FOW17 v Minister for Immigration - [2019] FCCA 3155

FEDERAL CIRCUIT COURT OF AUSTRALIA

FOW17 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 3155

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal – protection visa – challenge to Tribunal’s finding that corroborative documents were not genuine – alleged failure to give proper, genuine or realistic consideration – legal unreasonableness – is decision vitiated by illogicality or irrationality – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 5H, 5J, 35A, 36(2), 65, 474, 476

Migration Regulations 1994 (Cth), Sch. 2

Cases cited:

ARG15 v Minister for Immigration & Border Protection (2016) 250 FCR 109

BZD17 v Minister for Immigration & Border Protection [2018] FCAFC 94

Craig v South Australia (1995) 184 CLR 163

Hossain v Minister for Immigration & Border Protection (2018) 92 ALJR 780

Islam v Cash (2015) 148 ALD 132

Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration & Border Protection v SZUXN [2016] FCA 516

Minister for Immigration & Citizenship v Li (2013) 297 ALR 225

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

Minister for Immigration & Ethnic Affairs vWu Shan Liang (1996) 185 CLR

259

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004]

FCAFC 10

Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Re Minister for Immigration & Multicultural Affairs; Ex Parte Applicant

S20/2002 (2002) 77 ALJR 1165

SZLGP v Minister for Immigration & Citizenship (2009) FCR 113

SZVHP v Minister for Immigration & Border Protection [2016] FCA 270

First Applicant:

FOW17

Second Applicant:

FOX17

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 527 of 2017

Judgment of:

Judge Brown

Hearing date:

6 June 2019

Date of Last Submission:

6 June 2019

Delivered at:

Adelaide

Delivered on:

8 November 2019

REPRESENTATION

Counsel for the Applicant:

Mr McDonald-Norman

Solicitors for the Applicant:

MSM Legal

Counsel for the Respondents:

Ms Grenfell

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The First Respondent’s name be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application for review be dismissed.
The Applicants pay the First Respondent’s costs in the amount of seven thousand four hundred and sixty seven dollars ($7,467.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 527 of 2017

