MZARD v Minister for Immigration and Border Protection
[2017] FCCA 343
•1 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZARD & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 343 |
| Catchwords: CREDIBILITY – CQG15 v MIBP – wholesale rejection of applicant’s evidence – no sensible consideration of the evidence against which that rejection was made. LEGAL UNREASONABLENESS – whether Tribunal engaged in – error demonstrated. |
| Legislation: Migration Act 1958 (Cth), s.36 |
| Cases cited: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105 Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 Minister for Immigration and Citizenship v Li and Anor (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 |
| First Applicant: | MZARD |
| Second Applicant: | MZARE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 150 of 2015 |
| Judgment of: | Judge Wilson |
| Hearing date: | 16 November 2016 |
| Date of Last Submission: | 16 November 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 1 March 2017 |
REPRESENTATION
| Counsel for the Applicants: | Mr D. Godwin |
| Solicitors for the Applicants: | Teleo Lawyers |
| Counsel for the First Respondent: | Ms C. Symons |
| Solicitors for the First Respondent: | DLA Piper Australia |
ORDERS
The name of the second respondent is amended to “Administrative Appeals Tribunal”.
An order in the nature of a writ of certiorari issue directed to the second respondent quashing the decision made on 23 December 2014.
An order in the nature of a writ of mandamus issue directing the
second respondent to hear and determine the application for review according to law.
The Minister pay the applicants’ costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 150 of 2015
| MZARD |
First Applicant
| MZARE |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This case raised an important matter concerning the adequacy of the credit findings of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), having regard to the relatively recent observations of the Full Court of the Federal Court of Australia in CQG15 v Minister for Immigration and Border Protection[1] (“CQG15”).
[1] [2016] FCAFC 146.
In essence, the Minister’s delegate accepted the first applicant’s version of a particular event. The Tribunal did not question or debate that version of events in any way with the first applicant. At the invitation of the Tribunal, the first applicant relied on a much more elaborate version of the same event in a statutory declaration made after the Tribunal hearing.[2] The Tribunal did not question the first applicant about that version either. Instead, the Tribunal reasoned that the version given in the statutory declaration was so much more detailed when compared to the version of the same incident in the pre-hearing material that the Tribunal entertained serious doubts about the
first applicant’s credibility and in the end, the Tribunal affirmed the delegate’s decision to refuse to grant the relevant visa.[3]
[2] Court book filed 17 March 2015 at pp.268-272.
[3] Court book filed 17 March 2015 at pp.364-388.
The question in this case was whether such reasoning amounted to jurisdictional error.
Synopsis
In my judgement it did. I order the issue of constitutional writs.
Short factual narration
The first applicant is an Indian national from the Punjab region.
The second applicant is her son. In December 2014 the
second applicant was 13 years old. The essence of the applicants’ claim was distilled by the Tribunal in paragraph 5 of its reasons in the following terms –
The first applicant’s core claims are that she has faced escalating violence, control and verbal and physical abuse and demeaning behaviour from her alcoholic, drug-addicted/affected husband from the initial years of their fifteen-year marriage, that he is incensed by her fleeing India with their son (the second applicant), and has threatened to – and will – harm or kill her or them on return. She argues the Indian state (and in the Punjab region) cannot or will not effectively protect her, principally due to her gender and caste and their practical ineffectiveness and/or disregard of family violence.[4]
[4] Court book filed 17 March 2015 at p.365.
On 23 December 2014 the Tribunal affirmed the decision of the delegate refusing to grant the applicant a Protection (Class XA) visa. The Tribunal’s reasons went to 109 paragraphs. By leave, on
21 October 2016, the applicants’ further amended application to this Court raised three grounds of review, namely –
a)legal unreasonableness;
b)the reaching of an erroneous finding or a mistaken conclusion; and
c)failure to make an obvious enquiry.
