CKK19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 236
•20 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CKK19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 236
File number(s): SYG 1506 of 2019 Judgment of: JUDGE KAUR-BAINS Date of judgment: 20 February 2025 Catchwords: MIGRATION – judicial review – protection visas –Administrative Appeals Tribunal found the first applicant fabricated his protection visa claims and found that evidence of other applicants in the family unit said to be corroborative was unpersuasive – whether the Tribunal’s decision to place no weight on the corroborating evidence was irrational or illogical – whether Tribunal failed to raise an issue required to be raised in order to give the applicants a real and meaningful hearing as required by s 425 of the Migration Act 1958 (Cth) – no jurisdictional error disclosed – application dismissed Legislation: Migration Act 1958 (Cth) ss 36, 425, 476
Federal Circuit Court Rules 2001 (Cth) div 11.2)
Cases cited: BXK15 v Minister for Immigration and Border Protection (2018) 261 FCR 515
EVI19 v Minister for Immigration [2022] FCA 518
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Border Protection v SZUXN [2016] FCA 516
Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59
SZBEL v Minister for Immigration and Citizenship (2006) 228 CLR 152
SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451
Division: Division 2 General Federal Law Number of paragraphs: 41 Date of last submission/s: 14 December 2024 Date of hearing: 20 November 2024 Place: Sydney Counsel for the Applicants: Mr A Silva Solicitor for the Applicants: Bassan Lawyers and Associates Solicitor for the First Respondent: Mr C Burke of Sparke Helmore Lawyers Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 1506 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CKK19
First Applicant
CKL19
Second Applicant
CKM19 (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
20 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to Minister for Immigration and Multicultural Affairs.
2.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Kaur-Bains
The applicants seek judicial review of a decision of the second respondent (Tribunal) dated 4 June 2019, which affirmed the decision of the delegate not to grant the applicants Protection (Class XA) (subclass 866) visas (protection visas). This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
The first applicant is a male citizen of Bangladesh, the second applicant is his wife, the third to fifth applicants are the first and second applicants’ children. On 10 July 2019, orders were made pursuant to Division 11.2 of the Federal Circuit Court Rules 2001 (Cth) (Rules), that the first applicant is appointed the litigation guardian of the fifth applicant, as the fifth applicant is a minor.
For the reasons set out below, I find that no jurisdictional error is established and the application is dismissed.
BACKGROUND
On 4 August 2011, the applicants first arrived in Australia together as the holders of Temporary Work (Class UC) (Subclass 457) visas (temporary work visa). The first applicant was the primary holder of the said visa, with the first applicant’s wife and three children being dependent upon the first applicant’s temporary work visa. On 6 May 2014, the first applicant’s temporary work visa was cancelled (Court Book (CB) 204).
Protection Visa Claims
On 5 January 2016, the applicants applied for a protection visa (first application). In the first application, the first applicant claimed to have left Bangladesh for employment purposes. He feared he would be perceived in Bangladesh as having amassed significant wealth owing to him residing and working overseas for a time and he would be targeted for that reason. Additionally, the first applicant claimed his children would face discrimination and persecution in Bangladesh due to their upbringing in Australia (CB 32).
On 15 February 2016, the applicants lodged a further protection visa application (second application) (CB 52). In the second application, the first applicant raised a new protection claim that he had been kidnapped on the last occasion he had returned to Dhaka. He claimed he had been blindfolded and taken to a remote place where his kidnappers had demanded ‘5 crore taka’ and threatened to kill him and his family if he did not pay. The first applicant claimed he was tortured and suffered injuries, he was kidnapped for a period of three days and heard his captors discussing giving the ransom money to the Bangladesh ruling party. The first applicant’s family paid the kidnappers ‘10 Lakh Taka,’ promising the remainder would be paid within three months after the first applicant’s release by his captors. The first applicant signed a document guaranteeing payment of the remainder and indicating the balance would be sent from Australia. The first applicant claimed he feared returning to Bangladesh as he did not have any money and feared he would be stalked and killed as a result (CB 72).
On 5 September 2016, a delegate of the Minister refused to grant the protection visas (CB 202). On 13 October 2016, the applicants lodged an application with the Tribunal seeking review of the delegate’s decision (CB 239).
