SZUVE v Minister for Immigration and Border Protection
[2017] FCA 38
•31 January 2017
FEDERAL COURT OF AUSTRALIA
SZUVE v Minister for Immigration and Border Protection [2017] FCA 38
Appeal from: SZUVE v Minister for Immigration & Anor [2016] FCCA 1942 File number: NSD 1368 of 2016 Judge: KATZMANN J Date of judgment: 31 January 2017 Catchwords: MIGRATION — Refugees — appeal from application for judicial review of decision of Refugee Review Tribunal not to grant protection visa — whether primary judge erred in finding that Tribunal did not rely on possibility that appellant had “learned his evidence” — whether primary judge erred in finding that Tribunal failed to consider the merits of appellant’s “core claims” — whether appellant should be granted leave to amend to argue Tribunal had contravened s 425 of Migration Act 1958 (Cth) and denied him procedural fairness in that it had allegedly failed to put appellant on notice that his credibility was in question — where ground not raised before primary judge Legislation: Migration Act 1958 (Cth), 5J, 36(2), 36(2A), 47, 65, 91R, 414, 425, 430 Cases cited: AZAAD v Minister for Immigration and Citizenship (2010) 189 FCR 494
AZU15 v Minister for Immigration and Border Protection (2016) 240 FCR 143
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Coulton v Holcombe (1986) 162 CLR 1
EPI Environmental Technologies Inc v Symphony Plastic Technologies [2004] EWHC 2945 (Ch)
FTZK v Minister for Immigration and Border Protection [2014] HCA 26; 310 ALR 1
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 168 ALR 407
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588
Date of hearing: 22 November 2016 Date of last submissions: 6 December 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 78 Counsel for the Appellant: Mr A Silva Solicitor for the First Respondent: Mr J Pinder of MinterEllison Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
NSD 1368 of 2016 BETWEEN: SZUVE
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
KATZMANN J
DATE OF ORDER:
31 JANUARY 2017
THE COURT ORDERS THAT:
1.Leave to amend the notice of appeal be refused.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
The appellant is a Fijian national who travelled to Australia, where his mother and two sisters live, in December 2012. He entered the country on a tourist visa but shortly before it was due to expire he applied for a protection visa, claiming to fear persecution in Fiji because of his race and membership of a particular social group, which he then defined as “half caste” Fijians who were formerly married to Fijian women but who became estranged from them after their children were born. He gave an account of multiple assaults and ill-treatment at the hands of his ex-wife and her associates.
The application was first considered by a delegate of the Minister. The delegate was satisfied that the events he recounted had occurred and thus accepted his claims were true, but was not satisfied for other reasons that Australia owed him protection. The appellant applied for a review of the delegate’s decision in the Refugee Review Tribunal (the functions of which are now performed by the Administrative Appeals Tribunal) but the Tribunal disbelieved his claims and affirmed the delegate’s decision. He then applied to the Federal Circuit Court for writs, amongst other things, quashing the Tribunal’s decision and requiring the Tribunal to reconsider his application, but he failed to persuade the court that the decision was affected by jurisdictional error with the result that that application was dismissed, too. This is an appeal from that judgment. For the following reasons the appeal must also be dismissed.
The legislative scheme
Upon receipt of a valid application for a visa, the Minister is bound to grant the application if he is satisfied that the applicant satisfies the criteria laid down in the Migration Act 1958 (Cth) and the regulations made under it: Migration Act, ss 47, 65. The principal criteria for the grant of a protection visa appear in s 36 of the Act.
At the time of the Tribunal’s determination (30 June 2014), insofar as it is material, s 36 provided:
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa)a non‑citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; ...
Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (together “the Convention”) to anyone who is a refugee within the meaning of Art 1A(2) of the Convention. That includes anyone who, owing to a well-founded fear of being persecuted for certain specified reasons (including race and membership of a particular social group), is outside the country of his or her nationality, and who is unable or, owing to that fear, unwilling to avail himself or herself of the protection of that country.
Nevertheless, s 91R(1) of the Act (see now s 5J) excluded the application of Art 1A(2) unless:
(1)the reason or reasons for the persecution is or are “the essential and significant reason” or reasons;
(2)the persecution involves “serious harm” (defined in subs 91R(2)) to the person; and
(3)the persecution involves “systematic and discriminatory conduct”.
“Significant harm”, for the purposes of para 36(2)(aa) is defined in subs 36(2A) to mean arbitrary deprivation of life, the execution of the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
The appellant’s claims
As I indicated at the outset of these reasons, the appellant claims to be of mixed European and Fijian parentage and a member of a particular social group of “men of half caste (half native Fijian and half other race) formerly married to Fijian women who after having children with them are estranged from their former spouses”. In written submissions made after the Tribunal hearing, the description of the particular social group changed. At one point it was characterised as “non-Fijian spouses in conflict with Fijian spouses”, at another as “non-Fijian spouses seeking access to children from Fijian spouses” or “something similar”. The appellant claims to fear harm at the hands of his former wife, her boyfriend, and her relatives.