The applicants arrived in Australia on 24 December 2012 as the holders of Sponsored Family Visitor visas. One month later they applied for protection visas. The delegate of the Minister refused that application.[5] On 26 September 2013 the applicants applied to the Tribunal.[6]
[5] Court book filed 17 March 2015 at pp.175-186.
[6] Court book filed 17 March 2015 at pp.187-208.
The first applicant claimed to have a well-founded fear of persecution on return to India by reason of her membership of a particular social group understood as variously ‘Sikh women residing/married in rural Punjab’, ‘Jatt Sikh women residing/married in rural Punjab’ and ‘Jatt Sikh women residing in rural Punjab who have perceivably dishonoured their husbands’.[7]
[7] First respondent’s submissions filed 9 November 2016, p.3 at [18].
The first applicant claimed to have been the subject of enduring and escalating violence and oppression at the hands of her alcoholic and drug-dependent husband, with whom she lived, along with her son. The applicant claimed that her husband’s violence had culminated in an attack that took place on 24 May 2011, during which the first applicant’s husband had struck the first applicant in the lower abdomen with a metal rod.[8]
[8] First respondent’s submissions filed 9 November 2016, p.3 at [19].
The first applicant claimed that whilst members of her family had sought to counsel the first applicant’s husband against that behaviour, they were unable to protect the first applicant. The first applicant claimed that authorities were unwilling or unable to provide protection to the first applicant and she was unable to relocate within India.
The first applicant feared that her husband would exact revenge against her and the second applicant if she returned to India. The first applicant claimed that she had fled India (along with the second applicant and the first applicant’s mother) on a visitor visa arranged secretly by relatives, without the knowledge or consent of her husband.[9]
[9] First respondent’s submissions filed 9 November 2016, p.3 at [20].
At paragraph 13 of its reasons, the Tribunal recorded the issues for its consideration in the following terms –
Core issues in the review are: whether the primary applicant’s husband actually supported and consented to the applicants’ travel to Australia in 2012; whether any omissions from, variance in, and evolution of, the evidence regarding that matter and the husband’s mindset (at various stages) are either satisfactorily addressed or otherwise plausible – and if not – the extent to which these or other matters might discredit part or all of the applicant’s account of her circumstances.[10]
[10] Court book filed 17 March 2015 at p.367.
That was to be contrasted with a differently expressed statement of the core legal issues that appeared in paragraph 28 of the Tribunal’s reasons. There, the Tribunal member wrote the following of those differently expressed legal issues –
The core legal issues are whether the applicants are owed protection under Australian law from serious or significant harm by their husband/father (respectively) in India, in circumstances where state protection would be withheld, denied or (in the case of complementary protection) ineffective in reducing the risks to the applicant to something below a real risk of significant harm.[11]
[11] Court book filed 17 March 2015 at p.373.
Self-evidently, that was less than an accurate recital, or even a paraphrasing of the elements of ss.36(2) or 36(2)(a) of the Migration Act1958 (Cth) (“the Act”).
At paragraph 34 of its reasons, the Tribunal rejected the applicants’ claims to Convention-based protection in the following terms –
For the following individual and cumulative reasons, I find the primary applicant is not a credible witness to her own circumstances and I do not accept any aspect of her claims and evidence regarding past harm, or risks of future harm, from her husband – toward her or the second applicant.[12]
[12] Court book filed 17 March 2015 at p.374.
It is fair to say that the Tribunal member was not impressed by the
first applicant. In many places in the Tribunal’s reasons, the Tribunal provided criticisms of the first applicant’s evidence. Samples of those criticisms are these –
a)the statement in paragraph 36 of the Tribunal’s reasons that certain matters led the Tribunal to question fundamentally what the Tribunal could believe about the first applicant’s whole case;
b)the statement in paragraph 38 of the Tribunal’s reasons that an account given by the first applicant of her husband’s support of three previous visa applications led the Tribunal to “fundamentally doubt its veracity”;[13]
c)the statement in paragraph 39 of the Tribunal’s reasons that the Tribunal member did not accept as plausible that any unconscious omissions of relevant details were made;
d)the statements in paragraphs 40 and 43 of the Tribunal’s reasons that the “substantial evolution of the evidence” concerned the Tribunal member;[14] and
e)the statement in paragraph 47 of the Tribunal’s reasons of its unwillingness to receive an expert’s assessment concerning the husband’s signature because “the applicant’s credibility [was] in issue on this matter and reliance on her assertion would leave in fundamental question the reliability of any expert assessment”.[15]
[13] Court book filed 17 March 2015 at p.374.
