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Federal Court of Australia |
Last Updated: 29 February 2008
FEDERAL COURT OF AUSTRALIA
SZCZN v Minister for Immigration & Citizenship [2008] FCA 173
Migration Act 1958 (Cth) s 476
Abebe v Commonwealth (1999) 197
CLR 570 cited
Minister for Immigration & Ethnic Affairs v Wu Shan
Liang [1996] HCA 6; (1996) 185 CLR 259 cited
Minister for Immigration &
Multicultural Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 cited
NACB v Minister
for Immigration & Multicultural Affairs [2003] FCAFC 235
cited
NATC v Minister for Immigration & Multicultural Affairs
[2004] FCAFC 52 cited
Re Minister for Immigration & Multicultural
Affairs; ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 cited
SZAPC v
Minister for Immigration & Multicultural Affair [2005] FCA 995
cited
SZEJF v Minister for Immigration & Multicultural &
Indigenous Affairs [2006] FCA 724 cited
Tran v Minister for
Immigration & Multicultural Affairs [2006] FCA 1229 cited
VWFP
& VWFQ v Minister for Immigration & Multicultural & Indigenous
Affairs [2006] FCA 231 cited
VWST v Minister for Immigration &
Multicultural & Indigenous Affairs [2004] FCAFC 286 cited
W148/00A
v Minister for Immigration & Multicultural Affairs (2001) ALR 703 cited
SZCZN
v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW
TRIBUNAL
NSD 1957 OF 2007
EDMONDS J
28
FEBRUARY 2008
SYDNEY
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AND:
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THE COURT ORDERS THAT:
1. The appeal be dismissed.2. The appellant pay the first respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the
Federal Court Rules.
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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BETWEEN:
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SZCZN
Appellant |
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AND:
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MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent |
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JUDGE:
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EDMONDS J
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DATE:
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28 FEBRUARY 2008
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
1 This is an appeal from a judgement of the Federal Magistrates Court (SZCZN v Minister for Immigration [2007] FMCA 1433 (Turner FM)) dismissing an application for review of a decision of the second respondent (‘the Tribunal’) affirming a decision of a delegate of the first respondent (‘the Minister’) refusing an application for a protection visa.
BACKGROUND
2 The appellant is a citizen of India who arrived in Australia on a visitor’s visa on 19 April 1996 and claims to be of Sikh faith and a member of the Shiromani Akali Dal (‘Mann’) political party.
3 The appellant applied for a protection visa on 24 April 1996. In this application, the appellant claimed he would be persecuted for his political opinions and involvement in the Mann group seeking a separatist state. This application was refused by a delegate of the Minister on 27 March 1997.
4 On 24 April 1997 the appellant filed an application for review of the decision of the Minister’s delegate with the Tribunal. On 19 February 1998 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the appellant a protection visa.
5 On 1 June 2006 orders were made by consent by the Federal Magistrates Court (Emmett FM) quashing the decision of the Tribunal made on 19 February 1998 and remitting the matter to the Tribunal to be heard and determined according to law.
6 On 25 November 2006 the second Tribunal affirmed the decision of the Minister’s delegate not to grant the appellant a protection visa.
7 On 22 December 2006 the appellant filed an application in the Federal Magistrates Court for an order to show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (‘the Act’) in respect of the Tribunal’s decision of 25 November 2006. An amended application was filed in Court by leave on 5 May 2007. On 10 September 2007 the Federal Magistrates Court dismissed the application and the amended application.
APPEAL TO THIS COURT
Notice of Appeal
8 The appellant’s notice of appeal to this Court raises only one of the grounds argued below, namely, that the credit finding by the Tribunal was infected by reasoning which relied upon matters which were not rational or supported by probative material and were not probative on the issue of credit.
Appellant’s Submissions
9 The appellant contended that the matters that were critical to the Tribunal concluding that he was not a witness of truth were:
a. First, its rejection of his account as to why the police could not find him, and in particular his explanation that he lived 30 kilometres away from the address which he had given them, as being implausible; and
b. secondly, its rejection of the appellant’s evidence that he was ‘practically’ in hiding from the police, on the basis that this was not his evidence throughout the hearing.