In the statutory declaration annexed to his protection visa application, the appellant stated that his former wife comes from a family of “Chiefly Hierarchy”, who are “the law makers in the village as that is their status in the Tribe”. He said that they have power and influence outside the village and are closely connected to some of the ministers (presumably ministers in the Fijian government). He claimed that the police did not want to protect him because of the “family connection”. He alleged that the people who harmed him used the fact that he is “a half caste” to incite people against him. The statutory declaration listed numerous incidents on various dates (said to be approximate) during the period between 2010 and 2012 in which he claimed to have been the victim of successive assaults. He said that his wife attacked him with a knife (on 8 October 2011), splashed hot water on his back following an argument (on 2 March 2011), and struck him with a small axe in an attempt to cut him (on 17 May 2012). He also claimed that on 25 March 2012, while he was sleeping, “a big rock fell on the left side of [his] rib”. In addition he said that on 11 August 2012, while he was watching a rugby game, he was approached by his ex-wife, her boyfriend and boys from the village, and as he was fleeing in fear he was pursued by them, pushed to the ground, the boyfriend tried to squeeze his neck, and his ex-wife kicked him “for being nasty to her parents”. He further claimed that on 18 September 2012 he was beaten and punched by his ex-wife, her boyfriend and “another guy”, outside the house in which he was living. He said they pinned him to the ground, his wife kicked him, and the third person stood on his back. He claimed that a friend and three relatives who were there at the time shouted “don’t kill him don’t kill him” and the assailants then, in effect, threatened to kill him. He also reported “other incidents” in which his ex-wife threw his clothes onto the street, burned his rugby gear, treated him like a slave by forcing him to work for her friends and relatives without pay, and verbally abused and humiliated him “based on [his] race”. He said that she called him a “Kailoma dickhead” and other insulting names in front of the villagers and spat at him in front of others.
The appellant claimed to have left Fiji in fear for his life. Although he said he was separated at the time, he claimed to have been advised that he would never get a visa if he said so “since single men might stay back in Australia”. He said that he asked a friend to plead with his ex-wife to have her sign a letter consenting to him travelling to Australia and she ultimately agreed.
The Tribunal’s reasons
The Tribunal summarised its appraisal of the appellant’s claims at [14] of its decision record:
While some aspects of the applicant’s evidence impress[] the Tribunal as convincing, other aspects impress the Tribunal as exaggerated, unconvincing and untrue. While the concerns identified below do not singularly determine the truth of the claims made, on balance and cumulatively, when assessed against the totality of the evidence advanced, they leave the Tribunal unable to be satisfied of the truth of central aspects of the applicant’s claimed circumstances in Fiji, including in respect of the nature of his relationship with his wife, in-laws and their networks. The evidence in its totality leaves the Tribunal unable to be satisfied that the applicant is a person in respect of whom Australia has protection obligations.
Those concerns, described by the primary judge in a more abbreviated summary as “adverse matters”, were as follows:
(1)The appellant told the Tribunal that he only lodged his application for a protection visa as a last resort in order to remain in Australia, after he was informed that he was ineligible for any other visa. The Tribunal did not consider that this was inconsistent with a genuine claim for Australia’s protection, but it said that it raised “some concern” about the genuineness of his claim to have feared for his life for “around [four] years”.
(2)The appellant gave inconsistent accounts of his approaches to the Fijian authorities. In his oral evidence he said that he had approached the Fijian police around five times between 2010 and 2012 in respect of mistreatment by his wife, his in-laws and his wife’s friends and associates, but nothing was done. On the other hand, in his written claims he said that the police attended his home on around two occasions to further investigate his complaints. Further, in his evidence he repeatedly indicated a willingness and ability on his part to approach the Fijian authorities about these matters, yet, in response to the Tribunal’s inquiry as to whether he had looked into Fiji’s domestic violence laws, he claimed that he felt shy and embarrassed to do so. The Tribunal said that it was difficult to accept that this claim was true as it was difficult to reconcile with his evidence of repeated attendances upon the police, including at police stations in which he knew his wife’s relatives worked.
(3)The appellant’s evidence concerning the relationship between his estranged wife and her new boyfriend in around 2010 was “vague, uncertain and unconvincing”.
(4)The appellant reported numerous violent assaults upon and insults levelled against him since November 2010 by his estranged wife, her family and “their networks”, yet he continued to live in the same household and village until March 2012. The Tribunal noted that he claimed to have done so for the sake of his children, but thought that the fact that he failed to move to the home of his uncle who lived only about four doors away, or to any other place in Fiji, until several years after he claimed to experience severe violence and mistreatment in his home cast some doubt on the truth of his claims.
