BNH16 v Minister for Immigration and Border Protection

THE THREAT OF A GRENADE ATTACK 19 In a statement, made to the Department of Immigration and Border Protection dated 28 February 2014, BNH16 elaborated on an undated claim statement provided to the Department in January 2014. Taking the two statements together, BNH16 said that he had been aware of a plan to "frame" Mr X for a grenade attack. This would have involved a security official throwing a grenade in a public area when Mr X was present and Mr X subsequently being blamed for having thrown it. BNH16 said to the Tribunal that he had told Mr X that he was going to be framed for a grenade attack. Mr X's evidence to the Tribunal was that he was aware of grenade attacks being used by government operatives in Country A at the time to set up opponents. However, Mr X denied that BNH16 had told him of any specific plan to frame him in that way. 20 The Tribunal expressed concern at this lack of consistency. BNH16, in the February 2014 statement, had, in its view, identified one of the "key reasons" for Mr X being in danger following the failure to kill Mr B, as being an established plan to falsely accuse Mr X of a grenade attack. 21 BNH16 acknowledged that the Tribunal had asked him whether he had told Mr X that Mr X was in fact going to be framed for a grenade attack and he had responded "yes". BNH16 also acknowledged that, when Mr X was asked by the Tribunal whether BNH16 had told him that there was a specific plan to frame him for a grenade attack, Mr X had responded, "no, he didn't tell that would happen". Nonetheless, BNH16 submitted that Mr X's negative answer did "not necessarily mean that he was not told that such set ups occurred generally" (original emphasis). 22 He stressed that other aspects of the evidence, given by him and Mr X in relation to this matter, had, as the Tribunal had found, been consistent. 23 This latter submission may be accepted. However, there was a plain conflict in the evidence given by BNH16 and Mr X about the warning BNH16 had said that he had given to Mr X. The finding of inconsistency was logically open. 24 BNH16 also complained that the characterisation of the proposed framing of Mr X for a grenade attack as a "key reason" for Mr X being in danger could not be sustained having regard to the terms of the statement made by BNH16 in February 2014. BNH16 had said in that statement at [29] that: I knew the police might want to arrest my friend because his wife was the interpreter for [Mr B]. They then tried to claim falsely that my friend was involved in grenade attacks in order to arrest him. 25 BNH16 observed, at [15] of his written submissions, that he had not referred to Mr X by name in his February 2014 statement and submitted that his evidence in a later declaration in 2016 and his oral evidence to the Tribunal made it plain that "the key reason for [Mr X] being in danger was because he was associated with [Mr B] and they were being investigated by the authorities". 26 In fact, BNH16 did identify "my friend" as Mr X at [25] of the February 2014 statement and he went on to elaborate at [30]: 25 I decided I wanted to help [Mr B], so I sought the help of my friend's wife, who was an interpreter for [Mr B]. My friend's name is [Mr X]. I spoke to him about the plot to kill [Mr B]. [Mr X] told his wife, who passed the information onto [Mr B]. … 30 This incident is referred to in paragraph 3.2 of my previous statement, at the bottom of page 8, where I talk about my friend being "on the list of the targeted people to be arrested". This part of my statement is referring to events that happened immediately after the [Mr B] murder attempt. 27 It was a matter for the Tribunal to assess all of the evidence which it had received. Even if one reason identified by BNH16 for Mr X being in danger from the authorities was his association with Mr B, that does not preclude a finding that BNH16 had identified the plan to frame Mr X for a grenade attack as another "key reason" for him being in danger. Further, we do not accept the submission that the claims concerning Mr X being framed were tangential or that the Tribunal's characterisation of that claim was not open to it.