On 12 September 2018, the first applicant provided further documents to the Tribunal including a written statement dated 9 September 2018 (at CB 335-336), providing further details about his claimed fears. The first applicant claimed he had been abducted on 6 January 2013, after he had finished work by masked men wielding pistols and forced into a ‘micro bus.’ The first applicant claimed he was hit on the head with the butt of a pistol and subjected to “bad language” and death threats against himself and his family by his captors. He was then taken to a house where his hands were bound, he was struck again by the butt of the pistol, causing him to lose consciousness. Demands for money were made and he realised that the men were from the Bangladeshi ruling political party. The first applicant called his nephew to arrange payment to his captors while he was beaten and subject to water boarding. His captors forced him to sign a blank piece of paper while he was blind folded and then cut the tendons in his right ankle. The captors then took the first applicant in a car and threw him on the side of the road and drove off. The first applicant was then taken to hospital by his nephew.
TRIBUNAL’S DECISION
On 13 September 2018, the first, second, third and fourth applicants appeared before the Tribunal to give evidence and present arguments, assisted by their migration agent and an interpreter in the Bengali language (Hearing Record: CB 337).
Tribunal’s finding first applicant fabricated claims
The Tribunal recorded the first applicant's claims, contained in his second protection visa application, that the first applicant was kidnapped and held for ransom, his family paid money to secure his release, and the applicants had been threatened (kidnapping claims). The Tribunal did not accept the first applicant’s kidnapping claims, finding that the first applicant fabricated the kidnapping claims to ensure he and his family remained in Australia following the cancellation of the temporary work visas ([33] and [50] of the reasons) for the following reasons:
(a)There were significant delays between the last time that the first applicant arrived in Australia, being 31 January 2013, and when the applicants lodged their application for a protection visa being 4 January 2016. The Tribunal found that the evidence concerning how the first applicant and his family came to know that they could apply for protection visas in Australia to be contradictory and unsatisfactory and demonstrated that the first and second applicant were not witnesses of truth and were fabricating their evidence to provide an explanation for the delay in lodging their protection visa application ([39] of the reasons). – Delay in lodging the application for protection visa and inconsistent evidence
(b)The Tribunal considered the first applicant’s failure to provide a copy of a medical report with the visa applications, despite it having been in his possession since January 2013, as an indication that the claims regarding the hospitalisation being due to the kidnapping claims to not be genuine. The Tribunal accepted the first applicant had undergone surgery, but it was not satisfied the injury was a result of kidnapping or any harm inflicted upon him, given the Tribunal’s concerns about the truthfulness of the first applicant’s oral evidence ([43] of the reasons). – Failure to provide medical report in connection with kidnapping claims
(c)The Tribunal had concerns regarding the first applicant’s failure to raise the kidnapping claims in the first application form ([44] of the reasons). When the Tribunal put these concerns to the first applicant, he claimed that the original form was completed by his nephew who was a minor. The first applicant said that on learning that his nephew had not properly completed the form, he got help in completing the application form from three friends who he had met more than once at a train station, though he did not know their contact details and only knew the first name of one of the three of them ([45] of the reasons). The Tribunal found the first applicant to be “deliberately vague and evasive” ([46] of the reasons). – Failure to raise kidnapping claim in first application form
(d)The Tribunal noted the first applicant had provided two articles regarding disappearances in Bangladesh but gave them no weight due to its concerns with the first applicant’s credibility in relation to his alleged kidnapping. The Tribunal further noted that the first applicant had “demonstrated an appalling approach to the truth” in his evidence about the articles, as he originally claimed he had some articles from the internet to submit, but upon further probing he stated that his migration agent had provided them to him on the morning of the Tribunal hearing. When asked by the Tribunal why he had said he had obtained the articles from the internet rather than from his migration agent, the first applicant said he was sorry. The Tribunal found the first applicant’s dishonesty about how he had obtained the articles to be troubling, which made the Tribunal “very weary [sic] of believing” the first applicant’s evidence ([48] of the reasons). – Dishonest evidence as to source of articles
Corroborating Evidence
The Tribunal noted that the second applicant (wife) gave evidence that the first applicant had been kidnapped and assaulted, and that the third and fourth applicants (first and second applicants’ children) could speak broadly to the fact that the first applicant had been in trouble in Bangladesh to the extent that they would be at risk of harm if they were to return. However, the Tribunal did not find this evidence to be persuasive. The Tribunal stated that on its evaluation of the evidence, the second, third and fourth applicants had “learned the narrative” about the incident in an attempt to provide corroborative evidence about it to the Tribunal. The Tribunal found that it did not accept that it should rely on the corroborating evidence because of the adverse credibility concerns expressed in relation to the first applicant’s failure to raise the kidnapping claims in the first application forms, the delay in lodging the application for a protection visa and the inconsistent evidence about whether the first applicant had discussed protection visas with his brother. Further, as a result of those concerns the Tribunal did not place any weight on the evidence given by the first or second applicant (wife) ([49] of the reasons).