(5)The Tribunal also found it difficult to understand why the appellant would remain in such a household and, indeed, in a village where his assailants were “well connected and protected”, when he had a stable, full-time job in Nadi, where he said his children went to school.
(6)The appellant’s responses to the Tribunal’s concerns about this matter were inconsistent. At first he said he just went along with his wife’s wishes and was concerned for his children and did not want them to grow up without a father. When the Tribunal put to him that it was even more difficult to understand why he would not first try to relocate to Nadi, where he would be relatively close to his children, rather than remove himself to Australia, he said that he had asked his wife to move away with him after the violence started in 2010, a statement the Tribunal found difficult to reconcile with his claimed fears for his life at the hands of his wife and in‑laws. The Tribunal considered that this cast significant doubt over the truth of his account of the relationship.
(7)The appellant gave what the Tribunal considered was “uncertain and unconvincing” evidence about whether he and his wife had divorced. The Tribunal was not satisfied, despite the appellant’s evidence to the contrary, that he had taken any steps towards obtaining a divorce.
(8)The appellant also gave what the Tribunal considered was “vague, evolving and unconvincing” evidence concerning the extent to which he was “adversely pursued” by his wife, her family, boyfriend and broader networks.
(9)As for the instances of harm detailed in his statutory declaration, the Tribunal had trouble understanding how the appellant could give such precise dates in the absence of supporting documentation such as medical or police records. When the Tribunal questioned him about this, he claimed to have written the dates in a notebook in Fiji which he brought to Australia. But no copies of the notebook or its relevant pages were submitted either to the Department or the Tribunal and the Tribunal was not satisfied that it existed.
(10)The appellant’s application for a tourist visa was accompanied by a letter of support from his wife, which the Tribunal considered might suggest that his relationship with his wife was not and is not as he claimed it to be. The appellant claimed that his wife was prevailed upon by one of his workmates to support the application on the basis that it would be better for everybody if he left the country, but the Tribunal did not accept this explanation.
(11)The Tribunal considered that the appellant’s claim that his wife’s family was hostile to him on account of his mixed race was at odds with the appellant’s evidence that he met his wife when he was working at her family’s resort, that his wife’s family insisted that they marry after his wife fell pregnant with his child, that his wife’s parents attended the wedding, and that following the marriage, he and his wife and their children lived in his in-laws’ home for about 12 years.
The Tribunal’s findings on the appellant’s claims appear at [38]–[39] of its reasons:
38.As to the balance of the applicant’s claimed circumstances in Fiji, while the Tribunal notes that the applicant gave oral evidence to the tribunal of claimed past mistreatment which was largely consistent with the examples set out in his statutory declaration, the Tribunal must assess that evidence in the context of the totality of the evidence before it, including the cumulative concerns detailed above. In the context of all the evidence advanced, the Tribunal cannot be satisfied that the applicant’s 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 for Australia’s protection. The Tribunal does not consider the applicant’s ability to give some consistent accounts of events set out in his statutory declaration to be determinative of the truth of those claimed events, nor does the Tribunal consider that evidence to overcome the significant cumulative concerns detailed in the balance of the Tribunal’s considerations.
39.On balance, taking into account all the evidence before it, including the cumulative concerns detailed in the balance of the Tribunal’s considerations, the Tribunal is unable to be satisfied of the truth of central aspects of the applicant’s claimed circumstances in Fiji. In particular, the Tribunal is not satisfied that the applicant was beaten or attacked with an axe, knife, hot water, rock or any other weapon, or that he was physically or verbally mistreated by his wife, in-laws or any of their networks in Fiji as he has claimed. The Tribunal is not satisfied that the applicant was harmed in the manner claimed by his wife or in-laws or anyone else in connection with them, or that the applicant was or is fearful of his wife or in-laws. The Tribunal is also not satisfied that the applicant’s wife had or has a boyfriend or that any person has attempted to harm the applicant on behalf of the applicant’s wife. On the evidence advanced, the Tribunal is not satisfied that the applicant has in the past been subjected to the mistreatment or harm claimed, or to any harm amounting to serious harm as contemplated by sections 91R(1)(b) or 91R(2) of the Act, or to significant harm as contemplated by section 36(2A) of the Act. Nor is the Tribunal satisfied, on the evidence advanced, that he faces a real chance of serious harm as contemplated by sections 91R(1)(b) or 91R(2) of the Act in Fiji for any Convention reason, or a real risk of significant harm as contemplated by section 36(2A) of the Act, in Fiji, for any reason, ... in the reasonably foreseeable future.
The Tribunal concluded that “the [appellant]’s evidence, in its totality” did not support his claims that he had in the past experienced harm because of his race from his wife, her parents, and/or their networks in Fiji or that there was a real chance that he would do in the reasonably foreseeable future.