FOW17

First Applicant

FOX17

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application seeking the judicial review of a decision of the Administrative Appeals Tribunal[1] not to grant the two applicants concerned protection visas pursuant to the provisions of the Migration Act 1958 (Cth).[2]
[1] Hereinafter referred to as “the AAT” or “the Tribunal”
[2] Hereinafter referred to as “the Act”
The primary applicant is a 51 year old man, who was born in Albania. The secondary applicant is the primary applicant’s 17 year old son. In the decision of the AAT, they are referred to respectively as Applicant A and Applicant B. I will adopt the same practice.
Applicant A holds both Albanian and Italian citizenship. He joined the Albanian police force in April 1991 and served as an officer of the force until he was made redundant in August of 1994. Thereafter, he entered Italy illegally, in December 1994 but was granted a permit to remain in Italy on 25 March 1996. He gained Italian citizenship, as a result of sixteen years residency, sometime in 2012.
Applicant A married, in Albania, in 1994. His wife joined him in Italy in late 1995. They have a 21 year old daughter who remains living in Italy with her mother. Applicant B was born in Italy. He holds Italian citizenship by birth and Albanian citizenship by descent.
A and B arrived in Australia in September of 2015 and on 22 September 2015 applied for the protection of Australia on the basis that Applicant A was at risk of suffering significant harm, if returned to Albania, because he was the subject of a blood feud between him and another Albanian family.
The blood feud was claimed to have come about because, whilst he was in the police force, Applicant A had killed two brothers, in self-defence, in September of 1991, whilst the two individuals concerned were trying to rob him. He was on duty at the time and carried a pistol. He claimed his two assailants were also armed.
Applicant B also claims to be at risk of suffering harm because of his filial relationship to his father. The Tribunal summarised Applicant B’s claim for protection in the following terms:
“Applicant B has consistently stated that he believes that he and his father are at risk of harm in Albania and Italy because of a blood feud. However, he has also consistently stated that he had been unaware that his father was the target of a blood feud until they were on the plane coming to Australia and had no first-hand knowledge of the problems his father claims to have faced. He has also consistently stated that he was unaware of any threats made to any member of his family at any time.”[3]
[3] See Case Book at 316 [54]
The AAT’s finding in respect of Applicant A’s claim for protection can be encapsulated in the following portion of its reasons:
“I do not accept that applicant A killed two robbers in self-defence in September 1991. I find that this claim was concocted to support his application for protection in Australia. As I do not accept that applicant A killed these men in 1991 it follows that I do not accept that the family members of these men wish to kill or harm him or anyone else in his family.”[4]
[4] Ibid at 312 [24]
The applicants rely on a single ground of review, which turns on findings of fact the AAT made in respect of three documents supplied by Applicant A which he asserted corroborated his claim that he had killed the two individuals concerned in self-defence and therefore was subject to the threat of death, in Albania, because of the Albanian custom of blood feud.
The first document was purportedly issued under the hand of the “Village Chief” of the Municipality of Postribe, in the Shkoder District of Albania on 10 June 1996.[5] It is typewritten on a letter head to this effect and bears the signature and seal of Adem Isufi. The relevant portions read as follows:
[5] Ibid at 189–190
“I hereby certify that citizen, [A] born in the village of 'Ura e Shtrenjte' in the Municipality of Postribe, has suffered a tragic event on the night of 22.09.1991.
On the night of 22.09.1991, in an area of Shkoder called the aviation field, at around 19.30 two masked men have emerged in front of this citizen to rob him. During a struggle both persons have died at the scene and for this reason the citizen Ismail Fikaj was called into the investigation office on the 25. 09.1991 and was declared innocent three days after, on the 28. 09.1991. Both victims were the sons of Imer Grudes and Selim Coku from 'Guci e Re' village and 'Shtoj i Ri' of 'Rrethina' Municipality in the Shkoder District.
This certificate is issued at the request of the interested party to be used when needed.”
The second document is described as a portion of a police report for 25 September 1991 and bears a stamp which indicates that it is a certified photocopy of an original document held in the archives of the Albanian Ministry of Albanian Affairs. It is signed by a person, Flamur Arapi, who is designated as the Supervisor of the Task Force.[6]Its relevant portions reads as follows:
“On 25.09.1991, [Applicant A], a police officer from the department 732 in Shkoder, was detained because he was the perpetrator of the murder of two people in the aviation field on 23.09.91. The policeman killed them in self-defense (sic) because they attacked him in order to take his stereo and other items by shooting him with a Nagant revolver. At the investigation office there are reports from 5 other people about robberies undertaken by the two persons killed.”
[6] Ibid at 203–204
The third document is dated at Tirane on 26 October 2017 and executed by Julia Done, who is described as the general director of the Ministry of Interior.[7] It is also signed and sealed. Its relevant portions read as follows:
“In reply to your request, dated 26.10.2017, we inform you that referring to the data that we possess, of DPB Shkoder, is said that ‘…on 25.09.1991, was detained [Applicant A] policeman of Unit 732 Shkoder, because he is the author of murder of two persons in the field of aviation, on 23.09.1991. The policeman murdered them in the condition of self-defense (sic) because they attacked him to take his tape recorder and other things firing with a nagant pistol. There are denunciations to the police from 5 other persons, for robbery of the two murdered people’.”
[7] Ibid at 303–304
A delegate of the Minister for Immigration and Border Protection[8] declined to grant the visas in question on 26 June 2017. As a consequence, the applicants applied for a review by the Tribunal on 2 July 2017. Accordingly, the Ministry of Interior letter was not before the delegate.
[8] As the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs was previously known
The applicants were invited to appear before the Tribunal to give evidence and make any submissions on 9 October 2017. This hearing was then adjourned part heard until 25 October 2017 so that further documents could be provided by the applicants to the Tribunal for its consideration. The Ministry of Interior letter was provided to the Tribunal in this way.
The Tribunal made the following finding in respect of the documents which were claimed to corroborate the applicant’s account of the 1991 shooting:
“In reaching this conclusion I have considered the reports on the claimed 1991 shooting which applicant A provided to the Department. The first is dated 10 June 1996 and signed by the village chief of the Municipality of Postribe Shkoder District. It states that on 22 September 1991 two men attempted to rob applicant A were killed. Applicant A was called to the investigation office on 25 September 1991 and three days later he was declared innocent. The second appears to be an extract from a police report dated 25 September 1991 which states that applicant A was detained because he murdered two people on 23 September 1991. It adds that he shot the men in self-defence when they attempted to steal his stereo. At the hearing I noted that the documents which applicant A had provided could easily have been manufactured by anyone with a typewriter or computer. Applicant A maintained that the documents were genuine.
Following the hearing applicant A provided a letter dated 25 October 2017. It is on letterhead of the General Directorate of the Ministry of Interior in Albania and states that applicant A was detained on 25 September 1991 because he had murdered two people on 23 September 1991, but adds that applicant A was defending himself from the men who were attempting to steal his take tape recorder and other items.
While applicant A spoke about an investigation following the shooting in 1991 in his written and oral submissions to the Department he made no mention of being detained by the police or investigated the local municipality when the 1991 incident was discussed at the hearing. I also note that the 1996 letter describes applicant A as a civilian when according to his evidence he was a serving police officer. As noted all three documents are copies of typewritten letters with simple letterheads which could easily have been manufactured by anyone. In these circumstances and in light of my findings regarding applicant A’s credibility set out above and below, I have given them no weight.” [9]
[9] See Case Book at 312–313 [25]–[27]
These findings were made in conjunction with other findings of the Tribunal, which characterised Applicant A’s evidence as “vague, somewhat contradictory and generally unpersuasive”. It further found that his account of the 1991 incident lacked credibility as:
“It is not plausible that robbers would have attacked an armed uniformed police officer to steal a radio cassette player. More significantly, it is not plausible that an armed police officer would have left the scene of an assault and failed to report the incident to anyone until the following day.
In reaching this conclusion I have considered applicant A’s explanation that he left the scene because he was fearful. However, according to his evidence, his assailant’s gun had not worked and he was able to shoot both men who had accosted him dead before leaving the scene. Even if he was not aware they were dead at the time, it is clear that they cannot have been pursuing him. And if he believed that the robbers were still alive, it is not plausible that he would have left them at large with a gun without reporting the incident to his superiors or at least telling his cousin who was also a police officer and who could have reported the incident on his behalf.”[10]
[10] Ibid at 312 [22]–[23]
It is the submission of counsel for the applicants, Mr McDonald-Norman, that the Tribunal’s rejection of the three corroborative documents were premised on legally unreasonable conclusions. In addition, he submits that the findings, made by the Tribunal, in respect of these documents were fundamental to its ultimate conclusion regarding Applicant A’s credibility. In these circumstances, he contends that the Tribunal has failed to exercise the jurisdiction conferred upon it and its decision is vitiated by jurisdictional error.
Essentially, Mr McDonald-Norman contends that the findings that the documents in question should be given no weight are based on conclusions which, when subject to analysis, are unreasonable, illogical and irrational or alternatively are findings not capable of being supported on the evidence available.
These fallacious premises can be summarised as follows:
·The reference to Applicant A in the 1996 document as a citizen, when he was, at relevant times, a serving police officer;
·The failure of Applicant A to mention in his written and oral submissions to the delegate the fact that he had been detained by police following the 1991 incident; and
·The assertion that each of the documents in question could be easily fabricated.
In all these circumstances, Mr McDonald-Norman submits that the Tribunal failed to give proper, genuine and realistic consideration to whether the three sets of corroborative documents were genuine because it made assumptions about each of them which were either incorrect or unwarranted. In the alternative, he contends that the decision to give each of the documents no weight was unreasonable, irrational or illogical.
If the Tribunal had considered the documents, in a legally reasonable way, it would not have rejected them and therefore it would not have been in a position to conclude that the applicants were not subject to a blood feud.

