DRE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 427
•16 May 2024
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 (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 CHAMPION:
INTRODUCTION
The First Applicant is a citizen of Malaysia. He seeks a protection visa.
The Tribunal accepted that the Second Applicant was “the [First] applicant’s legal wife and therefore is a member of his family unit” (CB192, [57]). The Second Applicant did not advance independent claims (CB179, [12]) but sought a visa as a member of the First Applicant’s family unit. These reasons tend to refer to the First Applicant as simply the Applicant.
The issue at the heart of this application concerns how the Tribunal dealt with a statutory declaration of the Applicant’s sister which in some respects corroborated his claims and in other respects was inconsistent with them.
The Tribunal found that the Applicant’s central claims of detention on drug and firearm offences, torture and release following a bribe were “concocted.” The Tribunal set out its reasons in the following terms (CB187, [42]):
The claim that the applicant was detained by Malaysian police in 2008 in relation to possible drug and firearms offences that potentially carry the death penalty, tortured and, released after payment of a bribe, is central to his case. Having carefully considered all the evidence the Tribunal finds that this incident has been concocted and did not occur. This finding is based on the numerous significant inconsistencies in the evidence submitted and the vague and improbable nature of some of the related claims.
Among the “significant inconsistencies” to which the passage above refers, the Tribunal was referring to inconsistencies between the Applicant’s account of events and his sister’s statutory declaration.
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 202312 June 2018 (“Decision”), the Tribunal fell into jurisdictional error by failing to lawfully consider evidence from the First Applicant’s sister.Particulars
A. 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]).
The sister’s statutory declaration corroborated the broad framework of the First Applicant’s central claims. By her statutory declaration, she declared that that she had received a call from a police station and was informed that her brother had been “detained in the police lock-up for selling drugs” (CB71). She went to the police station. She declared that her brother had told her that he had been beaten with a plastic hose in the ribs, back, and on the soles of both feet. She said that a $50,000 bribe had been paid to secure her brother’s release without charge (CB71–72). In addition to corroborating elements of the First Applicant’s claim, as I will expand on below, there were also several inconsistencies between the account of events set out in the sister’s statutory declaration and in the First Applicant’s own account. The Tribunal placed greater weight on the inconsistencies than it did on the elements of the sister’s statutory declaration that corroborated the First Applicant’s claim.
Findings and reasons
In its “Findings and Reasons” the Tribunal noted (CB187, [41]):
In general, the Tribunal did not find the applicant to be a forthcoming and credible witness.
The Tribunal presaged its analysis of the evidence with its conclusion that the Applicant’s central claim of detention for drugs and firearm offences, torture in detention, and release on the payment of a bribe was “concocted and did not occur ” (CB187, [42]). It noted that its finding was based on “numerous significant inconsistencies in the evidence” and the “improbable nature of some of the related claims made” (CB187, [42]). The Tribunal set out its analysis of the inconsistencies and improbabilities of the First Applicant’s account in the ensuing paragraphs of its reasons.
The inconsistencies and improbabilities (as found by the Tribunal) included the following.
Inconsistencies between the sister’s statutory declaration and the First Applicant’s account
One reason (among others) that the Tribunal found that the Applicant had “concocted” the central claims was because of inconsistencies between the Applicant’s sister’s statutory declaration and the Applicant’s own account. The Tribunal identified four inconsistencies as follows:
(1)first, there was an inconsistency as to dates between the First Applicant’s own account of his dates of police detention and the dates his sister identified. In the protection visa application, the First Applicant had asserted that “in August 2008 he was set up and charged for drug trafficking” (CB187, [43]). The sister declared that she had been contacted by police about 9 July 2009 that her brother was detained in the police lock-up for selling drugs. The First Applicant had arrived in Australia on 22 September 2008 and therefore the dates of detention the sister had referred to in her statutory declaration were plainly wrong (CB71, [2]; CB188, [45]);
(2)secondly, there was an inconsistency as to who paid the bribe. The sister’s statutory declaration said she had paid the bribe to the police to secure her brother’s release (CB71, [13]; CB188, [45]). In his application for a protection visa dated 2 May 2016, the Applicant had said his brother (not his sister) had paid the bribe (CB57, [89]);
(3)thirdly, there were omissions in the sister’s statutory declaration as to matters the Tribunal assessed to be important as to approach to the First Applicant to be a prosecution witness and to him being “smeared” when he refused. The sister omitted any mention from her statutory declaration of approaches by the Penang Police B team for the Applicant to be a prosecution witness against his boss as to drug offences. In his representative’s submission to the delegate dated 16 November 2016 (to which the sister’s statutory declaration made on 14 November 2016 was attached), the First Applicant advanced a new claim that after he refused to be a police informant, the police “smeared him” and he was “projected as a traitor and suspected by his boss that he snitched on them” (CB84). The Tribunal noted that “none of this is referred to in the statement by the applicant’s sister” (see also CB188, [45]); and
(4)fourthly, there was an inconsistency as to when she saw him in the lock-up. The sister had declared that she saw the First Applicant in the lock-up 12 hours after he arrived there (CB71, [7]). In his evidence before the Tribunal, the First Applicant said his sister came to see him “on about the 9th day” of his detention (CB89, [49]; CB190, [51]).
