SZRKN v Minister for Immigration
[2012] FMCA 1021
•2 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRKN v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1021 |
| MIGRATION – RRT decision – Nepali claiming persecution by Maoists – no error in application of ‘real chance’ test to past persecution accepted by Tribunal – applicant’s history of active political involvement disbelieved – Tribunal’s findings not illogical or unsupported by evidence – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 36(2), 36(3), 36(4) |
| Briginshaw v Briginshaw (1938) 60 CLR 336f Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, [1989] HCA 62 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, [2010] HCA 16 Minister for Immigration & Citizenship v SZOCT (2010) 189 FCR 577, [2010] FCAFC 159 Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559, [1997] HCA 22 Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611, [1999] HCA 21 SCAM v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 964 SZOOR v Minister for Immigration & Citizenship (2012) 127 ALD 1, [2012] FCAFC 58 WAHK v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 81 ALD 322, [2004] FCAFC 12 |
| Applicant: | SZRKN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 889 of 2012 |
| Judgment of: | Smith FM |
| Hearing date: | 2 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 2 November 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Jones |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the First Respondent: | Mr R Baird |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $6,471.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 889 of 2012
| SZRKN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant arrived in Australia in January 2009, travelling on a passport containing an Australian visa granted to the applicant as the wife of a student applicant. That visa expired on 15 March 2011, and the applicant applied for a protection visa four days earlier.
In her application, she explained her reasons for leaving Nepal:
42Why did you leave that country?
I am a member of Communist Party of Nepal (Unified Marxist‑Leninist). I was abused by the Maoists due to my political opinion and my denial to join and support the Maoists Young Communist League. I left my country to avoid being harmed. I set out my reasons in response to questions 42‑46 in my statement which I will provide shortly. Please read the statement which will be forwarded soon.
A statement setting out a fuller history was later provided to the Department with a number of purportedly corroborative documents. The applicant also attended an interview by the delegate on 12 May 2011.
The applicant’s refugee claims
Her claims, as elaborated in her statement and documents, were that she was brought up by parents who were farmers in an agricultural area of Nepal, and: “I became interested in politics during my school days. My aunt was actively involved in the politics. Her name is Ms P who encouraged me to do politics”. The applicant claimed that while at school in 2003 she had been abducted by Maoists, who had threatened to kill her, and forced her to attend education classes and started to teach her how to serve in the People’s Army. She claimed to have been kept in custody for three days before being released, and suggested that she was singled out for particular mistreatment because “I had been working with the student section after I was elected as chairperson of all Nepal national freedom student union” while she was at school.
She also claimed to have been a member of another youth organisation under the wing of the Communist Party of Nepal (Unified Marxist‑Leninist). The applicant claimed to have continued to be actively involved with that party, including by attending meetings and rallies and handing out pamphlets. To explain her departure for Australia, she said:
… on 15 December 2008, a group of Maoists came to my house and they threatened that they would kidnap and kill me if I defy them again. I had no option but I pretended that I would agree to disown my membership of CPN‑UML and would support and join the Maoists. I did not disown my membership but I continued supporting the CPN‑UML secretly despite the Maoists’ threats. I reported it to my party office and district police office but I did not see any indication of their wiliness to protect me from the harm of the Maoists.
The applicant said that it became impossible for her to live safely in Nepal, so she decided to flee Nepal, and did so with the assistance of an agent who procured her visa by presenting a false marriage certificate to allow her to get the dependant student visa.
Among corroborative documents submitted by the applicant were statements from a school, confirming that students including the applicant “were in the abduction of the Maoists” for four days in 2003, a membership card from the Democratic National Youth Association, and a statement from the Nepal Communist Party (UML) that the applicant “had been working for the association and the party … during her study time”. There was also a statement addressed to, “To Whom It May Concern”, signed by Ms P, which stated:
In the above mentioned concern, I confirm that [the applicant] is a resident of [location] and [the applicant] also had been affected with the strike of Maoists People’s war started since 1996 in Nepal and the situation became for her that she could not stay here so she was forced to go overseas.
