DRE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Case [2024] FedCFamC2G 427

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DRE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 427

File number: MLG 2046 of 2018
Judgment of: JUDGE CHAMPION
Date of judgment: 16 May 2024
Catchwords: MIGRATION LAW – Protection Visa – Where Tribunal found that the main applicant had concocted his central claims of police detention for drugs and firearms offences, torture, payment of a bribe and release without charge –  Where the main applicant’s sister had made a statutory declaration which corroborated elements of the main applicant’s principal claim but where there were also inconsistencies between the statutory declaration and the main applicant’s claims – Whether there was a failure to give proper, genuine and realistic consideration to the issues before the decision-maker – Whether the decision-maker’s treatment of the corroborative evidence was legally unreasonable – No jurisdictional error – Application dismissed  
Legislation: Migration Act 1958 (Cth) s. 426
Cases cited:

ASB17 v Minister for Home Affairs (2019) 268 FCR 271, [2019] FCAFC 38,

AVQ15 v Minster for Immigration and Border Protection (2018) 216 FCR 83

BFD17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 887

BTF15 v Minister for Immigration and Border Protection [2016] FCA 647

BZD17 v Minister for Immigration (2018) 263 FCR 292

BZF15 v Minister for Immigration and Border Protection [2016] FCA 647

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485

Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1

W375/01A v Minister for Immigration and Multicultural Affairs(2002) 67 ALD 757; [2002] FCA 379
Division: Division 2 General Federal Law
Number of paragraphs: 79
Date of last submissions: 29 April 2024
Date of hearing: 29 April 2024
Place: Melbourne
Counsel for the Applicants: Mr Fitzgerald
Solicitor for the Applicants: Condello Lawyers
Solicitor for the First Respondent: Ms Liddy of Sparke Helmore
Second Respondent: Submitting appearance, save as to costs

ORDERS

MLG2046 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

DRE18

First Applicant

DRF18

Second Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE CHAMPION

DATE OF ORDER:

16 MAY 2024

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The First and Second Applicants pay the First Respondent’s costs fixed in the amount of $8,371.30.

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

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DRE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 427
Case
[2024] FedCFamC2G 427
Decision Date

CaseChat Overview and Summary

In the case of DRE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the applicants challenged the decision of the Tribunal to refuse them a protection visa. The applicants argued that the Tribunal failed to lawfully consider the statutory declaration of the first applicant’s sister, which they submitted as corroborative evidence to support their claims of police detention, torture, and bribery. The central issue before the court was whether the Tribunal had properly considered the nature, content, and quality of the sister’s statutory declaration and whether the Tribunal’s treatment of the corroborative evidence was legally unreasonable.

The court found that the Tribunal had indeed considered the statutory declaration, noting its detailed analysis of the inconsistencies between the declaration and the first applicant’s claims. The Tribunal’s rejection of the sister’s evidence was based on its adverse assessment of the first applicant’s credibility, which the court held was permissible. The court emphasised that a decision-maker is entitled to reject corroborative evidence if the applicant’s claims have been found to be fabricated, provided the decision-maker considers the nature, content, and quality of the corroborative evidence. In this case, the Tribunal’s consideration of the statutory declaration was thorough, and its rejection of the evidence was grounded in the first applicant’s credibility issues.

