FCB17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 79

Federal Circuit and Family Court of Australia

(DIVISION 2)

FCB17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 79

File number(s):

SYG 3581 of 2017

Judgment of:

JUDGE GIVEN

Date of judgment:

10 February 2023

Catchwords:

MIGRATION – whether Immigration Assessment Authority undertook proper intellectual engagement in credibility assessment by reference to circumstances surrounding entry interview and evidence given at later times

Legislation:

Migration Act 1958 (Cth) ss 5AAA, 36, 46A, 423A

Cases cited:

AAI20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1252

CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496

Minister for Immigration and Border Protection v SZUXN [2016] FCA 51

MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436

Orelien v Canada (Minister of Employment and Immigration) [1992] 1 FC 592 (Can. FCA, Nov 22, 1991)

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

XFKR v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2020) 280 FCR 535

Division:

Division 2 General Federal Law

Number of paragraphs:

40

Date of hearing:

15 November 2022

Place:

Sydney

Counsel for the Applicant:

Mr V Kline (direct access)

Solicitor for the Respondents:

Mr J Pinder of Minter Ellison

ORDERS

SYG 3581 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FCB17
Applicant

AND:

MINISTER FOR IMMINGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

order made by:	JUDGE GIVEN
DATE OF ORDER:	10 February 2023

THE COURT ORDERS THAT:

1.The application made on 20 November 2017, as amended, 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 GIVEN:

1. By an application dated 20 November 2017 the applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) dated 16 October 2017, affirming a decision of a delegate of the first respondent (delegate) not to grant the applicant a Safe Haven Enterprise (Class XE) visa (SHEV) (CB 183). 

   Background

2. The following background and summary of the Authority’s decision is derived from the submissions of the first respondent, but does not appear to be in dispute.

3. The applicant is a citizen of Bangladesh, who arrived in Australia on 30 January 2013 as an unauthorised maritime arrival. The first respondent exercised his discretion under s 46A(2) of the Migration Act 1958 (Cth) (Act) to allow the applicant to make a valid application for a specified visa.  The applicant subsequently applied for a SHEV on 29 March 2016.

4. On 3 July 2017, the delegate refused to grant the applicant a SHEV (CB 150).  The delegate's decision was a “fast track reviewable decision” and was referred by the first respondent to the Authority for review.  The Authority said that it had regard to the review material and observed that no new information was received or obtained (CB 184 at [3] to [4]).  On 16 October 2017, the Authority affirmed the decision under review (CB 183).

5. The applicant claimed to fear harm on the basis of his (and his family's) membership and support of the Bangladesh National Party (BNP).  The applicant claimed to fear harm on account of an ongoing land dispute involving his father and a member of the Awami League (AL).  The applicant also claimed he had been framed for murder.  Specifically, the applicant claimed to fear harm at the hands of the AL and the police.

   The Authority’s decision

6. The Authority rejected the applicant's claims on the basis of comprehensive adverse credibility findings.  In relation to the applicant's BNP membership, and having regard to country information, the Authority made the following relevant findings:

   (a)the applicant had no knowledge of standardised documents provided to party members (at [13]);

   (b)the applicant claimed he did not pay any money to the BNP despite there being an annual subscription fee (at [14]);

   (c)the applicant’s knowledge of the BNP flag did not reflect his claimed level of involvement (at [14]);

   (d)the applicant’s age would not have precluded him from voting in 2008 (at [14]);

   (e)the applicant did not mention his involvement in the BNP in his arrival interview
   (at [15]); and

   (f)having regard to these findings, the Authority gave the applicant's corroborative evidence “no weight” (at [15]) and found he was not a member or supporter of the BNP (at [17]).

7. In relation to the BNP membership of the applicant’s father, and the land dispute, the Authority made the following relevant findings:

   (a)the applicant did not mention any false case against his father in his SHEV application (at [21]);

   (b)in his arrival interview, the applicant stated his family's land had been sold (at [21]);

   (c)it was implausible the applicant’s brothers were still studying given their age and circumstances (at [21]); and

   (d)it was fanciful the applicant’s brothers would not be targeted because of their personality (at [22]).

8. In relation to having allegedly been framed for murder, the Authority identified deficiencies in corroborative evidence, together with inconsistencies in the applicant’s own evidence throughout the application process, and rejected that claim (at [26] to [36]).

9. Having regard to country information, the Authority did not accept that the applicant would face harm as a failed asylum seeker who departed Bangladesh illegally (at [37] to [38]).

