SZNNQ v Minister for Immigration
[2009] FMCA 1144
•23 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNNQ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1144 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal decision affected by apprehended bias or irrational and illogical. |
| Migration Act 1958 (Cth), ss.422B, 424A |
| Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 |
| Applicant: | SZNNQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1005 of 2009 |
| Judgment of: | Barnes FM |
| Hearing date: | 9 September 2009 |
| Delivered at: | Sydney |
| Delivered on: | 23 November 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Turner Coulson Immigration Lawyers Pty Ltd |
| Counsel for the Respondents: | Mr J Smith |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1005 of 2009
| SZNNQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal dated 23 March 2009 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of Uganda, arrived in Australia on 6 July 2008 as the holder of a visitor visa issued in connection with her attendance at World Youth Day in Sydney. On 15 August 2008 she applied for a protection visa. She claimed to fear being arrested and killed by government security agents because she would be linked with the Lord’s Resistance Movement (the LRA). She claimed that she and her fiancé had lived in the northern part of Uganda and had a business selling clothes imported from the Democratic Republic of Congo (the DRC), that her fiancé was a very active member of the Forum for Democratic Change (FDC), an opposition political party in Uganda, but that his frequent visits to the DRC to buy goods for the shop were associated by the Ugandan government security agents with the LRA in the DRC. According to the applicant, her fiancé was accused of supplying the rebels with foodstuffs and medicines and was arrested and detained in October 2007. The applicant claimed that on 20 November 2007 she was informed that her fiancé had escaped detention and disappeared. She claimed that thereafter security agents came to their house, arrested her and took her to a “military detention” facility where she was tortured and sexually abused by agents who demanded to know her fiancé’s whereabouts and about LRA operations in the DRC. She claimed that a female guard sympathised with her and helped her to escape on 14 December 2007. She travelled to her uncle’s home in Kampala, where she remained in hiding until he arranged her travel to Australia for World Youth Day.
The applicant attended an interview with a delegate of the first respondent in which she elaborated on her claims. Her application was refused by the delegate who found implausibilities and inconsistencies in the applicant’s claims and was not satisfied as to the credibility of her claims. The applicant sought review by the Tribunal.
The applicant attended a Tribunal hearing on 19 February 2009. On 20 February 2009 the Tribunal wrote to the applicant inviting her to comment on information pursuant to s.424A of the Migration Act 1958 (Cth). Included in that information was the fact that the applicant’s sister, who had also applied for a protection visa, was said to have made claims “extremely similar” to hers, but with “slightly different details”. The Tribunal put to the applicant that it might find it implausible that the applicant and her sister could experience “separately and unrelated to each other, such a similar set of circumstances, shortly before you both travelled to Australia for World Youth Day”, that it might find that one or both of them was not telling the truth and that the applicant had fabricated her claims. The Tribunal also put to the applicant other issues of concern.
The applicant responded to the Tribunal’s s.424A by letter dated 6 March 2009, stamped received on 16 March 2009.
The Tribunal Decision
In its reasons for decision the Tribunal set out in detail the evidence of the applicant at the Tribunal hearing, the s.424A letter and her response. It summarised her claim to fear persecution because she was wanted by Ugandan security authorities, having been detained in November 2007 because she and her fiancé were imputed to be supporters of the LRA and having escaped with the assistance of a guard.
The Tribunal did not accept the applicant’s account of the circumstances leading to her departure from Uganda and her claimed fear of return, finding it to be “highly implausible”.
The Tribunal referred first to the fact that the applicant’s account of events was “extremely similar, in its broad outline” to that of her sister whose application for review was also before the Tribunal. The Tribunal stated:
First, the applicant’s account of these events is extremely similar, in its broad outline, to that of her sister, the applicant in Tribunal proceedings 0808854. The applicant’s sister claims that she was arrested and detained in September 2007 because she and her uncle were suspected to be supporters of a militant guerrilla group (the PRA) because of their support for the FDC. Both were detained; the applicant was released first and the uncle subsequently escaped. The applicant was then detained again and questioned about the whereabouts of the uncle. She escaped with the help of a guard. She hid with relatives who arranged her travel under the auspices of World Youth Day.
The Tribunal has considered the explanation provided by the applicant in her s.424A response, but does not accept it. In effect, she made new claims in the s.424A response, namely that she and her sister came from a FDC family and were themselves supporters of the FDC; she suggested therefore that it was not surprising that they were treated similarly by the government. However, she has never previously claimed that she herself was a member or supporter of the FDC and indeed, stated in her oral evidence … that the issue was not her fiance’s support for the FDC at all, but the fact that he was suspected of supporting the LRA. In any case, the claimed “similarities” outlined in the s.424A response – namely a shared pro-FDC political background and consequent similar mistreatment by the government – are not the similarities identified by the Tribunal as pointing to the likelihood that at least one of the accounts was concocted. The relevant similarities in the claims of the two sisters lie not in their claimed political activity, but rather, in the critical incidents which they say led to their departure, namely: both claim to have lived in rural Uganda; both claim that the person with whom they lived supported the FDC; that those persons were suspected by the security authorities of supporting a militant guerrilla group (different in each case); that they were detained but escaped from detention; that they were each detained as a consequence and questioned as to the whereabouts of their associate; that both were helped to escape from detention by a kindly guard; that both then hid with different relatives in different parts of the country, and these relatives facilitated the obtaining of visas to travel to World Youth Day.
