FBC18 v Minister for Home Affairs
[2020] FCCA 334
•28 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FBC18 v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 334 |
| Catchwords: CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Protection visa decisions – Fast track review process – Reviewable decisions – assessment of credibility. |
| Legislation: Migration Act 1958 (Cth), ss.5H(1), 36(2)(a), 36(2)(aa), 473CA |
| Cases cited: AVQ15 v Minister for Immigration and Border Protection (2018) 361 ALR 227 BAO18 v Minister for Home Affairs [2019] FCA 965 BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 CTM16 v Minister for Immigration and Border Protection [2018] FCCA 2865 DAO16 v Minister for Immigration and Border Protection (2018) 353 ALR 641 |
| Applicant: | FBC18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 998 of 2018 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 8 November 2019 |
| Date of Last Submission: | 6 December 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 28 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Hoiberg |
| Solicitors for the Applicant: | Refugee And Immigration Legal Service |
| Counsel for the First Respondent: | Mr McLaren |
| Solicitors for the First Respondent: | Minter Ellison |
| The Second Respondent entered a submitting appearance |
ORDERS
The amended application filed on 12 April, 2019 be dismissed.
The applicant pay the respondent’s costs of and incidental to this application fixed in the sum of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 998 of 2018
| FBC18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a national of Afghanistan. He arrived in Australia as an unauthorised maritime arrival for the purposes of the Migration Act 1958 (Cth) on 25 April, 2013. On 2 November, 2016 he lodged an application for a Safe Haven Enterprise (Subclass 790) visa. To obtain that visa, the applicant needed to establish (among other things) that at the time of the decision he met the refugee or complementary protection criteria in ss.36(2)(a) or 36(2)(aa) of the Act.
On 7 December, 2017 a delegate of the first respondent refused the visa. Because the delegate’s decision was a fast track reviewable decision it was referred to the second respondent for review in accordance with s.473CA of the Act.
On 4 September, 2018 the second respondent affirmed the delegate’s decision.
On 28 September, 2018 the applicant applied to this Court for orders quashing the second respondent’s decision and an order requiring the second respondent to re-determine the application according to law.
By his amended application filed on 12 April, 2019 the applicant pleads one ground of review in three parts. His written submissions filed on 15 October, 2019 confirm that the third of those parts is not pressed. It was expressly abandoned in the course of the submissions made by the applicant’s counsel. The ground of his application is that the Authority’s decision was unreasonable, irrational and illogical in that the Authority:
a)made findings of credit on objectively minor matters of fact, which it then used to reject the applicant’s claims and evidence; and
b)failed to have regard to the delegate’s finding that “the applicant’s responses were generally sufficiently detailed, forthcoming and spontaneous and he appeared to be recalling events from memory”.
Background
The applicant is a Sunni Muslim of Pashtun ethnicity and a citizen of Afghanistan. He lived in an area of Kandahar Province. He claimed that while living in Afghanistan the Taliban sought to recruit him for its activities against the Afghan government. If he did not support the Taliban physically, he was expected to provide financial assistance. He said he was targeted because he was well known in his area in which he owned property and employed a number of people.
The applicant claimed to have been verbally threatened by the Taliban on three different occasions and to have also received two written threats prior to departing Afghanistan. He said he received threats both verbally and in writing. Five days prior to departing Afghanistan he received a “last warning” to give USD$25,000 to the Taliban or else be killed. He left soon after and departed Afghanistan.
He claimed that after he arrived in Australia his family were contacted by the Taliban twice and asked about his whereabouts. He claimed that his family had lost their property and were continuously and secretly moving to different areas to avoid the Taliban.
He claimed that if he returns to Afghanistan he fears that he will be killed by the Taliban because he escaped from the Taliban and because of the time he has spent in Australia.
The second respondent’s decision
On 7 December, 2017 the first respondent’s delegate made a decision to refuse the applicant’s visa application. In doing so, the delegate:
a)had concerns regarding the veracity of some of the details of the applicant’s claimed interactions with the Taliban due to a number of inconsistencies between the applicant’s written statement and his responses at the initial visa interview, but overall found the applicant’s responses to be generally sufficiently detailed, forthcoming and spontaneous and he appeared to be recalling events from memory;
b)accepted that the applicant and his brother were successful land owners and farmers and well known to locals;
c)accepted that the applicant had received numerous requests for money from local Taliban over a period of time in 2012 and was threatened with harm if he did not provide ongoing payment or volunteer other practical support, but considered that the applicant had been subjected to requests for Taliban support over a longer period than stated and had embellished details of the incidents and death threats immediately prior to his departure in an attempt to increase the gravity of the threats and bolster his refugee claims;
d)accepted that the applicant’s wife received two phone calls inquiring about the applicant likely with the goal of seeking payment in 2013;
e)accepted that the applicant’s family are no longer occupying their farm land and it may be under the control of the Taliban;
f)found there was a real chance of the applicant being seriously harmed if he returned to the Kandahar area due to an imputed pro-Western political opinion;
g)but considered that the applicant could relocate to Kabul where there would not be a real chance that he would face serious harm.
