not accept, it was necessary for the IAA to take into account the possibility that those events claims by the applicant occurred: see Minister v Rajalingam (1999) 93 FCR 220. The IAA fell into jurisdictional error in making some of those findings.
Particulars
a) Assessing the credibility of past and present events is an important aspect of assessing a claim, because the referred-applicant was already being subjected to persecution and torture and serious harm makes it clear that this will be a serious indication of a well-founded fear of persecution or real risk of suffering serious harm, unless there is good reason to believe that such ill-treatment will not be repeated. The available overwhelming country information of Sri Lanka human rights situation does not support such torture and illtreatment will not be repeated by his persecutors to the applicant. This was a jurisdictional error.
b)The IAA reviewer Radhikar Kumar failed to appreciate the level of proof needed to establish the material facts is relatively low one - a reasonable degree of likelihood - and must be borne in mind throughout the process. It is low because of what is potentially at stake - the individual's life or liberty - because asylum seekers are unlikely to be able to compile and carry dossiers of evidence out of the country of persecution.
c)The IAA reviewer Radhikumar should have found that the delegate's assessment indicates that he needs to be 'certain', 'convinced', or even 'satisfied' of the truth of the account - that sets too high a standard of proof. See in reviewing material facts, the Court of Appeal judgement in Karanakaran v Secretary of State for the Home Department [2000] EWCA Civ11 (25 January 2000).
d) The IAA reviewer Radhika Kumar should have considered a claimant’s testimony may include lies or exaggerations for a variety of reasons, not all of which need reflect adversely on other areas. Depending on their relevance to the totality of the evidence, falsehood will be troubling but do not mean that everything the claimant has said must be dismissed as unreliable: MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49 (24 November 2010).
(errors in original)
The amended application is supported by an affidavit filed with it, which I received to the extent that it makes uncontentious allegations of fact and otherwise which I treated as a submission.
I also have before me as evidence the book of relevant documents filed on 3 July 2017 and a supplementary book of relevant documents filed on 19 July 2017.
I invited oral submissions from the applicant at the trial. I explained to him that I could not deal with his claim of changed circumstances in Sri Lanka following the decision of the Authority. The applicant then focused his attention on the Authority’s rejection of his claim concerning the visit to his home by six plain clothed men (whom the applicant says he still fears) and the Authority decision concerning the risk to the applicant in detention on return to Sri Lanka, with particular regard to the applicant’s claim of the impecuniosity of his family, and the bearing this would have on his ability to be released.
I prefer the Minister’s submissions in relation to the grounds of review advanced as amended.
Ground 1
This ground may be interpreted that the Authority decision has “become” legally unreasonable, by reason of two matters:
a)first, the change in political situation in Sri Lanka which occurred on 26 October 2018; and
b)secondly, the report of UN Rapporteur Ben Emmerson QC dated 23 July 2018.
I reject that contention. Illogicality or irrationality in administrative reasoning sufficient to give rise to jurisdictional error has been said to mean the decision is one at which no rational or logical decision maker could have arrived on the same evidence.[16] A finding can be considered to be legally unreasonable if it appears to be arbitrary, capricious, without common sense or plainly unjust.[17] A decision may also be legally unreasonable if it lacks an evident and intelligible justification.[18]
[16] Minister for Immigration v SZMDS (2010) 240 CLR 611, 647-648 at [130]
[17] Te Puke v Minister for Immigration (2015) 230 FCR 499 at [101], citing Minister for Immigration v Li (2013) 249 CLR 332 at [28], [110] and Minister for Immigration v Singh (2014) 231 FCR 437 at [44]
[18] Li at [76]
In principle, there is nothing preventing a party from relying upon expert evidence as to the position that existed when a decision maker made a decision, with a view to determining whether the decision maker’s original decision was legally unreasonable.[19] The correctness of the Authority’s decision falls to be judged on the basis of the facts that prevailed, and the material available to the Authority, at the time the decision was made.[20]
[19] Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446, 566 at [457]-[459]
[20] and see, eg Shi v Migration Agents Registration Authority (2008) 235 CLR 286
As to the first component of the ground of review, the Authority’s decision pre-dates the “drastic” change of position which, according to the applicant, occurred on 26 October 2018. It was not legally unreasonable for the Authority to fail to take into account that change of position, even if there has been such a change.
As to the second component of the ground of review, Mr Emmerson QC’s report post-dates the Authority’s decision; the Authority could not take it into account.