The Tribunal accepted that racial taunts may occur in Fiji but was not satisfied that, even when assessed cumulatively, the appellant’s complaints about such behaviour would amount to serious harm. Nor did the Tribunal consider that people of mixed European/Fijian race face a real chance of harm sufficient to amount to “serious harm” within s 91R or “significant harm” within s 36(2A).
The Tribunal found against the claims regarding membership of a particular social group because it was not satisfied that membership of any social group was an essential or significant reason for the harm the appellant professed to fear.
Consequently, the Tribunal said that it was not satisfied that the appellant had a well-founded fear of persecution in Fiji for a Convention reason. Nor was the Tribunal satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia, he faced a real risk of significant harm there. In the result, the Tribunal was not satisfied that he was a person in respect of whom Australia has protection obligations.
The application to the Federal Circuit Court
The application was made on nine grounds, only five of which were pressed. They were that the Tribunal fell into jurisdictional error in that:
(1)the decision was unreasonable because adverse credibility findings were made “recklessly without a sound basis” (ground 1);
(2)it failed to exercise its function to assess the appellant’s credibility because, when faced with convincing evidence about some aspects of the case, it “decided to dismiss the claims wholesale in a reckless manner in order to avoid the difficult task of balancing the positive with the negative” (ground 2);
(3)it failed to consider a critical issue, namely, whether, even if the appellant was not persecuted for a Convention reason, he was denied state protection for such a reason (“the critical issue”) (ground 4);
(4)it applied the wrong test for state protection (ground 5); and
(5)it made an adverse credibility finding “based on its ignorance of accepted legal principles” of the behaviour of battered men and women or, alternatively, failed to take into account that behaviour (ground 8).
Based on the submissions of the parties, the primary judge concluded that the first ground raised four questions:
(1)Did the Tribunal rely on the possibility of the appellant having learned or exaggerated his evidence in not accepting the appellant’s claims and, if so, did it rely on that possibility in a manner that manifests jurisdictional error?
(2)Was it reasonably open to the Tribunal to rely on each of the matters on which it did rely for not accepting the appellant’s claims?
(3)Was the Tribunal obliged to explore, and make a positive finding about, whether the appellant did in fact learn or exaggerate his evidence?
(4)Did the Tribunal consider the evidence as a whole in deciding not to accept the credibility of the appellant’s claims?
With respect to the first question, the primary judge concluded that the Tribunal adverted to the possibility that the appellant had learned his evidence “as a hypothesis” that could explain, on the one hand, matters to which the Tribunal indicated it could not believe, and on the other, the consistency of the appellant’s evidence. But the primary judge held that the Tribunal did not rely on that possibility as a ground for not accepting the claims as credible. Rather, the Tribunal relied on the “adverse matters”.
With respect to the second question, the primary judge held that it was reasonably open to the Tribunal to rely on those matters and, in the light of them, not to be satisfied of the truth of the appellant’s claims, notwithstanding the consistency of the evidence of the alleged assaults.
With respect to the third question, the primary judge held that, having regard to the answer to the first question, the Tribunal was not obliged to determine whether the hypothesis it had posited was correct.
With respect to the fourth question, the primary judge held that the Tribunal determined the question of the appellant’s credibility by weighing the adverse matters with the favourable matters and, in particular, the consistency (or otherwise) of the appellant’s evidence, and so assessed his credibility in the light of all the evidence.
Accordingly, the primary judge rejected the first ground.
Counsel for the appellant apparently acknowledged in written submissions that the substance of the second ground was covered by the first. In those circumstances, having regard to his answer to the third question raised by the first ground, the primary judge also rejected the second ground.
It is unnecessary to refer to the findings on the remaining grounds as no complaint is made about them in the appeal.
The appeal
The appellant filed a notice of appeal, quickly followed by a supplementary notice of appeal. The grounds in the supplementary notice plead that the primary judge made the following errors:
(1)finding that the Tribunal did not rely on the possibility that the appellant had learned his evidence concerning the alleged acts of violence as a ground for not accepting the credibility of the appellant’s claims (ground 1);
(2)failing to hold that the Tribunal rejected the appellant’s claims “wholesale”, without regard to the merits of the “core claims” (ground 2);
(3)not finding that the Tribunal failed to consider the critical issue (ground 3); and
(4)failing to hold that the Tribunal made a credibility finding against the appellant “in ignorance of and contradictory to the principles of Battered Woman Syndrome or failed to take account of battered woman syndrome” (ground 4).
By the time of filing of the written submissions, however, grounds 3 and 4 were not pressed.
Did the primary judge err in finding that the Tribunal did not rely on the possibility that the appellant had learned his evidence concerning the alleged acts of violence as a ground for not accepting the credibility of the appellant’s claims?