10. The Authority was not satisfied that the applicant met the refugee criterion under s 36(2)(a) of the Act (at [39]). For the same reasons, and after setting out specific findings about the applicant's profile as a failed asylum seeker who departed illegally (at [43]), the Authority found that the applicant also failed to satisfy the complementary protection criterion under s 36(2)(aa) of the Act (at [45]).

    Application for judicial review

11. By an application to show cause filed with the Court on 20 November 2017 the applicant sought judicial review of the Authority’s decision and raised two particularised grounds.  At the time of the commencement of the proceedings the applicant was represented by solicitors.

12. The matter was initially docketed to another Judge of the Court (first primary Judge).  On
    13 December 2017, orders were made by a Registrar of the Court (in Chambers), which provided for the applicant to file any amended application or Affidavit evidence by
    5 April 2018. 

13. On 4 April 2018, the applicant’s solicitors filed a Notice of Withdrawal of Lawyer, the effect of which was that the applicant was no longer represented.  The following day, an Amended Application was filed by the applicant (within the time allowed), the footer of which stated that it had been prepared by him.  The Amended Application raised four (unnumbered but particularised) grounds of review.

14. On 2 August 2018, a Registrar of the Court made orders that the matter be listed for callover on a date to be administratively advised.  The matter was later listed for callover on 31 October 2018.  On 27 September 2018, the first primary Judge made orders vacating the 31 October 2018 fixture and granted the applicant leave to file and serve any further amended application on by 17 October 2018.  On 9 October 2018 the applicant filed a further Amended Application within time. The further Amended Application was prepared by Counsel who has represented the applicant since that time, and is retained on a direct access basis.    

15. The proceedings were later transferred to the central migration docket, possibly due to the impending retirement of the first primary Judge where they remained until when, on 11 August 2022, the matter brought into my docket and listed for hearing.  By orders made by me on 11 August 2022 (August Orders) in Chambers, the applicant was granted leave to file any second further amended application on or by 25 August 2022 and orders were made for the filing of written submissions prior to the hearing.  The matter was listed for final hearing on 15 November 2022.  The August Orders were sent to the parties at the email addresses given for service.  In respect of Counsel for the applicant, the email was sent to the email address included in the footer of the Further Amended Application. 

16. The applicant did not avail himself of the opportunity to file any further amended application and, as at 1 November 2022, no written submissions were filed by the applicant.  The first respondent’s written submissions, due by 8 November 2022, were filed by the first respondent on 11 November 2022.  On Saturday, 12 November 2022, the Court received an email from Counsel for the applicant indicating that due to a change in his email address in the intervening years, he had not been aware of the August Orders.  Counsel for the applicant indicated by this email that of the two grounds contained in the further amended application, ground 1 was no longer pressed.    

17. Early on the morning of 14 November 2022, Counsel for the applicant provided by email to my Chambers, a copy of the applicant’s written submissions.  Later that day, my Chambers received proposed consent orders from the parties seeking to regularise the August Orders with the dates upon which documents had in fact been filed.  At my direction, my Associate informed the parties that any orders which sought to regularise the date for the filing of written submissions would be dealt with at the hearing the following morning. 

18. At hearing on 15 November 2022, the parties were each legally represented, the applicant by his Counsel and the first respondent by a solicitor. At the commencement, noting the correspondence in the lead-up to the hearing, I enquired as to whether Counsel for the applicant was in a position to proceed, without that course prejudicing the applicant. Counsel responded that he was ready, and that the point raised by the applicant’s ground was in narrow compass. Given that the applicant’s Counsel was of the view his client would not be prejudiced by proceeding at that time, I made the proposed consent orders referred to at [16] above, and received the Court Book which was tendered for the applicant and marked Exhibit “1A”. Each of the parties’ representatives made oral submissions at hearing to augment their helpful written submissions. I have been assisted by all the submissions made for the parties. The narrow compass of the remaining ground of review, together with the refined manner in which it was addressed by the practitioners who are highly experienced in this jurisdiction has enabled the Court to be equally distillate in the giving of these reasons.

19. By reference to the Further Amended Application filed on 9 October 2018, ground 1 of which was abandoned (see [16] above) the sole ground for consideration is as follows:

    Ground 2

    In assessing the Applicant’s credibility, the Second Respondent proceeded in a legally unreasonable way, in that its reasoning lacked an evident and intelligible basis. It thus fell into jurisdictional error.

    Particulars

    i.The Applicant arrived in Australia on 30 January 2013 and gave his Irregular Maritime Arrival Interview approximately three weeks later on 20 February 2013.

    ii.The Second Respondent stated that it was not satisfied with the Applicant’s explanation that he did not provide all his claims as his Irregular Maritime Arrival Interview as he was afraid of police, on the basis that he “had almost three weeks to adjust since arriving in Australia”.

    iii.In so stating, the Second Respondent, displayed a total misunderstanding of the processes involved in, and the stressors associated with, the seeking of asylum.