WARNINGS ABOUT TELEPHONE USAGE 28 Two related inconsistencies were also referred to in the Tribunal's reasons. Mr X told the Tribunal that he had been advised by BNH16 to be careful when using his phone because it might be listened to. He later said that it was alright for BNH16 to call him because BNH16's number was private but that he (Mr X) should not call BNH16. The Tribunal considered that any call could have been monitored and the potential existed to incriminate both BNH16 and Mr X, depending on what was said. It found (at [118]) that Mr X's evidence about the reason for the need for care in using the phone was different from the second explanation which he had given. At [119] the Tribunal also said that: In relation to a fear that phone calls would be listened to, it does not make sense that there would have been numerous conversations as indicated in the evidence of both [BNH16] and [Mr X] warning [Mr X] of the danger to him. If such conversations were being listened to they would incriminate both of them. These findings led the Tribunal (at [120]) to hold that: There is therefore an inconsistency in relation to the basis on which there was a concern about using the phone. There is also a lack of plausibility that if there was concern that the phone conversations would be listened, that there would be incriminating conversations in which [BNH16] warned [Mr X] of the danger to him. 29 This particular inconsistency was regarded by the Tribunal (at [117]) as being "less significant" than the one relating to the grenade attack and (at [120]) as "not a major issue, but it does buttress other more significant credibility concerns". 30 Mr X told the Tribunal that, on the day on which Mr B had been arrested, he (Mr X) had spoken to BNH16. Mr X had called BNH16 on Mr X's mobile phone. Mr X said that, in the course of the conversation, BNH16 "told me not to use - to avoid using the phone as much as I can as there was a possibility of being listened". Later in the hearing the Tribunal asked Mr X how he had communicated with BNH16 after the alleged attempt to kill Mr B had been foiled. Mr X's response was: "Yeah, he could call me when he wanted, but he - he - he put to me the caution, has to be careful when - when - whenever I use my phone, just to avoid some kind of conversations". Mr X also told the Tribunal that, "[BNH16] could call me with any - anything, because they use unknown numbers. So, he could call me, but I couldn't call him. Whoever calls me could call me for investigating I should not - I could not ask him. So, I kept my phone open, but I … couldn't have some kind of conversations that I was not … comfortable to talk about". 31 BNH16 also gave evidence about telephone communications between him and Mr X. He said that he had been arrested because his supervisor had found out that he had been speaking to Mr X. The discovery had been made because the police had obtained access to BNH16's records from the telecommunications company. This led the Tribunal to ask BNH16 whether Mr X had been correct when he had told the Tribunal that, on the day of the alleged attempted assassination, BNH16 had discussed with him (Mr X) "how to communicate so that calls wouldn't be traced". BNH16 had responded: "Yes, I - I advised him to be cautious using his phone, whether calling me or calling someone else." The following exchange then occurred: MEMBER: Well, he said that you were able to call him, and that your number wouldn't be traced, and therefore he only waited for calls from you. So, I'm just wondering if that's accurate how it is that there would be records of - of your phone calls? BNH16: Yes, I asked him this - I told him this because my number was private and it couldn't show - it couldn't show someone that I call. No-one else could see it unless they got to the telecommunication company, that's where they could only see my number. 32 At this point, the solicitor, who was assisting BNH16 at the hearing, intervened. He said: MR MCRUDDEN: Member, I think that they're talking about the risk of someone finding - of someone speaking to [Mr X] - sorry, avoiding the risk of someone approaching [Mr X] and him telling that person as to what has happened, There was a risk, as I understood it that, you know, there may have been a - a plain clothes officer, or something like that, that could have approached [Mr X] and sought evidence from him - sought information from him, and that they also wanted to make sure if someone ever got hold of [Mr X's] phone there was never any record of where the call came from. I don't know that it was necessarily that - that they were seeking to avoid, you know, being any trace of contact. MEMBER: All right. I understand that. … MR MCCRUDDEN: Sorry, I would also add, if I may, that there was, you know, a very significant sense of urgency and so there, you know, [BNH16] apparently, based on his evidence, felt compelled to get in contact with [Mr X] and - and tell him to leave - or, to warn him of what might happen, and then to tell him to leave, and to write to him would have - would have created a paper trail, to see him - to go and meet with [Mr X] in person would have also raised the risk that someone would have witnessed that conversation. And, so to have - so to call him from a private number was, potentially, the safest option that was available. 33 BNH16 denied that there was any inconsistency between the two explanations proffered by Mr X and submitted that the Tribunal had confused the evidence relating to the cautious phone use, failed to understand the explanation provided by BNH16's solicitor and erroneously found a lack of plausibility in the accounts provided by BNH16 and Mr X. 34 BNH16 and Mr X gave evidence with the assistance of an interpreter. As the transcript shows the questions and responses cannot be said to have been framed in fluent English. The answers lack clarity and had the potential to be misunderstood. This appears to have been appreciated by BNH16's solicitor when he sought to intervene and put a gloss on what had been said by BNH16 and Mr X, in an effort to render the answers intelligible in a way that assisted his client. 35 In the event the Tribunal perceived inconsistency and found aspects of the evidence to be implausible for the reasons which it gave. It was not bound to accept the solicitor's attempts to recast the words used and render them more intelligible. 36 There were things that were said which, on one construction of the evidence, supported the conclusions to which the Tribunal came. We accept that other constructions were available but, in adopting those which it did, we do not consider that the Tribunal made any jurisdictional error. As Crennan and Bell JJ observed in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648; [2010] HCA 16 at [131]: If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. See also CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [59] (McKerracher, Griffiths and Rangiah JJ); ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [44] (Griffiths, Perry and Bromwich JJ); Gill v Minister for Immigration and Border Protection [2017] FCAFC 51 at [60] (Griffiths and Moshinsky JJ); BSJ16 v Minister for Immigration and Border Protection [2017] FCAFC 78 at [40] (Collier, Murphy and Burley JJ). In any event, as the Tribunal said, it treated this perceived inconsistency as not giving rise to a major issue. It regarded other credibility concerns as being "more significant" (at [120]).