[14] Court book filed 17 March 2015 at p.375.
[15] Court book filed 17 March 2015 at p.376.
Other references to doubts in, to concerns in, to the implausibility of the first applicant’s version of events or to the outright rejection of evidence were recorded in paragraphs 48 to 51, 53 to 56, 61 to 69, 72, 73, 75, 80, 81, 83 to 85 and 88 of the Tribunal’s reasons.
On nearly every key factual finding the Tribunal was against the
first applicant.
Significance of credit findings
Before turning to each ground of review, let me say something about the threshold issue in this case.
Frequently, tribunal’s reasons record the tribunal’s “concern” about a particular witness’s credibility or its “doubts” about a particular witness. Sometimes the tribunal records how on a particular matter there was no credible evidence. Frequently too, tribunals (as indeed members of this Court and of the Federal Court of Australia) have placed reliance on the observations of McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham[16] (“Durairajasingham”) where his Honour famously held that “a finding on credibility … is the function of the primary decision-maker”.[17] Absent illogicality, legal unreasonableness or a denial of procedural fairness, courts and tribunals alike since then have regarded a finding by a primary decision-maker as being seemingly impervious to scrutiny in judicial review.
[16] [2000] HCA 1.
[17] [2000] HCA 1 at [67].
A deeper investigation was given by the Full Court of the
Federal Court of Australia (McKerracher, Griffiths and Rangiah JJ) in CQG15 to the question of whether findings of fact are amenable to judicial review. While pointing out that nothing McHugh J said in Durairajasingham suggested that adverse credit findings are not amenable to judicial review for jurisdictional error, the Full Court of the Federal Court of Australia delved into the circumstances where a court undertaking judicial review may properly overturn credibility findings made by a decision-maker.
At the outset it must be stressed that the Tribunal is only empowered to make a determination under the Act where that determination is based on findings or inferences of fact that are grounded in probative material and logical grounds. The High Court said as much in Minister for Immigration and Multicultural Affairs v Eshetu[18] as did the Full Court of the Federal Court of Australia in WAIJ v Ministerfor Immigration and Multicultural and Indigenous Affairs.[19] More recently, at single judge level in the Federal Court of Australia, Flick J said the same thing in SZVAP v Minister for Immigration and Border Protection[20] (“SZVAP”).
[18] (1999) 197 CLR 611 at [145].
[19] [2004] FCAFC 74 at [22].
[20] (2015) 233 FCR 451 at [20]-[21].
Adverse credit findings do not shield the Tribunal from scrutiny of its decision-making processes, as has been held in Minister for Immigration and Citizenship v SZRKT[21] (“SZRKT”), SZLGP v Minister for Immigration and Citizenship[22] (“SZLGP”) and SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship.[23]
[21] (2013) 212 FCR 99.
[22] (2009) 181 FCR 113.
[23] [2013] FCAFC 80.
Minor inconsistencies cannot support adverse credibility findings,
as the Honourable Justice Gordon, then of the Federal Court of Australia, held in SZLGP.
Sometimes an applicant’s claims are discredited by comprehensive findings of dishonesty or untruthfulness. In such circumstances,
there will need to be cogent material to support a conclusion that the applicant lied. As the High Court of Australia held in Minister for Immigration and Multicultural Affairs v Yusuf,[24] it will not be open to the Tribunal to state that it was unnecessary for it to consider material corroborative of an applicant’s claim merely because it considered it unlikely that the events described by an applicant occurred.
