APM16 v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs, as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

O'CALLAGHAN J: 1 In APM16 v Minister for Immigration and Border Protection [2017] FCA 291, I allowed an application by the appellant for leave to appeal. These reasons should be read in conjunction with those reasons. 2 I subsequently limited the points to be argued on the appeal by an order made on 21 July 2017, as follows: 1. The Federal Circuit Court erred because it failed to find that the second respondent's findings at [30]-[34] were affected by jurisdictional error on the basis that it was illogical or unreasonable for the second respondent to disbelieve and reject the applicant's claims in his statutory declaration that he was threatened, beaten and extorted by his first wife's family (and associates of the family) only on the basis that, when asked by the second respondent through his interpreter about the events the subject of the statutory declaration, the applicant did not recite or recount in oral evidence all of the written claims and incidents detailed in his statutory declaration. 2. For the same reason identified in ground one, the Federal Circuit Court erred because it failed to find that the second respondent's findings at [30]-[34] amounted to a denial of procedural fairness to the applicant constituting jurisdictional error. 3 The appeal was heard on 13 February 2018. The appellant was represented by Mr Webb SC, as pro bono counsel. The first respondent was represented by Ms Francois of counsel. 4 For reasons which may be briefly explained, having heard argument from counsel, it is apparent that the appeal must be dismissed. 5 The reasons of the Administrative Appeal Tribunal (the Tribunal) for affirming the decision of the delegate not to grant a protection visa to the appellant dealt in significant part with its assessment of the appellant's credibility. 6 The Tribunal reasoned, relevantly, as follows: [24] During the hearing the Tribunal discussed with the applicant his background, family composition, education and work and residential history, as well as his relationship with his first wife and his political activities in Bangladesh, as well as the reasons he left Bangladesh and his fears of returning … [25] During the hearing the Tribunal raised a number of concerns about inconsistencies in the applicant's oral evidence, and differences between the applicant's oral evidence and the information he provided to the delegate during his interview as recorded in the delegate's decision record … The Tribunal finds the applicant is not a witness of truth and the Tribunal is not satisfied the applicant has told the truth in relation to critical aspects of his claims. The reasons for these findings are discussed below. 7 It is neither necessary nor desirable, for present purposes, to record each of the different areas of evidence with respect to which the Tribunal regarded the evidence given by the appellant as unsatisfactory or untrue. 8 It is sufficient, for the purposes of deciding this appeal, to recite those parts of the Tribunal's reasons which deal with the central issues in respect of which leave to appeal was granted and, in particular, the evidence given by the appellant to the Tribunal about the reaction of his former wife's family to him after she had left him, and the adverse findings made as a result of that evidence. 9 The relevant parts of the Tribunal's reasons in that regard are as follows: [30] Third, during the hearing, when questioned about what the applicant's first wife's family did to him, the applicant told the Tribunal that they came to the applicant's house asking for the applicant and his first wife, that they chased the applicant's brothers in the market, and that within one month of the applicant's first wife leaving, her father and uncle beat the applicant in the marketplace, and that they were still looking for him and have now lodged a case against him. When asked if they had done anything else the applicant told the Tribunal they first came to his house and did not find him, and then chased him in the market but did not catch him, and the third time they caught him and beat him up. The Tribunal raised its concerns that the applicant described a number of other events in his statutory declaration that he failed to mention in his oral evidence. [31] The Tribunal noted that the applicant's statutory declaration declares: that approximately one month after his first wife and he separated his fish farm was poisoned by her father, and that prior to this incidence (sic, incident) threats were made to the applicant by his first wife's father and uncles that they would poisoned his fish farm; that approximately 2 years ago the applicant was approached by approximately 10 to 12 individuals belonging to the [Awami League], two or three of these individuals were from the applicant's first wife's family including her father, who demanded he pay them five Lakhs Taka and then beat and tortured the applicant and that the applicant was fearful for his life and paid them four Lakhs he got from his father. He also declared that approximately six months later another serious threats to the applicant's life was made, and that he was shopping near his home when he was abducted by individuals belonging to the [Awami League], including his first wife's father and uncles and brother and cousin, and that the