EPO20 v Minister for Immigration and Citizenship

[2025] FedCFamC2G 721

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EPO20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 721  

File number(s):

SYG 2459 of 2020

Judgment of:

JUDGE ZIPSER

Date of judgment:

23 May 2025

Catchwords:

 MIGRATION – judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa – Tribunal made adverse credibility finding against applicant based on inconsistencies, vagueness and hesitancy in giving evidence – application claimed post-traumatic stress disorder affected his memory – whether Tribunal erred in considering applicant’s explanation - application dismissed

Legislation:

Migration Act 1958 (Cth) ss 36(2), 65, 476

Cases cited:

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83

Minister for Immigration and Border Protection v Gill [2019] FCAFC 9; 268 FCR 575

Division:

Division 2 General Federal Law

Number of paragraphs:

42

Dates of hearing:

13 March 2025, 9 May 2025

Place:

Parramatta

Applicant:

Appeared in person

Solicitor for the Respondents:

Mr Wang of Clayton Utz

ORDERS

SYG 2459 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EPO20

Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE ZIPSER
DATE OF ORDER:	23 MAY 2025

THE COURT ORDERS THAT:

1.The name of the first respondent is amended to “Minister for Immigration and Citizenship”.

2.The name of the second respondent is amended to “Administrative Review Tribunal”.

3.The application is dismissed.

4.The applicant pay the first respondent’s costs in the sum 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 ZIPSER

INTRODUCTION

1. On 2 November 2020, the applicant filed an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 28 September 2020. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicant a protection (subclass 866) visa under s 65 of the Act.

2. For the reasons that follow, the application is dismissed.

   FACTUAL BACKGROUND

3. On 16 July 2009, the applicant, a citizen of Nigeria, arrived in Australia as the holder of a student visa.

4. On 4 April 2016, the applicant lodged an application for a protection visa. The applicant claimed to fear harm from the radical Islamic movement Boko Haram if returned to Nigeria because he is a Christian who participated in missionary activities.

5. On 2 May 2017, a delegate of the first respondent made a decision refusing to grant the applicant a protection visa.

6. On 23 May 2017, the applicant applied to the Tribunal for review of the delegate’s decision.

7. On 21 August 2020, the Tribunal invited the applicant to appear at a hearing before the Tribunal on 10 September 2020.

8. On 10 September 2020, the applicant, assisted by a migration agent, appeared at a hearing before the Tribunal.

9. On 28 September 2020, the Tribunal made a decision affirming the delegate’s decision not to grant the applicant a protection visa.

   TRIBUNAL’S DECISION

10. The Tribunal at [17] set out the applicant’s claims. The applicant claimed to fear harm from the radical Islamic movement Boko Haram if returned to Nigeria because he is a Christian who participated in missionary activities. The applicant claimed that in 2009 he received threats from Boko Haram and, to avoid harm, he came to Australia on a student visa. The applicant added that, after he left Nigeria, Boko Haram searched for the applicant and burned his house and business.

11. The Tribunal at [21] set out country information about Boko Haram.

12. The Tribunal at [22]-[64] considered whether the applicant was a credible witness. The Tribunal at [25] stated that it “has numerous concerns, including a number of significant credibility concerns, with the applicant’s claims”. The Tribunal at [28]-[63] explained five concerns. The Tribunal at [64] stated that, “considered cumulatively … the five credibility concerns are seriously damaging to the applicant’s core claims for protection” and the Tribunal was “not satisfied that the applicant has been credible or truthful in relation to key aspects of his claims”.

13. The Tribunal at [65]-[66] accepted that the applicant was a Christian, but was not satisfied the applicant was a church leader, that the applicant was targeted by Boko Haram, or that Boko Haram had any adverse intention towards the applicant.

14. The Tribunal at [74] found that, because the applicant had some involvement in Christian activities in Nigeria, he faced a real chance of serious harm if he returned to his family home in Borno State. However, the Tribunal at [75]-[77] considered whether the applicant would be safe in Lagos and found at [77] that it was “not satisfied that the applicant would face a real chance of serious or significant harm in Lagos as a result of being a Christian and undertaking normal Christian activities”. The Tribunal at [79] also found it reasonable for the applicant to relocate to Lagos.