The Tribunal was of the view that these similarities were “the result of at least one of the accounts having been concocted”, finding it “far fetched and improbable in the extreme that two sisters would find themselves in such similar, yet unrelated, circumstances, at the same time, and in the lead up to an event which would enable them to leave Uganda”. While the Tribunal considered the possibility that one of the sister’s accounts may be true, it found that the account of the applicant in the present proceedings was “problematic and implausible in other respects as well”, which it detailed. In light of the grounds relied on in these proceedings its findings in this respect are set out in some detail.
First, the Tribunal found that it was “highly implausible that the Ugandan authorities would be suspicious that the applicant’s fiancé was collaborating with the LRA by taking supplies to them, merely because he travelled frequently into the DRC.” It referred to country information to the effect that at the time in question the Ugandan government had signed a ceasefire agreement with the LRA and that, with the knowledge and agreement of the Ugandan government, the LRA rebels were being supplied with food and medicine by NGOs. The Tribunal considered the applicant’s comments on this information, but did not accept her claim that outspoken low-level supporters of the FDC were routinely subjected to detention on suspicion of involvement with the LRA, but that this would not be reported. Nor did it accept the applicant’s explanation that despite the ceasefire the Ugandan government continued to perpetuate human rights abuses against suspected LRA supporters and that her fiancé may have been suspected of supplying “civilian supporters of the LRA”, being of the view that there would be “no need for civilian supporters of the LRA in the DRC to receive aid carried in by one individual from Uganda”.
Secondly, the Tribunal found that the applicant’s account of her own actions after the claimed arrest of her fiancé was “highly implausible”, “internally contradictory” and “inconsistent with the existence of a genuine fear based on the occurrence of the events described”. It did not find her explanations for these matters satisfactory. In particular, the Tribunal found it “impossible to reconcile her claim that, on the one hand, she was so scared following her fiance’s arrest that she ceased operating their business; yet she remained in their house in an area of the country far from her own family” or her claims that “all she could do following his arrest was to pray for divine intervention, despite claiming to be a devout Catholic she did not attend church in [the town] during this time, or at all”. It did not accept her “somewhat belated” explanation that because she was from a different tribal group to the residents of the town she was afraid to go out without her fiancé, finding this to be inconsistent with her claimed ability to conduct their business there notwithstanding her fiancé’s frequent absences on trips to the DRC and her decision to remain there after his arrest. The Tribunal rejected the applicant’s explanation that it would have been “culturally unacceptable” for her to return to her family, noting she did so seven or eight months before her departure from Uganda.
The Tribunal also found “highly implausible” the applicant’s statement that at no time after her escape from detention had she sought any news of her fiancé from his family (especially as she claimed she initially stayed in their home despite the danger to her because she loved him and expected him to return). In reaching its findings in this respect the Tribunal acknowledged that a “person in difficult circumstances may not act in a manner that appears to an observer to be rational” but in light of other problems in the applicant’s evidence did not find that this explained her conduct.
Thirdly, the Tribunal found that the applicant’s evidence on a number of matters was “surprisingly vague” and that her demeanour appeared evasive when pressed about these areas at the hearing. It did not consider that the applicant had adequately explained her “inability to provide any information at all about the location or appearance of the place where she claims to have been detained”. The Tribunal also found that her extreme vagueness about some details of the town she claimed she lived in (such as the location of her business and the bus station and how long it took to get from one location to another) and her statement that she did not attend church there despite being a devout Catholic, led it to doubt whether she lived in that town as claimed.
Finally, the Tribunal also found the applicant’s account of her escape from detention to be “highly implausible” and contradictory for reasons given. It considered but rejected the applicant’s explanations. The Tribunal had difficulty accepting her claim that the woman she claimed helped her would have taken the risk of letting her escape if this was likely to lead to serious consequences for such a person. It had regard to the fact that while the applicant claimed that the authorities would still be seeking her, she had not made inquiries before she left Uganda (or thereafter) as to whether they were actively seeking her. The Tribunal did not accept her claim that she feared that if she contacted anyone in Uganda (including her fiancé’s family) that might place them in danger. It did not accept that her fiancé’s profile was such that his relations would remain under such close surveillance that any contact by the applicant would come to their attention. The Tribunal considered that if the applicant was at serious risk as claimed there would be information that the authorities had been looking for her or she would have been picked up on her departure from Uganda.
The Tribunal concluded that because it did not accept the applicant’s account of the arrest of her fiancé and her own detention, it did not accept that she was suspected of supporting the LRA. Nor did it accept what seemed to be a suggestion in her s.424A response that she was liable to mistreatment as a member of a family which supported the FDC. It found that this late raising of a new claim not mentioned at the hearing further diminished the applicant’s credibility. It did not accept that the applicant was an actual or imputed supporter of the FDC.
