DPD20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 301
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DPD20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 301
File number: PEG 231 of 2020 Judgment of: JUDGE LADHAMS Date of judgment: 29 April 2022 Catchwords: MIGRATION – judicial review of decision of Administrative Appeals Tribunal – whether adverse credibility findings were legally unreasonable - no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 36, 424A, 476, 477 Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2
Minister for Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1
Minister for Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719
MZZMG v Minister for Immigration [2015] FCCA 607
Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500; [2016] FCAFC 185
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SCAN v Minister for Immigration and Multicultural Affairs [2002] FMCA 129
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347; [1994] FCA 1105
Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220; [2016] FCAFC 52
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
SZQWV v Minister for Immigration and Citizenship [2012] FCA 817
SZUYL v Minister for Immigration and Border Protection [2016] FCCA 405
Division: Division 2 General Federal Law Number of paragraphs: 60 Date of hearing: 24 January 2022 Place: Perth Counsel for the Applicants: Dr J Cameron (Pro Bono) Counsel for the First Respondent: Mr V Ghosh Second Respondent Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 231 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DPD20
First Applicant
DPE20, BY HIS LITIGATION GUARDIAN, DPD20
Second Applicant
DPF20, BY HER LITIGATION GUARDIAN, DPD20
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
29 APRIL 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
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 LADHAMS:
INTRODUCTION
The application before the Court is an application under s 476 of the Migration Act 1958 (Cth) (Migration Act) by which the applicants seek judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 29 June 2020. The Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicants Protection (Class XA) visas (protection visa).
The originating application to this Court was filed on 23 July 2020. The applicants now rely on an amended application filed on 26 November 2021. That amended application raises a single ground alleging jurisdictional error on the basis that the Tribunal made adverse credibility findings that were legally unreasonable.
For the reasons explained below, I find that the ground of application raised by the applicants does not establish jurisdictional error. It follows that the application to this Court is dismissed.
BACKGROUND
The applicants are citizens of Rwanda. They entered Australia in August 2014 as dependents on a student visa granted to the first applicant’s husband. The first applicant’s husband returned to Rwanda in mid-January 2015 and the student visa ceased on 31 January 2015.
On 30 January 2015 the applicants applied for protection visas. The first applicant advanced claims for protection and the second and third applicants, who are the children of the first applicant, were included in the application as members of the family unit. In the application for a protection visa and in a statutory declaration provided shortly after the application was lodged, the first applicant claimed protection on the basis that she feared physical harm, imprisonment and torture at the hands of the Mouvement du 23-Mars (M23) and she claimed that her husband had been missing since mid-January 2015 after he was approached by M23 upon his return to Rwanda. The first applicant also claimed that she had been detained and interrogated by security forces in 2012/2013.
On 14 March 2016 a delegate of the Minister made a decision not to grant the applicants protection visas.
On 18 April 2016 the applicants lodged an application with the Tribunal seeking review of the delegate’s decision.
The first applicant attended a hearing convened by the Tribunal on 11 July 2019.
On 21 January 2020 the Tribunal invited the applicants to comment on or respond to information which the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. The information identified in the notice was information provided by the first applicant’s husband, which the Tribunal considered to be inconsistent with information provided by the first applicant or otherwise implausible. On 14 February 2020 the applicants provided to the Tribunal further submissions, information and material in response.
The first applicant attended further hearings before the Tribunal on 16 March 2020 and 22 June 2020.
On 29 June 2020 the Tribunal affirmed the delegate’s decision.
TRIBUNAL DECISION
The first applicant’s claims had evolved from the time of the delegate’s decision. The Tribunal summarised that the first applicant claimed she would face a real risk of serious harm if she returned to Rwanda because of her association with her husband who she claimed was forced to work for Rwandan intelligence but defected in August 2016. She also claimed to fear harm in Rwanda because of her background as a Tutsi from the Democratic Republic of the Congo and because she has sought protection in Australia.
