EBE18 v Minister for Home Affairs
[2019] FCCA 3471
•10 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EBE18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 3471 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – extension of time application – Applicant imprisoned and regularly moved during period – extension of time granted – whether Authority found Applicant not a credible witness in relation to his claims to be a stateless Palestinian residing in Syria – Authority found Applicant’s place of residence was Jordan – Applicant had no documentary evidence, nor expected common knowledge of Syria – credibility findings –whether made on rational and logical basis – s.473GB Certificate – jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.46A(2), 424A, 473DC, 473GB, 477 |
| Cases cited: BAO18 v Minister for Home Affairs [2019] FCA 965 |
| Applicant: | EBE18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2193 of 2018 |
| Judgment of: | Judge Baird |
| Hearing date: | 30 November 2018 |
| Date of Last Submission: | 30 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 10 December 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr B Kaplan |
| Solicitors for the First Respondent: | Elizabeth Warner Knight, Australian Government Solicitor |
| The Second Respondent filed a submitting appearance |
ORDERS
The title of the First Respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The time for making the application be extended to 8 August 2018.
A writ of certiorari shall issue removing the record of the Immigration Assessment Authority decision made on 14 March 2018 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2193 of 2018
| EBE18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
By Application filed 8 August 2018, the Applicant seeks an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) to file an application for judicial review of a decision of the Second Respondent, the Immigration Assessment Authority, made on 14 March 2018. The Authority’s decision affirmed the decision of a Delegate of the First Respondent, the Minister for Home Affairs (as at the date of this decision now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs), made on 19 January 2018 to refuse to grant the Applicant a Safe Haven Enterprise Visa (subclass XE‑790).
The Applicant filed the Application approximately 4 months after expiration of the time allowed. He was imprisoned during that time.
Background
The Applicant claims to be a stateless Palestinian who formerly resided in Syria, and an Arab Sunni. He arrived on Sabhi Island in the Torres Strait as an unauthorised maritime arrival in April 2013. He was then transferred to Darwin. On 6 June 2013, the Applicant participated in an arrival and induction interview with an officer of the Department of Home Affairs (then named the Department of Immigration and Citizenship). Further to the exercise by the Minister of his power under s.46A(2) of the Act to permit the Applicant to apply for a SHEV or protection visa, on 27 September 2017 the Applicant applied for the Visa.
The Applicant’s claims
I summarise the Applicant’s claims from his statutory declaration accompanying his application for the Visa, and by reference to the Delegate’s and Authority’s decisions, as follows:
(a)the Applicant was born in 1969 in Damascus, Syria;
(b)he is a Palestinian and stateless. He does not have a right to enter or reside in any country;
(c)his parents and grandparents were stateless Palestinians. His grandparents moved to Syria after World War II;
(d)his mother died in a car accident in 1974, when he was 5 years old, and he has no memory of her;
(e)on 24 June 2012, his wife, his 3 teenage sons, and his father were killed when a rocket fired by the Syrian regime hit and destroyed his home. He lost all his identity documentation when the rocket destroyed his home;
(f)he started drinking. About 1 week after he buried his family, he went to the closest police station to try and find out who was responsible. He was angry, and fought with a police officer there. He was then put in a cell for about 10 days, and charged with assault;
(g)in the middle of the night, 4 uniformed army officers blindfolded him and he was taken from the police station to another building. He was asked questions about what happened, and why he was helping the uprising; if he did not provide an answer or said he did not know, he was hit in the face. A few days later, he was interviewed by another officer who asked questions about his family, and he was again beaten and had cigarettes put out on his hands and back. This continued for some 6 months, whilst he was held there;
(h)upon his release, the officer who opened the cell door whispered to him that the police were not going to stop until he disappeared;
(i)once he was released, he stole a razor and attempted to kill himself. The doctor who treated him told him suicide was a sin, however, he thought he would attempt suicide again until he saw his father in a dream who told him “not to give up and it was not too late”;
(j)he stayed with a neighbour rent free. After a couple of weeks, he was visited by plain clothes men who searched his room, harassed him, and smashed everything (his belongings). This happened some 4 times over a period of 3 months, each time the men said “see you next time”. The family asked him to leave as they were starting to become scared;
(k)as a truck driver, he knew a few people who could smuggle him to Iraq without documents. He paid a fee to be smuggled to Iraq. He then made his way to Australia.