The delegate made a decision on 7 June 2011, which refused the visa application. The delegate concluded that the provisions of s.36(3) of the Migration Act 1958 (Cth) applied to exclude Australia’s protection obligations to the applicant, by reason of the ability of the applicant to enter India.
However, the delegate also assessed the applicant’s claims to fear persecution if she returned to Nepal. He referred to a number of significant inconsistencies and contradictions between the applicant’s written statements, her supporting documents, and her responses at interview, and was not satisfied as to the truth of her claimed history. The delegate was not satisfied that she had demonstrated “a genuine, active political profile”. The delegate also referred to the two‑year delay before the applicant had applied for a protection visa, and said that it was implausible that she would have delayed “if she genuinely feared harm in Nepal”.
The proceedings of the Tribunal
The applicant sought review by the Tribunal, and attended two hearings conducted on 13 October 2011 and 13 March 2012. The Tribunal appears to have been shown originals of the documents previously submitted, but no additional documentary evidence was tendered by the applicant. At the conclusion of the first hearing, the Tribunal invited evidence to show whether the applicant was being treated by a “mental health doctor” whom the applicant claimed to have been seeing, when she suggested that some of the difficulties in her evidence were the result of her being “not fully fit mentally”. However, no such evidence was ever submitted to the Tribunal.
At both hearings, the applicant was questioned about her claimed harassment and mistreatment by Maoists in 2003 and in later years, and in December 2008. The Tribunal also questioned her about her claimed involvement as an active member of a political party. In this respect, the Tribunal described in its statement of reasons the following exchange at the first hearing:
Convention nexus
42.The Tribunal then asked the applicant to describe her political activity. She said she became a member in 2060, 2nd month, 12th day (26 May 2003). The Tribunal asked her why she joined her party. She said it is because even though she is a low class she is interested in leadership which is why she took up the party. The Tribunal asked her why she joined NCP‑UML and not another party such as the Maoists. She said they treated the general people well which is why she joined UML.
(citation omitted)
At the second hearing, the Tribunal returned to the topic of how the applicant had joined the National Youth Association, and her claims in her visa statement to have been introduced to politics by her aunt, Ms P. The Tribunal’s account of this part of the hearing is:
77.The Tribunal asked the applicant why she joined National Youth Association. She replied that she was a student and active and because of that the leaders of the community asked her to join the association and lead the association. The Tribunal asked the applicant to explain what she meant by “leaders of the community”. She said her aunt is Ms P and she joined because of her influence and the influence of the local UML.
78.The Tribunal asked the applicant why she did not mention Ms P at the first hearing. She replied that she mentioned her in her statement. The Tribunal reminded the applicant that she did not mention her at all during the first hearing. She said she must have forgotten because of her mental problems.
79.The Tribunal asked the applicant if Ms P was her aunt on her mother’s or father’s side. She said her mother’s side. The Tribunal asked the applicant if Ms P was her mother’s sister. She replied:
My mother’s sister but not her own sister.
80.The Tribunal asked her to explain what she meant. She said:
She is my mother’s uncles’ daughter.
81.The Tribunal said to the applicant that it had some doubts about her credibility on this issue and that this may lead the Tribunal to find that she is generally not credible. She said:
I have told the truth all the time and she is my aunt.
82.The Tribunal asked the applicant where Ms P lives. She said she lives in [named]. When asked, she said it is one day by foot from her own village, [named]. The Tribunal asked the applicant how often she saw Ms P. She responded that she usually lives in the city and when she came to the village she used to meet her. The Tribunal asked the applicant how often she would meet her. The applicant became evasive and responded:
Usually I see her.
83.The Tribunal asked the applicant if she saw Ms P every day, every week or every two months. She replied that when she is in the village she sees her about two times per month, otherwise once every two months.