Given this reasoning, the court concluded that there was no jurisdictional error in the Tribunal’s handling of the corroborative evidence. The court dismissed the application, holding that the Tribunal had given proper, genuine, and realistic consideration to the sister’s statutory declaration and that the Tribunal’s decision was legally sound.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Dealing more specifically with Ground 1, as framed, in SZNSP, North and Lander JJ held at [36]:When a decision-maker has conducted a hearing of the kind which is conducted by the RRT and has heard the applicant, and has reached the tentative conclusion that the applicant’s claims have been fabricated, the decision-maker is entitled in our opinion to reject evidence which would, if accepted, have corroborated the applicant’s account. That does not mean that any evidence of corroboration could be rejected. It would depend upon the nature, content and quality of the corroborative evidence before a decision-maker could determine to reject it out of hand.[Emphasis added] I accept that the Tribunal had to consider the “nature, content and quality” of the sister’s statutory declaration and the Applicants (in their single amended ground of judicial review) adopt the very language the majority deployed in SZNSP. The requirement of the Tribunal to consider the “nature, content and quality of the corroborative evidence” is another mode of expressing its obligation to “read, identify understand and evaluate” the evidence on behalf of the applicant. The Tribunal must “bring [its] mind to bear upon the facts” in the material. Having done so, it is for the decision-maker to sift the material and attribute whatever weight or persuasive quality is thought appropriate to the material (Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17, [24]). The Tribunal did consider the “nature, content and quality” of the sister’s statutory declaration. As to the “nature” of the sister’s statutory declaration, in SZNSP, the fact that the “provenance” of a disputed document had not been established was of some importance. In this case, the statutory declaration was signed, dated and witnessed. As the Applicants submitted, nothing on its face suggested it was not genuine. Unlike the disputed document in SZNSP, its provenance did not play any significant part in the Tribunal’s reasoning. Nor did its “nature” as an Australian statutory declaration made in Malaysia. No issue of substance turned on the “nature” of the statutory declaration. The “content and quality” of the sister’s statutory declaration was important. The Tribunal was required to lawfully consider the “content and quality” of the statutory declaration. It had to bring its mind to bear upon the facts in it (Plaintiff M1, above). It is accurate, as the Applicants submitted, that elements of the sister’s statutory declaration corroborated the broad framework of the First Applicant’s central claims: police detention, torture, bribe and release without charge. The fact that the Tribunal brought its mind to bear on the statutory declaration’s “content and quality” as it was required to do is made manifest by its detailed analysis of inconsistencies between the statutory declaration and the Applicant’s central claims. In particular, the Tribunal attributed significance to four identified inconsistencies between the statutory declaration and the First Applicant’s account I identified above as to dates of detention, who paid the bribe, as to submissions as to significant matters and as to whether the sister attended the lock-up after 12 hours or 9 days.

Decision

Reasons for decision

Ground 1 is as follows:1.In making its decision on 7 September 2023 12 June 2018 (“Decision”), the Tribunal fell into jurisdictional error by failing to lawfully consider evidence from the First Applicant’s sister. ParticularsA. In support of their application for review, the applicants relied on a statutory declaration of the first applicant’s sister: CB 71-72. The declaration was signed, dated and witnessed. There was nothing on its face to suggest it was not genuine. B. The Tribunal summarised the content of the declaration in its reasons. Based on its adverse assessment of the first applicant’s credibility alone, it rejected the sister’s evidence entirely and found that the declaration was either “not genuine.” Alternatively, it found that if the document was genuine, the sister was “not a truthful witness”: CB 183 [64].C. The Tribunal failed to lawfully consider the nature, content and quality of the declaration before finding it was not genuine. It also failed to lawfully consider its contents independently of its assessment of the first applicant’s credibility before finding that the sister had given an untruthful account.D. The Tribunal’s error was material. The Tribunal’s decision I start by summarising the Tribunal’s reasons to frame the argument as to jurisdictional error. The Tribunal summarised the Applicant’s claims as follows (CB179, [13]):The applicant’s claims as set out in Part C of his Protection visa application are summarised as follows:•In August 2008 he was set up and charged with drug trafficking (385 gm ICE and 285 gm heroin) by the Penang Narcotics Squad.•He was locked up for 10 days without charge. While detained he was deprived of sleep, stripped to his underwear, and had bright light shone in his face 24 hours a day. The soles of his feet were beaten with a plastic hose. He would be covered with a mask and kicked and punched. Each session would last for 3 hours. He learned that it was Team A (the narcotics squad) that tortured him.•He was finally released after his brother paid a bribe of MYR50,000. He was released without charge but was warned that if they wanted him again he would be detained and charged under s.39B of the Dangerous Drugs Act (Amended 1980) which carries a mandatory death sentence. He and his family believe if he had not paid the MYR50,000 he would have been charged and eventually hanged. His family was so worried they gave him money to buy a ticket and escape to Australia.•The Malaysia Police is notoriously corrupt. As they released him the Penang Police B team asked him to be the prosecution witness to nail his boss, an Indian named Sam. He did not want to do that, and they threatened to charge him with possessing fire-arms and trafficking drugs which both carry a mandatory death sentence. His rights were not protected. Malaysia could not protect his basic right to life. The Tribunal accurately summarised the critical elements of the sister’s statutory declaration (CB71–72) made in accordance with Australian law and declared in Malaysia on 14 November 2016 (CB181, [18]).