The proposition behind ground 1 derives from [38] of the Tribunal’s reasons extracted above.
I discern no error in the primary judge’s findings. The Tribunal raised the matter as a possibility, but did not rely on it. In his written submissions the appellant contended that it was illogical for the Tribunal to suggest without any basis that the appellant could have “learnt these incidents”. But the Tribunal made no such suggestion. It merely adverted to the matter as a theoretical possibility.
The question the Tribunal was answering in [38] was whether, despite its concerns about several aspects of the appellant’s account, it could be satisfied that the “generally consistent” account of his alleged mistreatment was true. In deliberating upon that question, the Tribunal raised two alternative possibilities or, as the primary judge characterised them, hypotheses — that the account had been learned or that it had been exaggerated — and posited them against the alternative hypothesis that the generally consistent account was in fact true. The Tribunal observed that the capacity to give “some consistent accounts of events” is not decisive of the truth of the events. There is no error in this observation. Only a bad liar will be unmasked by inconsistencies.
Nor is there any error in the Tribunal’s approach. Contrary to the appellant’s submissions, the error identified in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [50] with respect to the Tribunal decision in that case was not committed in the present case. Here, it is abundantly clear that the Tribunal weighed the generally consistent account of the incidents against its numerous concerns about the appellant’s credibility and concluded that it was insufficient to overcome them. In so doing, it did not fall into jurisdictional error. As the primary judge held (at [35]), as a matter of logic a decision maker may not be satisfied of the existence of an asserted fact even if he or she holds no positive belief that the fact does not exist. Furthermore, as his Honour also observed, citing the Full Court’s observation in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 559, there is no rule that a decision maker must hold a positive state of disbelief before making a credibility assessment in a case of this nature.
The appellant submitted that there was no logical connection between the Tribunal’s findings and the adverse matters because there was no reference to the connection in [38] or [39] of its reasons. But these paragraphs cannot be read in isolation. The Tribunal referred to the connection in its recitation of its concerns.
The appellant also criticised the Tribunal’s summary of the incidents (at [21] of its decision record), saying that the Tribunal made scant reference to the incidents, “unfairly reducing” their significance. The criticism is unjustified. In any event, it exposes no jurisdictional error. Nor did the Tribunal minimise the significance of the appellant’s claims, as the appellant contended.
The appellant also took the Tribunal to task for referring to “the examples” of mistreatment “set out in the statutory declaration” when, the appellant contended, the statutory declaration contained a comprehensive list of all the incidents. There are two answers to this complaint. First, it ignores what the appellant himself said, in his statutory declaration, namely that he had listed “the main events that happened” in the relevant period. Secondly, it flies in the face of the “well settled” propositions to which the High Court referred in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, namely that on an application for judicial review a court should not be concerned with looseness of language or “unhappy phrasing” and “[t]he reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error” (quoting the Full Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287). The reference to “some consistent accounts of events” in the same paragraph of its reasons discloses no jurisdictional error either. The appellant described this as another “serious factual error[] or … distortion[]” because, he said, it contradicted earlier references to a “largely consistent” account and “general consistency” in the relation of the claims. The so-called contradiction is elusive.
The appellant also submitted that, in not being satisfied that his general consistency in detailing his claimed mistreatment reflects the truth of the claimed incidents, the Tribunal was “being unreasonable”. He contended that the Tribunal should have been satisfied. This submission must also be rejected, because the assertion that the Tribunal’s lack of satisfaction was unreasonable was in substance, if not in form, nothing more than an invitation to engage in merits review. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40] Gleeson CJ and McHugh J observed:
Someone who disagrees strongly with someone else’s process of reasoning on an issue of fact may express such disagreement by describing the reasoning as “illogical” or “unreasonable”, or even “so unreasonable that no reasonable person could adopt it”. If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence.
In this case, as in Eshetu, there is no such consequence. The Tribunal did not, as the appellant contended in the particulars to this ground of appeal, decide the question of credibility “based on pure speculation”.
Finally, the appellant submitted that the Tribunal had arrived at a conclusion about his credibility without following a valid process of reasoning. He contended that the Tribunal had found on the one hand that there were consistencies in his evidence, and on the other hand that there were “adverse matters” which gave it concern, and had therefore considered that the appellant was either telling the truth or had learned or exaggerated his evidence. He said that as between these possibilities the Tribunal must have concluded that he had learned his evidence, because it did not accept his claims as true. At the same time, however, he argued that the record of the Tribunal’s decision does not disclose any process of reasoning by which the Tribunal reached that “unfavourable” conclusion rather than the “favourable” one that he was a witness of truth, and thereby fell into jurisdictional error (relying on FTZK v Minister for Immigration and Border Protection [2014] HCA 26; 310 ALR 1). He said that this was a finding about his credibility but pointed out (contrary to what he asserted the primary judge had held) that it is not the law that a credibility finding cannot be challenged. He submitted (without alteration) that:
If the Tribunal is allowed to make a finding that an applicant learnt the evidence without proper explanation the Tribunal’s credibility can never be challenged. This throws a heavy onus on that applicant. The Tribunal would then acquire tremendous power to dismiss oral evidence and the Tribunal would be stretching its jurisdiction too far. It is being thereby allowed to define the limits of its jurisdiction as happened in the current case.