The decision was referred to the second respondent. The second respondent had regard to the review material forwarded to it by the secretary to the first respondent’s department. No new information was received from the applicant. The second respondent exercised its discretion to obtain updated country information and found there were exceptional circumstances for doing so. No issue is taken with the second respondent’s approach.
On 4 September, 2018 the second respondent affirmed the decision not to grant the applicant the visa. In general terms, it found the applicant’s evidence of the events leading to his departure of Afghanistan unconvincing due to inconsistencies in his evidence. The second respondent identified various inconsistencies in the applicant’s evidence relating to his education and employment, the threats he received, the Taliban’s contact with his family, the Taliban’s financial demands, his property and his family’s living arrangements. The inconsistencies identified by the second respondent were:
a)differences in the applicant’s evidence as to his education and employment history: in his visa application, he recorded that he attended school to year 10 and that between 1993 and 2013 he was self-employed in the farming industry. However, in his entry interview conducted on 29 May, 2013 the applicant stated that he never went to school and that he first started working, in the farming industry, at the age of 25 or 26 (approximately 1998 or 1999). He also stated in the entry interview that he ceased working in farming “three years ago” (approximately 2010) and that he had had not been employed since;
b)differences in the applicant’s evidence as to the timing and nature of the threats he received. Those matters are summarised by the second respondent as follows:
13. Secondly, there were inconsistencies in the applicant’s evidence as to the threats that he received from the Taliban. In his statutory declaration dated 9 November 2016 (SHEV statement), he stated that the Taliban attempted to ‘recruit’ him ‘physically’ to participate in activities against the government. He indicated that due to his unwillingness to support the Taliban in this way he was threatened that he would have to provide financial support. The applicant stated that he first received three verbal threats (both at his house and by telephone), followed by two written letters. He stated that the threats spanned over a period of about 15 days, and that he departed Afghanistan within five days of the last threat, thereby indicating that the threats were received in around February/March 2013. He claimed that the last threat was when four Taliban members came to his house and told him that it was his last warning. Two members came close to him and two remained some distance away. He was told that if he did not pay money he would be killed. However, in the SHEV interview, the applicant claimed that his first interaction with the Taliban was in 2012 and involved a demand for money by letter, not verbal threats as mentioned in his written claims. He said that he was “on the land working” when he was approached by two Taliban members who handed him the letter personally, without a word being spoken, and that it had been written by a Taliban senior commander whose name he could not recall. He claimed that the verbal threats began after he received the second letter. He also claimed that the last threat he received was by telephone where he was told that if he did not pay money he would be killed. He said that it was about 12 to 15 days between the first and last threat.
14. Throughout the SHEV interview, the delegate raised a number of concerns with the applicant about inconsistencies between his written claims and his oral evidence. He asked the applicant about his written claim that the Taliban had asked him to physically join them - a claim that was not mentioned by the applicant in the SHEV interview when he was asked about the threats that he had received. In response, he stated that he was told that if he did not have money that he could fight for the Taliban or send somebody else to fight. The delegate asked when he was told this and, after a long pause, the applicant claimed that the Taliban told him this over the telephone. The delegate also asked the applicant about his differing evidence as to the order that he had received the threats (written versus verbal) and, in response, the applicant said that he could not remember whether it was the verbal or written threats that occurred first. The delegate also asked the applicant about the inconsistency in his evidence as to whether the death threat was in person or over the telephone. In response, the applicant said that he was confused, that he could not remember, and that his mind was not working.
c)differences in the applicant’s evidence as to Taliban contact with his family: in his statement the applicant claimed his family was contacted by telephone by the Taliban in around February, 2016 at which time he instructed them to destroy the SIM card. In his visa interview he said his family was contacted in around September, 2013 at which time he instructed them to destroy the SIM card;
d)differences in the applicant’s evidence as to the demands made of him by the Taliban: in his statement the applicant claimed he made between USD$15,000 and USD$20,000 profit per year and the Taliban demanded he pay USD$15,000 per month. In his visa interview it was put to the applicant that country information suggested the Taliban usually impose a 10% tax, to which he said the initial demand is negotiable. He said he knew that because it was the policy of the Taliban, something he learned from other people prior to departing Afghanistan;
e)differences in the applicant’s evidence as to the location of his property: in his statement made for the purposes of his visa application the applicant claimed he owned property in Achin District (Nangarghar Province) but in his visa interview said that he did not and that he must have made a spelling mistake in his statement;
f)differences in the applicant’s evidence as to his family’s circumstances: in his statement he claimed that his family “keep moving to different areas” and have lost all of their property, but in his visa interview he said his family were currently living in his house in a named village in Kandahar Province.
