DZAEJ v Minister for Immigration

[2016] FCCA 557

FEDERAL CIRCUIT COURT OF AUSTRALIA

DZAEJ v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 557

Catchwords:
MIGRATION – Judicial review – answers given by applicant in compliance interview said to be so unreliable that unreasonable for Tribunal to rely on them – application dismissed.

Legislation:

Migration Act 1958 (Cth) s. 189

Minister for Immigration and Citizenship v Li [2013] 249 CLR 332
Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223
MZZJO v Minister for Immigration & Border Protection [2014] FCAFC 80

Applicant: DZAEJ

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: DNG 33 of 2015

Judgment of: Judge Young

Hearing date: 1 March 2016

Date of Last Submission: 1 March 2016

Delivered at: Darwin

Delivered on: 1 March 2016

REPRESENTATION

Counsel for the Applicant: Ms Grinberg

Solicitors for the Applicant: Eric Hutton

Counsel for the Respondent: Mr Anderson

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The name of the Second Respondent be amended to “Administrative Appeals Tribunal”.

2. The application filed 3 June 2015 be dismissed.

3. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 33 of 2015

DZAEJ

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

1. This is an application for judicial review.  The applicant is a citizen of Nepal.  He arrived in Australia in 2008 on a student visa.  The visa expired sometime in 2010.  On 31 January 2014 the applicant was arrested at 10.30 pm.  When arrested, the applicant was intoxicated and attempting to gain entry into a property that he had been evicted from.  He was held in custody at the police station for approximately four hours and then at 2.30 am on 1 February 2014 he was interviewed by an officer or officers of the Department of Immigration in something called a compliance interview.

2. The interview was conducted by telephone and with the use of an interpreter and at that interview the Department determined that the applicant was an unlawful non-citizen and he was then detained.  The applicant’s claim for protection – and I read from the applicant’s submissions – centred around the effects of his father’s failed business venture in Nepal.  While the applicant was in Australia his father entered into a business with an associate.  His father’s role was to recruit a number of young boys who paid money to receive visas to work overseas.

3. The father’s associate took the money and left and the boys who had paid the money did not receive anything.  The boys caught his father, it is alleged, and agreed to give his father a week to try and find the associate.  His father could not find the associate and so went into hiding.  The applicant said that he had not heard from him since.  The applicant claims to fear that if he is returned to Nepal he faces harm from this group of boys.  The applicant claimed that the boys had broken into the family property and damaged everything and, to quote from the applicant’s outline, “given his relatives torture” and said that “they will keep looking for them”.

4. I think it is fair to say that the case for the applicant before the Tribunal was that he feared harm from this group of disgruntled people who had been caught up in his father’s failed business venture.  I might add that the Tribunal did not describe in its reasons which of the Refugee Convention grounds it considered was being invoked.  It is also not clear to me from the applicant’s submissions.  It may not be relevant as the Tribunal really disposed of the claims on a preliminary basis.

5. It – the Tribunal – made adverse findings about the applicant’s credibility.  It was not satisfied that the fears expressed by the applicant were genuine and it found that Australia’s protection obligations – that is, under the Convention and also the complementary protection obligations – were not engaged.  The Tribunal reached its adverse credibility finding on five grounds and they are set out in the reasons of the Tribunal.  The respondent has distilled these to three grounds and I think the respondent’s distillation is a fair distillation so I adopt it.

6. The first ground was the vagueness and implausibility of the applicant’s claims.  The Tribunal referred, in rough terms, to this ground in the first ground at paragraph 33 of the decision and also in the second ground at paragraph 34 and on one interpretation there was in the fifth ground at paragraph 46 also some reference to implausibility. 

7. The second ground that the Tribunal relied on to make its adverse credibility finding was its finding that the applicant had proffered to the Tribunal fabricated official documents.

8. The third ground for its adverse finding was the delay between the expiry of the applicant’s student visa in 2010 and his arrest in January 2014 and subsequent protection claim. 

9. The applicant argues that the Tribunal fell into error in failing to take account of the circumstances of the applicant’s compliance interview on the night of 31 January 2014 and 1 February 2014.  The interview actually took place on 1 February 2014 from about 2.30 am to 3 am.  It is said by the applicant that the Tribunal’s finding of vagueness and implausibility relying, as it did – at least partly – on the applicant’s answers given in the compliance interview is an unreasonable finding.