84.The Tribunal explained to the applicant that taking into account the events she had described at the last hearing, she had been abducted in 2060, she had been threatened at her home on 2060 and she had been subjected to a sexual assault in 2065. The Tribunal said that one of the matters it would have to determine was if the sexual assault was targeted against her for a Convention reason, or if it was a criminal matter only. She responded that they were Maoists and they did it because of her political beliefs. She said it was because she was totally against the Maoists and raised her voice against them. The final matter she had described was being hassled from time to time. She agreed and said they usually come and threaten her and try to misbehave and they made a situation where she was unable to live in the village.
85.The applicant said Ms P is her mother’s sister. The Tribunal challenged her and said that she had said she was not her sister. The applicant said:
She is her uncle’s sister and that means she is my mother’s sister.
86.The Tribunal asked the applicant to explain why she had said a few minutes earlier that Ms P was her mother’s uncles’ daughter and now she was saying that she is her mother’s uncle’s sister. The applicant said she thinks she has confused the Tribunal. She said:
My mother’s dad and Ms P’s dad are two brothers.
The Tribunal advised the applicant that her inconsistent responses about Ms P gave raise to credibility concerns.
The Tribunal’s decision
The Tribunal made a decision on 19 March 2012, which affirmed the delegate’s decision.
In its statement of reasons, the Tribunal recounted the way in which the applicant had presented her refugee claims in documents and at the two hearings and the delegate’s interview. The Tribunal addressed the issue of safe haven in India, and was not satisfied that s.36(3) applied. It also said that its application would be excluded by s.36(4), by reason of the applicant being at risk as a woman with certain attributes if she had to live in India. The Tribunal therefore assessed Australia’s protection obligations in relation to the applicant only against her claims to fear persecution if she returned to Nepal.
The Tribunal commenced its discussion of the credibility of the applicant’s claims with some general findings, which it explained at the start of its reasoning:
105.The Tribunal does not accept that the applicant’s claims are credible. Her evidence at hearing was not consistent, in many respects, with her written claims. Although she insisted that her written claims are accurate, and cited mental health as a factor which may have prevented her from remembering all her claims at hearing, she has not provided any medical evidence as to the state of her mental health, notwithstanding the invitation from the Tribunal to do so. She did not appear to the Tribunal to be suffering from obvious forgetfulness or distraction, she participated in the hearing and was articulate when it suited her. She tended to seek to rely on her written material when she faced questions for the Tribunal that troubled her.
106.The applicant has said that she has not been able to provide a report as to her mental health for financial reasons. The Tribunal’s own assessment is that the applicant has sought to rely on claims of poor mental health and forgetfulness to explain away inconsistencies in her evidence. Her shifting evidence in relation to her relationship with Ms P, when questioned by the Tribunal at the second hearing, demonstrated that the applicant is not forgetful, but dishonest. The letter from Ms P, does not, in the Tribunal’s assessment support the contention that she is related to the applicant. The English translation of the letter reads:
…I confirm that [the applicant] is a resident of Ward No.3 [location]. and [the applicant] also had been affected with the strike of Maoists’ People’s war started since 1996 in Nepal and the situation became for her that she could not stay here so she was forced to go overseas.
Ms P does not mention that she is related to the applicant and for this reason the Tribunal finds that she is not. The Tribunal does not accept the applicant’s claims of becoming involved in the youth wing of the Communist Party of Nepal (Unified Marxist‑Leninist) and does not accept that the applicant was actively involved or outspoken in the cause of the party or its youth wing. The Tribunal also does not accept that the applicant has any connection with Ms P other than being a general member of the party Ms P represents. (Ms P was an unsuccessful candidate for the Communist Party of Nepal (Unified Marxist‑Leninist) in the [district] in the 2008 Constituent Assembly elections).
