Dod18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 1192

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DOD18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1192

File number(s):

MLG 2072 of 2018

Judgment of:

JUDGE J YOUNG

Date of judgment:

14 December 2023

Catchwords:

MIGRATION – application for judicial review – where Administrative Appeals Tribunal affirmed decision of the first respondent that the applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 (Cth) - whether the Tribunal failed to consider evidence in an intellectually active way – found the Tribunal provided no reasons for attributing no weight to the evidence – found the Tribunal failed to consider the evidence in an intellectually active way – found failure to consider the evidence in an intellectually active way amounts to jurisdictional error.

Legislation:

Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 425, 474, 476

Cases cited:

BZD17 v Minister for Immigration (2018) 263 FCR 292

Craig v South Australia (1995) 184 CLR 163

Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165

SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638; (2008) 105 ALD 25

WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74

Division:

Division 2 General Federal Law

Number of paragraphs:

49

Date of hearing:

10 November 2023

Place:

Melbourne

Counsel for the Applicant:

Dr McBeth

Solicitor for the Applicant:

Kerdo Legal

Counsel for the First Respondent:

Ms McInnes

Solicitor for the First Respondent:

Sparke Helmore Lawyers

ORDERS

MLG 2072 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DOD18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE J YOUNG
DATE OF ORDER:	14 DECEMBER 2023

THE COURT ORDERS THAT:

1.The applicant’s Amended Application for an Order pursuant to s 476 of the Migration Act 1958 (Cth) be granted.

2.A writ of certiori be issued directed to the second respondent quashing the decision dated 8 June 2018.

3.A writ of mandamus be issued directed to the second respondent requiring it to reconsider and determine the applicant’s Application according to law.

4.The first respondent pay the applicant’s costs in a sum to be fixed if not agreed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE J YOUNG:

INTRODUCTION

1. Before the Court is an Amended Application filed on 23 October 2023, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 8 June 2018. By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicant a Protection (subclass 866) visa.

   CONTEXT

2. The applicant is a citizen of the Solomon Islands.

3. On 28 December 2011 the applicant entered into Australia on a Tourist (subclass 676) visa, which ceased on 28 March 2012.

4. On 16 October 2013 the applicant applied for a Protection (subclass 866) visa (Visa).

5. The applicant’s claims, as set out in his Visa application, are that:

   (1)he fears people from another family and tribe in the Solomon Islands because in 1994 he did not pay the “bride price” for his late de facto wife Rose Rusata or compensation when she died of cancer in 1999;

   (2)he was threatened by his late de facto wife’s relatives and on several occasions was attacked by them;

   (3)he fears that he will be killed if he returns to the Solomon Islands because relatives of his late de facto wife have firearms;

   (4)the family of his late de facto wife are from the “most vicious” ethnic tribe who were responsible for many deaths during the “ethnic tension”, and he will have no protection from these people when the “Regional Assistance Mission to Solomons (RAMSI)” leave the Solomon Islands; and

   (5)he does not believe police will protect him if he returns to the Solomon Islands because they are corrupt and several of his late de facto wife’s relatives are in the police force.

6. The applicant attached written submission to the Visa application, which further claimed that:

   (1)in July 1999 the family of his late de facto wife stole his goods, burnt down his home in Barande, Guadalcanal Province and abducted and held his two sons. He escaped and fled;

   (2)in May 2007 the family of his late de facto wife found him in Gizo, Western Province but he escaped and fled to Honiara;

   (3)sometime in 2009, when he was in Honiara, he had a meeting with the family of his late de facto wife but during the meeting he was hit. He managed to escape and fled to Auki, Malaita Province; and

   (4)sometime in 2011 he was attacked in Honiara by the family of his late de facto partner. He escaped and fled to Auki, Malaita Province.

7. On 10 February 2015 and 22 May 2015 the applicant attended interviews with the Delegate.

8. On 19 August 2015, the Department of Immigration and Border Protection (Department) emailed the applicant informing him of inconsistencies in his evidence which raised credibility concerns. The Department noted the applicant had declared a marriage to a woman named Gladysh Ramo in his Tourist Visa application but had failed to declare the marriage in the Visa application. The Department also noted the applicant had declared that he had three children in his Tourist Visa application but had only declared one child in the Visa application. The Department invited the applicant to comment on this information within 28 days.

9. On 23 August 2015, the applicant emailed the Department and provided a response to the Department’s questions.

10. On 14 September 2015 the Delegate refused to grant the applicant the Visa.

11. On 28 September 2015, the applicant applied to the Tribunal for review of the Delegate’s decision. The applicant provided the email address “[email protected]” (applicant’s email address) for correspondence. On 29 September 2015, the applicant provided the Tribunal with the mobile number “xxxxx xxx80” (applicant’s mobile number).

