SZROL v Minister for Immigration
[2020] FCCA 2466
•9 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZROL v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2466 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Immigration not to grant to the Applicant a Protection (Class XA) (Subclass 866) visa – Applicant claimed that in finding inconsistencies in his evidence the Tribunal did not take into account the period of time over which the Applicant gave his evidence and wrongly relied on the Decision Records of the Delegate and previously constituted Tribunals instead of a reading a transcript or listening to a recording of the Applicant’s evidence given at the hearings before them – Tribunal entitled to take into account inconsistencies, to use the Decision Records in the way that it did, to take into account the delay in the Applicant’s lodging of a Protection visa and was not irrational or unreasonable in considering the Applicant as part of the particular social group that it did – jurisdictional error not made out – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 424A Administrative Appeals Tribunal Act 1975 (Cth), s.19D Evidence Act 1995 (Cth), s.43 |
| Cases cited: AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205 AWA15 v Minister for Immigration and Border Protection [2018] FCA 604 BAX15 v Minister for Immigration and Border Protection [2016] FCA 491 Waterford v The Commonwealth of Australia (1987) 163 CLR 54 |
| Applicant: | SZROL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 4040 of 2017 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 18 September 2019 |
| Date of Last Submission: | 15 October 2019 |
| Date Reserved: | 16 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 9 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. R. Young of Counsel |
| Solicitors for the Applicant: | Shamser Thapa & Associates |
| Counsel for the First Respondent: | Mr P. Knowles of Counsel |
| Solicitors for the First Respondent: | Clayton Utz |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 28 December 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 4040 of 2017
| SZROL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and Background
The Applicant in this proceeding is a male citizen of Nepal aged 37 years.
By Application filed in this Court on 28 December 2017 he seeks to quash and have re-determined in accordance with law the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 5 December 2017 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 10 January 2012 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa) under s.65 of the Migration Act 1958 (Cth) (the Act).
In his Protection visa application form the Applicant stated that he had departed Nepal on 7 May 2010 and arrived in Australia on 8 May 2010 using an “other person’s passport”.
The Protection visa application is marked as having been received by the Department of the Minister (Department) on 22 July 2011, having been forwarded under cover of a letter dated 22 June 2011 from the firm of solicitors and migration agents which has at all material times represented the Applicant (solicitor).
Claims to Protection
In response to questions 42 to 46 of his Protection visa application form the Applicant advanced the following claims:
a)he left Nepal due to fear of members of the Nepal Communist Party (Maoists) as he had been terrorised and threatened by them several times;
b)if he returns to Nepal he will be attacked again by the Maoists and there is a chance they will kill him;
c)he believes that he will also be harmed by members of the ‘Youth Wing Young Communist League’ (YCL) in Nepal;
d)he is a follower and supporter of the Monarchists in Nepal, an organisation called ‘Nepal Patriotic Organisation’ (NPO), which is against the Maoists’ political agenda; and
e)the authorities in Nepal are not very powerful and the Maoists are able to do what they like, so he fears that the authorities will be unable to protect him from harm by the Maoists should he return to Nepal.
In his solicitor’s letter dated 22 June 2011 lodging the Protection visa application the Applicant’s claims were said to be as follows:
Political Opinion: The applicant fears from persecution by Communist Party of Nepal (Maoists) and their cadres as he is a supporter of King and Nepal Patriotic Organisation. He was being kidnapped and tortured on several occasions by member of Communist Party of Nepal (Maoists).
Member of particular social group: We are instructed that he has fear from Maoists if he returns to Nepal as he will be asked for more donations. Foreign returned people are more vulnerable and in risk as they are targeted by the Maoists and their cadres.
The solicitor’s letter also forwarded as part of the Protection visa application a typed statement of the Applicant which amplified the claims made in the Protection visa application form (Applicant’s Statement), substantially as follows:
a)he was born in a village in the Myagdi District of Nepal;
b)his father was a social worker and political activist and a hard-line supporter of the Nepalese Monarchy (the Monarchy);
c)in 1998 Maoists came to the family home and required his father to join the Maoist party and due to his loyalty to the Monarchy he was taken by the Maoists, who painted his face black and insulted him and told him to abandon the village if he continued to support the Monarchy;
d)the Applicant’s father continued to support the Monarchy, and 15 – 20 men came on 9 March 2003 and burned down his house and threatened him that if he did not leave the village within three days they would kill his eldest sons. After this incident the Applicant’s family relocated to another area of Nepal;
e)almost one month later after this relocation the Applicant was abducted and beaten by Maoists and left in the jungle to die, but was found by some nearby villagers and taken to hospital to be treated. After his recovery his family then relocated to another area of Nepal, to a district called Baglung Upalla Chowar, because the Maoists threatened his family that they “will not stop looking for” them;
f)the Applicant then left this area and went to Kathmandu, where he worked in a hotel until 2010;
g)the Applicant found fellow Monarchist supporters in his new workplace and he was introduced to the NPO and began ‘actively working’ for that organisation;
h)in Kathmandu the Applicant was offered an opportunity to work as a coordinator for the NPO in another location of Nepal. While he was working in this role in or about May 2010 he drew the adverse attention of the YCL and they abducted him, placed a pistol to his head and asked him to for a donation of 1,000,000 NRs because he was charged with “working against their principle”. The YCL threatened to kill him if the donation was not paid and in response he asked the YCL members for one week to make payment;
i)he then decided to flee Nepal instead of paying the donation. He asked his friends for assistance and they put him in touch with a broker who suggested travelling to Australia using another person’s passport, to which course the Applicant agreed because he knew there was no guarantee he would be safe in Nepal; and
j)he left Kathmandu on 7 May 2010 for Singapore and then arrived in Australia.