…
108.She did not make any such claims at the first hearing. She said she joined CPN‑UML because it was good to the people. She said was a general member. She had no understanding of the structure of the party other than to say it has a chairman.
109.The Tribunal accepts that the applicant may have joined Democratic National Youth Association, Nepal in the period 2 July 2003 to 1 July 2004. It does not accept any claims that she campaigned or spoke out against the Maoists as she has not demonstrated knowledge to the Tribunal about the party. The Tribunal does not accept that if the applicant were to return to Nepal she would actively or publicly engage in the work of the party in the future not for fear of what might happen if she did, rather because she has not in the past actively campaigned and in the Tribunal’s view, has tried to paint herself as politically active to strengthen her claims for protection.
(citations omitted)
The Tribunal then considered documents that had been presented by the applicant, which tended to confirm that the applicant had been abducted with other school children in 2003. The Tribunal set out country information which confirmed that events such as this had occurred in the course of the Maoist insurgency at that time. The Tribunal made a positive finding:
113.The harm the applicant suffered when she and her fellow schoolmates and teachers were abducted, namely deprivation of liberty, is one of the types of ‘serious harm’ listed in s.91R(2) of the Act. The Tribunal accepts that this harm was experienced for the essential and significant reason of political opinion, in the sense that the abductors were politically motivated to do what they did. However, the country information below does not support the proposition that there is a real chance such an event would occur again. …
The Tribunal then explained its assessment of the future arising from this event, by extracting a lengthy passage from a recent assessment of the situation in Nepal, and then concluding:
114.On the evidence before it, the Tribunal finds there is not a real chance of the applicant being abducted by Maoists now or in the reasonably foreseeable future if she were to return to Nepal.
The Tribunal then addressed the applicant’s claims made for the first time at the hearing, that there had been an attempted rape of her by Maoists in December 2008. It said:
116.Due to the inconsistency in her claims, and her general lack of credibility, the Tribunal does not accept that the applicant was threatened by Maoists in December 2008, or that she was sexually assaulted. It also does not accept that she was subsequently subjected to threats or harassment by Maoists.
The Tribunal also considered the delay between the applicant’s arrival in Australia and her application for protection. It said:
117.… the Tribunal does not accept that this applicant, living in Australia for two years, would not know that she could if she genuinely feared harm in Nepal, engage Australia’s protection obligations earlier than she did.
118.The Tribunal finds that the applicant does not genuinely fear harm if she were to return to Nepal now or in the reasonably foreseeable future. The Tribunal finds accordingly that she does not have a well‑founded fear of persecution now or in the reasonably foreseeable future in Nepal.
The Tribunal concluded that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention.
The grounds of the application
The applicant now seeks orders from this Court which would set aside the Tribunal’s decision and remit the matter for further consideration. I have power to make those orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide the extent to which the applicant’s history should have been accepted, nor whether she qualifies for a protection visa or any other permission to stay in Australia.
The applicant’s grounds of review have been re‑formulated in an amended application filed at the hearing. It contains what are said to be two particulars of one ground, but which emerged in submissions as totally separate grounds:
1.The Tribunal’s decision was affected by jurisdictional error.
Particulars
a.The Tribunal found that the applicant had a well‑founded fear of persecution for a Convention reason based on past events, but applied a wrong standard of satisfaction to the question of whether her fear continued to be well‑founded at the time of determination.
b.The Tribunal made a finding that the Applicant had been dishonest in an aspect of her claims based on evidence which could not have left such a finding open to logical or rational or reasonable minds to differ.
