DBX18 v Minister for Immigration
[2019] FCCA 2831
•4 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DBX18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2831 |
| Catchwords: MIGRATION – Protection Visa – decision of Immigration Assessment Authority – whether the IAA expressed doubt in findings – whether the IAA was required to ask “what if I am wrong?” – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36(2)(a), 36(2)(aa), 36(2A), 46A, 91WA, 476(1) |
| Cases cited: AXG15 v Minister for Immigration and Border Protection [2016] FCA 492 |
| Applicant: | DBX18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 315 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 28 August 2019 |
| Date of Last Submission: | 28 August 2019 |
| Delivered at: | Perth |
| Delivered on: | 4 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Walker |
| Counsel for the First Respondent: | Mr M Sunits |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The applicant’s application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 315 of 2018
| DBX18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed in this Court on 12 June 2018, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 16 May 2018.
The IAA affirmed a decision of a delegate of the first respondent (the “Minister”) not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (the “visa”).
This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the IAA.
Background
The relevant factual background can be summarised as follows.
The applicant is a citizen of Vietnam (CB 3). He arrived in Australia at Christmas Island as an unauthorised maritime arrival on 8 May 2013 (CB 57).
On 27 July 2016, the Minister “lifted the bar” pursuant to s.46A of the Act to enable the applicant to apply for the visa (CB 21-22).
The applicant applied for the visa on 15 September 2017 (CB 84). His visa application was prepared with the assistance of a qualified migration agent.
The applicant’s claims can be summarised as follows (CB 76-77):
a)the applicant and his family are Catholic and because of this he “faced a lot of problems with the government” and was assaulted and harmed a number times due to his partaking in religious activities;
b)he departed Vietnam illegally and fears being imprisoned for doing so; and
c)as he is a Catholic his ability to “get a job and survive” is very difficult.
On 2 February 2018, the applicant attended an interview with a Ministerial delegate (CB 100-101).
The applicant’s migration agent forwarded written submissions to the delegate on 9 February 2018. Those submissions addressed matters that arose in the course of the delegate’s interview and addressed the applicant’s claims (CB 118-123).
On 26 February 2018, the delegate refused to grant the applicant the visa (CB 127- 145). The delegate found that the applicant was prevented, by virtue of s.91WA of the Act, from being granted the visa as he had destroyed or disposed of documentary evidence without a reasonable explanation. The delegate, in any event, was not satisfied that the applicant’s claims met the criterion of ss.36(2)(a) and (aa) of the Act.
On 14 March 2018, the matter was referred to the IAA (CB 157).
On 9 April 2018, the applicant engaged the services of a new migration agent (CB 176-179).
On 16 May 2018, the IAA affirmed the decision to refuse the visa (CB 186-201).
IAA’s Decision
The IAA’s decision is 16 pages long and spans 47 paragraphs. Four pages of the IAA’s decision extract legislative provisions relevant to the IAA’s assessment (CB 197-200). At [14]-[15] and [40]-[41], the IAA summarised those provisions.
At [1]-[4], the IAA made brief comments on procedural matters relevant to the matter before it. Relevantly, the IAA noted the basis on which the visa was refused by the delegate and noted that no further materials had been received by the IAA from the applicant.
At [5]-[7], the IAA summarised the applicant’s claims, as follows:
5.The applicant’s claims can be summarised as follows:
•The applicant and his family are Catholic. He was part of his local church choir and took part in other church activities including: taking offerings at mass; Bible readings; taking communion; decorating the church for Mass; and cleaning and tidying the church after services. He was assaulted by the police on a number of occasions due to his religion and his activities in the Church.
•The first incident occurred when he was about 15 or 16 years old. He was celebrating Mass at about 7pm. The police came to the Church, made a lot of noise to disturb them, and when they went outside after Mass, the police took the applicant and two his friends to the police station where they were assaulted and threatened before being let go.
•The second time, the police waited until the applicant and his friends were leaving Church after celebrating mass and they took him and the same two friends to the police station. They were again threatened but were beaten worse than on the previous occasion. The promised not to church again and they let them return home.
•On another occasion, not long before the applicant left Vietnam, the police again came to their Church on scooters and in cars. The applicant and his friends stayed inside and waited until evening before leaving. When he went home, his parents said he should leave Vietnam, and his father made arrangements for him to leave.