(Original emphasis.)
These submissions are based on two false premises: first, that the Tribunal made a finding that the appellant learned his evidence, when it did not, and second, that the primary judge held that credibility findings were immune from review, when he did not. The notion that the primary judge considered that credibility findings were immune from challenge (presumably for jurisdictional error) was based on his statement at [17] in his reasons that “[i]t 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” (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 168 ALR 407 at [67] (McHugh J)). The use of the pejorative adjective “stock” rather tells against the appellant’s contention and there is nothing in the primary judge’s reasons to support it.
Ground 1 must be rejected.
Did the primary judge err in finding that the Tribunal failed to consider the merits of the “core claims”?
The written submissions on this question were cryptic. The appellant complained that the Tribunal “opted to reject the claims wholesale”. He contended (without alteration) that “[t]here was never a consideration that at least some of the claims could have been true and consider the evidence given on that particular claim”. He noted what the Full Court said in AZU15 v Minister for Immigration and Border Protection (2016) 240 FCR 143 at [11]:
Care needs to be taken by the Tribunal to ensure that blanket, reflex or exaggerated adverse credit findings do not take the place of a proper examination of a visa applicant’s claims as required by s 414 of the Migration Act 1958 (Cth).
For the reasons given above, however, this submission does not withstand scrutiny. The Tribunal did not make “blanket, reflex or exaggerated credit findings” and it did conduct a real review of the appellant’s claims as s 414 requires. Contrary to the appellant’s submission, it was not obliged to consider whether or not it believed the account of each individual incident. It was entitled to consider whether it could accept his account as a coherent whole. After all, the alleged incidents were propounded as evidence of a course of conduct.
In his reasons the primary judge referred to the observations of Peter Smith J in EPI Environmental Technologies Inc v Symphony Plastic Technologies [2004] EWHC 2945 (Ch) (“EPI”) at [74] that a witness’s performance must be assessed in the light of all the witness’s evidence, that witnesses may make mistakes which do not necessarily affect all their evidence, and that witnesses may regularly lie but that does not necessarily mean all their evidence should be rejected. In the first particular to this ground of appeal the appellant contended that the reference was “meaningless because his Honour’s actions contradict what that authority stands for”. I take this to be an allegation that the primary judge erred in failing to hold that the Tribunal did not evaluate the appellant’s evidence in accordance with the principles in EPI. For the reasons given above, I reject the allegation.
The second particular to this ground reads: “[t]he adverse matters cannot affect the truth of the claims which were tested by the Tribunal, where the Tribunal could not find fault with the appellant’s claims”. This proposition is baseless. As the Minister submitted, the fact is that the Tribunal did find fault with the appellant’s claims in that it identified a number of concerns they raised, which caused the Tribunal to question the appellant’s credibility.
The appellant also pointed to obligations of the Tribunal under s 430 of the Migration Act to include in its written reasons the findings on material questions of fact and a reference to the evidence or other material on which those findings were based. Yet, he failed to indicate how it could be said that those obligations had not been fulfilled in this case.
For all these reasons ground 2 must also be rejected.
Another ground of appeal?
In the course of his oral submissions the appellant’s counsel, Mr Silva, submitted that the Tribunal had also infringed s 425 of the Migration Act. He contended that this was somehow related to his grievance in relation to ground 2. There was in fact no connection. He then applied for leave to amend to plead a new ground not raised in the court below, articulated on the run, and without notice to the Minister. No explanation was offered as to why the point was not raised below.
The proposed ground was put as follows:
The appellant was denied procedural fairness under section 425 of the Migration Act 1958 (Cth) and the principle set out in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 since the Tribunal failed to put the appellant on notice that his credibility was in question.
In short, the point he wishes to agitate is that his credibility was accepted by the Minister’s delegate, yet the Tribunal did not notify him that his credibility was an issue on the review. As he put it, the Tribunal conducted the review in such a way that it was “not possible for the appellant to realise that the Tribunal [had] doubts about [his] claims [in relation to serious harm]”.
Understandably the Minister was in no position to meet the allegation. At the end of the hearing, on condition that the appellant pay the costs associated with the proposed amendment regardless of the outcome of the appeal, I made orders enabling the Minister to seek instructions and make submissions on whether leave to amend should be granted and on the substance of the proposed amendment.
