SZUVE v Minister for Immigration
[2016] FCCA 1942
•2 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUVE v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1942 |
| Catchwords: MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (Tribunal) – nature of “credibility” and “findings on credibility” – whether Tribunal’s credibility findings were unreasonable – whether Tribunal made credibility findings after considering all of the evidence – whether Tribunal made error by not considering claim based on failure of state protection – whether Tribunal applied incorrect test of state protection – whether Tribunal made adverse credibility findings without considering whether applicant’s claim could be explained by battered persons’ syndrome – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.65, 91R, 414, 424AA |
| Cases cited: Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 |
| Applicant: | SZUVE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2098 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 15 July 2015 |
| Delivered at: | Sydney |
| Delivered on: | 2 August 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Mr T Silva of Silva Solicitors |
| Solicitors for the Respondents: | Mr J Pinder of Minter Ellison |
ORDERS
The application is dismissed.
The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2098 of 2014
| SZUVE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a national of Fiji, seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant to the applicant a Protection (Class XA) visa (Protection visa).
Claims for protection
In a statutory declaration that accompanied his application for a Protection visa, the applicant claimed he fears harm from his former wife, her boyfriend, and her relatives.[1] The applicant and his former wife were married in 2000. They have two children from the marriage. On 26 March 2012 the applicant and his former wife separated. The applicant claimed he was harmed because of his race and membership of a particular social group.[2] The applicant claimed he is a member of the particular social group of “[m]en of half caste (half native Fijian and half other race) formerly married to Fijian women and who after having had children with them are estranged from their former spouses”.[3]
[1] CB56, [1]
[2] CB56, [3]
[3] CB56, [3]
The applicant claimed his former wife comes from a family of “Chiefly Hierarchy”, and her family are the lawmakers in the village.[4] The applicant’s former wife’s family has power and influence outside the village because a large population of their tribe members who live and work outside the village.[5] The family also owns resorts and has a lot of money. The applicant claims the police in Fiji did not want to protect him because of his former wife’s family’s connections.[6]
[4] CB56, [1]
[5] CB56, [1]
[6] CB56, [1]
The applicant claimed to have been harmed because he is half-European and half-Fijian and is a “half caste”.[7] This was used to incite people against the applicant.[8] The applicant claimed he was not registered at birth under a tribe in Fiji because he is a half caste and, as a result, he has no say in the community or village.[9]
[7] CB56, [2]
[8] CB56, [2]
[9] CB56, [2]
The applicant claimed several incidents occurred before and after he and his former wife separated. Some of the incidents involved assaults or attacks, and some included attacks with objects such as a knife, rock, axe, and hot water. The applicant described some of these incidents in detail:
a)On 8 October 2011 the applicant’s former wife slashed the applicant with a kitchen knife, twice in the stomach, and once on his elbow during an argument.[10]
b)On 2 March 2011 the applicant’s former wife splashed hot water on the applicant’s back after he told her and her friends to stop drinking after the applicant came home from work and found them drunk. The applicant reported the incident to the police but nothing came of it because his former wife’s father’s first cousin was the officer in charge.[11]
c)On 25 March 2012 the applicant woke up after a big rock fell on the left side of his rib and saw his former wife running away. The applicant filed a complaint with the police and the same officer in charge came to counsel the applicant and his former wife. The applicant left his former wife after this incident.[12]
d)On 17 May 2012 the applicant organised without his former wife’s knowledge to see his children at his uncle’s house. His former wife found out and chased the applicant with a small axe causing an injury to the applicant’s elbow. The applicant’s uncle interfered and the applicant ran away.[13]