After detailing those inconsistencies, the second respondent concluded that “the applicant was not recalling a genuine personal experience in relation to several aspects of his claims”.
Paragraph 19 of the second respondent’s reasons is important and is a focal point for the applicant’s arguments in respect of both grounds pressed on this application. It is as well to set it out now:
19. When considered cumulatively, the above evidence leads me to conclude that the applicant was not recalling a genuine personal experience in relation to several aspects of his claims. While I note the delegate broadly accepted the applicant’s claims that in 2012 he was approached and threatened by the Taliban, that he fled Afghanistan due to ongoing extortion attempts, and that the Taliban made enquiries as to the applicant’s whereabouts after he fled the country, I do not share the delegate’s views in this regard. As noted above, there were significant inconsistencies in the applicant’s evidence as to whether he was employed at the relevant time, as to when he was threatened, as to how he was threatened, and in relation to the timing of when the Taliban contacted his family after he left Afghanistan. I also consider the applicant’s inconsistent evidence as to the sums of money demanded by the Taliban no insignificant. Further, I consider his evidence in the entry interview that the Taliban asked him for a percentage of his income for the last “two years” not supportive of his later claim that he was extorted over a 15 day period. Country information before me indicates that in some parts of Afghanistan the Taliban impose their own taxes on land owners. However, having had regard to the evidence discussed, I do not accept that the applicant was approached by the Taliban for the reasons claimed, or for any other reason. It follows that I reject the applicant’s associated claims that he was threatened that he would be killed as a ‘last warning’, that he has lost his property due to Taliban threats, that the Taliban now occupy his land, that his family have been living in hiding, or that the Taliban contacted his family as to his whereabouts in 2013 or 2016. Accordingly, I am not satisfied that the applicant faces a real chance of harm on return to Afghanistan due to his claimed refusal to support the Taliban, his escape from the Taliban, or due to a perceived support for the Afghan government arising out of the claimed events.
The second respondent rejected that:
a)the applicant owned a multi-million dollar portfolio;
b)the applicant was, or was perceived as, a wealthy businessman or wealthy land owner in Afghanistan; and
c)he would be denied the capacity to subsist if he was returned to Afghanistan.
Having regard to country information and the applicant’s profile, the second respondent did not accept the applicant would face harm on account of his time spent in Australia, perceived westernisation or as a failed asylum seeker. The second respondent also found the applicant would be able to access his home area safely on return.
The second respondent was not satisfied that the applicant met the requirements of the definition of refugee in s.5H(1) of the Act. Nor was it satisfied that the applicant satisfied the complementary protection criterion.
Grounds of Review
The grounds of review are specified in the application as follows:
1. The decision of the Immigration Assessment Authority (IAA) dated 4 September 2018 (Decision) was unreasonable and/or irrational and illogical, because:
a. The IAA made findings of credit on objectively minor matters of fact, which it then used to reject the Applicant’s claims and evidence.
Particulars
i. DA016 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30(3)].
ii. The IAA used inconsistencies about the Applicant’s education and employment history as a basis for rejecting the Applicant’s claims (Decision [11]-[12]), when that had no bearing on the credibility of the Applicant’s claims for protection.
iii. The IAA referred to inconsistencies about the financial demands by the Taliban (Decision [16]) when, on a proper reading of the evidence in paragraph [16] of the Decision, there were no such inconsistencies.
iv. The IAA used inconsistencies about whether the Applicant owned land in the Achin District (Decision [17]), when the Applicant had provided a reasonable explanation for the inconsistency.
b. In finding that the Applicant was not recalling a genuine personal experience in relation to several aspects of his claims (Decision [19]), the IAA failed to have regard to the delegate’s finding that ‘the applicant’s responses were generally sufficiently detailed, forthcoming and spontaneous and he appeared to be recalling events from memory (CB 157).
Particulars
i. BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169 at [15].
ii. The delegate was better placed than the IAA to assess whether the Applicant was recalling a genuine personal experience.
iii. The IAA did not refer to the delegate’s finding in this regard, nor does the Decision indicate that the IAA listened to the SHEV interview itself.
c. The IAA failed to consider, in the alternative, whether there was a ‘real risk’ that the Applicant may suffer ‘significant harm’ under s 36(2A) of the Migration Act 1958 (Cth), on the assumption that the IAA was wrong in finding the Applicant’s claim to be fabricated.
