SZVBT v Minister for Immigration
[2016] FCCA 2203
•29 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVBT v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2203 |
| Catchwords: MIGRATION – Review of former Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China – asserted general findings on credibility – where many of the applicant’s claims were accepted and some other claims were rejected apparently because of a failure to provide evidence of the cause of death of the applicant’s brother – where applicant delayed seeking protection for three months after arrival in Australia – whether adverse credibility findings made on no evidence and whether the Tribunal decision was unreasonable or irrational considered. |
| Legislation: Migration Act 1958 (Cth), s.36 |
| Cases cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Australian Postal Corporation v D'Rozario (includes Corrigendum dated 30 October 2014) [2014] FCAFC 89 Minister for Immigration v Eshetu (1999) 197 CLR 611 Selvadurai v Minister for Immigration (1994) 34 ALD 347 SFGB v Minister for Immigration [2003] FCAFC 231; (2003) 77 ALD 402 SZTGV v Minister for Immigration (2015) 229 FCR 90 |
| Applicant: | SZVBT |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2563 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 25 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 29 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Moutasallem, pro bono publico |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application filed on 16 September 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2563 of 2014
| SZVBT |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal) made on 19 August 2014. There is an issue whether the Tribunal decision is irrational or illogical or otherwise unreasonable or whether asserted “general findings on credibility” are supported by any evidence.
On 27 August 2015 I made a show cause order against the Minister in the following terms:
Pursuant rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), the first respondent is ordered to show cause why relief should not be granted on the basis that the Tribunal decision is unreasonable because of the Tribunal’s repeated but apparently unsupported assertions of a general lack of credibility on the part of the applicant.
At the trial of this matter on 25 August 2016 the applicant was ably represented by counsel, who appeared pro bono. The Court is grateful for the willingness of practitioners to appear on this basis.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a male citizen of China.[1] He arrived in Australia on 27 May 2013 as the holder of a tourist visa.[2]
[1] Court Book (CB) 30
[2] CB 35, 54
The applicant applied for a protection (Class XA) visa on 23 August 2013.[3] His claims were set out in his application form.[4]
[3] CB 1-25
[4] CB 17-20
The applicant claimed that he and his brother had established a construction company, which was contracted to perform a project for a second company. The second company failed to pay the full agreed amount for completion of the work.
The applicant claimed that he, his brother, and workers, then engaged in a protest at the second company. They were dispersed by the police, and the applicant's brother was arrested. The brother was held overnight and released the following day, and subsequently died in hospital owing to his injuries.
The applicant claimed that he then visited numerous government agencies seeking an investigation into his brother's death. The applicant organised a memorial service for his brother, at which the applicant was arrested and charged with various matters. He was later released on signing a confession, and ordered to report to the Chinese authorities. He suffered further harassment and accordingly claimed to fear harm in China from the Chinese government.
The application was refused by a delegate of the Minister, on 6 March 2014.[5]
[5] CB 54-66
The delegate did not find it credible that the applicant would have approached various authorities seeking an investigation into his brother's death without having a document showing the cause of death of the brother. The delegate also did not accept that if the applicant had obtained and provided a certificate of cremation and cancellation of the household of the deceased notice, that the applicant would not have provided the death certificate showing his brother's cause of death. The applicant had not claimed that the death certificate was unavailable. Rather, that it was in China and he had not requested it. The delegate found it was more likely that the applicant did not present the certificate because it would not support his claims.
The delegate rejected the applicant's material claims. The delegate found that a certificate of release from detention provided by the applicant had been procured by the applicant to assist his claims.
The applicant applied to the Tribunal for review of the delegate's decision on 19 March 2014.[6] The applicant submitted a copy of the delegate's decision with his application for review.[7]
[6] CB 68-73
[7] CB 78-90
The Tribunal acknowledged receipt of the application by letter dated 25 March 2014.[8] The acknowledgment letter said, amongst other things, that if the applicant wanted to provide material or written arguments to the Tribunal he should do so as soon as possible.[9]
[8] CB 93-94
[9] CB 93
The applicant gave oral evidence and presented arguments on the issues arising in relation to the review, at a hearing before the Tribunal on 8 August 2014.[10] Other than his passport, the applicant provided no documentary material at the hearing.[11]
[10] CB 104-106
[11] CB 107-114
The applicant gave evidence before the tribunal that he and his now deceased younger brother established their own construction company in China. In February 2012 the applicant’s company was contracted by another company which was owned by a township government. There was a dispute between the two companies and the applicant gave evidence that second company did not pay his company the amount owed. The applicant and his brother made repeated unsuccessful requests for the payment of the amount owed from the second company and the Labour and Social Security Bureau for payment.