Further, and in any event, Mr Emmerson QC’s report is in the nature of country information. It was for the Authority to choose and give weight to such country information as it saw fit: the choice of country information is not a matter with which the Court will generally interfere.[21] While it is not clear whether Mr Emmerson QC’s report relates to the position that prevailed as at the time of the Authority’s decision,[22] even if it did, and even if there was at the time of the Authority’s decision country information available to the Authority that reflected the substance of Mr Emmerson QC’s report, the Authority took into account relevant and recent country information.[23] The Authority’s treatment of that country information was not legally unreasonable.
[21] NAHI v Minister for Immigration [2004] FCAFC 10 at [11]-[13]; ADX17 v Minister for Immigration [2018] FCA 1967 at [32]
[22] it relates to a visit made on 10-14 July 2017; see page 3 to Annexure C to the affidavit of the applicant referred to at [17] above
[23] see eg at [4] of the Decision
Ground 2
I proceed on the basis that the jurisdictional error alleged by Ground 2 is that there is no evidence for a finding, said to have been made by the Authority, that the applicant’s family members could act as guarantors or pay the fines necessary to enable the applicant’s release.
The “no evidence” ground of review was explained in Rawson Finances Pty Ltd v Federal Commissioner of Taxation.[24] In that decision, Jessup J explained the relevant principles in relation to the Administrative Appeals Tribunal as follows, at [62]:
The tribunal … must … proceed by reference to “rationally probative evidence” rather than on mere “suspicion or speculation”: Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666 at 685. If it does so, its finding on a question of fact will not be assailable in a proceeding under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) unless that finding was not reasonably open on the evidence. Where the finding has been made by inference, no error of law will have been made so long as there was some basis for the inference: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321at 326. The nature and limits of the tribunal’s function in these and allied respects were described in detail by Greenwood J (Weinberg J agreeing) in Wecker v Secretary, Department of Education, Science and Training [2008] FCAFC 108; (2008) 168 FCR 272 at 294–299.
[24] (2013) 93 ATR 775
The applicant’s Ground 2 must fail, for two related reasons. First, the ground proceeds at least partially on the basis of a false premise, in that it misapprehends the finding made by the Authority. The Authority did not find at [30] or at [32] that money would need to be paid in order for the applicant to be released. Instead, the Authority found that if the applicant pleaded guilty to “illegal departure”, he would be fined and free to go.[25] The Authority also found that if the applicant pleaded not guilty, he would either be released on his own surety, or otherwise may be required to have a family member travel to Colombo to act as surety,[26] and that “there is no information before [it] to indicate that they would not be able to travel to Colombo as guarantor, if that was in fact required”.[27] These are not findings that money would be required to be paid. In this regard, accepting for present purposes the applicant’s evidence regarding the personal circumstances of an elder sister and his parents,[28] this evidence does not take matters any further.
[25] at [30]-[31]
[26] at [30]
[27] at [32]
[28] and see [6] of the applicant’s affidavit of 20 February 2017
Secondly, and relatedly, as noted above, a no evidence ground depends upon the finding in question not being reasonably open on the evidence. It appears to be common ground that the applicant has at least one sister in Sri Lanka. There was evidence before the Authority that the applicant has four sisters in Sri Lanka.[29] That being the case, it was open for the Authority to find, as it did, that there was ‘‘there is no information before [it] to indicate that they would not be able to travel to Colombo as guarantor, if that was in fact required”. This is not a case of a finding made without proper evidentiary foundation.[30]
[29] RD 11-12
[30] cf. in the context of a different jurisdictional error; ABA15 v Minister for Immigration [2016] FCA 1419 at [70]
It is true that in Minister for Immigration v SZTQS[31] Griffiths J found that the Administrative Appeals Tribunal in that case fell into error by breaching s.425 of the Migration Act 1958 (Cth) (Migration Act) by failing to raise with the applicant in that case as an issue the capacity of the applicant’s family to pay bail or act as guarantor or a surety to secure the applicant’s release from detention. That decision was endorsed by the Full Federal Court in SZTAP v Minister for Immigration,[32] especially at [74].
