SZTXL v Minister for Immigration
[2015] FCCA 1210
•22 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTXL & ORS v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1210 |
| Catchwords: MIGRATION – Application seeking review of decision of Refugee Review Tribunal refusing to grant applicant a Protection (Class XA) visa – whether Tribunal was incoherent, irrational or unreasonable – no error demonstrated – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 430 Migration Regulations 1994 (Cth), reg.2.08 |
| Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002(2003) 198 ALR 59 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| First Applicant: | SZTXL |
| Second Applicant: | SZTXM |
| Third Applicant: | SZTXN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 432 of 2014 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 28 August 2014 |
| Delivered at: | Sydney |
| Delivered on: | 22 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr JR Young |
| Solicitors for the Applicant: | G & S Law Group |
| Solicitor for the First Respondent: | Ms S Burnett of Clayton Utz |
| The Second Respondent: | The Second Respondent filed a submitting notice. |
ORDERS
For the purposes of Part 11 of the Federal Circuit Court Rules 2001 (Cth), SZTXL is appointed as litigation guardian of SZTXN.
The Application be dismissed.
The First and Second Applicants (SZTXL and SZTXM) pay the First Respondent’s costs and disbursements of and incidental to the Application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 432 of 2014
| SZTXL |
First Applicant
| SZTXM |
Second Applicant
| SZTXN |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court is an application filed 25 February 2014 under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”) dated 28 January 2014. By that decision, the Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister”), to refuse to grant the applicants Protection (Class XA) visas.
The solicitors for the Minister filed a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided is identified as the Court Book (“CB”) and has been marked as Exhibit “A”.
The applicants were granted leave to file and serve an amended application giving complete particulars of each ground of review and any additional affidavits upon which they wished to rely. The applicants were also granted leave to file and serve an outline of written submissions. The applicants elected not to file any amended application, however, did file written submissions on 21 August 2014.
On 3 September 2014 the first named applicant filed an affidavit sworn by himself on 2 September 2014, stating he consented to act as the litigation guardian for the third named applicant, SZTXN.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material. I have not made further attribution as this would make the summary unwieldy.
The first and second named applicants, who are citizens of Nepal, are husband and wife. The third named applicant is their infant child who was born in Australia.
On 14 October 2011, the first and second named applicants applied for Protection (Class XA) visas (CB 1). Only the first named applicant (henceforth known as “the applicant”) made independent claims. The second and third applicants made claims as members of the first applicant’s family unit (CB 197). The applicant and his wife originally arrived in Australia in May 2009, holding Student visas (CB 3 and CB 219). Their daughter was born on 15 March 2012 and, pursuant to reg.2.08 of the Migration Regulations 1994 (Cth) (the “Migration Regulations”), is taken to have applied for a Protection visa on 15 March 2012 (the third applicant was added to the Protection visa application on 23 May 2012 (CB 190)).
On 30 March 2012, the applicant attended an interview with a delegate of the Minister (CB 64 and 224-225). On 1 June 2012, the delegate of the Minister refused to grant Protection visas to the applicants (CB 218-230).
On 27 June 2012, the applicants’ representative lodged an application for review of the delegate’s decision with the Tribunal (CB 218-230). On 28 August 2012 the applicants appeared at the hearing before the Tribunal (CB 265).
On 28 January 2014, the Tribunal affirmed the delegate’s decision (CB 286-303).
Applicants’ claims before the Tribunal
The applicant claimed that Australia has protection obligations to him as a result of fear of persecution or the risk of significant harm from Maoists in Nepal, by reason of his political profile as an active member of the Nepali Congress Party (the “NCP”) (CB 7-10, 59-63, 66-67 and 277-278).
Before the Tribunal the applicant claimed that:
a)He had a history as a victim of extortion and physical assault;
b)In the period from 2007 to 2009, he moved around Nepal in response to threats and actual physical violence. In 2008, he was suspected by Maoists of having informed against them to the Nepalese Army, resulting in two Maoists being shot and killed. He and his wife decided to apply for Student visas so that they could escape from the Maoists;
c)He visited Nepal from 20 February to 19 March 2011 to visit his father who was seriously ill. He claimed that he stayed indoors during this period as he feared harm if he was found by Maoists;
d)He would be targeted for extortion upon return to Nepal because Maoists would assume that, as a returnee from Australia, he would have funds; and
e)He had previously been charged with and later acquitted of murder in Nepal. Family members of the murdered woman were “blood thirsty” and would assault him if he returned to Nepal. This claim was an additional claim to the original claims made by the applicant. It was received by the Department of Immigration and Citizenship (as it was then) on 29 March 2012, the day before the applicant’s scheduled interview with the delegate (CB 66-177).
Tribunal’s Decision
The Tribunal found that the applicant fabricated his claims to be in need of protection. It found that the applicant was not a credible witness (CB 293 at [24]).
At [35] (CB 301) of the Decision Record the Tribunal stated that the applicant had been charged with and acquitted of homicide.
