CQG15 v Minister for Immigration

[2016] FCCA 886

FEDERAL CIRCUIT COURT OF AUSTRALIA

CQG15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 886

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal had a logical or probative basis for making adverse credibility findings – whether the Tribunal’s credibility findings were illogical and/or irrational – whether the Tribunal failed to provide the applicant an opportunity to put on evidence or submissions – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.425(1), 476

Cases cited:
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Applicant: CQG15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3336 of 2015

Judgment of: Judge Street

Hearing date: 18 April 2016

Date of Last Submission: 18 April 2016

Delivered at: Sydney

Delivered on: 18 April 2016

REPRESENTATION

Counsel for the Applicant: Mr S A Beckett

Solicitors for the Applicant: Clifford Chance Lawyers

Counsel for the First Respondent: Ms R Graycar

Solicitors for the First Respondent: Minter Ellison Lawyers

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3336 of 2015

CQG15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 3 November 2015 affirming the decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Afghanistan and applied for protection on 23 November 2012.  The delegate refused the application on 3 September 2013.  The applicant claimed to fear harm if returned to Afghanistan at the hands of the Taliban and other criminal groups on the basis of Hazara ethnicity, his Shia religion and as a failed asylum seeker returning from a western country. 

3. In support of the applicant’s claims at the time he made his application for protection the applicant provided a statutory declaration.  That statutory declaration identified certain incidents, the first involving the applicant’s father’s boss who was allegedly killed by the Taliban, and following which the applicant’s father decided to leave Afghanistan and took the applicant’s two elder brothers to Pakistan.

4. The applicant also made reference to taking over one of his brother’s role in a chemist shop after his two elder brothers had departed and asserted that the Taliban came to see him looking for his father and that he was disbelieved in relation to his father having left Afghanistan and that he was the subject of threats to be detained and killed by the Taliban.

5. The applicant said, although they had not used force on him, they had threatened him on over 20 occasions during this period and he decided to sell the business. The applicant then referred the commencing employment with his uncle as an engineer’s assistant to work in the council for about a year and alleges that a person came to the council and threatened he would kill him because he was doing the same type of work as his father’s boss had done and that his father had done.

6. The applicant described an incident where he alleged a certain person involved with the Taliban and other land mafia came to his uncle’s place. The applicant described an incident in which he was sleeping in the basement and said he heard a bang and ran up to the ground level to find out what was happening and saw three people leaving the house.  The applicant said one of them identified the applicant and aimed his gun at the applicant. The applicant said he recognised the person as an associate of a person who had threatened the applicant.

7. The applicant said he ran into his uncle’s room for safety and found that his uncle’s head was injured and his hands with a bleeding wound and he took him to hospital.  The applicant asserted that the government caught some of the people involved in the attack and that he and his uncle gave evidence in relation to that attack, that he was then the subject of threats that he would be killed if he did not repudiate his evidence.

8. The applicant also described an incident where the Taliban had attacked his sister’s place and allegedly asked about his whereabouts and that she had said she did not know where he was and that they then attacked the applicant’s sister with gun butts. The applicant said that she lost her left eye and that they kidnapped the applicant’s husband.  It was following this that the applicant says he left Afghanistan.

9. The delegate made adverse findings in relation to the applicant’s testimony lacking credibility and was not satisfied that the applicant was targeted by the Taliban.  The delegate said the information provided by the applicant was inconsistent with someone who has been targeted and that the applicant was able to own and operate a business and later, when targeted and attacked by the Taliban, the applicant remained unharmed.

10. The Tribunal found that the applicant did not have a well-founded fear of persecution based on any Convention ground. The Tribunal found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Afghanistan there is a real risk that he will suffer significant harm.

11. The grounds of the amended application are as follows:

    1. The Administrative Appeals Tribunal (“the Tribunal”) fell into jurisdictional error in determining without a logical and probative basis that all of the applicant s evidence upon which his claim was based was false.