Particulars
i. DA016 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [36].
ii. The IAA noted that country information indicates the Taliban impose their own taxes on land owners (Decision [19]), and accepted that the Applicant owned some farm land in Afghanistan from which he generated income (Decision [21]), but found that the Applicant is not a person of interest to the Taliban (Decision [38]).
iii. The IAA failed to consider whether, if the IAA was wrong about the Applicant fabricating him claim to have been threatened by the Taliban, the Applicant faced a real risk of significant harm were he to return to Afghanistan.
Ground 1(c) set out above is no longer pressed by the applicant and need not be considered further.
Before proceeding to a consideration of the remaining two grounds, I record that the parties are agreed that the relevant principles to be applied in this application are to be found in DAO16 v Minister for Immigration and Border Protection (2018) 353 ALR 641 and AVQ15 v Minister for Immigration and Border Protection (2018) 361 ALR 227. In the former case, the Full Court said, at [30]:
30. The relevant principles can be summarised 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].
The applicant also referred me to the following passage from AVQ15 at [28] where the Full Court said:
… even where it is reasonably open to find that a person has given inconsistent evidence, the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it. This requires consideration of, for example, the significance of the inconsistency having regard to the person’s case as a whole and whether the inconsistency is on a matter which is central to the person’s case or is at its periphery and involves an objectively minor matter of fact. It also requires the decision maker to remain conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given. Consideration should also be given to whether there is an acceptable explanation for the person having given inconsistent evidence such that the fact of the inconsistency should attract little, if any, weight. How all these matters are weighed and evaluated in a particular case is a matter for the decision-maker, but a failure by the decision-maker to appreciate the particular nature of the task, or to perform it reasonably and fairly, may be the subject of judicial review.
The applicant also drew my attention to the decision in in BAO18 v Minister for Home Affairs [2019] FCA 965 where the Federal Court applied the principles gathered in the cases set out above to find that the Tribunal in that case had fallen into jurisdictional error when it did not accept an applicant’s protection claims on the basis that, because of inconsistencies in other aspects of his evidence, it did not find the claims credible. As that case demonstrates, and as the applicant submits, each case is to be decided by applying the relevant general principles to the particular factual circumstances and not by reference to factual similarities or differences with other decided cases.
Consideration
Ground 1
The gravamen of the first ground of the applicant’s case is that the second respondent used inconsistencies on objectively minor matters of fact to reject the applicant’s claims entirely. The applicant submits, and I accept, that the second respondent’s reasons for rejecting the applicant’s claims were based on what the second respondent identified as five key inconsistencies which the second respondent said “undermine the credibility of [the applicant’s] claims”. The applicant argues that these inconsistencies were minor and “were either readily explicable, or were peripheral to the applicant’s claim for protection”.
The applicant does not take issue with the second respondent’s identification and characterisation of all of the matters I have set out in paragraph 12 hereof as inconsistencies. Of the five distinct categories of “inconsistency” identified by the second respondent in paragraphs 11 – 19 of its reasons, the applicant only takes issue with three of those categories. I will deal with each one separately as the applicant has done in submissions.
The second respondent identified the first group of inconsistencies that concerned it at paragraph 11 of its reasons. Those inconsistencies were described by the second respondent as “significant”. They related to the applicant’s education and employment history. Inconsistencies arose between the accounts given by the applicant as to his schooling and employment history in his visa interview and application, on the one hand, and his entry interview on the other. In his entry interview which took place on 29 May, 2013 he claimed to have no education, that he commenced his work in the farming industry at the age of 25 or 26, had ceased working in around 2010 and had not been employed since. In his visa application he recorded that he attended school to year 10 and was self-employed in the farming industry from between 1993 and 2013. He made similar statements in his visa interview with the first respondent’s delegate on 18 September, 2017.
The second respondent recorded:
12. In the SHEV interview, the delegate asked the applicant why he had earlier declared in the entry interview that he had not gone to school. In response, he claimed that in the entry interview he was asked if he had some school documents and that he had told the interviewing officer that he did not have any school documents. However, having listened to the audio recording of the entry interview, I am satisfied the applicant was clearly asked if he had ever attended school and that his response was that he had not.
The applicant argues that the second respondent’s dismissal of his explanation was based on its own listening to the recording of the entry interview, and confirmation of the question asked (in English). Further, he argues that the second respondent did not make any allowance for whether the question was accurately translated, or whether the applicant was referring to his own subjective misunderstanding of what was being asked.
The first respondent argues that it was open to the second respondent to find that the applicant’s evidence on these matters was inconsistent. Indeed, it clearly was. He argues that the second respondent took steps to clarify the applicant’s explanation for one aspect of the inconsistency by listening to the audio recording of the entry interview. The first respondent submits that the second respondent was not required to speculate as to the possibility that the questions asked at the entry interview may have been inaccurately translated, or that the applicant may have subjectively misunderstood what was asked in relation to his education history. I accept that submission. Where an applicant asserts that there has been an error in translation, the onus rests upon him to demonstrate that that is so. Whilst the applicant’s point here is that the second respondent did not, on the face of its reasons, consider the possibility that there had been an error in translation, the second respondent was under no obligation to consider that there may have been errors in translation in the absence of an assertion of such an occurrence from the applicant.