15. For the above reasons, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2) of the Act.

    PROCEEDINGS IN THIS COURT

    Application and steps up to hearing on 13 March 2025

16. On 2 November 2020, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

17. On 16 April 2021, the applicant filed an amended application which contained three grounds (as written) (Amended Application):

    1.The Tribunal in making its decision took irrelevant consideration into account in the exercise of a power. It is not uncommon for witnesses to events to forget details of an event particularly events that took place 11 years ago and more so, events of traumatic nature, in this case, that caused the Applicant to suffer post traumatic depression. Contrary to the Tribunal 's conclusion, it is hardly the case that most individuals will be able to recount every detail of an event they witnessed over 11 years ago. In my view, if the Applicant had been able to do so, he must have been reading from his notes or diary or that he has constructed the story.

    Particulars:

    (a) Paragraph 28:

    "Firstly, the applicant has not been consistent in his claims as to how many of his church members were killed by Boko Haram. Further, the applicant did not recount details of attacks and threats by Boko Haram that gave the Tribunal the impression that he was recounting events which actually happened."

    2.The Tribunal in making its decision failed to take a relevant consideration into account in the exercise of a power. The Applicant adduced evidence that he has post-traumatic stress disorder including suffering from anxiety and significant stress which impacts on his ability to recount his experiences in a detailed way.

    Particulars:

    (a) Paragraph 31

    " ... the Applicant referred to having memory difficulties. Later in the hearing the applicant, in response to all of the inconsistencies and credibility concerns put to him in the hearing, indicated that he was suffering significant stress and post-traumatic stress disorder which affected his memory and ability to give correct evidence. "

    (b) Paragraph 32

    "This was not indicated at the beginning of the hearing when the Tribunal asked the applicant if there was any impediment to him giving evidence. The applicant made no mention of any mental health issues affecting his ability in this respect. As a doctor, the applicant would likely have the acuity to know about and articulate such concerns. Further, the applicant has not provided any medical evidence as to suffering from mental health conditions or memory loss."

    (c) Paragraph 33

    "As put to the applicant in the hearing, the Tribunal struggles to accept that the applicant would be confused as to whether one or two, or ten of his fellow church colleagues had been killed by Boko Haram. Such events and the number of people killed would be very impactful. The Tribunal is not satisfied given his failure to articulate mental health issues at the beginning of the hearing, and the lack of medical evidence that this inconsistency is a product of memory loss due to a medical condition."

    3.[deleted]

    4.The Tribunal erred at law by presuming that because the Applicant has answered that he had no impediment talking about his claim at the commencement of the hearing that this is inconsistent with the fact that the Applicant has post-traumatic stress disorder including suffering from anxiety and significant stress.

    Particulars:

    (a) Paragraph 26

    "The Tribunal notes that at the commencement of the hearing the applicant was asked whether there was any impediment to him talking about his claims before the Tribunal and answering its questions. The applicant indicated that there was no impediment."

    (b) Paragraph 31

    "The Tribunal noted that this was inconsistent with the applicant 's claims in the application form for the protection visa that 10 of his church members were killed. In response, the applicant referred to having memory difficulties. Later in the hearing, the applicant, in response to all of the inconsistencies and credibility concerns put to him in the hearing, indicated that he was suffering significant stress and post-traumatic stress disorder which affected his memory and ability to give correct evidence."

    (c) Paragraph 32

    "This was not indicated at the beginning of the hearing when the Tribunal asked the applicant if there was any impediment to him giving evidence. The applicant made no mention of any mental health issues affecting his ability in this respect. As a doctor, the applicant would likely have the acuity to know about and articulate such concerns. Further, the applicant has not provided any medical evidence as to suffering from mental health conditions or memory loss."

    5.[deleted]

18. On 16 April 2021, a solicitor on behalf of the applicant lodged a notice of address for service and stated he had been appointed as the applicant’s lawyer (Applicant’s Lawyer).

19. On 1 June 2021, the first respondent filed a written submission.

20. Following a period of inactivity, on 21 January 2025 the registry of the Court notified the parties’ lawyers that the matter was listed for hearing on 13 March 2025.

21. On 10 March 2025, the applicant emailed chambers stating he had just become aware that the Applicant’s Lawyer had passed away. He requested an adjournment to allow time to appoint a new lawyer.

    Hearing on 13 March 2025

22. At the hearing in this Court on 13 March 2025, the applicant appeared in person. Mr Vethecan of Clayton Utz appeared on behalf of the first respondent.

23. The applicant pressed his request for an adjournment to allow time to appoint a new lawyer. The applicant gave sworn evidence in support of the adjournment application. His evidence, which I accepted, was that he had only recently become aware that the Applicant’s Lawyer had died, and he required time to appoint a new lawyer.

24. I granted the adjournment, listed the matter for hearing on 9 May 2025, and made orders for the filing and service of materials leading up to the hearing, including that the applicant file and serve any amended application, any further evidence and a written submission by 18 April 2025.