•His parents told him that since his departure from the country, the police came to their home and asked about his whereabouts. His parents told them he was overseas.
6.The applicant claimed that on return to Vietnam he will be harmed by the government due to his religion and his status as a failed asylum seeker. He contended it would be difficult for him to get a job and survive because he doesn’t have a proper education and because he is Catholic, he claimed his father would be harmed once the police find out that he helped the applicant to escape Vietnam, and that he would not be able to practice his religion as he would be in imprison.
7.In the interview conducted with the applicant shortly after his arrival in Australia (the arrival interview) and at the beginning of his SHEV interview, the applicant contended that he departed Vietnam legally. However, later in the SHEV interview he stated he was unsure whether it was in fact a legal departure. The delegate therefore considered whether the applicant would face harm on return to Vietnam due to an illegal departure. The delegate also considered that claims for fear harm on the basis of the inadvertent disclosure of some of the applicant’s personal information on the Department’s website arose on the material before him.
At [8]-[12], the IAA summarised the evidence the applicant had provided to establish his identity and accepted that he was an ethnic Kinh from the Quang Binh Province in Vietnam and that he and his family are of the Catholic faith.
At [13], the IAA noted that at the time of his visa application, the applicant had declared that he had been charged with a number of criminal offences in Australia. The IAA stated that the applicant had not claimed to fear harm on return to Vietnam because of these charges and, therefore, did not place any adverse weight on these matters or consider them any further in the review.
The IAA accepted that the applicant and his family were Catholic and that the applicant was part of the church choir; that he took offerings at mass; undertook Bible readings; took communion; decorated the church; and cleaned and tidied the Church after services (CB 189 at [14]).
At [16]-[24], the IAA considered the applicant’s claims to fear persecution because of his Catholic religion. Specifically, it considered the applicant’s claims to have suffered harm in the past (in the form of police assaults and other harassment). These passages are extracted in full below. Suffice to observe that the IAA “did not accept” the claimed incidents occurred and did not accept that he had an adverse profile with the authorities on the basis of his religion, his position within the church or for any other reason.
The IAA accepted that the applicant would return to Vietnam as a practising Catholic and would continue to partake in the same roles that he had previously taken part in (CB 191 at [25]).
At [25]-[26], the IAA summarised the country information in relation to Catholics in Vietnam.
Having regard to:
a)the country information;
b)the applicant’s own evidence, including that he and his family were able to practise their faith and were not prevented from attending Mass in the past; and
c)the fact that his family has not been threatened or subjected to any harm due to their Catholic faith nor had he engaged in any political activities,
the IAA concluded that the applicant would not be perceived to have attended, lead or organised protests of any kind against the government and determined overall that the applicant could return to his home area and continue to practise his Catholic faith (CB 192 at [27]).
The IAA then addressed the applicant’s claim that he would be unable to obtain employment due to his limited education and his Catholic faith. The IAA found that this was not supported by the country information and that the applicant had undertaken a variety of work in Vietnam previously and would return to the support of his family (CB 192 at [28]). Overall, the IAA did not accept that the applicant would be unable to find employment on return to Vietnam.
At [29], the IAA found that, in light of the claims and evidence that it had accepted and the country information to which it had referred, the applicant did not face a real chance of any harm from the government, authorities, thugs, or anyone else, for any reason associated with his Catholic religion or his position within the Church, including any actual or imputed political opinion (CB 192 at [29]).
At [30], the IAA accepted that the applicant might be considered to have departed Vietnam illegally. At [32] and [34]-[36], the IAA referred to country information concerning those who departed Vietnam illegally and returning asylum seekers. The IAA accepted that the applicant may be detained and interviewed and subject to a fine, but did not accept that he would be placed in long-term detention, imprisoned, investigated or arrested on return. The IAA determined that brief detention or fine that the applicant may be subject to would not amount to serious harm. The IAA was therefore not satisfied that the applicant faced a real chance of serious harm for any reason associated with his illegal departure from Vietnam (CB193-194 at [34]-[36]).
