CZT16 v Minister for Home Affairs
[2020] FCCA 1451
•4 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CZT16 & ORS v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 1451 |
| Catchwords: MIGRATION – Protection visa – whether Tribunal erred in its approach to the plausibility of first applicant’s claims – whether Tribunal’s reasoning was baseless – whether decision unreasonable, illogical or irrational – what constitutes evident and intelligible justification – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.32, 32(2)(aa), 36, 36(2), 36(2)(aa) (b) & (c), 36(2A), & 65 |
| Cases cited: Thevendram v Minister for Immigration & Multicultural Affairs [2000] FCA 1910 |
| First Applicant: | CZT16 |
| Second Applicant: | CZU16 |
| Third Applicant: | CZV16 |
| Fourth Applicant: | CZW16 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 122 of 2018 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 3 March 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 4 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Peter Barnes |
| Solicitors for the Applicant: | MSM Legal |
| Counsel for the Respondents: | Ms Graycar |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
The applicants are to pay the costs of the first respondent as agreed or taxed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 122 of 2018
| CZT16 |
First Applicant
| CZU16 |
Second Applicant
| CZV16 |
Third Applicant
| CZW16 |
Fourth Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 1 March 2018. That decision affirmed an earlier decision of a delegate of the first respondent, made on 23 March 2015, refusing to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (‘the Act’).
On 24 February 2020, an Amended Application was filed and the application proceeded on the basis of the following single ground:
“1.The AAT committed jurisdictional error in finding, at [64], that the First Applicant faces a “remote” rather than “real” risk of significant harm at the hands of her uncle if she were to return to Albania
Particulars:
a.An integer of the First Applicant’s claim for protection arises from her involvement as a “matchmaker” between her cousin, X and a worker at one of her mother’s vineyards. Their liaison was objected to by X’s father, who arranged for X to marry another man. X committed suicide.
b.The First Applicant claimed that X’s father, her uncle, blamed her for his daughter’s death and was intent on harming her if ever she returned to Albania.
c.Having accepted the underlying facts – including that the First Applicant was instrumental in introducing X to her lover – and further having accepted for the purpose of the assessment that X’s father might be violent and be motivated by an irrational and unpredictable commitment to tradition, the AAT rejected as implausible the assertion that he would harbour vengeful thoughts against the First Applicant: at [60]-[64].
d.The conclusion as to the level of risk is without logical and rational basis. The error is material in that the First Applicant has been deprived of the possibility of a successful outcome.
e.The Second, Third and Fourth Applicants are members of the same family group.”
The applicants relied on their Amended Application filed 24 February 2020, the materials in the Court Book, and their written submissions filed 18 February 2020.
The first respondent relied on the materials in the Court Book and their written submissions filed 25 February 2020.
Background
The applicants are citizens of Albania and are a family unit comprising:
a)First Applicant - CZT16 (‘the wife’);
a)Fourth Applicant - CZW16 (‘the husband’); and
b)Second and Third Applicants - CZU16 and CZV16 (‘the children’).
The background to this matter is complex and is summarised in the Tribunal decision reproduced verbatim as follows:
“Application history
5. The first named applicant first applied for a protection visa on 9 February 2011 as a secondary applicant to her husband, but having completed a form 866C: ‘Application for an applicant who wishes to submit their own claims to be a refugee’. The applicant wrote in response to the question, ‘why did you leave that country?’
[T]he political enemies of my husband were threatening to kill him and the threats were directed at him in Italy in the lead up to the proposed EU opening of the borders to Albanians. As his wife I am also under threat of kidnapping or violence because I am the chink in his armour, they can use me to get at him if they cannot find him. So I was forced to flee also.
6. On 26 August 2011 a delegate of the Minister refused the application for a visa. On 22 March 2012 the Tribunal affirmed the delegate’s decision having specifically considered whether the current applicant, as she then claimed, would face a real chance of serious harm as a member of a particular social group (member of her husband’s family).