    Period between 14 March and 8 May 2025

25. On 17 April 2025, the applicant served and emailed to chambers a written submission.

    Resumed hearing on 9 May 2025

26. At the resumed hearing in this Court on 9 May 2025, the applicant appeared in person. Mr Wang of Clayton Utz appeared on behalf of the first respondent.

27. The applicant did not bring to court a copy of the Court Book, or Supplementary Court Book (which replaced the Court Book), filed and served by the first respondent’s solicitor in March 2021, which contained the Tribunal’s decision and documents before the Tribunal. At the commencement of the hearing, I caused to be given to the applicant a copy of the Tribunal’s decision dated 28 September 2020. I explained that, for the applicant to win the Court proceeding, he must persuade the Court there is a jurisdictional error, which I described as a significant error or mistake, in the Tribunal’s decision. With reference to the Tribunal’s written reasons for decision, I explained the main categories of jurisdictional error.

28. I offered the applicant a 10-minute break to consider oral submissions he wanted to make to the Court. The applicant took up this opportunity.

29. Following the break, Mr Wang tendered the Supplementary Court Book (SCB). There was discussion about whether the applicant could tender a news article about an event in Nigeria in April 2025. I stated that country information concerning an event in Nigeria in April 2025 did not appear to be relevant to establishing error in the Tribunal’s decision. The applicant did not contend that the news article was relevant to establishing a jurisdictional error in the Tribunal’s decision.

30. The applicant then made oral submissions. The applicant stated that he felt the Tribunal could have been clearer with him when it asked him the question, referred to by the Tribunal at [26], “whether there was any impediment to him talking about his claims before the Tribunal and answering its questions”. The applicant explained to the Court the reasons for his delay in applying for a protection visa between the time he arrived in Australia in 2009 and the date he lodged the protection visa application in 2016. He stated that he was focused on getting medical registration in Australia. Curiously, this explanation was different to the explanation he gave the Tribunal: see Tribunal’s decision at [61] where the applicant “indicated that the delay was because it was a long time before he came to learn of the option of a protection visa”.

31. Mr Wang, in his oral submissions, principally relied on the first respondent’s written submission.

    CONSIDERATION

    Ground 1

32. The Tribunal stated in an upfront finding at [28]:

    Firstly, the applicant has not been consistent in his claims as to how many of his church members were killed by Boko Haram. Further, the applicant did not recount details of attacks and threats by Boko Haram that gave the Tribunal the impression that he was recounting events which actually happened.

33. The Tribunal at [29]-[34] provided reasons in support of the finding at [28]. A summary of the Tribunal’s reasons is as follows:

    (a)The Tribunal at [29] expressed concern that “in the hearing, when the Tribunal explored with the applicant instances where he, together with other church members, had adverse physical encounters with members from Boko Haram, the applicant gave his evidence with a hesitancy, vagueness and lack of clarity that caused the Tribunal to question the truth of what the applicant was recounting”.

    (b)The Tribunal at [30]-[31] explained an inconsistency in the applicant’s evidence concerning how many fellow church members were physically harmed by Boko Haram. The applicant stated in his protection visa application that 10 church members were killed, but told the Tribunal at the hearing on 10 September 2020 that one or two individuals were killed.

    (c)The Tribunal at [31]-[32] considered an explanation the applicant gave for his inconsistent evidence, being that “he was suffering significant stress and post-traumatic stress disorder which affected his memory and ability to give correct evidence”. The Tribunal at [32] dismissed this explanation in the following terms:

    [32] This was not indicated at the beginning of the hearing when the Tribunal asked the applicant if there was any impediment to him giving evidence. The applicant made no mention of any mental health issues affecting his ability in this respect. As a doctor, the applicant would likely have the acuity to know about and articulate such concerns. Further, the applicant has not provided any medical evidence as to suffering from mental health conditions or memory loss.

    [33] … The Tribunal is not satisfied given his failure to articulate mental health issues at the beginning of the hearing, and the lack of medical evidence that this inconsistency is a product of memory loss due to a medical condition.

    (d)The Tribunal at [33] explained why it considered the applicant’s inconsistent evidence concerning the number of fellow church members killed was significant to an assessment of the applicant’s credibility. The Tribunal stated:

    As put to the applicant in the hearing, the Tribunal struggles to accept that the applicant would be confused as to whether one or two, or ten of his fellow church colleagues had been killed by Boko Haram. Such events and the number of people killed would be very impactful…

    (e)The Tribunal at [34] added:

    The Tribunal notes additionally that the Tribunal had to coax from the applicant details of physical encounters between him and his church colleagues with Boko Haram. The lack of certainty, clarity and detail that was evident in the way that the applicant gave this evidence, did not persuade the Tribunal that the applicant was recounting events that actually happened.