The Tribunal concluded that while each of the elements it regarded as implausible might on its own be able to be explained away, when the applicant’s account was considered as a whole it could not be accepted. In light of the deficiencies in her account and the “suspicious nature of the similarities” between the applicant’s claims and those of her sister, the Tribunal was of the view that the applicant’s account of the circumstances which led to her departure from Uganda was “not true”. It did not accept that her fiancé was detained as claimed or that the applicant was detained, either because of her own political activity or opinion or because of her association with her fiancé. Nor did it accept that the applicant was wanted by the Ugandan authorities for such reasons, or because she may have information about her fiancé, or because she escaped from detention. The Tribunal concluded that it was not satisfied that the applicant had a well-founded fear of persecution in Uganda for reason of her political opinion, a political opinion imputed to her, or for any other Convention reason.
The applicant sought review by application filed in this court on 28 April 2009. She relies on an amended application filed in court.
Apprehended bias and illogical and irrational decision
The first ground in the amended application is that the Tribunal’s decision was affected by apprehended bias. The particulars to this ground are that:
(a) The Tribunal misrepresented the Applicant’s evidence
(b) The Tribunal’s findings would lead a fair minded observer to believe that it did not bring an impartial mind to its task
(c) The Tribunal’s reasoning was illogical, irrational and based on unwarranted assumptions.
There is an overlap between this ground and ground two which is that the Tribunal’s decision was irrational and illogical. The particulars to ground two are as follows:
(a) The Tribunal’s findings cannot be supported on logical or rational grounds
(b) The Tribunal’s findings were based on one or more unwarranted assumptions.
The applicant’s main contention was that the Tribunal’s findings and reasoning were such that a fair-minded lay observer would conclude that the Tribunal failed to bring an impartial or open mind to its task.
The same analysis was relied on to assert that the Tribunal findings could not be supported on logical or rational grounds and were based on one or more unwarranted assumptions in a manner constituting jurisdictional error.
Counsel for the first respondent addressed each of the matters raised by the applicant, contending generally that in effect the applicant sought impermissible merits review and that neither ground was made out.
In Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 Gleeson CJ, Gaudron and Gummow JJ considered the test for apprehended bias on the part of a Tribunal. Their Honours stated at [27] – [29]:
The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private.
Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the Tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented. (Footnotes omitted).
Mr Turner for the applicant pointed to the fact that in Ex parte H the test for apprehended bias was described as one of “objective possibility” (at [29]) rather than probability.
It is not in dispute that, notwithstanding s.422B of the Migration Act 1958 (Cth) if apprehended bias is made out that may constitute jurisdictional error (see Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [4]. However, as Mansfield J stated in SZCSC v Minister for Immigration and Multicultural Affairs [2007] FCA 418 at [40]:
It will be rare that an allegation of ostensible bias will be made out on an analysis of evidentiary materials before the RRT and its assessment of them, where otherwise no legal error is disclosed in its reasoning: see SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at 756, at [44] and the cases cited there.
Moreover in NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 Allsop J suggested at [20]:
At least in the absence of the identification of some prejudice or interest in the Tribunal, for a complaint of apprehended bias based on the conduct of the Tribunal in its procedure and the dealing with material before it in its reasons to be meaningful, it must carry with it an assertion of the apprehension of a possibility of predisposition. That is, the predisposition of the Tribunal towards a result, other than a result reached by an evaluation of the material before it in a fair way with a mind that was open to persuasion in favour of the person in question. Unless that be demonstrated, it is hard to see how a decision-maker has failed to conform to standards of procedural fairness.
I have borne in mind that as Allsop J (with whom Moore and Tamberlin JJ agreed) went on to suggest in NADH of 2001 (at [115]):
By and large fact-finding is a task within jurisdiction, though factual error is not necessarily mutually exclusive of jurisdictional error: Re Minister for Immigration and Multicultural Affairs: Ex parte Applicant S 20/2002 (2003) 198 ALR 59. Where fact-finding has been conducted in a manner which can be described, as here, as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way, these considerations may found a conclusion that the posited fair-minded observer might, or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly. How else, the fair-minded observer might ask, can one explain the largely unreasoned rejection of documents as vague, when they plainly were not, and as not saying the appellants were Catholics, when expressly or impliedly they did?; and how does one explain not dealing with answers which revealed an apparently detailed knowledge of the Christian religion and the Catholic faith, when a conclusion is drawn that persons are not Christian based on weighing some answers to questions of less than central importance? The answer to these questions might be that the Tribunal lacked an appreciation of the need to weigh all the material. If that were the case it would itself support a conclusion of jurisdictional error. The answer might also be the lack of an ability or willingness to deal with the material before it with a mind open to persuasion fairly evaluating all the material.
In support of the contention that irrationality, illogicality and basing a decision on unwarranted assumptions constitutes jurisdictional error the applicant referred generally to the oft-cited description of jurisdictional error in Craig v The State of South Australia (1995) 184 CLR 163 at 179; [1995] HCA 58 and to what was said by Lee and RD Nicholson JJ in WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676; [2002] FCAFC 437 at [54] as follows:
The unwarranted assumptions of the Tribunal as to matters relevant to formation of a view on the credibility of the corroborative witness caused the Tribunal to disbelieve and disregard that evidence and constituted a failure by the Tribunal to duly consider the question raised by the material put before it: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 per Gleeson CJ at [4]. Although the remarks of the Chief Justice in Aala were directed to entitlement to review by constitutional writ on the ground of absence of authority for the Tribunal to make a decision that exercised the decision-making power in a manner that was not procedurally fair, his Honour's comments are equally pertinent to an unauthorised exercise of decision-making power that results from the Tribunal failing to take into account relevant material. In misunderstanding the material before it, the Tribunal thereby failed to have regard to relevant material, resulting in a decision for which the Tribunal had neither authority nor jurisdiction under the Act: Yusuf per McHugh, Gummow and Hayne JJ at [82]-[85]. It follows that grounds for review of the Tribunal's decision arise under s 476(1)(b) and (c) of the Act.
