CLX17 v Minister for Home Affairs
[2019] FCCA 2516
•20 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLX17 & ORS v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2516 |
| Catchwords: NOVEL ARGUMENT – whether the Tribunal had made a decision – whether the ‘reasons’ supplied by the Tribunal are considered, legally, to be reasons – whether the ‘reasons’ supplied by the Tribunal satisfy section 430 of the Migration Act 1958 (Cth). |
| Legislation: Migration Act 1958 (Cth), ss.36, 426A, 430, 476, 499, 501, 501G. Migration Regulations 1994 (Cth), Sch.2. |
| Cases cited: ASB17 v Minister for Home Affairs [2019] FCAFC 38. AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133. Balasi v Sikh Mission Centre Inc [2018] FCA 107. |
| Texts cited: James C Hathaway and Michelle Foster, The Law of Refugee Status (Cambridge University Press, 2nd ed, 2012). |
| First Applicant: | CLX17 |
| Second Applicant: | CLU17 |
| Third Applicant: | CLV17 |
| Fourth Applicant: | CLW17 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1205 of 2017 |
| Judgment of: | Judge McNab |
| Hearing date: | 24 May 2019 |
| Date of Last Submission: | 24 May 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 20 September 2019 |
REPRESENTATION
| Counsel for the Applicants: | Nick Wood |
| Solicitors for the Applicants: | TranQuill |
| Counsel for the Respondents: | Mark Hosking |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari issue quashing the Administrative Appeals Tribunal’s decision made on 15 May 2017 in the matter number 1507904.
There be an order in the nature of prohibition prohibiting the respondents from giving effect to that decision.
A writ of mandamus issue requiring the second respondent, being differently constituted, to rehear and determine according to law the applicant’s application for review dated 28 May 2015 of the decision of the delegate of the first respondent.
The first respondent pay the applicant’s costs with the parties to submit a minute of costs sought within 14 days and to be fixed by the Court in the event that there is no agreement as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1205 of 2017
| CLX17 |
First Applicant
| CLU17 |
Second Applicant
| CLV17 |
Third Applicant
| CLW17 |
Fourth Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 7 June 2017 the applicants seek judicial review of a decision of the Administrative Appeal Tribunal (‘the Tribunal’) made on 15 May 2017. The Tribunal’s decision affirmed a decision of a delegate (‘the Delegate’) of the first respondent (‘the Minister’) refusing to grant a protection visa.
The applicants appealed the Tribunal’s decision on 7 June 2017, pursuant to s 476(1) of the Migration Act 1958 (‘the Act’).
The matter was heard on 24 May 2019.
For the reasons which follow, I have concluded that the application should be allowed pursuant to my finding on ground 1 of the grounds of review.
Background
The applicants are a family unit (collectively, ‘the applicants’). The first applicant is a female Coptic Orthodox Christian of Egyptian nationality (‘the applicant’). She is the mother of the second, third and fourth applicants. The applicant was born 14 August 1974 and first came to Australia on 10 August 2014. The applicant is married, and her husband remains in Egypt.
The applicants applied for a protection visa on 7 October 2014. The applicant was invited to, and attended, an interview before the Delegate on 11 March 2015.
The Delegate refused their application on 28 May 2015.
The applicants applied to the Tribunal on 10 June 2015 for a review of the Delegate’s decision. The applicants provided two written submissions: the first on 8 June 2016 and the second on 16 March 2017.
The applicant appeared before the Tribunal on 16 and 31 March 2017. With the assistance of a representative and interpreter, she provided and presented evidence and arguments.
The Tribunal affirmed the Delegate’s decision on 15 May 2017.
Applicant’s claims to fear persecution
The applicant outlines the relevant claims at [2] of her submissions:
2. In summary, the applicant made claims including to the following effect:
2.1. The applicant is a Coptic Orthodox Christian.
2.2. The applicant’s husband serves at a monastery in Egypt. He became involved in the conversion of a Muslim girl (Sohair, who later became Mariam) to Christianity.
2.3. After her secret conversion, Mariam was being pressured by her family to marry one of her Muslim cousins. She confessed as to her conversion, and that the applicant’s husband had been involved. The applicant’s husband helped Mariam hide, and then facilitated her escape to Sweden.
2.4. Subsequently, the applicant was raped at her apartment by three men. They threatened to kill her and her husband and to kidnap their children. Subsequently, the applicant’s husband was assaulted, and there was an unsuccessful attempt to kidnap their children.
