FAU20 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 6
•9 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FAU20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 6
File number(s): SYG 2754 of 2020 Judgment of: JUDGE KAUR-BAINS Date of judgment: 9 January 2025 Catchwords: MIGRATION – judicial review – Protection (Class XA) (subclass 866) visa – refusal decision – whether the Tribunal’s decision was affected by jurisdictional error on the ground of legal unreasonableness in relation to findings as to the credibility of the applicant – whether the Tribunal made an unwarranted assumption – no jurisdictional error disclosed – application dismissed Legislation: Migration Act 1958 (Cth) ss 36, 476 Cases cited: BZD17 v Minister for Immigration & Border Protection (2018) 263 FCR 292
EVI19 v Minister for Immigration [2022] FCA 518
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Border Protection v SZUXN [2016] FCA 516
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Division: Division 2 General Federal Law Number of paragraphs: 52 Date of hearing: 27 November 2024 Place: Sydney Counsel for the Applicant: Mr O Jones Solicitor for the Applicant: VSTAR Lawyers and Consultants Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Sparke Helmore Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 2754 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAU20
Applicant
AND: MINSITER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
9 JANUARY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to Minister for Immigration and Multicultural Affairs.
2.The application is dismissed.
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 Kaur-Bains
The applicant seeks judicial review of the Tribunal’s decision dated 5 November 2020. The Tribunal affirmed the decision of the delegate not to grant the applicant a Protection (Class XA) (subclass 866) visa (visa). This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act).
The applicant alleges jurisdictional error by the Tribunal in its findings as to the credibility of the applicant and contends that certain findings were infected by legal unreasonableness. For the reasons set out below I find the applicant has not demonstrated jurisdictional error.
BACKGROUND
The applicant is a citizen of China who arrived in Australia on 31 October 2015 as the holder of a Visitor visa (subclass 600) (Court Book (CB) 69). On 29 January 2016, the applicant applied for the Protection visa claiming that he feared being detained by local police and government officials over a dispute regarding his family’s land (CB 40 to 41).
On 15 November 2016, the applicant was invited to attend, and did attend, an interview with a delegate for the Minister (CB 56). On 2 December 2016, the delegate refused to grant the applicant the visa because it found the applicant’s claims as to the reason he had a genuine fear of harm upon return to China were not credible (CB 69 to CB 75).
TRIBUNAL’S DECISION
On 14 October 2020, the applicant appeared before the Tribunal by telephone assisted by a mandarin interpreter.
In its reasons for decision, the Tribunal first summarised the background of the application ([1] to [5] of the reasons). The Tribunal set out the criteria for a protection visa under s 36 of the Act and Schedule 2 of the Migration Regulations 1994 (Cth), including the mandatory considerations in accordance with Ministerial Direction No. 84 ([6] to [11] of the reasons).
At [12] of the reasons, the Tribunal summarised the applicant’s claims in his application for the protection visa, as follows:
(a)The Government had attempted to buy his family’s land and the village secretary had brought people to the applicant’s family home to threaten them.
(b)The police detained, interrogated and assaulted the applicant’s father.
(c)The applicant’s father fled to the USA on 5 February 2014, applied for asylum and was granted permanent residence.
(d)On 8 March 2014, the applicant and his mother were forced off their land. The applicant was then taken by police, tortured and denied compensation for his family’s land.
(e)In June 2014, the applicant wrote a letter about the situation which was intercepted by the town secretary, who then went to the applicant’s home, beat him and threatened his life if he sent another letter.
(f)The applicant then sent another letter just before he left for Australia on 4 November 2015. Following this event the town secretary went to the applicant’s mother’s house and threatened her. His mother then fled China.
The Tribunal set out at [27] to [30] of the reasons, what it described at [17] of the reasons, as a “new set of claims” made by the applicant at the Tribunal hearing, being that:
(a)When the applicant was 18 years old, he slept with the girlfriend of the leader of a gang.
(b)The leader of the gang told the applicant, during their only contact with each other in 2003, that he was going to kill the applicant.
