CLQ19 v The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

tribunal's reasons 8 The Tribunal set out the history of the appellant's claims for protection and identified the relevant legislative provisions, as well as Ministerial Direction No. 56 which required the Tribunal to take account of country information from the Department of Foreign Affairs and Trade prepared for protection status determinations. The Tribunal detailed the claims made by the appellants throughout the course of their applications for protection, including: The claims advanced by the second appellant in his original claim for protection lodged on 19 June 2009; The evidence given by the second appellant at his interview with the Department of Home Affairs (the Department) on 10 September 2009; The claims advanced by the first and second appellants in their protection visa applications lodged on 26 August 2013; The evidence given by the first and second appellants at the interview with the Department on 5 June 2014; Material filed with the Tribunal prior to its first decision in September 2016; Submissions filed by the appellants' migration agent prior to the Tribunal hearing which took place on 22 January,7 and 26 February 2019; and Oral evidence given at the Tribunal hearing. 9 The appellants evidence advanced in support of their applications for protection included that they feared harm due to involvement with a union, political association with the Social Democratic Liberal (SDL) party and the Fiji Democracy and Freedom Movement (FDFM), an incident claimed to have occurred at a military barracks, their use of social media in expressing political views and their son's arrest allegedly without justification. 10 The Tribunal undertook a detailed assessment of the appellants' claims and evidence relating to each of the matters referred to in paragraph 8 at [43]-[82]. It considered country information provided by the appellants regarding trade unions and unionists related to periods when they had not been in Fiji, and preferred country information relevant to those issues which related to the time where their claims arose: at [83]. The Tribunal also found there were inconsistencies between the appellants' evidence and country information relevant to political parties and activities in Fiji, as well as the use of social media in relation to the expression of political opinion: at [121]-[125], [144]-[148], [161]-[166]. That country information, included that social media in Fiji is increasingly being used to freely express opinions, including those of a political nature. It did not suggest that ordinary members of an opposition political party were at risk of serious harm or significant harm. 11 Relevant to this appeal are the Tribunal's findings as to inconsistencies with respect to an incident said to have occurred, where the first appellant 'claimed that she was pushed and sworn at when she went to see her husband and son when they were detained at the military barracks on separate occasions'. At [71] the Tribunal found that evidence given by the first appellant at the hearing was inconsistent: …when she went to the military barracks after finding out that the [second appellant] had been arrested, she was "swung at" and objects were thrown at her. She stated that she spoke to the guard at the gate and was verbally abused and told to leave. She stated that she was told that the [second appellant] was not there and he "tried to chase" her away. She stated that the [second appellant] was arrested on another occasion and was taken to the military barracks when he and his friends were drinking kava. 12 At [73] the Tribunal stated that it considered these inconsistencies 'raise concerns in relation to the first appellant's credibility and the veracity of her claims'. At [183] the Tribunal did not accept either version of what the second appellant claimed happened at the military barracks. 13 Overall the Tribunal found a number of inconsistences within the evidence given by the appellants over the progression of their applications for protection visas. It found that many of their claims and much of their evidence was at odds with the available country information. This included in relation to the extent and consequences of the second appellant's union involvement, the number of times he was arrested and taken to a military camp and the bases for any such arrests, the extent and nature of the appellants political associations and involvement, the circumstances surrounding the arrest of their son, and as to the extent, timing and potential consequences of their use of social media. 14 At [177] of its reasons, the Tribunal found that the appellants were not credible witnesses and that they fabricated and embellished parts of their claims for the purpose of obtaining protection visas. The Tribunal formed the view that the appellants were willing to say anything, notwithstanding the truth, in order to obtain protection visas. The Tribunal concluded that the first appellant did not have a well-founded fear of persecution for a Refugee Convention reason and therefore did satisfy the criteria in paragraph 36(2)(a) of the Act. The Tribunal was not satisfied that there were substantial grounds for believing that there was a real risk that the appellants would face significant harm if removed from Australia to Fiji, therefore not satisfying the complementary protection criteria in paragraph 36(2)(aa) of the Act.