e)At a rugby game in August 2012, the applicant was pushed by boys from the village, had his neck squeezed by his former wife’s boyfriend, and was kicked by his former wife. The attack appeared to be in retaliation for the applicant’s calling his former wife’s parents and shouting at them after finding out from his daughter that his former wife had severely beaten their son.[14]
f)On 18 September 2012 the applicant waited for his children outside their school to talk to them. That evening the applicant was attacked by his former wife, her boyfriend and another man. The applicant was beaten and punched and threatened that the “next time you go to the school to see the children you better have a coffin ready for you”.[15]
[10] CB58, [6]
[11] CB58
[12] CB58
[13] CB59
[14] CB59
[15] CB60
The applicant also claimed that when he lived with his former wife she would throw his clothes out onto the street, and on one occasion she burned his rugby gear.[16] The applicant’s former wife also treated the applicant like a slave because she forced him to do unpaid work for her friends and relatives.[17] The applicant was verbally abused and humiliated many times because of his race; he was called insulting names and spat on by his former wife in front of others.[18] The applicant has run out of places to stay in Fiji because people know how powerful his former wife’s family is.[19] The applicant only has his children and elderly uncle in Fiji; his mother and sisters all live in Australia.[20] The applicant claims he was only able to leave Fiji after having a friend plead with his former wife’s parents to convince his former wife to consent to the applicant’s travel to Australia.[21]
[16] CB60
[17] CB60
[18] CB60
[19] CB60
[20] CB60
[21] CB60
Tribunal’s reasons for decision
The Tribunal was not satisfied the applicant faced a real chance of serious harm or that there was a real risk the applicant would suffer significant harm in Fiji in the reasonably foreseeable future.[22] Although the Tribunal considered the applicant’s oral evidence to be “largely consistent” with the claims set out in the applicant’s statutory declaration,[23] the Tribunal could not be satisfied that the “general consistency in detailing his claimed mistreatment by his wife in Fiji reflects the truth of those claimed incidents or that they have not been learnt or exaggerated to enhance the claims made”.[24] The Tribunal consequently rejected all of the applicant’s claims. It was not satisfied the applicant was beaten or attacked with an axe, knife, hot water, rock or any other weapon, or that he was physically or verbally abused by his former wife, in-laws, or any other people associated with them.[25]
[22] CB211, [40]-[42]
[23] CB56-61
[24] CB210, [38]
[25] CB210, [39]
The Tribunal considered some of the applicant’s evidence to be convincing and other aspects to be “exaggerated, unconvincing and untrue”.[26] The Tribunal had multiple concerns regarding the applicant’s evidence which it raised with the applicant during the hearing. The concerns the Tribunal identified were as follows (adverse matters):
a)The applicant claimed he experienced harm and attempts on his life since November 2010, and he told the Tribunal he feared for his life in Fiji for four years; yet the applicant told the Tribunal that he lodged his application for a Protection visa as a “last resort”.[27]
b)The applicant gave evidence that between 2010 and 2012 he approached the Fijian police around five times about the mistreatment by his former wife, in-laws, and his former wife’s friends and associates, but on each occasion nothing was done. In his written claims, however, he stated the police attended the house on two occasions to investigate his complaints. When the applicant was questioned by the Tribunal about whether he had looked into Fiji’s domestic violence laws, the applicant said he feels shy and embarrassed to look into them. The Tribunal found the applicant’s evidence difficult to reconcile and accept as true.[28]
c)The applicant’s evidence regarding his former wife’s boyfriend was “vague, uncertain and unconvincing”. The applicant told the Tribunal that he did not know where the boyfriend lived, he came to know about the boyfriend through his sister in Australia, he had heard rumours about his former wife having a boyfriend, and he was told by his sister that his family was told his former wife was seen drunk and with her top off at a bus stop with a group of people including her boyfriend.[29]
d)The applicant gave evidence that he continued living in the same household as his former wife and his in-laws between November 2010 and March 2012 “for the sake of his children”, but had an uncle that lived four houses away, and did not relocate there or anywhere else “until several years after he claims he began to experience severe violence and mistreatment in his home…”.[30]