(c)The gang hunted the applicant for 2 years and he feared they would harm him if he were to return to China.
At [20] of the reasons, the Tribunal found that the applicant was not a credible or reliable witness for the 4 reasons outlined at [21] to [35] of its reasons.
The Tribunal then made the following findings at [37] to [42] of the reasons:
37.Having considered all of the applicant's claims and all the evidence, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that he has fabricated his material claims for the purpose of obtaining a Protection visa.
38.The Tribunal accepts that the applicant was born on 10 March 1988 at Chengdu in Sichuan Province in China. The Tribunal accepts that he is an only child and that his parents live in Chengdu city in Sichuan Province in China.
39.The Tribunal does not accept that the applicant's family leased land in 2012 to build a family inn, he was informed in December 2013 that the government was going to give their family inn and the land to the school next door as they needed to expand and they were offered compensation of 800,000 yuan which they did not accept. It follows that the Tribunal does not accept any of his claims that flow from this.
40.Alternatively, the Tribunal does not accept that, when the applicant was 18 years old, he had sex with a woman who was the girlfriend of the leader of a gang. It follows that the Tribunal does not accept any of his claims that flow from this.
41.The Tribunal does not accept that the applicant is of adverse interest to the Chinese authorities or any gang or leader of a gang.
42.The Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm for any of the reasons claimed if he returns to China now or in the reasonably foreseeable future.
After considering whether Australia had protection obligations to the applicant under the refugee criterion or the complementary protection criterion, 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. The Tribunal affirmed the decision not to grant the applicant the protection visa ([43] to [49] of the reasons).
GROUND IN THE APPLICATION
In his amended application dated 12 November 2024, the applicant relied on the following ground (as written):
1. The Second Respondent (Tribunal) made a jurisdictional error in relation to the credibility of the Applicant.
a. The findings of the Tribunal as to credibility may be challenged on the ground of legal unreasonableness: see eg DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 at [30];
b. An error made in the course of a finding as to credibility is, due to the non-linear nature of such findings, likely to be material to the decision of the Tribunal as a whole: see eg Bains v Minister for Immigration [2012] FCA 649; 205 FCR 217 at [38];
c. The Tribunal was required to give proper, genuine and realistic consideration to the Applicant’s case: Ngatoko v Minister for Immigration [2023] FCA 1165 at [53], [60]. The Applicant’s case for this purpose extends to matters arising from the Tribunal’s own findings of fact: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 at [26];
d. The Tribunal from paragraph 20 of its decision identified four reasons why it had found against the credibility of the Applicant.
e. The first reason of the Tribunal entailed a failure by the Tribunal to grapple with when the Applicant became aware of the inaccurate contents of his application for a visa;
f. The second reason of the Tribunal did not properly identify inconsistency in the Applicant’s evidence or engage with earlier compatible evidence by the Applicant before the Department;
g. The third reason of the Tribunal made an unwarranted assumption or imposed an expectation or standard comprising a need for the Applicant to seek protection without delay upon a lawful arrival in Australia;
h. The fourth reason of the Tribunal saw inconsistency in the Applicant’s evidence where none was in truth present or unreasonably required the Applicant to be devoid of reasons for coming to Australia apart form fear of harm.
CONSIDERATION
At the hearing before me, the applicant’s counsel submitted that each of the 4 reasons given by the Tribunal in its reasons at [21] to [35], in finding the applicant was not a credible or reliable witness, were infected by legal unreasonableness. Before dealing with each of the 4 reasons given by the Tribunal, to consider whether the reasons were infected by legal unreasonableness, I will first identify the relevant legal principles.
Legal unreasonableness
The Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (Allsop CJ, Robertson, Mortimer JJ (as her Honour then was)), in considering legal unreasonableness, referred to the High Court decisions in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [44] and noted that legal unreasonableness may arise in two different contexts as follows:
(a)The first, is the identification of an underlying jurisdictional error in the decision-making process.