The applicant also gave evidence that on 21 November 2012 the applicant and his brother along with unpaid workers conducted a sit down protest at the second company’s premises. During this protest the applicant says that the police were called and dispersed the protest. In doing so the applicant’s brother was arrested.
The following day the applicant and his family learnt that the applicant’s brother was badly injured and sent to hospital. The applicant says that later that evening his brother died.
The applicant gave further evidence that he visited a number of government agencies seeking an investigation into his brother’s death. The applicant said that instead of receiving assistance, the applicant was continuously threatened by authorities.
The applicant gave further evidence that he was detained in China for a period before his eventual departure to Australia. Upon his release from detention the applicant says that he suffered from further harassment and accordingly claimed to fear harm in China from the authorities.
The Tribunal made its decision on 19 August 2014, affirming the decision not to grant the applicant a protection (Class XA) visa.[12]
[12] CB 120-130
The Tribunal’s decision
The Tribunal accepted that the applicant's company entered into an agreement with the second company and that, after the non-payment of moneys the applicant believed were owing, the applicant and others made complaints to the company and conducted at least one peaceful protest.[13] The Tribunal accepted the applicant's brother had died, although not in the manner alleged.[14] The Tribunal also accepted that the applicant had made some complaints to independent organisations about the corrupt practices of the local police,[15] but did not accept that the lack of investigation was due to the reasons claimed by the applicant.[16] The Tribunal rejected some other of the applicant's material factual claims.[17] The Tribunal considered whether the applicant would participate in protests in the future on return to China and was satisfied he would not.[18]
[13] at [12], and [40]
[14] at [17]-[18]
[15] at [23] and [40]
[16] at [22]
[17] at [41]
[18] at [26]
With respect to the release from detention certificate, the Tribunal observed that if the applicant was in fact detained in China, as the Tribunal had rejected the reasons for this detention, it concluded there was nothing to indicate the applicant would have a real chance of persecution or a real risk of significant harm arising from this should he return to China.[19]
[19] at [33]
The Tribunal found any future pressure from the applicant's creditors would not be persecution, nor for a Convention reason.[20] The Tribunal considered complementary protection from [49], and was not satisfied that any harm the applicant would suffer would be significant harm for the purposes of the complementary protection provisions in the Migration Act 1958 (Cth) (Migration Act).[21]
[20] at [45]-[46]
[21] at [54]
The judicial review application
These proceedings began with a show cause application filed on 16 September 2014. The grounds in that application are contained in an attachment as follows:
1 [Tribunal] underestimated the risk that I would be persecuted after I return China. Firstly, I had to report to the … PSB every Thursday before I came to Australia. Now my family was continuously harassed by the police. The police won’t let me off so easily if I return China. Moreover, I could not repay the money that I owed my former employees. If I return China, they would ask me to pay the money. Even if the police no longer harass me, because the pressure of repayment, only thing that I can do is continuing to ask [the second company] for money, then the previous tragedy would repeat for sure.
2 [Tribunal] has denied me of procedural fairness by failing to provide adequate reasons for the finding of a fact.
a The reason for my brother’s death:
· My brother was persecuted to death. The death certificate of my brother was at my home in China. In the RRT interview, the officer asked me why I had not sought to provide the death again and again, I have provided reasonable explanation. I believed the Certificate of Cremation Completion and a Cancellation of Household of the Deceased should suffice to corroborate the claimed death of my brother. According to the law, I was not required to know the operation process. I was not able to know how to provide evidences. However, [Tribunal] was not conscientiousness; it should give me more time to provide this evidence, rather than denied the claim that my brother was persecuted to death only based on it. If [Tribunal] give me more time to provide the death certificate of my brother, I can provide it for sure. [Tribunal’s] approach led to lack of evidences, which was very unfair to me.