2.5. The applicant became pregnant. A court order has been taken out by the family of Sohair/Mariam, claiming that the applicant is now married to one of them (Mustafa) and that he is the father of the child.
Tribunal’s decision
The Tribunal did not find the applicant, and thus the applicants, were people in respect of whom Australia has protection obligations.
The Tribunal set out the relevant law according to which the applicant’s claims are considered – being s 36 of the Act and Schedule 2 of the Migration Regulations 1994 (Cth). The Tribunal also noted it must take account of policy guidelines prepared by the Department of Immigration and any country information prepared by the Department of Foreign Affairs and Trade (‘DFAT’) to the extent that the information is relevant to the decision under consideration.
The Tribunal then summarised the applicant’s protection claims which the applicant provided by a Statutory Declaration dated 9 October 2014. The Tribunal recited, amongst other things, that:
a)the applicant is a Coptic Christian, a citizen of Egypt, married her husband on 10 January 2003, has two daughters and lived in Cairo;
b)her husband served at the Muharraq Monastery in the Zaraeb area since 2000 and he was involved in assisting people convert to Christianity and ensuring that the converts were not in danger;
c)the applicant did not know much about her husband’s activities as he worked some distance away;
d)problems began for the applicant when her husband told her a story about a Sheikh’s daughter, Sohair Ali Abdel Rahman, who had been baptised (Sohair became known as Mariam. Due to her being generally referred to as Sohair by the Tribunal, I will continue to do so);
e)in November 2013, Sohair called upon the applicant’s husband seeking his assistance after Sohair had informed her family she had converted;
f)with help from others, the husband helped Sohair escape to Sweden in February 2014;
g)the applicant reported that her husband was informed by neighbours that strangers had been asking about her husband, and that he had told the applicant to be cautious;
h)on 2 June 2014, upon returning from shopping, three men pushed the mother into her property, locked the door, and beat and sexually assaulted her;
i)the men filmed the beating and sexual assault and told the applicant they would kill her husband and kidnap her children;
j)the applicant then stayed with her mother, and her husband reported that, two days after the above events, he was assaulted by strangers and that strangers attempted to kidnap the children;
k)on 23 July 2014 the applicant finds out that she was pregnant (with further confirmation on 2 August 2014);
l)on the advice of the husband, the mother and children left Egypt for Australia; and
m)the mother asserts that on 2 October 2014 she receives a call from her husband informing her that Mustafa Abdel-Rahman has taken her to court claiming to be her husband.
The Tribunal then recited the submissions made by the applicant’s representative.
The Tribunal considered the applicant’s husband’s religious activities as being ‘most central’ to her claims.[1] She was, accordingly, given the opportunity to provide further oral evidence and answer questions put by the Tribunal.
[1] Tribunal’s decision record, [18].
The Tribunal, however, considered her evidence to be ‘general and lacking in significant details’,[2] particularly as the applicant stated the husband had been assisting converts from 2000. The Tribunal was ‘not convinced’ that the applicant’s husband kept her in the dark in relation to his activities.[3]
[2] Tribunal’s decision record, [22].
[3] Tribunal’s decision record, [23].
The Tribunal noted inconsistencies in the applicant’s evidence of Sohair’s conversion, as the applicant had previously stated this occurred in 2012. The Tribunal also did not believe how the applicant came into the possession of Sohair’s baptism certificate.
The Tribunal took further issue with the applicant stating that Sohair went to Sweden in November 2013, when she had previously said that Sohair went to Sweden in February 2014. The Tribunal was ‘not persuaded’ that the applicant was confused about the dates as she did not live those events personally. This lead the Tribunal to further doubt the applicant’s credibility.
The Tribunal took issue with the applicant’s inability to explain the location or the employment status of her husband, who has remained in Egypt. The Tribunal found her evidence to be ‘vague, general, lacking in significant details, evasive, and inconsistent’.[4]
[4] Tribunal’s decision record, [33]; similar findings were made at [37]-[39].
The Tribunal stated that the ‘impression’ of the applicant’s evidence ‘in relation to the sexual assault [that her] claim was rehearsed and scripted’.[5] The Tribunal stated that it ‘found it odd that the applicant would recount those events in the manner she did’ and that the way she gave evidence on this issue differed substantially from her demeanour in other parts of her evidence.[6] The Tribunal found ‘it difficult to accept that in a security block, even if the guards were not at the desk, three men would go up to the fourth floor and commit sexual assault’.[7]
[5] Tribunal’s decision record, [40].