The Tribunal considered the first applicant’s capacity to present evidence to the Tribunal and to the delegate, noting that the first applicant had mental health issues, including anxiety and past trauma. The Tribunal was satisfied that the first applicant was competent to provide evidence as her ability to do so was not significantly hampered by her past trauma or current mental state.
The Tribunal did not accept the claim that the first applicant or her husband were detained in August 2013 because the husband was associated with Lt Col Rwabika or for any other reason. Rather, the Tribunal found that the first applicant concocted the claim for protection.
The Tribunal did not accept that the first applicant’s husband was recruited by Rwandan intelligence in January 2015 or that he told the first applicant he was hiding and that she should not contact him or that she believed that he was hiding from January 2015 until mid-2016. The Tribunal did not find the first applicant and her husband to be credible witnesses when considering all of the evidence before the Tribunal.
The Tribunal was not satisfied that the first applicant would face a real chance of experiencing serious or significant harm in Rwanda for reasons linked to her Tutsi ethnicity or her Congolese background. The Tribunal accepted that the first applicant may have faced minor discrimination at work and with her neighbours because she was born and raised in the Democratic Republic of the Congo, but this did not amount to serious or significant harm.
The Tribunal accepted that the first applicant may return to Rwanda on temporary travel documents, but was not satisfied that she would be assumed to be a failed asylum seeker or critic of the government on this basis. The Tribunal was not satisfied that there was a real chance that the first applicant would suffer serious or significant harm for returning to Rwanda on temporary travel documents.
After considering the first applicant’s claims and the evidence before it, the Tribunal was not satisfied that the first applicant met the criteria for a protection visa in ss 36(2)(a) or 36(2)(aa) of the Migration Act. The Tribunal found that none of the applicants met the criteria in ss 36(2)(b) or 36(2)(c) of the Migration Act.
PROCEEDINGS BEFORE THIS COURT
The application for judicial review was filed within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The amended application raises the following sole ground of application:
The Tribunal fell into jurisdictional error when it rejected the Applicants’ claim for protection after making adverse findings on credibility that were legally unreasonable in the circumstances of their claim.
Particulars
1.The First Applicant’s claim for protection on behalf of herself and her two children, the Second and Third Applicants, on 30 January 2015, the day before the expiry of their student visas on 30 January, was based on her belief at the time that shortly after his return to Rwanda on 14 January her husband had run foul of the Rwandan Security Services, with which the couple had had adverse experiences in the recent past, and was in hiding.
2.She claimed that after an initial short telephone call he had disappeared, that she had no means of contacting him and had no idea where he was.
3.Their claim was for protection as refugees sur place, and fell to be determined as such.
4.It emerged, after contact between the couple resumed in August 2016, that her husband had been unwillingly recruited by Rwanda’s Security Services, and had been working with them while planning his escape from Rwanda. He was now overseas working as a doctor for the International Red Cross. He has not subsequently returned to Rwanda.
5.The Tribunal rejected the Applicants’ claim that their husband and father had been recruited by the Security Services from which it followed that he had not defected putting them in danger and in need of Australia’s protection.
6.In rejecting the claim for protection the Tribunal held that the First Applicant had:
6.1 ‘concocted’ evidence in support of her claim;
6.2 changed evidence in order to support her claim; and
6.3 conspired with her husband to concoct evidence to support her claim.
7.While it was open to the Tribunal to find that the sum of the Applicant’s evidence was insufficient to support her claim for protection, a finding that she had as a mature professional fabricated evidence in circumstances amounting to criminal offences against Australian law called for proof to a higher standard.
8.Any deficiencies in the Applicants’ evidence fell well short of rising to that standard, and the Tribunal’s findings to the contrary were legally unreasonable, causing it to fall into jurisdictional error in rejecting their claim for protection.