Reliance was also placed on Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 in which Gummow and Hayne JJ stated at [38]:
The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith. To say that a decision-maker must have acted in good faith is to state a necessary but insufficient requirement for the attainment of satisfaction as a criterion of jurisdiction under s 65 of the Act. However, inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error. (Footnotes omitted).
The applicant referred to several aspects of the Tribunal’s reasoning in support of the grounds in the application including:
· the relevance of similarities in the claims between the two sisters;
· whether there was a “new” claim in respect of political opinion;
· the reference to a “kindly” guard;
· whether country information supported the applicant’s claims;
· whether a guard would have helped the applicant to escape;
· whether there would have been written warrants from the security forces if looking for the applicant;
· whether the applicant could have escaped being picked up on departure;
· whether if each element of the claims had an explanation, then the whole claim must have an explanation.
Similarities in the sisters’ claims
The solicitor for the applicant referred to the fact that the Tribunal took into account similarities between the applicant’s claims for protection and those of her sister. In written submissions it was contended that the Tribunal “based its decision” on the similarity in the claims made by the applicant and her sister and found that “because of that similarity” the applicant should not be believed. It was pointed out that the same Tribunal member had determined the applicant’s sister’s review application and submitted that the Tribunal had affirmed the decision in that matter on the same basis.
In oral submissions, Mr Turner contended that the Tribunal based its decision “in large part” on the similarities between the two sisters’ accounts and submitted that while it had put its concerns in this respect to the applicant under s.424A, the Tribunal’s reasoning process and the resultant findings were such as would lead an observer with an impartial mind to conclude that the Tribunal had failed to approach its task with an open mind.
The similarities which were said to have led the Tribunal to its initial finding of a lack of credibility were identified by the Tribunal as the fact that both sisters lived in rural Uganda; both sisters claimed that the person they lived with opposed the government; both claimed they were detained as a consequence and questioned as to the whereabouts of their associate; both claimed they were helped to escape by a kindly guard; both hid with relatives in different parts of the country; and in each case these relatives facilitated the obtaining of visas to travel for World Youth Day.
The applicant submitted that it was “unexceptional” that sisters growing up together would have similar upbringings and backgrounds, that they would take up similar political views and form relationships with people who shared those views. It was submitted that if they were involved with people being sought by the government, it was equally unexceptional that the sisters were each arrested and, given Uganda’s human rights record (which was said to be apparent from country information before the Tribunal), tortured in an attempt to find the whereabouts of their respective associates.
It was also contended that when a person escaped from custody it could readily be accepted that they would initially seek the protection of family members and that if a family determined that safety for one member could be achieved by a particular method (such as attendance at World Youth Day) it would be expected that the same plan would be used to realise the safety of another family member in danger. The Tribunal’s reasoning in relation to the applicant being able to escape the country despite being wanted by the Ugandan authorities was criticised. It was submitted that the Tribunal had closed its mind to such readily accepted propositions.
First, insofar as it was submitted that the Tribunal based its decision on the similarity of the claims made by the applicant and her sister, as counsel for the first respondent contended, while the similarity between the two sisters’ claims was central to the Tribunal’s reasons for decision, this matter did not form the whole basis for the Tribunal decision. Rather the Tribunal looked first at the similarities between the two sisters’ claims, concluded that it did not believe that both could be true and, although it accepted the possibility that one might be true, then considered other matters in relation to the applicant’s evidence that led it to the conclusion that, in fact, her account of the circumstances which led to her departure from Uganda was not true. It did not confine itself to a consideration of the similarities between the sisters’ claims in reaching this conclusion. It also had regard to several other respects in which the applicant’s account of events in Uganda and her claimed fear of persecution was “problematic and implausible”.
The applicant contended that in considering the similarities in claims the Tribunal made unwarranted assumptions in a number of respects (for example, that it acted on the basis that two sisters could not have similar experiences, that guards would not have helped both the applicant sisters escape and that the sisters would not have been able to leave at the same time). However, in having regard to relevant similarities in the claims of the two sisters, the Tribunal was, properly, focusing on the critical aspects of the claimed facts that led to the two sisters’ separate claims that each was detained by the authorities and tortured and that each feared a recurrence of those events.
Thus, while the Tribunal referred to both sisters claiming to have lived in rural Uganda, it was referring to the fact that while the sisters grew up in Kampala, each claimed to have moved to rural Uganda, albeit to different parts of rural Uganda, and each made claims about events occurring in rural Uganda, rather than the applicant’s contention that one would expect sisters to have similarities in background if living in rural Uganda.
Importantly, the Tribunal’s concern was not that the claims were similar, but rather that they were so similar and yet unrelated. The applicant did not rely on her sister’s claims to corroborate her own claims, either in her protection visa application or in documents provided to the Department or the Tribunal, except insofar as there was reference made to the sister in the response to the suggestion in the s.424A letter that sisters could have similar backgrounds and political opinions. The Tribunal did not simply assume that two sisters could not have similar claims. It found it difficult to accept that two people living in separate remote parts of Uganda could have such similar but unrelated experiences at the same time which coincided in them both leaving Uganda to come to World Youth Day at the same time.