Relevant Law and Criteria Applicable to the Grant of a Protection Visa
A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration and Border Protection [2018] FCA 604 at [5] – [7], as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Decision of Delegate
The Applicant attended an interview with the Delegate on 14 December 2011.
In his Decision Record the Delegate summarised the Applicant’s claims to protection as made in his Protection visa application form and the Applicant’s Statement. The Delegate recorded that at interview the Applicant had reiterated and expanded upon those claims and relevantly noted as follows.
a)the attack on the father of the Applicant in their village was in 1998;
b)the Applicant’s family abandoned their village and resided in Myagdi from 2003 to 2005 and then in Baglung for 5 – 6 months;
c)the assault by Maoists on him whilst travelling to his uncle’s house occurred in approximately late 2005 when he was beaten severely and ultimately taken to hospital;
d)he then went to live in Kathmandu where he lived until 2010 and whilst there received threats by telephone and letter, and was so targeted because he was the son of his father;
e)he was then abducted from Kathmandu by YCL cadres in approximately May 2010 when he was held for four days but not “significantly harmed” during this period. The YCL wanted him to provide money and to join their party and were aware of his previous movements in Myagdi and Baglung; and
f)he has since heard that the Maoists have gone to the family’s village and other locations to look for his parents, and particularly his father. The Maoists had not actually entered his parents’ home because his father is unwell and they had threatened and harassed his parents from outside the house.
In relation to the issue of delay in applying for a Protection visa, the Delegate recorded in his Decision Record as follows:
When asked why he waited for 14 months after arriving to apply for Protection he stated that he had not been informed about the Protection Visa process. It was not until later that he had learnt about the Protection Visa after friends informed him. He subsequently contacted a solicitor and got legal advice and assistance in putting together his application. He had also been afraid that he would be deported due to the fact that he was on a fraudulent visa;
At interview he stated that he did [not] contact the Australian police or any other Government authorities to seek protection prior to this application because of his poor English. It was put to the applicant that an interpreter could have provided just as was being done for the interview in which we were involved. He responded that he did not consider that;…
In the result the Delegate found that the Applicant did not have a genuine fear of harm, nor was there a real chance that he would be persecuted if he were to return to Nepal. The Delegate took into account that upon entering Australia the Applicant did not immediately apply for a Protection visa, but waited some 14 months before doing so. Further, the Delegate took into account country information to the effect that the Nepali police had taken an active stance against illegal and violent Maoist / YCL activities and that the Applicant would have effective state protection in Nepal. The Delegate also found the Applicant’s claims of fearing harm due to his imputed political opinion to be implausible.
Finally, the Delegate found significant inconsistencies in the timing of events relevant to the Applicant’s claims to protection, and because such inconsistencies bear on the Grounds relied upon by the Applicant in this Court, set out here is the relevant portion of the Decision Record of the Delegate:
Inconsistencies
There are significant inconsistencies between the timeline in the applicant’s written claims and the information he presented at interview. At interview he stated that he fled his village with his family after the incident in which his father was humiliated in 2055 [1998] and travelled to Beni in Myagdi. He stated that the house was burned down later in their absence. Though he had written that the home was burned down 4 years later in 2059 [2002] he clarified that 2059 [2002] was when they were informed of it having been burned down. He claimed that it actually occurred 10 or 12 days after they fled to Myagdi in 2055 [1998]. However he subsequently stated that they were in Myagdi from 2059-2061 [2002 – 2004] which would indicate that they did in fact flee in 2059 [2002], with the house being burned down in that year, creating a significant inconsistency in the applicant’s claimed timeline and resulting in the period between 2055 – 2059 [1998] – [2002] being unaccounted for.
At interview the applicant also indicated that the assault he suffered from the Maoists whilst travelling to his uncle’s house occurred in 2061 [2004] whilst I note that in his written claims he indicated that it occurred 1 month after relocating to Myagdi on 25/11/2059 [9/3/2002]. Furthermore his written claims would indicate that he arrived in Kathmandu after fleeing from Baglung in 2060 [2003] whilst at interview his statements would indicate that it was in the period of 2061 – 2062 [2004] – [2005].
Taken collectively with consideration of other aspects of the applicant's claims below, such inconsistencies regarding key parts of the applicant’s claims strongly lead me to believe that the applicant’s claims appear not to reflect the reality of his circumstances.
(Gregorian calendar dates added)
Decisions of Refugee Review Tribunal
The Applicant through his solicitor lodged an application for merits review of the Delegate’s decision with the then Refugee Review Tribunal (RRT) on 8 February 2012 and gave a copy of the Decision Record of the Delegate to the RRT at that time.
The Applicant appeared before the RRT on 15 May 2012 to give evidence and present arguments (first RRT hearing). By decision dated 17 May 2012 the RRT affirmed the Delegate’s decision not to grant to the Applicant a Protection visa (first RRT decision). The RRT considered the Applicant’s claims to protection under both the Refugees Convention criterion and the complementary protection criterion. The Applicant applied for judicial review to the then Federal Magistrates Court of Australia and in the result the first RRT decision was quashed and remitted by consent of the parties on 21 November 2012.
The Applicant then appeared at a hearing before the RRT differently constituted on 29 August 2013 to give evidence and present arguments (second RRT hearing). By decision dated 14 February 2014 the RRT affirmed the Delegate’s decision not to grant to the Applicant a Protection visa (second RRT decision). The RRT considered the Applicant’s claims to protection under both the Refugees Convention criterion and the complementary protection criterion. The Applicant then applied for judicial review in this Court, which was dismissed by Judge Nicholls on 13 May 2016 in judgment bearing medium neutral citation [2016] FCCA 1139. This judgment was successfully appealed by the Applicant to the Federal Court of Australia, with the second RRT decision being quashed on 2 February 2017 and remitted to the Tribunal by Bromberg J in judgment bearing medium neutral citation [2017] FCA 55.