The legal framework

Pursuant to section 65 of the Act, the Minister is required to grant any visa arising under the Act, if satisfied that the conditions attaching to such visa have been satisfied by the applicant concerned.
As previously indicated, the applicants have each applied for a protection visa. Section 35A of the Act creates two classes of protection visas known respectively as Safe Haven Enterprise Visas “SHEV” and Temporary Protection Visas “TPV”.
In respect of each such protection visa, the criteria required to be satisfied are set out in Schedule 2 to the Migration Regulations 1994. In general terms, any applicant is required to satisfy the primary criterion contained in section 36(2)(a) or (aa) of the Act.
Section 36(2)(a) requires an applicant to satisfy the Minister that he or she is a refugee and therefore owed protective obligations by Australia. The expression refugee is defined in section 5H and provides a person is a refugee if that person:
“in the case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country;”
The expression well-founded fear of persecution is defined by section 5J and requires the applicant concerned:
·to fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·be subject to a real chance of being persecuted for one of these reasons, if returned from Australia; and
·the persecution in question would involve the applicant suffering serious harm.
These sections reflect the definition appearing in the Refugees Convention, to which Australia is a signatory and which provides that a refugee is a person who:
“…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Pursuant to section 36(2)(aa), a person is entitled to a protection visa, if there are substantial grounds for believing that if he or she is removed from Australia and returned to his or her country of origin, there is a real risk that he or she will suffer significant harm.
This is known as the complementary protection criterion. It codifies Australia’s international treaty obligations not to subject a person to the risk of non-refoulement – that is the risk of suffering significant harm if returned to a particular country.
Subsection (2A) defines significant harm. It includes the relevant applicant for protection suffering all or any of the following circumstances:
·being arbitrarily deprived of his or her life;
·being subject to the death penalty;
·being subject to torture;
·being subjected to cruel or inhumane treatment or punishment; or
·being subject to degrading treatment or punishment.
Pursuant to section 474 of the Act, a decision of an administrative nature, relating to the refusal to grant a visa under the Act, is classified as a privative clause decision. As such, it cannot be challenged in any court. The current decision, arising in this case, is a privative clause decision.
However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by administrative decision-makers, which are affected by jurisdictional error or have been made in bad faith.[11]
[11] See Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Pursuant to section 476(1) of the Act, the Federal Circuit Court has “the same original jurisdiction in relation to migration decisions as the High Court under paragraph 75(v) of the Constitution.” This provision of the Constitution confers original jurisdiction on the High Court in proceedings in which a prerogative writ is sought against an officer of the Commonwealth.
Accordingly, the court has the authority to grant the relief sought by the applicants by way of writs of certiorari and mandamus to quash the relevant Tribunal decision and require the re-hearing of the review but only in the event an error of jurisdiction is established.