[24] (2001) 206 CLR 323.
As was held in Selvadurai v Minister for Immigration and Ethnic Affairs,[25] the Tribunal does not need to possess rebutting evidence before holding that a particular factual assertion is not made out.
[25] [1994] FCA 1105.
Where credibility is an issue in a specific case, in CQG15 the
Full Court held that the Tribunal is not required to put to an applicant every matter of concern to the Tribunal regarding his or her claim to fear harm. Equally, as was held in Minister for Immigration and Citizenship v Applicant A125 of 2003,[26] the Tribunal was not required to identify the significance of its questions nor give a running commentary on the applicant’s evidence. As was held in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs,[27] the Tribunal is not required to set out at the hearing its thought processes or preliminary reasons for comment. Indeed, it may be necessary for the Tribunal to later carefully assess all the evidence before reaching a view about credibility.
[26] (2007) 163 FCR 285.
[27] (2006) 228 CLR 152.
A striking feature of this case was the very significant number of factual findings made by the Tribunal, adversely to the first applicant. Without specifically referring to the totality of those findings, instead the Minister’s legal representatives relied on written submissions[28] that mentioned the McHugh J formulation in Durairajasingham (of any credit assessment being “par excellence” for the Tribunal) then stated that “considerable caution must be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error”.[29]
[28] First respondent’s submissions filed 9 November 2016.
[29] First respondent’s submissions filed 9 November 2016 at [29].
Those submissions were dated 9 November 2016. They did not address the Full Court’s decision in CQG15, judgment in which was handed down almost three weeks earlier. The failure to mention such an important (and recent) consideration of such an important area of migration law was unexplained. I found it extraordinary that such a key authority was overlooked by the solicitors for the Minister. In so far as the Minister’s counsel addressed CQG15 before me, that was limited to one reference on page 40 of the transcript of proceeding and even then, the reference was to a quote from another single judge’s judgment.
By reason of that most peculiar approach to an authority as significant as CQG15, I did not obtain the benefit of a carefully considered submission from the Minister on such an important area of dispute.
Despite the unusually high number of comments by the Tribunal to the effect that –
a)certain evidence was implausible;
b)the Tribunal had doubts over other evidence;
c)the Tribunal did not accept still other evidence; and
d)“the evolution of the evidence” concerned the Tribunal member generally,
none of those comments (nor even the large number of those comments) rendered the Tribunal’s reasons impervious to judicial review by this Court.
Let me now turn to the grounds of review.
It was not altogether easy to piece together the applicants’ contentions in relation to ground 1. The ground itself starkly stated “[t]he Tribunal decision was legally unreasonable”.[30] Several particulars were
sub-joined to that single proposition. In turn, two of those particulars incorporated by reference two other substantive grounds of review, being grounds 2 and 3. The further amended application was anything but straightforward to understand.
[30] Further amended application filed 21 October 2016 at p.3.
The applicants’ written submissions[31] did not markedly alter that position.
[31] Applicant’s submissions filed 2 November 2016.
The point in relation to ground 1 was exposed most clearly during the address of Mr Godwin, counsel for the applicants. At its heart was the contention that the Tribunal’s reasons were illogical because, as
Mr Godwin put it, “one of the planks of the reasoning given by the tribunal, which is material to its outcome, was not logically open”.[32]
[32] Transcript of proceeding, 16 November 2016 at p.10.
Expressed somewhat less abstractly, the “planks of reasoning” to which Mr Godwin referred related to “a story about being allowed to go to the airport”.[33]
[33] Transcript of proceeding, 16 November 2016 at p.6.
The argument was advanced in the following way.
For the first 15 years of her marriage, the first applicant faced escalating violence, control, verbal and physical abuse and demeaning behaviour from her alcoholic, drug-affected husband. He was angry at the fact that she fled India with their son and that the husband had threatened to kill the applicant (with or without killing their son as well) on her return to India.