[6] Tribunal’s decision record, [40].
[7] Tribunal’s decision record, [40].
The Tribunal had further doubts that the applicant was sexually assaulted as this claim was related to her husband’s religious activities, which the Tribunal had (as above) found to lack credibility. The Tribunal found that the claim of sexual assault to have been fabricated.
The Tribunal gave consideration to a number of documents provided by the applicant. The Tribunal placed weight upon the applicant’s statement that one of the documents she provided was false. The applicant appears to recognise this document is false (being a Customary Marriage Contract obtained by Sohair’s father) with her representative making submissions that the fact the document is forged is evidence of Sohair’s father’s attempts to obtain an oppressive Court Order. The Tribunal stated, in light of DFAT information that forgeries are possible in Egypt, ‘it is therefore possible that others such as the one she has provided also contain inaccurate information’.[8] The Tribunal stated it was not satisfied that many of the documents provided by the applicant contained accurate and/or truthful information and that the documents did not overcome the Tribunal’s concerns about the applicant’s credibility.
[8] Tribunal’s decision record, [50].
Grounds of review
The applicant’s grounds of review are:
1. The Tribunal’s approach to the assessment of the first applicant’s credibility was legally unreasonable, and/or involved non-compliance with a direction binding on the Tribunal under section 499 of the Migration Act 1958.
2. The Tribunal’s expressed reasons in its purported written statement under section 430(1) are inadequate. By reason of section 430(2) of the Act, the Tribunal’s decision is thereby affected by jurisdictional error. In any event, by reason of section 430(2), the Tribunal has not yet made a decision on the review (and has therefore not completed its review and is not functus officio).
The applicant provides further explanation of these grounds in the written submissions at [4]:
4.1. The first ground of review is a conventional one, that is in part based on recent jurisprudence of the Federal Court regarding the requirement for the Tribunal to take a reasonable approach to assessment of credibility. The applicants contend that various strands of the Tribunal’s reasoning in concluding that the applicant was being dishonest were legally unreasonable, and/or involved a failure to comply with a direction binding on the Tribunal under section 499 of the Act.
4.2. The second ground of review is more novel. It contends that the Tribunal has failed to discharge its obligation to make a written statement under section 430(1) of the Act that inter alia: “sets out the reasons for the decision”. On that premise, the applicants contend that the Tribunal’s purported decision is affected by jurisdictional error, in circumstances where section 430(2) provides that a decision on a review is taken to have been made “by the making of the written statement”. In any event, the applicants contend that, because the Tribunal has not yet given a compliant written statement under section 430(1), and by reason of section 430(2), the Tribunal has not yet made a decision on the review (and has therefore not completed its review and is not functus officio), and the Court should make a declaration to that effect.
Applicant’s submissions
Ground 1
The applicant based her submissions around the Tribunal’s findings as to the applicant’s credibility, her demeanour and the purported implausibility of her claims. I will use this structure for ground 1.
Applicant’s submissions on credibility findings
The applicant’s submissions impugn several paragraphs of the Tribunal’s reasoning, claiming that such paragraphs depict an unreasonable approach to the assessment of credibility. An instance of this is [27] and [28] of the Tribunal’s decision record:
The Tribunal asked the applicant if she knew where Sohair is now and the applicant stated that after she was baptised, Sohair went to Sweden. The Tribunal asked her when she went to Sweden and the applicant stated that she does not know exactly when it was but it was in 2013. The Tribunal referred to the statutory declaration provided in support of the application for a protection visa where at paragraph 20, the applicant had claimed that Sohair went to Sweden in February 2014. The applicant stated that she was confused about the dates because she was not involved herself and she did not live those events personally to remember them. The Tribunal is not persuaded. The Tribunal is of the view that the inconsistency raises doubts about the applicant’s claims on her credibility. The applicant has signed a statutory declaration referring to a specific date which is inconsistent with the date she provided in the course of the hearing; she gave the date of 2013 and not February 2014.
In post-hearing submissions, the representative noted that in relation to the inconsistencies “further explanation is that the applicant said before answering some questions related to some dates that she cannot remember accurately. Later, after the Member asked about the conflict between dates she mentioned and those noted in her previous declaration, the applicant confirmed further that she finds difficulty in remembering dates which are not related to her in person. Her explanation was meant to refer, in particular, to those events either related to her husband or related to the Sohair/Mariam situation. She was informed about these matters either through official evidence or her husband’s verbal communications and she noted down those dates in her declaration. However, the applicant’s personal events and dates are all in her memory and she has given dates and information about herself accurately”. Tribunal is not persuaded by those submissions. The Tribunal is of the view that those submissions do not advance the issue concerning inconsistencies much further.