Tribunal’s Conclusion
Having rejected the first applicant’s claims of past harm, the Tribunal concluded the applicants did not meet the refugee criteria or the complementary protection criteria ([54]- [57] of the reasons). Accordingly, the Tribunal affirmed the decision to refuse to grant the applicants protection visas ([58] of the reasons).
GROUND IN THE APPLICATION
In the further amended application filed on 20 October 2024, the applicants raised the following grounds for judicial review:
(1) The Tribunal committed a jurisdictional error by:
(A) Giving no weight to the corroborating evidence provided by the applicant’s wife and two children based solely on speculation and without any rational basis, relying instead on the adverse credibility finding against the husband. The Tribunal concluded that the wife and children merely learned the narrative of the alleged kidnapping incident in Bangladesh.
(B)Failing to raise this issue with the applicant’s wife and the two children, thereby denying them the opportunity to respond.
Included in the further amended application were the following particulars, common to both ground 1(A) and 1(B):
(a) At [49] of the reasons, the Tribunal accepted the following evidence:
(i) The second applicant clearly articulated to the Tribunal that her husband had been kidnapped and assaulted, including the specific date of the incident.
(ii) The two children provided testimony indicating that their father had encountered difficulties in Bangladesh.
(iii) The second applicant refrained from visiting Bangladesh for her parents' funeral due to fear following the alleged incident experienced by her husband.
(b) Despite these findings, the Tribunal asserted at [49] of the reasons – without any substantiating evidence – that the second applicant and her children had merely learned the narrative about past harm in Bangladesh to provide corroborating evidence.
(c) The Tribunal did not at any point confront any of the three individuals with the belief that they had merely learned the narrative to support the application, nor did it seek to elicit a response regarding their understanding of the incident or the circumstances of their knowledge.
(d) The reasons provided by the Tribunal at [49] for dismissing the corroborating evidence of the three applicants were:
(i) Concerns regarding the first applicant’s failure to mention the kidnapping incident in his initial Part C form.
(ii) The delay in the application for protection.
(iii) Inconsistent evidence regarding whether the first applicant had discussed protection visas with his brother.
(e) None of these issues directly undermined the credibility of the three applicants. Although the third issue tangentially affected the wife’s evidence, its impact was minimal, as will be explained later.
(f) The concerns regarding the first applicant’s credibility were not significant enough to “poison the well” as articulated in S20/2002, thereby justifying the Tribunal's dismissal of the corroborating evidence.
RELEVANT LAW
At all relevant times, the Act provided as follows:
36 Protection visas—criteria provided for by this Act
…
(2) A criterion for a protection visa is that the Applicant for the visa is:
(a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
(b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa; or
(c) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa.
(2A) A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment
GROUND 1(A)
At the hearing Counsel for the applicants initially said in Court that, despite the reference in ground 1(A) to the Tribunal acting “based solely on speculation and without any rational basis”, ground 1(A) was not alleging jurisdictional error based on illogicality or irrationality but was instead alleging a “failure to take corroborating evidence into account on the part of the Tribunal”. Counsel for the applicants contended that irrationality and illogicality was “a very broad ground under which any jurisdictional error falls under” and that he “didn’t want to frame under the general illogical rational thing” (TP 68.25-40).