In general terms, an administrative decision maker exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[12]
[12] See Craig v South Australia (1995) 184 CLR 163
In Minister for Immigration & Citizenship v Li[13] the plurality of the High Court (Hayne, Kiefel & Bell JJ) determined that a decision which lacked “an evident and intelligible justification” was liable to be characterised as an unreasonable one and therefore one which did not involve the proper exercise of the jurisdiction conferred upon the relevant decision-maker. As such, decisions lacking such an intelligible justification are also liable to be vitiated on the basis of jurisdictional error.
[13] Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [75]–[76]
Following on from Li, in Minister for Immigration & Border Protection v Singh, the Full Court identified two distinct areas in which a tribunal may fail to discharge the jurisdiction conferred upon it by acting in a manner which is legally unreasonable.
Firstly, such a tribunal discharges its reasoning functions in a way which is unreasonable in the sense that it is illogical or otherwise lacking in intelligibility. This refers to the process of reasoning, utilised by the relevant decision-maker concerned, in reaching a decision. It is focussed on process, including the application of any relevant statutory criteria to such a decision.
Secondly, the outcome of the proceedings is coloured by some species of caprice or arbitrariness, which renders the decision legally unreasonable, although the applicable jurisdictional questions have been addressed by the decision-maker in question. This second area is outcome focussed.[14]
[14] Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44]
Essentially, in conducting its supervisory jurisdiction over a delegated decision-maker, the court is required to look at the outcome of the exercise of the power delegated to ascertain whether it is one characterised by an extreme level of arbitrariness, which renders the decision no decision at all as it is outside the range of possible outcomes which are defensible in respect of both the facts and the law.
It is also clear, from relevant Federal Court authority, that the level of illogicality or unreasonableness necessary to found jurisdictional error must be “extreme” not merely a situation where the minds of potential decision makers (and indeed a court on judicial review) might differ as to the outcome of the issue in question.[15] There must be no doubt that the decision sought to be vitiated is, on its face, axiomatically unreasonable.
[15] See Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
In order to be successful in their application for review, it will be necessary for the applicants to demonstrate an error of jurisdiction arising in the decision of the AAT. This court is not able to substitute its own discretion for that of the Tribunal or embark upon its own process of merits reviewing, which involves it making findings of fact in substitution for those of the Tribunal.
In Minister for Immigration & Ethnic Affairs vWu Shan Liang[16] the High Court warned that a court, such as this one, called upon to review a decision regarding refugee status:
“Must beware of turning a review of the decisions of the decision-maker upon proper principles into a reconsideration of the merits of the decision.”
As such, this court is required to give the reasons of the Tribunal a beneficial construction, which does not involve a degree of over-zealous scrutiny, which searches out error.
[16] Minister for Immigration & Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259 at [31]

The ground of review

The applicants filed an amended application on 5 November 2018. The single ground and the particulars which support it are as follows:
“1. The decision of the second respondent (“the Tribunal”) was affected by jurisdictional error in that, in the Tribunal’s assessment of the corroborative documents produced by the first applicant in support of his claim, namely:
1.1the certificate dated 10 June 1996 (”Certificate”);
1.2the police report relating to 25 September 1991 (“Police Report”); and
1.3the letter from the Ministry of Interior of Albania dated 26 October 2017 (“Ministry of Interior Letter”),
the Tribunal:
1.4failed to give proper, genuine or realistic consideration to whether the corroborative documents were genuine; and
1.5gave the documents no weight for reasons that were unreasonable, illogical, irrational and/or not reasonably capable of supporting the finding.
Particulars:
a.The Tribunal gave the Certificate, the Police Report and the Ministry of Interior Letter “no weight” in part because the Tribunal incorrectly considered that the Certificate “describes applicant A as a civilian when according to his evidence he was a serving police officer”, when the true position is that the Certificate described applicant A as “citizen” and not at all as a “civilian”. There was no basis for this finding in the Certificate or other material before the Tribunal.
b.The Tribunal gave the Certificate, the Police Report and the Ministry of Interior letter “no weight” in part based on its findings that they “could easily have been manufactured by anyone with a typewriter or computer” and were “copies of typewritten letters with simple letterhead which could easily have been manufactured by anyone”, when there was no basis for such findings in the nature of the documents.”