The narrative in relation to this ground recorded that since 2010,
the first applicant’s brother-in-law had twice unsuccessfully lodged student visa applications for the second applicant, nominating the
first applicant as student guardian. The first applicant’s husband prevented her from leaving their home. The first applicant stated in a statutory declaration made 17 April 2014[34] (after the Tribunal hearing) that the husband permitted the applicant to see her mother off at
New Delhi airport, notwithstanding that the husband ordinarily refused the first applicant to leave the house and that the first applicant escaped from her husband by so doing. The first applicant contended that the Minister’s delegate accepted her version of events about her husband permitting her to see off her mother at the airport. The first applicant contended that in the absence of the delegate making an adverse credibility finding on that issue, there was no reasonable basis upon which it could be expected that the first applicant would adduce further evidence concerning the husband’s willingness to allow the
first applicant to attend the airport to farewell her mother. She said that in the face of that state of affairs, it was legally unreasonable for the Tribunal, at paragraph 62 of its reasons, to focus on the absence of material evidence on point in the pre-hearing evidence.
[34] Court book filed 17 March 2015 at pp.268-272.
In debate with Mr Godwin, I rather inelegantly asked whether in substance, the Tribunal was describing the history as given by the
first applicant about the absence of such a detailed version in the
pre-hearing material, as a recent invention. To that Mr Godwin said –
Yes. If you were telling the truth, you would have given this piece of evidence earlier.[35]
[35] Transcript of proceeding, 16 November 2016 at p.8.
A little later, Mr Godwin put the position stridently in the following terms –
MR GODWIN: Your Honour, the illogicality is this: the delegate has accepted the story is credible. The story that is credible is that the husband allowed the wife to travel to the airport to see the mother off. There is, in those circumstances, no reason why the applicant would have wanted to put any further evidence to the tribunal about the reason why the husband allowed the wife to travel to the airport. It’s not a matter of impression or anything else; there was just no logical reason why you would expect further evidence to have been put on by the applicant prior to the hearing before the tribunal, until the tribunal raised the issue during the hearing as to the husband’s motivation. Yet the tribunal finds the fact that this further evidence was given is a reason to disbelieve the applicant. And we say that is a clear case of illogical reasoning.[36]
[36] Transcript of proceeding, 16 November 2016 at pp.8-9.
The first applicant submitted that during the hearing the brother-in-law was not questioned about the circumstances in which the three prior visa applications were sought.
The Tribunal reasoned that it did not accept any aspect of the
first applicant’s evidence about her husband’s violence towards her.
At paragraph 64 of its reasons the Tribunal said the following –
The above findings are material and fundamentally undermine the applicant’s credibility as a witness to her own circumstances. It is argued (more below) that these matters are an insufficient basis for discrediting the applicant’s whole account of her husband’s violence, however, for the following reasons, I find the above matters are intrinsic to the overall account, and as such, leave me in such fundamental doubt about the overall account that I do not accept any aspect of the applicant’s evidence about her husband’s violence toward the applicants.[37]
[37] Court book filed 17 March 2015 at p.380.
Ultimately, the circumstances of ground 1 amounted to the following –
a)the first applicant gave a version of events to the delegate in respect of the circumstances in which she was able to leave her home in order to farewell her mother;
b)the delegate accepted that version, as given;
c)in the Tribunal, no challenge was made to that version;
d)details of the first applicant’s version of events about her visit to the airport were given to a high degree of particularity in a statutory declaration made on 17 April 2014, after the Tribunal hearing on 25 March 2014;
e)the first applicant was not questioned about the version of events set out in the statutory declaration made 17 April 2014; and
f)
instead, the Tribunal made a finding that it had ‘real doubts’ or ‘serious doubts’ about the version of events given by the
first applicant in relation to her visit to the airport because, so the Tribunal said, no such detailed evidence was given prior to the Tribunal hearing.