Moreover, the applicant’s explanation only went to one aspect of the inconsistencies that were demonstrated by his statements. As between the entry interview and the visa application interview, there were inconsistencies about the nature and extent of the applicant’s schooling as well as his employment history. His explanation for the inconsistency went only to the former, not to the latter.
The applicant further argues that even if there were inconsistencies, they could have had no bearing on the applicant’s claim to have been threatened by the Taliban due to his position as a landowner, particularly as the second respondent accepted that the applicant owned some land. It was, at best, peripheral and insufficient to form a logical basis for the rejection of the applicant’s claims.
The first respondent argues that the applicant’s differing evidence about when he was working was especially relevant in the context of considering the credibility of his claims with respect to the timing of his claimed threats from the Taliban. On the account given by the applicant at the entry interview, he had ceased working in farming three years earlier (around 2010) than when the first threat was received from the Taliban. He claimed that he was approached by the Taliban in either 2012 or 2013 while he was still generating an income from his land. I accept the first respondent’s submission that the applicant’s evidence about his working history is relevant in the way contended for by the first respondent. It plainly provided the context in which he claimed he received threats from the Taliban.
On its own, the inconsistencies the subject of this aspect of the applicant’s argument might be insufficient to support the second respondent’s ultimate conclusion that the applicant’s claims were not credible. But as paragraph 10 of the second respondent’s reasons demonstrates, this was only one aspect of the matter and it is clear that the second respondent has considered these inconsistencies together with others to inform itself about the credibility of the applicant’s claims.
The next matter pointed to by the applicant in support of this ground of review is what is described by the second respondent in paragraph 16 of its reasons:
16. Fourthly, the applicant’s evidence as the financial demands by the Taliban was inconsistent. In his SHEV statement, he claimed that he was asked to pay $15,000 USD and on another occasion $25,000 USD. In the SHEV interview, the applicant advised that the Taliban requested that he pay them $15,000 USD per month. He also told the delegate that his yearly profit amounted to around $15,000 - $20,000 USD per year. The delegate raised a concern with the applicant that it seemed unreasonable that the Taliban would demand $15,000 USD per month in circumstances where this was roughly equal to his yearly earnings, and that country information indicated that the Taliban usually imposed a tax on community members of around 10 percent. In response, the applicant said that the payment was negotiable and that it would have likely dropped to $2,000 USD per month after an initial payment. When asked how he knew this, he said that was the Taliban policy. He said that before he came to Australia he had spoken to other people and found out that this was how the Taliban operated.
The applicant argues that, in truth, there is no inconsistency demonstrated by the applicant’s evidence or claims in this respect. He argues that there is no inconsistency between a demand by the Taliban for a significant sum of money, and the applicant’s understanding that the initial demand was capable of being negotiated down, even significantly.
The first respondent submits that it was open to the second respondent to find that the applicant’s evidence regarding the Taliban’s financial demands was inconsistent. I accept that submission. The applicant’s claim in his visa application statement that he was asked to pay $15,000 USD and on another occasion $25,000 USD is inconsistent with what he said in the visa interview that he was requested to pay $15,000 USD per month. His evidence about the negotiability of the payment and that it would have likely dropped to $2000 USD per month after an initial payment is also at odds with the proposition originally put by him in his visa application statement.
In my view, it was open to the second respondent to treat the applicant’s evidence about this matter as it did.
The third matter to which the applicant points to support this ground of review arises in paragraph 17 of the second respondent’s reasons:
17. Fifthly, there were several inconsistencies in the applicant’s evidence about various other aspects of his claims. In his SHEV statement, he claimed that he owned property in Achin District (Nangarhar Province) and that it had risen in value in recent years. However, in the SHEV interview, he said that he did not own land in this district or province and that mention of this claim in his written statement must have been caused by a spelling error. Further, the applicant’s claim in his SHEV statement that his family ‘keep moving to different areas to keep their identity in secret’ and that they have ‘lost all the property and the land because of the threats’ was inconsistent with his evidence in the SHEV interview that his family were currently living in [redacted] in a house owned by the applicant.
There are two matters identified in this paragraph as “inconsistencies”. I have identified them at paragraph 12 of these reasons.
As to the first, it is common ground that in his visa interview the applicant said that he did not own land in Achin district and that mention of this in his statement must have been caused by a spelling error. Accordingly, the applicant submits, there is no inconsistency apparent. The applicant argues that he provided a plausible explanation for the discrepancy. It is common ground that he did not draft his visa statement in English and that it was read back to him by an interpreter.