The Applicant claims he cannot return to Syria because he will be arrested, detained, tortured, and killed by the Syrian regime at the airport because he is a stateless Palestinian. He also fears that he will be arrested and tortured as an opponent of the regime or as a suspected rebel, and that he will be harmed by Shi’a militia because he is Sunni. He will suffer harm as a stateless Palestinian because he will not be able to work legally, operate a business, own land, or own property. In sum, the Applicant claims to fear harm because he is imputed with being opposed to the Syrian government, as a stateless Palestinian, and at the hands of non-Sunni militia.
The proceeding before the Delegate
The Delegate was concerned that the Applicant had not provided any documentary evidence as to his identity as a stateless Palestinian residing in Syria. The Delegate stated in their reasons “I have strong doubts as to the applicant’s claimed identity”. The Delegate conducted an interview with the Applicant on 21 November 2017. The Applicant was asked questions relating to Syria and Damascus.
The Delegate stated that the Applicant could not name his school, the street where he lived, or accurately describe where he lived. He displayed poor knowledge of general matters relating to Syria, including high profile political leaders.
The Delegate said the Applicant was able to name the president of Syria’s father, Hafez Al‑Assad, but was unable to name Rifaat Al‑Assad (the president’s uncle) who had led a coup d’état against his brother in 1983. Whilst the Applicant was 14 years old at this time, the Delegate believed the notoriety of this incident and the status of the Al-Assad family in general would be known to someone who had spent their entire life in Syria. The Applicant correctly indicated that Rifaat Al‑Assad was no longer in Syria. The Applicant was also not aware of Mahmoud Zubi, who was Prime Minister of Syria from 1987 to 2000.
The Delegate stated that according to country information the Applicant also incorrectly answered what colour Syrian licence plates were. The Delegate stated that these factors were not conclusive proof but nonetheless were part of the overall assessment of the Applicant.
At the Applicant’s interview, the Delegate put information to the Applicant that he had sent funds overseas to Jordan to people with a similar surname to his, using his South Australian proof of identity document. The Applicant denied sending the money, and claimed that someone else must have been using his identity to do so.
The Delegate noted there was a Facebook account linked to the Applicant’s telephone number. This account was “friends” with [AS], which was the same name as one of the Applicant’s sons, and who had commented on one of his photos. [AS’s] Facebook page showed photos with persons named [MS] and [OS], which names were the same names as the Applicant’s other two sons. They appeared to reside in Norway. The Applicant said this was a coincidence.
The Delegate found there was significant evidence that the Applicant’s children are alive and residing in Norway. The Delegate found that they were not killed in the manner the Applicant claims.
As the Delegate found the above, the Delegate concluded that the Applicant was likely not detained, as the reason for his attending the police station would no longer be present.
Due to the above, the Delegate found that the Applicant was not a stateless Palestinian from Syria, he was likely resident in Jordan, and that it is plausible he may be of Palestinian heritage. The Delegate was not satisfied the Applicant was someone to whom Australia owed protection obligations. The Delegate refused the Applicant the Visa.
The proceeding before the Authority
No further information was before the Authority than was before the Delegate. The Authority in their decision noted that the Applicant had been convicted of an offence in Australia for which he was sentenced to 5 months in prison (the evidence before me indicated that the Applicant escaped from detention and was captured and imprisoned for a period). However, the Authority did not consider this relevant for the purposes of determining the Applicant’s claims or his credibility. The Authority reiterated the Applicant’s claims for protection as set out above.
The Authority recorded that the Delegate had reached findings based on information before the Delegate, including Facebook activity and financial transactions, which 2 pieces of adverse information the Authority stated the Delegate had put to the Applicant (see at [11]).
The Authority reviewed the Delegate’s discussion regarding the Applicant’s Facebook page, and the 3 friends who had similar names to the Applicant’s sons, one of whom individuals had commented on one of the account’s photos, and noted the account that had made the comment had posted photos with 2 of the Applicant’s other friends, each with identical forenames, and similar surnames – with the addition of the prefix “Al” – to the names of the Applicant’s 3 sons. The Delegate showed the Applicant a photograph of the 3 men, both as children and as adults. The Applicant reiterated that he did not know the men. The Authority noted that the Applicant then said that his Facebook account had maybe been hacked. The Applicant stated that the account that was linked to his telephone number was not his account.
The Authority at [15] of the decision stated the Delegate had asked if the Applicant had ever sent money overseas, to which the Delegate recorded that the Applicant gave a confusing response, stating that he may have sent money to a friend, or from a friend, then stating that he had never sent money overseas personally. The Delegate put to the Applicant that credible information from an agency of the Australian Government indicates that the Applicant had sent money to people living in Jordan, one of whom was on the Applicant’s Facebook friends list, and some of whom who shared the same surname (without the “Al” prefix) as the Applicant. The Applicant could not explain how his account was used to send money overseas, and said that he had never been to Jordan. The Authority recorded that the Applicant was given the opportunity to, and spoke to, his migration agent. He continued to deny any knowledge of the people.