In its Decision Record, the Tribunal:
a)Set out numerous concerns relating to the applicant’s claims and evidence, including the documentary evidence that he presented (CB 294-296 at [24]-[35]);
b)Identified various aspects of the applicant’s evidence which it considered to be inconsistent and implausible, or lacking in reasonable detail (CB 293 at [24]);
c)Was not satisfied with the applicant’s explanation for the delay after his and his wife’s arrival in Australia in applying for a Protection visa (CB 296 at [25]);
d)Noted that the applicant gave evidence that he had previously obtained false Nepalese Police documents for the purposes of his Student visa application. This evidence reinforced the Tribunal’s concerns relating to documentary evidence obtained from Nepal. It noted that the Country Information indicated that fraudulent documents were prevalent in Nepal (CB 297 at [26]);
e)Rejected the applicant’s claim to have any political profile as an active member of the NCP such as to bring him to the attention of any Maoists groups (CB 297 at [27]). It rejected the applicant’s claim ever to have been a member of the NCP (CB 297 at [27]). The Tribunal identified specific aspects of the applicant’s claims and evidence which it considered lacked support, were implausible or were inconsistent (CB 298 at [28]). The Tribunal identified documentary evidence upon which it placed no weight, mindful of the possibility that the documentary evidence was not genuine. The Tribunal rejected the applicant's claim to have ever been extorted or threatened by Maoists (CB 298 at [29]). The Tribunal also rejected the applicant's claim relating to extortion if he returned to Nepal (CB 298 at [29]);
f)Considered the documents submitted by the applicant in support of his claim to have been threatened because of his homicide charges. The documents included two judgments of Nepalese courts and letters from the applicant's Nepalese lawyer containing information said to support the applicant's claims. The Tribunal identified concerns that it had regarding the veracity of the letters purporting to be from the applicant's Nepalese lawyer (CB 299 at [31]-[32]). It concluded that the letters were not genuine; and
g)Considered the written judgments of Nepalese courts submitted by the applicant. It was not able to make a clear positive finding that the court documents were fraudulent. On that basis, giving the applicant the benefit of the doubt, the Tribunal accepted that the court documents were genuine and that he was the person named in the documents as the accused. It accepted that the applicant had been charged with and acquitted of homicide. However, it rejected that he was the subject of threats by family members of the murdered woman, concluding that this claim had been fabricated (CB 300-301 at [33]-[35]).
The Tribunal thus found there was no relevant risk of harm to the applicant in Nepal. It concluded that there was not a real chance that the applicant would suffer serious harm in Nepal for any Convention reason (CB 202 at [42]), nor a real risk of any of the forms of harm relevant to the complementary protection criterion under s.36(2)(aa) of the Migration Act (CB 302 at [44]).
Current Proceedings
Grounds of Application
The application to the Court filed on 25 February 2014 pleads two grounds of review, as follows:
1. The Second Respondent made jurisdictional error by making at [35] a decision which was incoherent, irrational or unreasonable given the Second Respondents own findings favourable to the Applicants claims. (“Ground 1”)
2. The Second Respondent made jurisdictional error at [44] by inconsistency. The legal issue for consideration under s 36(2)(aa) of the Migration Act 1958. (“Ground 2”)
Applicant’s Submissions
The applicant submits that the Tribunal described some evidence given by the applicant as implausible or inconsistent, other evidence as exaggerated. However, in relation to the assessment of the claim about the husband of the murder victim (“Mr S”), inconsistencies and ‘non-persuasive’ explanations were taken into account. The fact that the Tribunal had accepted the largest claim made, being that the applicant had been charged with and acquitted of murder, was not taken into account. His claim that he fears retribution as a result was inextricably linked to this claim.
The applicant argues that the approach of the Tribunal at [35] of the Decision Record was to assess the credibility of the applicant only upon the basis of evidence which the Tribunal did not accept.
The applicant submits that nowhere does the Tribunal consider whether the fact that the applicant had been charged with and acquitted of murder gives rise to a well-founded fear of persecution.
The Tribunal, at [34] (CB 300), dealt with a claim by the applicant that the family of the murder victim, including Mr S, might harm the applicant.
The Tribunal stated at CB 300 that “the lead co-accused in the death of Mr S’s wife was convicted and given life imprisonment”. From this it concluded that the applicant, also tried for the murder, is entirely fabricating claims to fear Mr S and his family.
The applicant argues that these are utterly capricious and irrational reasons. It would be reasonable for any person charged and acquitted of the murder of a woman to fear that her husband and family might not accept the verdict. To use this as a basis to brand the applicant a fabricating liar is utterly unfair. There is nothing ‘implausible’ about the applicant’s claims in that regard.
The reasoning that the Tribunal relies upon is a general finding that the applicant fabricated his claims, such as the claim he feared harm from Mr S and his family.
However, the flaw in the process is that the applicant was not found to have generally fabricated claims. The Tribunal accepted that he had been charged with and acquitted of the murder of Mr S’s wife.
A subjective fear claimed of possible harm from Mr S and his family could not, in those circumstances, be dismissed as a fabrication. It may or may not have had an objective basis, but the Tribunal had to have regard to its own finding including those in favour of the applicant.
The Tribunal effectively found that:
a)There was a homicide of the wife of Mr S; and
b)The applicant was arrested, charged and ultimately acquitted.
At [34] of the Decision Record, the Tribunal considered issues of the lateness of the claims about the homicide charges and the threats from Mr S. The Tribunal rejected the latter part of the claim while accepting the former.
Like any fact-finder, the Tribunal is entitled to accept all, part, or none of the evidence offered. However, it must act rationally, reasonably and without caprice.
Here, the Tribunal made findings which were irrational or unreasonable: Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611. In the circumstances of its own findings, it was irrational or unreasonable for the Tribunal.
As the decisions of the High Court in Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332 and the Full Federal Court in Sullivan v Civil Aviation Safety Authority (2014) 141 ALD 50 show, reasonableness requires the Tribunal to act with due appreciation of its responsibilities, including the requirement to make decisions which are fair and just.
The very same material which the Tribunal considered before accepting the applicant’s claims in relation to the homicide charges was used to reject his claims to fear Mr S. In relation to the assessment about the claims to fear Mr S, the applicant was treated as someone who had made generally implausible claims. That was not a position which the Tribunal could rationally maintain in view of its findings at [33] and [35] of the Decision Record (CB 300 and 301 respectively).