THE "CAR PARK" CONVERSATION 37 A second inconsistency, described as "relatively minor" by the Tribunal at [121], related to the place where the conversation between BNH16 and Mr X took place on the day on which Mr B was to be killed. As already noted, their evidence to the Tribunal was that it had occurred in the car park outside the prison. In a statutory declaration, made in February 2016, BNH16 had said that the conversation which he had had with Mr X on the day on which he had gone to Mr B's cell, under instructions from his commanding officer to kill Mr B, occurred in view of the cell in which Mr B was being held. 38 In the statutory declaration, BNH16 had said at [24] that: When I approached [Mr B]'s cell I saw [Mr X] and his wife … who was acting as [Mr B]'s interpreter. I approached [Mr X] and told him what I had been sent to do. I said that it was extremely important that [Mr B] did not [do a certain action]. I did this because, even though I had no intention of [carrying out the assassination], I needed to be able to say to my commanding officers that the mission failed because [Mr B] refused [to take a certain action], not that I had failed [to carry out the task]. 39 At the hearing, BNH16 told the Tribunal that he had spoken to Mr X, "in the carpark where he was just waiting". 40 At a second hearing, called to enable BNH16 to deal with what the Tribunal perceived to be inconsistent evidence which might give rise to adverse credibility findings, the issue was again raised with BNH16. What transpired was recorded by the Tribunal (at [112]): In the second hearing, the Tribunal noted to the applicant that there was an inconsistency in the evidence given by both himself and [Mr X] in the first hearing that they had met in the prison car park, and the 2016 statement. It was noted that the 2016 statement indicates that it was on the approach to [Mr B]'s cell that he spoke with [Mr X]. In response, the applicant initially said that he was not specific as to the location in giving his earlier evidence. The Tribunal indicated its view that he was. He then indicated that it is not like a car park in Australia and it was cars on the street just outside the prison. The applicant's adviser submitted that the claims were very complex and this could be a misinterpretation on a fairly minor issue. 41 The Tribunal found (at [121]) that: Similarly, the inconsistency in evidence as to whether the conversation between [BNH16] and [Mr X] took place on the approach to the cell of [Mr B] or in the car park is relatively minor but still not insignificant. Both [BNH16] and [Mr X] gave specific evidence in the hearing that the conversation took place in the car park. This is different than the 2016 statement in which the conversation is claimed to have occurred in view of the cell. 42 BNH16 argued that the Tribunal had adopted a narrow and restrictive view of the evidence and failed to have regard to his full explanation. That explanation was that he had not, in his 2016 statutory declaration, gone in to any detail about the exact location at which the conversation occurred. He had given what he described as "a broad description of the location" in the declaration. He said that his oral evidence before the Tribunal was not inconsistent with what he had said in the declaration. At [29] of his written submissions before this Court he submitted that: It is reasonably conceivable for the car park to be on the way to the cell. It [was] possible for the cell to be viewed from the car park, particularly when [he] had explained that the car park was not like those in Australia, rather the cars were just outside the streets of the prison. 43 BNH16 complained that the Tribunal's finding of inconsistency in this context was "not grounded upon any probative material" and was not supported by logical grounds. 44 We do not accept these submissions. The material, oral and written, before the Tribunal was, as BNH16's solicitor contended before the Tribunal, complex and open to misinterpretation. That said, there was a logical basis, in the evidence, which supported the Tribunal's findings: cf CQG15 at [38(b)], [61]-[64]; ARG15 at [83(d)(ii)], [96]; Gill at [59]-[62], [72]-[74]; BSJ16 at [40], [42]-[45]. 45 It was not, in any event, a matter to which the Tribunal accorded any particular weight in making its adverse credibility findings. As already noted, it treated that inconsistency as "relatively minor". In this context, we have had regard to the observations of Wigney J in Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 at 221; [2016] FCA 516 at [55]: [A]llegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal's decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159; (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where 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: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at [66]; SZWCO at [64]-[67]. (Emphasis added.) These observations were cited with approval by the Full Court in CQG15 at [60]. See also Gill at [82].