(b)The second is that the outcome (ultimate conclusion) of the exercise of power was arbitrary, capricious or outside the range of possible, acceptable outcomes which are defensible in respect of the facts and law.
Jurisdictional error in decision-making process
In this case, in Ground 1, the applicant contended that the Tribunal in the decision making process, made credibility findings which were legally unreasonable because they were based on irrational or illogical reasoning.
In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [49], Wigney J elaborated on the first context in which legal unreasonableness may arise, being where “a tribunal that employs irrational or illogical reasoning, or makes irrational findings of fact not based on probative material, is likely to be in breach of the implied requirement that it act reasonably in exercising its statutory review powers and jurisdiction .”
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Crennan and Bell JJ stated the following as to the correct approach when analysing the reasons subject to judicial review:
132. … It is clear, from the extracts from the Federal Court decision set out above, that the Federal Court emphatically disagreed with the Tribunal's finding that the first respondent's return to Pakistan and failure to seek asylum in the United Kingdom was conduct which was inconsistent with the claimed fear of persecution arising as a result of homosexuality. It also seems clear that the Federal Court, acting on the same material or evidence on which the decision was based, would have been satisfied that the first respondent feared persecution as alleged.
133.However, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it…
…
135.On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. 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…
Further, if an error is identified in the decision-making process (that is on the way to the ultimate conclusion), then as Wigney J said in SZUXN, at [55]:
… the overarching question is whether the Tribunal’s decision was affected by jurisdictional error: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out.
Credibility findings
In EVI19 v Minister for Immigration [2022] FCA 518, Stewart J stated at [36]:
It is well-established that credibility findings are not immune from judicial review: CGQ15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [37] - [38] per McKerracher, Griffiths and Rangiah JJ. Credibility findings, like all findings, must be rationally made and based upon facts having logical and probative weight, and be articulated properly; minor inconsistencies and trivial errors do not constitute a valid ground upon which an adverse credibility finding may be made: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] per Flick J; SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 at [25] per Gordon J. See also DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 at [30] per Kenny, Kerr and Perry JJ and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [11] per Allsop CJ.
First Reason
Relevant parts of the Tribunal’s reasons
At [21] of the reasons, the Tribunal referred to the applicant’s evidence that he gave instructions to his migration agent to prepare his application for the visa and his instructions were “true and correct”. However, the applicant said to the Tribunal that “most” of his application was “inaccurate” and he had been deceived by the migration agent who was “unlawful” or “fake” and could not now be located.
At [22] of the reasons, the Tribunal described the effect of the applicant’s case, as “he provided accurate information to his migration agent, his migration agent prepared his visa application with inaccurate information (including false claims) and he was deceived”. At [22] of the reasons, the Tribunal said that, if this were true, then the Tribunal “would expect” that the applicant’s oral evidence in the interview with the Department “would have been very different” from the claims in the application for the visa.
However, the Tribunal observed at [22] of the reasons, this was “not the case”. The Tribunal proceeded to describe how, in at least one respect, the applicant’s oral evidence in the interview with the Department resembled the claims in the application for the visa. The applicant had described departure by his father from China at one point in time in the application and the departure by his father and mother from China at other points in time in the interview. The Tribunal indicated that this “tends to indicate that he was aware of the claims made in his visa application and he was relying on those claims during his interview with the delegate” ([23] of the reasons).
The Tribunal reasoned as follows at ([25]):
The Tribunal is of the view that, during the hearing, the applicant forgot what he had claimed before the Department in relation to his father and mother. The Tribunal does not accept that he was unaware and did not consent to false claims being made in his visa application by his migration agent. This raises concerns in relation to his credibility and the veracity of his claims.
Applicant’s contentions
The contention of the applicant in relation to the first reason given by the Tribunal was, in essence, that it was illogical for the Tribunal to expect that the applicant’s oral evidence at his interview with the delegate would be substantially different from the information and claims contained in the visa application.