7. Following the passing into law of the Migration Amendment (Complementary Protection) Act 2011 (Cth) the first named applicant applied for a protection visa in February 2014. A delegate of the Minister refused the applicant on 23 March 2015. The applicant appealed this decision to the Tribunal which subsequently affirmed the delegate’s decision on the 14 September 2016. The applicant appealed this decision to the Federal Circuit Court. The case was remitted by consent originally for the reason:
The Tribunal committed a jurisdictional error by failing to consider the First Applicant’s claims under s 36(2)(a) of the Migration Act 1958 (Cth), in circumstances where the First Applicant’s claims were not assessed against s 36(2)(a) in her earlier Protection visa application. As outlined in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, it was open to the First Applicant to seek to satisfy either s 36(2)(a), (aa) or (c) in her present Protection visa application, being the criteria against which she had not previously been assessed. However, the Tribunals consideration of the First Applicant’s claims has resulted in findings being made only against s 36(2)(aa), (b) and (c) and therefore the Tribunal fell into jurisdictional error.
8. The Tribunal questioned the reason for remittal as s.48A of the Act places a bar on a further application which duplicates an earlier unsuccessful application for a protection visa. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of under specific circumstances only considering claims in relation to the complementary protection criterion in s.36(2)(aa). As a result, under Rule 16.05(2)(f) of the Federal Circuit Court Rules 2001 the reason was subsequently varied to:
The Tribunal denied the applicant procedural fairness and that this constituted a jurisdictional error, of the kind found in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183, in circumstances where:
a. A delegate of the first respondent issued a notification pursuant to s.438(1)(b) of the Migration Act 1958 (Cth) on 9 March 2016 and the existence of the notification was not disclosed to the applicant in the course of the review by the Tribunal; and
b. At least some of the documents subject of the notification were relevant, or potentially relevant, to the issues arising on the review by the Tribunal.
9. Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a).
10. For this reason the decision reconsiders the case following the remittal to the Tribunal of the February 2014 application. For the first and fourth named applicants it considers claims under s.32(2)(aa), (b) and (c). For the second and third named applicants this decision considers claims under the entirety of s.36(2).
11. The applicants appeared before the Tribunal on 27 September 2017, 11 December 2017 and 2 February 2018 to give evidence and present arguments. The first hearing was held in person within the Tribunal’s premises in Adelaide. The subsequent hearings were held by video with the applicants in the Tribunal’s premises in Adelaide and the Member in the Tribunal’s premises in Melbourne. Issues arose with the quality of video transmission during the second hearing. Due to these issues the hearing was adjourned and completed in its third occurrence.
12. The Tribunal also received oral evidence from X, the mother of the first named applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Albanian and English languages.
13. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearings.” [1]
(name omitted at para 12)
[1] Court Book (‘CB’), 563–565 [5]-[13].
To summarise the relevant history of the matter, in 2014, whilst the original claims around the political profile of the husband were re-agitated under complementary protection grounds,[2] the wife also raised new claims based on a fear of harm from her uncle who sought vengeance as a result of the death of his daughter.[3] The decision relating to that claim was affirmed by the Tribunal on 1 March 2018 and it is that Tribunal decision that formed the basis of this application for judicial review.
[2] Ibid, 176.
[3] Ibid, 240-245.
The 2014 claims by the applicant wife are summarised hereunder.
a)In 2009, the wife introduced her then 15 year old cousin to a man working on her mother’s vineyard property. The cousin and the worker commenced a sexual relationship.
b)The wife’s uncle (the cousin’s father) discovered the relationship and physically beat the cousin so severely that she was bedridden for a period of approximately two weeks. The cousin was subsequently forced into an arranged marriage with another man in 2011.
c)On 27 July 2012, the cousin committed suicide at the age of 18 after shooting herself in the head at her family home.
d)The wife’s mother telephoned her three days after the funeral to advise that the uncle came to her home shouting that the wife was responsible for his daughter’s death due to her involvement in introducing her to the vineyard worker.
e)The wife claimed that the uncle made threats to her mother, namely that he wanted her to “feel the pain as we are feeling it now” and, “my daughter is dead but your daughter will go the same way”.
f)The uncle continues to threaten the wife, through her mother, when he walks past the mother’s house every month or two, with the most recent threat being made in 2017.
g)The wife’s mother has been physically harmed by the uncle on two known occasions. These incidents involved her being pushed to the ground and held tightly on the arm.
h)The wife fears the uncle intends to act out a blood feud under customary Albanian law, known as the Kanun. She states her belief that he will act outside of the Kanun, insofar as he intends to harm her. The Kanun allows revenge killings but does not allow the murdering of women and children.