THE NUMBER OF TIMES BNH16 WAS DETAINED 46 The fourth and final finding which BNH16 maintained had been affected by jurisdictional error related to the number of occasions on which BNH16 had claimed to have been detained and the timing of the various detentions. 47 The Tribunal (at [103]) took an adverse view of his credibility "as a result of the considerable inconsistencies in evidence as to the number and timing of detentions". It found that BNH16 had given conflicting evidence suggesting, at times, that he had been detained on three occasions and, at another time, on two occasions. There were also discrepancies in the evidence about the timing of these events. 48 The Tribunal explained how it had come to this conclusion at [96] to [101] of its reasons. It said: 96. In the hearing, the Tribunal put various versions of this evidence to the applicant. It noted that the original statement refers to the applicant being arrested and harassed on many occasions. It claims that the applicant was questioned by his boss on several occasions and detained and tortured. The original statement refers to three specific detentions (in addition to general claims of many others), one after the [Mr B] incident, another where the applicant tipped off a person who was targeted to be blamed for a grenade attack, and the 70 days detention for desertion. It noted that there has been a consistency in claims about the detention for desertion. However, there is not a consistency in relation to other claims of detention. The Tribunal noted that the 2014 statement indicates that the applicant was detained [for the first time] in mid 2011 after the [Mr B] incident [which occurred in May 2010]. The applicant now claims that this occurred in November 2011. The Tribunal indicated that it was not necessarily going to draw an adverse inference from getting these dates wrong by few months. However, the Tribunal indicated that it was concerned about other aspects of evidence about the detention. The Tribunal noted that the applicant's later explanation that reference in the original statement to the applicant tipping off a person for being blamed for a grenade attack is in fact a reference to what happened in relation to [Mr X] following the [Mr B] incident. 97. The Tribunal put to the applicant pursuant to the procedural requirements of s.424AA of the Act information contained in the interview with the Minister in which the applicant gave detailed evidence about being arrested and detained in the days after the assassination attempt of [Mr B]. The applicant provided information about where he was detained including reference to being detained in two different locations over time. The information is relevant because it is inconsistent with the applicant's claims now that he was not detained at that time but 17 months later. The consequence relying on this information is to question the applicant's credibility about this and other detentions and the circumstances surrounding the assassination attempt of [Mr B]. 98. The applicant's adviser provided a written submission following the hearings addressing issues relating to periods detained. It refers to various parts of the original statement and indicates that various events which might be perceived as separate events are in fact the one event. 99. The statement says that, in the interview with the delegate, the applicant says that he was 'automatically' arrested after [Mr B] was released from prison is a reference to him being called into his boss' office. It is indicated that in the interview the applicant clarified that he was only detained on two occasions. 100. It indicates that the applicant failed to explain experiences in a chronological order which resulted in the misconception that there were multiple detentions. Explanations provided previously as to why there are discrepancies are outlined. 101. The Tribunal accepts that the original statement is not structured in a logical and precise way and makes allowances for some degree of confusion, also given the timing of its preparation in relation to the applicant's arrival in Australia. Nevertheless, the statement makes clear references to multiple arrests and detentions of which three examples are provided. Whilst the Tribunal accepts the possibility for some conflation of events, the original statement quite clearly indicates more than two instances of detention. The Tribunal considers that there has been a reconstruction of the evidence over time which creates credibility concerns. 49 The form on which BNH16 originally applied for a visa invited him to respond to the question: "Have you experienced harm in [Country A]?" He answered the question by saying: I experienced a lot of harrasement [sic] and I was imprisoned several times for a period of two to three months without a justified case, just illegally torted [sic], menaced, I was suspected to have revealed the informations [sic] to some of the opposition party followers. From that moment I decided to desert and hide at unknown place, left my family for 5 months. I was caught [and] again imprisoned for 70 days … (Emphasis added). That statement was made in November 2013. 