10 The appellant identified the particular passage in the Tribunal’s reasons upon which he relied as being the second of the paragraphs set out hereunder:
‘The Tribunal does not consider that it is consistent with the applicant’s claims that he was persecuted in his country from 1991, that he continued to live from that time at the one place which was an address relatively close to his family home. This was his oral evidence to the Tribunal. The applicant’s explanation for this was that police could not find him because they were not aware of this address and used to look for him at the family home. The Tribunal does not consider that this explanation is reasonable or plausible given that he told the Tribunal that his family home was only 30 kilometres away, from where he was living. The Tribunal does not accept as true that the applicant was in hiding at any time prior to coming to Australia; he only mentioned he was in hiding when the Tribunal asked him how he managed to live without incident in his country from January 1996, when he said that a warrant was issued for his arrest, until he left India to come to Australia in April 1996. The applicant said that when he was asked about where he was living he just gave the address of the place where he spent most of his time but in the Tribunal’s view he had ample opportunity to tell the Tribunal he had been in hiding in his country when it asked him early in the hearing where he was living in his country prior to his coming to Australia.’
‘The Tribunal does not accept, on the evidence before it, that the applicant suffered the persecution from police/authorities in his country as he claims for the reasons that he claims; specifically the Tribunal does not accept that he was arrested/detained as he claims by authorities in his country or that he was in hiding as he claims prior to coming to Australia. It does not accept as true that there are arrest warrants outstanding in relation to him in India and that he will be arrested if he returns there. Further it does not accept as true that the DIMA invoice sent to the applicant at his correct address in India came to the attention of police as the applicant claims. It follows that the Tribunal does not accept that the applicant will be persecuted in his country because police in India know that the applicant was detailed in Australia by immigration authorities. The Tribunal does not accept as true that the applicant left his country because of the persecution that he claims or that he fears to return there because he fears persecution in India. The reason that the tribunal finds against the applicant in relation to these matters is that it does not accept that he is a witness of truth.’
11 As to the first matter the appellant pointed to as infecting the Tribunal’s credit finding with respect to the appellant – the rejection of his account that the police could not find him because he lived 30 kilometres away from the address which he had given them as being implausible – the appellant submitted that there was no probative material to support the Tribunal’s finding and that this involved jurisdictional error. It was the alleged capricious reasoning which infected the credit finding and the credit finding was critical to the outcome. Reliance was placed on what was said by Gummow and Hayne JJ in the High Court in Minister for Immigration & Multicultural Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [38]:
‘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. To say that a decision-maker must have acted in good faith is to state a necessary but insufficient requirement for the attainment of satisfaction as a criterion of jurisdiction under s 65 of the Act. However, inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error.’
And by Madgwick J in this Court in SZAPC v Minister for Immigration & Multicultural Affair [2005] FCA 995 where, after referring to the passage from their Honours’ reasons in SGLB recited above, said at [57], [58]:
‘Thus it seems to me that the position arrived at in the High Court may be summarized in the following way:
1. A ‘no evidence’ attack will only suffice as such if it can be said that there is an actual ‘absence of any foundation in fact for the fulfilment of the conditions upon which, in law, the existence of a power depends’, that is, if there is no evidence to support a finding of a jurisdictional fact.
2. Nevertheless, there are constitutional minimum standards of judicial review and the powers of decision-makers such as the Tribunal are not to be exercised capriciously – not ‘according to humour’, but according to law.
3. It is a critical legal requirement that the determination should not be able to be characterized as ‘irrational, illogical and not based on findings or inferences of fact supported by logical grounds’. My own shorthand paraphrase of this is that, in that minimal sense, the determination must be a rational one.
4. If that critical legal requirement is not met, there will be jurisdictional error sufficient to warrant the issue of a constitutional writ.