The contention in Ground 1 particular (a) was first presented by the applicant’s solicitor on the basis that the Tribunal’s reasoning disclosed a failure by it to apply a legally necessary test of the well‑foundedness of fears of persecution arising from past events. In particular, he submitted that this was revealed in the Tribunal’s assessment of the events of 2003, in relation to which the Tribunal had accepted that the applicant was among a larger group of school students who had been abducted by Maoists, and that she had encountered harms amounting to persecution for the purposes of the Convention as adopted by s.36(2). The applicant’s solicitor argued that the Tribunal should then have applied a test of ‘well-foundedness’ in relation to current and future risks of persecution arising from this incident, which was suggested by Gaudron J in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 415:
If an applicant relies on his past experiences it is, in my view, incumbent on a decision‑maker to evaluate whether those experiences produced a well‑founded fear of being persecuted. If they did, then a continuing fear ought to be accepted as well‑founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of subsequent changes in the country of nationality. To require more of an applicant for refugee status would, I think, be at odds with the humanitarian purpose of the Convention and at odds with generally accepted views as to its application to persons who have suffered persecution: see the United Nations Economic and Social Council, Report of the Ad Hoc Committee on Statelessness and Related Problems, (1950), United Nations Document E/l618, p. 39; the Handbook, p. 13; Grahl‑Madsen, pp. 176‑177; Kashani v. Immigration and Naturalization Service; Cardoza‑Fonseca v. Immigration and Naturalization Service, affd.
(citations omitted)
It is clear that the present Tribunal did not assess whether the applicant had a well‑founded fear of persecution arising from the events of 2003 by reference to the reasonable person test suggested by Gaudron J. However, the Tribunal did, it appears to me, apply a test as to the well‑foundedness of the applicant’s present fears in relation to those events, which was the test suggested by the other judges in Chan’s case. This is a test which has been repeatedly endorsed in subsequent judgments of the High Court, and, in particular, in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559, where six justices including Gaudron J said at 571:
“Well‑founded” fear of persecution for a Convention reason
An applicant for refugee status must also establish that his or her fear of persecution for a Convention reason is a “well‑founded” fear. This element adds an objective requirement to the requirement that an applicant must in fact hold such a fear. In Chan, Mason CJ said:
“If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well‑founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring.”
In the same case, McHugh J said that a real chance of persecution excluded a far‑fetched possibility of persecution but that as little as a 10 per cent chance of persecution may constitute a well‑founded fear of persecution.
Chan is an important decision of this Court because it establishes that a person can have a well‑founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. But to use the real chance test as a substitute for the Convention term “well‑founded fear” is to invite error.
No doubt in most, perhaps all, cases arising under s 22AA of the Act, the application of the real chance test, properly understood as the clarification of the phrase “well‑founded”, leads to the same result as a direct application of that phrase. Wu Shan Liang is an example. Nevertheless, it is always dangerous to treat a particular word or phrase as synonymous with a statutory term, no matter how helpful the use of that word or phrase may be in understanding the statutory term. …
(citations omitted)
In Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611, Gummow J referred to Gaudron J’s suggested test of well‑foundedness in Chan, and said:
150It is established by what was said by Mason CJ, Dawson J, Toohey J and McHugh J in Chan that the Convention definition of “refugee” involves mixed subjective and objective elements. In particular, there must be a state of mind, a fear of being persecuted, and a basis for that fear which is well founded. Without a real chance of persecution there cannot be a well‑founded fear of persecution and the objective facts are not confined to those which induced the applicant’s fear. The view of Gaudron J in Chan that, if the experiences of the applicant produced a well‑founded fear of being persecuted, “then a continuing fear ought to be accepted as well‑founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of subsequent changes in the country of nationality” does not represent the view of the Court in Chan.
(citations omitted)
The opinion that Gaudron J’s test does not attract majority support in the High Court has been maintained in the Federal Court in a number of judgments, which were cited to me. In SCAM v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 964, von Doussa J considered the differences of opinion in Chan, and said:
26In my opinion it is implicit in these passages that the real chance of persecution necessary to meet the objective element of the definition of refugee must be present at the time when the claim for refugee status is determined. I consider it follows that where the threat of persecution that caused an asylum seeker to hold a well‑founded fear at the time of departure from the country of nationality has in the meantime evaporated, and the circumstances pertaining in the country have so changed that there is no longer a real chance that the asylum seeker would risk persecution for a Convention reason if he or she were to return, any persisting fear of persecution held by that asylum seeker does not have the objective quality of being well‑founded.