The Authority observed that the above denials and explanations were confirmed in post-interview submissions from the Applicant’s migration agent. The Applicant further stated in these submissions that 4 days before the interview with the Delegate, his Facebook account had been accessed from Thursday Island. The agent submitted that it would be possible for someone, if they were to take over the Applicant’s phone number, to gain access to the Applicant’s Facebook account.
The Authority considered the submission. The Authority noted that the Applicant had confirmed his telephone number early in the interview with the Delegate, and had not claimed that it had been hacked or that any unusual activity had occurred.
At [19], the Authority found that whilst it may be possible that the Applicant’s account was hacked and used by another person, the similarities of the 3 names to the Applicant’s sons, that the 3 men on Facebook appear to be brothers, that the Applicant had posted a comment on [AS’s] page, indicates a strong likelihood that they are his sons, and he has been in recent contact with them. The Authority found that the Applicant had likely fabricated the story that his sons had been killed in a rocket attack in Syria.
At [20], the Authority noted that the Applicant provided an explanation for the unexplained financial transactions from his account to persons in Jordan, namely that his wallet was stolen about 3 years ago when he was living in South Australia (sometime in 2014). However, at [21], the Authority did not find this convincing, noting the transactions occurred between 2015 and 2016, “a substantial” period after the Applicant claims to have lost his wallet and closed that account down (I interpose at this point to observe that if the wallet with the identity card was lost sometime in 2014, the explanation that someone else used the Applicant’s identity in transactions in subsequent years is chronologically possible).
At [21], the Authority further found that the Applicant had been misleading in his evidence about never holding a driver’s licence. The Authority stated it considered the material provided by the Australian government agency, and noted that “the Applicant was identified on each transaction via an Australian driver’s licence, not his Proof of Age document.” Whilst the Authority accepted that someone may have the Applicant’s Proof of Age card, the Authority did not accept this alone would allow them to obtain a driver’s licence. The Authority concluded that it was satisfied that the financial transactions were carried out by the Applicant, and that he had not been a witness of truth in relation to them.
At [22], the Authority stated:
Apart from his protection claims, the applicant has not provided any evidence of his former residence in Syria. He claims that he lost all of his identity documentation when his home in Syria was destroyed and his family was killed. However, as I have found that the applicant has not been a witness of truth and that his sons were not killed in Syria, I do not accept that his home was destroyed or that he lost his documentation. I am satisfied that the applicant has attempted to conceal the truth about his origins and I find that he is not a stateless Palestinian who has been residing in Syria.
At [23], the Authority stated:
I have considered whether the applicant has demonstrated a link to any other country. The financial transactions show that he has been transferring money to persons with an almost identical surname, who live in Jordan. He has tried to conceal his involvement in these transactions as well as his relationship with these persons. There is nothing in the material before me which explains why he would want to do so, other than not wanting to be linked with these persons and/or Jordan. I consider that the most likely explanation for concealing this link is that these people are other family members that he did not want the Department to be aware of. Having regard to this and to my finding that he is not a witness of truth and not from Syria, I am satisfied that the applicant has a familial connection to Jordan. Given my concerns as to his credibility and his attempt to disguise his connection to Jordan, I do not accept his claim that he has never been there. I find that the applicant has a familial link to and was a resident of Jordan, and that he left Jordan to come to Australia. On that basis, I find that Jordan is the applicant’s former habitual residence and that Jordan is the receiving country for the purpose of this review.
The Authority then examined country information relating to Jordan and Palestinians in Jordan. The Authority considered the Applicant as a Palestinian usually resident in Jordan, and not as a Syrian refugee (at [25]). Whilst noting there was some official discrimination of the Palestinian population, the Authority accepted that Palestinian Jordanians broadly had similar socio-economic and health status to other Jordanians. The Authority considered the Applicant’s claims in the light of country information (at [26], [27], and [28]).
At [29] the Authority considered whether the Applicant may face persecution and harm because of any real or imputed political opinion. Noting that the Authority did not accept any of his claims in relation to events in Syria, the Authority did not accept that the Applicant’s father, or the Applicant, had or have any profile relating to Hamas or any other political party. The Authority was satisfied that the Applicant was not of adverse interest to the Jordanian intelligence and security organisations for any real or imputed political opinion.