The evidence before the Court comprises the court book and two affidavits affirmed by the first applicant’s husband on 27 December 2021 and 7 January 2022 respectively. These two affidavits were read, subject to objections by the Minister, which I upheld, in relation to the paragraphs identified at Annexure A to this judgment. The affidavit affirmed on 7 January 2022 annexes transcripts of the first applicant’s interview with the Department held on 1 December 2015, the hearing before the Tribunal on 11 July 2019 at which the first applicant and her husband both gave evidence, and the hearing before the Tribunal on 22 June 2020 at which the first applicant gave evidence. There was no objection to these parts of the affidavit.
CONSIDERATION
The main issue for the Court’s consideration is whether the adverse credibility findings made by the Tribunal were open to it on the evidence before it.
Relevant principles
The Full Court of the Federal Court provided the following summary of principles relating to the review of credibility findings for jurisdictional error on the basis that the findings were said to be irrational, illogical or unreasonable in DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2 at [30]:
(1)While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). 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 (ARG15v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2)Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:
135.… A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(Emphasis added)
(3)By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].”Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].
(4)Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:
56An 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…
(citations omitted)
(5)A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, 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” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].
It is with these principles in mind that I assess the ground raised by the applicants.
Ground as raised in application
The applicants’ ground directs attention to those parts of the Tribunal’s reasons in which the Tribunal found that the first applicant or her husband concocted the claims for protection. The Tribunal considered that the first applicant concocted the claims that:
(a)she and her husband were detained in August 2013; and
(b)her husband was recruited to work for Rwandan intelligence in January 2015, that he told the first applicant he was in hiding because of an attempt to recruit him by Rwandan intelligence, and that she believed he was in hiding and could not contact her after January 2015.
Findings on claims relating to events in August 2013
The Tribunal provided an evident and cogent justification for its rejection of the claimed detention of the first applicant and her husband in August 2013. The Tribunal gave three main reasons for rejecting this claim:
(a)The first applicant gave differing accounts of the circumstances surrounding the incident. She initially said that Col Kargeya died shortly before August 2013, but later said that she was only aware that he had died in 2013 and had not intended to suggest that he died before the August 2013 incident. In her statutory declaration provided to the Department she said that the authorities were looking for Lt Col Rwabika and she told the delegate that they asked if he was in her home. After the delegate’s decision, where the delegate pointed out that Lt Col Rwabika was a serving officer in the Rwandan army in 2013, she said that the authorities were not looking for him but were investigating him. The Tribunal acknowledged that it is not uncommon for honest applicants to be confused about past events and give slightly differing accounts of precisely what occurred, but in this case the Tribunal believed that the first applicant changed her evidence regarding these matters in response to information provided by the delegate in the interview and the delegate’s decision.
(b)The first applicant gave differing accounts of her circumstances following her claimed detention. In her protection visa application, the first applicant claimed that after her detention, she and her family were put under surveillance for several months and had to inform the authorities of their movements outside of the city. She did not repeat this claim in her statutory declaration and when asked about this, she said that she and her husband might have been watched in secret but nothing else happened. The Tribunal did not accept that the first applicant would have forgotten that she and her family had to report their movements to the authorities after the claimed detention in 2013.
(c)The first applicant’s claim that members of the security forces came to her home and detained her and her husband because they were investigating Lt Col Rwabika because he was a known or suspected dissident or because he was associated with Col Karageya was implausible. The only independent evidence available to the Tribunal about Lt Col Rwabika suggested that he was a serving military officer in 2013 and that he was honourably retired in October 2013. There was no suggestion in the independent information that he was suspected of having links to Col Karageya or of being involved in dissident activities of any kind. If Lt Col Rwabika had been suspected of being a dissident, he would have faced more serious problems than merely being retired.