e)The applicant gave evidence that he had a stable, full-time job and income working in fire rescue for over a decade, yet he continued to stay in his in-laws’ house between 2010 and 2012, and told the Tribunal that he was telling his former wife they should move out of her parents’ house into a rented home after the violence started in 2010.[31]
f)The applicant provided exact dates for the incidents detailed in his written claims, but he also stated that “the dates are only approximate intended to give some idea of the time frame”. When the Tribunal asked how the applicant recalled the exact dates, the applicant told the Tribunal that he had written the dates in a notebook in Fiji which he brought to Sydney with him, but his nephew had mistakenly thrown it out.[32]
g)Pursuant to s.424AA of the Migration Act 1958 (Cth) (Act), the Tribunal put to the applicant that his former wife had submitted a letter of support in relation to the applicant’s application for a tourist visa in November 2012. The Tribunal found this difficult to reconcile with the applicant’s explanation that he was able to obtain the letter after a friend pleaded with his former wife’s parents.[33]
h)The applicant’s oral evidence that he met his former wife while working at her family’s resort, her parents insisted they marry after his former wife fell pregnant, and the applicant and his family continued to live in the same household as his in-laws, appeared to the Tribunal to be inconsistent with his claims that his former wife’s family did not approve of him and hated him because he was a half caste.[34]
[26] CB202, [14]
[27] CB203-204, [18]
[28] CB204, [19]
[29] CB204, [20]
[30] CB204-205, [21]
[31] CB205, [22]
[32] CB206-207, [25]
[33] CB207, [26]
[34] CB207-208, [28]
The Tribunal did not accept the applicant had suffered harm because of his race. The Tribunal found that, while teasing has and may still occur in Fiji and there is a “racial character” to it, being called derogatory names did not rise to the level of serious harm as contemplated by s.91R of the Act.[35] The Tribunal also relied on the applicant’s having been schooled and having had an unbroken history of employment in Fiji.[36]
[35] CB208, [29]
[36] CB208-209, [30]
As to the applicant’s claim that he was a member of a particular social group, being “[m]en of half caste (half native Fijian and half other race) formerly married to Fijian women and who after having had children with them are estranged from their former spouses”; “non-Fijian spouses in conflict with Fijian spouses”; or “non-Fijian spouses seeking access to children from Fijian spouses”,[37] the Tribunal considered that the essential and significant reason for the harm claimed is because of the claimed breakdown of the relationship between the applicant and his former wife.[38] The Tribunal noted that the evidence did not suggest that the “persons from whom the applicant claims to fear harm would have any interest or desire in harming any other person who may ostensibly be a member of any of the particular social groups advanced for the applicant”.[39] The Tribunal was therefore not satisfied the claimed harm arose for the essential and significant reason of the applicant’s membership of any of the aforementioned particular social groups.[40]
[37] CB209, [31]
[38] CB209, [35]
[39] CB209, [35]
[40] CB210, [36]
Ground 1 - unreasonable credibility findings
The applicant relies on grounds 1, 2, 4, 5 and 8 of the grounds raised in his amended application for judicial review. Ground 1 is as follows:
The Tribunal made jurisdictional error in that it was unreasonable in making adverse credibility findings recklessly without a sound basis
Particulars
The Tribunal stated that “…some aspects of the applicant’s evidence impresses the Tribunal as convincing…”, see [14] at CB202. Later, the Tribunal made findings that the consistency of the applicant’s claims may be because (a) he may have learnt or (b) he may have exaggerated, without any foundation in fact. See [38]-[39] at CB210.
Note that the Delegate accepted the truth of the claims in its entirety. In page CB124 of his reasons the Delegate found that:
“Overall, the applicant presented his claims in a clear, consistent and forthright manner. Where inconsistencies or adverse information was put to the applicant, the applicant responded in a direct manner. Based on the information before me, I accept that the applicant’s marriage has broken down and that he has been subjected to physical and verbal abuse from his wife, his wife’s partner and her family and friends.[”]
There were 9 serious incidents (and [a] few others) about which the applicant gave evidence and none of them was of concern to the Tribunal.