However, later in the hearing, Counsel for the applicants said that ground 1(A) did in fact allege jurisdictional error due to irrational and illogical reasoning, as follows (TP 75.6-18):
HER HONOUR: You are not putting failure to take corroborating evidence into account. You are leaving the ground as you have articulated it.
MR SILVA: Yes, yes.
HER HONOUR: And you have, in court, said to me that ground is based on irrational and illogical reasoning.
MR SILVA: Correct.
HER HONOUR: That’s the jurisdictional error ground.
MR SILVA: Yes, indeed.
At the conclusion of the hearing, I directed the parties to put on further written submissions based on the oral submissions made by the applicants’ Counsel in Court, that ground 1(A) raised jurisdictional error due to irrational and illogical reasoning. In his further written submissions, the Minister proceeded on the basis that ground 1(A) was to be understood as alleging illogicality and/or irrationality by the Tribunal and made submissions to that effect. The Minister characterised his understanding of the ground as follows:
16 At the hearing, the applicants’ Counsel made oral submissions that modified the case in the second amended application to the following (so the Minister understands):
(a) ground 1(A): the Tribunal’s finding at [49] that the evidence of the applicant wife and the two eldest sons reflected a “learned narrative” in an attempt to provide corroborative evidence to the Tribunal (learned narrative finding), was illogical and/or irrational.
…
ground 1(A) – illogicality/irrationality
17 The Minister understands from oral submissions made by the applicants’ Counsel, that there are two core complaints underpinning the allegation that the learned narrative finding at [49] was illogical. The first appears to be that the Tribunal’s findings about the credibility of the applicant’s oral evidence were not “strong enough” to “poison the well” of the applicants’ evidence in the sense referred to in Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30 at [49]. The other complaint appears to be a broad assertion that that there was no rational basis for the learned narrative finding. These arguments are misconceived.
Counsel for the applicants, in his response to the Minister’s further written submissions dated 14 December 2024, said as follows:
35. In ground 1(A), if the phrase “based solely on speculation and without any rational basis” is temporarily set aside, the ground aligns with what the Minister correctly stated at MS[17]. Specifically, it means that the Tribunal’s findings regarding the credibility of the applicant’s oral evidence were not “strong enough” to “poison the well” of the applicants’ evidence in the sense referred to in Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30 at [49].
36. However, by including the phrase “based solely on speculation and without any rational basis”, the applicants emphasise the absence of two critical features required to “poison the well” of credibility assessment on a rational basis.
37. For the corroborating evidence of the applicants to be so strongly discredited as to be not given any weight, two conditions must have existed:
(a) the evidence of the applicant husband on the core issue (the kidnapping claim) must have been totally discredited; and
(b) the corroborating evidence must have been entirely dependent on the applicant's husband’s account and incapable of redeeming or supporting the applicant husband’s credibility.
38. However, in this case, the adverse issues raised regarding the husband applicant’s evidence had plausible alternative explanations. For instance, the omission of a direct reference to the kidnapping incident in the first form can reasonably be attributed to the fact that the husband applicant was assisted by a 13-year-old child and he himself did not understand English. The Tribunal did not adequately address these matters. Similar alternative explanations exist for other adverse issues.
39. Thus, in the absence of the two critical features, the Tribunal’s decision lacked rationality. The inclusion of the phrase “based solely on speculation and without any rational basis” strengthens the ground by highlighting the rationality issue as an integral part of ground 1(A).
Relevant Legal Principles
I will first set out the relevant legal principles in establishing jurisdictional error on illogical and irrational grounds.
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611(SZMDS), Crennan and Bell JJ stated the following as to the correct approach when analysing the reasons subject to judicial review:
132. … It is clear, from the extracts from the Federal Court decision set out above, that the Federal Court emphatically disagreed with the Tribunal's finding that the first respondent's return to Pakistan and failure to seek asylum in the United Kingdom was conduct which was inconsistent with the claimed fear of persecution arising as a result of homosexuality. It also seems clear that the Federal Court, acting on the same material or evidence on which the decision was based, would have been satisfied that the first respondent feared persecution as alleged.
133.However, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it…
…
135.On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. 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…
Further, if an error is identified in the decision-making process (that is on the way to the ultimate conclusion), then as Wigney J said in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, at [55]:
… the overarching question is whether the Tribunal’s decision was affected by jurisdictional error: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out.