The late production of a police report previously said to have been destroyed
The Tribunal relied on other matters unconnected with the statutory declaration for disbelieving the Applicant.
The Applicant produced a police report of his detention shortly before the Tribunal hearing having previously said police reports had been destroyed. Specifically, in his protection visa application, the First Applicant had said he could not provide a police report because the “police destroyed [the] record after I was released” (CB60, [98]). On 14 May 2018, a week before the Tribunal hearing, the First Applicant’s representative “submitted for attention (with no further explanation regarding how these documents became available when previously it had been claimed they had been destroyed) copies of two claimed Malaysian police reports with English-language translations” (CB188, [47]).
Inconsistent dates of alleged detention
As to the police reports the Applicants produced shortly before the Tribunal hearing, the untranslated original second police report was dated 19 March 2008. The English translation had an earlier date of 19 February 2008 (CB188, [47]). The police report set out that 1 of 3 detainees (a Chinese man) was injured on 19 March 2008. If the Applicant was in detention on 19 March 2008, the Tribunal noted that this date of detention could not be readily reconciled with the applicant’s statement that he only stayed in Malaysia “for about another month before he came to Australia” (CB189, [50]) when the uncontroverted evidence was that he travelled to Australia in September 2008 which would have put his detention in August 2008, not February or March 2008.
As part of its adverse assessment of the Applicant’s credibility, the Tribunal was concerned that “since the original claim statement… 3 other dates for when the applicant was detained” had been provided (CB187, [45]). In his “original claim statement,” namely his protection visa application, the Applicant claimed he was detained in August 2008. As to the “3 other dates”, I infer that the Tribunal was there referring to the sister’s date of detention set out in her statutory declaration of July 2009 and the dates of February 2008 and March 2008 set out in the two police reports.
Other improbable features of the First Applicant’s account
The Tribunal counted against the Applicant’s credit that he had not in his protection visa application raised any issues about his boss saying that he (the boss) had lost cash and drugs or that he (the Applicant) had been smeared by the police, or that he and his sister had later received phone calls and that they feared he was to be silenced (CB190, [52]) and that he raised these claims only later. In that way, the Tribunal found that the First Applicant’s claim had evolved, detracting from his credibility.
The Tribunal found that it was incongruous that the police would have called his ex-wife in 2012 or 2013 to enquire “about his whereabouts” when they had previously dealt with his sister (CB190, [53]).
As is set out in the passage below (CB192, [62]), the Tribunal found that it was improbable that two things the Applicant claimed would both have occurred: first, the First Applicant claimed that he had been released because a bribe was paid but also claimed the police sought to engage a person who paid a bribe as a prosecution witness.
Delay in application for a protection visa
The Tribunal also found that it was “relevant” that the First Applicant delayed for 8 years before he applied for a protection visa (CB190–191, [54]–[56]). In substance, the Tribunal found that the delay in applying for protection detracted from the First Applicant’s credibility.
The Tribunal said that it “put to the applicant” (CB189, [51]):
that there are inconsistencies regarding the date of the claimed arrest, the timing of his sister visiting him in police custody, and whether his sister or his brother paid the claimed bribe, and that in her statement his sister said nothing regarding people continuing to approach them for more money, or wanting him to be a witness against Sam, or threatening that he would be further detained. The Tribunal put to the applicant that, depending on his comments, these inconsistencies and omissions may cause the Tribunal to feel that the Police Reports are not genuine, the Statutory Declaration by his sister is not genuine, and therefore that it is likely that the incident he claims occurred is not genuine. The applicant replied that they are all true. The Tribunal asked the applicant if that is the case why there are so many differences in the accounts…
[Emphasis added]
Conclusion
Having traversed the material, the Tribunal’s conclusion that the claim was concocted was based on a combination of “inconsistencies in the evidence”, the “evolution of the claims,” and the “improbable nature of the claim” (CB192, [62]). The Tribunal expressed its conclusion as follows (CB192, [62]):
Having given careful consideration to all the evidence, the Tribunal finds that the applicant has concocted his central claim that he was detained by police in 2008, tortured and released on payment of a bribe. In reaching this conclusion the Tribunal has given weight to the inconsistencies in the evidence discussed above, the evolution of the claims from the initial statement, as discussed above, as well as to the improbable nature of the claim that the police, having released the applicant after the payment of a bribe, would then want him to be a witness against his boss, and when he refused, would conspire to spread rumours about him so he would be killed by criminal gangs and therefore silenced.