The IAA then considered if the 2014 data breach gave rise to any chance or risk of harm to the applicant. The IAA accepted that the applicant will be identified as a failed asylum seeker on entry to Vietnam (CB 192-193 at [31]); however, as the applicant did not have an adverse profile, the IAA was not satisfied that the applicant faced a real chance of harm for any reason associated with being a failed asylum seeker (CB 193 at [33]).
The IAA then addressed the applicant’s claim to fear harm on the basis of his father being harmed because he had assisted the applicant to depart Vietnam. The IAA was not satisfied that the applicant’s father would be treated as a people smuggler, nor that the applicant’s father would have any adverse profile with the authorities such that the father and the applicant would face a chance of harm on this basis (CB 194 at [37]).
Assessed individually and cumulatively, the IAA was not satisfied that the applicant faces a real chance of harm on return to Vietnam now or in the reasonably foreseeable future, including on the basis of:
a)his Catholic faith;
b)his position within the Church;
c)his actual or imputed political opinion;
d)his illegal departure;
e)as failed asylum seeker; or
f)for any other reason
(CB 194 at [38]).
The applicant was found not to meet s.36(2)(a) of the Act as he was not a “refugee” as that term is defined.
In relation to its consideration of the complementary protection criterion, the IAA found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia, there was a real risk that the applicant would suffer significant harm. The IAA relied on its findings in respect of the refugee criterion in this respect (CB 195 at [42]).
At [43], the IAA addressed whether the brief period of detention the applicant may face on arrival in Vietnam would amount to significant harm. The IAA was not satisfied that this met the definition of s.36(2A) of the Act. Hence, the IAA found that the applicant did not meet the criteria in s.36(2)(aa) of the Act.
The IAA determined that it was not necessary to consider if the applicant was barred from obtaining a visa by virtue of s.91WA as he had failed to meet the criterion for the visa in any event (CB 196 at [46]-[47]).
Ultimately, the IAA affirmed the decision not to grant the applicant the visa.
Proceedings in this Court
The applicant was afforded an opportunity to amend his application. It appears that, in accordance with the orders of the Court dated 28 September 2019, the applicant attempted to file an amended application dated 19 September 2019 containing two grounds. For reasons that are not clear however, this amended application was processed by court registry as “correspondence”. The amended application was therefore not formally filed.
At the hearing of this matter, the Court made orders granting the applicant leave to rely upon and file in Court the amended application dated 19 September 2019.
Ultimately, the applicant only pressed the first ground of the amended application, which provides as follows:
1. The Second Respondent, the Immigration Assessment Authority (“IAA”) committed a jurisdictional error by constructively failing to exercise its jurisdiction, and by failing to carry out its statutory task of review.
Particulars
a. In making or purporting to make its decision that the Applicant was not a refugee as that term is defined in the Migration Act 1958 (“Act”) the IAA was required by the terms of s 5J, and particularly paragraph (b) thereof, to consider whether there was a real chance that if the Applicant returned to Vietnam he would be persecuted for one or more of the reasons mentioned in paragraph (a) of that section.
b. The IAA failed to do so, and instead considered a different question, namely whether it was satisfied that the Applicant would face a real risk of harm on return to Vietnam.
c. Further, the IAA made or purported to make a decision (by reference to s 36 (2)(aa) of the Act that the Applicant was not a person in respect of whom the First Respondent (or Reviewer) is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Vietnam, there is a real risk that he will suffer significant harm (the complementary protection decision).
d. In making or purporting to make the complementary protection decision, the IAA both failed to apply, or alternatively to consistently apply, the criterion of real risk, and also failed to consider whether there were substantial reasons for forming the relevant belief, and instead considered whether such a real risk existed.
The Court had before it a Court Book numbering 202 pages (marked as exhibit 1). The applicant filed written submissions on 8 August 2019. The Minister filed written submissions on 14 August 2019. At the hearing of the matter, the Court heard oral submissions from Mr Walker of Counsel for the applicant, and Mr Sunits for the Minister.