Credibility findings
In EVI19 v Minister for Immigration [2022] FCA 518, Stewart J stated at [36]:
It is well-established that credibility findings are not immune from judicial review: CGQ15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [37] - [38] per McKerracher, Griffiths and Rangiah JJ. Credibility findings, like all findings, must be rationally made and based upon facts having logical and probative weight, and be articulated properly; minor inconsistencies and trivial errors do not constitute a valid ground upon which an adverse credibility finding may be made: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] per Flick J; SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 at [25] per Gordon J. See also DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 at [30] per Kenny, Kerr and Perry JJ and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [11] per Allsop CJ.
Consideration
The applicants Counsel at the hearing before me suggested that the Tribunal’s reasons at [49] suggest that the second applicant and the children were “making up or fabricating” their corroborating evidence (Tp 5.42). I do not accept this is a fair reading of [49] of the Tribunal’s reasons. What the Tribunal is saying at [49] of the reasons is that the second applicant and the children learned the narrative from the first applicant, which as a statement is correct. It was accepted before me that in fact the only way the second applicant and the children learned about the kidnapping claims was because the first applicant told them about the incident.
I find that on a fair reading of [49] of the Tribunal’s reasons, the Tribunal found the evidence of the second applicant (wife) and the children, which sought to corroborate the evidence as to the kidnapping claim, was unpersuasive and not such as to lead the Tribunal to accept the first applicant’s claim of his alleged kidnapping for the following expressed reasons:
(a)The Tribunal found the second applicant and her children had “learned the narrative” about the past harm in Bangladesh, to provide corroborating evidence to the Tribunal, so that the Tribunal would believe that the first applicant had been harmed in Bangladesh.
(b)The Tribunal did not place any weight on the evidence given by the first and second applicants because it had determined that it did not accept the claims by the first applicant that he had been kidnapped (at [33] of the reasons), because it was satisfied that the claims had been fabricated, that is the first applicant had in fact lied, as a way for the applicants to remain in Australia following the cancellations of the UC 457 visas (at [50] of the reasons).
(c)Therefore, the Tribunal did not rely on the corroborating evidence because of its finding that the first applicant had lied about the kidnapping claims and all the second applicant, and the children were doing in their corroborative evidence was repeating what the first applicant had told them about the kidnapping claim, which claims the Tribunal found were lies.
I find the Tribunal’s statement at [49] of its reasons, that “in the Tribunal’s evaluation of the evidence, the [second applicant] and her children learned the narrative about the past harm in Bangladesh in an attempt to provide corroborative evidence”, was an evaluation that was open to the Tribunal to make on the evidence before it, because the evidence of the second applicant and the children, even taken at its highest, was simply that they were in fact retelling the narrative they had learned from the first applicant. None of the secondary applicants claimed to have first-hand knowledge of witnessing the alleged kidnapping of the first applicant, rather their evidence was that they had been told what had happened by the first applicant at different times and in differing levels of detail. Therefore, there was a rational and logical reason for why the Tribunal found it should not rely on the corroborative evidence.
The only aspect of the corroborative evidence which may have reasonably been regarded as independent evidence was the fact that the second applicant claimed to have received a phone call from the first applicant while he was still in hospital in the days after the kidnapping incident (Tribunal transcript 56.6). Whilst such evidence still consists of a retelling to the Tribunal of what had been told to the second applicant by the first applicant, such evidence may have been considered to have been an independent first-hand account of the fact that the second applicant received a phone call from the first applicant saying he was in hospital as a result of a kidnapping incident. It is relevant to note here, however, that the Tribunal had raised concerns regarding the second applicant’s credibility at [39] of the reasons and stated expressly at [49] of the reasons that it could not accept the second applicant’s evidence based on the credibility concerns with the first and second applicants. In my view, those concerns were reasonably open to the Tribunal to express, and it was open to the Tribunal to reject the corroborative evidence of the second applicant as a result.