I will return to the Tribunal’s conclusion as to the statutory declaration below (CB193, [64]).
ANALYSIS AS TO THE GROUND OF JUDICIAL REVIEW
The Applicants submit that the Tribunal was “required to, and what it failed to do was assess the nature, quality and content of that corroborative evidence independently of its assessment of the first applicant’s credibility before deciding to reject it outright” (Applicant’s submissions, [4]). The First Applicant’s reference to the “corroborative material” is a reference to the sister’s statutory declaration.
Cases in which the well has been poisoned beyond redemption
There are cases in which a Tribunal of fact will “treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption.” No corroboration can repair the situation for an applicant’s case which has been compromised by lies (Re Minister for Immigration And Multicultural Affairs; ex parte Applicant S20/2022 (2003) 73 ALD 1; [2003] HCA 30; [49] (Gummow and McHugh JJ)).
In the subsequent decision of Minister for Immigration and Citizenship v SZNSP(2010) 184 FCR 485; [2010] FCAFC 50, North and Lander JJ at [39] explained that in Applicant S20 Gummow and McHugh JJ had:
questioned whether the separate consideration of corroborative evidence was a preferable practice. The RRT should normally assess all the evidence together. Otherwise, it might be thought that the corroborative evidence is treated as a lesser category of evidence and that the RRT has not paid sufficient regard to it.
[Emphasis added]
The Tribunal considered all the evidence together before rejecting the First Applicant’s account
In this case, the Tribunal assessed “all the evidence together” in accordance with the “preferable practice” (SZNSP, [39]) in contrast with an approach in which it first focused on the First Applicant’s evidence and found it to be so compromised that the “well was poisoned beyond redemption” and no corroborative evidence could rehabilitate it. In an earlier passage in SZNSP, North and Lander JJ held it was open to the Tribunal in that case “to conclude that, in view of all the evidence in the case, no reliance should be placed on the [corroborative] witness statement” (at [35]).
It was the totality of the evidence in this case including its “inconsistencies,” the claim’s “evolution,” and the fact that it had an “improbable nature” (CB192, [62]) which led the Tribunal to conclude that the First Applicant had “concocted” his central claims.
In substance, the Tribunal found that in view of all the evidence no reliance could be placed on the corroborative evidence set out in the First Applicant’s sister’s statutory declaration (see SZNSP, [35], above).
No error
In reaching a view as to the First Applicant’s credibility, there was no error in the Tribunal’s approach in considering the statutory declaration as part of its assessment of “all the evidence together” (SZNSP, [39]) before finding it could place no reliance on it as corroborating the Applicant’s account
The Tribunal was not required to “independently” — in the sense of on a stand-alone basis or separately — consider the statutory declaration (Cf. Ground 1, particular C). Indeed, any consideration of the statutory declaration on a stand-alone or separate basis may have been contrary to the “preferable practice” of considering all the evidence together before reaching any conclusion as to the First Applicant’s credibility rather than relegating corroborative evidence to some “lesser category of evidence” (SZNSP, [39]).
An obligation to consider the nature content and quality of the corroborative evidence
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.
The weight and persuasive quality the Tribunal attributed to the consistencies and inconsistencies between the sister’s account and the Applicant’s account was a matter for the Tribunal (Plaintiff M1/2021, [24], above).
Having regard to the detailed analysis in which the Tribunal engaged in as to the sister’s statutory declaration, the submission that the Tribunal failed to meet the requirement to consider the “nature, content and quality” of it cannot be sustained.
Legal unreasonableness?
Although the Applicants did not explicitly frame the judicial review application on the basis that the Tribunal’s consideration of the sister’s statutory declaration was “legally unreasonable,” (footnoting the decision in AVQ15 v Minster for Immigration and Border Protection (2018) 216 FCR 83; [2018] FCAFC 133, [24]) the Applicants submitted that:
The Tribunal’s reasons leave the distinct impression that it embarked on a “quest to disbelieve” the applicants’ claims.