· Maybe due to the translation error, during the immigration interview, the officer asked me how the Fuqing government organizations dealt with my protest. I responded that they asked me for evidences, but I could not provide. The fact was that I had provided the death certificate of my brother, but they wanted the evidences that my brother was beaten at the scene; of course I could not provide that. In the [Tribunal] interview, I told officer that I had provided the death certificate of my brother to government organizations, but he said my answer in immigration interview was different. This error showed that immigration and [Tribunal] did not review my case carefully.
b My arrest on 110/1/2013:
It is my hometown custom to hold a memorial for deceased persons. The officer did not accept it plausible the local authorities would have arrested me at the memorial service of my brother. However, the fact ignored by [Tribunal] was that I continued to protest (about my brother’s death and the ongoing contractual dispute), the police used this opportunity I hold memorial for my brother to arrest me hoping I would be afraid and no longer make trouble with them, which was entirely possible. Moreover, I also provided the solid evidence arrest warrant to prove my evidence.
c In Para 21, [Tribunal] considered it unlikely … and his uncle were able to influence three independent more central organization. However, [my home town] is one of towns in Fuqing. [The] town is less than 20 [kilometres] from these organizations. The government officials were corrupt and they were bribed. It was entirely possible that they shielded what … and his uncle have done.
It can be seen from above [Tribunal] did not investigate dutifully, and then made these false conclusion. I think [Tribunal] should be impose an obligation to give reasons to any administrative decision, otherwise the decision maker would make any wild finding of a fact at will and the justice would surely be undermined. Therefore, I find the [Tribunal’s] decision is not made properly and legitimately.
3 Regarding to my delay in lodging the protection visa application, I arrived in Australia on a tourist visa on 27 May 2013, and lodged protection visa application on 23 August 2013 in less than three months. When I came to Australia safely, it was not necessary for me to apply protection visa. After I understand the law and cultures in Australia I started to prepare materials immediately. It also took time to prepare documents and forms. I lodged my application in three months, this kind of delay was reasonable. (errors in original)
The grounds in the application are substantially an invitation for the Court to undertake merits review which is beyond the scope of this proceeding. The grounds are of continuing relevance only insofar as they inform the show cause order I made.
I have before me as evidence the court book filed on 8 October 2014. Both the applicant and the Minister, through their counsel, prepared useful pre-hearing submissions.
Consideration
The Minister concedes that the Tribunal’s decision is not an example of pellucid reasoning. Indeed, the Tribunal’s chain of reasoning is quite hard to follow. The Tribunal accepted many of the applicant’s factual claims but nevertheless, and rather obscurely, repeatedly referred to its assessment of the applicant’s “general credibility” to find that he was not a reliable witness and to reject other claims, apparently on that basis. The challenge presented by the Tribunal’s reasons is to determine what, if any, basis the Tribunal’s general credibility findings have. The difficulty in this case is a serious one because the Tribunal’s concern about the applicant’s credibility appears to be based on only two things: the first is a rejection of the applicant’s claim about the cause of his brother’s death; and secondly, a concern about the applicant’s “delay” of about three months in applying for protection after he arrived in Australia.
The applicant’s contentions
The applicant mounts a broad ranging attack on the Tribunal’s fact finding.
At [40] the Tribunal accepted the following facts:
a)the applicant and his brother did have a construction company;
b)the company did enter into an agreement with the second company;
c)after non-payment of monies owed, the applicant and his brother did complain to the second company and the Labour and Social Security Bureau;
d)the applicant and his brother conducted a peaceful protest which was dispersed by police;
e)the applicant’s brother had recently died;
f)the applicant also complained to independent organisations about the brutal police at the PSB and corrupt officials of the township government.
At [11] the Tribunal accepted that, depending on the circumstances, protests in China may be met with violent official action.
Yet at [41], the Tribunal did not accept that:
a)the applicant’s brother was arrested at the protest despite the Tribunal accepting that a protest had occurred;
b)the applicant’s brother had died after being injured whilst in police custody despite the Tribunal accepted the applicant’s brother had in fact passed away;
c)the applicant was arrested at the memorial service for his brother;
d)the applicant is of any ongoing adverse interest to any Chinese government officials; and
e)the applicant’s family are being harmed, harassed or even questioned about the applicant’s whereabouts or for any other reason.
The applicant submits that, given that the Tribunal did not accept many of the critical claims made by the applicant the Tribunal held that the applicant did not satisfy either criteria set out in s.36(2)(a) or s.36(2)(aa). If for instance the Tribunal had accepted that the brother’s death was caused by injuries suffered following his detention by police, this would have most certainly affected the Tribunal’s assessment of whether the applicant had a well-founded fear or being persecuted.