34. In ground 1, the applicant complains about the Tribunal’s findings at [28]. The applicant contends that “it is not uncommon for witnesses to forget details of an event particularly events that took place 11 years ago” and “it is hardly the case that most individuals will be able to recount every detail of an event they witnessed over 11 years ago”. If the Tribunal made an adverse credibility finding concerning the applicant in respect of an event which occurred 10 years earlier, based on a minor inconsistency or hesitancy by the applicant in recounting the event, this might offend the principle explained in cases such as AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 at [21]-[28]. But, as the Tribunal’s reasons at [29]-[34] indicate:

    (a)the inconsistency in the applicant’s evidence explained by the Tribunal was, and was considered by the Tribunal to be, significant; and

    (b)based on the Tribunal’s description of the manner in which the applicant gave evidence, which description the applicant does not challenge in this Court proceeding, the applicant’s hesitancy and vagueness was significant.

35. I consider that the Tribunal’s reasons at [29]-[34] “disclose a logical and intelligible basis” (Minister for Immigration and Border Protection v Gill [2019] FCAFC 9; 268 FCR 575 at [54]) for the upfront finding at [28].

36. Ground 1 does not identify a jurisdictional error in the Tribunal’s decision.

    Ground 2

37. In ground 2, the applicant appears to contend that the Tribunal “failed to take … into account” “evidence” adduced by the applicant “that he has post-traumatic stress disorder including suffering from anxiety and significant stress which impacts on his ability to recount his experiences in a detailed way”. However, first, as stated by the Tribunal at [32], the applicant did “not provide any medical evidence as to suffering from mental health conditions or memory loss”. The Tribunal cannot be criticised for not taking into account evidence not provided to it by the applicant or otherwise before it. Second, in relation to the applicant’s assertion to the Tribunal that he had a mental health condition which affected his memory and ability to give correct evidence, the Tribunal at [31]-[33] considered and rejected this assertion. The Tribunal thus took into account, but did not accept, the assertion.

1. Ground 2 does not identify a jurisdictional error in the Tribunal’s decision.

   Ground 4

2. It is stated in ground 4 that the Tribunal erred “by presuming that because the applicant answered that he had no impediment talking about his claim at the commencement of the hearing that this is inconsistent with the fact that the applicant has post-traumatic stress disorder”. However, first, the Tribunal did not make this presumption or reason in this way. Second, this ground ignores the fact that, as stated by the Tribunal at [32] (and repeated at [33]), “the applicant has not provided any medical evidence as to suffering from mental health conditions or memory loss”. One reason on which the Tribunal relied at [33] in not accepting the applicant’s claim that the inconsistencies in his evidence were “a product of memory loss due to a medical condition” was “the lack of medical evidence” concerning the medical condition.

3. Ground 4 does not identify a jurisdictional error in the Tribunal’s decision.

   COSTS

4. At the end of the hearing, the parties made submissions on costs. Mr Wang sought costs in the scale amount of $8,371.30 which was not more than the first respondent’s solicitor/client costs. The first respondent’s costs included costs involved in preparing for and attending the hearing on 13 March 2025. The applicant stated that he was not responsible for the adjournment of the hearing on 13 March 2025, and so he should not have to pay the first respondent’s costs incurred in attending the hearing that day. Mr Wang replied that:

   (a)The Applicant’s Lawyer passed away in 2024, but the applicant did not make an adjournment application until 13 March 2025. The applicant is at fault for not taking steps to discover, until very shortly before the hearing on 13 March 2025, that his lawyer had passed away. If the applicant had discovered and communicated to the first respondent at an earlier time that his lawyer had passed away, the first respondent may have avoided the work undertaken on 13 March 2025.

   (b)The adjournment application was made by the applicant. It was the applicant’s adjournment application which caused the first respondent to incur additional costs.

   (c)The Minister’s costs in preparing for and attending the hearing on 13 March 2025 were reasonably incurred.

5. I prefer the first respondent’s position on this issue. I consider that, in determining the first respondent’s party/party costs, the costs incurred by the first respondent in preparing for and attending the hearing on 13 March 2025 should be recoverable from the applicant. I will make an order in the scale amount of $8,371.30.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.

Associate:

Dated:       23 May 2025