The Tribunal member very many times used phrases such as “I have real doubts”, “my serious doubts”, “the applicant’s credibility … would leave in fundamental question” certain things. That language is unhelpful at best and positively useless at worst. In matters of an applicant satisfying the criteria for the grant of a visa, aside from discretionary matters, an applicant either does or does not meet those criteria. It is of no use for a tribunal, when conducting a merits review, to express doubts about one issue or another. Either the applicant meets the relevant criteria or he or she does not. For a tribunal to express doubts gives no insight whatsoever into the answer to the threshold question whether or not the visa applicant meets the relevant criteria for the grant of the relevant visa. In debate, I raised this issue with
Mr Godwin in the following exchange –
HIS HONOUR: Well, again, the reference to “concerns me”, I’ve got no idea what that means, as a matter of forensic distillation of the evidence. What does a matter of concern amount to?
MR GODWIN: Well ‑ ‑ ‑
HIS HONOUR: It’s just really sloppy, unfortunate language, it seems to me. Well, what construction am I meant to place on that? This is probably a question for Ms Symons, but how do you construe it?
MR GODWIN: What this paragraph does is it slides from the, “I reject that particular piece of evidence because you should have given it earlier and you didn’t”, to, “And because you didn’t do that, I now doubt the whole of your case.”
HIS HONOUR: But what does doubt mean? Does that mean, “I reject it” or does it just mean – it doesn’t seem to go as far as “I am not satisfied” – these are strange uses of the language, if you ask me.[38]
[38] Transcript of proceeding, 16 November 2016 at p.21.
The work of the Tribunal does not require it to deal in doubts. This was not a case to be measured against the standard of proof in criminal matters where proof beyond reasonable doubt was pivotal. Doubt had nothing to do with the findings the Tribunal was required to make in order to validly discharge its statutory functions under the Act. If by the expression of doubt the Tribunal was conveying the notion that it was not satisfied about a particular matter, then the Tribunal should have said it was not so satisfied, rather than engaging in ambiguous and unclear reasoning, then disseminating confusing and ill-considered reasons.
It seemed to me that where the Tribunal expressed its “concerns” about one issue or another, in reality the Tribunal was conveying the notion (without saying as much) that it rejected the evidence or submission advanced by the first applicant. Of course, it was at liberty to do that so long as such a determination was based on findings or inferences of fact that were grounded upon probative material and logical grounds. In CQG15, the Full Court of the Federal Court analysed that issue at length at paragraph 40 of its reasons. It follows that a tribunal has no licence or power under the Act to make a finding that it rejects certain evidence unless that rejection is based upon probative material and logical grounds. As was pointed out in CQG15 at paragraph 38, any credibility finding – indeed any finding of fact – may be challenged on the usual grounds of –
a)a failure to afford procedural fairness;
b)reaching a finding without any logical or probative basis;
c)unreasonableness; and/or
d)jurisdictional error of the sort canvassed by Flick J in SZVAP.
In this case the Tribunal made an extensive array of adverse findings against the first applicant. Relevant to ground 1, the Tribunal effectively rejected the first applicant’s evidence about the
first applicant’s visit to the airport to farewell her mother and, having made that rejection, added that rejection to an accumulation of other rejected evidence leading to the ultimate finding expressed in paragraph 67 of its reasons. There, the Tribunal said the following –
I have found, from those matters, that the applicant is not a credible witness to her overall circumstances in India (or on matters she claims to have heard about since she came to Australia). They are not readily divisible from the account of the husband’s violence and form an integral, material part of her claims about his mindsets and motivations to harm her and her son.[39]
[39] Court book filed 17 March 2015 at p.380.