The applicant’s counsel submitted at the hearing before me, that an explanation as to why the applicant’s oral evidence at the interview with the delegate had substantial overlap with the false information contained in the visa application, was that “he could well have been so aware by the time of the Departmental interview and made claims drawing upon his recollection of the contents of the application in order to be consistent” ([25] of the applicant’s written submissions). The applicant submitted that it was this failure to grapple with the timeline of when the applicant became aware of the inaccurate contents of the visa application that led the Tribunal to allegedly fall into jurisdictional error in relation to the credibility of the applicant.
Minister’s contentions
The Minister submitted that there was no evidence before the Tribunal that the applicant had become aware of the information in the visa application at some point between the application being lodged and the interview with the delegate. Nor was there any evidence before the Tribunal that the applicant had decided to rely on that incorrect information at the interview with the delegate in order to remain consistent with the false claims in the visa application. The Minister submitted at [15] of his written submissions that “this does not go above speculating an objectively unlikely explanation for why the applicant gave evidence consistent with his original visa application to the delegate”.
The Minister also submitted at the hearing that there was an implicit assumption in the Tribunal’s reasoning, which was not irrational, that without any evidence to the contrary, the applicant was telling the truth to the delegate. For this reason, there would be an expectation that the applicant would have informed the delegate about the false claims put into his visa application unbeknownst to him, rather than repeating those false claims to the delegate.
The Minister submitted that the question of whether the Tribunal’s decision was legally unreasonable must be judged based on the material before the Tribunal. Based on the evidence before the Tribunal, the Minister submitted that the conclusions reached were at least open to it and that if reasonable minds could differ concerning those conclusions then the decision making process was not legally unreasonable.
Consideration
In my view, on a fair reading of the Tribunal’s reasons from [21] to [25], the Tribunal’s credibility finding was based on the following reasoning process adopted by the Tribunal:
(a)The applicant claimed before the Tribunal that even though he gave true and correct information to his migration agent in the preparation of his visa application, most of the information in the visa application that was lodged was inaccurate, because he was deceived by his agent and was unaware of the false claims when the application for the protection visa was lodged.
(b)The Tribunal noted that the applicant’s oral evidence in his interview with the delegate, however, was substantially similar to the claims made in the visa application.
(c)The Tribunal expected that if the applicant’s claims, about being unaware of the contents of the visa application were true, then his oral evidence at the interview with the delegate would have been very different to the claims made in the visa application.
(d)The Tribunal reasoned that the fact that the applicant simply repeated claims at the interview with the delegate that were substantially similar to those in the visa application, led the Tribunal to conclude that the applicant was aware of and did consent to the inclusion of the information contained in the visa application. Thus, raising concerns in relation to the applicant’s credibility and the veracity of his claims.
Whilst the counsel for the applicant raised the possibility before me that the applicant learned about the false claims made in the application at some point between it being lodged and the interview with the delegate and decided to lie to the delegate in repeating those false claims, no such evidence was put before the Tribunal. It is mere speculation on the part of the applicant’s counsel, which obviously has no basis for finding the Tribunal’s reasons at [21] to [25] were legally unreasonable. I also note that the Tribunal raised as an issue with the applicant the inconsistencies between the information given at the hearing with the information given in the visa application and at the interview with the delegate, the applicant responded that he did not have anything to say (at [24] of the reasons). Therefore, the Tribunal did not have evidence before it as to any other reason that the applicant’s oral evidence before the delegate was substantially similar to the claims in the visa application. In light of these matters, I find that the Tribunal’s reasoning process identified in paragraph 29 of this judgment was open to it based on its assessment of the evidence before it and was rational.
Therefore, I do not accept that the Tribunal’s reasoning process in relation to the first reason was legally unreasonable based on the evidence before it, as there was an intelligible justification for the conclusion reached.
Second Reason
Applicant’s contention
Counsel for the applicant contended that the second reason given by the Tribunal was legally unreasonable because it identified a supposed inconsistency in the applicant’s evidence which did not exist. At [29] of the reasons the Tribunal recorded that, with regards to claims that he feared harm by a gang leader who had a strong influence in the local area, it put to the applicant that he did not have to live in that local area. The applicant responded by saying that “he was in hiding all over China”. The Tribunal found this to be inconsistent with his previous evidence that he “always lived in Chengdu City”.