In rejecting these critical factual claims, the Tribunal repeatedly made assertions of the applicant’s lack of credibility. It is important to identify those assertions and the context of those assertions.
The adverse credit findings
An appropriate starting point is the reasons given by the Tribunal to reject the applicant’s claims that his brother was arrested by police at the protest and later died from injuries he sustained in police custody.
At [16] the Tribunal noted that the applicant in support of his application for a protection visa had included a document called the “Certificate for Cremation Completion” and a “Cancellation of Household of the Deceased” but had failed to provide a death certificate. The explanation provided by the applicant to the Tribunal for this failure was that he thought the two documents he provided would be sufficient to prove the death of his brother.
In rejecting the applicant’s claim that the applicant’s brother was arrested at the protest and died as a result of injuries he suffered in police custody, the Tribunal at [17] rejected the applicant’s explanation of his failure to provide a death certificate and went on to say:
This is one of the reasons that has caused me to reject that the brother died in the way alleged by the applicant or that the brother was arrested at the protest as the applicant claimed. It is also one of the reasons that ultimately satisfied me that the applicant was not a reliable witness.
The above extract can only be read as an adverse credibility finding against the applicant. The applicant submits that there was no evidence before the Tribunal to refute the applicant’s explanation for him not providing the death certificate. In the circumstances, the assertion that the applicant was not a reliable witnesses is said to have been unsupported by the evidence. The finding is said to be not supported by probative material or logical grounds.
The passage refers to the reason given in [17] as being one reason to support a finding that the applicant’s brother was not arrested or killed as claimed. Yet, there does not appear to be any other reason obvious from the balance of the Tribunal’s decision that the Tribunal relied upon to make that finding. It appears as though the rejection of the applicant’s claim about his brother’s arrest and cause of death turned on a questionable adverse credit finding.
The applicant submits that this “unsupported criticism” of the applicant’s reliability infects the remainder of the Tribunal’s decision as evidenced by comments throughout the decision about the applicant’s credibility.
At [21] and [22] the Tribunal addressed the plausibility of the applicant’s claim that he complained to three government authorities yet they all failed to investigate the applicant’s concern about his brother’s death. At [22] the Tribunal accepted that it was possible that the applicant’s claim that none of the government organisations assisted him in the investigation into the circumstances of his brother’s death. Yet later in the paragraph the Tribunal curiously rejected that claim as false based on an assessment of the applicant’s credibility when it said:
I have rejected the claim as false in this case. That is because, though an applicant need not have corroborating evidence, I am nonetheless satisfied it is speculation on his part. Second, I have not accepted the brother’s death was for the reasons claimed by the applicant and therefore do not accept the lack of any investigation by the three independent bodies mentioned was for all the reasons submitted by the applicant. Third based on my assessment of the applicant’s general credibility, I am not satisfied he is a reliable witness.
Having accepted that the applicant’s claim was possible, it is difficult to discern why the Tribunal decided to reject that claim. For a second time, the Tribunal makes an assertion as to the applicant’s credibility. Up to that point, at [22], the only justification for any criticism of the applicant’s reliability was his failure to provide the death certificate dealt with at [17].
At [26] the Tribunal held that it was satisfied that the applicant would not continue his protest in China. Again, in making that finding, the Tribunal refers to the applicant’s credibility when it said:
First, I am satisfied he is prepared to foreclose any chance of future protests by residing in Australia and I am not satisfied he would pursue his protest in China. Second, and possibly more importantly, I am not satisfied that the applicant is generally credible and gave decided not to give this any weight.
A further claim of the applicant is rejected on credibility grounds, but the Tribunal does not at [26] disclose why the applicant was not credible in either the specific or general sense. Again, to this point, the only justification for any adverse finding of the applicant’s credibility was at [17].
At [29] the Tribunal said that given that it had accepted that the applicant was not a reliable witness it rejected the claim that the applicant was arrested during his brother’s memorial. Again the Tribunal does not in that paragraph provide any further reason why the applicant was not credible in either the specific or general sense.
The Tribunal at [32] rejected the claim that the applicant was detained as false. Yet, as the Tribunal noted at [33] the fact that the applicant was detained at some time in China is supported by the document showing the applicant’s release from detention on 28 February 2013. The applicant complains that there does not appear to be any evidence to support the Tribunal’s negative finding of fact.