Background

Applicant A was born in Shkoder, Albania on 15 January 1966. On his original application for a protection visa he indicated that the reason he was seeking the protection of Australia was that “they looking to kill me and my family because of blood feud”.
Applicant B was born in Molfetta, Italy on 28 April 2000. He gave as his reason for seeking protection on his original application “because they are looking to kill me and my family because of blood feud”.
In a subsequent application, completed on 28 July 2017, Applicant A claimed as follows:
“In September 1991 (22/9/91) when I was employed as a police officer in Albania I was held up and threatened by three criminals. I pulled out my police issued weapon and shot them in self-defence. Their families then declared a blood feud and the Government could not guarantee me protection so I fled to Italy and have lived there ever since. But now the children of the dead men are old enough and they are seeking blood revenge on me and my son.
I and my son will be shot and killed. There is no doubt because under the Kanun ‘blood demands blood’. Both of us must be killed because three men died”.[17]
[17] See Case Book at 144
The delegate summarised what Applicant A said in his interview, with Departmental Officers, on arrival in Australia:
·He had been ambushed on his way to work in 1991 by two assailants, who had attempted to steal his pistol. In self-defence, he had killed the two individuals;
·He had departed Albania straight away for Italy and his persecutors had been unaware of his whereabouts until recently;
·In August of 2015, a nephew had married in Albania. He had not attended but the event had led to his whereabouts in Italy becoming known to a relative of one of the deceased individuals and he feared his life was in danger in Italy;
·Against this background he had decided to leave Italy, with his son, in August of 2015.
In his protection visa interview, Applicant A had indicated that:
·On 22 September 1991, whilst a serving police officer, he had been threatened by three criminals, whom he had shot in self-defence;
·Initially, he has sought safety in Tirana but did not believe that he was safe there;
·Against this background he had fled Tirana for Italy, in December of 1994;
·He did not believe the authorities in Albania would be able to protect him; and
·It was easy for Albanians to obtain visas for other European countries and therefore he would not be safe if he lived in another member state of the European Union.
In a submission following interview, Applicant A indicated he had become frightened for his safely when he discovered a person who is married to a brother of one of the victims was living nearby to his home in Italy and was sending information about his family back to Albania.
The delegate found as follows:
·The applicant had departed Albania in 1994 and had lived in Italy until September 2015. During this period he had travelled throughout Europe, including to Albania on two occasions;
·It was accepted that Applicant A had been attacked by two assailants, whom he had killed, in September 1991. The incident was investigated and he was found not guilty of murder;
·Country information indicated the customary law of blood feuds, collectively known as Kanun still had application in Albania;
·The applicants were each subject to a blood feud;
·The applicants had family members living in Italy and were concerned about their safety;
·However, no family member had been subject to any direct interest from anyone involved in the blood feud from Albania;
·The applicants had not sought protection in another EU country;
·Applicant A had operated a successful business in Italy for many years; and
·Applicant A’s evidence regarding his departure for Australia was inconsistent.
The delegate concluded that the applicant did not face a real chance of persecution in Italy and therefore declined to consider whether there was any such chance if they returned to Albania. The delegate reached a similar conclusion in respect of the complementary protection claims.

Findings of the Tribunal

The AAT rejected that the applicants would face a risk of serious or significant harm upon return to Italy, as it did not accept the fact that the applicants were the targets of a blood feud.
The Tribunal placed considerable emphasis on what it characterised as the implausibility and inconsistency of Applicant A’s evidence. It noted the following inconsistencies:[18]
[18] See Case Book at 311–312 [20]
·His initial claim was that he was attacked by two men seeking to steal his pistol;
·In a statement dated 22 September 2015, he said he had been badly beaten and one of his assailants had attempted to shoot him;
·He had initially said he fled to Tirana but at a later stage, he had said he immediately fled to Italy;
·In a statement dated 24 March 2016, he claimed he had been attacked by three men whom he had shot in self-defence;
·To the delegate he had stated there were two assailants, who had forced him to the ground and one of whom had fired his gun. Applicant A had shot one of them in the leg. He had not reported the incident;
·At hearing before the Tribunal, Applicant A indicated earlier statements had been a mistake and he had been attacked at an airfield by two men, whilst he had been in uniform;
·The men attempted to steal a radio cassette; which was not expensive;
·They had fired three shots at his chest but their guns were not working and he was not injured;
·He then shot the two men with his own gun;
·He did not check if either was alive but fled to a cousin’s house because he was frightened; and
·He reported the incident the next day to police, when he discovered both men were dead.
It is clear that the Tribunal put to Applicant A, at the hearing, it found his account of the event of the alleged shooting to be implausible and sought his comments about the matter. The Tribunal summarised this aspect of the evidence in the following terms:
“I advised applicant A that I found it difficult to accept that robbers would attempt to steal a relatively inexpensive item from a uniformed police officer who was carrying a gun. He said that the robbers were not normal people. I advised him that I also had great difficulty accepting that an armed police officer who had been assaulted would have left the scene of the crime without checking the state of the men who were clearly armed and dangerous and could have been a risk to others and that I also had difficulty accepting that a police officer who had been assaulted by armed robbers would have failed to report the incident to his superiors or anyone else until the following day. He said that he had been in shock and fearful and his cousin did not have a telephone.”[19]
[19] Ibid at 312 [22]
In this context, the Tribunal made its primary findings regarding Applicant A’s claims for protection, on which his son’s claims also depended. I have earlier set out these findings verbatim but they can be summarised as follows:
·Applicant A’s evidence was confused and unconvincing;
·It was implausible and far-fetched that armed robbers would have attacked an armed police officer to steal a radio cassette player;
·It was noted as more significantly implausible that an armed police officer would have left the scene of a serious crime and failed to report it until the following day;
·The Tribunal rejected Applicant A’s explanation that he had left the scene because he was frightened on account of the following:
·Even if he had been unaware the assailants were dead, it was apparent they were not in a position to pursue him;
·In the alternative, if he believed they were still alive it was implausible that he would have left armed robbers behind without then immediately reporting that fact to someone in authority.
In these circumstances the Tribunal did not accept that the applicants were subject to a blood feud. However, nonetheless the Tribunal also went on to investigate other aspects of Applicant A’s claim for protection, which turned on his claims of being subject to adverse interest after the alleged shooting incident of September 1991.
In this context, the Tribunal made other adverse findings regarding the credibility of Applicant A, which can be summarised as follows:
·Applicant A claimed to the delegate that he had seen the brother of one of the individuals killed by him, on a bus, three days after he had got married in 1994. He believed the person was armed and would have killed him if he had seen Applicant A, who was at the back of the bus. The Tribunal found the claim to be implausible and noted that it had not been repeated at the hearing before it.[20]
·Applicant A also claimed that, whilst he had been in hiding, he had been followed by other people who wanted to kill him. However, he had not been able to provide further details of these incidents. This lack of elaboration caused the Tribunal to be dubious about this aspect of the claim.[21]
·The Tribunal noted that Applicant A had claimed towards the end of the hearing before it that he sought the forgiveness of the deceased persons families in 1991 and 1993 through the intervention of a village elder. The Tribunal indicated, given the potential importance of the issue, that it was surprising that it had not been raised earlier. This circumstance led the Tribunal to view the matter as another example of concoction.[22]
[20] Ibid at 313 [29]
[21] Ibid at 313 [30]
[22] Ibid at 313 [31]
The Tribunal was also concerned about what it considered to be inconsistencies in Applicant A’s account of why he had decided to leave Italy, for Australia, in September of 2015, which can be summarised as follows:
·On arrival in Australia, Applicant A had said the brother-in-law of one of the victims had discovered his whereabouts as a consequence of his nephew attending a wedding in Italy in August 2015 and come looking for him.
·In contrast, in his original application, he had said he left Italy because it was easy for Albanians to travel to Italy.
·To the delegate he had said his sister had attended a wedding in Albania and told him people were looking for him.
·In a submission to the Tribunal Applicant A indicated that he had not received any direct threats whilst living in Italy but he had received a warning from a neighbour.
·At hearing, he indicated that some relatives had travelled to Albania to attend a wedding, where they had been subject to a road block, which he assumed had been placed there by people who wanted to harm him.
·The Tribunal doubted the truth of the account of the roadblock.
The Tribunal also noted that it had reminded Applicant A of several aspects of his case as presented earlier, which he himself had not sought to elicit. This also caused the AAT to doubt Applicant A’s credibility. These included his claim that he had learned a relative of one of the deceased individuals was living near his home in Italy.
The Tribunal also rejected evidence provided by Applicant A’s wife that she had been subject to threats in Italy in the form of an unsigned letter. The Tribunal also doubted other aspects of Applicant A’s case involving him having claimed to have travelled to Albania in August 2015 in an attempt to end the blood feud through a process of reconciliation. The Tribunal found all these aspects of the claim to be concocted.
In short, the AAT reached the conclusion that Applicant A had not shot and killed two men in Albania in 1991 and not been the target of any blood feud since that time on the basis of a comprehensive rejection of practically every aspect of his claim. In my view, it is in that context that the Tribunal’s approach to the three possibly corroborative documents must be examined.