The Authority next considered the Applicant’s psychological health and a psychological assessment report dated 23 October 2017 provided by him. The Authority referred to country information regarding access to health services, and observed that the information does not indicate that Palestinians in Jordan are denied access to medical treatment for any reason or that Jordanian health services are ineffective or insufficient. Noting that the Applicant had not been hospitalised or placed on any pharmacological program, and noting the content of the assessment report, at [32] the Authority concluded it was satisfied that the Applicant does not face a real chance of harm because of his psychological health.
Further to the above, the Authority was satisfied that the Applicant does not face a real chance of harm for any reason if he was to be returned to Jordan. The Authority found that the Applicant did not meet the requirements for the definition of a refugee, or the complementary protection provision s.36(2)(aa) of the Act. The Authority affirmed the Delegate’s decision.
Grounds of application for extension of time
In his application filed 8 August 2018, the Applicant seeks an extension of time on the basis of 3 grounds as follows (without alteration):
1.I seek an extension of time to appeal the decision made by the second respondent on 14 March 2018 affirming the decision not to grant me a protection visa.
2.I am not aware of any known prejudice the delay in filing the appeal would cause the respondents.
3.I was not able to file the appeal in time because I was in prison and I did not have access to my documents and I was mentally not well. I did not know what to do next or who to ask for help. Now, after my release from custody and with assistance from Legal Aid, I have been able to submit this appeal.
The Proceeding before me
At the hearing before me, the Applicant appeared unrepresented. He had the assistance of an interpreter in Arabic and English.
The Applicant sought to read 4 affidavits. In the first affidavit affirmed 7 August 2018, the Applicant provided an explanation for his delay in filing the Application. I summarise that explanation below at [41].
In the second affidavit affirmed 10 October 2018, the Applicant repeated his explanation for the delay, provided an “additional submission” setting out a summary of some of his claims and journey to Australia, and reiterated his denials and explanations for the similarity of names in the Facebook account, the theft of his wallet, the thief using his information to make a fake driver’s licence. He said his telephone number was only 2 years old (from 2016).
Further to objection by Mr Kaplan, counsel for the Minister, I rejected some Facebook and MyServiceNSW printouts showing he did not have a driver’s licence in NSW as material post‑dating the Authority’s decision, and an extract from Google translate.
I rejected the Applicant’s third affidavit, affirmed 23 October 2018, which comprised articles obtained from the internet relating to Palestinian refugees from Syria, and a document headed “Palestinian Banana Boat” which appeared to be a telling of the Applicant’s life story.
I rejected parts of the fourth affidavit affirmed by the Applicant on 22 November 2018, and accepted the balance as submission, being extracts of case law and summaries. In the parts of the affidavit that I received into evidence, the Applicant stated he never had an Australian driver’s licence, drew attention to the driver’s licence having the same number as the Photo ID, said the cards relied on by the Authority and the Delegate were not real, and that he did not lie.
Extension of time – Legal Principles
Section 477(2) of the Act provides that the Court may, by order, extend the 35 day period in which an application for judicial review may be made to the Court as the Court considers appropriate, if:
(a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The principles governing the grant of an extension of time in this Court are well rehearsed: see e.g., the decision of Mortimer J in MZABP v Minister for Immigration & Ors [2015] FCA 1391; (2015) 242 FCR 585, at [58]-[62], approved by the Full Court of the Federal Court in MZABP v Minister for Immigration & Ors (No.2) [2016] FCAFC 138. MZABP and a number of other decisions were considered by Griffiths J in EXU17 v Minister for Immigration and Border Protection [2018] FCA 1675, see esp at [51]:
[51]… as Mortimer J explained in her subsequent observations in MZABP at [62]-[66]. In considering and determining an application for an extension of time, the Court is not required to conduct an exhaustive or detailed analysis of prospects. As the Minister acknowledged here, the task is carried out “at an impressionistic level” (see Mladenov v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 12 at [25]). As Wigney J stated in SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [82]-[85], a distinction can be drawn between an assessment that the prospects of grounds of review which are hopeless and destined to fail, as opposed to those which may be characterised as being weak. At [84], his Honour said that even where grounds are weak it will seldom be appropriate to refuse to extend time (to similar effect see Seiler at 98 per French J). An appeal from Wigney J’s decision was dismissed in SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158. If the Court assesses the prospects as being hopeless or very low, it is unlikely that this will be outweighed by other matters which are in favour of time being expended. But those other considerations may tilt the balance in favour of time being extended even in a case where the Court assesses the prospects as being no better than weak.
Extent and explanation for delay
The Minister submits that the extent of the delay, approximately 4 months, is not insubstantial.