There is nothing illogical, irrational or unreasonable in the Tribunal’s findings or its process of reasoning. The Tribunal was not required to uncritically accept the evidence provided by the applicants, and it was not required to identify evidence that directly contradicted the statement of the first applicant before rejecting the first applicant’s claims: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451; Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348; [1994] FCA 1105; SZQWV v Minister for Immigration and Citizenship [2012] FCA 817 at [23]. It was open to the Tribunal to rely on the identified inconsistencies and implausibility in the way that it did.
The applicants submitted that the Tribunal misunderstood the evidence that was before it, particularly in relation to whether the authorities were looking for Lt Col Rwabika or looking into him. I have reviewed the statutory declaration that the first applicant provided to the Department and the transcript of her interview with the delegate. I am satisfied that the Tribunal has not misunderstood or misinterpreted her claims. The first applicant gave clear evidence that the authorities were looking for Lt Col Rwabika in her house.
The applicants have criticised the Tribunal for failing to take evidence from the first applicant’s husband about this incident. This criticism is misplaced. It was a matter for the applicants to provide sufficient evidence to the Tribunal to satisfy the Tribunal that they met the criteria for a protection visa: Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220; [2016] FCAFC 52 at [69]; see also Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [84]. The Tribunal had regard to the evidence, submissions, and country information provided by and on behalf of the applicants in relation to this claim. The applicants did not provide any statement or other information from the first applicant’s husband. The evidence before the Tribunal showed that the first applicant resumed contact with her husband in about May 2016. The Tribunal made its decision in this matter on 29 June 2020. This means that there was a period of approximately four years during which the first applicant’s husband could have provided a statement to the Tribunal about the claimed incident in August 2013.
There is also a reference in the applicants’ submissions to s 424A of the Migration Act. The applicants submitted that the Tribunal should have put to them the information in the Tribunal decision about the August 2013 claim. The specific information that the applicants say should have been put to them is not identified in the written submissions. When I pressed Dr Cameron about this point at the hearing, Dr Cameron identified the information that
Lt Col Rwabika was a senior serving officer, and that if he was suspected of being a dissident it seems likely that he would face more serious problems than being merely retired.
I am not satisfied that there was any requirement for the Tribunal to engage the process identified in s 424A in relation to the August 2013 claim. The information before the Tribunal in relation to this claim appears to have been provided by the applicants or the representative. In particular, the information about Lt Col Rwabika being a senior military officer in August 2013 and the significant problems that are likely to be faced by suspected dissidents in Rwanda was provided by the applicant’s representative: see Tribunal reasons at [32] and [40]. The procedure in s 424A does not need to be engaged in relation to information provided by an applicant for the purpose of the review: s 424A(3)(b) of the Migration Act. Further,
s 424A did not require the Tribunal to put the applicants on notice of the existence of doubts, inconsistencies or the absence of evidence: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [18].
The applicants have also submitted that the Tribunal made a finding that Lt Col Rwabika was at the time of the 2013 detention a supporter of the Kagame regime and that this finding was made in the absence of evidence. I do not consider this to be an accurate reflection of the Tribunal’s reasons. Rather, the Tribunal did not accept that Lt Col Rwabika was a dissident or was a supporter of Col Karageya, as suggested by the applicants, because of the absence of evidence to support that claim. This finding was open to the Tribunal. As mentioned above, the Tribunal did not require rebutting evidence before rejecting a claim made by the applicants.
The applicant’s ground insofar as it relates to the Tribunal’s finding on the claim in relation to events in August 2013 is not established.
Findings on claims relating to events after husband’s return to Rwanda in January 2015
I am also satisfied that the Tribunal has provided a cogent and intelligible explanation for its rejection of the claims relating to events that happened in Rwanda after the first applicant’s husband returned to Rwanda in January 2015.