At [39] the Tribunal was critical of the applicant’s delay in lodging a protection visa once he had arrived in Australia. The applicant lodged an application for a protection visa on 23 August 2013, about three months after he arrived in Australia on 27 May 2013. The Tribunal found that the delay in the applicant lodging a protection visa application was a:
…further reason that has satisfied me he applicant is not a reliable witness.
The applicant gave an explanation for the delay. He said that he did not immediately understand the law and cultures in Australia. It is not in dispute that it took the applicant close to three months to lodge a protection visa.
The applicant submits that, in circumstances where the person who lodged the application was a new arrival to Australia from China without a command of the English language, it is unreasonable to say that the three month delay was a further reason to find that the applicant was not a reliable witness. There was “no evidence to disprove” the applicant’s explanation for his failure to lodge the protection visa application sooner.
Jurisdictional error: “no evidence” to support a finding
The applicant submits that the Tribunal’s adverse findings against his credit were critical to the decision it made. This is evidenced by the manner in which the Tribunal repeated assertions as to the applicant’s general lack of credibility when it gave its reasons for rejecting more than one critical fact advanced by the applicant. The critical finding as to credit for which the applicant submits there was no evidence tainted the Tribunal’s ability to apply the statutory test.
By way of illustration, the Tribunal rejected the claims by the applicant that his brother died of injuries after he was arrested and taken into police custody. There is no doubt that the fact that the Tribunal did not accept the applicant’s evidence in that regard was critical to the statutory test it needed to apply. An adverse credit finding was central to the Tribunal’s rejection of that claim. The applicant submits that if he can demonstrate that that credit finding is impugned then jurisdictional error is demonstrated.
If the general proposition that the Tribunal’s jurisdiction does not extend to acting otherwise than in accordance with law is accepted, then it follows that the making by the Tribunal of any finding of fact that is supported by no evidence should be regarded as a jurisdictional error.
In Australian Broadcasting Tribunal v Bond,[22] Mason J made reference to “the traditional common law principle that an absence of evidence to sustain a finding or inference of fact gives rise to an error of law”. The applicant submits that it is clear that Mason CJ intended to assert a general proposition applicable to all fact-finding: it is an error of law to make a finding of fact that is supported by no evidence. The common law principle is not restricted to “jurisdictional facts”.
[22] (1990) 170 CLR 321
In SFGB v Minister for Immigration,[23] the Full Federal Court said:[24]
If the tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355-357.
[23] [2003] FCAFC 231; (2003) 77 ALD 402
[24] at 407
In SFGB , the Tribunal had held as follows:[25]
I accept the independent information set out above that the Taliban is no longer a force in Afghanistan ... There is no evidence before me to support the applicant’s claim that elements of the Taliban remain viable in Afghanistan, and especially not that any such elements are in positions of power or influence, or that they still function but in other forms.
[25] 77 ALD at 409
The Full Court held that there was no evidence before the Tribunal to support this conclusion in relation to that part of Afghanistan which was relevant to the then the applicant’s situation. It held that the Tribunal:[26]
... reached its conclusion that the appellant did not have a well-founded fear of persecution because it had found that the Taliban was not viable. On the material before the tribunal that conclusion was not open in relation to the northern Oruzgan province at that time. It involved a jurisdictional error.
[26] 77 ALD at 410
The applicant contends that, similarly in this case, the Tribunal reached a conclusion that the applicant’s brother was not arrested and did not die in the manner the applicant asserts because the applicant did not provide a death certificate to the Tribunal. The applicant submits that, on the evidence before the Tribunal, that conclusion was not open to the Tribunal. There was no evidence before the Tribunal to discount the applicant’s explanation. The same can be said about the absence of evidence to discount the applicant’s explanation for the delay in lodging his application for a protection visa. Ultimately, it is submitted that there was no evidence to support the Tribunal’s adverse credit finding.