Further, as set out in the Tribunal’s decision, it considered that the relevant similarities in the sister’s claims lay not in their claimed political activity or shared pro-FDC political background and consequent similar mistreatment by the government, but rather “in the critical incidents” which they each claimed led to their departure from Uganda (that is, that both claimed to have lived in rural Uganda with a person who supported the FDC who was suspected by security officers of supporting a (different) militant guerrilla group, but had escaped from detention). In addition, each sister claimed to have been detained as a consequence and questioned as to the whereabouts of her associate; each was helped to escape by a kindly guard and then each hid with (different) relatives who facilitated obtaining visas to travel to World Youth Day. What concerned the Tribunal in respect of these similarities was not just that the claims were similar, but that they were similar in unrelated circumstances.
The solicitor for the applicant suggested that certain of the claimed similarities were “unexceptional” and that the Tribunal could be perceived as having closed its mind to propositions that could be readily accepted. However even if another decision-maker may have viewed these matters differently this does not of itself establish that the decision was based on unwarranted assumptions or illogicality such as to demonstrate apprehended bias or other jurisdictional error. It has not been established that the Tribunal’s findings in this respect were irrational or based on unwarranted assumptions. The applicant’s disagreement with the Tribunal’s reasoning and conclusions in relation to the similarities in the claims of the sisters does not demonstrate such error. The Tribunal’s characterisation of the evidence and its findings were open to it on the material before it for the reasons it gave, having regard to all the evidence and material before it. I have borne in mind that credibility is a matter for the Tribunal par excellence (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1) and that the reasons should not be approached with an eye too keenly attuned to error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6).
As indicated, the Tribunal did not simply reject the application on the basis of the similarity of claims. It considered the possibility that one of the sister’s accounts may be true, but rejected that possibility in relation to the applicant because of the other problems it found with her evidence. Its approach to similarities in the claims is not in these circumstances indicative of a closed mind.
It was also submitted that if a fair reading of the stories of the two sisters would lead a fair-minded reader to conclude that they supported each other, the Tribunal’s finding that the similarities caused it to disbelieve both stories could be said to be based upon reasoning that was irrational and illogical.
However insofar as this submission involves a contention that the similarities of the sisters’ claims should have been considered by the Tribunal to be corroborative of the applicant’s claims, the applicant did not seek to rely on her sister’s claims or experiences in support of her application to the Department or the Tribunal. The fact that in such circumstances the Tribunal did not find that the similarities supported the applicant’s claims does not involve jurisdictional error or illogical reasoning (and is not such as to give rise to a perception of a closed mind from the perspective of the appropriately informed fair-minded reasonable observer). Neither the fact of the adverse findings in respect of the applicant or the Tribunal’s reasoning in relation to the similarities in the claims is such that a fair-minded lay observer, properly informed as to the nature of the proceedings as well as the conduct of the Tribunal review, might reasonably apprehend that the Tribunal may not have brought an impartial mind to resolution of the issues before it or to determination of the review application in the sense considered in Ex parte H. Further, to the extent that the grounds relied on by the applicant amount to a disagreement with findings of fact, fact finding is a matter for the Tribunal and merits review is not available in this court (see Wu Shan Liang at 272; Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14).
A “new” claim
The applicant submitted that the Tribunal findings were based on an exaggeration and misrepresentation of the evidence. It was contended that contrary to the Tribunal’s reference to the applicant making a “new” claim in her response to the s.424A letter (that she was liable to mistreatment as a member of a family that supported the FDC), she had made no such new claim. Indeed it was submitted that she made no claim at all in her response, which was said to be simply an explanation for why there were similarities between her story and that of her sister. It was submitted that the applicant did not claim that she feared persecution due to her own activity, but based on her perceived political activity and profile flowing from her relationship with her high-profile fiancé.
The applicant contended that to misrepresent the evidence in this way demonstrated that the Tribunal had approached its task with a closed mind.
However it has not been established that the Tribunal exaggerated or misrepresented the applicant’s evidence in finding that a “new” claim was raised in her response to the s.424A letter. The applicant referred to the fact that she and her sister belonged “to one family that aspires (sic) for the same political party. And both of us maintained a lead to the same party except in the different places”. She claimed that they discussed a lot about politics and continued:
There is a possibility for us to have similar political persecution because, having come from the same political background, there is track (sic) down to persecute us because of our political involvements, which were not started by us as sisters, but it’s the family involvement. And also I ended up with a person of the same political party.
It was open to the Tribunal to describe this part of the response as a response in which the applicant “seems to suggest that she was liable to mistreatment as a member of a family which supported the FDC” and, in that context, to have regard to the fact that the applicant had not otherwise claimed that she was an actual or imputed supporter of the FDC or that she was liable to persecution on this basis. As the Tribunal recorded, the applicant had not previously claimed that she herself was a member of the FDC and at the hearing had said that the issue was not her fiancé’s support for the FDC but his suspected support for the LRA.