In his written submissions the applicant relied on the following matters. First, the applicant, in his statutory declaration, identified “10 serious incidents” about which the Tribunal “could not find anything adverse”.[41] Second, the Tribunal began its assessment of the applicant’s credibility[42] by noting that some aspects of the applicant’s evidence impressed the Tribunal as convincing.[43] Third, the Tribunal “dealt with all other issues before it dealt with the applicant’s claims”.[44] Fourth, the Tribunal’s conclusion that it could not be satisfied that the consistency of the evidence the applicant gave to the Tribunal about the claimed incidents was not the result of the applicant’s having learnt or exaggerated those claimed incidents was arrived at without any foundation in fact.[45] Fifth, the Tribunal did not find the applicant had in fact learnt his evidence; it simply found the applicant may have learnt his evidence. The Tribunal “could not shake him on these claims and it failed to find things to doubt his claims”, and if the Tribunal “thought that the applicant may have exaggerated the claims . . . the Tribunal could have tested it but the Tribunal failed to do that and instead decided to dismiss it wholesale”.[46] This amounted to a failure by the Tribunal to exercise its jurisdiction, because it made findings on “core claims based on speculation and not facts”.[47]
[41] An Outline of the Final Submissions of the Applicant, [9]
[42] At CB202, [14]
[43] An Outline of the Final Submissions of the Applicant, [10]
[44] An Outline of the Final Submissions of the Applicant, [11]
[45] An Outline of the Final Submissions of the Applicant, [12], [13]
[46] An Outline of the Final Submissions of the Applicant, [14]
[47] An Outline of the Final Submissions of the Applicant, [14]
In his oral submissions, Mr Silva, who appeared for the applicant, submitted the Tribunal in fact relied on the possibility that the applicant learnt or exaggerated his evidence he gave of the incidents on which he relied as a ground for concluding it was not satisfied of the truth of the applicant’s claims.[48] Mr Silva also submitted that each of the matters on which the Tribunal relied for not accepting the applicant’s evidence was peripheral and, indeed, most of them were irrelevant, given the cogency and consistency of the applicant’s evidence. Mr Silva accepted that another way of succinctly stating his submission is that the matters on which the Tribunal relied were not matters on which it was reasonably open to the Tribunal to rely for not accepting what otherwise was a cogent and consistent set of claims.[49] Finally, Mr Silva submitted the Tribunal did not exercise its jurisdiction because it did not seek to “test” whether the applicant in fact memorised or exaggerated his evidence.
[48] T18.5
[49] T24.25
The Minister, on the other hand, submitted the Tribunal’s reasoning manifests a clearly intelligible foundation for its credibility findings, and the applicant’s challenge of the Tribunal’s reasoning is an attempt to engage in impermissible merits review.[50] During his oral address, Mr Pinder, who appeared for the Minister, also submitted that it was reasonably open to the Tribunal to rely on each of the matters on which it relied for not accepting the applicant’s claims.
[50] First respondent’s written outline, [11]
From this summary of the parties’ competing submissions, four questions arise.
a)Did the Tribunal, as the applicant submits, rely on the possibility of the applicant’s having learnt or exaggerated his evidence for not accepting the applicant’s claims, and, if so, did it rely on that possibility in a manner that manifests jurisdictional error?
b)Was it reasonably open to the Tribunal to rely on each of the matters on which it did rely for not accepting the applicant’s claims?
c)Was the Tribunal obliged to explore and make a positive finding about whether the applicant did in fact learn or exaggerate his evidence?
d)Did the Tribunal consider the evidence as a whole in deciding not to accept the credibility of the applicant’s claims?
Before I consider each of these issues, it would be useful to say something about the notion of “credibility”, and the nature of credibility findings in the context of the Tribunal’s review of decisions.
“Credibility” and the nature of credibility findings
It is a stock answer to challenges to credibility findings made by the Tribunal that “a finding on credibility . . . is the function of the primary decision maker par excellence”.[51] But what is “credibility”, and what is involved in making a finding on credibility?
[51] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407at [67] (McHugh J)
Credibility may be defined as “the quality or power of inspiring belief”.[52] When applied to testimony, credibility refers to the quality or power of the testimony to inspire belief. A finding by a tribunal, therefore, that testimony is not credible amounts to a finding that the testimony has no capacity to inspire belief, and it does not inspire the tribunal to believe, in the truth of the matters asserted by the testimony.
[52] Indiana Metal Products v National Labor Relations Board [1971] USCA7 173; 442 F.2d 46 at 51 (1971) (Seventh Circuit), quoting Webster’s Third New International Dictionary 1966
This conception of credibility may be criticised for being defined in terms of the decision-maker’s state of mind, that is, the decision-maker’s belief, rather than, or at least without reference to, the notion of probability.[53] Defining credibility in terms of belief, however, reflects the practice of courts and tribunals. Courts and tribunals, and indeed most decision-makers of any other kind, do not usually assess the credibility of evidence by assigning and calculating probabilities; they assess credibility according to the extent to which evidence induces a belief or satisfaction in the existence or non-existence of facts.
[53] See the discussion in S Odgers Uniform Evidence Law (Thomson Reuters, 12th ed, 2016) at [EA.140.60] of the differences in opinion about whether proof of a fact on a balance of probabilities requires belief of the existence of the fact.