The Minister opposes the application for leave to amend — and for good reason.
The practice of raising arguments for the first time on appeal has long been deprecated. In Coulton v Holcombe (1986) 162 CLR 1 at 7 the plurality observed that it is “fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial”. Consequently, leave to argue a new ground should only be granted if it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46]. In that case the Full Court also observed (at [48]) that:
The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.
The Minister does not contend that he would be prejudiced if the appellant were permitted to agitate the new point. Rather, he points to the absence of any explanation as to why the point was not raised before the primary judge and he argues that the point is of insufficient merit to warrant the grant of leave.
I have concluded that it is not expedient in the interests of justice to grant leave to the appellant to argue the new ground.
As I mentioned above, nine grounds were initially raised in the application in the court below. In the absence of any explanation as to why the point he now wishes to agitate was not amongst them, it is difficult to believe that the appellant was unaware that his credibility was an issue on the review, particularly when he has been represented by counsel (and the same counsel) throughout — at the Tribunal, before the primary judge, and on the appeal.
Besides, the point is of doubtful merit.
In his reasons for decision the delegate said this:
The applicant claims to have been subjected to domestic violence during his marriage and to have been assaulted by his ex-wife and others, including her boyfriend, friends and relatives. 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.
Section 425 relevantly provides that:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
…
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (“SZBEL”) the High Court held that, unless an applicant is informed otherwise, “ordinarily” the issues arising in relation to the decision under review are those which the original decision-maker identified as determinative against the applicant.
In SZBEL the appellant’s application for a protection visa was based on a claim, made initially in a statutory declaration, that he had jumped ship in Port Kembla fearing persecution in Iran as a heretic because of his interest in Christianity. The delegate was not satisfied that he had “a genuine commitment to Christianity”. In support of his application to the Tribunal, the appellant submitted a second statutory declaration directed entirely to the question of his commitment to Christianity. At the hearing before the Tribunal, the Tribunal member first informed the appellant that on the material supplied she was unable to be satisfied that he qualified for a protection visa. The appellant then gave evidence on affirmation and called witnesses to support his claim that he was committed to Christianity. In its reasons the Tribunal identified three “key aspects” of the appellant’s claims which it considered were not “plausible”. Each of these aspects related to the appellant’s account of the circumstances in which he jumped ship. The first was the basis upon which the ship’s captain came to believe he was involved in Christianity. The second related to the appellant’s account of his confrontation with the captain. The third concerned an apparent inconsistency between the appellant’s freedom of movement when the ship was in dock and the claim that the captain intended to hand him over to the authorities in Iran.
The question on the appeal to the High Court was whether the Tribunal denied the appellant procedural fairness. The appellant’s case was largely based on what the Full Court said in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591–2 to the effect that procedural fairness extends to a right “to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made” and “to advise of any adverse conclusion … which would not obviously be open on the known material”. The determination of the question in the High Court turned on whether the Tribunal had identified to the appellant certain issues which proved to be critical to the decision.
The High Court referred to the requirement in s 425(1) to invite an applicant “to give evidence and present arguments relating to the issues arising in relation to the decision under review”, emphasising the italicised words. At [35] the Court said:
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
As the Court summarised his position (at [42]), the appellant’s complaint was that he was not on notice that his account of how the ship’s captain came to know of his interest in Christianity and of the captain’s reaction to that knowledge were issues arising in relation to the decision under review. The Court said (at [43]):
The delegate had not based his decision on either of these aspects of the matter. Nothing in the delegate’s reasons for decision indicated that these aspects of his account were in issue. And the Tribunal did not identify these aspects of his account as important issues. The Tribunal did not challenge what the appellant said. It did not say anything to him that would have revealed to him that these were live issues. Based on what the delegate had decided, the appellant would, and should, have understood the central and determinative question on the review to be the nature and extent of his Christian commitment. Nothing the Tribunal said or did added to the issues that arose on the review.
For these reasons the Court concluded that the Tribunal had not afforded the appellant procedural fairness. It found (at [44]) that the Tribunal did not give him a sufficient opportunity to give evidence or make submissions about what proved to be two of three determinative issues arising in relation to the decision under review.
But the Court made three additional points, the first of which is relevant to the appellant’s argument in this case.
The Court observed (at [47]):
[T]here may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
(Original emphasis.)
The question in the present case, then, is whether the appellant was on notice that his credibility, in particular, the credibility of his account of the assaults upon and ill-treatment of him by his ex-wife and her associates, was an issue for determination on the review. The Minister accepted that the Tribunal was required “to take steps to identify that the credibility of the appellant’s account of the claimed past instances of harm was [an] issue” in the review. He argued, however, that the Tribunal had taken such steps.