Decision of Tribunal
On 24 July 2017 the Tribunal invited the Applicant to appear at a hearing before it scheduled for 15 August 2017. The Applicant then appeared before the Tribunal on 15 August 2017 to give evidence and present arguments with the assistance of an interpreter in the Nepali and English languages (third Tribunal hearing). The solicitor did not attend the hearing.
At [1] – [24] of its Decision Record the Tribunal recorded the background relevant to the application for review, recording at [16] – [18] the relevant procedural history as to the first RRT hearing and at [19] – [20] as to the second RRT hearing.
At [25] – [59] of its Decision Record the Tribunal recorded its consideration of the Applicant’s claims and evidence.
At [30] of its Decision Record the Tribunal recorded its concerns about the credibility of the Applicant’s claims, as follows:
[30] The Tribunal had significant concerns in relation to some key aspects of the applicant’s claims. These concerns arose as a result of various inconsistencies in and the unpersuasive nature of his evidence regarding these claims throughout the process…
At [43] of its Decision Record the Tribunal stated:
[43] For all the above reasons the Tribunal finds the applicant not to be a credible, truthful or reliable witness. The totality of his evidence shows a propensity to fabricate claims and tailor and shift his evidence in a manner which achieves his own purpose.
In particular, the Tribunal found that:
a)the Applicant had given inconsistent evidence regarding his ongoing communication with his parents back in Nepal. His evidence at the second RRT hearing suggested that he was in contact with his parents, whilst at the third Tribunal hearing the Applicant said that he had not been in contact with his parents between 2010 and early 2016: see [33] – [35] of the Decision Record of the Tribunal;
b)the Applicant had told the Delegate at interview that he had received threatening phone calls and letters after moving to Kathmandu, but failed to advance this claim at the third Tribunal hearing, nor had he made any such claim in his oral evidence to the RRT, which in this connection I take to be a reference to the second RRT hearing: see [39] of the Decision Record of the Tribunal;
c)the Applicant had claimed at the third Tribunal hearing and the second RRT hearing that he was beaten by the Maoists when abducted in or about May 2010, but had not made any such claims in his Protection visa application or Applicant’s Statement and the Decision Record of the Delegate indicated that the Applicant had stated at the interview with the Delegate that he was not “significantly harmed” during the period of the abduction: see [40] of the Decision Record of the Tribunal;
d)the Applicant had been unable to provide persuasive evidence as to why the Maoists had continued to target him for many years and at different locations in Nepal when he did not have a political profile, did not participate in political activities, disliked politics and wanted to carry out “social work”: see [41] of the Decision Record of the Tribunal;
e)the 14 month delay between the Applicant’s arrival in Australia and the lodgement of his application for a Protection visa cast doubts on the credibility of his claims and the genuineness of his fear of persecution: see [42] of the Decision Record of the Tribunal;
f)it did not accept that the Applicant was threatened, harassed or harmed by Maoists or anyone else in Nepal and rejected the factual basis of the Applicant’s claims to protection: see [44] of the Decision Record of the Tribunal;
g)country information did not indicate that pro-Monarchy supporters were targeted or subjected to harm by Maoists and that since 2011 there had been no reports of violence perpetrated by Maoists or others against conservative pro-Monarchy supporters: see [47] of the Decision Record of the Tribunal; and
h)there was no persuasive evidence in country information sources to suggest that returnees from Australia to Nepal are targeted for donations or extortion because of their perceived wealth, and that the DFAT Country Information Report for Nepal of April 2016 (DFAT Report) indicated that Nepali returnees do not appear to face any specific problems: see [54] – [55] of the Decision Record of the Tribunal
Accordingly, the Tribunal concluded that it was not satisfied that Australia had protection obligations to the Applicant under either the Refugees Convention criterion or the complementary protection criterion and it affirmed the Delegate’s decision not to grant to him a Protection visa.
Grounds of Attack on Decision of Tribunal in this Court
At the hearing in this Court Mr J. R. Young of Counsel appeared for the Applicant and Mr P. Knowles of Counsel appeared for the Minister. The Grounds relied upon were as follows:
1. The Second Respondent made jurisdictional error in that it failed to have regard to a relevant consideration namely that the applicant had through no fault of his own been required to give evidence on numerous occasions over a lengthy period of time.
2. The Second Respondent made jurisdictional error by drawing impermissible inferences about the applicant’s evidence before the second Refugee Tribunal.
3. The Second Respondent made jurisdictional error by treating a decision record of the delegate as equivalent of a transcript and/or by having not regard to the possibility that the decision record was not accurate.
4. The Second Respondent made jurisdictional error at [42] by accepting that applicant was credible that the applicant was fearful of claiming protection in Australia because he had used a false passport but inconsistently finding that delay in applying for protection cast doubts on his credibility.
5. The Second Respondent made jurisdictional error by making a decision which was irrational or unreasonable.
Consideration
Ground 1
In support of this Ground Mr Young, at [15] of the Applicant’s Written Submissions filed on 2 September 2019, submitted that:
[15]Shortly put, the AAT was required to consider the lengthy delays and the number of occasions on which the Applicant had been required to give an account. Both matters occurred because of jurisdictional errors by RRT-1 and RRT-2, not because of any fault on the part of the Applicant.
At the hearing Mr Young submitted that it was incumbent on the Tribunal to record in its Decision Record words to the effect of:
Before [the Tribunal] engaged in the process of comparing the evidence given at various stages of the processing of [the Applicant’s] Protection visa application, it is noted and taken into account that it has been over a period of six years on four different occasions and those circumstances have been factored into the assessment credibility [of the Applicant].