50 In January 2014 BNH16 lodged a typed "claim statement". This is what we understand to be the "original statement" to which the Tribunal referred in its reasons. In that statement he dealt with the aftermath of the failed attempt to kill Mr B. He said at pages 5 and 6 that: My boss learnt about the failure of the operation, he called me to his office and I was asked whether I knew [Mr B]'s visitors or any body connected to him and I denied. My boss didn't believe in me. He suspected I should have revealed the secret and he ordered for my arrest and I was imprisoned, tortured and subject to interrogations and investigation. I was released after luck of sufficient evidences [sic]. I continued to serve the government but I was not trusted. They kept on asking me about the cause of the failure of the mission of killing [Mr B] all the time. I met a lot of challenges in the operations whereby I would go to arrest people only to find them familiar, relatives to my friends or my bests [sic] friends while I knew that they were innocent, so what I would do was to alert them about the danger and advise them to flee the country. This happened several times until when my colleague discovered it and reported me to my boss. I was called by my boss several times and I was arrested and tortured then sent back to work. 51 Later in the claim statement, at page 8, he said that, on one unspecified occasion, he had been "detained for three months". In 2012 he had deserted from the national police. After five months of searching he had been found in November 2012. He was then arrested and charged with desertion. He said that he had been "tortured seriously". He had refused to resume service. In December 2012 he had been sentenced to 70 days imprisonment. He had served that sentence. 52 BNH16 made a further written statement in February 2014. In that statement he said (at [37]-[38]) that his "boss" had decided to arrest him in mid-2011 and that he had been imprisoned for five months. He also restated his earlier evidence about being charged with desertion and being sentenced to 70 days imprisonment in December 2012. 53 In his 2016 statutory declaration BNH16 accepted (at [5]) that "after reviewing my evidence in relation to my experiences in [Country A] with my migration lawyer, that it is confused in a number of respects". 54 In that 2016 declaration at [36], BNH16 said that a claim made in his February 2014 statement was not correct, namely the claim that: "My boss did not believe me, and he decided to arrest me in mid-2011. I was in prison for five months". He said the true position was that he had been arrested in November 2011 and detained for three months, which was the first period in detention. He attributed the error to confusion on the part of his former migration agent. Later in the 2016 declaration, he confirmed that, following his desertion, he had been located in November 2012 and detained, and that in December 2012 he was presented before a disciplinary committee where he was sentenced to 70 days detention. This was described as the second period in detention. 55 BNH16 argued that, what the Tribunal perceived to be inconsistencies, could, upon closer analysis of his statements and later recollections, be explained. He submitted, at [35] of his written submissions, that the first claim statement "was more narrative and less precise than later statements", using generalised examples rather than precise details. Although the first claim statement was open to the construction that he had been detained on three occasions, he said that his later statements clarified what he had earlier said and confirmed that he had been detained twice. 56 The Tribunal's misgivings about BNH16's evidence relating to the number of occasions on which he had been detained and the timing of his alleged incarcerations cannot be regarded as illogical or unreasonable. They arose from statements which BNH16 himself had made. It may well be, as he claims, that some of his statements contained errors and that others were confusing. The Tribunal gave him the opportunity to reconcile his earlier, apparently conflicting, statements. He took advantage of this opportunity. The Tribunal was not, however, bound to accept the explanations he proffered in an effort to persuade it that the true position was other than that he had originally suggested: cf Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 (Beaumont J). 57 None of the impugned findings was affected by jurisdictional error. 58 We would also note, in passing, that the Tribunal's ultimate conclusion about BNH16's credibility was influenced by a number of other reservations which it held in respect of other evidence given by him which was not the subject of challenge on this appeal. This included contradictory evidence about BNH16's knowledge of what was described as "extra judicial activity" on the part of Country A's CID and the implausibility of BNH16 being tasked to kill Mr B when BNH16 was, on his account, an avowed objector to such activity on the part of the CID.

DISPOSITION 59 The appeal must be dismissed with costs. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tracey, Farrell and Charlesworth.