I have been informed by the Minister’s counsel in his written submissions that on 5 July 2018, that the Applicant sought judicial review of the Authority’s decision by filing an application in the Federal Court of Australia, which proceeding was dismissed at the first case management hearing, as the Federal Court has no jurisdiction to review a decision of the Authority: s.476 of the Act. That application was out of time in any event.
The Applicant in ground 3 of his application for extension of time says that he was unable to lodge his application because he was imprisoned and did not have access to his documents, and was mentally unwell. He did not know what to do next, or who to ask for help. He states he received some assistance from Legal Aid after his release, and was then able to submit his application. This explanation is also set out at [5] of the Applicant’s first affidavit, affirmed 7 August 2018.
The Applicant expanded upon this ground at the hearing before me. He stated that every one or two weeks he would be transferred to another prison, so he was always on the move. He also had no access to a phone or internet. He attempted to communicate and get assistance with his application, but he was unable to get help. As his last resort, he waited until he was transferred back to the [immigration] detention centre. Once he was back at the detention centre, he was still unable to find help with his application (the assistance from Legal Aid was limited), and he decided to put the application in himself.
I find this is a reasonable explanation for the Applicant’s delay in filing the Application.
Prejudice suffered by the Minister
As the Applicant’s substantive matter was heard on the same day as the extension of time application, I consider the Minister would not likely suffer from any prejudice if the extension of time were granted.
Prospects of success of ground of review
Further to above, and having regard to the above referred to decisions, the principal consideration on the application for extension of time before me is whether, considering the substantive application on “an impressionistic basis”, the prospects of success are such that the application for extension of time should or should not be granted.
I am mindful of Mortimer J’s exhortation in MZABP not to travel beyond an examination of the substantive application at a “reasonably impressionistic” level, and of Wigney J’s observation in SZTES of the need to distinguish between grounds that are hopeless and destined to fail, and those which are properly described as weak, and in the latter case that it is seldom appropriate to refuse to extend time.
I turn to consider the Applicant’s prospects of success. For the reasons set out below in the course of my consideration of the ground of review set out in the substantive application, for the purposes of the application for an extension of time, considering the substantive application on an impressionistic basis, I am persuaded that the ground is not without reasonable prospects; at least, that it is not hopeless and bound to fail. The extension of time is allowed. I extend time to 8 August 2018.
Grounds of review in the substantive Application
In the Applicant’s substantive Application, the Applicant relies on one ground as set out below (without alteration):
1.The decision is legally unreasonable because the finding the Applicant does not have a well‑founded fear of persecution as he is a Palestinian usually resident in Jordan, and not a Syrian refugee, is not supported by the probative evidence.
In addition, before me is a non-disclosure certificate issued pursuant to s.473GB of the Act, relating to material not provided by the Delegate or the Authority to the Applicant. The certificate was contained in the Court Book in evidence before me, and the documents referred to in the certificate were included in an affidavit of the Minister’s solicitor, Ms Warner Knight, affirmed 12 November 2018, subject to limited redaction of the name of the officer who caused the documents to be printed. These documents comprise a series of reports published by the Australian Transaction Reports and Analysis Centre (AUSTRAC) relating to financial transactions principally occurring between Jordan and South Australia between 17 April 2014 and 29 December 2016. The Authority does not claim privilege over the documents referred to in the certificate. In the course of this proceeding the Applicant has (at least) been provided with some of the details contained in those documents. I apprehend he has now seen what is in evidence in this Court. I consider the AUSTRAC reports further below.
Legal unreasonableness
The Applicant’s ground of review is that the Authority’s finding he was usually resident in Jordan, and not a stateless Palestinian as he claims, was “not supported by probative evidence”. I consider that the Applicant is contending that the decision of the Authority was legally unreasonable, illogical or irrational.
In order to give rise to jurisdictional error on the basis of unreasonableness, illogicality or irrationality, the question before this Court is whether the decision to which the Authority came is one that no rational or logical decision‑maker could arrive on the same evidence: Minister for Immigration v SZMDS[2010] HCA 16; (2010) 240 CLR 611 at [130] per Crennan and Bell JJ.
For the Applicant to establish such a jurisdictional error, this Court would have to conclude that the Authority’s finding that the Applicant was a resident of Jordan, and that Jordan is the Applicant’s former habitual residence, and his receiving country, rather than finding that he was a stateless Palestinian from Syria, as he claimed, was one that was not open to the Authority on the evidence before it, or that there was no logical connection between the evidence and the inference or conclusions drawn.