12. On 20 February 2018, the Tribunal emailed the applicant inviting the applicant to attend an in-person hearing on 9 March 2018 at 12.30pm with an information sheet attached. The hearing invitation stated that the Tribunal was unable to make a favourable decision on the information provided, and that if the applicant did not attend the hearing, the Tribunal may dismiss the application without further consideration of the application or information before it.

13. On 9 March 2018, the applicant appeared before the Tribunal. The applicant was self-represented at the hearing.

14. On 8 June 2018, the Tribunal affirmed the decision not to grant the applicant the Visa. On 12 June 2018 the Tribunal sent a copy of their decision and reasons to the applicant’s email address.

    TRIBUNAL DECISION

15. The Tribunal issued its statement of decision and reasons on 8 June 2018 (Tribunal Decision).

16. At paragraph’s [10] and [14] of the Tribunal Decision the Tribunal summarised the Applicant’s claims (as set out in paragraph’s [5] – [6] above). The Tribunal had great concerns with significant elements of the applicant’s narrative and evidence which led the Tribunal to disbelieve the applicant’s story in its entirety.

17. After considering the material and evidence before it, in particular the applicant’s Tourist (subclass 676) visa application, Visa application and answers to the Delegate, the Tribunal found the applicant was not a credible witness due to his changing narrative and inconsistent evidence about his marriages and children.

18. At paragraph’s [18] and [36] the Tribunal found the applicant was married to Gladys Ramo and that this relationship is ongoing as he was living with her and their three adult children in Wa’ole village in Malita Province before he travelled to Australia. These findings, together with a finding that the applicant was not a credible witness, led the Tribunal to disbelieve the applicant’s narrative about the ongoing enmity of Rose Rusata’s family over an unpaid bride price and compensation.

19. Accordingly, the Tribunal was not satisfied that there was a real chance that the applicant would suffer serious harm or a real risk that he would suffer significant harm on return to the Solomon Islands and found that he did not meet s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) (Act).

    APPLICATION FOR JUDICIAL REVIEW

20. The applicant applied for judicial review of the Tribunal’s decision on 10 July 2018. The applicant filed an Amended Application on 23 October 2023

21. The Amended Application contains the following grounds for judicial review (without amendment):

    1.The decision of the Tribunal was affected by a reasonable apprehension of bias, or alternatively, the Tribunal failed to afford the applicant the opportunity to be heard provided by s 425 of the Migration Act 1958.

    Particulars

    a.The approach of the Tribunal in the hearing was such that a reasonable observer might apprehend that the Tribunal might not have brought an open mind to the issues in the proceeding.

    b.Further and alternatively, the hearing provided by the Tribunal was not a genuine opportunity to persuade the Tribunal from its misgivings about the applicant’s case, as required by s 425 of the Act.

    2.   The Tribunal misunderstood or failed to give proper consideration to the applicant’s evidence, or alternatively, its approach to fact-finding was unreasonable and constituted a ‘quest to disbelieve’ the applicant.

    Particulars

    a.The Tribunal misunderstood or misrepresented the applicant’s evidence on certain matters.

    b.The Tribunal therefore considered evidence and submissions different to those that the applicant in fact presented and failed to consider the applicant’s actual evidence and submissions.

    c.Further and alternatively, the approach taken by the Tribunal was an unreasonable approach to fact-finding.

    3.   The decision of the Tribunal was based in part on findings for which there was no evidence or unwarranted assumptions.

    Particulars

    a.The Tribunal made repeated, unwarranted assumptions regarding societal functioning in the Solomon Islands.

    b.The Tribunal made findings based upon those unwarranted assumptions, or alternatively, made findings that went well beyond and could not rationally be supported by the country information and evidence before the Tribunal.

    4.   The Tribunal failed to give proper consideration to corroborative evidence, or alternatively, failed to give adequate reasons for giving no weight to the corroborative evidence.

    Particulars

    a.The Tribunal had before it a letter from Chief Gordon Mulu, provided by the applicant.

    b.The Tribunal also had before it a statutory declaration from Jeanky Ilisia Ferafanu, provided by the applicant.

    c.Each of those items of evidence corroborated key aspects of the applicant’s claims.

    d.The Tribunal failed to give proper consideration to either of those items of evidence.

    e.Further and alternatively, the Tribunal failed to give adequate reasons for not giving any weight to either item, having regard to their significance as corroborating evidence.