There was an evident and intelligible justification for the Tribunal’s conclusion
The Tribunal had to reach a state of satisfaction that the Applicant had a well-founded fear of persecution for the grant of visa. That evaluative decision might be set aside for jurisdictional error if it undertook that evaluative task in a way that was legally unreasonable. Here, there was “an evident and intelligible justification” (Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30, [82]) for the Tribunal’s decision because of the 4 identified inconsistencies between the sister’s statutory declaration and the Applicant’s account.
A “quest to disbelieve”
I wish to return to the phrase a “quest to disbelieve” (AVQ15, [24]; James Hathaway and Michelle Foster, The Law of Refugee Status (2nd edition, 2014), 139).
The full Court in AVQ15 noted that even where it is reasonably open to find that a person has given inconsistent evidence the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it (AVQ15, [28]). A Visa applicant is often in the invidious position of having to give multiple iterations of their account (AVQ15, [25]); W375/01A v Minister for Immigration and Multicultural Affairs(2002) 67 ALD 757; [2002] FCA 379, [15]). Nonetheless, “differences in accounts may be rationally and reasonably capable of giving rise to concerns about a person’s credibility” (ASB17 v Minister for Home Affairs (2019) 268 FCR 271, [2019] FCAFC 38, [43]). Further, “caution” must be exercised in concluding that an adverse credibility assessment results in a decision being affected by jurisdictional error size to “avoid judicial review transgressing into the impermissible area of merits review” (AVQ15 [41(f)]).
I do not assess that the inconsistencies between the statutory declaration and the Applicant’s account as leaving a “distinct impression” that the Tribunal embarked on a “quest to disbelieve.” Given the centrality of the police detention to the Applicant’s claims the inconsistencies were as to important, not peripheral matters. The omissions too were important. It was not “arbitrary, capricious, illogical, irrational, unjust, and lacking in evident or intelligent justification” for the Tribunal to place weight on inconsistencies between the sister’s statutory declaration and the Applicant’s account (in the context of the range of other matters to which the Tribunal referred) in its assessment of the Applicant’s credibility (Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11, [2]).
The Tribunal’s statement that the statutory declaration was not genuine or that the sister was not a truthful witness or both
Finally, there is one other matter which needs to be addressed in the reasons.
The Applicants emphasised the Tribunal’s statement as to the statutory declaration as follows (CB193, [64]):
The Tribunal also finds that the Statutory Declaration purportedly by the applicant's sister is either not genuine, or she is not a truthful witness (or likely both, given the evidence discussed above by Applicant 2 regarding the applicant facing threats from 'gang people', which she claimed was based on her discussions with the applicant's sister, and which the Tribunal does not accept is true)
[Emphasis added]
To give the necessary context to the Tribunal’s reference to discussions between the First Applicant’s sister and the Second Applicant in the passage above, the Tribunal set out in its reasons that during the hearing that it had asked the Second Applicant about the First Applicant’s circumstances. The Second Applicant told the Tribunal that “she had met his sister as she has visited Australia and said his sister told her that he faces threats and ‘these gang people’ came to see his sister” (CB192, [59]). On the Second Applicant’s account, the sister had said that the gang people thought he “must be a spy and will divulge information about the gang” (CB192, [59]). The Tribunal did not accept this was true (CB193, [64]).
The Tribunal was centrally concerned with the credibility of the First Applicant, not the credibility of his sister. The Tribunal properly categorised the sister’s statutory declaration as corroborative evidence, relevant in an assessment of all of the evidence as to the First Applicant’s credibility. As I have already noted, the Tribunal, as it was required to do, considered the nature, quality and content of the statutory declaration. I have found that there was no legal unreasonableness in the Tribunal’s approach in giving weight to the 4 identified inconsistencies between the sister’s statutory declaration and the Applicant’s account as a reason (among others) for the conclusion that the Applicant’s central claims were not credible.
Although, for the reasons expanded on below, the Tribunal’s statement and its additional finding (“The Tribunal also finds”) as to the sister’s statutory declaration — that it was not genuine or that she was an untruthful witness or “likely both” — was an unnecessary finding it did not, in the circumstances of this case, amount to jurisdictional error.
Counsel for the Applicants helpfully referred me to the decision of Katzmann J in BTF15 v Minister for Immigration and Border Protection [2016] FCA 647.