The applicant puts it that the inconsistency between late 2013 (this being a date she supplied in an earlier affidavit) and early 2014 is minor, and no a ‘matter of “real” or “clear” “substantive import”’.[9]
[9] Applicant’s submissions, [19].
The applicant further puts it that the finding is unreasonable given the explanation she had provided accounting for any inconsistencies. Accordingly, it is ‘readily explicable why the applicant might then, years later, miss by a fraction (a month or two) the date of an event that she was not involved in herself’.[10]
[10] Applicant’s submissions, [20].
The applicant contends the Tribunal failed to consider, per AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 at [28] (‘AVQ15’), the ‘significance of the inconsistency having regard to the person’s case as a whole and whether the inconsistency is on a matter which is central to the person’s case or is at its periphery and involves an objectively minor matter of fact’. Further, the Full Court in AVQ15 noted that the Tribunal was required to consider ‘whether there is an acceptable explanation for the person having given inconsistent evidence such that the fact of the inconsistency should attract little, if any, weight’.[11]
[11] [2018] FCAFC 133, [28] (Kenny, Griffiths and Mortimer JJ).
The applicant submits that it is not merely sufficient for the Tribunal to identify inconsistencies. The matter of ASB17 v Minister for Home Affairs [2019] FCAFC 38 (‘ASB17’) at [43] is instructive:
differences in accounts may be rationally and reasonably capable of giving rise to concerns about a person’s credibility, or (perhaps more likely) reliability. Or they may not. Simply (and incorrectly) attaching the label “inconsistent” to differing accounts of an event, or differing narratives, does not make them so. Where an adverse finding is made on the basis of differences in accounts, it will usually be necessary to properly discharge the fact-finding task for a decision-maker to explain why she or he has found those differences of such a nature as to justify rejection of the narrative or account given by a person’.
The applicant submits that the concluding statements in [29] of the Tribunal’s decision record (‘not persuaded’ and ‘those submissions do not advance the issue concerning inconsistencies much further’) fail to justify the rejection of the applicant’s claims.
This failure, it is put, also affects the Tribunal’s obligation, per s 499(2A) of the Act, to comply with directions given by the Minister under s 499(1). In this case, that is Direction No 56 – Consideration of Protection Visa Applications (‘the Direction’). Failure to comply, it is submitted, is a jurisdictional error.
Applicant’s submissions on demeanour
The applicant impugns [40] of the Tribunal’s decision record, claiming that the reasoning involved in the paragraph is similarly unreasonable. The paragraph states:
The Tribunal asked the applicant about the sexual assault claim and the applicant described the details of the claimed assault. The Tribunal acknowledges that the applicant’s evidence in relation to the assault was generally consistent with her written claims, however and given the nature of the claims and in comparison with the way that the applicant has given evidence in relation to her other claims, the Tribunal got an impression that the evidence in relation to the sexual assault claim was rehearsed and scripted. The Tribunal found it odd that the applicant would recount those events in the manner that she did; the Tribunal does not wish to sound harsh but a claim of sexual assault is significant and traumatic. The Tribunal acknowledges that reliance on demeanour is risky in decision-making and that there is individual variance in reactions and response to trauma. However, the way the applicant described the sexual assault differed substantially from the way she gave evidence in relation to many other aspects of her claims. One of the explanations that the applicant gave is that she did not recall details about other aspects of her claims because she had not experienced the events herself and the Tribunal acknowledges that such an explanation does have some merit, however, this does not entirely explain other evidentiary problems such as inconsistencies in her oral evidence and written claims. […].
The applicant submits that, to whatever extent that the adverse inference relies on assumptions of how a victim should react (ie. being more or less emotional or distressed), such reasoning process would be unreasonable. The applicant buttresses this point by referring to The Law of Refugee Status, where it is stated that the risks of assessing credibility on the basis of demeanour are ‘extreme’.[12] The applicant puts it that it is extreme because:
The decision-maker will have to operate from some sense of what ‘normal’ demeanour is if she is draw a negative inference based on observation of non-conforming demeanour. Yet by definition such a process ‘appear[s] to presume a benchmark of normalcy for refugee testimony that is incompatible with the pluralism inherent in global diversity and at odds with principle adjudication of asylum claims.[13]
[12] James C Hathaway and Michelle Foster, The Law of Refugee Status (Cambridge University Press, 2nd ed, 2012), 142-3, cited with approval in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, [24] (Kenny, Griffiths and Mortimer JJ).