Further, the reason for which a court or a tribunal considers evidence is to determine whether the evidence proves the existence or non-existence of alleged facts. The word “proof” itself, at least when used to denote the purpose or result of presenting evidence, has been defined as a state of mind. For example, “proof” has been defined as the “conviction or persuasion of the mind of a judge or jury, by exhibition of evidence, of the reality of a fact alleged”,[54] and as the “establishment by evidence of a requisite degree of belief concerning a fact in the mind of the trier of fact or the court”.[55] And as was said by Dixon J (as his Honour was) in Briginshaw v Briginshaw:[56]
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.
[54] Black’s Law Dictionary, 6th edition, referring to Ellis v Wolfe-Shoemaker Motor Co., 227 Mo. App. 508, 55 S. W. 2d. 309.
[55] Black’s Law Dictionary, 6th edition, referring to Calif. Evidence Code, § 190
[56] [1938] HCA 34; (1938) 60 CLR 336 at page 361
“Proof” of a fact has also been defined in terms of a tribunal’s being “satisfied” of the fact’s existence. Thus, in Hawkins v Powells Tillery Steam Coal Company Limited, Buckley LJ noted that a fact is proved when the “mind of the tribunal is satisfied that the fact is so”. [57] And in In re a Solicitor; ex parte The Prothonotary, Jordan CJ said: [58]
[I]n all cases before a civil tribunal, it is necessary, in order that it may be judicially determined that a fact exists, that the tribunal should be reasonably satisfied by evidence that it does exist. The tribunal is ordinarily entitled to be so satisfied if it finds that the preponderance of evidence points to the existence of the fact.
[57] [1911] 1 KB 988 at page 996
[58] (1939) 56 WN (NSW) 53
Given also that, under s.65 of the Act, the Minister may only grant a Protection visa if he or she is “satisfied”, and otherwise not grant a Protection visa if “not so satisfied” that the criteria for the granting of a Protection visa have been satisfied, it is appropriate, in the context of the Tribunal’s review of a decision pursuant to s.414 of the Act, to define “credibility” when it is applied to testimony and other evidence that may be before the Tribunal, as “the quality or power” of that testimony or other evidence “of inspiring belief”.
Whether or not any given testimony will inspire belief in the existence or non-existence of the fact the witness asserts exists or does not exist will depend on the fact-finder’s assessment of the witness’s “powers of perception, memory and narration . . . and of his [or her] opportunity and desire to exercise them honestly and efficiently in the situation under examination”.[59] This means that assessing the credibility of testimony “involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be”.[60] Assessing evidence “apprehends the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with other evidence”.[61] It has also been said that credible evidence is “that which meets the test of plausibility”.[62]
[59] Edmund M. Morgan, “The Relation Between Hearsay and Preserved Memory” (1927) 40 Harvard Law Review 712, 712.
[60] Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce)
[61] Carbo v United States [1963] USCA9 118; 314 F.2d 718 at 749 (1963) (Ninth Circuit)
[62] Indiana Metal Products v National Labor Relations Board [1971] USCA7 173; 442 F.2d 46
There have been a number of statements about how a court should assess testimony. In The Ocean Frost, Robert Goff LJ said:[63]
It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.
[63] Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd’s Rep 1 at page 57
And the following observations of Peter Smith J in EPI Environmental Technologies Inc v Symphony Plastic Technologies are worth bearing in mind:[64]
(i) First, it is essential to evaluate a witness’s performance in the light of the entirety of his evidence. Witnesses can make mistakes, but those mistakes do not necessarily affect other parts of their evidence.
(ii) Second, witnesses can regularly lie. However, . . . [that] does not mean necessarily that the entirety of that witnesses [sic] evidence is rejected. A witness may lie in a stupid attempt to bolster a case, but the actual case nevertheless remains good irrespective of the lie. A witness may lie because the case is a lie.
[64] EPI Environmental Technologies Inc v Symphony Plastic Technologies [2004] EWHC 2945 (Ch) at [74]
It may also be useful to refer to the guidelines formulated in 1987 by the United States Merit Systems Protection Board for use by administrative judges:[65]
Numerous factors . . . must be considered in making and explaining a credibility determination. These include: (1) [t]he witness's opportunity and capacity to observe the event or act in question; (2) the witness's character; (3) any prior inconsistent statement by the witness; (4) a witness's bias, or lack of bias; (5) the contradiction of the witness's version of events by other evidence or its consistency with other evidence; (6) the inherent improbability of the witness's version of events; and (7) the witness's demeanor.