The basis of this Ground was said by Mr Young to be the decision of Weinberg J in SZIIF v Minister for Immigration & Citizenship (2008) 102 ALD 366 (SZIIF). In that case the applicant had been forced to repeat his claims and the relevant events on multiple occasions over a period of four years. The Tribunal had found some five inconsistencies in the versions given by the applicant over the relevant period of time. In reviewing the Tribunal’s decision, Weinberg J at 381 [88] – [91] said as follows:
[88] I accept the minister’s submission that NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 is not directly in point. However, the principles underlying the majority view seem to me to be relevant, by analogy, to the particular circumstances of this case.
[89]As previously indicated, the appellant first gave a detailed account of his past history in the Ukraine as far back as 2001. Some of the events that he described were relatively recent at that stage. However, through no fault of his own, he was obliged over the next 4 years to recall repeatedly the details of events that must have become more difficult to remember with the passage of time.
[90]In my view, T3 was obliged to take that aspect of delay into account when considering any possible inconsistencies between the various statements that he made regarding these events.
[91]Importantly, so far as this case is concerned, the appellant found himself in the invidious position of having to repeat his story on no fewer than seven separate occasions, spread out over a period of more than 4 years. T3 was obliged to have regard to that fact when considering what significance, if any, to attach to such differences as there may have been between these accounts.
In a passage relied upon by Mr Young, Weinberg J in SZIIF at 380 [83] said as follows:
[83]Speaking generally, therefore, NAIS stands as support for the proposition that lengthy delay, unacknowledged by the tribunal in its reasons for decision, can give rise to jurisdictional error. This may be because the tribunal has failed to take into account a matter that it was obliged to consider: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; 66 ALR 299. Alternatively, it may be that the tribunal has denied the applicant a fair hearing, and thereby denied him procedural fairness.
However, this statement by Weinberg J must be read secundum subjectam materiam in the factual context summed up by Weinberg J at 382 [97] – [98]:
[97] Had the inconsistencies that T3 identified been both real and substantial, one might well understand how it arrived at its conclusion. Even then, it would have been highly desirable for T3 to have stated expressly that it had taken into account the dangers associated with drawing sweeping conclusions from what on any view was a mere handful of discrepancies.
[98] However, when one adds to the mix the fact that none of the inconsistencies identified were properly analysed, several seemed to have misstated the appellant’s earlier position, and some involved summaries taken out of context, the entire process appears to have gone badly wrong. To use the language of Gummow J in NAIS, the tribunal did not give “proper, genuine and realistic” consideration to the appellant’s case. He was not afforded the hearing to which the law entitled him.
I do not take anything said by Weinberg J in SZIIF as stating a requirement or principle of law that when considering an applicant’s claims or evidence as made over a period of years the Tribunal must in its decision record verify, state and acknowledge that it had factored delay and the passage of time into its consideration of possible inconsistencies and its assessment of an applicant’s credibility. No other Judge of the Federal Court or this Court has taken the decision in SZIIF as so requiring.
Rather, the relevant applicable principle is that specific consideration of the facts and the relevant Tribunal decision must be given to an assessment and determination of whether credibility findings are so irrational, illogical or unreasonable as to be infected with jurisdictional error. This principle is stated by the Full Court of the Federal Court of Australia comprised of Kenny, Kerr and Perry JJ in DAO16 v Minister for Immigration and Border Protection and Another (2018) 258 FCR 175 at 183 – 184 [30] in the following terms:
[30](1) … The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J)…
In this case, the Tribunal in its Decision Record took into account inconsistencies in the Applicant’s claims as made:
a)in the Applicant’s Statement forming part of his Protection visa application lodged on 22 July 2011;
b)at the interview with the Delegate on 14 December 2011;
c)at the second RRT hearing on 29 August 2013; and
d)at the third Tribunal hearing on 15 August 2017.
The Tribunal published its Decision Record relatively soon after the third Tribunal hearing on 5 December 2017. In my view the Tribunal, in finding and relying on inconsistencies in this body of evidence in coming to its decision in the specific circumstances of this case, did not commit jurisdictional error: see also in this regard [38] – [51] below.
First, the Tribunal was not bound to accept the Applicant’s claims uncritically, nor was it as a matter of law precluded from considering inconsistencies in those claims as made over the period from July 2011 to August 2017. As Flick J said in SZUHJ v Minister for Immigration & Border Protection [2018] FCA 331 at [24]:
[24]… To confine the Tribunal to only being permitted to make a finding consistent with the factual account being given by a claimant in the absence of rebutting evidence and not by reference to inconsistencies in that factual account would be inconsistent with the task entrusted to the Tribunal by the legislature to make findings of fact by reference to the evidence before it and would be inconsistent with authority: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 70 AAR 413. Although the difficulties of proof which may be encountered by a claimant seeking protection may readily be accepted, the Tribunal is not obliged to accept uncritically a factual account given by, or submissions advanced by, a claimant: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 451 to 452 per Beaumont J.
Second, it is entirely conventional for the purposes of criminal and civil litigation for there to be consideration and comparison of any prior inconsistent statements or evidence of a party (or witness) in the course of the assessment of the trustworthiness and veracity of that party (e.g. see s.43 of the Evidence Act 1995 (Cth)). If the party has earlier said one thing and then subsequently says another thing about the same subject matter, this may, if not minor or trivial, throw suspicion on the accuracy or credibility of the party’s evidence. Likewise if that party makes a claim later which they had not made earlier but which might have been expected to have been made at that earlier point of time.