22. The applicant filed the following further relevant material:

    (1)affidavit of the applicant filed 10 July 2018, annexing the Tribunal’s decision;

    (2)outline of submissions filed 23 October 2023; and

    (3)affidavit of the applicant’s solicitor filed 23 October 2023, annexing a transcription of the applicant’s interviews with the Delegate, a transcription of the hearing before the Tribunal and a draft decision of the Delegate.

23. The Minister’s filed a Response on 24 August 2018. The Response contained the following grounds:

    1.The application for judicial review does not provide any particulars in support of its grounds of review.

    2.The application for judicial review does not establish any jurisdictional error in the decision of the Administrative Appeals Tribunal dated 8 June 2018.

24. The Minister also filed written submissions on 28 September 2023 and 2 November 2023.

    STATUTORY FRAMEWORK

25. A “privative clause decision” as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].

26. The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].

    CONSIDERATION

    Ground 4

27. It is convenient to first address Ground 4.

28. It is uncontested that the evidence before the Tribunal included:

    ·a letter dated 15 February 2014 from Chief Gordon Mulu, the village chief of Kobito (Chief’s Letter); and

    ·a statutory declaration from Jeanky Ilisia Ferafunu (Statutory Declaration).

29. The Chief’s Letter stated that:

    ·there had been a meeting in 2009 between the applicant and Ms Rusata’s parents relating to demands by Ms Rusata’s family that the applicant pay a bride price and compensation to Ms Rusata’s parents;

    ·Ms Rusata’s father had agreed to give the applicant more time to return to New Zealand for another season to work and earn money to make the payment;

    ·upon his return from New Zealand there would be another meeting at which the applicant would pay the bride price and the compensation; and

    ·the Chief had witnessed violence towards the applicant at the meeting from “angry relatives of his de facto wife”.

30. The Statutory Declaration declared that Ms Rusata, now deceased, was the de facto wife of the applicant and that the couple had two sons from the relationship.

31. At paragraph [35] of its decision, the Tribunal said:

    Conclusion – credibility

    In sum, taking all of my foregoing concerns together, I find unconvincing and do not accept his narrative about the ongoing enmity of Rose Rusata’s family over an unpaid bride price and compensation. I have considered but give no weight to the letter dated 15 February 2014 ostensibly by a chief from Kobito village that talks about the claimed meeting in June 2009, and I give no weight to the declaration dated 21 February 2018 from Jeanky Ferafunu in Honiara that stated Rose Rusata now deceased had been the applicant’s de facto wife and they had two sons. I find the applicant is not a credible witness and that he has concocted his claims for the purposes of seeking Australia’s protection.

    Applicant’s submissions

32. The applicant submits that the Chief’s Letter was evidence of the truth of key parts of the applicant’s narrative, which the Tribunal rejected and that the Statutory Declaration was evidence of the truth of the critical issue of the applicant’s relationship with Ms Rusata, which the Tribunal also rejected. The applicant submits that the Chief’s Letter and the Statutory Declaration corroborated the applicant’s claims and would, if accepted, have undermined the Tribunal’s conclusion that the entire story had been fabricated and that the applicant lacked credibility. For this reason, the applicant submits it was necessary for the Tribunal to give cogent reasons as to why it did not accept either item of evidence.

33. The applicant relies on BZD17 v Minister for Immigration (2018) 263 FCR 292 (BZD17).

34. Further, the applicant submits that there is no reference in the transcript to the Chief’s Letter or the Statutory Declaration.  As such, the applicant submits that the Tribunal failed to give proper consideration to that evidence and in so doing failed to discharge its statutory task.

    Minister’s submission

35. The Minister submits that the reference to the Chief’s Letter and the Statutory Declaration in paragraphs [15] and [35] of the Tribunal’s decision demonstrates that the Tribunal did not overlook those documents. It is further submitted that the description of documents in paragraph [35] of its decision indicates that the Tribunal must have known that the contents were potentially corroborative of the applicant’s claims if they were to be accepted.

36. The Minister conceded in oral submissions that no reasons were given by the Tribunal for its determination to give the documents no weight. However, the Minister submits that it is important that the reference to the Chief’s Letter and the Statutory Declaration arose in the context of the Tribunal drawing conclusions about the applicant’s credibility. It is submitted that given that the Tribunal’s explanation of placing no weight on the documents is “bookended” by findings that the applicant was not a credible witness and had concocted his claims, it can be inferred that the Tribunal also rejected the documents as concocted. It is submitted that the applicant’s credibility was so weakened that the corroborative evidence could not have affected the Tribunal’s view.