    2. In the alternative to 1, the Tribunal fell into jurisdictional error in determining that all of the applicant's evidence upon which his claim was based was false, when such a finding was illogical and/or irrational.

    …

    4. The Tribunal fell into jurisdictional error in failing to inform the applicant that the issues enumerated in paragraphs [41], [42] and [43] of the Tribunal’s Reasons for Decision were open to doubt and failing to provide the applicant with an opportunity to provide evidence or submissions with respect to those issues.

    5. The Tribunal fell into jurisdictional error in failing to inform the applicant that each of the following items of evidence was open to doubt and failing to provide him with an opportunity to provide additional corroborative evidence and submissions:

    a. Ms [X]’s statutory declaration of 3 September 2015;

    b. The x-rays of the applicant's uncle's injuries; and

    c. The scars on the applicants body.

    …

12. Counsel for the applicant, Mr Beckett, confirmed that the other grounds were not pressed.  It is appropriate to deal with grounds 1 and 2 together as that was the sequence in which they were dealt with by counsel for the applicant.

13. The Tribunal made adverse credibility findings in relation to the applicant. Those adverse credibility findings followed a detailed analysis of the applicant’s evidence and the issues of credibility arising from that evidence. The Tribunal concluded the applicant was not a witness of truth and that the account of events on which his protection claims were based was false.

14. The kernel of the submissions advanced by counsel for the applicant focused on part of the reasoning of the Tribunal referring to the credibility concerns where the Tribunal said:

    Taken separately by themselves, none of the concerns about the applicant’s credibility, which the Tribunal has discussed, would necessarily be determinative of that issue.

15. The issue referred to by the Tribunal was whether the applicant was telling the truth.  Counsel for the applicant submitted that the recognition by the Tribunal that none of the concerns by themselves would necessarily be determinative of whether the applicant was telling the truth meant that in the circumstances of this case that the adverse finding that the applicant was not a witness of truth was not open and it was submitted that the finding by the Tribunal that the evidence on which the applicant’s claims were based was false was illogical and not based on probative or cogent evidence.

16. Counsel for the applicant took the Court to each of the incidents involved, the subject of adverse credibility comment by the Tribunal in relation to the credibility concerns and submitted that the individual incidents were not ones which would support the adverse finding by the Tribunal that the applicant was not a witness of truth and that the evidence that he gave on his protection claims was false. 

17. The applicant submitted that the adverse findings of inconsistencies in respect of the particular incidents, the subject of the Tribunal’s analysis in relation to its credibility concerns, could be characterised as minor and discrete. It was submitted that those findings could not collectively support the finding by the Tribunal that the evidence given by the applicant was false.

18. In relation to grounds 1 and 2 of the amended application, counsel for the applicant confirmed that the submission in relation to the want of a logical basis or probative ground for the adverse credibility findings and/or irrationality did include the adverse finding that the applicant was not a witness of truth.  Counsel for the applicant accepted that if it was open to the Tribunal to find that the applicant was not a witness of truth, as a matter of logic, it would follow that it was open to the Tribunal to find that the evidence given by the applicant as to his protection claims was false.

19. The kernel of the argument put by counsel for the applicant when those incidents were looked at with what was raised by the Tribunal with the applicant in the transcript, was not capable of supporting the generalised adverse finding that the applicant was not a witness of truth and that finding that the evidence that he had given in relation to his claims was false.

20. The structure of the Tribunal’s reasons in the context of making findings was one in which the Tribunal identified that it had concerns as to the applicant’s credibility and then proceeded to address in detail those credibility concerns.  In summary, the incident concerning the applicant’s father and brothers was one in which the applicant had given inconsistent accounts about whether the Taliban had assaulted him at his pharmacy.  The Tribunal raised that issue with the applicant and rejected the applicant’s explanation of the inconsistency.