Hence it was open to the Tribunal to conclude that the applicant appeared to raise a new claim that she was liable to mistreatment as a member of a family which supported the FDC and to have regard to the late introduction of what it considered to be a claim in relation to the applicant’s credibility. Indeed, had the Tribunal failed to deal with such a possible claim in the applicant’s response to the s.424A letter it may have been open to criticism for failing to deal with a claim arising squarely on the material before it.
Having regard to all the material before the court, it has not been established that the Tribunal misrepresented or exaggerated the applicant’s evidence in this respect, let alone that the reasoning in this respect was indicative of a closed mind from the perspective of the appropriately informed reasonable lay observer.
A “kindly” guard
The Tribunal found that one similarity in the sisters’ claims was that “both were helped to escape from detention by a kindly guard”. The applicant submitted that the Tribunal’s findings in this respect were based on an exaggeration and misrepresentation of the applicant’s evidence in relation to her being assisted to escape by a “kindly guard” as she did not claim she was helped to escape by a kindly guard.
It was submitted that the applicant’s suggestion in her response to the s.424A letter that “detainees could always find a way to escape through bribing the security officials” clearly attributed a monetary motive to the guard that was inconsistent with the idea of “kindly”.
However it was open to the Tribunal to characterise the claims by each sister as claims that each was helped to escape by a “kindly guard”.
In connection with her protection visa application, the applicant had claimed:
Thank God, one female guard sympathized with me and she helped me escape.
Importantly, the delegate recorded that in the interview with the delegate the applicant claimed that:
… one of the guards in the detention centre began to treat the applicant kindly because she reminded her of her daughter. She asked her again if she knew her fiance’s whereabouts and the applicant stated that she did not know. The next day, which was 14 December 2007, the guard came back and told her she would help her escape. She gave the applicant 20,000 shillings and told her to leave Gulu town.
Moreover in the Tribunal hearing when asked about the woman who helped her to escape, the applicant said that the woman used to bring her food, came to interrogate her a number of times, that the applicant managed to convince the woman that she was really innocent and that the woman said that she knew the applicant from her shop and told her that she would help her, but she had to leave the town.
In her response to the s.424A letter, while the applicant referred generally to common treatment of relatives of the same political “belonging”, and suggested that there is always “one common treatment” and that “[t]hey are arrested, detained and the detainees could always find a way of escape through bribing the security officials”, when she described her own detention she referred to “four men were always involved in every aspect of my detention and torture apart from the lady who came in to rescue me.”
In these circumstances it was open to the Tribunal to describe the guard, who was said to have helped the applicant to escape as “kindly”.
It was similarly open to the Tribunal to describe the sister’s claim about the guard who had helped her to escape as a claim about a “kindly guard” in light of the sister’s description of the circumstances of her escape in her protection visa application. She claimed she had been “assisted” by one of the guards “who left me loose and told me to escape”. At the hearing conducted by the Tribunal in the applicant’s sister’s matter, she was recorded as stating that one of the guards “seemed a little bit more human than the others.”
It has not been established that it was irrational, illogical or involved an unwarranted assumption for the Tribunal to have described each of the sisters’ claims as relating to a “kindly” guard.
Relevance of country information
In support of the ground of apprehended bias, the applicant’s solicitor also referred to the fact that there was country information that supported her claims and was relevant to the Tribunal determination. The Tribunal had regard to the fact that the applicant had no sense whatever of the location or appearance of her place of detention, even though it was “not that far” from the town in which she lived. However it was submitted that it was not unreasonable for the applicant to have said this, in light of her claim that she was detained in a dark place and mistreated. It was noted that in her response to the s.424A letter, the applicant had claimed that Ugandan government security authorities detained political opponents at safe houses which existed in invisible places. This claim was said to be supported by country information before the Tribunal. Particular reference was made to country information about detention in unregistered detention centres and the use of torture as a tool of interrogation by Ugandan security and military forces, often in unofficial and illegal safe houses. Issue was taken with the fact that notwithstanding such information (which was acknowledged by the Tribunal), it did not consider that the applicant had adequately explained her inability to provide any information at all about the location and appearance of the place where she claimed to have been detained. The applicant was critical of the Tribunal’s reasoning in this respect, which was said to be another factor indicative of a closed mind.
However, as submitted by counsel for the first respondent, the Tribunal accepted that country information was supportive of the applicant’s claims that security forces detained political opponents at “safe houses” in “invisible locations”. Hence its approach to such country information cannot be said to either be indicative of apprehended bias, or to be illogical or irrational. The fact that there was information that supported an aspect of the applicant’s claims and that such information was accepted by the Tribunal does not lead to the conclusion that the associated claims must also be accepted by the Tribunal or that its failure to do so was not open to it or indicative of a closed mind. The Tribunal also had regard to the applicant’s vagueness about the nearby town in which she claimed she had lived in from August 2006 until November 2007. Notwithstanding support in the independent country information for the applicant’s proposition that people were detained in secret houses and tortured, there was a rational basis in the evidence that was probative of a finding that she was not detained.