In a different part of its reasons, the Tribunal said the following -
I have considered these matters in depth, given the gravity and seriousness of the claims. My findings are made with cognisance of the tribunal’s stated guidelines on gender, credibility and vulnerability and I have considered carefully the proportionality of the adverse matters to the overall credibility findings. Against this backdrop, my findings in the applicant’s case are for the reasons stated, which derive from the applicant’s own detailed evidence and my assessment of its significance.[40]
[40] Court book filed 17 March 2015, p.382 at [77].
Then, the Tribunal reasoned as follows in paragraph 81 of its reasons –
Accordingly, given the cumulative material credibility findings above, I do not accept any aspect of the applicant’s claims, including that her husband [M] has been or is alcoholic or a drug user and erratic and abusive, or that she has faced violence in any form (including physical beating, forced sex, verbal abuse or degrading treatment or forced confinement to her house) from him in the past (or in any other form claimed), or that she fled India in fear of such violence, or that her husband did not consent to her coming to Australia, or did so only on the inducement of money. I find that the applicant is in an ongoing marriage with her husband and intends to return to live with him if returned to India.[41]
[41] Court book filed 17 March 2015 at p.383.
The finding about the first applicant’s release from her home to farewell her mother was probative, logical and supportable. Rather than assessing whether it was capable of scrutiny according to the criteria in CQG15, the Tribunal merely found that it did not accept any aspect of the first applicant’s claims. That ran counter intuitively to the stream of established orthodoxy that a witness may be believed on some issue or another yet not believed on some other issue. Instead, in this case the Tribunal member seemed to have regarded the first applicant as a witness all of whose evidence was to be rejected in its totality.
In relation to the veracity of the first applicant’s version of events in going to the airport, the Tribunal’s conclusion was unfounded. In my view, the Tribunal’s rejection of the first applicant’s version was not founded upon probative material and logical grounds.
The Tribunal’s decision cannot be allowed to stand.
I agree with Mr Godwin’s characterisation of the issue –
So in that statutory context – this is why we say it’s so unreasonable – the delegate accepts the applicant’s evidence is credible; applicant’s evidence is that the brother-in-law persuaded the father to allow her to go to the airport.
The applicant is entitled to assume that there’s no issue with that until the tribunal tells her there’s an issue with that. The first point at which this tribunal told the applicant that that was an issue was at the hearing. When you get to the tribunal’s reasoning, however, the tribunal says, “You should have expanded on this issue before the tribunal hearing”. And that’s simply illogical in that context.[42]
[42] Transcript of proceeding, 16 November 2016 at p.25.
Mr Godwin relied on the decision of Wigney J in Minister for Immigration and Border Protection v SZUXN[43] where it was held that jurisdictional error may in some circumstances be established by an adverse credit finding. Mr Godwin also relied on my own decision in MZANW v Minister for Immigration and Border Protection,[44] especially in relation to the illogicality of the Tribunal making a finding of evidence embellishment concerning the Negombo claim.
[43] [2016] FCA 516 at [60].
[44] [2016] FCCA 2639.
In 2005, the Full Court of the Federal Court of Australia held that an assessment of credibility is not necessarily linear and that based on a certain item of evidence, a Tribunal’s view may be tainted in the overall in relation to a review applicant’s credibility. So much was said in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs[45] (“VAAD”). That occurred in this case. While a number of adverse credit findings were made against the first applicant, to use the words of the Full Court in VAAD “it is not possible to say that the error could not have affected the outcome”.[46]
[45] [2005] FCAFC 117 at [77]–[79].
[46] [2005] FCAFC 117 at [79].
A fair-minded reader might wonder how, in the face of so many adverse credit findings, it could be said that in respect of this single issue, the point assumed such significance. To my mind that enquiry misses the point. As the Full Court of the Federal Court of Australia said in Lu v Minister for Immigration and Multicultural and Indigenous Affairs[47] (“Lu”) an applicant is entitled to succeed if the jurisdictional error (in that case, a denial of procedural fairness) has denied the applicant of the possibility of a successful outcome.