federal circuit court decision 15 There were eight grounds of appeal before the primary judge. Ground four was not pressed. The remaining grounds of appeal were: (1) The Tribunal made jurisdictional error in that it made extreme credibility findings which was not open which impeded the Tribunal from carrying out a fair assessment of the [appellant's] case. (2) The Tribunal made jurisdictional error in that it misapprehended the [first [appellant's] evidence and held that she was not abused when she went to the military barracks to look for her son and husband on separate occasions or, in the alternative it was not open to make that adverse finding. (3) The Tribunal made jurisdictional error in that it misapprehended the [appellant's] evidence made an adverse finding that were not open about the [appellant's] involvement in the SDL in Fiji. (5) The Tribunal made jurisdictional error in making findings about the [first appellant's] social media posts which were not open. (6) The Tribunal made jurisdictional error in that it was unreasonable for it to hold the [appellant's] social media posts will not put them at risk. (7) The Tribunal made jurisdictional error in that it misunderstood its function under the Migration Act s414 & s415. (8) The Tribunal made jurisdictional error in that it found that both the [appellant's] opened their face-book account to enhance their chance of gaining the protection visa and that finding was not open 16 As to the first ground, the primary judge considered that paragraph [177] of the Tribunal's decision, which contained the adverse credibility finding, should be read both in the context in which it appears and in the context of the reasons more broadly: at [18]. The primary judge stated that while the Tribunal set out its views as to the appellant's credibility, it did not reject the entirety of their claims, but rather found them to be more concerned with their desired migration outcome than the truth: at [18]. The primary judge held that no jurisdictional error was established: at [20]. 17 The primary judge found that the appellants failed to establish jurisdictional error in relation to ground two. The primary judge found that the Tribunal's concerns about the first appellant's evidence regarding her treatment at the military barracks was only one of several concerns it expressed as to her credibility and that of the appellants more broadly: at [23]. The primary judge found that it was open to the Tribunal to have such concerns given the first appellant's differing accounts of the event, observing at [23]: Material differences between accounts given of a particular event are probative of a concern with the veracity of the claimed event. While the Tribunal appears to have accepted that the second applicant visited the barracks, it did not accept her claims to have suffered harm while there. 18 The primary judge set out a range of findings made by the Tribunal accepting and rejecting parts of the first appellant's evidence and considered that the incident asserted to have occurred at the military barracks was unrelated to the first appellant's claims for protection: at [24]-[25]. The primary judge concluded that the appellants failed to establish that any error material to the outcome had been made: at [25] (Hossain v Minister for Immigration [2018] HCA 34; 264 CLR 123). 19 In relation to the third ground of appeal, the primary judge found that no jurisdictional error was made out, as the interpretation adopted by the Tribunal regarding the second appellant's involvement with SDL was one which was open to it based on the evidence: at [27]. 20 Similarly, with respect to the fifth ground of appeal, the primary judge found that the Tribunal's findings at [196] as to the first appellant's use of social media were open to it on the evidence: at [29]. Further, the primary judge noted that those findings must be read in light of the country information, which supported the Tribunal's findings, and which was put to the first appellant during the Tribunal hearing: at [30]. 21 As to the sixth ground of appeal, the primary judge found that the ground invited merits review, and the Tribunal made detailed findings at paragraph [192]-[197] of its decision, therefore jurisdictional error was not established: at [33]-[36]. 22 The primary judge found no error occurred in relation to the seventh ground of appeal as Tribunal had demonstrated that it understood its statutory task in conducting reviews de novo: at [37]. 23 The primary judge found that the eighth ground of appeal invited merits review, and that the Tribunal's assessment of the appellants' use of Facebook was one which was open to it on the evidence: at [40]. Therefore the primary judge considered that no jurisdictional error had been identified: at [41]. 24 At [42], the primary judge concluded that the appellants failed to establish that the Tribunal's decision was affected by jurisdictional error, and therefore dismissed the application.

the appeal 25 The extension of time application and the appeal were heard concurrently on 21 and 23 March 2023 with the appellants and the Minister appearing via audio-visual link. Unlike before the Tribunal and the Circuit Court, the appellants were unrepresented. An interpreter in the Fijian language assisted the appellant's throughout the hearing. The Minister was represented by Mr Johnson of counsel. 26 In accordance with the orders made by a Registrar on 14 July 2020, the Minister filed the Appeal Book on 3 September 2020 and written submissions on 20 February 2023. The appellants did not file written submissions. 27 At the commencement of the hearing the appellants, after acknowledging that they had received a copy of the Minister's submissions, sought an adjournment of an hour to read them. The Minister did not oppose the request noting than in doing so the Minister suffered no prejudice. Accordingly I granted the adjournment. 28 Upon resumption of the Court, it became clear that the appellants were unaware of the matters in issue. I explained that the Court would be considering whether to grant an extension of time to bring an appeal and referred them to that application and the affidavit they had provided containing their explanation for the delay. I also referred the appellants to the draft notice of appeal including the grounds and particulars, and explained that they could make submissions with respect to those as well as the application for an extension of time. 29 Approximately two hours after the hearing commenced, the audio-visual connection to the appellants failed. All efforts to reconnect were unsuccessful. I adjourned the matter until 23 March 2023.