The Tribunal did not accept that the first applicant’s husband was recruited by Rwandan intelligence in January 2015, that he told the first applicant he was in hiding and she should not contact him, or that the first applicant believed that he was in hiding from January 2015 until mid-2016. Instead, the Tribunal found that the first applicant and her husband concocted the claim that the husband was in hiding or missing after being approached by members of M23 or Rwandan intelligence in order to support a claim for protection in Australia, and that they later altered their evidence when alerted to other evidence which suggested that some of their claims could not be true. The reasons given by the Tribunal for these findings are as follows:
(a)The Tribunal did not accept the explanations of the first applicant and her husband as to why the husband told the first applicant he was in hiding and she should not contact him. The Tribunal found that the explanation based on an irrational but genuine belief that he needed to do this to protect his family or avoid problems with Rwandan intelligence to be far-fetched and implausible. The first applicant’s husband was clearly in contact with a number of people outside of Rwanda during the relevant time and he claimed that he used different telephone numbers or email addresses when communicating with these people. The Tribunal considered that the husband could easily have contacted the first applicant, either directly or through friends or colleagues, without using his own phone or email address. While the Tribunal considered evidence regarding the Rwandan authorities’ treatment of the families of those that they wish to pressure into cooperation, it did not consider this to be a plausible explanation for the lack of contact in the present case as there was no evidence to suggest that the first applicant’s husband was viewed as a dissident by the authorities, and the families most at risk are those living in Rwanda and not those living abroad like the applicants.
(b)The Tribunal considered the husband’s evidence regarding his recruitment by Rwandan intelligence agents to be unpersuasive and his evidence did not contain sufficient detail to be convincing. The Tribunal considered that it was clear from the evidence that the husband could have left Rwanda and sought protection with relative ease and his failure to do so was a strong indication that he was not fearful of Rwandan intelligence and he had not been recruited to work for them against his will. The husband’s evidence that he wished to remain in Rwanda and the Democratic Republic of the Congo until he found suitable employment so that he could work and support his family, rather than seek protection, did not sit well with his claim that he cut off contact with the applicants in January 2015 leaving them without support and concerned for his safety.
(c)The Tribunal considered that the first applicant’s evidence regarding her belief that her husband had been forced to go into hiding in January 2015 and that she did not know his whereabouts until mid-2016 lacked credibility. The first applicant gave contradictory evidence as to whether her husband told her that he had been approached by M23 or Rwandan intelligence. The Tribunal considered it significant that the first applicant changed her evidence when the delegate noted that M23 no longer existed and considered this to be a strong indication that her evidence regarding a conversation with her husband in January 2015 was untrue. The Tribunal considered that it would not have been difficult for the first applicant to locate her husband by making discreet enquiries any time between January 2015 and mid-2016 because of his scheduled work at a university. The Tribunal noted the first applicant’s evidence that she only made limited attempts to contact her husband after January 2015 because he had asked her not to, as contact could place him in danger. The Tribunal acknowledged that she may have been concerned for his safety, but noted that according to her evidence she did attempt to contact him before her interview with the delegate. The Tribunal did not accept that, after making discreet enquiries from friends and family, the first applicant would not be aware that the husband was not in hiding but was instead living openly.
(d)The Tribunal considered the submission that the first applicant was surprised when the delegate advised her of information which indicated that her husband was working openly at a university in Rwanda. The Tribunal accepted that the first applicant was surprised and concerned when advised of this information, but considered that this was because the delegate had located the evidence which contradicted her claims, not because she was unaware of her husband’s whereabouts.
The applicants have submitted that the Tribunal made the following findings based on conjecture rather than evidence:
(a)the first applicant’s husband could have left the region well before he did so in August 2016;
(b)the first applicant’s husband would not have put himself and his family at risk by contacting his wife and explaining his predicament before August 2016; and
(c)the first applicant’s husband had no qualities that could have made him an attractive candidate for recruitment to the Directorate of Military Intelligence.
These ‘findings’ are merely examples of the Tribunal rejecting the evidence of the first applicant and her husband because it was not satisfied that the evidence was plausible or credible. As I have already indicated, it was open to the Tribunal to make findings adverse to the applicants and to reject their evidence without specific evidence to contradict them. There is nothing illogical, irrational or unreasonable in the Tribunal’s findings or its process of reasoning.