First, he pointed to the fact that at the outset of the hearing the Tribunal member told the appellant that the Tribunal was not bound by the Department’s decision or reasons. The appellant submitted that this statement was too broad to put the appellant on notice of anything. That is true. Without more, it was insufficient to alert the appellant of the relevant issue: cf AZAAD v Minister for Immigration and Citizenship (2010) 189 FCR 494 at [62]. The Minister accepted as much, but submitted there was a good deal more.
The Minister relied on the following additional matters:
·that the Tribunal asked “multiple open-ended questions about why he thinks he will be harmed if he returns to Fiji” (AB258ff);
·that on a number of occasions the Tribunal asked questions to test or challenge the appellant’s account of events (eg AB269 at lines 21–22, 36–38 and 43–44; AB270 at lines 1–2);
·that on a number of occasions the Tribunal expressed incredulity or disbelief with respect to elements of the appellant’s account of events, and told the appellant that his account was difficult to accept (eg AB270 at lines 1–2; AB275 at lines 40–43; AB279 at lines 36–38; AB280 at lines 3–10 and 31–33);
·that the Tribunal put to the appellant for comment inconsistencies between his accounts in his statutory declaration and his oral evidence to the Tribunal (eg AB273 at lines 9–12);
·that the Tribunal asked the appellant open-ended questions to allow him to expand upon the claimed past instances of harm, including specific incidents described in his statutory declaration as well as other incidents more generally (eg, AB282ff, especially AB282 at line 16ff; AB283 at line 6ff; AB290 at line 35ff);
·that the Tribunal told the appellant that it had reason to “wonder if [his] relationship with [his wife] was as difficult or as problematic [as he said] it was” (AB285 at lines 37–38);
·that the Tribunal told the appellant that “it might have some doubts about the truth of the circumstances that [he had] identified” (AB286 at lines 1–2);
·that the Tribunal asked the appellant if he had any documents to support his claims (AB289 at lines 25–29); and
·that the Tribunal also told the appellant’s witness (his sister) that the appellant’s account was difficult to accept (eg AB295 at lines 38–42; AB296 at lines 15–16).
The Minister submitted that when these matters are considered cumulatively, and in the context of the entirety of what transpired at the hearing, the appellant was on notice that the credibility of the claimed past instances of harm was an issue before the Tribunal.
At no point in the hearing did the Tribunal squarely put to the appellant that whether or not the incidents he described in his statutory declaration had occurred was in issue. The only incidents about which it questioned him were “the incident involving hot water” and “the rock incident”. In relation to the first matter, the Tribunal member asked him what he recalled of it, when it happened and what happened. It also asked him whether he required any treatment. In relation to the second, the Tribunal member also asked the appellant what happened. The Tribunal member also asked whether something had happened to precipitate the attack. But in neither case did the Tribunal member ask the appellant why his account should be accepted or call into question any of his answers.
Nevertheless, essentially for the reasons advanced by the Minister, I am persuaded that the proposition that the appellant was not on notice that his credibility was in issue has little, if any, merit.
The Tribunal member described as “silly” and “a bit difficult to accept” the notion that his wife and her relatives would accost him at work when they knew where he lived (at AB270). The Tribunal member also challenged the appellant’s claim that his parents-in-law were hostile to him because he was a half-caste, saying that if they had such views they would have expressed them before the marriage and before the birth of their two grandchildren (at AB275). And the Tribunal member expressed “difficulty understanding” why, if, since 2010, he had in fact harboured fears for his safety he did not “rent a place in Nadi” (AB279–80). In contrast to the position in AZAAD, the Tribunal did ask questions which enabled the appellant to expand upon his evidence with respect to key events.
What is more, the Tribunal informed the appellant that “it might have some doubts about the truth of the circumstances that [he had] identified” (at AB286). Pointing to the letter from his wife in support of his most recent application for a tourist visa in November 2012, the Tribunal member said:
So the relevance of that information is it suggests that you did have ongoing contact with her up to November 2012 at least that she knew about your visit and she supported your visit and also gave you a copy of her certificate of identity to include with the application, and that makes me wonder if your relationship with her was as difficult or as problematic you say it was …
So if the Tribunal relies on that information, it might have some doubts about the truth of the circumstances that you have identified.
It is clear from the context in which these statements were made that “the circumstances that [he had] identified” was a reference to the appellant’s account of numerous incidents of harm at the hands of his wife, her friends and relatives.
Finally, the Tribunal asked the appellant whether he had “any documentation, any medical documentation or any documentation from any complaint or police report in relation to any of the past incidents” (at AB289). This inquiry would only have been necessary if the Tribunal had concerns about the appellant’s credibility.
Consequently, leave to raise the additional ground is refused.
Conclusion
The appeal should be dismissed with costs.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann. Associate:
Dated: 31 January 2017
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