In the statutory declaration accompanying his visa application, the applicant said:
15. The Taliban were targeting me on the basis that I own quite a lot of property. A recent road building project in the Achin district, where my properties are located, also increased the value of land in that area. It is well known in my area that my family is very well established and that I had lots of labourers working for me. They were farmers, engaged in the farming of my land. I have attached to my visa application copies of my land title deeds. The deeds however are in Dari as I was not able to get them translated by a NAATI accredited translator. I was told that because the deeds are handwritten, quite old and use very specific terminology, they are difficult to translate.
The applicant points out that the reference to the “road building project” in his statement was intended to refer to the Government’s proposal to construct a road through his land near Kandahar airport, which would increase its value. He submits that the rational conclusion to be drawn from this evidence is that the reference to Achin in the applicant’s SHEV statement was simply an inadvertent error.
The first respondent submits that it was open to the second respondent to find that the applicant’s evidence in this respect was inconsistent. It plainly was inconsistent on its face. I accept the first respondent’s submission that it was open to the second respondent to treat the statement in the applicant’s statutory declaration as inconsistent with his later evidence that he owned no land in Achin district.
However, the applicant provided an explanation for that inconsistency. The second respondent expressly noted the applicant’s contention that it must have been a spelling error that led to the inconsistency, but there is no other express consideration of that explanation in the reasons. By implication, it must have been rejected, but the basis upon which it was rejected is entirely unclear from the second respondent’s reasons.
The second inconsistency identified by the second respondent in this paragraph is said to be the inconsistency between the applicant’s claim in his visa statement that on the one hand his family “keep moving to different areas to keep their identity in secret” and that they have “lost all the property and the land because of the threats” and his evidence in the visa interview on the other that his family were currently living in a house owned by the applicant.
On its face, no inconsistency between these two statements is apparent. The first statement about the applicant’s family appears to concern their property and land, not that of the applicant, whereas the second statement refers to the applicant’s property – i.e., a house owned by him.
However, in the statutory declaration made by the applicant for his visa application and in addition to paragraph 15 set out above, he said:
29. My family were unable to manage my properties and the land as they were also scared for their lives, so they had to leave everything behind. We lost all the property and the land because of the threats to my life. My family members’ lives would also be in danger if they stayed in the same area.
30. My family has not been able to reside in one place since I left Afghanistan. They keep moving to different areas to keep their Identity ln secret.
Having regard to what appears in the applicant’s statutory declaration, it is clear that “the property and land” that was lost was his property and land, not his family’s property and land. Having said that, it was the applicant’s evidence that the title to the farming land was still in his now deceased father’s name, not the name of the applicant. Nonetheless, the applicant argues that when regard is had to the evidence given by him at the visa interview, it can be seen that there is no inconsistency between the two positions identified and fastened upon by the second respondent.
It is common ground that the applicant gave evidence that:
a)his family had only been living in a particular named town for the last month (i.e., as at September, 2017 which is 10 months after the applicant’s SHEV statement of November, 2016);
b)his family moved constantly between Kandahar city, where they rented different houses, and the particular named town, where they lived in a house owned by the applicant, due to the security situation with the Taliban;
c)the applicant’s house in that particular named town is distinct from his farm land, which is located near Kandahar city in another named village (and is where the applicant received the threats from the Taliban); and
d)the applicant’s family are not living on the farm land and that land is now occupied by the Taliban.
The first respondent argues that there were indeed inconsistencies in the evidence and claims of the applicant regarding continued land ownership and the residence of his family. As the passages I have set out above identify, the applicant in his statutory declaration claimed that his family had been unable to manage his properties and land and that they had lost all the property and the land. However, at the visa interview, the applicant stated that his family was living in a property that the applicant owned. I accept the first respondent’s submission that there is an inconsistency between those two positions. On the one hand he has said that all of his property and land has been lost and yet on the other his family is living in a property owned by him.
I also accept that it was plainly open to the second respondent to find that there was inconsistency between the claim that his family had to keep moving to different areas to keep their identity a secret, and the family’s residence in a house owned by the applicant in the area from which he originated.
Of the five matters identified by the second respondent in paragraphs 12 – 19 of its reason, the three I have just discussed are those with which the applicant takes issue. In my view, the second respondent was entitled to treat each of those matters as inconsistencies as it did. To the extent that the applicant provided an explanation for some of them, those explanations were rejected.
The applicant submits that a number of the inconsistencies identified by the second respondent were “not relevant” to some of the matters about which the second respondent need to make findings or express a level of satisfaction. For example, the applicant points out that the second respondent used the five inconsistencies dealt with in paragraphs 12 – 17 of its reasoning as a basis for not accepting the applicant’s claims that:
a)the applicant did not own a multi-million dollar (USD) property portfolio;
b)the applicant was not, or perceived as, a wealthy businessman or wealthy land owner in Afghanistan; and
c)the applicant does not have a real risk of suffering significant harm in his home village under the complementary protection assessment.