As recently explained by Murphy J in BAO18 v Minister for Home Affairs [2019] FCA 965 at [16], the relevant principles relating to the review of credibility findings for jurisdictional error due to irrationality, illogicality or unreasonableness are summarised in DAO16 v Minister for Immigration and Border Protection (2018) 353 ALR 641; [2018] FCAFC 2 at [30] (Kenny, Kerr and Perry JJ) as follows:
(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 (ARG15 v 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:
56 An 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].
(Emphasis in original.)
As the authorities referred to above explain, if probative evidence can give rise to different processes of reasoning if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion: see SZMDS at [131], see also at [135].
Submissions and consideration
Mr Kaplin, counsel for the Minister, submitted that the Applicant was taking issue with the findings that the Applicant was not a stateless Palestinian residing in Syria but was, rather, habitually resident in Jordan. He said whether the Authority was correct as a matter of fact, is not a matter with which this Court can interfere.
Mr Kaplan submitted, by reference to Tahiri v Minister for Immigration and Citizenship [2012] HCA 61; (2012) 293 ALR 256, whether a person is “habitual[ly] residen[t]” or usually resident in a country is a question of fact. In Tahiri, French CJ, Bell and Gageler JJ, at [16], stated that the process of determining habitual residence in a country involves a “broad factual inquiry”, factors relevant to which include the strength of the ties to the particular country (or countries) in question, as well as the length of any stay in a state, the purpose of the stay, and the degree of assimilation into the state.
He submitted that the following factors were relevant. The only evidence before the Authority of the Applicant being a stateless Palestinian residing in Syria was the Applicant’s own testimony in his claims as to his former residence in Syria. This testimony was unsupported by documentary evidence. The Authority found the Applicant lacked credibility, due to his inconsistent answers regarding financial transactions made in his name to Jordan, and his dealings with men believed to be his sons on Facebook. The Delegate additionally found that the Applicant had a general lack of knowledge of Syria and Damascus.
Given these matters, the Minister submitted that in the present case, the broad factual inquiry required by Tahiri to be undertaken by the Authority, would likely point to the Applicant being a resident of Jordan, as found by the Authority.
It is apparent that the Authority’s conclusion as to the Applicant’s former habitual residence, and that Jordan was the receiving country, was reached upon a rejection of the Applicant’s claims. The Authority rejected the Applicant’s claims because the Authority found that the Applicant had not been a witness of truth: see at [22], set out above at [24].
As the Full Court summarised in DAO16 at [30(4)] (see above), findings or reasoning along the way to reaching a conclusion by the decision‑maker that are illogical or irrational may establish jurisdictional error, “… particularly … where the adverse credibility finding was critical to the [Authority’s] decision that it was not satisfied that the applicant met the criteria for the grant of a visa …”.
It is appropriate in this context to now turn to the AUSTRAC reports referred to by the Authority.
The material subject to the s.473GB certificate
On 1 March 2018, the Authority requested documentation relating to financial transactions referred to in the Delegate’s decision, which material had not been forwarded to the Authority. Included in the material then given to the Authority by the Secretary of the Department further to the request, were the AUSTRAC reports.
As I have noted above, these reports were the subject of a non‑disclosure certificate made pursuant to s.473GB(5) of the Act. The certificate asserted that the Applicant had been provided relevant particulars of the information, but not its source.
The AUSTRAC information included that photographic ID was shown in Australia when effecting the outgoing transaction. The AUSTRAC financial transaction records revealed that a preponderance of the transactions were recorded to have been made by a person with the same or substantially similar name and address as the Applicant had resided at in South Australia, as payer, transferring funds to one of several people in Jordan (although one payment was to a person in Egypt). Of the 9 or so named recipients, 3 were persons with a similar name to the Applicant, without the pre-fix “Al”. Of the approximately 50 transactions contained in the AUSTRAC records, about 5 related to money being sent from Jordan to Australia to a person having the same name and address as the Applicant.
Mr Kaplin submitted that s.57 of the Act imposed a duty on the Delegate to give particulars of information that comprises the reason or a part of the reason for refusing to grant a protection visa: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190; 235 ALR 609, where the High Court expanded on s.424A of the Act, stating that there was a duty to give particulars or information that goes towards rejecting, denying or undermining an applicant’s protection visa application.
Mr Kaplin further submitted that the Delegate was not required to give any particulars of the information in the AUSTRAC reports to the Applicant because that information did not go towards the Applicant’s claims to being a person to whom Australia owes protection obligations. He submitted that the information only went towards the Applicant’s claims to being a stateless Palestinian residing in Syria (and to my mind, the credibility of those assertions, which I consider were central to the Applicant’s claims not to be able to return to Syria). Mr Kaplin submitted it was only adverse information when compared with the other factual information provided by the Applicant.