At the hearing, Mr Young, representing the applicants, referred the Court to a number of dates identified in the Tribunal’s Decision Record. Specifically, the applicants applied for Protection visas on 14 October 2011 and the delegate conducted an interview by telephone with the applicant on 30 March 2012 (CB 287 at [5]). Mr Young then took the Court to CB 66 at [2], a letter from the applicant titled “Additional Documents for submission and corrections”, dated 25 March 2012, where the applicant makes the claim that he was charged with the murder of Ms S. That paragraph states:
2. That I was charged with the murder of [Ms S], the wife of [Mr S], a resident of Tanahuun District, without my own guilt and without any proof. Relevant letters including verdict of Appellate Court, Hetauda, and Chitwan District Court, with decisions confirming my innocence, are enclosed.
(CB 66)
It was argued that the critical aspect was, as accepted by the applicant, that the first time this claim was made was shortly before the interview with the delegate. The applicants then sought review with the Tribunal, with the hearing being conducted on 28 August 2012. There were post-hearing submissions (reproduced at CB 276), which constituted a cover letter and a statutory declaration by the applicant. The statutory declaration deals with the claim in relation to the court case in Nepal and why the applicant had not mentioned it in the applicants’ Protection visas application (see CB 291-292 at [19]-[21]).
Mr Young referred the Court to the Tribunal’s finding at CB 299-301 at [30]-[35] and CB 301-303 at [39], [43]-[44]. Mr Young contends that all these aforementioned paragraphs relate to the applicant’s claims about his court case in Nepal, the subsequent acquittal and his resulting Protection visa claim to fear persecution or, alternatively, the complementary protection claim to fear significant harm.
Mr Young argued the first issue in relation to the applicant’s claim is at CB 294 where the Tribunal deals with the difficulties which it was having with the applicant’s claims in relation to the two matters. The Tribunal stated that the applicant gave inconsistent and implausible evidence about missing information from his Protection visa application. One example is the issue with the applicant’s nick name which he forgot to include. Mr Young submits that the Tribunal “…put a number of difficulties with the first named applicant’s evidence to him…” (CB 294 at [24]), being evidence that is capable of being regarded as implausible or inconsistent. Mr Young contends that the critical issues are the court hearing, the homicide charges and the failure to mention these matters up to the point of the hearing before the delegate. At CB 294 at [24(a)] of its Decision Record, the Tribunal stated:
24. …
a. He gave inconsistent and implausible evidence about missing information from his protection visa application:
At the commencement of the hearing, the first named applicant confirmed all of the information in the application forms and his statement was correct, except, he forgot to include the details of his nickname on the forms and wishes to add the homicide charges. He explained that he forgot to tell his migration agent about the nickname and the migration agent did not ask him. He said the migration agent too did not ask him about any charges of periods of imprisonment. Then he said he did not put that information on the forms because he was not guilty and he spent no time in jail, only in a detention centre. When asked about only raising the threats from Mr S just prior to his interview, he said he did not include those claims in is statement because he was trying to settle it. When asked to explain that, he said because he wanted to separate it from his own person. He further explained he wanted to mention it later on because he was trying to settle this dispute with Mr S, but because he was unable to, he gave that information to the delegate before the interview. The Tribunal put to the first named applicant his trying to settle the statement was not persuasive. It noted he provided a large bundle of documents to the delegate. These would have taken a long time to prepare and translate. Some of the documents are dated as early as two months before the interview. This suggests he had expended a lot of time and effort to prepare these documents. He was not just trying to settle the dispute with Mr S.
(CB 294)
Mr Young further submits that the Tribunal considered two claims together, the first being that there had been the court hearing where the applicant was charged with homicide and acquitted thereof, and that the applicant had a subsequent risk of persecution or a risk of harm in the future. The applicant also put forward explanations for why he had not mentioned this claim in the original application. In post-hearing submissions, the applicant claimed ([1] at CB 277):
1. I say that I have a fear of persecution from the Maoists on the grounds of political opinion. There are some details which were not covered in my statement provided to the Department…
3. I say that I did not mention about the court case before hoping that it will be settled soon. However, later I have honestly put this case before the Department and the Tribunal as well. However, I want to inform about this case in writing as well.
(CB 277)
Then at [8] in post-hearing submissions, the applicant claimed:
8. I say that I can not go back to Nepal because I have a genuine fear from the Maoists, Janatantrik Tarai Mukti Morcha (JTMM) and Society where [Mr S] lives. They continuously provide warning and threatening to me to take my life. Therefore, I do not like to take risk and go back to Nepal and I request the Tribunal to consider this fact.
(CB 278)
Mr Young argues that it is clear that the applicant is not claiming that the threat is not limited to Mr S, but is considerably wider, however, the Tribunal deals with these two claims together at CB 299.
The Tribunal also dealt with the issue about the non-disclosure of the applicant’s nickname, identified in the court documents, and stated at [32]:
32. …The Tribunal is not persuaded by his explanation that he both forgot to tell his migration agent about the nicknames and the migration agent did not ask him if he was known by any other name…
(CB 300)
Then at [33] the Tribunal stated:
The Tribunal is mindful however of the dates of surrounding events, namely the closer of the first named applicant’s pharmacy following his arrest and the applicants departure from Nepal upon his no longer being required to attend the trial. The correlation in those dates weighs considerably in favour of concluding the person named in the court documents is the first named applicant…
(CB 300)
The Tribunal continued at [33]:
…His have (sic: He has) possession of such courts documents too weighs in his favour. The inconsistencies in his evidence regarding his bail and detention though, together with the lateness of the claim; his failing to disclose the nickname; the country information regarding the prevalence of fraudulent documents and seeking to rely on the discredited letters of the Nepalese lawyer all weigh in favour of finding the first named applicant is not one and the same person as the person named in the court documents and that he has never been known by such a nickname….