In this context in AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205 the Tribunal in its decision had pointed to a number of inconsistencies in important aspects of the applicant’s claims as made at various times, and between her accounts and those given by her husband at an earlier Tribunal hearing. The Tribunal also considered that the applicant’s answers were evasive and vague when those inconsistencies were put to it. In that context, Perry J said at [24]:
[24]The existence of such inconsistencies in important aspects of the appellant’s claims, and the failure to explain those inconsistencies in a way that the Tribunal considered was satisfactory, provide a logical and rational basis for the Tribunal’s adverse credibility findings. In this regard, it is well established that the Tribunal is not required to accept, uncritically, any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451–452 (Beaumont J); Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596 (Kirby J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion is not established: see eg Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at [7] (Heerey J).
In in SZUSH v Minister for Immigration and Border Protection [2016] HCATrans 112 at [10] Nettle J said as follows:
[10]…. it is not the law that the credit and reliability of an applicant’s evidence is irrelevant in the determination of a review of an application for protection visa. Where the establishment of facts is dependent on oral evidence, the evidence must be assessed and weighed in light of its apparent credibility and reliability and findings must be made according to that assessment (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 [(SGLB)] at 21-22 [42] – [44] per Gummow and Hayne JJ.)
No doubt, as SZUSH contends, refugee cases involve special considerations where credibility is in issue (SGLB (2004) 207 ALR 12 at 33 [73(7)] per Kirby J, in dissent.) As Kirby J observed in SGLB, “There is no necessary correlation between inconsistency and credibility in such cases”. It is necessary to keep in mind that there may be a host of ethnic, cultural, lingual, physical, behavioural and psychological considerations peculiar to refugees which, depending upon the circumstances of a given case, may explain inconsistencies that would otherwise be thought to reveal dishonesty. But, that said, it remains a process of evaluation for the tribunal of fact to determine what, if any, weight is to be placed on an applicant’s version of events; and where, as here, there were many reasons to disbelieve an applicant’s version of events it is not in error to reject it.
In DQA16 v Minister for Immigration and Border Protection [2018] FCA 2086 from [87] – [89] Wigney J stated, with reference to Kirby J’s statement in SGLB recorded by Nettle J at [34] above, as follows:
[87] First, Kirby J was in dissent in SGLB. There is no indication that the majority judges agreed with that part of Kirby J’s judgment which the applicant sought to rely on. It is “not proper to seek to extract a binding authority from an opinion expressed in a dissenting judgment”: Federation Insurance Ltd v Wasson (1987) 163 CLR 303 at 314.
[88] Second, the opinion which was expressed by Kirby J in any event did not support the broad propositions which appeared to underlie the applicant’s arguments concerning review grounds one, three, four, six and seven. Kirby J was simply observing that inconsistencies in a review applicant’s evidence do not always undermine the applicant’s credit. In that context, his Honour emphasised that the Tribunal should exercise considerable caution in arriving at adverse assessments of a review applicant’s credit in certain circumstances. That is not to say that the Tribunal can never have regard to inconsistencies in a review applicant’s evidence, even inconsistencies in relation to matters that do not directly relate to the applicant’s claims to fear persecution, in assessing the applicant’s credibility. Kirby J’s observations also plainly do not support the even broader propositions which appeared to be advanced by the applicant; that, in conducting its review and making its decision, the Tribunal cannot assess the credibility of the applicant based on his or her evidence and any inconsistencies in it, and that the credibility of a review applicant is an irrelevant consideration.
[89] In all the circumstances, it was open to the Tribunal to ask the applicant questions about matters which did not directly relate to his claims of persecution, including questions about his siblings. It was also open to the Tribunal to have regard to any inconsistencies in the applicant’s evidence in assessing his credibility as a witness and the credibility or reliability of his evidence generally. It was equally open to the Tribunal to have regard to the applicant’s refusal to answer certain questions in assessing his credibility. The applicant’s submissions to the contrary had and have no merit.
In my view Ground 1 is not made out and fails to establish jurisdictional error.
I now turn to Grounds 2 and 3, which both in the Applicant’s Written Submissions and at the hearing Mr Young argued together with, and as related to, Ground 1.
Grounds 2 & 3
In relation to these Grounds, Mr Young submitted that the Tribunal was bound to state in its Decision Record that it had considered or listened to a transcript or audio tape of the Applicant’s interview with the Delegate and the second RRT hearing before it was entitled to make factual findings of inconsistency related to them. In other words, it was submitted that the Tribunal was not entitled to simply rely on what was stated about the content of the Applicant’s evidence by the Delegate in his Decision Record or by the RRT in the second RRT decision. In connection with these Grounds Mr Young pointed specifically to [34], [37] and [39] – [42] of the Decision Record of the Tribunal.
I note that there is insufficient evidence before me to establish affirmatively one way or the other whether or not the Tribunal actually listened to an audio recording of the second RRT hearing. The Decision Record of the Tribunal does not expressly state that it had listened to the Applicant’s evidence as recorded at the second RRT hearing. On the other hand, s.19D(4) of the Administrative Appeals Tribunal Act 1975 (Cth) provides that a reconstituted Tribunal, such as the Tribunal here, “may have regard to any record of the proceeding before the Tribunal as previously constituted (including a record of any evidence taken in the proceeding)” and there are expressions in paragraphs of the Decision Record of the Tribunal that have a tendency to suggest that the Tribunal did listen to a recording of the second RRT hearing. For example, at [34] the Tribunal stated that the Applicant’s evidence at the third Tribunal hearing “contrasted sharply” with his evidence at the second RRT hearing on the issue under consideration in that paragraph, and at [37] the Tribunal stated that the Applicant at the second RRT hearing “had asserted with certainty” a particular matter. However, in the end I cannot on the balance of probabilities make an affirmative finding in this regard. Nevertheless, in my view the Tribunal was entitled to rely on the RRT’s statement of what the Applicant’s evidence had been at the second RRT hearing. The Applicant did not lead any evidence in this proceeding to suggest that the RRT’s statement of the content and substance of his evidence at the second RRT hearing was inaccurate, nor did he tender any transcript of the second RRT hearing.