Mr Kaplin relied on SZJBD v Minister for Immigration and Citizenship [2009] FCAFC 106; 179 FCR 109 (where the Full Federal Court stated that s.424A, relevant to the Tribunal’s obligations of disclosure of information, does not require disclosure of information that becomes adverse because it is adverse as a result of a comparison with another piece of information), and by analogy argued that there was no unreasonable failure to disclose information in the circumstances.
In BVD17 v Minister for Immigration and Border Protection & Anor [2019] HCA 34; (2019) 373 ALR 196, the High Court of Australia unanimously held, at [35], that the entirety of the content of the Authority’s obligation of procedural fairness in the context of notification under s.473GB(2)(a) is to be found in the outworking of the discretions conferred on the Authority by s.473GB(3) (citations omitted):
[34]The consequence of the codifying effect of s 473DA(1) was correctly stated by the Full Court of the Federal Court constituted by Robertson, Murphy and Kerr JJ in Minister for Immigration and Border Protection v CRY16 and in Minister for Immigration and Border Protection v DZU16. The consequence is that, except to the extent that procedural unfairness overlaps with legal unreasonableness, procedural fairness analysis is not the "lens" through which the content of the procedural obligations imposed on the Authority in the conduct of a review under Pt 7AA is to be determined. (emphasis added)
[35]Consistent with the earlier conclusion of the Full Court in BBS16, the entirety of the content of the Authority's obligation of procedural fairness in the context of a notification under s 473GB(2)(a) is to be found in the outworking of the discretions conferred on the Authority by s 473GB(3). Section 473DA(1) leaves no room for an additional obligation of disclosure to arise in the manner recognised in SZMTA.
[36]For completeness, the overlapping operation of s 473DA(2) in the circumstances giving rise to the present appeal is also to be noted. The prescription in s 473DA(2), it will be recalled, is to the effect that nothing in Pt 7AA requires the Authority to give to a referred applicant any material that was before the Minister when making the decision under s 65. There might be circumstances in which the prescription would not prevent the Authority being required to provide material that was before the Minister to a referred applicant as an incident of a legally reasonable exercise of the discretion conferred on it by s 473DC(3). Similarly, there might be circumstances in which the prescription would not prevent the Authority being required to provide such material to a referred applicant as a consequence of a legally reasonable exercise of the discretion conferred on it by s 473GB(3)(b). However, the prescription does operate to preclude an obligation on the part of the Authority to give such material to a referred applicant from otherwise arising as a matter of implication.
The Minister’s submissions do not squarely address the ground of legal unreasonableness. It is apparent from the Authority’s decision, and the Court Book, that the Authority did not disclose any information or matter contained in the AUSTRAC transaction records to the Applicant. There is nothing in the decision that suggests to me that the Authority gave any thought to whether or not the Authority should inform the Applicant of any information or any matter contained in the documents. Perhaps the Authority relied on the notification from the Secretary (see above), as it appears that the AUSTRAC transaction records were before the Delegate, and relied upon by the Delegate in reaching their decision.
In the present case the Delegate had put to the Applicant that he had sent money to several people in Jordan, and the person who sent the funds had used the Applicant’s South Australian “proof of identity document” to send money. The Delegate in their decision described the adverse information put to the Applicant thus:
Information relating to money sent to Jordan
At his PV interview, information was put to the applicant that he had sent funds to several people in Jordan. The applicant denied this. It was put to the applicant that the person who sent the funds had used the applicant’s South Australian proof of identity document to send the funds. The applicant claimed that someone must have used his identity to send money. It was put to the applicant that some of the recipients had the surname [redacted] which is close to if not broadly identical to the applicant’s claimed surname of Al [redacted]. The applicant again denied sending the money.
The Delegate’s decision, read with the s.473GB(5) non‑disclosure certificate to the Authority, suggests that the Applicant was not then provided with the numbers of the identity document referred to.
The Authority at [20] and [21] stated:
[20]The applicant has provided as a possible explanation for the unexplained financial transactions that his wallet was stolen about three years ago, which would be sometime in 2014. His wallet contained a Proof of Age identity card and after the theft, the applicant noticed some unusual activity in his bank account and closed that account down.