Some of the applicants’ submissions in relation to this part of the ground draw attention to evidence of the first applicant’s husband that I have found to be inadmissible. Whether or not the Tribunal has made a decision or engaged in a process of reasoning that is illogical, irrational or unreasonable is to be assessed based on the circumstances as they existed before the Tribunal when the Tribunal made the decision: Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500; [2016] FCAFC 185 at [77]. Any further or additional evidence that the first applicant’s husband now wishes he had given to the Tribunal, having had the benefit of reading the Tribunal’s decision, does not give rise to any unreasonableness, illogicality or irrationality in the Tribunal decision.
Insofar as the ground of application relates to claims based on events in Rwanda after January 2015 when the first applicant’s husband returned to Rwanda, it is not established.
Other submissions raised by applicants
There were various submissions advanced by the applicants which are not referred to in the analysis above, but which should nevertheless be addressed in this judgment.
Husband’s opportunity to provide evidence
Although not expressly referred to in the particulars, there are various suggestions throughout the applicants’ submissions and in the affidavit evidence of the first applicant’s husband (to the extent that it was not ruled inadmissible) that the first applicant’s husband would have liked an opportunity to provide further evidence to the Tribunal and that it was unreasonable for the Tribunal to make adverse findings, particularly in relation to the claims based on the alleged detention in 2013, without seeking further evidence from the first applicant’s husband. I do not accept this submission.
It is clear that by the time of the first Tribunal hearing, the first applicant and her husband had resumed communications. Had he chosen to do so, the husband could have provided written evidence to the Tribunal. He gave oral evidence to the Tribunal at the hearing on 11 July 2019. The transcript reveals that there were some difficulties with the telephone line on which the first applicant’s husband gave evidence, and that there was limited time available for him to give evidence at that hearing. Notwithstanding these difficulties, he did have the opportunity to give quite detailed evidence at the hearing.
The applicants placed considerable significance on the fact that the Tribunal initially overlooked the request that the first applicant’s husband be called to give oral evidence. In my view, nothing turns on this. The transcript of the hearing shows that, as soon as it was brought to the Tribunal’s attention that there had been a request to contact the husband by telephone, the Tribunal did so. While the circumstances in which he gave that evidence may have been less than ideal because of the limited time available and the difficulties with the telephone line, the Tribunal decision was ultimately made almost one year after the husband gave his evidence to the Tribunal. Had he felt that there was anything he did not have the opportunity to say at the hearing on 11 July 2019, there was plenty of opportunity for him to provide further evidence in writing or to request that the Tribunal take further evidence from him at the two subsequent hearings.
I do not accept that there is any unreasonableness in the approach to the husband’s evidence. Further, there is no suggestion that the Tribunal’s detailed summary of the husband’s evidence is inaccurate in any way.
Standard of proof
The applicants have referred in their written submissions to the standard of proof in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 and submitted that the Tribunal should have applied the same standard of proof in finding that the first applicant and her husband concocted the claims for protection. The applicants have cited a number of cases in support of this proposition, but the cases referred to relate to causes of action involving fraud or deceit, rather than inquisitorial proceedings before the Tribunal.
I accept the Minister’s submission that the Briginshaw principle has no role to play in inquisitorial proceedings before the Tribunal. In SCAN v Minister for Immigration and Multicultural Affairs [2002] FMCA 129 Raphael FM said at [10]:
The applicant contends that the finding of fabrication is a most serious one to which the standard of proof suggested in Briginshaw v Briginshaw (1938) 60 CLR 336 would apply. The fallacy in that argument is that Briginshaw relates to adversarial proceedings and requires the person asserting the fact to prove it to the higher standard. These proceedings are inquisitorial. The Minister is not represented. The Tribunal is not in a position of a contradictor (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]).