[13] Applicant’s submissions [7.2].
It is further claimed that the Tribunal has made a reasoning error in this paragraph. The Tribunal questions the applicant regarding the differences in how she described her sexual assault and her other evidence. The Tribunal then uses this explanation (‘that she did not recall details about other aspects of her claims because she had not experienced the events herself’) to make a further negative credibility findings on irrelevant areas – being inconsistencies in her oral and written claims. The applicant puts it that extrapolating an explanation as to ones demeanour into adverse findings on all evidentiary problems is unreasonable.
Lastly, the applicant alleges that the Tribunal failed to comply with the Direction. The applicant quotes the guideline as stating that, to make an adverse finding the decision maker’s reasons ‘should be clear and referable to probative evidence’ and that ‘it is not sufficient simply to make general passing comments on general impression’.[14]
[14] Supplementary Court Book 93.
Applicant’s submissions on implausibility
The final sentence of [40] of the decision record provides:
Furthermore, the Tribunal finds it difficult to accept that in a security block, even if the guards were not at the desk, three men would go up to the fourth floor and commit sexual assault.
The applicant questions the logical basis on which this conclusion rests. If the reasoning does rely upon notions about how men or, perhaps, Egyptian men, behave, the applicant claims there is no evidence supporting such a claim. Analogising with The Law of Refugee Status, the applicant states (and quoted as is):
The Tribunal’s approached involved no more than “some vague sense of implausibility”, being one “premised on inferences, assumptions and feelings that range from overreaching to sheer speculation”. “Speculation and conjecture cannot form the basis of an adverse credibility finding”.[15]
[15] James C Hathaway and Michelle Foster, The Law of Refugee Status (Cambridge University Press, 2nd ed, 2012) at 140.
Ground 2
The applicant’s second ground is that the “reasons” provided by the Tribunal do not reach the standard of s 430(1) of the Act. The applicant developed this submission on three premises:
a)the provision of written reasons is the moment when the decision is made;
b)the purpose of the Tribunal being required to provide written reasons is to enable the Court to assess whether a decision is affected by jurisdictional error; and
c)whether the Tribunal’s decision fails to enable a person to assess whether this decision is affected by jurisdictional error.
When is the decision made?
Section 430(2) of the Act defines when a decision is made:
(2) A decision on a review (other than an oral decision) is taken to
have been made:
(a) by the making of the written statement; and
(b) on the day, and at the time, the written statement is made.
The applicant submits that this section is distinguishable from s 501(2) which was the focus of the Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Palme (2003) 216 CLR 212 (‘Palme’). The High Court found in Palme that a decision made pursuant to s 501(2) was not affected by failing to produce written reasons: ‘section 501G assumes the making of a decision […] and imposes a duty with respect to notification of that decision’.[16] In other words, the decision is ‘posterior’ to the notification.[17]
[16] Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Palme (2003) 216 CLR 212, [37].
[17] Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Palme (2003) 216 CLR 212, [33].
It is put that written reasons are not separate to the decision according to s 430; rather, they occur simultaneously (‘a decision … is taken to have been made by the making of the written statement’). Nor does s 430 have an exempting clause similar to s 501G(4) which states that ‘a failure to comply with this section in relation to a decision does not affect the validity of the decision’.[18]
[18] Migration Act 1958 (Cth) s 501G(4).
The purpose of a written decision
The Tribunal, when providing its reasons, must adhere to s 430(1) of the Act:
(1) Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based; and
(e) in the case of a decision under paragraph 426A(1C)(b) or subsection 426A(1E) to confirm the dismissal of an application—indicates that under subsection 426A(1F), the decision under review is taken to be affirmed; and
(f) records the day and time the statement is made.
During oral submissions, the applicant referred to the decision of Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 (‘Wingfoot’). Particular reference was given to [55] of Wingfoot which, while relating to different legislation, states:
The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.[19]
[19] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43, [55] (French CJ, Crennan, Bell, Gageler and Keane JJ).