Mr Young contends that what the Tribunal is saying is that there is a body of evidence which, taken on its own, would weigh heavily in favour of finding that the applicant is not the person named in the document. The critical aspect of the finding is that the Tribunal was:
…Unable to make a clear positive finding that the court documents are fraudulent, the Tribunal has given the benefit of the doubt of the first named applicant and accepts the court documents are genuine and that he is the person named in the court documents. It accepts that the first named applicant was arrested on charges of homicide. He was acquitted of those charges at trial, that acquittal upheld on appeal.
(CB 300 at [33])
Mr Young contends that the Minister draws attention to the fact that the Tribunal has given the applicant the benefit of the doubt. Mr Young argues that it is simply a consequence of the fact that when the matters were all weighed up, the Tribunal was satisfied, as highlighted at [33]:
… It accepts that the first named applicant was arrested on charges of homicide. He was acquitted of those charges at trial, that acquittal upheld on appeal.
Once the Tribunal had reached satisfaction, following that it accepted that the applicant had been truthful, the Tribunal went onto say:
34. The Tribunal maintains concerns about the lateness of the first named applicant raising the claim regarding the homicide charges and in particular, the claim threats from Mr S and associated parties….
Mr Young contends that the Tribunal, despite accepting that the applicant had told the truth, stated that it was not persuaded by the applicant’s explanation. It is submitted that it is not a rational or a fair process of reasoning for the Tribunal to only look in relation to a claim which has a clear connection. Mr Young further submits that it is irrational on behalf of the Tribunal to treat the applicant as somebody who had simply provided cumulative material and inconsistencies in his evidence, particularly when it found the claim to be true.
Mr Young contends that the Tribunal was irrational and unfair when it decided that the substantial claim of the applicant, which the Tribunal ultimately found to be true.
The crux of the applicant’s argument for Ground 1 is that the Tribunal’s Decision Record does not consider whether the fact that the applicant had been charged with and acquitted of murder gives rise to a well-founded fear of persecution. Instead, the Tribunal dealt with the claim that the husband of the murder victim, Mr S, might harm the applicant. The applicant also argues that the Tribunal was to assess only the credibility of the applicant upon the basis of the evidence which the Tribunal did not accept. It is submitted that the reasoning of the Tribunal relies generally on the fact that the applicant has fabricated his claims to dismiss the applicant’s claims, in particular, that the applicant feared harm from Mr S and his family. The applicant argues the flaw in the process is that the applicant was not found to have generally fabricated the claims.
Minister’s Submissions
Ground 1
At [35] of the Decision Record, the Tribunal stated:
35. In summary, the Tribunal accepts the applicant was charged and acquitted of homicide. Due to cumulative [sic] the material inconsistencies in his evidence, implausible claims and non-persuasive explanations, the Tribunal rejects that he was threatened by Mr S, the family of Mr S or society where Mr S lives. The Tribunal considers the first named applicant has fabricated these claims as means [sic] to remain in Australia.
(CB 301)
In the absence of particulars it is not possible to identify how the Tribunal's reasoning was “incoherent, irrational or unreasonable”. In the Minister’s submission, it cannot be said that the Tribunal's decision or finding that the “applicant fabricated claims” was so unreasonable that no reasonable decision-maker could have made it (See Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626-629 per Gleeson CJ and McHugh J; Buck v Bavone (1976) 135 CLR 110 at 118-119 per Gibbs J and Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 at 683 per Lord Greene MR), or that its findings lacked an “evident and intelligible justification” (Minister for Immigration and Citizenship v Li (supra) at [75]). The Tribunal gave clear reasons why it made adverse credibility findings, namely, the numerous concerns and inconsistencies it identified in the applicant’s evidence. Accordingly, the Minister submits that Ground 1 must fail.
To the extent the applicant contends that the two findings contained at [35] of the Decision Record were inconsistent, it is submitted that the complaint is without merit. As a matter of logic, the finding that the applicant was charged with and acquitted of murder has no necessary bearing on the second finding that the applicant had not been threatened with reprisal by the murdered woman’s family.
Ground 2
At [44] of the Decision Record, the Tribunal stated:
44. The Tribunal found above the first named applicant does not have a well-founded fear of persecution on any ground. Given the real chance test for well-founded fear of persecution is the same as the real risk test of significant harm, for the same reasons set out above, the Tribunal is not satisfied the first named applicant has a real risk of significant harm. The Tribunal considers there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the first named applicant being removed from Australia to Nepal there is a real risk the applicant will suffer significant harm, in the form of: arbitrary depravation [sic] of life; the death penalty being carried out; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore the first named applicant does not meet the requirements of s.36(2)(aa).
(CB 302)
Ground 2 is not particularised. The Minister submits that, absent particulars, it is not possible to discern what is meant by the references in Ground 2 to “inconsistency” and “the legal issue for consideration”. It is submitted that no errors are disclosed in the reasoning process of the Tribunal, or its application of the provisions of ss.36(2)(aa) and 36(2A) of the Migration Act, as set out in [44] of the Decision Record. The Tribunal correctly identified the relevant degree of risk required to satisfy the complementary protection criterion: Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 at [26], [297] and [342]. It also correctly identified the forms of harm relevant to the complementary protection criterion: s.36(2A) of the Migration Act.