As to jurisdictional errors arising from the making of a critical finding in the absence of evidence, the authorities were helpfully summarised by Jessop J in Australian Postal Corporation v D'Rozario (includes Corrigendum dated 30 October 2014).[27] At [66] Jessop J states that:
The authorities to which I have referred demonstrate that there is some uncertainty as to the circumstances in which an absence of evidence before an administrative decision maker will give rise to jurisdictional error. In each of the most recent Full Court judgments on the subject – SZMWQ, Meat Industry and Soliman – it has been held that to make a “critical” finding in the absence of evidence to support it “may” amount to jurisdictional error. The features which a particular case would need to display to convert the “may” into a “will” have not, however, been elucidated. Neither, so far as I can see, has there been any elaboration on what constitutes a “critical” finding. If this is no more than another way of referring to a jurisdictional fact, there is, of course, no controversy. However, I do not think that these Full Court judgments should be so understood: their Honours were, in each case, referring to findings which were critical in the reasoning process by which the decision maker reached a particular conclusion, but were not concerned with facts the objective existence of which was a necessary precondition to the assumption or exercise of jurisdiction.
[27] [2014] FCAFC 89
Jurisdictional error: unreasonableness and irrationality
The applicant further submits that the adverse credibility findings of the Tribunal were not supported on logical grounds. There are only two instances in the decision where one can clearly delineate any reason for the Tribunal’s criticism of the applicant’s credibility:
a)at [17] when the Tribunal said that because the applicant had not provided a death certificate this was a reason to find that the applicant was not a reliable witness; and
b)at [39] when the Tribunal said that the delay in the applicant applying for a protection visa application was a further reason to find that the applicant was not a reliable witness.
In circumstances where the applicant gave two perfectly logical explanations for which there was no evidence to refute, the applicant submits that there was no logical basis for the adverse credit findings.
In Minister for Immigration v Eshetu,[28] Gummow J observed that “a criterion of ‘reasonableness review’ would permit review in cases where the satisfaction of the decision-maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds”.
[28] (1999) 197 CLR 611 at 656-7
In Minister for Immigration v SZMDS,[29] Gummow ACJ and Kiefel J approved the following passage from the judgment of Gummow and Hayne JJ in SGLB v Minster for Immigration:[30]
The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith.
[29] (2010) 240 CLR 611 at 625 [40]
[30] (2004) 207 ALR 12 at 20-21[38]
The applicant submits that the Court should conclude that the Tribunal made repeated assertions of a general lack of credibility on the part of the applicant at critical junctures in its decisions. When the Tribunal was setting out its reasons for rejecting a number of the critical factual claims made the applicant, the Tribunal relied heavily on its adverse assessment of the applicant’s credibility. These critical factual claims went to the heart of the questions that the Tribunal had to determine, that is, whether the applicant had a well-founded fear of persecution or whether the applicant was at risk of significant harm if returned to China.
Though finding that the applicant was not a reliable witness whose credibility was lacking, that finding is said to have been illogical in that the reasoning adopted by Tribunal in reaching that conclusion could not be supported by the evidence. That being said, the Tribunal’s decision was “unreasonable and disclosed jurisdictional error”.
There is said to have been no evidence to discount the explanation that the applicant gave for the failure to provide the death certificate. Similarly there is said to have been no evidence to discount the explanation for the applicant’s delay in lodging his application for the protection visa. There was thus no evidence to support the assertion that the applicant was not a credible witness. Given that there was no evidence to support such a critical finding, the applicant contends that the decision discloses a jurisdictional error.
The Minister’s contentions
The Minister concedes that the Tribunal accepted some of the applicant’s claims and rejected others.[31]
[31] CB 127-128 [40]-[41]
The Tribunal at [15][32] noted that the kind of violence claimed to have been meted out to the applicant’s brother at a protest was, in the Tribunal’s view, exceptional according to country information. At [17][33] it noted that the applicant had not provided the Tribunal, either before or after the hearing, with a death certificate for his brother which could corroborate how he died. At [22][34] it noted that for this reason (and others) it did not accept that independent bodies in Fuqing would have done nothing about the brother’s claimed death. At [29][35] it did not accept as plausible that the applicant would have been arrested at his brother’s memorial service. At [35][36] it did not accept as plausible that the local authorities would visit the applicant every day. At [38]-[39][37] it noted the applicant’s delay in applying for a protection visa and did not accept that if his claims were true he would not have applied for the visa earlier.
[32] CB 123
[33] CB 123
[34] CB 124
[35] CB 125
[36] CB 126
[37] CB 127
The Minister also concedes that the Tribunal specifically noted only two of these matters as among those that led it to find that the applicant was not a credible witness.[38] However on a fair reading, consistently with Minister for Immigration v Wu Shan Liang,[39] the Minister submits that the Tribunal’s conclusions about the applicant’s credit should also be seen to be informed by the other matters it found to be implausible or untrue as detailed above.