Counsel for the applicant contended, that when understood in the context of the question that was put to the applicant, it was not reasonably open to the Tribunal to construe his answer that “he was in hiding all over China”, as being a reference to previously living somewhere in China other than Chengdu City. A fair interpretation of the applicant’s response, it was contended, was that he was saying that in the event he were to return to China in the future, there was no where he would be safe. In essence, it was contended that it was illogical for the Tribunal to construe the applicant’s answer as being in reference to the past, when the question that elicited that response was directed towards the future.
Minister’s submissions
The Minister submitted that the applicant’s two statements “he was in hiding all over China” and he had “always lived in Chengdu City” were inconsistent. The Minister submitted that, similar to the first reason, the applicant’s Counsel’s submissions speculated as to what the applicant might have meant without any evidence for that interpretation having been put to the Tribunal.
Consideration
In my view, on a fair reading of the reasons from [26] to [31], the Tribunal’s credibility finding was based on an identification that the applicant’s claim, that he “was in hiding all over China”, was inconsistent with his previous evidence that he “always lived in Chengdu City”. When the Tribunal pointed out the inconsistencies in the applicant’s evidence, he replied “no problem” ([30] of the reasons). Thus, supporting the Tribunal’s interpretation of the applicant’s statement that he “was in hiding all over China”, as meaning the applicant was saying he had lived in other parts of China, other than Chengdu City.
Even if the interpretation of the exchange at [29] of the reasons put forward by the applicant’s Counsel may be plausible, it does not follow that the Tribunal’s interpretation of the statement was illogical or that the inconsistency it identified was not reasonably open to it given what the applicant said at the hearing and that when he was asked about the inconsistency he did not say to the Tribunal that the Tribunal had misunderstood his evidence. Therefore, it was reasonable for the Tribunal to conclude that the applicant was saying that in the past he had lived elsewhere in China, other than just in Chengdu City.
Therefore, I find it was at least open to the Tribunal to identify the inconsistency between the two statements and for that inconsistency to raise a concern as to the applicant’s credibility on an interpretation of evidence that was open: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131].
Therefore, I do not accept that the Tribunal’s reasoning process in relation to the second reason was legally unreasonable.
Third Reason
Applicant’s contention
At [32] of the reasons, the Tribunal noted that it would expect if the applicant was at risk of harm in China he would have obtained immigration advice and lodged an application for a protection visa soon after arriving in Australia. At [33] of the reasons, the Tribunal noted to the applicant that his delay in applying for a protection visa raised concerns about his credibility, to which the applicant declined to respond.
Counsel for the applicant contended that, on a fair reading of [32] to [33] of the reasons, the Tribunal exhibited an inflexible expectation or unwarranted assumption about what an applicant must do if they were genuinely seeking protection. In doing so, it was contended that the Tribunal elevated the notion of a delay into a norm of conduct, which when not followed, led the Tribunal to unreasonably find the claim to lack credibility. Counsel for the applicant contended that this was not a permissible process of reasoning.
With regard to the fact that the Tribunal put its concerns about the applicant’s delay to him, Counsel for the applicant submitted that the Tribunal “cannot cure its illogicality by putting an illogical proposition to the applicant” and that “you don’t overcome illogicality by putting it to the applicant as a matter of procedural fairness” (TP 22.26-34).
Minister’s submissions
The Minister submitted that it was open to the Tribunal to note the delay, to note its expectation of how someone seeking protection would act and to put the concerns that the delay raised about the applicant’s credibility to him. The Minister submitted that there were many explanations the applicant could have given regarding the delay which may have allayed the Tribunal’s concerns, but when given the opportunity, he declined to respond.