27I am unable to reconcile this interpretation with the view of Gaudron J in Chan and Miah referred to above. I consider that I am bound to follow the majority view expressed in Chan, and to decline to follow the view of Gaudron J.
(emphasis in original)
In WAHK v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 81 ALD 322 at [10] and following, a Full Court considered Gaudron J’s suggested test of well foundedness in Chan. Their Honours then said:
[13]The above view was not shared by Gummow J, who, in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 659; 162 ALR 577 at 612; 54 ALD 289 at 325 said that the view of Gaudron J in Chan (quoted above) did not represent the view of the court in Chan. Gaudron J accepted that this observation was correct in the case of Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 78–9; 179 ALR 238 at 254 [69]. Her Honour considered that her approach was, nevertheless, correct.
[14]The relevant question is whether, as at 29 May 2002, the objective facts establish that the appellant had a well‑founded fear of persecution. This is to be assessed on an objective basis, and not on the basis that the fear of a reasonable person in the position of the claimant would not be allayed by knowledge of subsequent changes in the country of nationality. The reference to a “well‑founded fear” is a reference to the objective factual position at that time.
It is manifest from the manner in which their Honours formulated “the relevant question”, that their Honours were of the opinion that Gaudron J’s test could not be reconciled with majority opinion in the High Court.
With respect, I share that opinion, even if I am not bound to follow it. I therefore do not accept the submissions made in support of the first wing of Ground 1 particular (a) made by the applicant’s solicitor in the present case.
In my opinion, no error of law having jurisdictional consequences is exhibited in the manner in which the Tribunal assessed Australia’s protection obligation owed to the applicant arising from the events of 2003. It made no error by asking itself whether “there is a real chance such an event would occur again”, and by deciding that “there is not a real chance of the applicant being abducted by Maoists now or in the reasonably foreseeable future if she were to return to Nepal”.
A second wing of the argument of the solicitor for the applicant, was that in making these findings, the Tribunal failed to show that it had appreciated the significance and seriousness of its finding that persecution within the Convention definition had occurred in 2003, by following reasoning analogous to the manner in which a court would approach a finding of fact in a case in which observations by the High Court “known as the Briginshaw Test or standard” might be applied.
However, I do not accept that any error of law is exhibited by the absence of any observations which might appear to give that recognition.
As the submissions for the solicitor for the Minister point out, the considerations pointed to by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 may arise in the making of findings of fact on the balance of probabilities in civil proceedings in courts. They have no necessary application to findings of an administrative body such as the present Tribunal, and indeed might be misleading or distracting to administrative processes of fact‑finding, if not impermissible in law.
Moreover, it appears to me that the effect of the well‑founded test as explained by the majority justices in Chan and Guo itself encompasses recognition of the caution with which predictions as to the likelihood of future persecution arising from past events need to be made. The real chance test itself introduces a less than probable element of satisfaction before protection obligations based on an accepted past history of persecution can be found not to exist.
An additional difficulty facing the applicant’s submissions in relation to this ground, is that the Tribunal at paragraph 117 appears to have found affirmatively, based upon the applicant’s delay in seeking protection, that, whatever had happened to the applicant in the past, she did not have a current ‘genuine’ subjective fear of any persecution.
For all the above reasons, I am not satisfied that the submissions of the applicant’s solicitor in the present case have identified in the Tribunal’s reasoning any failure amounting to error of law having jurisdictional consequences, arising from its favourable findings concerning the 2003 events.
Ground 1 particular (b) was presented in the submissions of the solicitor for the applicant by reference to a statement made by the Tribunal in paragraph 106, which I have quoted above in its context. In the challenged sentence, the Tribunal said: “her shifting evidence in relation to her relationship with Ms P, when questioned by the Tribunal at the second hearing, demonstrated that the applicant is not forgetful, but dishonest”.