At the hearing Ms Burnett, representing the Minister, argued that there is nothing irrational about the Tribunal considering the applicant’s claim, nor is it the case that a threat of harm for the murdered woman’s family must follow the fact that the applicant was one of the people charged with murder. Ms Burnett argued that in terms of the purported unreasonableness, it is not the case that one person must find the same as the Tribunal did, on the same facts. What must be shown is that the Tribunal has been incoherent, irrational and/or unreasonable. Ms Burnett submits that [34] of the Decision Record notes that the Tribunal had concerns in relation to the delay of the murder charge and the alleged threats from Mr S and associated parties. The Tribunal was not persuaded by the applicant’s explanation as to why he withheld the claim of threatened harm to the delegate and noted that he had spent considerable time preparing documents prior to his interview with the delegate.
Ms Burnett argued that the Tribunal found it implausible that the applicant would be trying to settle a dispute with Mr S, while Mr S was threatening to kill him. It found that the evidence of the threats were vague and without detail. It found that there was no evidence of Mr S trying to find the applicant or threatening him as he relocated from town to town in Nepal. There was no evidence of the complaint being made to police. The Tribunal placed no weight on the letter of 1 March 2012 from the Nepalese lawyer of the applicant, or on the letter from 9 May 2012, purportedly from the same law firm. The Tribunal considered it unlikely that Mr S would threaten the applicant, given the conviction and the sentence of life imprisonment of the co-accused and, ultimately, considered the claim to be fabricated.
The Minister argued that a proper analysis of the Tribunal’s reasoning discloses that it was not unreasonable and as such no error of law arises as a consequence.
Consideration
The applicants claim the Tribunal made a jurisdictional error at [35] of its Decision Record by making a decision that was incoherent, irrational or unreasonable, given the Tribunal’s findings that were favourable to the applicant’s claims. Paragraph [35] is reproduced above at [49]. This paragraph, however, cannot be read in isolation.
A requirement of s.430 of the Migration Act is for the Tribunal to set out the evidence upon which material findings of fact are based. The Tribunal does this under the heading “Consideration of Claims and Evidence”commencing at CB 289. In SZMDS (supra) at [33], their Honours Gummow ACJ and Kiefel J stated at [33]:
33. Section 430(1) obliged the RRT, in making its decision, to prepare a written statement setting out its decision (par (a)), its reasons for the decision (par (b)), the findings on any material questions of fact (par (c)) and referring to the evidence or any other material on which those findings of fact were based (par (d)). The obligation is to set out the findings on what the RRT considers to be material questions of fact; this focuses upon the thought processes of the decision maker, and may disclose jurisdictional error.
(Footnote omitted)
The Tribunal provided its Decision Record, setting out the history of the Application for Review and the relevant law. The Tribunal goes on to provide a detailed account of the consideration of the claims and evidence at [12]-[47] therein. The Tribunal succinctly identifies each of the applicant’s claims and the evidence provided by the applicant. The Tribunal found many inconsistencies, fabrications and concerns with the applicant’s account, being:
a)The applicant’s delay in applying for a Protection visa at [25] of the Decision Record where it stated:
25. … The Tribunal considers the delay in the applicants applying for a protection visa and his return to Nepal is inconsistent with having a genuine fear of harm if the first named applicant returns to Nepal. It considers the delay and return to Nepal to be further evidence supporting its finding the first named applicant had fabricated his claims for protection in an attempt to remain in Australia.
(CB 297)
b)The prevalence of document fraud in Nepal at [26] of the Decision Record where it stated:
26. … The Tribunal expressed it would consider any evidence the applicants provided but because of the concerns it had with his oral evidence, it had heightened concerns too about the documentary evidence.
(CB 297)
c)The applicant’s claim to fear harm from Maoists and Janatantrik Termai Mukti Morcha (“JTMM”) and the two letters provided as evidence at [27] of the Decision Record where it stated:
27. … The first letter states he was a student union member… and the second letter stating he was a NC member. The Tribunal considers both letters were self-serving attempts to manufacture a political profile in support of the NC… The Tribunal considers the first named applicant has sought to manufacture a political profile as a popular active NC member as a means to justify Maoists and JTMM targeting him.
(CB 297-298)
d)The claimed incidents of harm by the Maoists and JTMM at [29] of the Decision Record where it stated:
29. The Tribunal rejects that the first named applicant was extorted or threatened by Maoists in the city which he ran his pharmacy because of his NC activities or due to the success of his pharmacy business… The Tribunal nevertheless considers the first named applicant has sought to manufacture a scenario in which he could involve himself in such notorious Maoist activities as a means to apply for protection in Australia…
(CB 298)
e)The two letters from the defence lawyer in Nepal at [31]-[32] where the Tribunal stated:
31. … The letter dated 9 March 2012 is only in English…. The letter dated 1 March 2012 is in Nepalese with an English translation. The letterhead is noticeably different to that of the 9 March letter, although both letters are said to issue from the same legal office, within a few days of each other. The signature of the lawyer on the two letters is materially different…
(CB 299)
32. …The Tribunal considers the letters another occasion on which the first named applicant has sought to provide non-genuine documents in an attempt to advance a visa application.
(CB 300)
f)The lateness of the applicant’s claim regarding the homicide charges and the threats from Mr S at [34] where the Tribunal stated:
34. …The Tribunal is not persuaded by the first named applicant’s explanation he withheld making that claim to the delegate while the first named applicant was trying to settle a dispute with Mr S… The Tribunal considers it implausible that the first named applicant would be contacting Mr S if Mr S was threatening to kill him. The evidence of the first named applicant regarding the threats of Mr S and others is vague and without detail…. The Tribunal considers it unlikely Mr S, his family or the society where he lives would harbour any desire, let alone continuously threaten to kill the first named applicant given the conviction of the lead co-accused. The Tribunal rejects the claims Mr S is blood thirsty for the first named applicant and considers this another example of the first named applicant fabricating claims in order to apply for protection in Australia.