In my view these Grounds also fail to establish jurisdictional error. It is obviously the case that the Tribunal had to exercise its own independent judgement in considering the application for review, and to properly consider all of the evidence and submissions placed before it. However, when an application for review of a delegate’s decision is remitted, as here, the requirement to consider the application independently and afresh does not mean that the process of review must proceed uninstructed by all that preceded it. As the Full Court of the Federal Court of Australia comprised of Tracey, Murhpy and Mortimer JJ stated in MZZZW v Minister for Immigration (2015) 234 FCR 154 (MZZZW) at 171 [60] said:
[60]As Beazley J stated in Huluba v Minister for Immigration and Ethnic Affairs (1995) 59 FCR 518, merits review involves considering an application for review, and the arguments and claims put forward in it, “afresh”. In SZDFZ v Minister for Immigration and Citizenship (2008) 168 FCR 1 at [20] — to which we refer below — Flick J spoke of a reconstituted tribunal being called upon to “resolve afresh the claims made”. That does not mean the merits review decision-maker considers matters uninstructed by what has gone before, whether at first instance or in other review applications which have not finally determined the merits review process…
At 176 [84] of MZZZW the following was stated:
[84]… We agree with the Minister’s submissions that the Tribunal can have regard to the nature and contents of a previous decision on review in respect of the same applicant, and the same visa application. That view is consistent with the views of the Full Court in AZAAD v Minister for Immigration and Citizenship (2010) 189 FCR 494 at [41], and Flick J in SZDFZ at [20]-[21] and [28].
The general principle was stated in MZZZW at 173 [67] as follows:
[67]What we have said should not be taken to cast doubt on the proposition that it is legitimate, and indeed in many cases, necessary, for a differently constituted tribunal to have regard to what occurred during any hearing or process previously conducted by a tribunal in relation to the same applicant. However, the use to which a tribunal might legitimately put the specific findings and conclusions of a tribunal whose decision has been quashed is a matter we consider best left for a case where that issue must necessarily be determined.
This general principle was also stated in Blackman v Commissioner of Taxation (1993) 43 FCR 449 at 455 – 456 by Gray J, in the following terms:
The obligation of the Tribunal to find facts is not diminished where there has been a successful appeal to the Federal Court of Australia under s 44 of the Administrative Appeals Tribunal Act. If the Court allows the appeal, sets aside the decision of the Tribunal, and remits the case to be heard and decided again, the Tribunal retains its responsibility to find the facts. If, as is usually the case, the remitted matter is heard and decided by a Tribunal differently constituted from the Tribunal whose decision was the subject of the successful appeal, the differently constituted Tribunal will have to find facts. In the exercise of its powers, and subject to the submissions of the parties, the Tribunal may decide to act on the findings of fact made by the earlier Tribunal, or some of them. It may decide, as the learned senior member did in the present case, to rely upon evidence which was before the earlier Tribunal. It may decide that the proper course is to receive all or some evidence afresh. The parties might agree that some or all of the findings of fact previously made are to be treated as findings of fact by the Tribunal. The order of the Court may limit the ambit of the issues with which the Tribunal is to deal upon a case being remitted. The order of Jenkinson J in the present case cannot be construed as containing such a limitation. The course which the Tribunal takes in relation to any case will depend on the circumstances of that case, but it will be the responsibility of the Tribunal which ultimately decides the case to determine for itself the facts.
Turning to the specific paragraphs of the Decision Record of the Tribunal referred to by Mr Young, at [39] – [40] the Tribunal points to the inconsistency between the Applicant’s evidence at the interview with the Delegate as recorded in the Delegate’s decision to the effect that when he was abducted from Kathmandu he was not “significantly harmed”: see [9(e)] above, with his evidence at the second RRT hearing and the third Tribunal hearing that he had been beaten. At [40] the Tribunal also pointed out that the Applicant had made no mention of being physically harmed in 2010 in his Applicant’s Statement. The ordinary and first meaning of the verb “beat” in this context is “to strike repeatedly and usually violently”: Macquarie Dictionary Online, 2020.
It is clear from the terms of [39] – [40] of the Decision Record of the Tribunal that it was relying on the Decision Record of the Delegate as to what was said by the Applicant at the interview with the Delegate. In my view no jurisdictional error is established by the Tribunal’s use of the Delegate’s Decision Record in this regard. The Tribunal was entitled to take the Decision Record of the Delegate on its face.
The Applicant, through his solicitor, had given a copy of the Decision Record of the Delegate to the Tribunal for the purposes of s.424A(3)(b) of the Act. He knew from that Decision Record that the Delegate had found significant inconsistencies in the timing relevant to his claims to protection: see [12] above. He did not lead any evidence in this Court to suggest that the Decision Record of the Delegate was wrong in recording that he had told the Delegate at interview that he had not been “significantly harmed” in May 2010, nor did he tender any transcript of the interview with the Delegate to establish that the Delegate was wrong in recording that the Applicant had said that he had not been significantly harmed in May 2010.
Further, it appears at [40] of the Decision Record of the Tribunal that this inconsistency in the Applicant’s evidence about the abduction in May 2010 was discussed with him at the third Tribunal hearing, and there is no suggestion that the Applicant denied the inconsistency perceived by the Tribunal, but rather the Applicant sought to explain it away by reason of his feelings of trauma and tension. It was not legally unreasonable or procedurally unfair for the Tribunal to expect the Applicant to give coherent and consistent evidence about the circumstances of his claimed abduction in May 2010 when this event was claimed by him to be the direct and immediate catalyst for him to leave Nepal and come to Australia on 8 May 2010.