Counsel for the applicants offered a number of “plausible alternative explanations” for the situations which led the Tribunal to make the adverse credit findings against the first applicant and suggested that the credibility findings against the first applicant were not such as to “poison the well”. In essence, the alternative explanations proposed by Counsel for the applicants are as follows:
(a)The failure of the first applicant to include details about the kidnapping could be reasonably attributed to the fact that the first applicant was assisted by his 13-year-old nephew in filling out the application form and that the first applicant does not have a good grasp of English ([38] of the written submissions in reply).
(b)The delay in submitting the protection visa application can be explained by the fact that the first applicant was able to enter Australia on a temporary work visa and that when that was cancelled, he was originally attempting to secure another temporary work visa. As the immediate threat of the kidnapping had subsided, delay was understandable and should not be significant enough to undermine the first applicant’s credibility ([16] to [19] of the written submissions).
(c)The inconsistency between the first and second applicants’ evidence regarding when they learned about the protection visa process could be explained by genuine confusion and a lack of understanding on the first and second applicants’ behalf about the complex nature of the first applicant’s brother’s immigration history and the visa application process ([27] to [28] of the written submissions).
(d)With regards to the inconsistency surrounding where the articles were sourced from that the first applicant submitted to the Tribunal on the day of the Tribunal hearing, the first applicant could have been referring to the fact that the articles came from the internet, rather than implying that he sourced the articles from the internet himself.
It is not necessary for me to address each of the so-called plausible alternative explanations individually in any great depth, as none of them make the case that the adverse credit findings of the Tribunal were irrational or illogical. In my view, the applicants’ submissions as to plausible alternative explanations that the Tribunal should have considered amount to a disagreement with the Tribunal’s conclusions as to the adverse credit findings that the first applicant fabricated, that is lied, about the kidnapping claims. As established in SZMDS at [135], a decision cannot be said to be illogical or irrational simply because one conclusion has been preferred over another possible conclusion. In my view, each of the adverse credit findings made against the first applicant as summarised at [10] of this judgment were reasonably open to the Tribunal.
Further, any arguments as to whether the Tribunal’s finding as to the first applicant’s credibility and whether they are such to “poison the well” are not to the point for the alleged jurisdictional error ground 1(A) because the correct approach to this ground is as set out in SZMDS as set out at [21] of the judgment. Although, I do note that the Tribunal found the first applicant had fabricated the claims as to the kidnapping, which is a strong finding that the first applicant has lied, such that it may be seen as poisoning the well.
In conclusion, in regard to ground 1(A), I find it was open to the Tribunal to reason as it did as set out in [25] and [26] of this judgment because the Tribunal had determined that the first applicant had fabricated his claims, that is he had lied about the kidnapping claims, which finding the applicants have not sought to directly challenge in this Court on any jurisdictional error grounds. It was open and logical for the Tribunal to then decide that because the corroborating evidence was a “learned narrative”, meaning the information as to the alleged kidnapping was told by the first applicant to the second applicant and the children, that it was evidence that was not independent and therefore was not such as to persuade the Tribunal to otherwise accept the evidence of the first applicant. Thus, I do not find the Tribunal’s reasoning in [49] of its decision to be illogical, irrational or unreasonable. Therefore, this ground fails.
Ground 1(B)
As said in relation to ground 1(B), the applicants allege that the Tribunal committed jurisdictional error by failing to raise with the second applicant (wife) and the children that they had learned the narrative to corroborate the evidence of the first applicant as to the kidnapping claim, thereby denying them the opportunity to respond. The applicants say that this amounted to a denial of procedural fairness as the Tribunal did not invite the applicants to a real and meaningful hearing pursuant to s 425 of the Act.
Relevant Legal Principles as to an applicant’s right to a “real and meaningful hearing”
As Logan J explained in BXK15 v Minister for Immigration and Border Protection (2018) 261 FCR 515 at [77]:
It was, rightly, common ground that the hearing to which an applicant was invited under s 425 of the Act had to be ‘real and meaningful’ (MIMIA v SCAR (2003) 128 FCR 553 at [37]) and that this may entail an obligation on the part of the Tribunal to bring to the attention of an applicant any issue arising in the review that was not obvious in the circumstances (SZBEL v MIMIA (2006) 228 CLR 152 at [32]-[43]).