Applicant’s Submissions
The applicant’s written submissions can be summarised as follows:
a)The process by which the IAA considered the application of s.5H and s.5J of the Act is crucial to this ground of appeal.
b)The claim to be of the Catholic faith was “accepted”, but the IAA did “not accept” the claims of assault and harassment by police.
c)One difficulty arising from the unexplained use of the terms “accept” and “not accept” is that the reader does not know whether the IAA was concluding that it is not persuaded that it is more likely than not that the assaults and harassment happened, (the “first approach”) or perhaps (at the other end of the spectrum) that it is decisively of the view that the assaults did not occur.
d)If the IAA adopted the first approach, its non-persuasion might be felt more or less strongly. In other words, the IAA might consider firmly or even strongly that the probabilities are against the claimed fact; or, it might hold only some doubt, which was however sufficiently significant to cause it not to accept it, but not so strong as to preclude some residual doubt on the point. An example of the latter possibility might especially be signalled by the use of the word “doubt”.
e)At [18], the IAA deployed the terms “do not accept” and “doubt”. On a fair reading, the IAA (when saying it did not accept the matters put forward to account for the “changing evidence”) was only dealing with the applicant’s submission about the causes of certain inconsistencies in his evidence, not a finding on whether or not certain claimed events had happened. When using the expression “doubt” the IAA was addressing the impact of the “inconsistent and changing nature of the applicant’s evidence” on its assessment of whether “these events occurred as claimed”. Importantly, that impact was assessed in terms that suggest only a doubt, as contrasted with a finding that they did not occur, or probably did not occur.
f)Quite expressly, this limited and single reference to credibility did not lead the IAA to reject the applicant’s account of historic events showing persecution on Convention grounds.
i)However, the dominant style and expression of the IAA’s findings is by use of the formula “do not accept”, in contexts where it is best seen as meaning that the IAA has sufficient doubt not to accept the claim in question, but is not of the view that the claim is wholly disbelieved or rejected out of hand (whether for credibility reasons or otherwise).
j)While still addressing the claims of police assault and harassment, the IAA followed on from its use of the term “doubt” at the end of [18] by characterising certain aspects of the applicant’s account as “implausible” (at [19] and [20]).
k)The IAA then immediately undertook a rather subtle contrasting exercise between some country information and the details of the applicant’s account relating to the details of church involvement and protest activity (at [21]).
l)Further, at [22], the IAA made reference to the applicant’s evidence that his family were not subject to any harm from the police. The IAA stated that this “suggests” that neither the applicant nor his family had any adverse profile with the authorities for any reason.
m)These expressions are all manifestations of the analytical method employed by the IAA, being an approach of aggregating in its consideration the various factors which caused it to doubt the central factual claims. Each of which, importantly, had caused it to feel doubt at a relatively low level.
n)Finally, the IAA at [23] dealt with the claim that the applicant had a scar on his hand as a result of the assaults by the police. In relation to this claim, the IAA merely stated that the scar did not evidence the claimed police assaults (or support that he has an adverse profile).
o)It is submitted that the IAA, when it came to the critical phase of applying its factual determinations about what the applicant asserted had occurred in the past, was obliged to carefully take into account the strengths of its views, doubts and feelings of non-acceptance engendered in its earlier factual considerations. This is part of the IAA deciding correctly whether there was a real chance of the applicant suffering persecution for a Convention reason if returned in the future to Vietnam.
p)The applicant submits that the IAA did not act in this way, but rather proceeded, erroneously, as if each of its assessments of relevant factual claims had been made without any residual doubt being entertained as to whether the claimed events or facts had occurred. This was a failure to carry out an essential element of its task of reviewing on the merits the primary rejection of the applicant’s protection claims.
q)The failure to correctly apprehend and apply a critical element of its statutory task is an error of jurisdiction which was material, as it deprived the applicant of a proper review by the IAA of the adverse primary decision to refuse to grant him a protection visa.