To my mind it is plain that, if an important finding has been made without evidence to support it, that circumstance may be relevant to the question of whether the determination exhibits such rationality. A fortiori, when a crucial finding to the determination has been made without evidence to support it, there will be a very real question whether, to that extent, the determination is not objectionably arbitrary.’
12 His Honour below dealt with this particular matter and similar submissions. At [18] his Honour said:
‘The Tribunal had the applicant’s evidence before it about why the police could not find him. The reasoning process of the Tribunal brought it to the conclusion that the claim was implausible. Therefore the applicant did not establish his claim.’
13 The appellant submitted that his Honour was too generous to the Tribunal. While it is true that the Tribunal has exposed its reasoning process as to why it considered the appellant’s account to be implausible, the appellant submitted that it is this very reasoning process which is flawed. The Tribunal reasoned that it was not plausible for the appellant to escape the attention of the police by giving them an address that was 30 kilometres distant from where he actually lived. However, the appellant’s submission is that the explanation was not implausible. The Tribunal simply asserted that it was and cited no evidence to support the reasoning. The appellant argued that to simply make an assertion to support a finding which does not otherwise flow from the material is simply not a sufficient basis: SZEJF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 724 at [59]; Tran v Minister for Immigration & Multicultural Affairs [2006] FCA 1229 at [17].
14 His Honour below dealt with this submission at [20] – [22] as follows:
‘The Court rejects the claims that the reasoning of the Tribunal was not supported by logical grounds; that the issue was irrelevant, and that the finding was capricious. The determination has a rational basis. The test in Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 that on a critical issue the Tribunal do more than reject evidence because it is implausible, was met as the Tribunal undertook a rational examination of the material before it. Also, the test in SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995 was complied with. It cannot be said that the Tribunal’s decision is arbitrary; its finding was made on logical grounds and on the material before it.
The decision in SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 was referred to, in particular the passage in [59] that refers to the Tribunal’s "bare, unsupported assertions that objective facts...were ‘somewhat implausible’". In the current case, the finding of the Tribunal was properly open to it on the material before it. It did not reach its conclusion on bare unsupported assertions ...
The decision in Tran v Minister for Immigration and Multicultural Affairs [2006] FCA 1229 was referred to, in particular paragraph [17] and the finding that "[t]he tribunal did not express any finding or reason for that ultimate conclusion, except that it did not find the evidence compelling." In the present case, the Tribunal set out [its] reasoning process leading to its ultimate conclusion. In Tran, Justice Rares found what amounts to Wednesbury unreasonableness. No such finding could be made here.’
15 His Honour at [29] accepted the Minister’s submission that the ‘implausibility’ conclusion is supported by the evidence from the applicant that in the period between 1991 and 1996 he had been arrested five or six times and that his parents were harassed at the family home by the police.
16 On the appeal, the appellant submitted that these facts of themselves are not probative to support the conclusion.
17 As to the second matter the appellant pointed to as infecting the Tribunal’s credit finding with respect to the appellant – the Tribunal’s finding that it did not accept as true that the appellant was in hiding at any time prior to coming to Australia – the appellant says that this was based upon the fact that the appellant had not made this claim when questioned at the commencement of the hearing when he was asked where he was living prior to coming to Australia. The appellant says that this is not revealed when the transcript of the appellant’s evidence is examined.
18 His Honour below dealt with this matter and similar submissions at [23] – [25]:
‘... That [the conclusion that the Tribunal did not accept that the applicant was in hiding at any time prior to coming to Australia] was a finding of fact that was properly open to the Tribunal on the material before it. The applicant failed to establish his claim that he had been in hiding to the satisfaction of the Tribunal. The fact that the applicant had not made the claim at the commencement of the hearing was not the only factor that led the Tribunal to not accept the claim as true. When questioned by the Tribunal the applicant said he was "practically in hiding" (Question 176) apparently at some other address. The applicant then gave his explanation for not having mentioned this to the Tribunal earlier. Obviously the Tribunal did not accept that explanation. "The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances": Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27].