At [34] of its Decision Record the Tribunal contrasts the Applicant’s evidence before it with the evidence he had provided at the second RRT hearing. The Tribunal was here concerned that at the third Tribunal hearing the Applicant had stated that his father owned and ran a convenience store in Baglung, and that his mother worked in the same store assisting his father: see [32] of the Tribunal’s Decision Record. However, the Tribunal recorded at [34] that at the second RRT hearing the Applicant had claimed “that his father was not working because he was mentally disturbed”, that “His father had not worked since 1998” and “that his mother and sister, however, continue to run a shop in Baglung to support the family financially and that they have operated this business from 2005”. As recorded at [40] the Applicant did not deny the inconsistency, but sought to explain it. In my view, the Tribunal’s statements of the content and substance of the Applicant’s evidence at the second RRT hearing as recorded in the second RRT decision was accurate.
At [25] of the second RRT decision it was recorded and accepted that “the Applicant’s mother and sister continue to run a shop in Baglung to support the family financially and that they have operated this business since 2005; this was the Applicant’s evidence to the present Tribunal”; at [26] “that his mother and sisters have run a shop [in Baglung] there from 2005 to support the family financially and that the shop is still operating” and at [28] that the Applicant “told the Tribunal that his father remains living with the family in Baglung, although he said he is mentally disturbed because of what happened with Maoists and that the Maoists have now made him (the applicant) the target because his father is now old”.
It is true that it is not expressly stated in the Decision Record of the second RRT decision that the Applicant’s father had not worked since 1998, but it is a fair inference from that Decision Record that the father had not worked since at least 2004 when the family moved to Baglung or 2005 when the mother and sister started to operate a shop. In any event even if the Tribunal had made an error in misconstruing the Applicant’s evidence at the second RRT hearing in this respect, such error would not have been a critical, material or decisive error, and there is no error of law in simply making a wrong finding of fact: see Brennan J in Waterford v The Commonwealth (1987) 163 CLR 54 at 77. I further note that once again the Applicant has not led evidence in this proceeding that the RRT’s statement of the force and effect of his evidence at the second RRT hearing was wrong, nor has he tendered a transcript of the second RRT hearing.
Finally, at [37] of its Decision Record the Tribunal correctly states the Applicant’s evidence at the second RRT hearing as recorded in the second RRT decision at [21], [25] – [26] and [32] in connection with the Applicant’s parents and siblings all living together in Nepal and his brother having disappeared and having been taken away by the YCL some two months prior to the second RRT hearing on 14 February 2014, and then contrasts that evidence with the Applicant’s evidence given at the third Tribunal hearing in relation to his parents and brother as recorded at [36].
In my view there is nothing in [36] – [37] of the Decision Record of the Tribunal which constitutes legal error by the Tribunal, and its reliance on the Applicant’s evidence as given at the second RRT hearing as recorded at [34], [37] and [39] – [42] does not establish jurisdictional error. The Tribunal was entitled to have regard to the second RRT’s statement of the content and substance of the Applicant’s evidence at the second RRT hearing and to compare and contrast that evidence with his evidence at the third Tribunal hearing. The inconsistencies found by the Tribunal were not minor, trivial, irrational or legally unreasonable and the inferences drawn were permissible. Further, in the circumstances the Tribunal was not required to advert to the possibility that the second RRT decision was not accurate and Grounds 2 and 3 are not made out.
Ground 4
The Applicant arrived in Australia on 8 May 2010 but did not apply for a Protection visa until 22 July 2011. There is a clear body of law that an Applicant’s delay in applying for a Protection visa is not an irrelevant consideration in the determination of the genuineness of claims and credibility: see the decision of BAX15 v Minister for Immigration & Border Protection [2016] FCA 491 in which Perry J in the Federal Court of Australia reviewed the principles concerning the relevance of a delay in lodging an application for a Protection visa.
The Delegate in his Decision Record and the RRT in the second RRT decision considered and found that the Applicant’s delay in lodging his Protection visa application, given his very serious claims to protection and why he said he could not return to Nepal, weighed against the genuineness of his claims.
The Tribunal at [42] of its Decision Record also considered the issue of delay. In my view, nothing in that paragraph is legally unreasonable or irrational. In the third sentence of [42] the Tribunal summarises the Applicant’s explanation for the delay given to the Department as being:
a)the Applicant did not know about Protection visas;
b)the Applicant’s English was poor; and
c)the Applicant was fearful of approaching Australian authorities because he had arrived on a false passport.
In the fourth, fifth and sixth sentences sentence of [42] the Tribunal summarised the Applicant’s explanation for delay given at the second RRT hearing, including that “he was fearful of being sent back because he had arrived on a false passport”. In the seventh sentence the Tribunal recorded his evidence at the third Tribunal hearing. Then in the eighth sentence of [42] the Tribunal noted that it had considered the Applicant’s explanations for delay and appreciated that he might have been “worried” about approaching the Australian authorities due to having entered Australia on a false passport. Nevertheless, the balance of the paragraph recorded that the Tribunal did not accept the Applicant’s explanations for delay.
In other words the Tribunal considered, understood and appreciated that the Applicant might have had a reluctance and worry about disclosing that he had entered Australia on a false passport, but rejected such reluctance and the other explanations as being sufficient to satisfactorily explain and constitute a satisfactory reason for the delay of some fourteen months in applying for a Protection visa, and that the delay cast doubts on the credibility of his claims and the genuineness of his fear of persecution. In reasoning in this way I can discern no legal error or any inconsistency as asserted by the Ground.