The applicant further referred to [105] of Palme:
Rationale for reasons: The rationale of the obligation to provide reasons for administrative decisions is that they amount to a "salutary discipline for those who have to decide anything that adversely affects others". They encourage "a careful examination of the relevant issues, the elimination of extraneous considerations, and consistency in decision-making". They provide guidance for future like decisions. In many cases they promote the acceptance of decisions once made. They facilitate the work of the courts in performing their supervisory functions where they have jurisdiction to do so. They encourage good administration generally by ensuring that a decision is properly considered by the repository of the power. They promote real consideration of the issues and discourage the decision-maker from merely going through the motions. Where the decision effects the redefinition of the status of a person by the agencies of the State, they guard against the arbitrariness that would be involved in such a redefinition without proper reasons. By giving reasons, the repository of public power increases "public confidence in, and the legitimacy of, the administrative process".[20]
(citations omitted)
[20] Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Palme (2003) 216 CLR 212, [105] (Kirby J).
The applicant submits that these authorities, in conjunction with the requirements of the Act, require the Tribunal to provide reasons and not mere conclusions.
Does this decision enable a person to assess whether the decision is affected by jurisdictional error?
By oral submission the applicant referred the Court to parts of the Tribunal’s decision which, it is said, fails to enable a person to assess whether a decision is affected by jurisdictional error. The focus of this interrogation applicant was on [27] and [40] (which have already been extracted).
From [27] of the decision record:
The applicant stated that she was confused about the dates because she was not involved herself and she did not live those events personally to remember them. The Tribunal is not persuaded.
From [40] of the decision record:
Furthermore, the Tribunal finds it difficult to accept that in a security block, even if the guards were not at the desk, three men would go up to the fourth floor and commit sexual assault.
With respect to [27] extracted above, the applicant questioned why the Tribunal was not persuaded. Was it her credibility or demeanour? And if so, what was caused her credibility to be diminished or made the Tribunal question her demeanour? Was it that she was ‘rehearsed and scripted’ as the Tribunal alleges at [40]? In short, the applicant puts it that these sentences tend more towards a conclusion than reasons: we do not know why the Tribunal was not persuaded by her explanation.
With respect to [40] extracted above, the applicant alleges it is patently unclear how the Tribunal made this conclusion. As raised earlier, the applicant questions whether the Tribunal has a particular knowledge of what men (particularly men in Egypt) will do or whether there is another reason the Tribunal decided that 3 men would not go up four floors to commit sexual assault.
Conclusion
The applicant concluded that because the Tribunal’s reasons are inadequate, the standard demanded by section 430(2) was not reached. Therefore, the Tribunal is not functus officio and must reconsider the applicants’ application.
Respondent’s submissions
Ground 1
The respondent asserts that the applicant is attempting a novel argument in using a discussion in The Law of Refuge Status in place of determining whether the decision was illogical or irrational.[21] Despite The Law of Refugee Status being approved by AVQ15 and ASB17, the respondent submits these cases do not purport to establish any new standard of jurisdictional review. Further, the Court must exercise considerable caution ‘before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error’.[22]
[21] Respondent’s submissions [24] and [27].
[22] CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496, [60] (McKerracher, Griffiths and Rangiah JJ) citing Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, [56] (Wigney J).
The respondent states that it is a high bar to establish whether a decision was illogical or irrational: ‘if reasonable minds could differ as to the conclusions to be drawn from the evidence, illogicality or irrationality or unreasonableness could not arise simply because one conclusion had been preferred to another possible conclusion’.[23]
[23] CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496, [59] (McKerracher, Griffiths and Rangiah JJ) citing Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, [131] (Crennan and Bell JJ).
In response to the applicant’s complaints about the Tribunal’s reliance on inconsistencies, the respondent makes three arguments:
a)it cannot be stated that no reasonable decision maker would have relied upon the inconsistency;
b)the inconsistency was not the only reason for making adverse findings against her – at its most impactful, the inconsistency was described as only having raised doubts about her claims; and
c)if, alternatively, it is found to be illogical and/or irrational, it is not a jurisdictional error as the finding is only one of a number of matters and not critical to the Tribunal’s ultimate conclusion.
The respondent claims the Tribunal rejected the applicant’s claim of being sexually assaulted because:
a)the Tribunal’s impression of how the first applicant gave evidence of the sexual assault differed from the way the first applicant gave evidence in relation to other aspects of her claims;
b)the Tribunal had difficulty accepting that three men would go up to the fourth floor of a securitised building to commit sexual assault (even if the security guards were not at the desk); and
c)the Tribunal had not accepted the first applicant’s evidence of her husband’s activities, and this finding undercut her claim to have been sexually assaulted.