In BTF15, in the context of a discussion of the Tribunal’s finding in that case that the statements of two corroborative witnesses were fabricated, Katzmann J said at [56]:
Nevertheless, I am troubled by the Tribunal’s conclusion that the statements of the two witnesses were fabricated. It is one thing to find that evidence should not be given any weight. It is quite another to conclude that evidence is a fabrication. The High Court has said in a different context that “as a matter of logic and common sense, something more than mere rejection of a person’s evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence”: Smith v New South Wales BarAssociation (1992) 176 CLR 256 at 268 (Brennan, Dawson, Toohey and Gaudron JJ). The Tribunal was entitled to find that the evidence of the two witnesses could not overcome the inconsistencies in the appellant’s account. It was unnecessary and inappropriate, however, for the Tribunal to go further and find that their evidence was a fabrication: Smith at 271–2 (Deane J). In the circumstances, that finding was unreasonable. It should not have been made.
[Emphasis added]
For similar reasons to those Katzmann J articulated in BTF15, I am “troubled” by the Tribunal’s conclusion as to the sister’s statutory declaration that it was not genuine or that she was not a truthful witness or “likely both”.
The Tribunal’s reasoning process in identifying the four substantive inconsistencies between the sister’s statutory declaration and the Applicant’s own account as one reason (among a range of other reasons) to support a finding that the First Applicant’s account as to his central claims was not to be accepted was sufficient to dispose of the case in so far as it was required to turn its mind to the nature, quality and content of the statutory declaration. As to the 4 inconsistencies, the Tribunal’s reasoning process was within the bounds of legal reasonableness.
Borrowing some of the language of Katzmann J in BTF15 above, the Tribunal was “entitled” to find that the sister’s evidence “could not overcome” other deficiencies in the First Applicant’s account although in this case those inconsistencies contributed to the Tribunal’s overall conclusion that the First Applicant’s account was not credible.
It was nonetheless (as Katzmann J observed in BTF15 in the context of that case) “quite another” matter to conclude that the sister’s evidence was not genuine or she was not a truthful witness.
It was not submitted that either the Tribunal had failed to give the notice required under 426(1)(b) of the Migration Act 1958 (Cth) (that the Applicants could give the Tribunal written notice that they wanted the Tribunal to obtain oral evidence from any person) or that the Applicant had given written notice that he wanted the Tribunal to obtain oral evidence from his sister pursuant to s. 426(2) of the Act (or otherwise).
As it happened, the Applicant’ sister did not give oral evidence in the inquisitorial process before the Tribunal. She had not had a chance to elaborate on her account nor had it been tested or challenged all as might occur in adversarial proceedings (see discussion in BTF15, [55]).
In BTF15, Katzmann J said, with reference to the evidence of the 2 corroborative witnesses, that it was “unnecessary and inappropriate” for the Tribunal “to go further and find that their evidence was a fabrication”. I confine myself to saying that in this case it was “unnecessary” for the Tribunal to go further and make the additional finding that the statutory declaration was not genuine, the sister was not a truthful witness or likely both.
The issue is whether the additional and unnecessary finding that the statutory declaration was not genuine, the sister was not a truthful witness or “likely both” constitutes jurisdictional error.
In BTF15, the fact that the Tribunal had made findings Katzmann J found to be “unnecessary and inappropriate” did not affect the result because “it was open to the Tribunal to find what the witnesses had said could not rehabilitate the appellant’s evidence” (BTF15, [57]).
So too in this case.
Although the Tribunal made an additional “unnecessary” finding that the statutory declaration was not genuine, the sister was not a truthful witness or likely both, the reasoning without that additional unnecessary finding is sufficient to support the Tribunal’s conclusions and the additional unnecessary finding does not disclose jurisdictional error. In my view, the additional finding did not infect the other findings. Mr Justin Gleeson SC in the essay “Taking stock after Li” (Administrative Justice and Its Availability, Federation Press 2015), quoting an earlier scholarly work, observed that legal reasons are sometimes “like the legs of the chair, not the lengths of a chain”. There may be jurisdictional error if “three of the four legs of the chair were found to be no legs at all, and the fourth leg was found insufficient of itself to support the chair”. In this case, even if one takes away the “leg of the chair” in the form of the unnecessary statement about the statutory declaration not being genuine or the sister not being a truthful witness or likely both, there remain sufficient other legs of the chair to support the decision including the “leg” of the substantial inconsistencies between the statutory declaration and the Applicant’s account.
In those circumstances, on the specific facts of this case, the unnecessary and additional statement about the statutory declaration not being genuine, the sister being an untruthful witness or “likely both” does not amount to jurisdictional error because the unnecessary finding was not critical to the result.
DISPOSITION
I will dismiss the application. I will order that the First and Second Applicants pay the Minister’s costs fixed in the sum of $8,371.30.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 16 May 2024
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