[38] CB 123 [17], 127 [39]
[39] (1996) 185 CLR 259 at 271-272
To establish that the Tribunal’s decision was unreasonable the Court would need to be satisfied that it was illogical or irrational within the principles in Minister for Immigration v SZMDS.[40] In SZMDS at [131], Crennan and Bell JJ state that if reasonable minds could differ as to the decision to be made on the evidence, illogicality or irrationality or unreasonableness cannot arise simply because one conclusion has been preferred to another possible conclusion.
[40] (2010) 240 CLR 611
The Minister also notes that the relevant principles when a decision of the Tribunal refusing a protection visa is said to be illogical or irrational have been recently summarised in Minister for Immigration v SZUXN.[41] It suffices to refer in particular to the comments in SZUXN at [52], [57]-[58] that for such a ground to succeed, “extreme” illogicality must be shown such that reasonable minds could not differ about the conclusions reached. “Emphatic disagreement” with the Tribunal’s reasoning is not sufficient to make out illogicality.[42]
[41] [2016] FCA 516 (Wigney J) at [44]-[56]
[42] SZMDS at [124]
The Minister contends that the aspects of the applicant’s claims that the Tribunal found implausible as detailed above provides an adequate basis for its conclusion that he was not generally credible, although as already stated the Tribunal accepted some of his claims. It is not illogical or irrational for the Tribunal to find an applicant lacking in credit if it considers some of his claims untrue or implausible, as here. As reasonable minds could differ about the Tribunal’s reasoning it cannot be illogical or irrational within the principles in SZMDS as explained in SZUXN.
The Minister submits that for the same reason it cannot be said that the Tribunal’s findings were not open on the evidence.[43]
[43] eg SZTGV v Minister for Immigration (2015) 229 FCR 90 (FC) at [131]
The Minister contends that, while the applicant’s submissions argue with the Tribunal’s reasoning process, this is really just seeking merits review. The merits were a matter for the Tribunal, and allegations of illogicality or irrationality should not be used as a means to seek merits review.[44]
[44] SZTGV at [131]; SZUXN at [56]
The Minister also notes that the applicant’s submissions also claim that there was no evidence to discount the applicant’s explanations as to why he did not have his brother’s death certificate and his delay in applying for the visa. However the Tribunal was not obliged to accept these explanations. The Tribunal does not need to possess rebutting evidence before holding that a particular factual assertion is not made out.[45] And otherwise the claim that there was “no evidence” for the Tribunal’s conclusion that the applicant was not a credible witness must fail: there was evidence for this conclusion, being the applicant’s claims that the Tribunal regarded as implausible or untrue for the reasons it gave.
[45] Selvadurai v Minister for Immigration (1994) 34 ALD 347 (FCA/Heerey J) at 348
Resolution
I accept the Minister’s final submission that the Tribunal was not obliged to accept the explanations given by the applicant for his failure to provide his brother’s death certificate and his delay in applying for the visa. As the Minister submits, the Tribunal does not need to have rebutting evidence before holding that a particular factual assertion is not made out.
Further, it is plain that there was some evidence supporting the Tribunal’s conclusions, both as to the specific factual findings that the applicant had failed to provide a death certificate for his brother and that the applicant had delayed applying for protection, and, more generally, that the applicant was not a credible witness. It was probably wrong for the Tribunal to purport to conclude that the applicant was, in any general sense, not a credible witness. In reality, the Tribunal had accepted a significant part of the applicant’s factual claims. It was, however, open to the Tribunal to conclude that the applicant was not a credible witness in critical respects, and, on a generous view, that is probably what the Tribunal meant to say. As the Minister submits, in addition to the two matters identified by the Tribunal as supporting an adverse credibility conclusion (the absence of the death certificate and the delay in seeking protection) there are the findings at [29] and [35] of a lack of plausibility in particular claims. Although not specifically identified by the Tribunal as supporting its adverse credibility conclusion, it is tolerably clear that the rejection of particular claims as being implausible would support such a conclusion.