The applicant claims that the conclusion of the Tribunal rejecting the contention that the applicant was in hiding, was based on an erroneous assumption that the applicant had not provided the explanation earlier in the hearing. The Court rejects this contention. The late mention of the claim was not the sole reason that the Tribunal rejected the claim that the applicant was in hiding. The conclusion that the Tribunal did not accept that the police could not find the applicant at his residence 30 kilometers away from his family home was a factor leading to the conclusion that the Tribunal did not accept that the applicant had been in hiding "at any time" prior to coming to Australia.
Consideration of the claim that the applicant was in hiding, apparently at another address, followed immediately after the finding rejecting the claim that he could not be found while living 30 kilometres away from his family home. The conclusion that the applicant claimed that he was in hiding at the house he moved to immediately after leaving his family home, is supported by referring to the submissions for the applicant (at Transcript 13, line 15) that he "left to escape from the police or to go into practically hiding." The Court notes that the words "practically hiding" were used also by the applicant in reference to the period of January to April 1996 (Transcript 16, line 27). The Tribunal then asked "well why didn’t you tell me that to start with?’" (Transcript 13, line 18). That therefore was a subsequent consideration. The use of the words "at any time" appear to include both periods that the applicant claimed he could not be found. It was open to the Tribunal to conclude on the material before it that the applicant was not hiding during either period.’
The Minister’s Submissions
19 The Minister submitted that the Tribunal’s findings concerning the appellant’s credit are matters of fact par excellence in reliance on what McHugh J had said in Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67]:
‘... a finding on credibility which is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case form the use of the word "implausible". The disbelief arose from the tribunal’s view that it was inherently unlikely that the events had occurred as alleged.’
20 The Minister submitted that provided there was evidentiary material on which it was open to the Tribunal to reach its conclusion on the appellant’s credit, no error is demonstrated: W148/00A v Minister for Immigration & Multicultural Affairs (2001) ALR 703 (FCAFC) at [64] – [69] per Tamberlin and R D Nicholson JJ.
21 The Minister submitted that the Tribunal’s conclusions were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272, and there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 570 at [137].
22 The Minister further submitted that his Honour below correctly held that the Tribunal was entitled to regard the appellant’s claims of persecution as undermined by his continuous address at the one location in India, and to reject his claims that the police could not find him. Such reasoning is not illogical, and even if it were, it would not amount to jurisdictional error. Reliance for this submission was placed on what was said by the Full Court in NACB v Minister for Immigration & Multicultural Affairs [2003] FCAFC 235 at [29], [30]:
‘In our view, there is nothing in these remarks which would warrant a departure from the earlier line of decisions in this Court to the effect that illogical reasoning does not of itself constitute an error of law or jurisdictional error. Nor does the want of logic which has been identified in the present case sound a "warning note" of the type referred to in Epeabaka (at 422) as to whether there was only a purported, and not real, exercise of power by the RRT.
Accordingly, the conclusion we have reached in the present case is that there is substance in the argument that there was a want of logic in one aspect of the reasoning of the RRT. However, want of logic does not of itself suffice to constitute error of law, still less error of law which is jurisdictional. There is nothing else in the material, apart from the one aspect of illogicality, to cast doubt upon the RRT’s reasoning. Moreover, there are several bases upon which that reasoning can, in any event, be supported. Accordingly, on the present state of the authorities, there is no reviewable error.’
See also NATC v Minister for Immigration & Multicultural Affairs [2004] FCAFC 52 at [25]; VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 at [18]; and VWFP & VWFQ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 231 per Young J at [77].
23 In the reasons which followed in this last mentioned case, his Honour said at [78], [79]:
‘The appellant submitted that the decision in Appellant S106/2002 [(2003) 198 ALR 59] shows that McHugh and Gummow JJ (at 67 and 71) were prepared to consider a challenge to a Tribunal decision based on the grounds that it was illogical, irrational or lacking a basis in findings or inferences of fact. The first of these passages merely describes the argument and is purely introductory. In the second passage, their Honours were directing themselves to a case where the decision itself was illogical or irrational; not a case where particular findings of fact or findings about credibility are impugned as illogical or lacking in probative support.