The applicant’s solicitor submitted that the finding that her evidence was “shifting” was a finding which was not supportable on her evidence before the Tribunal, and/or revealed illogicality when the applicant’s evidence concerning her relationship with Ms P was considered reasonably in its entirety. He submitted that on the Tribunal’s account of the applicant’s evidence there was no inconsistency and no evidence of ‘dishonesty’ when giving evidence. He submitted that in her responses, the applicant should be understood at all times to have been referring to Ms P as a person who, in genealogical terms, might be regarded as a first cousin, once removed, but who might also loosely be regarded as an aunt in some cultures.
The applicant’s solicitor submitted that the Tribunal’s adverse finding recorded in the challenged sentence was therefore infected by error, which amounted to jurisdictional error on tests suggested by Crennan and Bell JJ in Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611.
In that case, after discussing the jurisdictional error of unreasonableness in fact‑finding, and considering reasoning by the Tribunal in the case before them, their Honours said:
135On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.
It has been accepted in judgments of the Full Court that are binding on me, that the tests applied by Crennan and Bell JJ should appropriately be regarded as representing a majority opinion of the High Court (see SZOOR v Minister for Immigration & Citizenship (2012) 127 ALD 1 at [15], [82]‑[85], [114], and other judgments).
However, I do not accept that the criticised sentence should be found not to pass any of the tests suggested by Crennan and Bell JJ, when read in context and as part of the whole reasoning which led to the Tribunal to reject the credibility of the applicant’s claims to have been very actively involved in political organisations as a result of encouragement by Ms P.
In my opinion, it was open for the Tribunal to have regarded the applicant has having given ‘shifting’ evidence concerning her relationship to Ms P. She had described her as “her aunt” in the written statement, and at the start of her evidence to the Tribunal. She had later claimed a more distant relationship, but had also reverted to referring to her as “her mother’s sister”.
I accept that other minds might have regarded this part of the applicant’s evidence with more latitude and less emphasis. However, I am not satisfied that it was not open to the Tribunal to regard this part of the applicant’s evidence as indicative of a lack of credibility, and of conscious fabrication, when assessing issues of credibility more generally.
The Tribunal did use this part of the hearing for that purpose, and in my opinion this criticised sentence has to be read both as explaining, and being informed by, the other surrounding adverse observations. This included the absence of any reference in the letter signed by Ms P of a family relationship to the applicant, and the applicant’s different evidence at the first hearing, which had not claimed any encouragement from Ms P in her involvement in the political party.
Minds might have differed on whether the word “dishonest” was appropriately used, but read in context the Tribunal was using the word to suggest that there was conscious fabrication in the giving of this evidence rather than forgetfulness or excusable inconsistency. In my opinion, this conclusion was available to the Tribunal in its assessment of the applicant’s responses at the hearing, on the evidence as to this which is now before me. Certainly, in the absence of a transcript and the ability to fully comprehend how the relevant part of the hearing had proceeded viva voce, I am not persuaded there was not “room for a logical or rational person to reach the same decision on the material before the decision maker”.
I am not persuaded that there was any component in the Tribunal’s findings on the applicant’s credibility which, in itself, provided such an illogical foundation, that all the other considerations which the Tribunal brought to bear when assessing credibility should be regarded as subordinate (compare Jacobson J in Minister for Immigration & Citizenship v SZOCT (2010) 189 FCR 577 at [17] with Nicholas J at [83]).
I am therefore not persuaded that the submissions in support of Ground 1 particular (b) have made out jurisdictional error upon which I could grant the relief sought in this case.
Therefore, since I have upheld none of the pleaded grounds argued before me today, I must dismiss the application.
I certify that the preceding forty‑eight (48) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 15 November 2012
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