At the hearing, Mr Walker for the applicant made oral submissions that arguably expanded upon the particulars relevant to the sole ground of review. These submissions can be summarised as follows:
a)the subject of ground 1 is, in effect, whether or not the IAA erred because it should have asked the colloquially expressed question, “What if I am wrong?”;
b)this ground will turn on whether or not the Court is satisfied that the IAA held any residual doubt as to any of its findings. If it did, the obligation would arise to stand back and look at those doubts in a cumulative fashion and to ask whether there still arose a real chance of persecution upon return;
c)the formula adopted in the last few words at [16] - “I do not accept”– does not immediately or clearly reveal the level of doubt or non-acceptance held on the part of the IAA;
d)the non-acceptance of the applicant’s explanation for the inconsistencies in his evidence does not assist the Court in reaching conclusions about the level of certainty or, on the other hand, the level of doubt held by the IAA in looking at the factual claims;
e)significantly, the last sentence of [18] contains the conclusion as to the applicant’s key factual claims and that sentence is an iteration of the IAA being in doubt;
f)there is every reason to think that the IAA is holding and expressing some doubts or reservations as to whether the claims are completely correct and the IAA has not wholly or rejected the claim that these events occurred. What the IAA has done is to look at inconsistencies and not to its doubts arising from those;
g)“Implausible” is an expression of doubt or reservation properly expressed along the path the IAA takes in considering the claims of the applicant about the claimed incidents. Neither this comment, nor the IAA’s other remarks at [19], “blow out of the water the claim” or even suggest a rejection of the claim;
h)at [22], the IAA uses the phrase “I consider this suggests…”. This again reflects the unfolding thought processes of the IAA in considering the factual claims but does not reflect a finding or rejection;
i)it is true that the IAA used the phrase “individually and cumulatively”; however, most importantly, it has not at all attempted the exercise of describing the level of certainty it has about the factual claims;
j)the IAA has not said, “well, I had doubts about those factual claims. I’ve set out the reasons why, but I haven’t rejected them out of hand”. Nor has it placed the treatment of those factual claims alongside the other factual claims which appear to have been rejected in a reasonably categorical and clear way, and the IAA has not set them out together to say, “this is what I make altogether in a cumulative way of the various claims”;
k)the IAA was required to set out its view overall of the claims involving the assaults by the police and it has not done it;
l)much of the language employed by the IAA is indicative of a degree of doubt. There is no clear statement by the IAA that it has no doubt and that the applicant is not to be accepted as a refugee.
In concluding, Mr Walker stated:
… it’s simply my submission that if the assessor doesn’t categorically indicate that the factual claims are rejected, then he’s obligated to move into the realm of speculation…
Mr Walker also asked the Court to note the content of two decisions: MZYPV v Minister for Immigration & Citizenship [2012] FCA 296 (“MZYPV”) and SZSMQ v Minister for Immigration & Anor [2013] FCCA 1768. The Court will refer to these decisions, as necessary, below.
Minister’s Submissions
The Minister’s submissions can be summarised as follows:
a)Where the IAA makes a finding that it is only slightly more probable than not that a relevant past event had not occurred, it must take into account the chance that the event did occur when determining whether a person’s fear of persecution is well-founded.
b)If on the other hand the IAA subjectively had no real doubt that the event had not occurred, it is not bound to consider if it is wrong.
c)This test is not engaged in circumstances where the IAA is unable to reach a sufficient state of satisfaction on the evidence to make any factual findings because of deficiencies in the presentation of the applicant’s case.
d)The IAA accepted that the applicant had a role in the Church but (expressly) did not accept that the applicant was assaulted and harassed by police. This finding was supported by detailed reasons. When those reasons are read as a whole it is clear that this finding was not subject to any residual doubt.
e)The applicant’s semantic attack on the IAA’s reasons is, in essence, an invitation to this Court to read the maligned passages with “an eye keenly attuned to the perception of error”, contrary to the longstanding admonition.
f)The IAA, when reading its reasons fairly and as a whole, did not have any real doubt that the events claimed by the applicant did not occur and for this reason was not required to consider the possibility that its factual findings were incorrect when deciding whether the applicant faced a real risk of harm on return to Vietnam.
At hearing, Mr Sunits for the Minister advanced oral submissions as follows:
a)the applicant has invited the court to undertake a semantic review of the IAA’s reasons.