37. The Minister relies upon Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 (S20).

    Consideration

38. For the following reasons, I consider that the Tribunal has fallen into jurisdictional error by failing to consider the Chief’s Letter and the Statutory Declaration in an intellectually active way.

39. In light of the express references to the Chief’s Letter and the Statutory Declaration in paragraphs [15] and [35] of the Tribunal’s decision, I accept the submission that it cannot be inferred that the Tribunal was unaware of the documents. However, that is not to be equated with the Tribunal giving consideration to the documents.

40. The Minister submitted that the method of reasoning in the present case is the same as that adopted by Chief Justice Gleeson in S20 (and also by McHugh and Gummow JJ at [49] of that decision) where his Honour said at [12]:

    The essence of the complaint is that the Tribunal failed to consider the evidence as a whole, but first considered, and disbelieved, the evidence of the applicant/appellant, without taking account of the corroboration, and then considered and rejected the corroboration because of the rejection of the evidence of the applicant/appellant.  I do not accept that this is a fair criticism of the Tribunal's reasons. In my view, all that the member was saying was that, for reasons already given at length, she found the applicant/appellant's story implausible, and in some important respects unbelievable, and that she also rejected the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons that she had already given for rejecting the claim she was considering.  The member could have expressed herself more clearly. It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.

1. In effect, the Minister’s submission is that the applicant’s credibility has been so weakened that the Tribunal may treat what is proffered as corroborative evidence as being of no weight because “the well has been poisoned beyond redemption”: SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638; (2008) 105 ALD 25 (SZDGC) at [23]-[24] and [27] (Finkelstein J) (citing S20) at [49] (McHugh and Gummow JJ); see also Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485 at [36]-[39] (North and Lander JJ) and [50] (Katzmann J).

2. I reject that submission. In BZD17 at [45] the Full Court of the Federal Court of Australia said:

   In this respect, it is true that the High Court held in S20/2002 that it is not irrational (albeit not necessarily preferable) for the finder of fact to focus “first upon the case as it was put by the appellant”, before considering the alleged corroboration. However, this does not mean that the finder of fact can ignore the allegedly corroborative material and fail to consider it in an intellectually active way (WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 at [27] (Lee and Moore JJ); semble SZDGC at [23] (Finkelstein J)). For example, as in DAO16, a finding that a visa applicant’s evidence is not credible may not of itself provide a logical or rational basis on which to dismiss all of the corroborative evidence and, once the corroborative evidence at least raise a doubt about whether the whole of an applicant’s claims should in fact be rejected, thereby enlivening the obligation to consider the alternative scenario that the applicant’s claims might be correct.

3. At paragraph [50] the Court said:

   As such, ultimately the appellant is “left to guess” why the Tribunal rejected Mr C’s evidence and whether, if at all, the Tribunal engaged intellectually with that evidence. Applying the principles referred to earlier, it follows that the Tribunal has failed to engage in an active intellectual manner with the evidence of a critical witness and has thereby fallen into jurisdictional error.

4. In the present case, the Tribunal provides no reasons for attributing no weight to the Chief’s Letter and the Statutory Declaration. Prima facie, the Chief’s Letter and the Statutory Declaration are the evidence of third parties which supports, in part, the applicant’s claims. There is no attempt by the Tribunal to analyse that evidence or explain why it rejects it. The Tribunals’ reasons are no more than a mere statement that it gave that evidence no weight. The Tribunal does not say, as was the case in S20, that the attribution of no weight to that evidence is in light of the adverse credibility findings of the applicant and that accordingly, the Tribunal cannot be satisfied as to the corroborative evidence. The Tribunal does not engage in any active or intelligent way with the Chief’s Letter or the Statutory Declaration. That this is so, is further evidenced by the absence of any reference to either document or their contents in the transcript. Accordingly, I consider, as submitted by the applicant, that one is left to guess why the Tribunal rejected the Chief’s Letter and the Statutory Declaration and whether, if at all, it engaged intellectually with that evidence.

5. Accordingly, I consider that Ground 4 discloses jurisdictional error on the Tribunal’s behalf.

6. In light of my conclusion that Ground 4 discloses jurisdictional error by the Tribunal, it is not necessary that I consider Grounds 1-3.

   DISPOSITION

7. For the above reasons, the applicant’s Amended Application is granted.

8. The matter is remitted back to the Tribunal for reconsideration in accordance with law.

9. The applicant seeks an order that the first respondent pay their costs. I shall order that the first respondent pay the applicant’s costs in a sum to be fixed, if not agreed.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.

Associate:

Dated:       14 December 2023