Ratio Decidendi

Legal Principle Established

Because the Tribunal rejected the Applicant’s central claims because of adverse credibility findings, the Tribunal refused to grant the Applicant a protection visa and, in consequence, refused to grant a visa to his wife, the Second Applicant.The sister’s statutory declaration The Applicant had attached a statutory declaration made by his sister made on 14 November 2016 (CB71–72) as a supporting document to his protection visa application at a time when the delegate was seized of the matter. Alleged jurisdictional error: credit findings – failure to give proper, genuine and realistic consideration to issues It was common ground that credit findings are not immune from judicial review (BZD17 v Minister for Immigration (2018) 263 FCR 292, [2018] FCAFC 94, [32]). Further, “[w]ithout derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as: legal unreasonableness… or a failure to give a proper, genuine and realistic consideration to the issues and material before the decision-maker” (BZD17, [33]). The Applicants’ single ground of judicial review (Ground 1) was that the Tribunal made a jurisdictional error as to how it dealt with that corroborative material “by failing to lawfully consider evidence from the First Applicant’s sister”. The Applicants contended that the Tribunal had made a jurisdictional error on one of the recognised grounds because it failed to give proper, genuine and realistic consideration to the First Applicant’s sister’s statutory declaration. Contrary to the Applicants’ submissions, I have determined that the Tribunal gave proper, genuine realistic consideration to the First Applicant’s sister’s statutory declaration. As a result, Ground 1 has not been made out and I will dismiss the application. My reasons follow.MATERIAL BEFORE THE COURT At the hearing, the Applicants (without objection) made a minor further amendment to their Amended Application dated 19 April 2024 to correctly identify the date of the Tribunal decision as 12 June 2018 (Ex. A1). Each party relied on a written outline (Exs. A2 and R1 respectively). I admitted the Court Book into evidence (CB1–202; Ex. CE-1). An affidavit of Ms Amron Rath, lawyer for the First Respondent, was read. Ms Rath’s affidavit put before the court some documents inadvertently omitted from the Court Book (Ex. R2).JUDICIAL REVIEW APPLICATION Ground 1: Did the Tribunal fall into jurisdictional error by failing to lawfully consider evidence from the First Applicant’s sister? Ground 1 is as follows:1.In making its decision on 7 September 2023 12 June 2018 (“Decision”), the Tribunal fell into jurisdictional error by failing to lawfully consider evidence from the First Applicant’s sister. ParticularsA. In support of their application for review, the applicants relied on a statutory declaration of the first applicant’s sister: CB 71-72. The declaration was signed, dated and witnessed. There was nothing on its face to suggest it was not genuine. B. The Tribunal summarised the content of the declaration in its reasons. Based on its adverse assessment of the first applicant’s credibility alone, it rejected the sister’s evidence entirely and found that the declaration was either “not genuine.” Alternatively, it found that if the document was genuine, the sister was “not a truthful witness”: CB 183 [64].C. The Tribunal failed to lawfully consider the nature, content and quality of the declaration before finding it was not genuine. It also failed to lawfully consider its contents independently of its assessment of the first applicant’s credibility before finding that the sister had given an untruthful account.D. The Tribunal’s error was material. The Tribunal’s decision