b)when addressing the claim of the alleged assaults by the police, the IAA first states that it does not accept that the applicant was assaulted and harassed by the police on three separate occasions as claimed (at [16]). This was the “first signpost”. The “second signpost” appears at [24] where the IAA states that it does not accept that the applicant was targeted by the police in the three incidences as claimed;
c)the paragraphs between the signposts explain quite properly the reasons for which the IAA did not accept (which was the finding) that the three incidences occurred as claimed, namely:
i)the applicant was said to have given an inconsistent account of the events, and the expression of those concerns is no more than a precursor to the IAA ultimately rejecting the claims;
ii)the IAA points to implausibility, which means that for some reason of logic, the event could not have occurred;
iii)the IAA compares the relevant country information with the claims made by the applicant and that country information suggests that only members of the church who are actively protesting or challenging government policies were targeted by the police; and
iv)the IAA also found that the applicant’s evidence did not suggest that he had any such profile. It then considered the applicant’s family and their profile, or lack thereof, and considered the scar which the applicant has on his hand;
d)at [24], the IAA concludes that, having regard to all of those matters cumulatively, it did not accept that the applicant was targeted by police in the three incidences as claimed. The IAA reinforces this finding at [27], [29] and at [38];
e)when one reads these paragraphs as a whole, it is clear that the IAA had no residual doubt as to whether the events claimed by the applicant occurred. The use of the words “do not accept” in relation to these claims, as used numerous times throughout the IAA’s reasons, do not express any “uncertainty”;
f)what we do not have in these reasons is the IAA preferring one version of events to another. It simply does not accept that the incidents claimed by the applicant occurred.
Consideration
The applicant’s sole ground of review as pleaded was not entirely consistent with the submissions he made. At hearing, Counsel for the applicant stated that the “subject” of ground 1, and the question for the Court, is “whether or not the IAA erred in that it should have asked the colloquially expressed question, “What if I am wrong?””.
The “What if I am wrong?” test the applicant relies upon here was discussed in detail in Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 (“Rajalingham”) at [62] and [67], as follows:
62.In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant’s claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant’s case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.
…
65. In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT’s own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT’s own findings to be pursued. A “fair reading” of the reasons incorporates the principle that the RRT’s reasons should receive a “beneficial construction” and should not be “construed minutely and finely with an eye keenly attuned to the perception of error”: Wu Shan Liang, at CLR 271–72; ALD 9; ALR 490, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; 115 ALR 1 at FCR 287. Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT’s failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.
The passages of the IAA’s decision the applicant takes issue with provide as follows:
16. I have accepted above that the applicant and his family are of the Catholic faith. The applicant has provided consistent evidence, in a manner suggestive of lived experience, regarding his role in the Church. He was able to describe the Church and broadly describe his claimed activities. I accept that: he was part of the choir; that he took offerings at mass; undertook Bible readings; took communion; decorated the church; and cleaned and tidied the Church after services. The applicant claimed he was assaulted and harassed by the police in three separate incidents due to his religion and his role and activities in the Church. However, for the reasons that follow, I do not accept these claims.
17. The applicant has provided an inconsistent account of the claimed incidents over the course of the application. In relation to the first incident, his written statement indicated that the police were waiting outside the Church and took the applicant and several of his friends to the police station after Mass where they were questioned, beaten and threatened. He claimed he was hit in the head, kicked, and stabbed in the hand with a pen and that he and his friends were released after a few hours. In contrast, at the SHEV interview, he twice stated that on this occasion the police waited outside the Church, made some verbal threats to the applicant and his friends and then left them alone. Later in the interview, he altered this evidence, stating that he was in fact taken to the police station and assaulted. When this was noted by the delegate, the applicant denied he had given different evidence. However, he went on state that while at the police station he and his friends were intimidated and threatened but ‘were not hit very seriously’ on that occasion, which is also different to the claims of serious assault made in the written statement. Moreover, the applicant’s oral evidence at interview was that he was stabbed in the hand with a pen in the second incident, not the first as contended in his written statement.
18. I have taken into account the applicant’s submission that the inconsistencies in his evidence were the result of anxiety over his mother’s recent hospitalisation and because he had not eaten which adversely affected his ability to concentrate. While I accept that the applicant was experiencing some anxiety over the wellbeing of his mother, and that he had not eaten, I do not accept that these matters account for the changing evidence in this case. I note that the applicant was able to provide detailed and consistent evidence concerning other matters and, given the importance of these events to his protection claims, I would expect that he would be able to detail whether or not he was taken to the police station on the first occasion; consistently indicate the nature of the treatment he received by police; and be able to indicate on which occasion he was stabbed in the hand. The inconsistent and changing nature of the applicant’s evidence on these matters, lead me to doubt these events occurred as claimed.