The circumstances of escape from detention
The applicant’s solicitor also submitted that the Tribunal made an unwarranted assumption in considering the applicant’s account of her escape from detention, which it found highly implausible. The Tribunal stated that if, as the applicant claimed, the authorities would still be seeking her, and if the circumstances of her escape would be likely to lead to serious consequences for the woman whom she claimed helped her, then it had difficulty accepting that this woman would have taken the risk of letting her escape at all. Mr Turner submitted that there was no basis for this finding, as while the applicant claimed that a woman had helped her to escape, the Tribunal had simply dismissed this claim stating that it did not believe the applicant, with no logical basis for saying so. It was submitted that if corruption was widespread in Uganda (as stated in country information) it was unexceptional that most escapees, including both sisters, escaped by bribing their captors.
Insofar as there was said to be an unwarranted assumption in the Tribunal finding that it had difficulty accepting that the guard would have taken the risk of letting the applicant escape at all, this was not a conclusion that guards never let people escape. Rather, the Tribunal expressed a doubt, having considered the applicant’s claims that the authorities would still be looking for her and that if the circumstances of her escape were likely to lead to serious consequences for the woman she claimed had helped her, that the woman would have let the applicant escape. It was not irrational or indicative of a closed mind for the Tribunal to take this approach on the basis that people were less likely to do something if they were going to be seriously harmed as a result of doing it.
It was open to the Tribunal (given the actual claims made by the applicant about the circumstances of her escape from detention) to reach the view that if the authorities were still seeking the applicant and the circumstances of her escape were likely to lead to serious consequences for the woman who she claimed had helped her, it was implausible that this woman would have taken the risk of letting the applicant escape. Insofar as the solicitor for the applicant submitted that the response to the s.424A letter clearly attributed a monetary motive to the guard that was said to be inconsistent with the idea of “kindly”, on the material before the court this contention does not establish that the Tribunal erred in the manner contended. Contrary to the applicant’s contention, the applicant did not claim to have bribed the guard who helped her to escape, but rather that that guard, who knew her, sympathised with her and was convinced that she was innocent. It has not been established that the Tribunal’s reasoning in this respect is indicative of a closed mind.
A paper trail?
The applicant also took issue with the Tribunal’s statement that if she was at serious risk, as she claimed, there would be information to indicate that the authorities had been looking for her. It was submitted that it was an unwarranted assumption or involved a lack of rationality for the Tribunal to suggest that because there was no paper trail (such as evidence of arrest warrants) then the events complained of by the applicant did not occur.
However it was open to the Tribunal to have regard to the fact that the applicant was unaware of any information (of any kind) to indicate that the authorities were actively seeking her before or after she left Uganda and not to accept her explanations that she did not ask anyone (including her fiancé’s family) to ascertain whether the authorities had made inquiries about her before deciding to leave her country. It considered but (given her claimed profile and that of her fiancé) did not accept her explanation that she had not made inquiries because she feared if she contacted anyone in Uganda it might place them in danger. The Tribunal did not assume that there would be a paper trail involving documents such as arrest warrants. Rather it considered that if the applicant was at serious risk as claimed there would be some “information” to indicate that the authorities had been looking for her.
Departure from Uganda
The Tribunal was also of the view that if the applicant was at serious risk as claimed she would have been picked up by the Ugandan security authorities on departure from Uganda, despite the fact that she was with a group of pilgrims. This finding was criticised on the basis that the applicant had claimed that she was travelling with a World Youth Day group and that one could readily imagine how they would be processed en masse.
However, just because a different view could be taken in this respect or an assertion of fact made contrary to the Tribunal’s finding, this does not mean that the finding was irrational, particularly given that the applicant claimed that she was at serious risk from the authorities who were looking for her, but despite this was able to leave Uganda through a major international airport without any difficulty. It has not been established that the Tribunal’s finding (or any underlying view or assumption that a major international airport might be populated with authorities, some of whom might be expected to be on the lookout for people wanted by the authorities) was irrational or indicative of a closed mind.
The applicant’s account as a whole
The applicant also took issue with the Tribunal finding:
In this case, while each of the elements that the Tribunal regards as implausible might, on its own, be able to be explained away, the Tribunal considers that when her account is considered as a whole, it simply cannot be accepted.
It was submitted that if each of the elements could be explained, and presumably was adequately explained by the applicant, then the whole of her account must also have been adequately explained and that it could not be that if one accepted an explanation for each of the elements, one could logically reject the whole. It was submitted that this constituted irrational and illogical reasoning by the Tribunal based on unwarranted assumptions and revealed that the Tribunal made its decision based on the similarities between the claims of the applicant and those of her sister. The solicitor for the applicant contended that if the findings about similarities could not be logically supported, then the whole reasoning of the Tribunal could not be logically supported.
It was also contended that the Tribunal’s finding that the applicant’s account as a whole was other than adequately explained, demonstrated from the perspective of a fair-minded independent observer an unwillingness on the part of the Tribunal to accept any explanation (such as in response to the s.424A letter) and that it had approached its task with a closed mind.
The applicant contended that all of the things that the Tribunal found to have been similar could not logically and rationally lead to a conclusion that the claims were therefore concocted and that this was sufficient to lead a fair-minded lay observer to the conclusion that the Tribunal had failed to bring an open mind to its task.
Insofar as the applicant contended that the Tribunal was illogical in its approach to the applicant’s account as a whole, the Tribunal found that while each element of concern might, considered on its own, have an explanation, it was of the view that when the account was considered as a whole (as the Tribunal was obliged to do), it could not be accepted. It was not illogical or indicative of a closed mind for the Tribunal to proceed on this basis.