(CB 300)
Despite the above findings, the Tribunal accepted the evidence of the applicant that he had been arrested and charged with homicide (CB 300 at [33]). In the absence of the Tribunal being able to make a clear positive finding that the Nepalese court documents were fraudulent, it gave the applicant the benefit of doubt, accepted that they were genuine and that he was the person named in them (CB 300 at [34]).
The applicant complains that the Tribunal accepted the largest claim, being that the applicant was charged with and acquitted of murder. However, his claim that he fears retribution, an assertion inextricably linked this finding, was not accepted by the Tribunal for reasons that were incoherent, illogical or unreasonable.
The decision of Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 identifies how a Tribunal can fall into jurisdictional error. At [82] therein their Honours McHugh, Gummow and Hayne JJ stated:
82. It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal)
“falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”
“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.
(footnote omitted)
There are two preliminary points that should be made before considering the evidence. First, the starting point in considering what inferences may be drawn is the extent of the obligation under s.430(1) of the Migration Act. Amongst the obligations imposed by that provision is for the Tribunal to refer in its statement of reasons to the evidence upon which it based its findings of material facts: s.430(1)(d). Neither that provision nor anything else in s.430(1) requires the Tribunal to give a line by line refutation of the evidence for the applicant, either generally or in those respects where there is evidence contrary to findings of material facts made by the Tribunal: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [65]. Thus, the absence of reference to corroborative material in the Tribunal’s reasons does not necessarily support an inference that the material was overlooked.
The second preliminary point is that the Tribunal’s statement of reasons is prepared at the end of the decision-making process. Gleeson CJ explained the import of this in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002(2003) 198 ALR 59:
14. Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. I do not think that the Tribunalmember intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him.
The Tribunal expressly states its reasons that due to the “…cumulative the (sic) material inconsistencies in his evidence, implausible claims and non-persuasive explanations…” the Tribunal rejected the applicant’s claim that he was threatened by Mr S, his family or the society where Mr S lives. The Tribunal held that the applicant had fabricated these claims as a means to remain in Australia (CB 301 at [35]). The key word in the above statement is “cumulative”, which is defined in The Australian Concise Oxford Dictionary as “an increasing or increased in amount, force, etc., by successive additions (cumulative evidence)”. Paragraph [35] of the Decision Record needs to be viewed in the context of the whole decision and not simply aspects of it.
As shown at [59] above, the Tribunal concisely and meticulously went through the applicant’s claims and evidence, and decided on its persuasiveness. At [33] of the Decision Record (reproduced at [41]-[43] above) the Tribunal considered the facts in relation to the applicant’s murder charge and acquittal. The Tribunal weighed up the correlation of dates surrounding the events, including the closure of the applicant’s pharmacy, his arrest and his departure from Nepal. The Tribunal concluded that the person named in the court documents was the applicant and the fact that he had these documents in his possession weighed heavily in his favour. The Tribunal also noted the inconsistencies in his evidence, being his failure to disclose his nickname, the country information on fraudulent documents in Nepal and his attempt to rely on discredited letters from Nepalese lawyers, all of which were factors that weighed against the applicant’s claim that he was arrested, charged with murder, then acquitted of that charge. Nonetheless, because the Tribunal was “[u]nable to make a clear positive finding the court documents are fraudulent…”, the Tribunal gave “…the benefit of the doubt to the first named applicant and accepts that the court documents are genuine and that he is the person named in the court documents” (CB 300 at [33]).
Despite the Tribunal finding that this one aspect of a greater claim was true, the Tribunal found the applicant had fabricated his claims generally and that he was not a credible witness. At [24] (CB 293) the Tribunal found:
24. …The Tribunal finds the first names applicant has fabricated his claims. It finds he was not a credible witness. Importantly, there were substantial and material inconsistencies and variations in the first named applicant’s claims in his written statement and his oral evidence to the Tribunal. During the hearings, the Tribunal put a number of difficulties with the first named applicant’s evidence to him, including:
a. He gave inconsistent and implausible evidence about missing information from his protection visa application:
…
b. He gave inconsistent and implausible evidence about bail and his detention after being charged:
…
c. He gave implausible evidence about his bail conditions:
…
d. He gave exaggerated evidence about his activities with the NC in the hometown of his uncle:
…
e. He gave implausible evidence about the shooting of senior Maoist leaders at his home village:
…
f. He gave inconsistent evidence about being abducted by Maoists in 2008:
…
g. He gave implausible evidence about the threats he faced from the Maoists and JTMM:
…
(CB 296)
In Minister for Immigration and Citizenship v SZOCT & Anor (2010) 189 FCR 577, his Honour Nicholas J stated at [84]:
84. The other matters relied upon by the Tribunal were logically and rationally capable of supporting the Tribunal’s finding that the respondent was not a witness of truth. Once the Tribunal found, as was open to it, that the respondent was not a witness of truth, it was also open to the Tribunal to hold that it was not satisfied that the respondent was a non-citizen to whom Australia owed protection obligations.
The applicant claims that the approach of the Tribunal at [35] of the Decision Record was to assess the credibility of the applicant only. It is submitted that nowhere did the Tribunal consider the fact that the applicant had been charged with and acquitted of murder could give rise to a well-founded fear of persecution.