The Tribunal’s decision
The Tribunal considered the 2014 Application pursuant to s 36(2)(aa) as well as s 36(2)(b) and (c) of the Act. In relation to the two children, the Tribunal assessed their claims under the entirety of s 36(2) of the Act.
In relation to the wife’s fear of harm by the uncle, the Tribunal accepted as fact the wife’s claims as outlined above.
In considering whether the wife faced a real risk of significant harm, the Tribunal considered the factors outlined below.
Attempts to locate the wife
The Tribunal found it implausible that the uncle would go to Italy to seek information on the wife’s whereabouts yet not physically confront her mother who lived in a neighbouring village.[4]
[4] Ibid [60].
Physical harm on the wife’s mother
In relation to the physical harm inflicted upon the wife’s mother by the uncle, the Tribunal accepted the harm had occurred, but made a finding that the nature of harm did not amount to significant harm, and found that the actions were, “not done with intent to cause serious harm.”[5] The Tribunal gave an example of the uncle, “not bringing a gun to the confrontation”[6] as rationale for this finding.
[5] Ibid [63].
[6] Ibid [64].
Application of blame on wife’s mother
The Tribunal did not accept that any harm inflicted by the uncle on the wife would be greater than the harm suffered by her mother.[7] This finding was based on the assumption by the Tribunal that the uncle believed the mother to be equally culpable for the death of his daughter. It was stated:
“It is difficult to identify a substantially higher level of responsibility for the illicit relationship lying with the wife who was turning 19 at the time, and the mother who was the person ultimately responsible for the workforce.”[8]
[7] Ibid.
[8] Ibid [62].
Further, the Tribunal did not accept that the uncle would not cause, “serious harm to someone who is equally responsible for his daughter’s suicide, but instead wait for nearly a decade to harm the daughter so as to harm the mother … ”[9]
[9] Ibid [64].
The Kanun
When assessing the country information about the ‘Kanun’ or blood feud, the Tribunal agreed with the view of the applicant that the uncle was acting outside of any adherence to the Kanun.[10]
[10] Ibid [61].
In relation to risk faced by the children, they were not considered to be at risk of a greater level of harm than that of their mother. Accordingly, the Tribunal made a finding that the children did not face a real chance of serious harm or a real risk of significant harm.[11]
[11] Ibid [68].
In relation to the fourth applicant husband, the Tribunal found no evidence that the husband would face harm separate to the wife.[12]
[12] Ibid [65].
Findings
For the reasons outlined above, the Tribunal found that the wife faced only a remote risk of significant harm as a necessary and foreseeable consequence of returning to Albania.[13]
[13] Ibid [64].
Applicants’ submissions
The applicants submitted that the Tribunal committed jurisdictional error in finding that the first applicant faced a ‘remote’ rather than ‘real’ risk of significant harm.[14] It was submitted the errors were as follows:
a)Having accepted the underlying facts, the Tribunal erred in its approach to the plausibility of claims put forward by the first applicant.
b)The Tribunal’s reasoning as to why the claims were rejected was materially based upon findings or premises for which there was no logical and rational basis.
[14] Applicants’ Outline of Submissions, filed 18 February 2020, 11 [42].