[65] Hillen v Department of Army, 35 M.S.P.R. 453, 458 (1987). These guidelines were referred to by the United States Court of Appeals, Federal Circuit in Haebe v Department of Justice [2002] USCAFED 81; 288 F.3d 1288. The Court expressed no view as to the correctness of these guidelines, but simply saw them “as general internal procedural requirements that the MSPB has established for its adjudicative processes” (at n.32).
These observations on the nature of credibility and the process by which findings of credibility are made are general in nature, and do not take into account the particular challenges that may be raised by evidence given by persons who apply for Protection visas. These challenges have been referred to in a number of cases. For example, in Minister for Immigration & Multicultural Affairs v Rajalingam Sackville J referred to the Tribunal’s having frequently to make its assessments of credibility “on the basis of fragmented, incomplete and confused information”; and to its having to assess the plausibility of accounts “given by people who may be understandably bewildered, frightened and, perhaps, desperate and who often do not understand either the process or the language spoken by the decision-maker/investigator”.[66] Further, after referring to the observations of Gummow and Hayne JJ in Abebe v The Commonwealth that it “is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself”,[67] Sackville J noted that “even applicants with a genuine fear of prosecution may not present as models of consistency or transparent veracity”.[68]
[66] [1999] FCA 719 at [61]
[67] [1999] HCA 14; (1999) 197 CLR 510 at [191]
[68] [1999] FCA 719 at [61]. See also S. Taylor “Informational Deficiencies Affecting Refugee Status Determinations: Sources and Solutions”, (1994) 13 UTLR 43 at pages 62-71
I now turn to the first of the four questions I identified above.
Reliance on possibility of the applicant’s learning or exaggerating evidence
In my opinion, the Tribunal did not rely on the possibility of the applicant’s having learnt his evidence about the incidents he claimed occurred as a ground for not accepting the credibility of the applicant’s claims. The only matters on which the Tribunal relied for not accepting as credible the applicant’s claims are the adverse matters. The Tribunal referred to the possibility of the applicant having learned his evidence as a hypothesis that could explain, on the one hand, matters to which the Tribunal indicated it could not give credit to the applicant’s claims, and, on the other, the consistency of the applicant’s evidence. It did not, however, decide whether that hypothesis was correct. For reasons I discuss when I consider the third question, the Tribunal was not required to make a finding about the correctness of that hypothesis.
The Tribunal did find that some aspects of the applicant’s evidence were “exaggerated, unconvincing and untrue”.[69] The Tribunal made this finding, however, on the basis of its consideration of the adverse matters.
[69] CB202, [14]
Matters on which the Tribunal relied
Mr Silva identified each of the adverse matters on which the Tribunal relied, and submitted that they were peripheral or irrelevant. This approach, however, ignores what the Tribunal did.
The Tribunal did refer individually to each of the adverse matters, acknowledging that the adverse matters “do not singularly determine the truth of the claims made”;[70] but its decision on the applicant’s credibility was made only after it considered and weighed the adverse matters with matters that pointed to the credibility of the applicant’s evidence. The matter which, in the mind of the Tribunal, pointed most to the applicant’s evidence being credible was its consistency. The Tribunal concluded, however, that “in the context of all of the evidence advanced”, it could not be satisfied the consistency reflected the truth of the applicant’s claims.[71] In other words, the Tribunal did what a reasonable decision-maker ought to do when considering the credibility of testimony. The Tribunal considered the applicant’s testimony in the light of “its rationality or internal consistency and the manner in which it hangs together with other evidence”,[72] and by reference to its plausibility.
[70] CB202, [14]
[71] CB210, [38]
[72] Carbo v United States [1963] USCA9 118; 314 F.2d 718 at 749 (1963) (Ninth Circuit)
In my opinion, it was reasonably open to the Tribunal to rely on each of the adverse matters in the manner in which it did, and that it was reasonably open to the Tribunal not to be satisfied, in light of the adverse matters, of the truth of the applicant’s claims, even though the applicant’s evidence was consistent.
Was Tribunal required to make a finding about the applicant’s learning his evidence?
The applicant’s submission that the Tribunal was required to explore with the applicant – to “test”, as it was put by Mr Silva – whether the explanation for the consistency of the applicant’s evidence was in fact due to the applicant’s learning his evidence implies the Tribunal was required to satisfy itself one way or the other of the truth of that possibility. That assumption is incorrect because it, in turn, incorrectly assumes that before the Tribunal can decide it does not find evidence of a fact to be credible, it must positively disbelieve the fact.