The Tribunal at [35] (CB 301) summarises the findings of the previous paragraphs and stated that due the “cumulative material inconsistencies” in the applicant’s evidence it rejected the claim that the applicant was threatened by Mr S, the family of Mr S or the society where Mr S lives. The applicant’s complaint is that the Tribunal’s finding appears to only canvass the past fears of persecution and disregards any future harm the applicant may encounter. However, at [34] of the Decision Record the Tribunal states:
34. … The Tribunal considers it unlikely Mr S, his family or the society where he lives would harbour any desire, let alone continuously threaten to kill the first named applicant given the conviction of the lead co-accused. The Tribunal rejects the claim Mr S is blood thirsty for the first named applicant and considers this another example of the first named applicant fabricating claims in order to apply for protection in Australia.
(CB 300-301)
The Tribunal, at [36] of the Decision Record, expressly considered that it must look into the reasonably foreseeable future to consider the applicant’s risk of harm. It relevantly stated:
36. The Tribunal is mindful it must consider the applicant’s risk of harm not only currently but into the reasonably foreseeable future…
Specifically, the Tribunal refers to the chance of serious harm that the applicant faces presently, or in the reasonably foreseeable future. At [39] of the Decision Record, the Tribunal stated:
39. The first named applicant claimed he fears harms from Mr S and the family of Mr S and the society where Mr S lives. The implication is this is because of the first named applicant’s role in the death of the wife Mr S, a role for which he was charged and acquitted of any criminal responsibility. The Tribunal has rejected above that the claimed harm is credible. On that basis, the Tribunal again is not satisfied the first named applicant faces a real chance of serious harm now or in the reasonably foreseeable future due from Mr S, the family or Mr S or the society where Mr S lives if the first named applicant returns to Nepal.
(CB 301)
The applicant’s complaint that the Tribunal did not consider the applicant’s well-founded fear of persecution, stemming from the murder charge and acquittal, cannot be sustained. In the paragraph immediately above to [35] in the Decision Record, the Tribunal rejected the claim that the applicant would be persecuted or harmed by Mr S, his family or by the society in which Mr S lives. The Tribunal considered it unlikely that Mr S would continuously threaten to kill the applicant. At [39] of the Decision Record the Tribunal rejected that the applicant’s claim to fear harm was credible.
The applicant argues that at [34] the Tribunal deals with the claim that the family of the murder victim might harm the applicant. The Tribunal stated at [34] that the “…lead co-accused in the death of Mr S’s wife was convicted and given life imprisonment…”. The Tribunal found it unlikely that the applicant would be persecuted or harmed by Mr S, his family or by the society in which Mr S lives. The applicant claims that this finding is capricious and irrational as it would be reasonable for any person charged and acquitted of the murder of a woman to fear that her husband and family might not accept the verdict and seek revenge. It is argued that there is nothing implausible about the applicant’s claim and for the Tribunal to brand the applicant as a fabricating liar is unfair. In respect to decisions that are illogical or irrational, their Honours Crennan and Bell JJ in SZMDS (supra) stated at [135]:
… 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...
(emphasis added)
In SZSSC v Minister for Immigration and Border Protection & Anor (2014) 317 ALR 365 at [68]-[70], his Honour Griffiths J identified significant aspects of illogicality and irrationality in Tribunal decisions. At [68] –[70] his Honour stated:
68. In SZOOR, the appellant, who was a Pakistani citizen, claimed that he had been beaten in his home country because of his imputed political opinion. In support of his claim to be entitled to a protection visa, the appellant provided to the Tribunal documents which included a medical examination report relating to injuries which he said he had sustained in the attack, as well as a newspaper article and a letter of support. The Tribunal found that the evidence was fabricated and pointed to the fact that the date of the medical examination was before the date the assault was alleged to have occurred, the newspaper article misstated the date of the alleged attack and the letter was expressly disclaimed by its purported author. The Tribunal also took into account an anonymous “dob-in” letter which made allegations of fraud against the appellant and discredited his claim that he feared persecution. The Tribunal regarded the letter to be credible and it reasoned that it supported the Tribunal’s conclusion that the appellant had fabricated his claims. The appellant appealed to the Federal Magistrates Court and raised several alleged jurisdictional errors, including a claim that the Tribunal’s use of the anonymous letter was illogical or irrational. That claim was rejected and an appeal was made to the Full Court. The appeal was dismissed.
69. Justice Rares analysed various High Court decisions relating to irrationality and illogicality. His Honour’s analysis may be summarised as follows:
(a) there are differences in reasoning in the three separate judgments in SZMDS as to what suffices to support a finding that the decision under s 65 of the Act is irrational, illogical, and not based on findings or inferences of fact supported by logical grounds (at [2]);
(b) as Gleeson CJ observed in S20/2002 at [20], it is often unhelpful to discuss, in the abstract, the legal consequences of irrationality or illogicality or unreasonableness. It is necessary to identify and characterise the suggested error and then relate it to the legal rubric under which the decision is challenged. Moreover, disagreement with a decision-maker’s reasoning is not a sufficient basis to make out this ground (citing Minister for Immigration and Citizenship v SZJSS [2010] HCA 18; (2010) 243 CLR 164 at [34] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) (at [6]); and
(c) irrationality and illogicality as grounds for judicial review are distinct from an assertion that the decision-maker merely made a wrong finding of fact but, in the case of a jurisdictional fact, such as that created by s 65 of the Act, review is available on the grounds of irrationality or illogicality. Having regard to High Court authority, however, “even if the decision-maker’s articulation of how and why he or she went from the facts to the decision is not rational or logical, if someone else could have done so on the evidence, the decision is not one that will be set aside” and “[i]t is only if no decision-maker could have followed that path, and despite the reasons given by the actual decision-maker, that the decision will be found to have been made by reason of a jurisdictional error” (at [12] and [15]).