Moreover the Tribunal did not simply reject explanations for implausibilities based on the similarities in the claims of the applicant and her sister. It also had regard to specific “deficiencies” in her account as discussed in its reasons for decision. In the context of the evidence as a whole, the Tribunal’s view that it found it impossible to reconcile certain of the applicant’s claims (for example about stopping the business she had conducted with her fiancé but remaining in the home she had lived in with him) was open to it for the reasons given. Importantly, the Tribunal acknowledged that a person in difficult circumstances may not act in a manner that appeared rational to an observer, but went on to find “in light of the other problems in the evidence of the applicant” that it was “appropriate to view her account of her claimed conduct during this period as internally contradictory, inconsistent with the existence of a genuine fear based on the occurrence of the events described, and implausible”.
Insofar as it was contended that the Tribunal should have reached a different conclusion or that a different conclusion could logically have been reached in relation to similarities, other aspects of the claims or overall, the Tribunal’s reasoning in relation to the similarities, implausibilities and other deficiencies in the applicant’s claims was open to it for the reasons that it gave. The Tribunal went through each of the claims made by the applicant in some detail and at each step analysed the evidence at the hearing, together with the written response given to the s.424A letter. The Tribunal raised with the applicant the similarities between her claims and those of her sister in a manner consistent with the need for fairness. Its approach and the findings based on its reasoning are not such as to give rise to a perception of predisposition or a closed mind.
In particular, it was open to the Tribunal to take into account the similarities and weigh them up in order to decide whether or not to accept the applicant’s claims. It considered the possibility that at least one version was true (a strong indication against the possibility of predisposition) and analysed in a detailed way each of the claims made by the applicant, bearing in mind, as it stated, the serious nature of credibility findings.
Moreover findings of fact are matters for the Tribunal. It expressed its reasons for those findings and did so having regard to the evidence and arguments put by the applicant. Hence even if another decision-maker could have reached a different conclusion, such disagreement with the Tribunal’s conclusions or its reasoning process does not support a reasonable apprehension that the Tribunal may have been predisposed to its conclusions.
Apprehended bias is not established in the matter contended for by the applicant. As Mansfield J stated in SZCSC at [55]:
Notwithstanding the apparently cogent material in support of the appellant’s claim, I do not think that the RRT has been shown to have somehow reached its decision by some latent error of law. It is not the role of the Court to form a view as to whether it would have reached a different factual conclusion on the evidentiary material.
In the alternative it was submitted that aspects of the Tribunal’s reason involved irrationality or illogicality or that the Tribunal made unwarranted assumptions (for example that two sisters could not have similar experiences, that a female guard would not assist the applicant to escape, that upon escaping the applicant would not initially remain at home and pray rather than go out and that she would not then seek the comfort and support of her family and, finally, that the family could not determine that each of the sisters would be able to escape Uganda in the same manner by attending World Youth Day, which was in Sydney) and that on that basis the Tribunal fell into jurisdictional error.
The matters relied on in support of this ground have been considered above. Insofar as the concepts “illogical, irrational and based upon unwarranted assumptions” are an emphatic way of expressing disagreement with the Tribunal’s conclusions of fact (see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 629; [1999] HCA 21 per Mason CJ and McHugh J), such disagreement has not been shown to have any legal consequences. It has not been established that there were unwarranted assumptions or irrationality and illogicality such as to constitute or demonstrate jurisdictional error. The Tribunal’s findings, such as in respect of the “kindly guard” and about the alleged new claim, were open to it. It was also open to the Tribunal to draw the inference it drew from the similarity of the two sisters’ claims and the other concerns it expressed that the applicant’s claims were fabricated. As indicated, insofar as the applicant takes issue with whether the Tribunal should have drawn that inference rather than another inference, that was a question of fact and a matter for the Tribunal.
I also note that even if some illogicality had been shown in the Tribunal’s reasoning process, an error of logic does not of itself constitute jurisdictional error (see NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [30] and note that an application for special leave to appeal to the High Court in NACB was refused ([2004] HCA Trans 358)). Also see NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52 and VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 at [18].
For the reasons given above, it has not been established that there was an error of jurisdiction in the sense considered by Greenwood J in SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 at [32] as follows:
A determination of the Tribunal as to a state of satisfaction or otherwise, of the relevant criteria or criterion in question, that is based upon a finding of fact or inferences drawn from facts, not based on logical or rational grounds, will give rise to an error of jurisdiction if there is no evidence to support the finding or no proper basis for drawing the inference; or, if there be some evidence, although inadequate, reliance by the Tribunal upon that inadequate evidence gives rise to an inference that the Tribunal has misconceived the test or is not, in reality, satisfied of the requisite matters, as a result of which there has been only a purported, rather than a real, exercise of the power conferred upon the Tribunal.
Having considered all of the matters raised, I am not satisfied on the material before the court that it has been established that the Tribunal’s fact-finding was conducted in a manner that founds a conclusion that a fair-minded lay observer might reasonably apprehend that the Tribunal’s conclusions had been reached with a mind not open to persuasion and that it was unable or unwilling to evaluate all the material before it fairly. Nor am I satisfied that the Tribunal decision was illogical or irrational or based on unwarranted assumptions such as to give rise to jurisdictional error.
As no jurisdictional error has been established the application must be dismissed.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 23 November 2009
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