In response to the applicant’s complaints about the Tribunal’s finding in respect of her sexual assault, the Tribunal responds that:
a)it cannot be stated that no reasonable decision maker would have rejected her claim to having been sexually assaulted;
b)the mere fact that the Tribunal relies on her credibility – being one factor amongst many – does not, in itself, give rise to jurisdictional error;
c)her demeanour was not the only reason for making adverse finding against her, and the Tribunal, therefore, did not have to state the logically probative evidence on which it relies in making such a finding;
d)when read contextually, the applicant’s reason for her demeanour has ‘some merit’ is explained – that the Tribunal accepts that it makes sense but rejects the explanation.[24] The Tribunal, according to the respondent, did not believe the explanation overcame the Tribunal’s other concerns;
e)it is open for the Tribunal to find it implausible that three men would enter a guarded building (the applicant had stated that the premises had some security) and go up to the fourth floor to commit sexual assault; and
f)it is not illogical or irrational for the Tribunal to regard its concerns about the plausibility of the applicant’s sexual assault as reinforcing the Tribunal’s other concerns about her claim.
[24] Tribunal’s decision record, [40].
The respondent submits that when the decision record is read as a whole, it is clear that the Tribunal did properly consider the Direction.
Ground 2
The respondent asserts that the Tribunal’s decision does contain sufficient reasons to comply with s 430(1) of the Act. The decision record, further, does contain sufficient detail to enable the Court to determine whether the decision is affected by jurisdictional error.
It is put that the ‘the tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence’.[25] Failure to provide the sub-set of reasons may be a jurisdictional error if the Court infers that the Tribunal failed to consider a piece of evidence, but such failure does not mean the Tribunal has not complied with s 430(1).
[25] Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham [2000] HCA 1, [67] (McHugh, Gummow and Hayne JJ) (‘Durairajasingham’).
If the Court did find that the Tribunal’s decision was deficient according to s 430(1), the respondent asserts that this would not have the consequences contended by the applicant as there is established authority that failure to comply with s 430(1) will not amount to jurisdictional error. The respondent further submits that:
a)the legislative changes to s 430 do not warrant the Court departing from the statement by Justice McHugh in Durairajasingham at [70] that:
The language of s 430(1) indicates that the requirement that the tribunal give reasons for its decision is not a requirement which goes to jurisdiction. The opening words of s 430(1) presuppose that the tribunal has made a decision: “[w]here the Tribunal makes its decision”, and the subsection then goes on to impose requirements to be fulfilled subsequent to that decision being made.
b)a decision under s 430(2) is ‘taken to have been made’ by the written statement, with the subtle difference being that decision precedes the reasons. The respondent submits this is consistent with the Explanatory Memorandum which, it is said, notes the purpose of the legislative change is to fix a time for the decision (and thus the Court should reason, not to provide a ground of appeal);
c)because the requirement to give reasons does not go to the Tribunal’s jurisdiction, any failure by the Tribunal in its written statement does not mean the Tribunal is not functus officio; and
d)if the Tribunal is not functus officio, the appropriate remedy is for an order compelling the Tribunal to comply with its obligations under s 430(1).
Consideration
Ground 1
Both AVQ15 and ASB17 make it clear that a decision-maker needs to be careful when identifying inconsistencies and then making adverse findings in relation to the credibility of an applicant and using this as a basis for rejecting the applicant's claims.
The Tribunal has made findings in relation the applicant's credibility as I have outlined above. Aspects of the Tribunal's decision regarding the applicant's credibility are unsatisfactory. For instance, the Tribunal does not explain why the applicant’s inconsistencies in relation to when Sohair purportedly converted to Christianity (as outlined at [18]) or inconsistencies of when Sohair left Egypt for Sweden (as outlined at [19]) are of such a nature such as to form part of the reasons for rejecting the narrative as a whole (AVQ15 at [28]).
At [27] of the Tribunal’s decision record, the Tribunal refers to an inconsistency between the applicant’s statutory declaration dated 9 October 2014 and her answer to a question from the Tribunal as to when Sohair left for Sweden (either in 2013 or in February 2014).[26] The Tribunal stated that:
The applicant stated that she was confused about the dates because she was not involved herself and she did not live those events personally to remember them. The Tribunal is not persuaded. The Tribunal is of the view that the inconsistency raises doubts about the applicant’s claims on her credibility. The applicant has signed a statutory declaration referring to a specific date which is inconsistent with the date she provided in the course of the hearing; she gave the date of 2013 and not February 2014.[27]
[26] Court Book, 99-104.