Discussion

As I understand the applicants’ case it is that the findings regarding the unreliability of the three corroborative documents was one which was both collateral and integral to its finding regarding the non-existence of the 1991 shooting incident. Therefore, if there is a logical failing in respect of the documents, the principle finding cannot be permitted to stand.
In this context, reliance is placed on the factual circumstances outlined by Logan J in SZLGP v Minister for Immigration & Citizenship,[23] which concerned a Tribunal finding that a particular letter had been concocted because no explanation had been given for it having come into the possession of the applicant concerned. Examination of the document in question indicated that a duplicate of it had, in fact, been sent to the applicant.
[23] SZLGP v Minister for Immigration & Citizenship (2009) FCR 113 at 126 [37]
Accordingly, the rejection of the letter and the finding of its concoction were based on a premise which was demonstrably erroneous. Logan J said as follows:
“… the adjectives ‘ignorant’, ‘arbitrary’ and ‘perverse’ aptly apply to a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document. What follows from this…is that the Tribunal has failed to attend conscientiously and appropriately to its statutory obligations…”
Accordingly, in my view, the materiality of the false premise was central to the failure of jurisdiction. In this case, the Tribunal doubted the Applicant A’s credibility on a multiplicity of premises, particularly that it doubted armed robbers would attack an armed police officer to steal his radio cassette recorder.
In addition, in my view, this current case can be distinguished from SZLGP in the sense that the applicants are not able to establish that the Tribunal was, in some way, lax or lacking in conscientiousness in how it approached the documents in question, which it examined and rejected in the context of its adverse credibility findings.