19. I also consider that certain aspects of the applicant’s account of the claimed incidents are implausible. In each of the claimed incidents the applicant contended that the police arrived at the Church prior to the conclusion of Mass, waited outside the Church and let the service finish. It is not clear why the police would not disrupt the actual Mass if, as contended by the applicant, this was part of their intended aim. Nor is this consistent with country information that police would actively disrupt Mass and harass individuals of interest.
20. Further, in each of the claimed incidents the applicant indicated the police did not arrest or harass any of the 60 to 70 members of the congregation in attendance at the services, targeting only the applicant and his friends. The applicant suggested this was due to their important position within the Church. He clarified that his important position was, as set out above: taking offerings at mass; Bible readings; taking communion; decorating the church for Mass; cleaning and tidying the church after services; and dressing the Priest for services. However, this explanation cannot account for the fact that others with higher positions within the Church structure, including the Priest, were not targeted by police or subject to any harassment. Nor does it account for fact the applicant undertook this role for two and a half years without harm or adverse attention from authorities, prior to the claimed incidents. The applicant suggested that due to his youth he would not previously have been known as a person committed to the Church, but this does not overcome the noted concern that others with more senior roles or longer periods of demonstrated commitment to the Church were not targeted.
21. Moreover, country information suggests that in and around the time of the claimed events some Catholic Churches and practitioners were subject to police harassment, beatings and detention. However, those targeted were Churches and individuals who were actively protesting the confiscation of Church land or openly challenging other government policies The applicant’s evidence does not suggest that he or any member of his Church were engaged in such activities and on the evidence before me, neither his Church nor the applicant himself had a profile that would have attracted adverse attention of the authorities, including on the basis of his claimed position within the Church.
22. The applicant’s evidence was that his family were not subject to any harm from the police due to their religion or for any other reason. The applicant cited one incident in which his brother was injured (not by the police) and when this was reported to the police they did not follow up on this matter. However, this did not appear to be related to their Catholic faith, and in any event, the police did not harm any of the applicant’s family members on this or any other occasion and they have continued to practise their religion. I consider this suggests that neither the applicant nor his family had any adverse profile with the authorities for any reason.
23. The applicant stated that he had a scar on his hand as a result of the assaults by the police. While I am prepared to accept that he does have a scar on his hand, having regard to the above matters, I do not accept that this evidences the claimed police assaults or supports his claims that he has an adverse profile with the police.
24. Having regard to the above matters cumulatively, I do not accept that the applicant was targeted by the police in the three incidents as claimed, that he had an adverse profile with the authorities on the basis of his religion, his position within the church or for any other reason, or that police visited his family seeking his whereabouts after his departure from the country.
(Emphasis added)
The Court does not consider there was any error of the sort alleged by the applicant. The applicant’s ground adopts an unduly narrow approach which turns on the interpretation of isolated statements in the IAA’s decision.
Insofar as the applicant submits that the IAA is required to “categorically reject” and to “describe the level of certainty” it has in relation to its findings (or assessment of the evidence) Rajalingham (at [64]) provides:
In my view, there is no reason in principle, and nothing in the reasoning of the High Court, supporting a general rule that the RRT must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that the findings are correct. In Guo itself, the findings were not expressed this way, yet the joint judgment considered it was enough that the RRT appeared to have no doubt that the probability of error was insignificant. Moreover, had the Court intended to impose such an extraordinary burden on the RRT, it might have been expected to say so.
In DAT17 v Minister for Home Affairs & Anor [2018] FCCA 3750, Judge Smith stated as follows:
There is no obligation imposed by the Act on the Authority to make findings explicitly accepting or rejecting an applicant’s claims. Section 65 of the Act requires that the decision-maker be affirmatively satisfied that the applicant meets the statutory criteria, relevantly whether the applicant has a well-founded fear of persecution. Findings of fact are not always necessary to support a state of non-satisfaction. Where the evidence before the decision-maker is insufficient or inadequate to establish relevant facts there is no error in failing to make a finding.
No categorical rejection is necessary. It is enough that, on a review of the IAA’s decision as a whole, it appears that the IAA had no real doubt that the alleged past events actually occurred.
At [16], the IAA clearly states that it does not accept the applicant’s claim to have been harmed by the police. The IAA states that it “does not accept”. This is the relevant finding.