Thirdly, the Tribunal decision needs to be read in the context of its review of the decision of the delegate. The delegate’s reasons are set out in the court book from page 54. The delegate made clear and cogent adverse credibility findings against the applicant which covered much of the same ground as that traversed by the Tribunal. At CB 59-60 the delegate said in his reasons:
I have considered the following:
- The applicant was asked at interview whether he had any evidence of his having asked for an investigation into the death of his brother to which he responded that the police wanted him to provide evidence to initiate an investigation. Clearly the evidence would have been the death certificate or other medical report or a statement from the doctor which would state the cause of death. I do not find credible the applicant’s claims that he would have approached the police as well as the People’s Government, the Judicial Bureau and the appealing authority of Fuqing City without having with him a document showing the cause of death in respect of his brother.
– Similarly I also do not accept that if the applicant had obtained and provided the notice of completion of cremation as well as the household de-registration notice to the Department in support of his application that he would not have provided the death certificate, showing the cause of death. The documentary evidence that he has provided is peripheral to his claims but he has not provided the main piece of evidence. The applicant did not claim that the death certificate was unavailable, rather that it was in China and he had not requested it. I think it is more likely that he has not presented the death certificate because it would not support his claims.
– I do not accept the applicant’s claims that there is no mechanism within the police force of Fuqing city that would investigate serious complaints against the police, particularly such an arbitrary killing. Overall, I do not find credible the applicant’s claims in respect of trying to initiate an investigation into the murder of his brother. I believe that if he had tried to report the matter as claimed he would have been able to better detail each attempt and response, rather than just stating bluntly that no one would take his complaint and in particular for such a serious and isolated allegation.
– When asked at interview why the police would beat the applicant to the point of death he claimed that the head of the Fuqing police is the uncle of the manager of the … Industrial Development Company and that his elder brother worked at the … Township Government and as they are relatives, they collaborated to seize the money he was entitled to by killing his brother. I find it implausible that the company manager and police chief and government official would conspire with other police to arrest and beat to death the applicant’s brother so that they would not have to pay him the outstanding amount of money owed, 500,000 RMB.
– I do not accept the applicant’s claims that he was arrested, detained and beaten by the police every day for seven weeks until he agreed to sign confession. I find the claimed actions of the police implausible in that they would go to such lengths for a matter not directly involving themselves and upon obtaining a confession after some fifty days, they would release the applicant without charge.
– I do not accept that if the applicant had been so seriously beaten for fifty days that he would not have suffered much more serious injuries. He claims to have suffered bruising and swelling as well as sore internal organs but did not require hospitalisation or medical treatment. Given that he claims to have been punched and kicked into unconsciousness on the first day of his detention, I believe such mistreatment may have left some form of disfigurement or scarring or permanent injury following a further seven weeks of beatings.
– As I have found the applicant’s evidence not credible that his brother was beaten to the point of death by the police, I also do not accept the applicant’s claims that he was arrested by the police because of his petitioning activities to initiate an investigation into his death. I have noted the certificate of release from detention in respect of [the applicant] dated 28 February, 2013 and I am of the view that this document has been procured by the applicant to add credence to his claims. I am strengthened in this opinion by country information (CX42649) which indicates that little evidentiary weight can be placed on any official Chinese document. Any official Chinese document can either be bought or forged in China. Irregular or improper issue of documentation is widespread. CX42649: Summonses in China, DFAT, 5 June 2000. “…Any official document can either be bought or forged in China. Irregular or improper issue of documentation is widespread …little evidentiary weight can be placed on any official Chinese document, including summonses.”
The applicant was on notice that his credibility was in issue in the review before the Tribunal. He himself provided the delegate’s decision to the Tribunal. The issues going to credibility were discussed with the applicant at the Tribunal hearing. Viewed in its proper context, the Tribunal’s decision should be seen as a general endorsement of the delegate’s findings, albeit in less clear terms than those expressed by the delegate. While the Tribunal’s repeated references to the applicant’s “general lack of credibility” and his not being a “reliable witness” were unhelpful, particularly in circumstances where those references were not logically connected to the Tribunal’s fact finding, except in a small number of instances, obscure reasoning, or even a lack of logic in reasoning, does not of itself establish jurisdictional error.
There was some evidence available to the Tribunal upon which it could base its rejection of the applicant’s claims which were rejected. It was open to the Tribunal to find that the applicant’s claims lacked credibility in material and critical respects, which is the way the Tribunal’s findings on credibility should be read. Viewed in the context of the review of the delegate’s decision, the Tribunal’s decision was not unreasonable in any legal sense.
Conclusion
The applicant has not established that the decision of the Tribunal is affected by jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 29 September 2016
11
2