70. Justice McKerracher gave separate reasons in SZOOR, with which reasons Reeves J relevantly agreed (subject to one qualification which was relevant only to the particular facts (see at [115])). Justice McKerracher’s analysis of the relevant legal principles may be summarised as follows:
(a) not all errors of law made by a decision-maker will be jurisdictional errors and the reviewing court must not stray into the area of merits review, as opposed to jurisdictional review ([82]);
(b) fact finding is not subject to review for Wednesbury unreasonableness, and can only be impugned where the factual determination is “illogical,irrational or lacking a basis in findings or inferences of fact supported on logical grounds” ([83]);
(c) in determining whether illogicality gives rise to jurisdictional error it is important to emphasise that a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion ([84]); and
(d) having regard to the majority judgments in SZMDS, the test for review for jurisdictional error based on illogicality may be expressed as follows (at [85]):
Illogicality such as to amount to jurisdictional error will not be shown where the point is merely one upon which reasonable minds may differ or where it cannot be said that there is no evidence before the Tribunal upon which the decision could be based. Illogicality will not amount to jurisdictional error in every case. It must be such as to affect the decision...
The Tribunal found, giving the applicant the “benefit of the doubt”, that the Nepalese court documents in relation to the murder charge and acquittal were genuine and that the applicant was the person named in those court documents. As a matter of general principle, the weight to be given to particular items of evidence is a matter for the Tribunal (Minister for Immigration and Citizenship v SZJSS & Ors (2010) 243 CLR 164 at [33]). It is for the Tribunal to determine whether it accepts particular evidence. Overall, the Tribunal found that the applicant “was not a credible witness”. As argued by the Minister, this is not a case that “night follows day that a threat of harm from the murdered woman’s family” would automatically follow the fact that he was one of the people charged. One event does not predetermine the other.
I accept the Minister’s submission that as a matter of logic the finding that the applicant was charged with and acquitted of murder has no compulsory relevance on the second finding that the applicant had not been threatened with reprisal by the murdered woman’s family. The Tribunal has reliably identified the inconsistencies in the applicant’s evidence (identified at [66] above) and given weight to the applicant’s inconsistent and implausible evidence, and fabrication of most of his claims over the benefit of the doubt of a single claim.
In respect to Ground 2, Mr Young accepted that [44] (CB 302-303) saw the Tribunal comparing its findings to the complementary protection criterion. Mr Young contends that the applicant’s claim is to fear persecution from the Maoists, JTMM and the society in which Mr S lives. At CB 278, in post-hearing submissions, the applicant claimed:
8. I say that I can not go back to Nepal because I have a genuine fear from the Maoists, Janatantrik Tarai Mukti Morcha (JTMM) and Society where [Mr S] lives. They continuously provide warning and threatening to me to take my life. Therefore, I do not like to take risk and go back to Nepal and I request the Tribunal to consider this fact.
(CB 278)
The applicant argued that the applicant’s claim to fear harm beyond the threat of Mr S and his family, but society generally, has a wider application that the Tribunal did not consider (at [39] above). This claim refers to the applicant’s fear of the Maoists and the JTMM. The Tribunal at [27] and [29] of the Decision Record specifically identifies the applicant’s claims to fear harm from these groups and rejects those claims. At [27] the Tribunal found that the applicant “…sought to manufacture a political profile as a popular active NC member as a means to justify Maoists and JTMM targeting him” and at [29] the Tribunal held “…The Tribunal nevertheless considers the first named applicant has sought to manufacture a scenario in which he could involve himself in such notorious Maoist activities as a means to apply for protection in Australia…”. The applicant’s argument that the Tribunal did not look beyond the threat of Mr S and his family cannot be sustained as the Tribunal specifically looked at the claimed threat of persecution from a number of groups, but rejected these claims.
Mr Young contends that the applicant’s claim is wider than the Tribunal defines it at [44] (reproduced at [52] above). The Tribunal, at [43]-[44] of the Decision Record, sets out its consideration of the application of s.36(2)(aa) of the Migration Act.
Since the Migration Amendment (Complementary Protection) Act 2011 (Cth) amended the Migration Act in March 2012, the Tribunal has been required to consider whether Australia has protection obligations to applicants for Protection visas under the complementary protection criterion. The applicant and those, if any, who are assisting him with his application in this Court are unlikely to be aware of the existence of this obligation in the Migration Act, but it was known to the Tribunal and the Tribunal has addressed this issue.
A convenient summary of these new provisions are contained in the then Bill’s Second Reading Speech which occurred on 24 February 2011. The new provisions establish a criteria to grant a Protection visa in circumstances that engage Australia’s non-refoulement obligations under the Human Rights treaties and other refugee conventions and is summarised as follows:
Australia will not return a person to a place where there is a real risk that a person will suffer particular types of significant harm contained in the relevant human rights treaties, namely:
- the arbitrarily deprivation of life;
- having the death penalty carried out;
- being subjected to torture;
-being subjected to cruel or inhuman treatment or punishment; or
- being subjected to degrading treatment or punishment.
(Hansard, 24 February 2011)
The Tribunal, at [44] (reproduced at [52] above) found that the applicant does not have a well-founded fear of persecution on any ground. Given that the real chance test for well-founded fear of persecution is the same test as the real risk test in respect of significant harm, the Tribunal was not satisfied that the first named applicant has a real risk of significant harm.
The Tribunal found that on the evidence before it was not satisfied that the applicant would be subjected to harm amounting to significant harm under the complementary protection criterion. On a fair reading no error is apparent in this respect.
Conclusion
None of the grounds pleaded by the applicants nor any of the submissions made on behalf of the applicants can be sustained. On a fair reading of the Court Book and, particularly, the Decision Record no error on the part of the Tribunal is apparent.
The application should be dismissed with the first and second applicants ordered to pay the Minister’s costs.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 22 May 2015
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