The applicants’ written submissions outlined what was described as the Tribunal’s implausibility findings. They were as follows:
“a.That the wife’s uncle would go to Italy to seek out information on the wife but not take the obvious route of physically confronting her mother who lived in a neighbouring village to the uncle: [60]
b.That the uncle for the eight years prior to the decision would channel his anger only at the wife and not at her mother, given that it was arguable the mother was equally culpable for what happened … as she was “ultimately responsible for the workforce” in which [the cousin’s] lover was working, … [62]
c.And that therefore, the uncle would not harm someone who was equally responsible – in his view – for his daughter’s death, but instead wait for nearly a decade to harm the wife: [64]”
On the issue of plausibility assessments in refugee matters, the applicants referred the Court to certain passages in the decision of the Full Court of the Federal Court in Thevendram v Minister for Immigration & Multicultural Affairs[15] (‘Thevendram’):
“A Tribunal does not err in law by making a “wrong” finding of fact. The principle thus expressed is that conclusion of fact, however unlikely, cannot be a “wrong” conclusion if there is some material to support it. That principle does not extend to a conclusion made in the absence of probative material or a conclusion based on the existence of a fact that does not exist.
Ground for review will be shown, however, by failure of the Tribunal to observe the requirement of the Act that the decision be made by rational process … The Tribunal must give “proper, genuine and realistic consideration upon the merits to the material questions of fact before it.”[16]
(emphasis added)
[15] [2000] FCA 1910 (‘Thevendram’).
[16] Applicants’ Outline of Submissions, filed 18 February 2020, 8, quoting Thevendram [38]-[39] (Merkel J).
The applicants submitted that the Tribunal failed to identify any inconsistencies, vagueness or lack of detail in the wife’s evidence that would lead to a conclusion of implausibility. The Court was referred to case law, including W148/00A v Minister for Immigration and Multicultural Affairs,[17] in which Lee J described implausibility in the following terms: “A circumstance is “implausible” if it is beyond human experience of possible occurrences, that is to say, inherently unlikely.”[18] It was further argued that the Tribunal could not have established an implausibility finding on the facts before it because the wife’s version of evidence had not been discredited.[19]
[17] [2001] FCA 679.
[18] Ibid, [21] (Lee J).
[19] Applicants’ Outline of Submissions, filed 18 February 2020, 9 [34].
Relying on Abebe v Commonwealth[20] and Minister for Immigration and Ethnic Affairs v Guo Wei Rong,[21] the applicant submitted that the Tribunal, upon finding that the appellant was credible, was bound to assess whether there was a real chance the events may occur as the applicant feared they would, yet the Tribunal did not accept the applicant’s fears to be realistic. This conclusion, on the applicant’s case was legally unreasonable and reached without logical or probative basis.
[20] (1999) 197 CLR 510 [85] (Gleeson CJ and McHugh J).
[21] (1997) 191 CLR 559 [576] (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).
For the above reasons, counsel for the applicants argued that irrationality and illogicality grounds had been made out, rendering it permissible for the Tribunal’s findings to be scrutinised by the Courts. It was submitted that, “there is no logical connection between the evidence – including the country information – and the inferences and conclusions drawn.” [22]For that reason, jurisdictional error was demonstrated.
First Respondent’s submissions
[22] Applicants’ Outline of Submissions, filed 18 February 2020, 10 [42], quoting CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 [508]-[509] (Griffiths and Rangiah JJ).
The first respondent submitted that the applicants sought to challenge a factual finding within the jurisdiction of the Tribunal which amounted to a request to engage in an impermissible merits review. The threshold is as stated in Minister for Immigration and Citizenship v SZMDS (‘SZMDS’):[23]
[23] (2010) 240 CLR 611 (‘SZMDS’).
“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.”[24]
[24] Ibid [131].
…
“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. None of these applied here.”[25]
[25] Ibid [135].
The first respondent reminded the Court that the High Court described the test for unreasonableness as fact dependent and consequently, “stringent” and “extremely confined”.[26]
[26] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30.