20. As noted by Counsel for the applicant, the second ground turns upon the Authority’s assessment of the applicant’s credibility.  The particulars take issue with the following finding (CB 190 at [33]) (emphasis added):

    I am also not satisfied with the applicant’s explanation that he did not provide all his claims at his Arrival interview as he was afraid of the police, particularly given he now states he came to Australia seeking protection. The applicant had almost three weeks to adjust since arriving in Australia. I understand that the purpose of the Arrival interview is not for the applicant to provide his claims for protection in full; however, the applicant was told it was his opportunity to provide his reasons why he should not be removed from Australia, that he was expected to give true and correct answers and that if the information he gave an any future interview was different this could raise doubts as to his reliability of what he had said. The applicant confirmed he understood the interpreter and understood what had been said.

21. The applicant says that in reaching its decision, the Authority wrongly relied upon three assumptions in lieu of exercising proper intellectual engagement as to whether there was an inconsistency between the statements made by the applicant at the arrival interview and statements he made to the delegate.  These assumptions can be summarised as follows:

    (a)an implicit assumption that an applicant, whose account does not change from one interview to the next, is more likely to be telling the truth than one whose testimony varies from one version to the next;

    (b)that evidence given upon arrival is more likely to be truthful, and that little faith should be placed in subsequent inconsistent testimony, an approach described as “a particularly pernicious practice” citing Orelien v Canada (Minister of Employment and Immigration) [1992] 1 FC 592 (Can. FCA, Nov 22, 1991) at 611;[1] and

    (c)that whatever concerns an applicant may harbour about initially divulging all claims (due to fear of the police) should have been allayed by the time of the arrival interview, because of the effluxion of a period of three weeks.

    [1] Cited In Hathaway and Foster: The Law of Refugee Status (2^nd Ed), Cambridge University Press, Cambridge, 2014, 2014 at 139.

22. At the hearing, Counsel for the applicant acknowledged that these assumptions were not overt, but implicit.  It is submitted for the applicant that a lack of understanding of the cultural nuances or experiences which may incline an applicant to distrust authority figures, can lead to the provision of potentially inconsistent accounts of their claims.  The applicant says this is particularly so in his case when the temporal circumstances of the arrival interview (in this case, three weeks from the applicant’s arrival in Australia) and the political circumstances of the applicant’s home country, are taken into account.

23. In support of the ground of the review, Counsel for the applicant relied on the decision of the Full Federal Court in MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 (MZZJO).  In MZZJO per North, Bromberg and Mortimer JJ at [55] to [56] their Honours observed that:

    We agree with the Federal Circuit Court that the Tribunal’s conclusions were “well open to it” in the sense of being findings about the credibility of the account given by the appellant. They were based only in part on the Tribunal’s questioning of the appellant about agnosticism. They were also based on inconsistencies the Tribunal identified between the appellant’s various accounts of what had happened to him, and about his failure to mention certain matters at his entry interview.

    On the latter issue, some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions…

    They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.

24. The applicant submits that the Authority did not appear to have taken the caution in MZZJO into account, when considering evidence from the applicant’s entry interview, despite the first respondent’s assertion to the Court that this caution was in fact observed.

25. The first respondent relied on the recent Federal Court decision in AAI20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1252 at [84] per Stewart J where his Honour found, to the contrary, that an applicant’s first account of their claims is generally regarded as particularly important, and that the Authority was entitled to take it into account. The first respondent contended that the finding in question in this case (see [20] above) was reasonably open to the Authority for the reasons it gave, and that the Authority's conclusion that the applicant was not a credible witness was a finding of fact for the Authority to determine: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J.

26. The first respondent also relied on Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 per Wigney J at [55] where his Honour stated (emphasis added):

    Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT 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: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]–[67].

27. In reply at hearing Counsel for the applicant submitted that, while accepting that there were other areas of concern held by the Tribunal, those should nevertheless be viewed with caution.  This was said in the context where the Authority found the credibility of the present applicant to be lacking in a fundamental aspect, namely that he did not claim to be a refugee, but rather came to Australia for a better life.  In those circumstances the applicant says the Authority would therefore assess all the applicant’s claims with a “jaundiced eye” and that, accordingly, the error allegedly committed by the Authority was material.