[31] [2015] FCA 1069
[32] (2015) 238 FCR 404
However, that principle is inapplicable to proceedings in the Authority because of the different statutory regime. In DGZ16 v Minister for Immigration[33] at [69]-[70] the Full Federal Court stated:
In our opinion, the starting point for analysis is not the different regime under Pt 7 and the cases decided in relation to those statutory provisions. Instead, the starting point must be the terms of Pt 7AA and, subject to Pt 7AA, the obligation on the Authority to review a fast track reviewable decision by considering the review material without accepting or requesting new information and without interviewing the referred applicant: s.473DB(1). Also, by s.473DA, Div 3 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. In our view, SZBEL is not the appropriate starting point.
It is to be noted that the present case is not one where the Authority has decided a point which was not the point decided by the delegate, but rather one where additional information is necessary in order to complete the review. We refer to Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210, where the Authority affirmed the decision of the delegate to refuse to grant the SHEV but on the different basis of relocation which the delegate had not addressed. Thus there may be circumstances in which it is legally unreasonable not to consider the exercise of the discretionary power in s.473DC(3).
[33] [2018] FCAFC 12
In my opinion, on the facts of this case it was open to the Authority to conclude that the applicant’s family (which appeared to be quite extensive) would be able to provide the minimal assistance necessary and it was not unreasonable for the Authority to fail to invite information or comment from the applicant to supplement the material the Authority already had before it.
Ground 3
Ground 3 alleges that the Authority fell into jurisdictional error by failing to invite comment from the applicant in relation to a report published by DFAT dated 24 January 2017 (2017 DFAT Report).
The powers conferred upon the Authority under Part 7AA of the Migration Act must be exercised within the bounds of legal reasonableness, in the sense explained in Li and Plaintiff M174/2016 v Minister for Immigration & Anor.[34]
[34] (2018) 353 ALR 600 at [21]
However, the applicant’s ground misconceives the operation of the statutory regime. As the plurality held in Plaintiff M174 if “review material” within the meaning of s.473DC(1) of the Migration Act is given to the Authority, and if that material includes information not before the Minister, then that material can only be considered if the Authority complies with s.473DD, and s.473DE (if applicable).[35]
[35] at [27]
Here, no allegation is made that the Authority has failed to comply with s.473DD. The information in question, the 2017 DFAT Report, is country information, that is, information which is not “specifically about the [applicant] and is just about a class of persons of which the [applicant] is a member”. That being the case, the Authority was not obliged to give particulars of that information to the applicant.[36]
[36] see s.473DE(1)(a), and see also Minister for Immigration v CRY16 [2017] FCAFC 210 at [73] cf. at [82]
Ground 4
Ground 4 appears to be a reprisal of the applicant’s original Ground 1, in that it seems to be an allegation that making the credibility findings that it did at [15], the Authority failed to apply the so-called “what if I am wrong” test.
Findings as to credibility are frequently said to be the function of the primary decision-maker par excellence.[37] However, credit findings are not immune from review for jurisdictional error.[38] Such findings can be challenged on a number of grounds, including, for example, reaching findings without a logical or probative basis, or legal unreasonableness.[39] Determining whether credibility findings are so irrational, illogical or unreasonable as to be infected with jurisdictional error requires an examination of the facts of the case and of the Authority decision.[40]
[37] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J
[38] CQG15 v Minister for Immigration [2016] FCAFC 146 at [37]–[38]
[39] ARG15 v Minister for Immigration (2016) 250 FCR 109 at 130 [83]
[40] DAO16 v Minister for Immigration (2018) 353 ALR 641 at 649–650 [30]
Further, as noted in the Minister’s submissions, the so-called “what if I am wrong” test does not apply where the Authority entertains no real doubt as to the finding it makes.[41]
[41] DAO16 at [36]
Although the Authority began [15] by stating that it had “some significant concerns” about the claimed incident of 5 April 2012, the paragraph read as a whole shows that the Authority entertained no relevant doubts as to its findings that the claimed 5 April 2012 incident and subsequent work visit did not occur. Ultimately, after listing the relevant reasons, the Authority concluded:
I am not satisfied that six plain-clothed men attended the applicant’s home or that they visited his work as the applicant claimed.
Put in the language of Minister for Immigration v Rajalingam,[42] this is not an “uncertain” finding, or a finding that the relevant events “might” have occurred. The Tribunal recorded its concerns, set out the reasons for doubting the applicant’s account of two relevant events, and then found that it could not be satisfied that these events occurred. That being the case, the Authority was not required to apply the so-called “what if I am wrong” test.[43]
[42] (1999) 93 FCR 220 at [62]
[43] cf. DAO16 at [36]
Conclusion
I conclude that the applicant is unable to demonstrate that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 21 March 2019
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