The High Court (per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) in SZBEL v Minister for Immigration and Citizenship (2006) 228 CLR 152 (SZBEL) established the following principles regarding s 425 of the Act:
32 In Alphaone the Full Court rightly said:
“It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.” (emphasis added)(footnotes omitted)
33The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review” (s 425(1) (emphasis in original)). The reference to “the issues arising in relation to the decision under review” is important.
34 Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language “arising in relation to the decision under review” is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s 415) all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister’s delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.
35 The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
The High Court in SZBEL also said the following at [48]:
… as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369:
the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
During the hearing, Counsel for the applicants clarified what “issue” it was said the Tribunal failed to raise. The applicants’ Counsel said that by failing to raise concerns about the “learned narrative” finding during the Tribunal hearing, the Tribunal denied the applicants an adequate opportunity to respond, thereby breaching procedural fairness. Counsel for the applicants submits that the Tribunal’s concerns that the second applicant and children had learned the narrative of the first applicant in order to provide corroborative evidence to the Tribunal was an issue arising in relation to the decision under review, which was determinative and was not obvious in the circumstances. Counsel for the applicants relies on SZBEL in contending that by failing to raise those concerns, the Tribunal’s decision was infected by jurisdictional error. Counsel for the applicants submits that SZBEL emphasises that procedural fairness requires specificity in identifying determinative issues and Counsel directed me to [32] to [34] of SZBEL to support the submission that the term issues should be understood with the level of specificity that would require the Tribunal to raise the “learned narrative finding” with the applicants.
With regard to what the Tribunal should have said to the applicants in order to afford them a real and meaningful hearing pursuant to s 425 of the Act, Counsel for the applicants made the following submissions at the hearing (TP 47.10 – 15):
MR SILVA: The tribunal should have said when the applicant [sic] wife gave evidence that the husband was kidnapped, then the applicant could have asked more questions about – on the issue and also could have said that, “From what you say, I am concerned that this is not your evidence; you are just repeating what your husband said or you learned from your husband.”
MR SILVA: And same thing with the children, as well.
The applicants also relied on the decision of Flick J in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 (SZVAP) for the principle that the Tribunal was required to raise its concerns with the secondary applicants that they had learned the narrative of the first applicant in order to provide corroborating evidence to the Tribunal. The relevant facts in SZVAP involved two applicants who the Tribunal determined had been lying about the fact that they were in a committed relationship. In that matter, four witnesses gave evidence before the Tribunal attesting to the genuineness of the applicants’ relationship based on their own experiences with the applicants. The Tribunal in that matter found that the evidence of the applicants and the corroborating evidence witnesses were not to be believed. The Court found that the Tribunal did not disclose at any point their concerns that the witnesses may have been misled by the applicants as to the nature of their relationship through false representations. In doing so, the Tribunal were said to have denied the witnesses an opportunity to respond to those concerns and to provide further evidence as to their own experiences with the applicants which may have allayed those concerns, as well as giving the applicants the opportunity to put on evidence regarding those specific concerns. This was determined to have displayed a lack of procedural fairness and a contravention of s 425 of the Act, as the proposition that the applicants had misrepresented their relationship to the witnesses was not obviously an issue in review.
Each matter must be reviewed on its own merits and the facts in SZVAP are quite dissimilar to the relevant facts in this matter. In this matter, the state of the corroborating evidence is that the second applicant and children were recounting to the Tribunal what they had been told by the first applicant about the alleged kidnapping. Therefore, it was obvious that the Tribunal would find that the second applicant and the children were repeating what the first applicant had said to them, because that in fact was the case. Therefore, s 425 of the Act did not require the Tribunal to say to the second applicant and the children what Counsel for the applicants says should have been said to the second applicant and the children, as set out at [37] of this judgment, to accord them procedural fairness. As said, this was because it was obvious that the second applicant and the children were giving evidence they had been told, or to use the Tribunal’s words, learned, from the first applicant. Accordingly, no jurisdictional error is disclosed by this ground.
CONCLUSION
The application is dismissed.
I will hear the parties on costs.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 20 February 2025
SCHEDULE OF PARTIES
SYG 1506 of 2019 Applicants
Fourth Applicant:
CKN19
Fifth Applicant:
CK019
0
17
2