Mr McDonald-Norman also relies on the analysis provided by the Full Court in ARG15 v Minister for Immigration & Border Protection.[24] In the case the Full Court accepted that the reasons provided by the relevant decision maker were cumulative in nature as a consequence of its use of the word further to introduce each subsequent adverse finding or
“In other words, the Tribunal relied upon a series of adverse findings in coming to its ultimate conclusion. No single finding was relied upon by the Tribunal in coming to that conclusion. That is made clear by the fact that in [its] final sentence the Tribunal refers to “all of the reasons given above”, which necessarily draws together all the various strands which are identified in that paragraph.”
[24] ARG15 v Minister for Immigration & Border Protection (2016) 250 FCR 109 at 128–129
I do not agree that this line of analysis is applicable to a fair reading of the Tribunal’s reasoning in the current matter. In my view, this was not a case where there was an accumulation of adverse findings which, when taken together led to a rejection of the claim. It is not analogous to a comparison to the links of a chain, where if one of them fails, the entirety of the chain is broken.
In this case, the Tribunal doubted Applicant A’s credibility because, after analysis, it considered the reason that he claimed to be the subject of a blood feud to be highly improbable. In my view, this was a finding within its jurisdiction. Given the strength of this finding, it was impossible for it to consider the documents in question to be genuine. This is not in itself a reason for characterising the decision-making process as lacking rationality.
The primary reason the applicants’ case was rejected was that the Tribunal did not believe Applicant A’s oral evidence to it, when it considered the various accounts which he had provided and the probability that what he said had occurred to him did in fact occur. This was its jurisdictional task.
However, it could not ignore the documents asserted to be corroborative but this did not necessarily mean the documents in question were central to any finding required to be made by the Tribunal. As the Full Court observed in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs:[25]
“Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.”
[25] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [13] per Gray, Tamberlin & Lander JJ
Rather, as it was entitled to do, the AAT, after having examined the documents, found reasons within them, which supported its primary characterisation of the applicants’ case as being improbable and unbelievable, namely there was some level of inconsistency in the descriptor of Applicant A and more importantly, on their face, the documents were susceptible to being readily fabricated.
These are findings of fact. They may be consistent with the assessment of the Tribunal that the applicants are not to be believed but having found Applicant A’s account of the shooting to be unbelievable, the findings in respect of the other documents were not necessary for the Tribunal to make its assessment of credibility of the shooting account.
In this sense, in my view, the situation confronting the Tribunal was not one which was analogous to that described by the Full Court in ARG15 v Minister for Immigration and Border Protection. A fair reading of the Tribunal’s reasons, in my view, indicate that it reached its conclusion regarding the credibility of Applicant A’s account of the shooting after it had analysed his oral evidence and earlier statements about it.
However, it could not ignore the documentary evidence provided by the applicants as this was a central aspect of their case. However, in my view, there is nothing to indicate that the Tribunal’s rejection of the veracity of those documents was necessary for it to reach its credibility findings,[26] which were not necessarily the result of any cumulative process of reasoning. The findings were supportive of one another but not dependent on each other.
[26] Summarised at Case Book 312 [24]
In my view, this situation is consistent with the one described by Rares J in SZVHP v Minister for Immigration & Border Protection[27] as follows:
“Where a court makes a finding that a person’s evidence is not credible for a number of reasons that it then states, one of which is shown to be erroneous, an appeal court will consider whether the erroneous finding was a matter of central logical importance to the overall finding about credibility or whether it merely provided additional support for a conclusion as to credibility that the judge had reached on other grounds. Where the error is not one about some fact vital to the resolution of the case or is not of such a nature as to have a cascading effect on the judge’s resolution of the larger issues in the case, the error will not undermine the overall finding…”
[27] SZVHP v Minister for Immigration & Border Protection [2016] FCA 270 at 38
In this case, in my view, the assessment of Applicant A’s credit was reached by the Tribunal on the basis of its rejection of the plausibility of his account of the shooting incident and how it analysed his behaviour in the period which had elapsed since. To utilise Rares J’s terminology, these were the findings of central logical importance to found the Tribunal’s conclusions.
Clearly, if the Tribunal had considered that there was a possibility the documents were genuine, this may have had implications for its assessment of credibility but it did not do so. Rares J went on to speak of errors or potential errors, which did not hold central logical importance to the jurisdictional finding required in the case.
In this context, the characterisation of Applicant A as a civilian in the Tribunal’s reasons, when the Village Chief’s letter of 1996 described him as a citizen is, in my view, to be characterised as a potential or non-material error. A policeman may be both a citizen and policeman; on the other hand, a policeman is not easily characterised as a civilian.
The Tribunal may have made an error in how it recorded the contents of the translation of the 1996 Village Chief’s letter in its attribution of Applicant A. However, error alone is not sufficient to found an absence of jurisdiction. As the plurality of the High Court (Kiefel CJ, Gageler & Keane JJ) said in Hossain v Minister for Immigration & Border Protection[28] “jurisdictional error is an expression not simply of the existence of an error but of the gravity of that error”.
[28] Hossain v Minister for Immigration & Border Protection (2018) 92 ALJR 780 at 787 [25]
The error attributed to the Tribunal, in this regard, in my view, cannot be characterised as being an error of such gravity as to have vitiated jurisdiction, particularly in the light of other findings regarding the overall credibility of Applicant A’s account of the 1991 shooting incident.