That much is consistent with the observations of the High Court of Australia in Re Refugee Review Tribunal; Ex parte Aala[48]. As the
Full Court also said in Lu, the applicant will succeed unless (relevantly there) denial of procedural fairness could have had no bearing on the decision. In this case it could scarcely be said that the first applicant’s account of her circumstances especially in relation to her travel to Australia were anything but central. In paragraph 13 of its reasons,
the Tribunal said those issues were “[c]ore issues in the review”.[49]
[47] [2004] FCAFC 340 at [46]–[48].
[48] (2000) 176 ALR 219.
[49] Court book filed 17 March 2015 at p.267.
Once it is acknowledged that the events of the first applicant’s departure from India for Australia (described as the applicant “fleeing”) were “core issues”, the determination of credibility in relation to those core issues was central to the outcome of this case. The first applicant’s version of events about her farewelling her mother at the airport assumed a high degree of importance. It was then necessary to examine how the Tribunal treated the first applicant’s evidence in that regard. The Tribunal received the first applicant’s statutory declaration in April 2014 and concluded that it was significantly more expansive compared to the version of the same events as provided by the first applicant in the pre-hearing material. The Tribunal took the view that the information in the statutory declaration told of recent invention, or at the very least, serious omission in the pre-hearing material with the consequence that the
first applicant was not to be believed.
In my judgment, such reasoning was illogical and smacked of jurisdictional error.
To my mind, it was impermissible for the Tribunal to have proceeded with an illiterate applicant in the shoes of this applicant who gave her version of the events at the airport to the delegate, for the delegate to have accepted that information, for the first applicant to then have given evidence to the Tribunal with no real attention being given to the events at the airport, only to later be fastened on by the Tribunal with the events at the airport being “core issues” and for the first applicant to be disbelieved in relation to those events. A jurisdictional error was committed in this case. To use the observations of the High Court of Australia in FTZK v Minister for Immigration and Border Protection,[50] it is impossible to say that this failure or flaw in the reasoning could not have materially affected the Tribunal’s decision.
[50] [2014] HCA 26 at [97].
I agree with Mr Godwin’s synthesis of the credit findings in this case when he drew a parallel with the observations of Robertson J
in SZRKT. There, Robertson J held that the Tribunal did not take a nuanced approach to questions of credit but instead, the Tribunal disbelieved the applicant generally. In this case, it may be fairly said that the Tribunal disbelieved the first applicant on the core issue as recorded in paragraphs 13, 28, 34, 67, 77 and 81 of its reasons. In large measure, the Tribunal did so because the Tribunal found the version of events about the airport, as recorded in the first applicant’s statutory declaration, to have been more expansive than the version earlier given. There was no logical reason why that state of evidence could not have coalesced.
Logan J in SZRHL v Minister for Immigration and Citizenship[51] considered the construction of a credibility finding based on a false premise as illogical or irrational, citing Minister for Immigration and Citizenship v Li and Anor.[52] A decision based on the premise that is illogical or irrational is not “within the range of possible acceptable outcomes”.[53]
[51] [2013] FCA 1093.
[52] (2013) 249 CLR 332.
[53] [2013] FCA 1093 at [35].
I agree. That is this case.
Mr Godwin emphasised that at law, if the Tribunal makes a jurisdictional error that error must have materially affected the outcome. The list of authorities that makes good that point is long.
It includes Minister for Immigration and Border Protection v CZBP,[54] Minister for Immigration and Border Protection v SZSNW[55] and SZSMR v Minister for Immigration and Border Protection.[56]
[54] [2014] FCAFC 105.
[55] [2014] FCAFC 145.
[56] [2015] FCA 655.
In this case the error materially affected the outcome.
Conclusion
In my view the applicants have succeeded in respect of ground 1.
That conclusion rendered it unnecessary to address grounds 2 and 3.
Constitutional writs will issue. The Minister must pay the applicants’ costs.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 1 March 2017
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