21. The Tribunal had concerns about the applicant’s evidence regarding his difficulties with the Taliban after the February 2009 incident. The Tribunal said it was incongruous that despite the Taliban having killed a senior officer working with his father and that same night the Taliban had gone to the applicant’s home to get his father and threatened to kill the applicant, that beyond some visits to his pharmacy, the Taliban took no further interest in the applicant.

22. The Tribunal noted this absence of interest by the Taliban in the applicant was after selling the pharmacy, working for a land agency and undertaking work of a similar nature to that which brought his father into conflict with the Taliban.  The Tribunal put those matters to the applicant and the Tribunal noted that the applicant’s response did not allay the Tribunal’s concerns.

23. In relation to the incident concerning the applicant’s uncle, the applicant’s evidence to the Tribunal about a Taliban attack at his uncle’s home was inconsistent with the account he gave of that incident in the earlier statutory declaration and also to the delegate.  The discrepancies were raised with the applicant in the transcript and the Tribunal did not accept the applicant’s explanation.  The applicant claimed that after the trial of one of the men who attacked his uncle, the man had come to his home a few times demanding the applicant go to court and say his evidence was false.

24. The Tribunal noted that this claim had not been previously made in the applicant’s statutory declaration and the concern of the Tribunal was also put to the applicant. The Tribunal did not accept the applicant’s explanation and concluded that if the applicant was telling the truth, it could reasonably be expected that he would have raised the incident earlier.

25. In relation to the incident concerning the applicant’s sister, the Tribunal found the applicant gave inconsistent evidence about whether the attack on his sister was related to him.  The Tribunal put that inconsistency to the applicant and rejected his explanation.  The Tribunal concluded that it could reasonably expect the applicant to give consistent evidence about why the Taliban had attacked his sister.

26. The applicant had given inconsistent evidence about when he had decided to flee Afghanistan and this inconsistency was put to the applicant by the Tribunal and his explanation was rejected by the Tribunal.  It was in this context that the Tribunal, as a matter of structure of its findings, came to express conclusions on credibility.  I do not accept that the inconsistencies identified were matters of a minor kind. It was open to the Tribunal on the evidence identified to make the adverse findings of credibility that the applicant was not a witness of truth and that the evidence on which his account of events on which is protection claims were based was false.

27. Those adverse findings cannot be said to lack an evident and intelligible justification.  I do not accept that the statement by the Tribunal in relation to taking the incidents separately by themselves meant that this was a case where those inconsistencies were of a minor significance.  The reference by the Tribunal to “taking the incidents separately by themselves” was to the overall question as to whether the applicant was telling the truth.

28. The credibility of an applicant is a matter par excellence for the Tribunal.  The proposition that the adverse finding in relation to the applicant not being a witness of truth and that the basis upon which his claims were advanced was false cannot be said to be illogical. Further, that finding had a probative basis on the evidence before the Tribunal. Further, the adverse findings were not ones that could be said to be irrational or illogical.  Grounds 1 and 2 fail to make out any jurisdictional error. 

29. In relation to ground 4, counsel for the applicant submitted that the particular findings made in paras.41, 42 and 43 of the Tribunal’s reasons following the conclusion on credibility gave rise to issues that fell within SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 and should have, as a matter of procedural fairness, been squarely raised by the Tribunal with the applicant.

30. The findings made by the Tribunal in paras.41, 42 and 43 are consequential findings based on the adverse finding of credibility made by the Tribunal which I have identified were open to the Tribunal.  This is not a case of a claim within SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 where there is an issue upon which the delegate had made a positive finding and which the applicant was not appraised as to it being a live issue before the Tribunal. Before the delegate, the adverse findings made by the delegate were based on the credibility of the applicant.

31. At the commencement of the hearing before the Tribunal, the Tribunal member identified that there would be questions asked in order to assess the applicant’s credibility and noted that because the department had believed some or all of the applicant’s evidence it was still for the Tribunal member to decide whether or not the applicant was telling the truth.  It is clear from the transcript that the applicant’s credibility in relation to his claims was a live issue.