He argues that even if the inconsistencies existed they were “not logically probative”. He argues that the identified inconsistencies were “not relevant to the extent of the applicant’s land holdings or to his wealth”. The applicant argues that the second respondent’s reliance on the identified “inconsistencies” as the basis for rejecting the applicant’s claim in its entirety “was illogical and irrational, because there was no logical connection between the evidence and the inferences drawn”.
I reject those submissions for three reasons. First, the matters identified by the second respondent were clearly relevant to the matters about which the second respondent was required to be satisfied. Specifically:
a)the applicant’s evidence about when he was working was relevant in the context of considering the credibility of his claims with respect to the timing of his claimed threats from the Taliban. On his first account he had ceased working in farming three years before he had received his first threat. On his second account he was still working farming his land when he received the first threat in either 2012 or 2013;
b)his claims about the nature, timing, content of and way in which the threats were made to him by the Taliban were significant aspects of his claim that he had been threatened. His evidence about those matters and any inconsistencies in his evidence were clearly relevant to assessing his claim in reliance upon those threats; and
c)his claims as to the financial position of he and his family more generally were relevant to his claims about being threatened by the Taliban and the reason why he would be a target for them.
Second, the inconsistencies do not bear directly upon the factual matters to be considered or determined by the second respondent when the second respondent is assessing the credit of the applicant’s claims. That an applicant has been found to be not credible in respect of some matters is capable of reflecting on his credibility generally and has the capacity to thus inform the second respondent’s consideration of the credibility of other parts of his claims.
Third, and perhaps most significantly, the second respondent’s assessment of credit was not the only matter relied upon by it to reject the particular matters identified by the applicant in submissions. Specifically:
a)in respect of his wealth the second respondent also considered:
i)the applicant’s statements in the entry interview that:
(1)his mother was dependent on him for financial support, that he left some money for her to live on prior to leaving Afghanistan, and that if that money ran out he would be forced to try and earn some money in Australia to continue to support her;
(2)he was uneducated, that he did not commence working until the age of 25 or 26, and that he had been unemployed for a three-year period prior to leaving Afghanistan; and
ii)The applicant’s oral evidence in the visa interview about how he operated his business, his claimed yearly profit, and how he used his profits to reinvest in the business was vague and unconvincing;
b)In respect of his claim that he was targeted by the Taliban the second respondent also considered:
i)country information that did not indicate that the Taliban, antigovernment elements, or other groups are systematically targeting individuals for extortion in the applicant’s home district or in the wider province; and
ii)the United Nations High Commissioner for Refugees view that practices of illegal taxation and extortion would not normally rise to the level of persecution, although it depended on the individual circumstances of the case.
Further, the applicant argues that whilst the second and third inconsistencies relate to the applicant’s account of the threats received by the Taliban and were objectively capable of impacting upon the second respondent’s acceptance of the applicant’s claims, the second respondent found that all of the inconsistencies, when considered “cumulatively”, led it to conclude that the applicant was not recalling a genuine personal experience. I have set out paragraph 19 where the tribunal did this above at [14]. A reading of [19] of the second respondent’s reasons demonstrates that it was not just the inconsistencies that it identified that led to the rejection of the applicant’s claims, but a consideration of “the above evidence” which importantly included a reference to [18] of the second respondent’s reasons which provided:
18. In support of this SHEV application, the applicant provided copies of the title deeds to the land that he owns in Afghanistan. He had stated that he was unable to get the deeds translated because they are difficult to translate due to being handwritten, quite old, and they use very specific terminology. The applicant advised the delegate that he was unable to provide a copy of the two Taliban threat letters received in 2012 because he does not know where he left them.
As the applicant argues, a cumulative finding is only as good as the individual findings lying beneath it. However, for the reasons I have given above, the applicant has not established that the three inconsistencies he seeks to impugn in these proceedings either did not exist or were so minor that they could not have rationally supported a dismissal of the applicant’s claim.
The applicant submits that on a fair reading of [19] of the second respondent’s reasons, the adverse credibility finding was the reason why the second respondent was not satisfied that the applicant faced a real chance of harm on return to Afghanistan. But I do not accept this submission. It is clear from a fair reading of the second respondent’s decision as a whole that it was but one aspect of the second respondent’s decision.
This ground of review does not reveal any jurisdictional error.
Ground 2
The applicant argues that the second respondent fell into jurisdictional error because it did not “take into account” the delegate’s finding that the applicant was recalling a genuine personal experience in relation to his claims. He argues that second respondent did not give any or any sufficient consideration to the delegate’s finding that the applicant’s responses were “generally sufficiently detailed, forthcoming and spontaneous and he appeared to be recalling events from memory”, especially given that the delegate was the same person who interviewed the applicant and therefore observed his demeanour in person.