The first respondent acknowledged the existence of case law involving challenges to fact finding and, relying on various authorities including the decision in DAO16 v Minister for Immigration and Border Protection, (‘DAO16’)[27] argued that errors in fact finding that relate to credibility findings can give rise to jurisdictional error only in very limited circumstances of “extreme illogicality”. On the current case, it was the first respondent’s position that the abovementioned tests for illogicality and irrationality were not met by virtue of the following:
a)The Tribunal did not make adverse credibility findings, rather it claimed it was the magnitude of the risk that was found to be implausible. The cases referred to by the applicant were distinguished on the facts as being related to credibility findings.
b)While it accepted there was a risk of harm to the wife by the uncle, the harm was not considered to equate to a ‘real risk’ of ‘significant harm’ as required under the Act. The findings as to the magnitude of harm was the result of consideration which took into account several factors including:
i)The passage of time, and
ii)The mother’s similar involvement in the incident which created risk by the uncle and the type of harm occasioned by the uncle on the mother, which had not been significant harm.
[27] [2018] FCAFC 2 [30(5)] (‘DAO16’).
On the respondent’s case no error had occurred because there was an “evident and intelligible justification”[28] for the Tribunal’s findings and it was not beyond the scope of the Tribunal’s decision making power to arrive at the considered conclusion which it did.
[28] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 [76] (‘Li’).
Consideration
I have considered the applicants’ claim that the Tribunal acted without logical and rational basis in finding it implausible that the first applicant would face a real risk of significant harm despite finding that the underlying facts on which the fear was based were accepted as credible.
The applicants relied, in part, on the decision in Thevendram to support its proposition that the Tribunal failed to give, “proper, genuine and realistic consideration upon the merits to the material questions of fact before it.”[29] That decision also referred to the definition of the term ‘logical’ as being, “the science of formal reasoning using principles of valid inference”, and ‘illogical’ as “devoid of or contrary to logic”.
[29] Thevendram [39].
I accept the first respondent’s submission that the finding was not devoid of logic in that it was the degree of risk, not the possibility of risk that was found to be implausible. Understood in that way, there is no gap in logic. It accepted the evidence that underpinned the applicants’ claims. That did not necessarily make those claims self-proving. The decision maker still had to engage in the discretionary task required by the legislation.
It is well-established that whether a decision is ‘unreasonable’ in the relevant legal sense it must be assessed in light of the legal framework within which the decision is made.[30] That framework determines the scope of decisional freedom open to the decision maker.[31] In this matter the state of satisfaction required under s 65 was to be informed, in part, by the criteria in s 32(2)(aa) of the Act which provides the following for the issuing of a protection visa:
“a non-citizen of Australia 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.”
[30] Li.
[31] Ibid [28], Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 [7], [11]-[12] (‘Stretton’).
The term ‘real risk” is not defined in the Act, however ‘significant harm’ takes the meaning provided under sub-s 36(2A) which includes: “deprivation of life, torture, cruel or inhumane treatment or punishment, degrading treatment or punishment.”
It can be seen from the terms of the section that the scope of decisional freedom open to the Minister is determined in part by the requirement that the Minister be satisfied there are, “substantial grounds” that a “real risk” of the type of harm exists. That qualitative assessment may in some circumstances be satisfied by an acceptance of the claims made by an applicant. In other circumstances, the “substantial grounds” for believing there is a “real risk” may not be as self-evident on the face of the accepted claims. A discretionary evaluation will be required, as it was here. As held in Stretton, if the decision was open on the evidence and within scope of the discretion conferred by the Act, it will not be unreasonable in the legal sense.[32]
[32] Ibid [11].
It is in part for this reason that it has been said that error in fact finding gives rise to jurisdictional error only in circumstances of extreme illogicality.[33] In my view, it cannot be said that the conclusion of the Tribunal was not arrived at by a logical process of reasoning. It reasoned that the passage of time and the lack of significant harm to the mother of the first applicant supported a conclusion that there were no substantial grounds for believing there was a real risk of significant harm to the applicant. That amounted to an evident and intelligible justification. Another decision maker may have taken a different view, but that is beside the point.
[33] DAO16.
I am satisfied that the finding of the Tribunal was open to be made on the material before it and within the scope of the discretion conferred by the Act.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 4 June 2020
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