applicant was blindfolded and kept for two hours and threatened and beaten and slashed on his left hand, right hand, and near his right eyebrow with some sort of knife, and awoke by the road and was assisted by people [from] his village. The applicant also declared that approximately one week before he left Bangladesh his life was threatened in the market by the applicant's first wife's uncle, and the applicant fled from him and was chased by [Awami League] members including members of his first wife's family until he arrived at home where he ran through the house and exited the house from the back door as they continue[d] to chase him and had entered his home, and he hid in a large [shed] in the backyard for at least two hours until he was certain the [Awami League] members had gone. [32] In response the applicant told the Tribunal he answered the questions that had been asked and he could not add on and did not have time to tell the details, and that whatever happened to him he had told the Tribunal although he couldn't remember the exact date or day. The Tribunal is not persuaded by the applicant's response. The Tribunal notes it had asked the applicant number of times if anything else had occurred or happened in relation to his first wife's family's actions, and the applicant failed to mention the incidence (sic, incidents) declared in his statutory declaration as outlined above. The Tribunal considers this reflects poorly on the applicant's credibility and the reliability of his evidence. [33] Fourth, during the hearing the Tribunal noted that the applicant's statutory declaration also refers to an attempt to reconcile with the applicant's first wife's family, to come to an arrangement to settle the ongoing dispute. It declares that the applicant only agreed to this because his father had advised him that they lived close to his first wife's family and the problem needed to be resolved. At one stage four lakhs taka was paid to her family but the threats to the applicant's life continued. The Tribunal raised its concerns that the applicant did not mention this during his oral evidence. In response the applicant told the Tribunal it had not asked about it and did not want to know about it. On further questioning the applicant told the Tribunal it was a long story and that he answered the exact questions and was not allowed to add more. The Tribunal noted it had asked the applicant a number of times whether his first wife's family had done anything else to him. In response the applicant told the Tribunal it is a long story and it happened a long time ago and that he doesn't recall everything and that it happened in his life and that is a true story. [34] The Tribunal is not persuaded by the applicant's response. The Tribunal considers the applicant was given a number of opportunities to expand on his oral evidence and failed to mention any attempted reconciliation with the applicant's first wife's family. While the Tribunal accepts that the passage of time and stress of giving evidence at the hearing can affect a person's ability to recall detail, the Tribunal does not accept this explains the differences between the applicant['s] oral evidence and his statutory declaration, and the Tribunal considers those differences reflect poorly on the applicant's credibility and the reliability of his evidence. 10 I granted leave because: 25. It is, in my view, reasonably arguable that it was illogical or unreasonable for the Tribunal to have rejected the applicant's evidence about his treatment by his first wife's family, not on the basis of any inconsistency between his written and oral accounts, but only on the basis that he had failed to recount in oral evidence all of the incidents detailed in his written material. 26. The point is possibly of some importance because, had his written and oral evidence in respect of this aspect of his claim been accepted, it may have been open to the Tribunal to determine that the complementary protection criteria had been met. See APM16 v Minister for Immigration and Border Protection [2017] FCA 291 The illogicality and unreasonableness ground 11 In oral submissions, Mr Webb submitted that it was illogical or unreasonable for the Tribunal to have rejected the appellant's evidence about his treatment by his first wife's family, and to draw adverse inferences on the applicant's credibility, on the basis that he had failed to recount in oral evidence all of the incidents detailed in his written material. He contended that the appellant's failure to recount oral evidence before the Tribunal was, instead, due to the fact that the appellant had not been asked a question that would excite such an answer. Mr Webb submitted that "… he hadn't been asked anything about attempts at reconciliation … the Tribunal records that what it had asked was whether his wife's family had done anything else to him …" As a result, so he contended, "there can be no … conclusion drawn as to credit from that question of a failure to volunteer anything about attempted reconciliation." 