It is plain from a reading of the second respondent’s decision that the delegate’s finding that the applicant appeared to be recalling a genuine personal experience in relation to his claims was not expressly referred to or recorded by the second respondent in terms. Indeed, the second respondent made an express finding that the applicant was not recalling a genuine personal experience. The applicant argues that the second respondent’s finding was directly inconsistent with the delegate’s finding and in the absence of a direct reference to the delegate’s finding, the failure invites the inference that the second respondent did not consider the finding to be material and did not give it the appropriate deference it deserved.
The applicant referred me to BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448; [2017] FCAFC 169, where Dowsett J stated:
…That the second respondent may, in certain circumstances, consider new material, leads inevitably to the conclusion that the review is not limited to a review on the material before the delegate. It follows that any review is not dependent upon identifying error in the delegate’s decision. There is no basis for arguing that the form of review will vary, depending upon whether the second respondent considers, or does not consider new information. Whilst appropriate deference should be given to findings of fact based on “evidence” given in person to the delegate, such deference does not limit the nature of the review. It is rather a factor to be taken into account in conducting such review. [emphasis added]
As the first respondent submits, those remarks do not elevate the delegate’s reasons to a matter that must be mandatorily considered by the second respondent. To do so would be to introduce a fetter on the nature of the task to be undertaken by the second respondent when conducting a review under Part 7AA of the Act.
In CTM16 v Minister for Immigration and Border Protection [2018] FCCA 2865 the Court said at [102]–[104]:
[102] The IAA is required to review the delegate’s decision, as opposed to the delegate’s reasons for decision, and the particular findings made by the delegate. The jurisdictional task for the IAA is specified in section 36 of the Migration Act. This requires the IAA to assess whether Australia owes the applicant protective obligations because he is a refugee as defined by section 5H of the Migration Act and therefore has a well-founded fear of persecution as defined by section 5J of the Migration Act. Otherwise, the discretion of the IAA is unconfined: EDS16 v Minister for Immigration & Border Protection & Anor [2018] FCCA 2271 per Judge Brown at [78].
[103] The Court finds that the IAA was under no obligation, either statutorily or jurisprudentially, to explicitly refer to any disadvantages it faces in comparison to the delegate in arriving at credibility findings. It is clear that the IAA made a different finding to that of the delegate on the material before it. It cannot be said here that a failure to explicitly refer to any disadvantages it faces in comparison to the delegate in arriving at credibility findings constitutes an error.
[104] Further, and in any event, the Court agrees with the Minister’s submissions that there is nothing in the IAA’s reasons to suggest that it did not appreciate that it did not interview the applicant in person. It is clear from Part 7AA of the Migration Act that the IAA is to review the delegate’s decision “on the papers” and, notwithstanding s.473DE of the Migration Act, it is implicit in this limited form of review that the IAA is unable to have the benefit of interviewing an applicant.
Those remarks and the approach reflected in them have application here. Consideration of the delegate’s finding that the applicant was recalling a genuine personal experience in relation to his claims was not something that the second respondent was obliged to consider in the sense of it being a mandatory consideration on the review. Thus, an absence of reference to it does not advance the applicant’s case.
In any event, even if that view is wrong, I decline to draw the inference that the second respondent did not consider the delegate’s finding. In my view, the second respondent was cognisant of the findings made by the delegate and gave appropriate deference to the delegate’s finding about the applicant’s creditworthiness generally. At [9] the second respondent said:
9. The delegate found that the applicant faced a real chance of harm on return to [redacted] due to a combination of factors, and that it was reasonable for him to relocate to Kabul where he would not face a real chance of serious harm. Specifically, the delegate accepted that prior to leaving Afghanistan the applicant was a ‘wealthy business person who refused to provide financial contributions to the Taliban’. He determined that due to this, and in combination with his ‘lengthy absence and…residence in a western country’ he would be imputed by the Taliban with a pro-government political opinion and that he faced a real chance of being seriously harmed on this basis. On the evidence presented, I have come to a different conclusion.
The second respondent also referred to the delegate’s findings of the applicant’s claims in paragraph 19 of the reasons as I have set out above. There can be no doubt, I think, that the second respondent was aware and considered the delegate’s acceptance of the applicant’s claims. However it gave its own reasons for rejecting them.
This ground of review does not establish jurisdictional error.
Conclusion
The applicant’s grounds of review reveal no jurisdictional error. The application must be dismissed. Costs should follow the event. The first respondent seeks costs in a fixed sum which is in all the circumstances reasonable.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 28 April 2020
Associate:
Date: 28 April 2020
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