Far from assisting the appellant, the decision in Appellant S106/2002 illustrates the difficulties of contending that the Tribunal’s evaluation of the credibility of a witness, or the plausibility of particular pieces of evidence, involved jurisdictional error. The essence of the complaint in Appellant S106/2002 was that the Tribunal failed to consider the evidence as a whole, but first considered and disbelieved the evidence of the applicant without taking account of corroborating evidence, and then considered and rejected the corroboration because of the rejection of the applicant’s evidence. Gleeson CJ said at 63 [12]-[13]:
"In my view, all that the member was saying was that, for reasons already given at length, she found the applicant/appellant’s story implausible, and in some important respects unbelievable, and that she also rejected the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons that she had already given for rejecting the claim she was considering. The member could have expressed herself more clearly. It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.
Upon analysis, the complaint is that the Tribunal member did not have regard to the whole of the evidence before deciding whether she believed the applicant/appellant, and did not properly assess the significance of the evidence of the corroborating witness. I am not persuaded that this criticism is justified."’
CONCLUSIONS
24 The Tribunal did not accept as true that the appellant left his country because of the persecution that he claimed or that he feared to return there because he feared persecution in India. The reason that the Tribunal found against the appellant in relation to these matters was that it did not accept that he was a witness of truth.
25 In respect of the two matters referred to in [9] above, the finding of the Tribunal is not infected by reasoning, which is illogical, capricious, flawed, speculative or having no probative material to support it; but even if it were, on the existing state of authority, that would not of itself amount to error of law going to jurisdiction.
26 I am firmly of the view that his Honour below was correct in rejecting similar submissions made before him and for the reasons which his Honour gave.
27 Moreover, there were other matters which the Tribunal referred to and relied upon for its conclusion that the appellant was not a witness of truth, in addition to the two matters referred to in the second of the paragraphs from its reasons extracted in [10] above. These other matters are referred to by the Tribunal in its reasons in the three paragraphs which immediately follow those in [10] above.
‘Having regard to the country information about checks at airports, which was put to the applicant by the Tribunal and referred to by the last Tribunal in its written decision record at page 7 (DFAT Cable ND 84486, Refugee Information Request-India, 6 July 1992, CX255 1) the Tribunal does not consider that it is consistent with the applicant's claims that he was persecuted in his country, that he was able to exit his country using a passport in his name; he told the last Tribunal that the passport he used to exit his country was in his own name. The Tribunal does not accept that the document dated 26 January 1996 produced by the applicant is reliable evidence of the facts in that document. Given the available country information the Tribunal considers that if there were a warrant for the applicant's arrest issued in January 1996 as he claims he would not have been able to leave India using a passport in his name even if he had been helped by the Party as he further claims.
Nor in the Tribunal’s view is it plausible that further warrants have been issued for the .applicant in 2005, some nine years after he left. When the Tribunal asked the applicant why warrants would be issued so long after he left he said that they (the authorities) knew he would be back because of the DIMA invoice. The Tribunal does not consider that this is a reasonable explanation given that the DIMA invoice was sent to the applicant in India, according to the applicant's own evidence to the Tribunal, in 2001. The Tribunal finds that the 2005 warrant documents produced by the applicant are not reliable evidence of the facts contained in those documents.
The Tribunal considers and finds that the applicant has given untruthful evidence to the Tribunal about working with the Mann Party in India. When the Tribunal questioned the applicant about the "many speeches" that he claims he gave while he was working with the Party during 1991 and 1996, he could give the Tribunal rudimentary and general answers only about those speeches. The Tribunal finds that the applicant was not and is not a member of the Mann Party as he claims, that he did not work for the Mann Party as he claims, and, to the extent that he claims to have done so, that he has not spoken in support of the party in Australia; the Tribunal finds that these claims were invented by the applicant to assist his application for protection.’
28 The appeal must be dismissed with costs.
Associate:
Dated: 28
February 2008
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Counsel for the Respondents:
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Solicitor for the Respondents:
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Date of Hearing:
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Date of Judgment:
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