Ground 4 is not made out.
Ground 5
This Ground concerns the Applicant’s claim of fear of harm upon return to Nepal as a member of a particular social group of foreign returned persons who would be asked for donations by Maoists, as made in the solicitor’s letter and recorded at [6] above.
This Ground is obviously cast in generalised and unparticularised terms, but in the Applicant’s Written Submissions and at the hearing Mr Young submitted that the Tribunal had focussed on a straw-man particular social group of “businessmen forced to return to Nepal”, rather than the particular social group of simply “foreign returned people” who would be asked for donations by the Maoists upon return to Nepal. At [33] of the Applicant’s Written Submissions the following was submitted:
[33]Whether it is a failure to consider a claim on unreasonableness, the AAT have made jurisdictional error. The claim related to returners being more at risk from Maoists. The response was that he would not be perceived as a businessman- something he had never claimed.
At the hearing Mr Young further submitted:
MR YOUNG: And then paragraph 55 [of the Decision Record of the Tribunal] doesn’t accept there’s a real chance or a real risk that the applicant will be identified as a businessman. Well, he never said he would be identified as a businessman, so it’s simply setting out a straw-man to knock over. The issue was about whether returnees from countries outside of Nepal were at greater risk of being targeted for persecution. That’s the particular social group, and that’s the one that had to be considered. The issue about the businessman arises simply because the tribunal chose to quote a part of a DFAT report dealing with donations and businessmen, which didn’t deal with the question of returnees at all. And in my submission, that consideration by the – by the tribunal of that particular claim – and that is an entirely discrete claim, nothing to do with the previous claim – was on a basis which was unreasonable. Unless there’s anything further, those are my submissions.
The Tribunal clearly understood the nature of the claim made by the Applicant. At [13] of its Decision Record when reciting the Applicant’s claims to protection it stated with reference to the solicitor’s letter of 22 June 2011:
[13] … The applicant also fears that he will be asked for more donations from the Maoists. ‘Foreign returned people’ are more vulnerable and at risk of being targeted by the Maoists.
Then in the first sentence of [51] the Tribunal stated:
[51]The applicant has claimed that he fears being asked for donations from the Maoists and that ‘foreign returned people’ are more vulnerable to being targeted by the Maoists…
The Tribunal then referred to the DFAT Report and a report on Nepal from the Immigration and Refugee Board of Canada of November 2015 (Canadian Report). At [51] of its Decision Record the Tribunal stated that it had discussed this country information with the Applicant at the third Tribunal hearing. The DFAT Report in part stated:
… On this basis, DFAT assesses that while businesses themselves may be targeted, individual members of the private sector are ordinarily free from harassment and intimidation.
At [52] of its Decision Record the Tribunal quoted part of the Canadian Report, including “that instances of kidnapping and extortion by Maoist groups ‘are increasingly rare occurrences from a political party perspective’ and are ‘not common any longer’” and “targets for extortion are those with money, and targets are not identified as Nepal Congress or monarchist … But they collect it largely from the business tycoons”.
Then in the first sentence of [54] of its Decision Record the Tribunal specifically noted that the Applicant had not claimed that he would be a businessman if he were to return to Nepal. The Tribunal concluded at [54] in the following terms:
[54]… The Tribunal has been unable to find any persuasive evidence in the sources consulted to suggest that returnees from Australia to Nepal are targeted for donations or extortion because of their perceived wealth. Indeed, DFAT’s Nepal report indicates that Nepali returnees do not appear to face any specific problems. Without more, the Tribunal does not accept that, in this context or any other, the applicant’s departure from Nepal on a false passport would make the applicant a target for donations, extortion or any other harm. The Tribunal does not accept that there is a real chance or a real risk that he will be subjected to extortion or will be asked for donations for this reason.
Finally at [55] of its Decision Record the Tribunal expressed its conclusion on this issue as follows:
[55]… the Tribunal does not accept that there is a real chance or a real risk that the applicant will be identified as a businessman if he were to return to Nepal. The Tribunal does not accept that there is a real chance or a real risk that he will be subjected to extortion or will be asked for donations for this reason. The Tribunal does not accept that there is a real chance or a real risk that he will be targeted by Maoists for extortion or donations if he returns to Nepal. The Tribunal does not accept there is a real chance that the applicant will be targeted for extortion amounting to serious harm because of his expressed or imputed political opinion; or membership of any particular social group, including his family, businessmen in Nepal, perceived wealthy persons in Nepal, returnee from Australia, wealthy returnee from Australia or any other particular social group apparent on the face of the evidence. The Tribunal does not accept that, as a necessary and foreseeable consequence of being removed from Australia to Nepal, there is a real risk that he would be subjected to significant harm because he would be identified as a businessman, because he would be perceived as a wealthy returnee from Australia and/or because of the length of time he has been in Australia. The Tribunal does not accept that there is a real chance or a real risk that he will be targeted by Maoists or any one in Nepal for the reason of his political opinion, his membership of any particular social group or a combination of these reasons in Nepal.
In my view the Tribunal did not misconstrue the Applicant’s claims to fear harm as a returnee to Nepal, but rather found that there was no country information that supported the proposition that forced returnees were targeted by Maoists. However, it found that country information did suggest that businesses, rather than individuals, were likely to be victims of extortion. Having identified this information the Tribunal obviously considered that it became relevant to consider whether the Applicant would return as a businessman or a wealthy person, because this might affect whether or not he would be a victim of extortion.
In my view, there is no irrationality or legal unreasonableness in the Tribunal’s consideration of the Applicant’s claim to fear harm as a returnee at [51] – [55] of its Decision Record where this issue was considered.
Ground 5 is not made out.
Conclusion
The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 9 September 2020
1
26
4