Under s.65 of the Act, the Minister and, consequently, the Tribunal must be satisfied that the criteria for the granting of a Protection visa are satisfied. This means that, to the extent an applicant for the grant of a Protection visa relies on asserted facts, the Tribunal must be satisfied those facts exist before it can be satisfied an applicant is entitled to the grant of a Protection visa. As a matter of logic, however, a decision maker may not be satisfied of the existence of an asserted fact, even though the decision maker may not positively believe the fact does not exist. There is no rule that “a decision maker must hold a “positive state of disbelief” before making an adverse credibility assessment in a refugee case”.[73]
[73] SutharsanKopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 at pages 558-559
Further, even though the Tribunal offered a hypothesis that could explain the adverse matters and the applicant’s consistent evidence, namely, the applicant’s learning his evidence, and given I have found the Tribunal did not rely on that hypothesis as a reason for not accepting the applicant’s evidence, it was not necessary for the Tribunal to determine whether that hypothesis was correct.
Did the Tribunal assess credibility in light of all of the evidence?
In my opinion, the Tribunal determined the question of the credibility of the applicant’s evidence by weighing the adverse matters with the matters that favoured the credibility of the applicant’s evidence, and in particular, its consistency. In other words, the Tribunal assessed the credibility of the applicant’s evidence in the light of all of the evidence that was before it.
Conclusion on ground 1
For these reasons, ground 1 fails.
Ground 2 – failure to exercise function
Ground 2 of the application is as follows:
The Tribunal’s review function miscarried because of its failure to exercise its function to assess the applicant’s credibility
Particulars
The Tribunal when faced with convincing evidence about some aspects of the applicant’s case and other aspects which it had credibility issues with, decided to dismiss the claims wholesale in a reckless manner in order to avoid the difficult task of balancing the positive with the negative. Thus it failed to exercise its jurisdiction. See Para [38]-[39] at CB 210 & [14] at CB 202.
In his written submissions, Mr Silva says that the substance of this ground is covered by ground 1. Mr Silva submitted that the Tribunal rejected the applicant’s claims “wholesale in a reckless manner in order to avoid the difficult task of balancing the positive with the negative”.[74]
[74] An Outline of the Final Submissions of the Applicant, [27]
I have already concluded the Tribunal did weigh what, in this part of his written submissions, Mr Silva described as the “positive with the negative”.
Ground 2, therefore, fails.
Ground 4 – failure to consider claim based on failure of state protection
Ground 4 of the application is as follows:
The Tribunal made jurisdictional error since it failed to consider a critical issue it was required to consider.
Particulars
In [35]-[37] of its decision (CB 209) the Tribunal found that the applicant was not prosecuted for a Convention reason.
However this finding required the Tribunal to consider, even if the applicant was not persecuted for a Convention reason, whether the applicant was denied state protection for a Convention reasons, that is, the membership of a particular social group or race, which the Tribunal failed [to] do.
This ground relates to the Tribunal’s finding that it was not satisfied the harm the applicant claimed he feared – harm from his wife, his in-laws and his wife’s networks – is harm the applicant fears because of his membership of any particular social group.[75] The applicant submits that, having concluded that the fear the applicant claimed to have was not for a reason provided for under the Refugees Convention,[76] the Tribunal was required to consider whether the Fijian government failed to protect the applicant for a reason provided for by the Refugees Convention.
[75] CB209-210, [35]-[37]
[76] United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol Relating to the Status of Refugees 1967
I do not accept this submission. It is premised on the Tribunal’s having found the applicant did have a well-founded fear of the harm he claimed he feared. That premise is incorrect; the Tribunal did not accept the “central aspects of the applicant’s claimed circumstances in Fiji”.[77] That included that part of the applicant’s claims that rested on the applicant having reported matters to the police, and the police not doing anything in response.
[77] CB210, [39]
Ground 4, therefore, fails
Ground 5 – misapplication of the wrong test for state protection
Ground 5 of the application is as follows:
The Tribunal made jurisdictional error since it applied the wrong test for state protection
Particulars
Although the applicant was denied state protection several times when he went to police and then went as a last resort to the army corruption unit, the Tribunal asked the applicant during the hearing (Transcript Pg 38, In 15-16) why he has not gone to even higher officers to complain.