Consideration
In relation to unwarranted assumptions, the Full Court stated as follows in BZD17 v Minister for Immigration & Border Protection (2018) 263 FCR 292 at [36] (per Perram, Perry and O'Callaghan JJ):
… Similarly, "[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": SZVAP v Minister for Immigration & Border Protection (2015) [2015] FCA 1089; 233 FCR 451 (SZVAP) at [22] (Flick J) (citing WAGO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 676 at [54] (Lee and Nicholson JJ)); see also eg SZLGP v Minister for Immigration & Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [34] -[37] (Logan J). Unwarranted assumptions may also establish that a finding is illogical, irrational or not founded on any probative evidence: see eg DAO16 at [45] (the Court).
Both parties were in agreement that, as a general principle, it is open to the Tribunal to take a delay in applying for a protection visa into account in assessing the credibility of an applicant, but that the facts of each case would affect the applicability of this general principle: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347. Whilst Counsel for the applicant contended that the Tribunal had exhibited an inflexible expectation as to what a genuine applicant for a protection visa must do, I find that the fact that the concerns raised by the delay were put by the Tribunal to the applicant to comment on the delay, is illustrative of the fact that the Tribunal’s expectations were not unreasonably inflexible and it was not making unwarranted assumptions. I do not accept that there was anything illogical or legally unreasonable about the Tribunal’s concerns regarding the applicant’s delay in applying for the protection visa.
Therefore, I do not accept that the Tribunal’s reasoning process in relation to the third reason was legally unreasonable and I do not accept that the Tribunal made any unwarranted assumptions in relation to the applicant’s delay.
Fourth Reason
Applicant’s contention
Counsel for the applicant contended that the Tribunal exhibited legal unreasonableness at [34] of the reasons, in the way it construed two statements from the applicant regarding his reasons for coming to Australia. It was contended that the Tribunal regarded his initial evidence that he came to Australia “to avoid gangs in China”, to be mutually exclusive to his later evidence that he came to Australia “to work here and contribute to society.” It was argued that those two statements are not mutually exclusive or inconsistent and it was unreasonable for the Tribunal to expect the applicant to only state one reason for coming to Australia.
Minister’s submissions
The Minister submitted that the Tribunal did not treat the two statements at [34] of the reasons as being mutually exclusive. The Minister contends that the Tribunal noted the first reason given by the applicant for coming to Australia and noted the second reason given by the applicant for coming to Australia and then noted that the second reason was more consistent with his previous evidence about having not worked in China since 2012. Based on the evidence before it, the Tribunal formed the view that it believed the second reason to be the applicant’s primary motivation for coming to Australia and that this raised concerns about his credibility and the veracity of his claims. The Minister submitted that it would be putting words in the Tribunal’s mouth to suggest that it found the two statements to necessarily be mutually exclusive and it was open to the Tribunal to believe one reason over the other based on the evidence.
Consideration
In my view, on a fair reading of the reasons at [34], the Tribunal’s credibility finding was based on the following reasoning process:
(a)The applicant initially stated at the hearing before the Tribunal that he came to Australia to avoid gangs.
(b)The applicant later at the hearing before the Tribunal stated he came to Australia to work and contribute to society.
(c)The latter reason was more consistent with the applicant’s other evidence regarding his work history, and this raised further concerns about the applicant’s credibility and the veracity of his claims.
I do not accept the contention that the Tribunal treated the two statements by the applicant as being mutually exclusive or inherently inconsistent. Rather, the Tribunal’s reasoning process, as outlined in the preceding paragraph, found the applicant’s evidence was more consistent with him coming to Australia to work, rather than flee from gangs in China. Based on that reasoning, the Tribunal had concerns about the applicant’s credibility and the veracity of his protection claims. I do not accept that this reasoning process was legally unreasonable, as reasonable minds may differ about the outcome reached by the Tribunal and there was an intelligible justification for the conclusion.
Therefore, I do not accept that the Tribunal’s reasoning process in relation to the fourth reason was legally unreasonable.
CONCLUSION
Accordingly, no jurisdictional error is disclosed. Therefore, the amended application is dismissed.
I will hear the parties on costs.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 9 January 2025
0
21
1