32. Following the hearing before the Tribunal, the applicant’s representative was given an opportunity to put on further submissions.  The first topic addressed in those further submissions was the credibility of the applicant.  It is clear from the events following the hearing that the representative of the applicant had clearly understood that the applicant’s credibility was of concern and a live issue in relation to the applicant’s claims.

33. This is not a case where there has been any breach of s.425(1) of the Migration Act 1958. There was no denial of procedural fairness or denial of natural justice in relation to the adverse credibility findings or the consequential findings that arose in relation to paras.41, 42 and 43 as alleged in ground 4 of the amended application.  Ground 4 fails to make out any jurisdictional error.

34. In relation to ground 5, following the hearing the applicant was given an opportunity to put on further material, including a statement from the applicant’s aunt.  That followed the applicant raising with the Tribunal that he wished to adduce evidence from his aunt and the Tribunal clarified with the applicant the nature of the evidence that she would be able to proffer.

35. That clarification identified that the evidence that the applicant’s aunt would provide would be of a hearsay kind.  In substance, counsel for the applicant submitted that the applicant should have been given a further opportunity to respond to the Tribunal’s concerns in respect of the material provided under the supplementary submissions in relation to the aunt’s declaration, some X-rays of the applicant’s uncle’s injuries and the scars on the applicant’s body. 

36. In substance, the Tribunal found, in light of the adverse credibility findings in respect of the applicant, that the evidence from the aunt was false.  The adverse finding by the Tribunal was open in relation to the aunt’s evidence and there was no reason why the Tribunal had to provide any further opportunity to the applicant to address concerns relating to a statutory declaration of the applicant’s aunt.  The Tribunal noted the applicant’s aunt was not a witness of the events and that her knowledge was only based upon what other people had told her and did not accept the applicant’s evidence about those events. 

37. In those circumstances, this was not a case where the evidence was rejected simply because of a family relationship with the applicant. The applicant was given an opportunity to provide further submissions and evidence in relation to the credibility concerns, which is what the statutory declaration was provided to address. It was a matter for the Tribunal to determine whether to accept that evidence. Those circumstances do not give rise as a matter of procedural fairness to a further requirement upon the Tribunal in relation to the applicant’s aunt’s evidence. 

38. In relation to the X-rays, the Tribunal made reference to the X-rays not overcoming the Tribunal’s concerns about the applicant’s credibility.  The Tribunal noted it had no credible evidence as to how the alleged injuries were sustained.  Those adverse findings were open to the Tribunal.  The X-rays were provided in response to the opportunity given by the Tribunal to the applicant to put on further evidence and submissions. There was no requirement upon the Tribunal to further raise its concerns in relation to the X-rays. There was no failure to comply with procedural fairness in respect of the X-rays or the aunt’s evidence given the adverse credibility findings by the Tribunal in respect of the applicant’s evidence. 

39. In relation to the scars on the applicant’s body, this was an issue that the applicant has not identified at the time he made his statutory declaration in support of his claims for protection.  The Tribunal noted that the scars could have been incurred in a number of ways and did not demonstrate the truthfulness of the claim of an assault at the pharmacy.  That adverse finding was open by the Tribunal.  The Tribunal was not required, as a matter of procedural fairness, to give the applicant a further opportunity to address the Tribunal’s concerns. 

1. I accept the first respondent’s submissions that the three matters identified go to the truthfulness of the applicant’s claims about incidents occurring.  I accept the first respondent’s submission that the truthfulness of the applicant’s evidence was a live issue before the Tribunal.  I accept the first respondent’s submission there’s no requirement on the Tribunal to specifically question the applicant about the three pieces of evidence. Ground 5 fails to make out any jurisdictional error.  The amended application is dismissed. 

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  28 April 2016