    Consideration

1. In XFKR v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2020) 280 FCR 535 at [27] per Perry, Banks-Smith and Anderson JJ the Court observed that beneficial construction is to be adopted in construing the reasons of the decision-maker, stating:

   In this regard, it is well established that the reasons of an administrative decision-maker “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271 –272 (Brennan CJ, Toohey, McHugh and Gummow JJ (quoting with approval Collector of Customs v Pozzolanic [1993] FCA 456; 43 FCR 280 at 287 )). As such, when it is said that such reasons should be read beneficially, ultimately this means that “a commonsense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the Tribunal was saying”: Fang Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1044 at [14] –[15] (Allsop J (as his Honour then was)).

2. With a beneficial and contextual reading of the Authority’s decision in the present matter, I am not satisfied that there is an error as contended for by the applicant, or at all. 

3. I do not accept that implicit within the Authority’s findings is an assumption that an applicant with a consistent version of events from one interview to the next is inherently more believable than one whose versions are not.  Firstly there is nothing to suggest that the Authority was comparing the present applicant to others.  Secondly, while construed as “inconsistencies”, from one interview to the next, this is strictly not an apt characterisation.  It was the absence of detailed claims having been made early on, but emerging later.  While technically that is an inconsistency in the sense that at the earlier interview there were less detailed claims than later, it is really more akin to principles of recent invention. 

4. In this sense, the second assumption alleged is that evidence given upon arrival is more likely to be truthful, and that little faith should be placed in subsequent, inconsistent testimony. While of course each situation will differ, there is nothing inherently problematic with that particular approach. In fact, it is quite orthodox in fact finding by Tribunals and Courts. Findings about late-raised claims must be considered in their own unique factual context, and also as against any statutory regime which applies. For example, s 5AAA of the Act places the onus on an applicant to specify all particulars of their claims, s 423A (in the Tribunal context) allows for unfavourable inferences to be drawn in relation to later raised claims, and there are of course limitations on providing new information within the Part 7AA regime.

5. To the extent that the Authority’s findings at [33] of its reasons might be imbued as encapsulating concerns about the timing and order in which the detail of the applicant’s claims emerged, these were factors that the Authority was entitled to consider.  Further, this was a concern which had already been expressed by the delegate. 

6. While the Authority might have been more explicit about the requisite caution it was applying, I am satisfied that by the following statement it acknowledged that some leeway should be applied to arrival interviews, in the sense contemplated by MZZJO:

   I understand that the purpose of the Arrival interview is not for the applicant to provide his claims for protection in full; however, the applicant was told it was his opportunity to provide his reasons why he should not be removed from Australia, that he was expected to give true and correct answers and that if the information he gave an any future interview was different this could raise doubts as to his reliability of what he had said. The applicant confirmed he understood the interpreter and understood what had been said.

7. In relation to the reference by the Authority to the applicant having had a three week adjustment period, I am not persuaded that a beneficial and contextual reading of this finding leads to the inference that, whatever concerns the applicant had about raising all his claims due to fear of the police, ought to have entirely evaporated in a three-week period. 

8. Read fairly, the Authority was really just observing that the interview did not take place (as many arrival interviews actually do) immediately upon the applicant’s arrival in Australia. To read more into that finding is to approach the Authority’s decision with an eye keenly attuned to error. It is also not an interpretation supported by the findings which follow it (addressed at [33] above) about applying leniency to a strict approach to the arrival interview itself.

9. Accordingly, I am not persuaded that the manner in which the Authority considered the entry interview or the omissions to which it gave rise, is indicative of error.  In any event the Authority’s reasons provide other, quite thorough, bases upon which it was open to it to reasonably find that the applicant lacked credibility: see SZUXN (supra).  

10. The applicant demonstrated limited knowledge of the BNP, and the Authority found a number of implausible aspects pertaining to the applicant’s membership thereof (CB 186 to 187 at [13] to [17]).  The Authority expressed concerns about the alleged land dispute issue (CB 187 to 188 at [18] to [22]) and the alleged false murder case brought against the applicant (CB 190 at [33]).  Each of those findings were open to the Authority on the material before it.  

11. I do not accept that a fair reading of the Authority’s reasons for decision demonstrates that it approached the question of credibility through a particular prism, or in a “jaundiced” way such that the separate credibility findings otherwise “poisoned the well”.  There is nothing apparent in the Authority's reasoning in relation to the applicant's credibility that would suggest any error in the Authority’s approach: CfCQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [36] to [38] per McKerracher, Griffiths and Rangiah JJ.

12. In all the circumstances of this case, I do not accept that the Authority erred in its findings at [33]. The decision of the Authority is not affected by jurisdictional error. As such, it is a private clause decision and must be dismissed. I will so order.

13. I will hear the parties as to costs.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

Associate:

Dated: 10 February 2023