[21]I have considered the material provided by the Australian government agency and note that the transactions are dated between 2015 and late 2016, a substantial period of time after the applicant claims to have lost his wallet and shut his account down. I also note that the applicant was identified on each transaction via an Australian driver’s licence, not his Proof of Age document. When the delegate asked the applicant if he held a driver’s licence, he denied ever having had one. While it is at least plausible that someone may have possession of the applicant’s Proof of Age card, I consider that this alone would not be sufficient to enable a person to obtain a driver’s licence in his name. I do not accept that an unknown person has obtained or has been using a driver’s licence in the applicant’s name. I find that the applicant has been misleading in his evidence about holding a driver’s licence and the financial transactions. Having regard to all of these factors, I am satisfied that the financial transactions were carried out by the applicant and that he has not been a witness of truth in relation to them (emphasis added).
I consider that the Authority’s reference to an “Australian driver’s licence” in [21] is a reference to 2 transaction records (pages 17 and 37) out of 100 pages of AUSTRAC records where the ID type and number is stated to be: “Driver’s licence [redacted … xyz]” and the “ID Issuer” as “SOUTH AUSTRALIA”. The preponderance of “ID type and Number” stated in the AUSTRAC records, however are “Photo ID [redacted … xyz]” and the ID issuer as “SOUTH AUSTRALIA”. The alpha‑numerical identifiers of the 2 types of document were identical.
The Authority records in [21] that when asked by the Delegate, the Applicant denied having ever held a driver’s licence. In a post‑hearing submission by his agent dated 5 December 2017 to the Delegate, to which the Authority adverted at [20], the Applicant advised that “about 2.5 to 3 years ago, while he was living in Adelaide, he lost his wallet. He had to close his [redacted] Bank account and cancel his bank card because there was unusual activity and unusual transactions in his bank account. He also lost his Proof of Age identity card at this time as it was in his wallet, resulting in him having to obtain a new Proof of Age identity card.”
The Authority was factually incorrect at [21] to find that the Applicant “was identified on each transaction via an Australian driver’s licence, not his Proof of Age document”. This finding was not open on the evidence, indeed it was against the preponderance of the evidence. It was, however, a finding necessary for the Authority to enable it to distinguish between the 2 forms of identity.
I do not accept the Minister’s submission that the AUSTRAC records should be understood as referring to a driver’s licence whenever the transaction record describes the ID type as “Photo ID”. That is, to accept 2 entries in the face of over 40 entries to the contrary.
Given that the “driver’s licence” referred to on 2 of the outbound AUSTRAC records had the identical alpha-numerical identifier as the “Photo ID” referred to in all but 2 of the remaining outbound transaction records before the Authority, and was issued by the same authority – South Australia – it is very surprising that the Authority did not reason that they were the same identification document, and that the document was a Proof of Age identity card.
Whilst accepting that someone may have had the Applicant’s Proof of Age card, the Authority reasoned that the person with only such a card would not have been able to get a driver’s licence. The Authority thereafter concluded that the Applicant was “misleading in his evidence about holding a driver’s licence and the financial transactions”. That finding was central to its finding at [21] that “the financial transactions were carried out by the Applicant and that he has not been a witness of truth in relation to them.” These findings were then central to its rejection of the Applicant’s claims at [22], and to its subsequent findings at [23].
I find that a rational decision maker would not have reasoned, in the face of:
(a)an unequivocal denial that the Applicant had ever held a driver’s licence;
(b)a statement that the Applicant had lost his wallet and his Proof of Age identity card in about 2014 when living in Adelaide (see agent’s submission dated 5 December 2017); and
(c)where the AUSTRAC outbound transaction records recorded the identical alpha-numeric identifiers on each of the identification documents, in more than 40 occasions described as “Photo ID” issued in South Australia, and only 2 occasions as a “Driver’s licence” issued in South Australia (and where the 2 remaining outbound transaction records had neither of the above identifiers),
that the Applicant was therefore misleading about holding a driver’s licence, and the financial transactions. I conclude that the Authority’s reasoning and finding is illogical or irrational, without a probative basis. These findings were central to the Authority’s findings as to the Applicant’s credibility, to the Authority’s rejection of the Applicant’s claims, to the Authority’s finding as to the Applicant’s former habitual residence and receiving country, and to the consequences for the Applicant’s Visa application.
In these circumstances, the Authority’s finding about the purported driver’s licence was not open to it, acting reasonably, in the sense described by the High Court in SZMDS. On the evidence before the Authority that was, rather, a finding that no rational decision maker could arrive at on the evidence before it.
I conclude that the Authority fell into error, that the error was material to the outcome of the Authority’s review, it follows that I conclude that the Authority fell into jurisdictional error.
Conclusion
I allow the Application for an extension of time to 8 August 2018.
Ground 1 is made out. I allow the application for judicial review.
A writ of certiorari will issue and mandamus.
I will hear the parties’ on costs.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Baird
Associate:
Date: 10 December 2019
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