This passage has been applied more recently in MZZMG v Minister for Immigration [2015] FCCA 607 at [37]-[38] and in SZUYL v Minister for Immigration and Border Protection [2016] FCCA 405 at [64]-[74].
Essentially, the role of the Tribunal in this matter was to consider whether it was satisfied that the applicants met the criteria for a protection visa. In the case of the first applicant, this task was focused primarily on whether the first applicant met the refugee criteria in s 36(2)(a) of the Migration Act or the complementary protection criteria in s 36(2)(aa) of the Migration Act. The Tribunal made factual findings that the first applicant did not face the risk that she claimed she would face and therefore she did not meet the criteria for the protection visa. For reasons explained above, these findings were open to the Tribunal. It was not necessary for the Tribunal to apply a higher standard of proof in finding that the first applicant concocted the claims, as opposed to simply not been satisfied that the events on which the claims were based had in fact occurred.
Many of the applicants’ oral submissions emphasised that the claimed illogicality, irrationality or unreasonableness occurred in the context of the Tribunal being required to apply the real chance test. As I understand the applicants’ submissions on this point, the applicants were seeking to emphasise that the Tribunal does not need to make absolute findings of fact about past events, but can instead make findings about the probability of an event having occurred. There seems to be an implicit suggestion that the Tribunal should have taken into account the possibility that the events happened as claimed in applying the real chance test. I am satisfied, having regard to the Tribunal’s reasons as a whole, that the Tribunal has appropriately applied the real chance test. The Tribunal did not have any residual doubts about its findings. It was satisfied that the events that the applicant claimed happened simply did not happen. For reasons explained above, these findings were open to the Tribunal. They do not represent any misapplication of the real chance test.
Cumulative findings / ‘what if I am wrong?’ test
Dr Cameron made a submission at the hearing that the Tribunal was required to reassess all the claims and evidence it had already rejected in making a cumulative assessment of the applicants’ claims. It was suggested that when one puts each independent matter of fact together the probability of one of those facts being correct is much higher. Dr Cameron submitted that, unless there is only one possible answer on a particular factual question, it all remains on the table to be assessed cumulatively. He submitted that it is similar to the ‘what if I am wrong?’ test.
The applicants relied on Minister for Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 (Wu Shan Liang) in advancing this submission. In that case, Kirby J said at 293:
Because the test propounded by this Court in Chan [v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379] involves the necessity of a measure of speculation about what the chances held in store for an applicant, and whether there was a “real chance” that made an established fear of persecution “well founded”, an indication that the delegates had put all speculation out of account would certainly show legal error. So would an indication that the evaluation of the “chance” and its “reality” had been made by a test of weighing the probabilities. Two points must be made here.
First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court of law conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for such a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, so long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.
Secondly, the decision-maker must not, by a process of factual findings on particular elements of the material which is provided, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material. Evaluation of chance, as required by Chan cannot be reduced to scientific precision. That is why it is necessary, notwithstanding particular findings, for the decision-maker in the end it to return to the question: “What if I am wrong”? Otherwise, by eliminating facts on the way to the final conclusion, based on what seems “likely” or “entitled to greater weight”, the decision-maker may be left with nothing upon which to conduct the speculation necessary to the evaluation of the facts taken as a whole, in so far as they are said to give rise to a “real chance” of persecution.
Both parties also referred in their submissions to Minister for Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719. In that case, Sackville J (with whom
North J agreed) said at [63]:
Although the “What if I am wrong?” terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in Wu Shan Liang and Guo as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a “well-founded fear of being persecuted” for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not.
His Honour then said at [67]:
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 [Minister for Immigration and Ethnic Affairs v] Guo [(1997) 191 CLR 559]) 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 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 (FC), at 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.