MS KAMAND: Did you ever lodge any complaints outside the police station, anywhere higher up?
RRT had failed to apply the correct test in considering whether the Fijian authorities provided the necessary level of state protection to allay any well-founded fear of persecution. As stated in S152 it would have turned upon the willingness and ability of the state to provide its citizens “with the level of protection which they were entitled to expect according to international standards”. Further the RRT cannot be satisfied that international standards have not been met unless there is evidence to that effect.
All this indicates that the Tribunal misunderstood the test for state protection and applied the wrong test.
This ground conflicts with ground 4 because it is premised on the proposition that the Tribunal did consider a claim based on the absence of state protection, but did so by applying the incorrect test as that test was stated by the High Court in Minister for Immigration v Khawar.[78] The basis of the submission is the questions the Tribunal asked of the applicant during the hearing.
[78] [2002] HCA 14; (2002) 210 CLR 1 (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ)
I accept the Minister’s submission that the Tribunal cannot be taken to have made any error in the application of the test for state protection because the Tribunal did not consider whether the applicant was denied state protection. I also accept the Minister’s submission that it cannot be inferred, and I do not infer, only from the questions the Tribunal asked and on which the applicant relies, that the Tribunal misunderstood the relevant legal principles for determining whether state protection was denied.
Ground 5, therefore, fails.
Ground 8 – failure to consider battered persons’ syndrome
Ground 8 of the application is as follows:
The Tribunal made a credibility finding against the applicant based on its ignorance of accepted legal principles (or failure to take account of) of how battered man [sic] (battered woman/man syndrome) behave.
Particulars
The Tribunal made credibility finding against the applicant ([22] at CB 205) based on its misunderstanding that repeatedly harmed people in domestic relationship would move away. It is now accepted that battered women (for that matter men) do not leave their partners for fear that their partners will take the anger on their children or someone close to them. A decision maker such as the Tribunal is bound to know them or could not make a decision contrary to them whether it is aware of it or not.
The applicant submits that, to the extent the Tribunal relied on the applicant’s not moving from his home as a reason for its not accepting the applicant’s credibility, the Tribunal erred because it failed to take into account “battered man” syndrome. The applicant relies on R v Runjanjic where the Full Court of the Supreme Court of South Australia held that expert evidence of “battered woman syndrome” was admissible to support a defence based on duress.[79] The applicant also relies on the judgment of Kirby J in Osland v R where his Honour said “there is no inherent reason why a battering relationship should be confined to women victims”.[80]
[79] (1991) 56 SASR 114
[80] [1998] HCA 75; (1998) 197 CLR 316 at [159]
There are a number of difficulties with this ground. First, it claims there are accepted legal principles about how battered women and men behave. The authorities on which the applicant relies establish no such principles. In Runjanjic the issue was whether expert opinion evidence concerning battered woman syndrome should have been admitted into evidence; and in Osland the issue, in so far as it related to battered woman syndrome, concerned the directions the trial judge gave about the expert evidence dealing with battered woman syndrome. Second, it cannot be assumed that battered person syndrome is a matter within the general knowledge of persons and tribunals. As Kirby J in Osland said, battered persons syndrome “is not a universally accepted and empirically established scientific phenomenon”.[81] That means that whether or not in any given case a person’s behaviour may be explained by reference to battered persons syndrome can only be answered on the basis of expert opinion evidence about the nature of the syndrome, and its presence in a person and effects on that person’s conduct in question.
[81] [1998] HCA 75; (1998) 197 CLR 316 at [165]
The applicant has not adduced any evidence to this Court about the nature of battered persons syndrome, or about how such syndrome could have applied to the applicant, assuming the applicant’s evidence about the claims he suffered were accepted. In the absence of such evidence, it is not open to this Court to find the Tribunal made a credibility finding on the basis which it was not open to it to make because it did not take into account the battered persons syndrome. Even if the applicant were to have tendered such evidence before the Court, the applicant did not tender such evidence before the Tribunal. In those circumstances, it could not reasonably be said the Tribunal made an error by ignoring matters that could only be established by expert evidence which was not put before the Tribunal.
Ground 8, therefore, fails.
Conclusion and disposition
The applicant has failed on each of the grounds he pressed at the hearing. I propose, therefore, to dismiss the application. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 2 August 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction