DHT16 v Minister for Immigration
[2018] FCCA 2725
•2 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DHT16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2725 |
| Catchwords: MIGRATION – Application for judicial review of decision of the Administrative Appeals Tribunal– application for protection visa –claim that applicant at risk of serious harm if returned –significant level of inconsistency in the claims of the applicant – applicant’s credibility not the central issue in decision - significant time delay in applying for protection visa – jurisdiction error – real chance – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H; 5J; 36(2)(a); 36(2)(aa); 65; 425; 474 Migration Regulations 1994, Schedule 2 |
| Cases cited: Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476 |
| Applicant: | DHT16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 374 of 2016 |
| Judgment of: | Judge Brown |
| Hearing date: | 20 June 2018 |
| Date of Last Submission: | 20 June 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 2 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ower SC |
| Solicitors for the Applicant: | Tern Visa & Migration Lawyers |
| Counsel for the First Respondent: | Mr O'Leary |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Solicitors for the Second Respondent: | Submitting appearance |
ORDERS
The application filed 27 May 2016 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 374 of 2016
| DHT16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Vietnam, where she was born on 9 November 1985. It is common ground between all the parties concerned that the applicant’s native tongue is Vietnamese and she has a limited facility to express herself in English.
The applicant first arrived, in Australia, pursuant to a short term visitor’s visa, in March 2010. This visa expired one month later, but she overstayed, remaining in Australia unlawfully.
In May of 2015, the applicant was arrested by police and charged with the cultivation of a commercial quantity of cannabis. She was remanded in custody, until 17 June 2016. On this occasion, the prosecution tended no evidence against her. She was then placed in immigration detention.
On 27 May 2016, whilst still remanded, the applicant lodged an application for a protection visa. In general terms, she is fearful of returning to Vietnam, because she alleges her husband will do her serious harm or kill her. She claims to be the victim of serious family violence at his hand. She also claims her husband is an alcoholic and gambler, with criminal connections, who will use her to gain money. She also fears for the safety of her daughter, who remains in Vietnam.
She further asserts that she fears the Vietnamese authorities will not protect her from suffering this level of serious harm. In addition, the applicant is a member of the Catholic Faith. As part of her claim, she further asserts that members of her faith are subject to persecution in Vietnam. On these bases, she seeks the protection of Australia, pursuant to the provisions of the Migration Act 1958.[1]
[1] Hereinafter referred to as “the Act”
The application was supported by the following documents:
i)A form 866C, which is a pro forma questionnaire in which applicants are requested to provide details of their background, including details of their claim for asylum;
ii)Included with this form was an annexure, in which additional details had been provided, in English in typescript form, about her asylum claims;
iii)A letter written by the applicant, again in English in typescript form, dated 30 April 2016.
It is the applicant’s position that she relied on the help of lay community advocates to compile these documents, on her behalf, which necessarily involved translation from Vietnamese to English. It is her position that this was not necessarily an exact process and had the potential to lead to errors in transaction.
In addition, on 8 July 2016, the applicant was interviewed by a departmental officer about her claims for asylum. She had the assistance of an interpreter. A transcript of this interview has been prepared in English.
On 14 July 2016, a delegate of the Minister for Immigration & Border Protection[2] declined to grant the applicant a protection visa. The delegate did not accept that there was a real chance the applicant would suffer persecution if returned to Vietnam. This decision was based on findings made as to the applicant’s credibility.
[2] As the Minister for Home Affairs was then known
The delegate found it improbable that the applicant would leave her young daughter in the care of a person who had threatened to kill her (the applicant) for more than five years, whilst she had been in Australia. Nor was it considered plausible that the applicant had been able to leave Vietnam, notwithstanding the fact her husband was so controlling of her.
As a consequence of this decision, on 25 July 2016, the applicant applied to the Administrative Appeals Tribunal[3] for a review of the decision. The applicant was invited to appear before the Tribunal to give evidence and make submissions on 6 September 2016. She was assisted by a migration agent. At this hearing, a friend of the applicant, Ms Xinh Thi Nguyen gave evidence.
[3] Hereinafter referred to as “the AAT” or “the Tribunal”
The Tribunal affirmed the decision not to grant the applicant a protection visa. It found as follows:
“The Tribunal has concluded there are too many inconsistencies and some fabrications in the applicant’s account for it to be credible. The Tribunal does not accept the applicant fears violence from her husband as she claims, and does not accept she fears he will harm her if she returns. The Tribunal finds the applicant came to Australia to work and earn money.”[4]
[4] See casebook at page 218 [24]
This finding was based on was characterised as significant inconsistencies between what had been put in writing, as the basis of the claim for asylum, namely that her husband had forced her to become a prostitute in Vietnam and would do so again, if she was compelled to return to that country and what she herself said at interview that her husband had suggested to her that she work as a prostitute, a proposal which she had resisted.[5]
[5] Ibid at page 217 [17] – [18]
It is the applicant’s case that the Tribunal’s findings about her credibility, which are based on its analysis of various asserted inconsistencies arising from the accounts provided on her behalf, through the media outlined above, are not legally reasonable, in the sense that they are illogical or perverse in nature. On that basis, it is asserted that the Tribunal has failed to acquit the jurisdiction conferred upon it.
This submission is primarily based on this finding of the Tribunal:
“The Tribunal finds her willingness in written claims to fabricate past work as a prostitute is indicative of an inclination to exaggerate or fabricate her life in Vietnam in order to fabricate claims to meet the criteria for a Protection visa.”[6]
[6] Ibid at page 217 [15]
It is the applicant’s position that this is a misconception of her case and it has never been her case that she actually worked as a prostitute. Rather, she was subject to the threat of this, by her violent husband, which she resisted by going into hiding.
Her senior counsel, Mr Ower submits that such a misconception becomes apparent if one examines each of the various statements made by the applicant, in respect of this aspect of her case, and then considers the context in which several of them were made, namely by a person not fluent in English via a lay community adviser. At a very least, the Tribunal should have found the relevant statements ambiguous or minor.
As a consequence, it is Mr Ower’s submission that it was illogical or legally unreasonable for the Tribunal to find that the applicant had fabricated this aspect of her case, which had then led it to make a finding about her overall credibility, which was central to its rejection of her claim for protection.
The applicable legal framework under the Act
Pursuant to section 65 of the Act, the Minister is required to grant any visa arising under the Act, if satisfied that the conditions attaching to such visa have been satisfied by the applicant concerned.
In respect of a protection visa, the criteria required to be satisfied are set out in Schedule 2 to the Migration Regulations 1994. In general terms, any applicant is required to satisfy the primary criterion contained in section 36(2)(a) or (aa) of the Act.
Section 36(2)(a) requires an applicant to satisfy the Minister that he or she is a refugee and therefore owed protective obligations by Australia. The expression refugee is defined in section 5H and provides a person is a refugee if that person:
“in the case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-found fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country;”
The expression well-founded fear of persecution is defined by section 5J and requires the applicant concerned:
·to fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·that there is a real chance the applicant would be persecuted for one of these reasons, if returned from Australia; and
·the persecution in question would involve the applicant suffering serious harm.
Pursuant to section 36(2)(aa), a person is entitled to a protection visa, if there are substantial grounds for believing that if he or she is removed from Australia and returned to his or her country of origin, there is a real risk that he or she will suffer significant harm. Subsection (2A) defines significant harm. It includes being subject to torture; being subjected to cruel or inhumane treatment; and degrading punishment and treatment. This is known as the complementary protection criterion.
Accordingly, the issue to be determined initially by the ministerial delegate and then the Tribunal was whether there was a real chance the applicant would be subject to persecution, if returned to Vietnam, because of the nature of her relationship with her husband or for reasons relating to her Catholic faith.
Pursuant to section 474 of the Act, a decision of an administrative nature, relating to the refusal to grant a visa under the Act, is classified as a privative clause decision. As such, it cannot be challenged in any court. The current decision, arising in this case, is a privative clause decision.
However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by administrative decision-makers, which are affected by jurisdictional error or have been made in bad faith.[7]
[7] See Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
In general terms, an administrative decision maker exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[8]
[8] See Craig v South Australia (1995) 184 CLR 163
In Minister for Immigration & Citizenship v Li[9] the plurality of the High Court (Hayne, Kiefel & Bell JJ) determined that a decision which lacked “an evident and intelligible justification” was liable to be characterised as an unreasonable one and therefore one which did not involve the proper exercise of the jurisdiction conferred upon the relevant decision-maker. As such, decisions lacking such an intelligible justification are also liable to be vitiated on the basis of jurisdictional error.
[9] Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [75] – [76]
The central issue arising in the current matter concerns the findings made by the Tribunal in respect of the credibility of the applicant’s claims for asylum, particularly in terms of the nature of her relationship with her husband. It is her case that these findings lack a logical, rational or probative basis and are therefore legally unreasonable.
The grounds for review
In her amended application filed 24 January 2018, the applicant provides the following grounds for her application for a writ of certiorari to quash the finding of the AAT:
“1.1 The Second Respondent found that the applicant did not fear violence from her husband as she claimed.
1.2 This finding was based, in part, upon its finding that there was a “significant inconsistency” in the applicant’s written claims, namely that she had claimed that her husband had made her work as a prostitute when at the hearing conducted by the Second Respondent she had claimed that he had only threatened her to do so.
1.3 There was no such inconsistency. The applicant had always claimed to the Department and to the Second Respondent that she had only been threatened by her husband to work as a prostitute.
1.4 The delegate understood, and found, that the applicant’s claim was that she had only been threatened to work as a prostitute.
1.5 The Second Respondent did not consider the delegate’s reasons in respect of this issue.
1.6 The Second Respondent did not address the issue with the applicant during the s. 425 hearing in a manner that would give it a basis to make the findings set out at paragraph 1.1 and/or 1.2 above.
1.7 In the premises:
a. the findings at paragraphs 1.1 and/or 1.2 above lacked a probative basis or were based on reasoning that was illogical or perverse, and the decision was based on those findings; or
b. the decision was otherwise legally unreasonable; or
c. the decision was made in breach of the requirements of s.425 of the Migration Act (Cth), in that the Second Respondent did not put the Applicant on notice that the issue of her changing her claims would be an issue before the hearing.”
The material before the AAT
It is the applicant’s submission that there was no legal basis for the Tribunal to conclude that there was a significant level of inconsistency in the applicant’s written claims for asylum. It is therefore necessary to identify the various claims made by the applicant in respect of the nature of her relationship with her husband.
In her Form 866C, in response to the question what do you think will happen to you if you return to Vietnam? – the applicant has written as follows:
“I strongly believe that husband might try to kill me if I return, or he will force me to become a prostitute again to make money for him. He is addictive to gambling and alcohol and he used to beat and yelling at me and my daughter. He also owes a lot of money from gangsters, since I’m here he used to contact and ask me to send him money to pay for that. I did not send money to him as I did not have any. He was threatening me so many time and said: “if I know you have return I kill you no matter what”. I’m so fear of returning, I’m fear for myself and for my daughter who will not allow to go to school like other.”[10]
[10] See Casebook at page 97
In the same form, in answer to the question did you experience harm in that country? – the applicant has written as follows:
“Then I married my husband who kept harmed me in many ways such as threaten, beat and force me to become a prostitute…”[11]
[11] Ibid at page 97
Other similar written comments follow in respect of related questions. The applicant stating:
“When my husband beat and force me to be a prostitutes I often took my daughter with me to hide near Hom and Vinh market.
…
If I return to Vietnam, my husband will beat, kill me and force me to return to my old life which I always feel disgusting and shamed about.”[12]
[12] Ibid at page 97
In her letter of 30 April 2016, the applicant wrote of her husband as follows:
“He is addicted to alcohol and gambling, he took my money and beat me with no mercy, and more miserably, he forced me to become a prostitute to make money for him. I had to hide from him with my little daughter, from place to place. I always felt scared, tired and worried everyday so I wished someone would help me to go overseas, to exit from this present life of misery, sadness and full of disgrace. After that, a cousin knew about my situation and felt sorry for me, helped me to come to Australia.”[13]
[13] Ibid at page 99
In interview, with the departmental officer, on 8 July 2016, the applicant was asked questions in respect of when and how her husband had made her become a prostitute. To which she replied:
“After I give birth to my daughter…He said ‘you go and work as a prostitute to make money’. Because he asked me I took our daughter and I worked as a household cleaner and also a cleaner at a food stall.”[14]
[14] Ibid at page 158
Following this interview, the ministerial delegate delivered the departmental determination on 14 July 2016, which contained a summary of the applicant’s claim for protection and the delegate understanding of the supporting evidence. This can be summarised as follows:
·She believed her husband would try and kill her if she returned to Vietnam or force her to become a prostitute to make money for him;
·Her husband had previously beaten her and forced her to make money for him by becoming a prostitute;
·When her husband had beaten her she had hid with her daughter near Nom and Vinh market, where she had been sheltered by a woman named Hong;
·In interview with the departmental delegate, the applicant had stated that her husband had told to work as a prostitute but she had not done so, hiding with her daughter at the markets.[15]
[15] Ibid at pages 139 - 140
The delegate found aspects of this evidence not to be reliable for four inter-related reasons:
·In the context of her claims of suffering serious domestic violence, she had provided no reasonable explanations as to why she had left her daughter in the care of her father for more than five years and been able to depart Vietnam without apparent difficulty;
·The threat of harm befalling her daughter, if money was not remitted to Vietnam, was not credible, given the applicant’s incarceration;
·The applicant’s social connections, in Australia and her recent activities in this country, were not consistent with her claims;
·The applicant’s poor migration history.
After the delegate’s decision, the applicant submitted a further statement dated 17 July 2016, to the AAT, in which she characterised her husband as an “alcoholic and gambler [who] had tried to force [her] to become a prostitute so that [she] could earn money to support him”.”[16]
[16] Ibid at page 160
The hearing before the AAT was scheduled for 6 September 2016. The applicant was invited to appear before the Tribunal to give evidence and present any arguments relevant to the issues in her case. As a consequence of this invitation, the applicant provided further evidence to the Tribunal in respect of her claims about her husband’s conduct towards her in Vietnam.
The invitation was proffered to the applicant as a consequence of the provisions of section 425 of the Act, which reads as follows:
“(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.”
An audio recording was taken of these proceedings, which a friend of the applicant has subsequently typed up. No objection has been taken to the accuracy of this typescript. During the applicant’s evidence, the Tribunal Member asked her “did you ever work as a prostitute in Vietnam?” To which the applicant replied:
“No, but there’s a time when my husband forced me to do it, but I refused because at the time I have a small child and I was very small in stature just about 28kg.
The questioning process then continued along the following lines:
“MEMBER: So I need you to be clear about this. Did he just tell you and threaten you, but you didn’t work in prostitution, or did you actually work as a prostitute?
APPICANT: Yes, my husband, because at that time we are very tight in finance actually, and my husband, in a way forced me, talk me in to do it. Inside myself I want to do it as well because we are, as I said, very tight in finance. But the thing is I have a small child at that time and I am very small and skinny only 38kg (sic). So in the end I refused to go.
MEMBER: So if that’s the case why have you told the Dept of Immigration … why have you said that you were made to work as a prostitute in Vietnam if you never were?
APPLICANT: I did say to them that I was forced by my husband but I refused to do it. That’s why I have to escape from my husband, with my child, and go to living in the market.
MEMBER: So who paid for you to come to Australia?
APPLICANT: I have a relative who helped me with the finance to go to Australia.
MEMBER: And why didn’t this relative also help you bring your daughter with you to Australia?
APPLICANT: I don’t know but probably nobody know about it. We think that the children can’t go to Australia.”[17]
[17] See affidavit of Lesley Walker filed 24 January 2018 at page 3
It is the applicant’s case that the Tribunal failed to discharge its obligations under section 425 by failing to alert the applicant to its concerns about apparent inconsistencies between her various statements about whether she had actually worked as a prostitute or had been threatened with it, which she had been able to avoid by going into hiding.
It is her case that, if the Tribunal was intent on placing significant weight on these matters, in its determination of her application for protection, it had an obligation to indicate to her when it considered inconsistencies arose, so that she could comment upon them. In failing to do so, it is submitted that she has not been accorded procedural fairness.
The Tribunals Findings
The Tribunal’s findings occupy some thirty eight paragraphs. Of these paragraphs, ten ([15] to [24]) relate to the Tribunal’s findings on the applicant’s credibility. These findings turn on a number of discrete issues, not only matters relating to the controversy of whether the applicant’s case is that she was threatened with prostitution or actually engaged in this activity, as a consequence of the threats of her husband.
The Tribunal found that the applicant came to Australia, on a one month visitor’s visa with the intention of overstaying, then finding work so that she could send money back to Vietnam. In this context, the Tribunal noted that it was not until the applicant had been arrested and so come to the notice of the Australian authorities that she applied for protection.
Thereafter, the Tribunal noted as follows:
“[T]he applicant did not seek protection until she was arrested. The applicant spent 5 years in Australia unlawfully. The applicant has successfully found work throughout her time in Australia, joined a church community, and obtained a drivers licence. The Tribunal finds she would have had the social contacts and ability to seek help and advice on applying for protection, if she had a genuine fear of returning to Vietnam.”[18]
[18] See casebook at page 216 [16]
In addition, the Tribunal indicated its concerns about what it perceived to be other inconsistencies in the applicant’s evidence, which caused it to question her credibility. These centred on her education and work history and can be summarised as follows:
·she claimed to have only one year of formal education, which she had completed when she was aged eight years of age;
·yet she had obtained a position selling life insurance from 2009 to 2010;
·this employment had formed the basis of her application for the Australian visitor’s visa as she had indicated she had come to this country to complete a training course relating to it.
In this context, the Tribunal found as follows:
“The Tribunal does not accept someone with only one year of primary school education would be able to complete a training course and work in a job selling life insurance. The Tribunal put this inconsistency to the applicant at hearing, however she maintained she had completed training and had worked selling life insurance. The Tribunal finds the applicant is not being truth, but does not know whether it is her educational or work history that she is lying about. The Tribunal finds her willingness to lie about it raises concerns about her credibility generally.”[19]
[19] Ibid at page 217 [20]
The Tribunal, in its reasons, also expressed concerns about the credibility of another aspect of the applicant’s evidence, which related to her claim that she had remained in contact with her husband, whilst she had been in Australia. This was seen as improbable if, as she maintained, he had been previously so violent towards her.
It was the applicant’s evidence that circumstances had compelled her to do so because it was the only means by which she could remain in contact with her daughter. In addition, she claimed she had been extorted by her husband to send him money otherwise he would harm her daughter. The Tribunal doubted the credibility of this statement for the following reasons:
·initially, her evidence was that she had left her daughter in the care of her cousin and father, when she left Vietnam;
·therefore, she would have had no need to contact her husband, at least for the first period of her stay in Australia;
·in this context, it was noted that the applicant’s father had died and, in these circumstances, her daughter had returned to the care of her father;
·the evidence was clear that the applicant had been in detention, in Australia, for seventeen months and so been unable to work and send money to Vietnam;
·yet there was no evidence that the daughter had come to any harm.
In these circumstances, the Tribunal found as follows:
“The Tribunal finds the applicant has fabricated the claim that she has kept in contact with her husband and sends him money, only because he has threatened to harm their daughter if she does not. The Tribunal finds she has maintained contact and sent money because this what she always intended to do, that is, come to Australian to earn more money and send money back to her family, including to her husband. The Tribunal finds the applicant has exaggerated or fabricated her husband’s gambling and alcohol addictions, and has fabricated the claims he has forced her to send money.”[20]
[20] Ibid at page 217 [21]
When arrested in Adelaide, the applicant was found to have $3,000.00 in cash on her person. She indicated that this was to fund her holiday in Adelaide and pay for some dental work. She also indicated that she had earlier send her husband $1,000.00. The Tribunal found her retention of the bulk of the money to be inconsistent with her claim that she was under some form of duress to send money to her husband to stop him carrying out threats to harm her daughter.[21]
[21] Ibid at page 218 [22]
The applicant called another witness, Ms Xinh Thi Nguyen, to give oral evidence before the Tribunal. She shared a bedroom, with the applicant, in 2013 and deposed that she overheard a number of telephone conversations between the applicant and her husband. She alleges that she heard the husband demanding money and threatening the applicant.
The Tribunal made the following finding in respect of Ms Nguyen’s evidence:
“The Tribunal asked [Ms Nguyen] how she could hear what the husband was saying and the witness said the applicant had the phone on speakerphone. The Tribunal finds this highly unlikely. Given the witness’s evidence that she was in her bedroom studying when these calls came in, the Tribunal finds the applicant would not have put the phone on speakerphone, but would have left the room or spoken quietly on the phone. The Tribunal gives the witness little weight.”[22]
[22] Ibid at page 218 [23]
Accordingly, the Tribunal made several adverse findings in respect of the credibility of the applicant’s evidence apart from its finding about the issue of whether she actually worked as a prostitute or was threatened with it.
In respect of this issue (the prostitution issue), the Tribunal findings began with its expression of concern regarding what it categorised as significant inconsistencies in respect of this issue, which led it to doubt the veracity of her claims generally.
On the other hand, it is the applicant’s submission that it was open and reasonable for the Tribunal to have concluded that she has consistently said she had been threatened with prostitution rather than actually engaging in this activity and therefore there was no such inconsistency.
The Tribunal summarised this aspect of the applicant’s evidence as follows:
·In answer to the pro forma questions in the form 866C she had said that her husband forced (past tense) her to become (transitive verb)[23] a prostitute; and
·Also in her form 866C, she said her husband often beat me and forced (past tense) me to make money for him by become [sic] (present tense) a prostitute;
·Again in this context of the 866C, the applicant wrote of the risk to her of being force to return to my old life, in order to pay for her husband’s gambling debts and alcohol, which had caused her to feel self-disgust and shame.
[23] Oxford Dictionary “begin to be”
These statements were contrasted with the applicant’s later oral statement, at hearing, that she had been able to evade this work. In this context, the Tribunal found as follows:
“The Tribunal finds her willingness in written claims to fabricate past work as a prostitute is indicative of an inclination to exaggerate or fabricate stories about her life in Vietnam, in order to fabricate claims to meet the criteria for a protection visa.”[24]
[24] See Casebook at page 217 [19]
This finding was subsumed into overall findings regarding the applicant’s evidence generally, which concluded the section of the reasons headed Findings on Credibility, as follows:
“The Tribunal has concluded there are too many inconsistencies and some fabrications in the applicant’s account for it to be credible. The Tribunal does not accept she fears violence from her husband as she claims, and does not accept she fears he will harm her if she returns. The applicant finds the applicant came to Australia to work and earn more money. When she sent money to Vietnam, this was done voluntarily and was part of her reason for coming to work in Australia.”[25]
[25] Ibid at page 218 [24]
The applicant’s submissions
The applicant submits that it was incumbent on the Tribunal to give consideration to the fact that the applicant’s written statements, about her level of involvement in prostitution were, on their face, ambiguous in nature, particularly when consideration is given to the applicant’s circumstances, as a non-English speaker, who was relying on the assistance of lay advocates.
In addition, it is Mr Ower’s submission that the Tribunal has inaccurately summarised the first written statement from the Form 866C by attributing the past tense to her when in fact the present tense was used. I agree that the tense used is not the present. It would appear to me to be the simple future tense. The verbatim quote reading “he will force me to become a prostitute again to make money for him”.
It is also the applicant’s submission that the Tribunal did not give any consideration to the findings and reasoning of the Ministerial delegate, in which there was some level of acceptance of the assertion that the applicant had been able to avoid engaging in prostitution, which was consistent with her position at the hearing.
In these circumstances, it is the applicant’s submission that the Tribunal did not consider what her claim for protection actually was, which was that she had been threatened with prostitution rather than actually engaging in it. In the circumstances, the Tribunal had not exercised the jurisdiction conferred upon it. Essentially, it had considered another claim rather than the claim actually being advanced by the applicant.
In this context, it is further submitted that the Tribunal did not consider that the inconsistency, which had troubled it, had been volunteered by the applicant and had not arisen through any process of forensic questioning. In addition, it is submitted that it was procedurally unfair for the Tribunal not to explicitly put the apparent contradiction to the applicant for her comment.
In these circumstances, Mr Ower contends that it was not reasonably open to the Tribunal to find that the applicant had fabricated her claims or was a person willing to fabricate claims. He submits that this finding either lacked a probative basis or is one based on illogical, perverse or unreasonable reasoning. Finally, he submits that the finding, in itself, was of a sufficiently minor nature, not to warrant the Tribunal’s finding as to credit.
The first respondent’s submissions
Mr O’Leary, for the Minister submits that the finding regarding credibility was open on the material before the Tribunal. As such, there is no illogicality, irrationality or unreasonableness displayed in the reasoning of the Tribunal.
In addition, Mr O’Leary contends that, for a line of reasoning to be characterised, on judicial review, as illogical, the illogicality concerned must be one about which there can be no conjecture between reasonable minds. It is not sufficient that there be controversy about the issue. Essentially, the illogicality must be axiomatic.
In this case, it is Mr O’Leary’s submission that the Tribunal found multiple instances of inconsistency in the applicant’s evidence, apart from the prostitution issues and therefore its finding regarding her overall credibility was logically and rationally available to it.
Mr O’Leary also refutes the submission that the Tribunal did not give any consideration to the material before the Ministerial delegate relying on its summary of this material, which although brief, indicates that the delegate reached the same conclusion as it regarding the applicant’s credibility on the basis of both inconsistencies in her claim and the delay in seeking protection.[26]
[26] Ibid at page 216 [12]
In this context, it is submitted that it is not relevant that the delegate’s conclusion, in respect of the prostitution issue, in terms of emphasis, was different to the one which the Tribunal ultimately reached. It being the function of the Tribunal to conduct a full merits review to reach what it believes is the correct decision on the material available to it.
It is also Mr O’Leary’s submission that any contention that the applicant’s credibility was not a central issue for the Tribunal cannot be sustained. This follows because of the contents of the delegate’s decision, which rejected the applicant’s overall credit. In addition, Mr O’Leary submits that the Tribunal squarely raised the issue of credibility, with the applicant, during the course of her evidence.
This proposition is said to be apparent from the relevant passage of the transcript of the Tribunal proceedings, detailed above, particularly the section when the Member asked the applicant specifically if she did or did not work as a prostitute and pointed out the need to be clear about the issue.
In all these circumstances, it is Mr O’Leary’s submission that the issue of if and how the applicant was involved in prostitution was clearly put to her and so it cannot be said there has been any procedural unfairness accorded to her following the section 425 invitation hearing. In addition, given the various accounts provided by the applicant, within the context of what it found to be unsatisfactory aspects of her claim, it was open to the Tribunal to reach the conclusion, regarding her credit, which it did.
Discussion
The High Court has cautioned courts such as this one, which have a judicial review function, against the potential perils of subjecting the reasons of administrative decision makers to over-zealous scrutiny, which may, inadvertently, transform such proceedings in a form of merits view. That is, the judicial reviewer substitutes its findings of fact for those of the merits reviewer.[27]
[27] See Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ
It is not my function to make a finding of fact regarding the applicant’s credibility. That task fell solely to firstly the Ministerial delegate and then to the AAT. In this context, it has also been noted by the High Court that assessments of a person’s credibility are functions which fall within the purview of primary decision-makers “par excellence”.[28]
[28] See Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J.
Binding High Court authority indicates that it is an inherent requirement of the exercise of any power, conferred on a decision maker, such as the AAT, that such power be exercised reasonably and, if is not so exercised, it amounts to a failure of jurisdiction. To be exercised reasonably, it must be possible to glean from the relevant decision record an “an evident and intelligible justification” for the pertinent decision in question.[29]
[29] See Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [75] – [76] per Hayne, Kiefel & Bell JJ
Following on from Li in Minister for Immigration & Border Protection v Singh the Full Court identified two distinct areas in which a tribunal may fail to discharge the jurisdiction conferred upon it by acting in a manner which is legally unreasonable. Firstly, such a tribunal discharges its reasoning functions in a way which is unreasonable in the sense that it is illogical or otherwise lacking in intelligibility. Secondly, the outcome of the proceedings is coloured by caprice or arbitrariness. This second area is outcome focussed.[30]
[30] Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44]
Given these principles, notwithstanding the strictures, which restrict courts conducting judicial review from making findings of fact, in some circumstances, it may be the case that a finding, regarding an issue of credit, can be characterised as legally unreasonable and thus be the basis for jurisdictional error in one or other of the situations envisaged in Singh.
In DAO16 v Minister for Immigration & Border Protection[31] the Full Court observed:
“While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings … are beyond scrutiny on judicial review … The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae … In each case it is necessary to analyse in detail what the decision-maker has decided…”
[31] DAO16 v Minister for Immigration & Border Protection [2018] FCAFC 2
Accordingly, this issues of credibility turning on the issue of whether the applicant asserted she had been threatened with prostitution or had actually undertaken this activity requires me to look at the specific evidence available in the case concerned and analyse what the Tribunal decided.
In this context, in my view, it is germane that the AAT’s findings regarding the applicant’s credit did not exclusively turn upon the prostitution issue. Rather the Tribunal made a number of other findings in the area of credit, as a consequence of other findings made by it.
These findings related to the period of time the applicant had been in Australia before she had made her application for protection; the circumstances in which that application had been made; and Ms Nguyen’s evidence.
In this circumstances, in my view, it cannot be said that, if the prostitution issue is taken away, there was no factual basis on which the Tribunal could have concluded her evidence lacked credibility.
In BZD17 v Minister for Immigration & Border Protection[32] the Full Court summarised the relevant principles and related authorities, in respect of jurisdictional error, which I will attempt to encapsulate as follows:
[32] BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 at [31] – [38]
·Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds, which include the following:
olegal unreasonableness;
oreaching a finding without a logical or probative basis;
ofailure to give a proper, genuine and realistic consideration to the issues and material before the decision-maker.
·A decision may be said to be illogical or irrational, if the decision concerned was not open on the evidence or there is no logical connection between the evidence and the inferences or conclusion drawn;
·In this context, an illogical or irrational piece of reasoning along the way to reaching a conclusion may establish jurisdictional error;
·This is particularly so where the adverse credibility finding was a critical step in the Tribunal’s decision not to grant a particular visa;
·It is necessary for a decision-maker to have an active intellectual engagement with the issues concerned, which would not leave any relevant party having to guess what role any consideration had played in the resulting decision;
·However, a high degree of caution is to be exercised before any jurisdictional error is established, on judicial review, in respect of findings made in respect of credit by a decision-maker, to ensure that the reviewing court does not embark upon an impermissible merits review;
·In this context, the following passage from DAO16 v Minister for Immigration & Border Protection[33] is relevant:
“… to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, ‘extreme’ illogicality must be demonstrated ‘measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions’… Thus ‘even emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality.”
·Similarly, caution is to be exercised before a reviewing court determines that there has not been a proper, genuine or realistic consideration of the case concerned.
[33] DAO16 v Minister for Immigration & Border Protection (supra) at [30(5)]
Accordingly, in my view, any purported failure of the Tribunal, in its assessment of the applicant’s credit, arising from its apparent misconstrual of her evidence regarding the prostitution issue, must be central or critical to its overall findings regarding her credit. This follows from what Wigney J said in Minister for Immigration and Border Protection v SZUXN: [34]
“An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny… .”
[34] Minister for Immigration and Border Protection v SZUXN [2016] FCA 516
In addition, it is clear that the Tribunal did consider the evidence regarding the prostitution evidence. In this context, the issue for this court is whether this evidence was critical to its overall decision not to grant the applicant the protection visa which she sought.
In my view, it was not. Rather the Tribunal made a number of independent findings regarding the applicant’s credit, each of which was sufficient to found a conclusion that she was not in need of protection in Australia and had come to this country for other reasons.
These included particularly the length of time she had been in Australia prior to making her application and the circumstances in which she came to the notice of the immigration authorities. The fundamental finding, which the Tribunal made from these matters, was that the applicant had come to Australia for economic reasons. [35]
[35] See Casebook at page 218 [24]
The prostitution issue was one matter, amongst several, which led the Tribunal to this conclusion. It – the prostitution issue – was not dispositive of the application but rather was an objectively minor matter of fact for the Tribunal. In addition, there was other factors at play, which were individually supportive of a finding that the applicant was not likely to come to harm, at the hand of her husband, if she returned to Vietnam. These included the fact of her remittal of money to him in Vietnam.
The jurisdiction conferred upon the Tribunal required it to engage in a proper, genuine and realistic consideration of all of the applicant’s evidence, in support of her application for a protection visa. This has been described as the touchstone by which a court conducting judicial review determines whether a decision is vitiated by jurisdictional error or was made within an area of jurisdictional freedom by the relevant decision-maker.
In my view, the Tribunal did give the level of consideration required to the applicant’s case. In addition, I do not consider that there was any level of legal unreasonableness or caprice in its finding that the applicant was not subject to a real chance of suffering harm if returned to Vietnam.
In addition, I do not consider that the Tribunal has failed to discharge its obligations under section 425 of the Act. The applicant was on notice of the requirement for her to be candid with the Tribunal and her overall credibility was an issue before it.
For all these reasons, I have come to the conclusion that the applicant has not established any jurisdictional error in the relevant decision. Accordingly her application should be dismissed. The first respondent seeks costs. I will make an order in an amount of $7,467.00, which is the amount specified by the relevant cost schedule to the court’s rules.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 2 October 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Standing
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Statutory Construction
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