12 Counsel for the First Respondent (the Minister) submitted that, properly understood, the Tribunal's reasons must be read to say, and do say, particularly at [33]-[34], that it was the fact that the appellant had not mentioned to the Tribunal what he had said in his statutory declaration, namely that the threats to his life from his ex-wife's family continued after the appellant's attempts to reconcile with them that caused the Tribunal to "raise its concerns" with the appellant during the hearing about his failure to mention the continuing threats to his life to the Tribunal, despite offering him repeated opportunities to do so. And it was the appellant's response to the raising of that concern ("it was a long story… it happened a long time ago…" and so on) that the Tribunal said was not persuasive, in the context of all the other evidence that he gave that the Tribunal did not believe. 13 I agree, having had the benefit of argument on the point, that that is what the Tribunal must be taken to mean. That reasoning is not illogical or unreasonable for the purposes of establishing jurisdictional or appellable error. Legal Principles 14 In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Crennan and Bell JJ at [135] expressed the threshold for establishing illogicality and irrationality in the following terms: … a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker … 15 In DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2, the Full Court of this court at [30] gave further guidance as to why this threshold must, necessarily, be high: …A high degree of caution must… be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review … As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, extreme illogicality must be demonstrated measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions … Thus, even emphatic disagreement with the Tribunal's reasoning would not be sufficient to make out illogicality … [citations and internal quotations omitted] Conclusion 16 There is room for a logical or rational person to employ the reasoning set out in paragraph [12] above. It is not unreasonable for a decision maker to form the view that a person is not a credible witness, and that his testimony is not accurate, in circumstances where: (i) the witness's written evidence contains statements that are not recalled in oral evidence; (ii) there are multiple opportunities for the witness to remedy this disparity by further questioning and he does not do so; and (iii) the only response given by the witness in response to such prompting is, at best, vague. In these circumstances, it could rationally be concluded that the appellant's evidence was unreliable on the basis that he was unable to recall matters in his written evidence even after attempts to exhaust his memory. 17 Accordingly, the illogicality and unreasonableness ground must fail. The procedural fairness ground 18 As counsel for the appellant acknowledged during oral submissions, the procedural fairness ground is correlated with the set of facts that are said to give rise to the illogicality and unreasonableness ground. The Tribunal drew adverse inferences from the fact that the appellant failed to recount in oral evidence all of the incidents detailed in his written material. 19 The appellant's main contention on the procedural fairness ground is set out at paragraph [32] of his submissions as follows: …the Tribunal had an obligation during the hearing, by appropriate means, to afford the appellant an opportunity to give again evidence of the matters in the declaration which are referred to in the reasons… 20 The appellant further submitted in oral submissions that, consistent with the principle restated in SZJYA v Minister for Immigration and Citizenship (No 2) [2008] FCA 911 (SZJYA) at [31], it is not open for a trial judge to "have made a finding that a matter had not been raised with the applicant at the hearing before the tribunal." 21 Counsel for the Minister, on the other hand, contended that SZJYA was confined to its facts. The Minister also referred to this passage from the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [47]: First, there 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. 22 In this case, the Tribunal said that "[d]uring the hearing the Tribunal raised a number of concerns about inconsistencies in the applicant's oral evidence, and differences between the applicant's oral evidence and the information he provided to the delegate during his interview as recorded in the delegate's decision record." In my view, it is therefore sufficiently clear (there being no transcript of the Tribunal hearing in evidence) that the appellant was, or should have been, aware that this aspect of his evidence was in issue (cf SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [47]). 23 In any event, the repeated questioning by the Tribunal was sufficient to alert the appellant to the fact that this was a matter in issue. 24 Accordingly, the procedural fairness ground must fail. Conclusion 25 There was no appellable error in the decision of the Federal Circuit Court. 26 In any event, as the Tribunal's reasons make clear (both in the paragraphs extracted above and in others that do not burden these reasons), there were a host of other reasons given by the Tribunal for not accepting the appellant's evidence as being credible: see [24]-[40] of the reasons. In those circumstances, "[w]here the impugned finding is but one of a number of findings that independently may have led to the Tribunal's ultimate conclusion, jurisdictional error will generally not be made out": see eg Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210; [2016] FCA 516 at [55]. 27 For those reasons, the appeal must be dismissed, with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.