The IAA made clear its conclusion at [16]. What followed, as made clear at [16], were the IAA’s reasons for doing so (at [17]-[23]). The IAA noted the evidence the applicant gave to support the event, referred to the doubts it had with that evidence, compared the claimed events with what is indicated in the country information and ultimately, or “cumulatively”, concluded that it did not accept the claims (at [24]).
If [16] was not sufficient to demonstrate that the IAA did not accept the claimed events occurred then [24] certainly was. The IAA expressly stated that it had considered the matters (at [17]-[23]) “cumulatively” and did not accept that the applicant had been targeted by the police in the three incidents. That is, to the extent the applicant suggests there are parts of [17]-[23] which express doubt, the IAA has at [24] expressly stated it considered all of these matters and did not accept the events occurred “as claimed”.
While the applicant says that at [24] the IAA proceeded on the basis that it had no residual doubt (i.e., had not taken into account the matters at [17]-[23]), the IAA expressly states: “having regard to the above matters”. This includes the “matters” the applicant says indicated “doubt”. Despite the applicant’s submissions to the contrary, a fair reading of [24] indicates that the IAA has said “this is what I make altogether in a cumulative way of the various claims” (see [41(j)] above).
The Court does make the following observations in relation to the particular phrases the applicant takes issue with:
a)at [18], the IAA states: “The inconsistent and changing nature of the applicant’s evidence on these matters, lead me to doubt these events occurred as claimed”. This statement is analogous to a statement made by the Tribunal in AXG15 v Minister for Immigration and Border Protection [2016] FCA 492. There, the Tribunal stated “The tribunal had some doubts about the applicant’s claims about the truck being taken...”. The Court found the reference to “doubts” was nothing more than a “precursor” to the Tribunal determining whether it accepted the appellant’s claim, the Court adopts the same view here;
b)at [19], the IAA states: “I also consider that certain aspects of the applicant’s account of the claimed incidents are implausible”. The Court finds that the use of “implausible” in this context amounts to an expression of disbelief: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2001) 74 ALJR 405 at [67]. That is, the applicant’s account could not be believed (for reasons the IAA went into more detail to explain in [19]) and therefore was not accepted. The use of “implausible” was not an expressions of doubt that required the IAA to ask “What if I am wrong?”;
c)at [22], the IAA states: “I consider this suggests that neither the applicant nor his family had any adverse profile with the authorities for any reason”. The use of “suggests” does not require the IAA to ask “What if I am wrong?”. On a fair reading, what is stated at [22] is not an expression of doubt about the applicant’s profile. Rather, when read in the context of [22] as a whole, it is an indication that the applicant’s various inconsistencies and changing evidence concerning the claims are of such a nature that the IAA could not then proceed to reach the requisite level of satisfaction that the applicant did have a profile: SZSMQ at [58].
Overall, the applicant is taking an overly semantic approach to the IAA’s decision: MZYPV at [15]. Indeed, it is difficult to discern how much further the IAA could have gone to expressly state that it “does not accept” the applicant’s claim to have been harmed by the police (at [16] and [24]).
Finally, while the IAA rejected the claims of assault and harassment on the basis of the applicant’s religion (which, as part of its fact-finding function, it was necessary to do), this did not inhibit the IAA from considering the applicant’s claim of persecution on the basis of his religion generally (which was the question that the IAA was required to address). The IAA still addressed this claim and formed the view that there was not a real chance of serious or significant harm on this basis.
The Court notes that particulars (c) and (d) of the sole ground of review refer to the complementary protection criterion. For finality, the Court notes that the IAA’s assessment of the claims against the complementary protection criterion was also sound.
Having failed to satisfy the Court that the IAA did not err in applying the “real chance test”, there was no error in the IAA finding that the applicant’s claims did not give rise to a “real risk” of significant harm. The standard of “real risk” and “real chance” is the same: Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505.
The IAA asked itself the correct questions, both in respect of the refugee and complementary protection assessment, and clearly undertook its statutory task in accordance with the Act.
Ground 1, accordingly, fails to identify any error.
Conclusion
The sole ground of the judicial review application, as amended, fails to identify any jurisdictional error.
The application, accordingly, is dismissed.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 4 October 2019
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