In the present case, the Tribunal was emphatic in its rejection of the factual basis in relation to the claimed detention in August 2013 and the claim that the first applicant’s husband was approached by M23 or Rwandan intelligence in January 2015, that he told the first applicant that he was in hiding and that the first applicant believed he was in hiding. On a fair reading of the Tribunal’s reasons, the Tribunal did not entertain any doubt in relation to its conclusions. It was not necessary for the Tribunal to ask itself, ‘what if I am wrong?’.
I do not consider that there is anything in Wu Shan Liang that required the Tribunal in the present case to reconsider evidence that it had already emphatically rejected when conducting a cumulative assessment of the applicants’ claims.
In any event, in the present matter the Tribunal assessed the first applicant’s claims cumulatively and was not satisfied that she met the criteria for a protection visa. On a fair reading of the Tribunal’s reasons, the Tribunal had regard to all of the evidence before it in reaching its conclusions.
In relation to the refugee criteria in s 36(2)(a), the Tribunal said at [155]-[156]:
155.Apart from some very minor social discrimination from colleagues and neighbours there is no credible evidence before me which suggests that the applicant experienced problems of any kind for any of the reasons set out in s.5J(1). Furthermore, there is no credible evidence before me which suggests that she would face a real chance of suffering serious harm for any of these reasons if she returned to Rwanda within the reasonably foreseeable future.
156.After considering the applicant’s claims individually and cumulatively and having regard to all of the relevant evidence, I am not satisfied that she has a well-founded fear of harm on return to Rwanda for any of the reasons set out in s.5J(1).
In relation to the complementary protection criteria in s 36(2)(aa), the Tribunal said at [158]-[159]:
158.The applicant’s claims in relation to the complementary protection criteria are the same as those put forward in relation to her claims in relation to the refugee criteria. As noted above, apart from the very minor discrimination faced by the applicant due to her Congolese upbringing there is no credible evidence before me which suggest that she experienced harm of any kind prior to leaving Rwanda and no credible evidence before me which suggests that she faces a real risk of facing significant harm for any reason if she returns to Rwanda.
159.After considering the applicant’s claims singly and cumulatively, I am not satisfied that she faces a real risk of suffering significant harm on return to Rwanda. Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Rwanda, there is a real risk that she will suffer significant harm.
These paragraphs do not disclose any jurisdictional error.
CONCLUSION
I have found that the applicants have not established jurisdictional error in the Tribunal decision. It follows that the application to this Court must be dismissed.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 29 April 2022
Annexure A: Objections to evidence
Paragraph number Parts of paragraph inadmissible Reason for upholding objection Affidavit affirmed on 27 December 2021 1 Last two sentences These sentences are irrelevant and constitute submission rather than evidence. 2 All This paragraph is irrelevant and constitutes submission rather than evidence. 3 All This paragraph summarises the Tribunal’s adverse credibility findings, and comprises submission rather than evidence. In any event, the Tribunal decision and statement of reasons is before the Court and comprises the best evidence of the Tribunal’s findings. 5 Last five sentences These sentences comprise an overview of the types of matters the first applicant’s husband would have given further evidence on had he been given a further opportunity. These sentences comprise submission in part, and otherwise comprise evidence relating to the applicants’ claims for protection which was not before the Tribunal and which is irrelevant to the application before the Court. 6-48 All These paragraphs comprise evidence relating to the applicants’ claims for protection, which was not before the Tribunal. The evidence is irrelevant to the application before the Court. Affidavit affirmed on 7 January 2022 7-8 All These paragraphs, and the annexures referred to in the paragraphs, comprise evidence relating to the applicants’ claims for protection, which was not before the Tribunal. The evidence is irrelevant to the application before the Court. 9 All This paragraph refers to the number of times that the person who prepared the transcript of the first applicant’s husband’s evidence to the Tribunal was unable to identify the words he spoke. It is submission rather than evidence. In any event, any reference to indistinct words in the transcript is evident from the transcript itself.
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