[27] Tribunal’s decision record, [27].
Similarly at [40] of the Tribunal’s decision record where the Tribunal referred to the applicant's claim of being sexually assaulted, the Tribunal stated that the Tribunal believed the applicant’s evidence to be rehearsed and scripted. The Tribunal made findings in relation to the demeanour of the applicant and used that as a basis for finding that the claims lacked credibility. The issue with the Tribunal’s reasoning is that it contains no explanation as to how the applicant's demeanour had differed when she gave evidence in relation to the alleged sexual assault as opposed to other areas in which she gave evidence, or what the particular issue or problem the Tribunal had with the applicant's demeanour. The same issue arises in relation to the finding that three men would not go up to the fourth floor to commit sexual assault. The Tribunal states that ‘the Tribunal finds it difficult to accept that in a security block, even if the guards were not at the desk, three men would go up to the fourth floor and commit sexual assault’.[28] Why the Tribunal found this difficult to accept is not explained.
[28] Tribunal’s decision record, [40].
The Tribunal concluded at [41]:
having asked the applicant a number of questions about her husband’s religious activities and as outlined above, the Tribunal found the applicant’s evidence to be vague, general, lacking in details, and inconsistent. The Tribunal has taken the applicant’s mental health into consideration, however, the Tribunal is not satisfied those evidentiary problems relate to the applicant’s mental health. Looking at the evidentiary concerns independently and cumulatively, the Tribunal is satisfied that the applicant is not credible and that the claim of sexual assault has been fabricated to enhance her protection claims.
The Court is mindful that a finding that the Tribunal’s decision is irrational or illogical is a high bar.[29] At [131] of SZMDS, Justices Crennan and Bell state:
the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion
[29] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (‘SZMDS’), [131] (Crennan and Bell JJ).
The Court is also mindful of what Whitney J stated at [55] of Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 that:
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. 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.
(citations omitted).
The inconsistencies identified by the Tribunal are not sufficient to explain or to support the finding that the applicant has fabricated her claims, and this includes the claim of sexual assault. The Court acknowledges that the decision of the Tribunal must be read as a whole. The Tribunal’s findings at [27] must also be read in the context of the preceding narration of the claims and the description of the evidence given at the Tribunal’s hearing. However, the Tribunal has failed to set out in an adequate terms the path of reasoning by which it arrived at this conclusion.[30]
[30] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43, [55] (French CJ, Crennan, Bell, Gageler and Keane JJ).Bell
I accept that a central focus is whether any shortcoming in the findings are material to the decision ultimately made by the Tribunal. The decision that the Court has come to is not without significant reservation. However, on balance, I accept the applicant’s submissions that the findings in relation to credibility based on inconsistencies cannot be sustained as they are legally unreasonable.
The findings of credibility based around what was said to be inconsistencies or, alternatively, on the grounds of unspecified changes in demeanour, do appear to be central to the Tribunal's findings on credibility which in turn were central to its disposition of the application before it.
For these reasons, the Court is of the view that ground one is made out.
Failure to comply with Direction No. 56
The Court is of the view that when the Tribunal's decision record is read as a whole, it is apparent that the Tribunal took into account Direction No. 56 and made specific reference to the guidelines at [7] of its decision record.
Ground 2
The Tribunal’s decision does comply with section 430(1) of the Act. The Tribunal, by its written statement:
a)sets out the decision of the Tribunal on review;
b)sets out the reasons for the decision;
c)sets out the findings on the material questions of fact; and
d)otherwise, refers to the evidence or any other material which of which the findings of fact were based.
The fact that the Tribunal failed to provide an adequate explanation as to certain matters going to credibility which were central to its decision does not mean that there was no decision at all.
Further, I accept the submissions of the Respondent that a failure by the Tribunal to comply with s 430(1) of the Act, does not amount to jurisdictional error: Durairajasingham, 417-418.
Conclusion
For these reasons, the relief sought by the applicant and the issue of writs will follow. Given the findings as to the applicant’s credibility, it is appropriate that the matter be referred back to the Tribunal for rehearing before a differently constituted Tribunal: Vegco Pty Ltd Gibbons [2008] VSC 363 at [33], Balasi v Sikh Mission Centre Inc [2018] FCA 107 at [22].
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge McNab
Associate:
Date: 20 September 2019
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