10. In assessing the question of reasonableness, I take into account the formulations of – well, it may be simply a formulation but the formulation or formulations by the High Court in Minister for Immigration and Citizenship v Li [2013] 249 CLR 332 and particularly in the reasons of the plurality at paragraphs 71, 72 and 76. At paragraph 71 and 72 of that decision it is clear that the judges considered that unreasonableness goes well beyond the classic Wednesbury unreasonableness formulated by Lord Greene and they include misdirecting oneself as to the operation of a statute, taking into account irrelevant considerations or failing to take into account relevant considerations.

11. And at paragraph 72 the judges concluded that those specific errors in decision-making may also be seen as encompassed by the notion of unreasonableness and I accept that formulation of unreasonableness for the purpose of this decision, of course.  At paragraph 76 there is another formulation or perhaps the same formulation differently expressed, where unreasonableness is said to be a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

12. I also do not forget the paragraph 30 of that decision.  So returning to the notion of vagueness and implausibility, there are, it is said, according to the respondent’s formulation, three separate areas which support the Tribunal’s conclusion.  The first is that the applicant did not refer to specific threats made to him or to his father – I suppose he was in Australia – so really specific threats made to his father.  And the applicant agreed in the Tribunal hearing, according to the Tribunal’s reasons, that his fear of harm, should he return to Nepal, was speculative.

13. The Tribunal went on to say in its second ground at paragraph 34 that the vague and speculative nature of the applicant’s fear was confirmed by his answers in the compliance interview on 1 February 2014.  I will return to the compliance interview in a moment.  The other ground that the respondent says supports the Tribunal’s conclusions – the fifth heading discussed by the Tribunal – was where it found that the applicant’s claims that he had had no contact with his parents since these events was implausible.  The Tribunal noted that while that was a peripheral issue it reinforced its overall doubts about the applicant’s credibility. 

14. The applicant in this case focuses on one aspect of the Tribunal’s reasoning process – the compliance interview.  The written record of the compliance interview is set out in the court book and it is worth noting a couple of things.  It is clear that the interview commenced at 2.30 am.  It is clear that the applicant was in custody at – if I recall properly – the Auburn Police Station, which I understand is in Sydney, and that the interview was relatively brief.

15. It seems to have concluded at about 3 am. It is also clear that the applicant had been arrested after attempting to gain access to a residence from which he had been ejected and had been transferred to the police station for interview. It is a little unclear when he was taken into custody. It appears to be a fair inference that he had been taken into custody at 2230 hours on the preceding evening, such at least is information in one of the boxes in a compliance interview document which describes the time of the applicant’s section 189 detention – it is section 189 under the Migration Act – as 2230 hours or, in other words, 10.30 pm. The compliance interview document has the box ticked to the question “has the client consumed any alcohol or drugs in the past 12 hours?”

16. The next box on the document says the POI, which I take to be the person of interest or the applicant “was allowed a number of hours to rest before the CCI interview”.

17. I take it that is a reference to a compliance interview.  It goes on to say

    “Senior Sergeant Constable Mills (I add, an unusual rank in the police force but I assume that there is an error there) stated the person of interest was now considered sober.  The person of interest was unable to state how much alcohol he had consumed, only that he had drank beer.

18. A number of questions and the applicant’s answers are then set out in the compliance interview document.  It is unnecessary to deal with them all but the questions and answers that the Tribunal gave weight to were as follows “are there any reasons why you cannot return to your home country?” and the applicant’s answer was, “Yes.”  The answers as recorded do not have proper grammar or syntax and I do not for one moment think that if the applicant answered through an interpreter that he spoke in this clumsy way.  But, nevertheless, his answers are recorded in a clumsy way by what I can only guess is a piece of clumsy interpreting.  So the answers are “Yes.  My father do some business and his partner run away with the money”.

19. And he was then asked “If your father is in trouble why does this mean you cannot return to Nepal?” and the answer is “Because he do something wrong.  I will also be in trouble.  What can I say?”

20. The Tribunal concluded that if the applicant specifically feared reprisals from individuals due to his father’s owing money to them he would likely have provided detail of this and the Tribunal implies that the lack of detail was explained by the fact that the applicant’s claims were untrue.  The applicant says this process of reasoning is invalid or unreasonable and the applicant says that the Tribunal specifically failed to take into account the following relevant considerations: 

    a)the interview was conducted at 2.30 am to approximately 3 am; 

    b)the purpose of the interview was to establish the applicant’s identity and his eligibility for a bridging visa; 

    c)he was in custody at the time; 

    d)he had been drinking; 

    e)the interview was conducted through an interpreter; 

    f)he was not warned that what he said could be used adversely to his interests in assessing his credibility;  and

    g)that at the time he was homeless.