Mr McDonald-Norman’s second criticism of the approach taken to the corroborative documents by the AAT is that it failed to give the documents a proper level of consideration, which can be characterised as being legally unreasonable. He contends that the AAT merely rejected the corroborative documents without providing a proper level of explanation as to why it did so, necessarily leaving his clients in a situation in which they must be uncertain as to why the documents were deemed to be concocted.
Essentially, it is not sufficient for a decision maker to reject a piece of evidence without engaging in a process of active intellectual engagement, to such an extent that the party advancing that evidence is able to glean what role, if any, that level of engagement played in the ultimate decision.
Flick J in Islam v Cash[29] said as follows:
“Although the formulation of a “proper, genuine and realistic” consideration has been the focus of judicial expressions of caution…it nevertheless remains a useful touchstone to ensure that consideration given to a particular matter is such consideration as is required by law.” Citations removed
[29] Islam v Cash (2015) 148 ALD 132 at [14]
In BZD17 v Minister for Immigration & Border Protection[30] the Full Court considered that a failure to provide an active intellectual engagement could be demonstrated by such things as:
·A failure to engage with the substance of a submission as demonstrated by it being merely noted rather than acted upon; and
·The making of unwarranted assumptions.
Such actions provide the potential for the establishment of legal unreasonableness on the basis a decision maker has reached a particular conclusion on an illogical or irrational basis.
[30] BZD17 v Minister for Immigration & Border Protection [2018] FCAFC 94 at [36]
However, courts, such as this one, are directed to apply a significant level of caution to the consideration of both whether a primary decision maker has made a finding characterised as being legally unreasonable in respect of a credit finding or in respect of a failure to give aspects of evidence a proper, genuine and realistic consideration because of the risks of inadvertently transforming a judicial review into one of merits review.
In this context, the following comments of Crennan & Bell JJ in Minister for Immigration & Citizenship v SZMDS[31] are germane:
“What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
[31] Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR611 at 649 [135]
Similarly, in Minister for Immigration & Border Protection v SZUXN [32] Wigney J said as follows in respect of the issue of applying principles relating to legal unreasonableness to a primary decision maker’s finding of fact in respect of an issue of credit:
“Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error… That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.”
[32] Minister for Immigration & Border Protection v SZUXN [2016] FCA 516
In my view, the AAT did engage with the material substance of the applicants’ claim for protection. It was required to determine whether Applicant A was the subject of a blood feud because he had killed two individuals, in Albania, in 1991. A fair reading of the reasons indicate why the Tribunal found the claim to be implausible.
This conclusion was reached after a close analysis of the facts available to it. The Tribunal then engaged with the documents, which the applicants asserted corroborated their rejected account. As a matter of logic, having found the account unbelievable, it would have been impossible for the Tribunal to have accepted the documents as being accurate in respect of the events they purported to report. The two pieces of evidence are mutually exclusive of one another. In these circumstances, in my view, the rejection of the documents cannot be characterised as being based on an unwarranted assumption.
As it was entitled to do, in these circumstances, having noted that, on their face, such documents could easily have been manufactured it elected to give them no weight. This assessment of weight was subject to the following paragraph of the reasons, which in my view clearly indicates that the documents were not central to the Tribunal’s deliberations. The paragraph reads as follows:
“Furthermore, even if I accepted that applicant A had killed two men in self-defence 1991 [which I do not], the evidence he gave regarding the events which followed this incident were vague, somewhat contradictory and generally unpersuasive. For the reasons set out below, I find also find these claims to be lacking in credibility.” [33]
[33] See Case Book at 313 [28]
Having rejected Applicant A’s account of the shooting, in my view, the Tribunal was not required (and nor could it) explain the provenance of the documents concerned. Or to put the same proposition in a different way - the rejection of the central tenet of Applicant A’s claim, did not necessitate the Tribunal to provide a definitive explanation as to why the documents were or were not forged.
These are matters about which it could only conjecture, which it did – the documents in question were, on their face, easily susceptible to being copied. In these circumstances, in my view, the only conclusion which the Tribunal could reach is that they should be given no weight because it was impossible that their contents could be consistent with what it had assessed to be the applicants’ implausible account of the shooting incident.
In my view, the following comments of Gleeson CJ in Re Minister for Immigration & Multicultural Affairs; Ex Parte Applicant S20/2002[34] are apposite to this situation:
“In my view, all that the member was saying was that, for reasons already given at length, she found the applicant/appellant's story implausible, and in some important respects unbelievable, and that she also rejected the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons that she had already given for rejecting the claim she was considering. The member could have expressed herself more clearly. It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.”
[34] Re Minister for Immigration & Multicultural Affairs; Ex Parte Applicant S20/2002 (2002) 77 ALJR 1165 at 1169
In all these circumstances, I do not consider that the approach taken by the Tribunal to the various documents asserted by the applicants to be corroborative of Applicant A’s claim for protection can be characterised as one tainted by legal unreasonableness in either the sense the document did not receive a proper level of intellectual scrutiny or that the decision to give them no weight is one which can be characterised as being illogical or irrational.
In these circumstances, the application for review should be dismissed. The Minister seeks the costs of the proceedings. The usual rule is that costs follow the event. I propose that the applicants pay the costs pursuant to the Court’s schedule of costs in the amount of $7,647.00.
For all these reasons the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding ninety eight (98) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate:

Date: 8 November 2019