21. I might say in relation to the last – the applicant’s homelessness – there are, as far as I can see, no findings about that in the Tribunal’s reasons but there does appear to be material in the documents provided to the Tribunal to support that assertion.  The applicant says that all these factors made the applicant’s answers unreliable and an inadequate basis for reaching conclusions about his credibility.  The Tribunal raised with the applicant its concerns about his answers given in the compliance interview at paragraph 34 and it notes the applicant, in response to that, said that the interview was a very brief interview, it was conducted over the phone, and that the applicant was drunk.

22. And, again, I would just point out, without naturally reaching any factual conclusion about the facts of the matter, that the compliance interview document records the opinion of a police officer, presumably one responsible for his custody, as being that he was sober at the time of the interview.  So there are a number of factors that were not specifically referred to by the Tribunal:

    a)the interview started, at least, at 2.30 am in the morning; 

    b)there was no warning given to the applicant that his answers might have some bearing on an assessment of credibility; 

    c)there was no mention of the interpreter; 

    d)there was no mention that the applicant was in custody; and 

    e)there was no mention that he was homeless or had previously been homeless. 

23. It is not clear to me that these factors necessarily make the answers likely to be unreliable or that they were relevant factors to take into account.  By that I mean it is not clear to me that these factors not mentioned by the Tribunal – that is, the time of the interview and so on – obviously or necessarily would lead a decision-maker to conclude that the answers were unreliable or an improper basis for drawing inferences.

24. I certainly am of the view that the circumstances of the interview would merit caution by the Tribunal in reaching inferences and I will deal with that a little bit later.  The respondent, I think it is fair to say, concedes that position and the respondent, in submissions, conceded that if the Tribunal had made adverse credibility findings against the applicant on the basis of the single compliance interview – that that would be unreasonable.  The respondent points to other factors and says that, taken as a whole, there was nothing wrong with the Tribunal’s conclusion that the applicant’s answers in the compliance interview were vague.

25. They were vague but they were also vague in a sense that was consistent with the answers given by the applicant in his interview before the Tribunal so the Tribunal did not approach those answers in isolation.  In its reasons it treats them as confirmatory of the applicant’s vague answers given in his interview by the Tribunal.  The decision of the Full Court of the Federal Court in MZZJO v Minister for Immigration & Border Protection [2014] FCAFC 80 makes some relevant observations about credibility findings.

26. In referring to similar conclusions reached by a Tribunal that answers by an applicant were vague, the Full Court refers to the dangers faced by decision-makers in relying too much on, in that case, an entry interview.  And I think the observations are applicable, to any interview conducted in circumstances such an entry interview or a compliance interview – that is, an interview conducted over a relatively short period in circumstances such as the Auburn Police Station, which can be expected to be far from congenial – and to drawing inferences from what is said in those circumstances. The Full Court said:

    Some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview.  They are conducted shortly after a person has arrived in Australia – in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions.  On the evidence, a significant part of the entry interview concerns questions designed to elicit information about so-called people smuggling.  They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. 

    A person is asked to articulate personal matters of family and individual history, not only to a strange official but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent.  It is unlikely many interviewees appreciate the use to which the information they give might put, notwithstanding the script which is read to them.  The interviewees are being asked to digest a lot of information quickly and in circumstances that they may perceive as hostile.  Had the Tribunal relied only on a failure to mention details at the entry interview, we may have been inclined to see this as involving a misunderstanding of its task on review.

27. In my view, those remarks, with appropriate adaptation to the circumstances of this case, are an appropriate, timely and realistic reminder to decision-makers about the dangers of reading too much into answers given in such pressured and difficult situations.  However, this is not a case where the Tribunal relied only on that interview.  It relied on a variety of different circumstances, answers, and approaches in concluding that the applicant was not credible.  In relation to the compliance interview, it used that compliance interview, in my opinion, cautiously, consistently with the exhortation of the Full Court and did so only to confirm its view of the applicant’s answers given in the Tribunal interview – a much different situation.

28. So in conclusion, there were other bases for the Tribunal’s findings and those findings were open to it, the reasons were intelligible and provided justification for its conclusions. I dismiss the application. 

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 15 March 2016