Application for an extension of time 30 In her affidavit affirmed on 7 July 2020, the first appellant provided the following reasons for the delay in filing the appeal: My application was not filed within time because I am a self-represented litigant and I was not sure of the precise deadlines for appealing to the Federal Court. Another reason my application was not filed within time is because it took my husband and I some time to decide what to do after receiving the judgement. It is a very difficult decision to make to decide whether or not to appeal. 31 Pursuant to rule 36.03 of the Federal Court Rules 2011 (Cth), an appellant must file a notice of appeal within 28 days after the date on which the judgement appealed from was pronounced or the order was made. Pursuant to rule 36.05, if the appeal is not lodged within the time specified in rule 36.03, a party must apply for an extension of time. The decision of the primary judge was handed down on 5 June 2020, and these proceedings commenced on 8 July 2020, exceeding the prescribed time limit by 5 days. 32 The principles governing the grant of an extension of time under rule 36.03 are conveniently summarised by Katzmann J at [40] - [42] in Tukala v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 74: As I observed in SZUTZ v Minister for Immigration & Border Protection [2015] FCA 186 at [9] , the Court's discretion to grant an extension of time is a broad one, unencumbered by any express limitations, but that does not mean that the Court is completely at large to do as it pleases. Like any power conferred by the Rules, the power to extend time to appeal must be exercised judicially and, in accordance with the terms of s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act), in the way that best promotes the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: FCA Act, s 37M(3). The factors the Court may take into account are not specified. Generally speaking, the Court has regard to the length of the delay; the explanation, if any, for the delay; whether the other party or parties would be prejudiced if an extension of time were granted; and, above all, the merits of the proposed appeal. The overriding consideration is the interests of justice: BJM15 v Minister for Immigration & Border Protection [2021] FCA 786 at [42] (Colvin J). Where the delay is not lengthy and has been satisfactorily explained and where there is no prejudice to the other party or parties, the Court will usually grant an extension provided that the applicant can demonstrate that the prospective appeal has at least ostensible merit. Consistent with the Court's obligation under s 37M(3), leave will not be granted where the appeal would have no reasonable prospects of success: Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5] (Finn J); BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33] (Yates, Wheelahan and O'Bryan JJ). In making an assessment of the merits, it is well-established that the Court need not go into great detail but is to carry out the assessment "in a fairly rough and ready way": Jackamarra v Krakouer (1998) 195 CLR 516 at [9]; BQQ15 at [33]. 33 The Minister submitted that the sole mandatory consideration when determining whether an extension of time should be granted is the interests of justice: Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 403 ALR 604 at [11] - [12] (Kiefel CJ, Gageler, Keane and Gleeson JJ). In Katoa, the High Court considered that, when exercising the statutory discretion in the context of section 477A of the Act, it will not constitute jurisdictional error to undertake more than an impressionistic assessment of the merits, leaving the discretion to exercise this power 'deliberately broad': at [39], [46]-[61] (Gordon, Edelman and Steward JJ). Katoa has been applied in cases which consider an extension of time to seek leave to appeal from a judgement of the Circuit Court: Hasan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1194 at [26]. 34 The Minister submitted that the delay in filing the application was short and no prejudice would be suffered were the extension to be granted. The Minister submitted that some explanation, albeit unsatisfactory, had been provided for the delay. However, the Minister opposed the grant of an extension of time on the basis that the appeal lacked merit. 35 I am satisfied, having regard to the interests of justice, that an extension of time should be granted. The appellants are unrepresented before the Court, the delay in filing the application is short, and there is no prejudice to the Minister in granting an extension of time. The appellants ground of appeal as particularised is sufficiently meritorious at an impressionistic level to warrant consideration. I have also taken into consideration that this case involves applications for protection visas, which if unsuccessful, will result in the appellant's involuntary removal from Australia: DBD16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 362 at [40].

New ground of appeal 36 In the course of the hearing the appellants sought to raise a fresh ground of appeal - namely that the statements the Tribunal considered to be inconsistent arose as a result of misinterpretation or misunderstanding. 37 Leave is required to advance a fresh ground of appeal that was not argued before a primary judge. The primary consideration for whether leave should be granted is whether it 'is expedient in the interests of justice to do so': VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46], citing O'Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs (2000) 63 ALD 43; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38]. Whilst the Court's approach to this question is not inflexible, it is important for the due administration of justice that substantial issues between the parties are settled at first instance. Gibbs CJ, Wilson, Brennan and Dawson JJ in Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 7 said: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. 38 While there are no mandatory considerations for what the Court should bear its mind upon considering whether to grant leave or not, the Court commonly looks at any explanation provided as to why the ground was not raised at first instance, the merit of the argument, and any prejudice suffered by the other party: DUU16 v Minister for Immigration, Citizenship & Multicultural Affairs [2023] FCA 85 at [4]. 39 In this case, the appellants have not filed any affidavit evidence which explain why this ground was not raised at first instance, nor did they seek leave prior to the hearing to argue this point. While the appellants are self-represented in this proceeding, they were represented before the Circuit Court where this argument was not raised. Other than the appellants' assertions there is nothing before the Court indicating that the interpretation of their evidence at the Tribunal was deficient or led to "misunderstandings". There would be prejudice to the Minister as no notice of this ground has been given. Accordingly, leave to raise it is not granted.

Consideration of ground one 40 The appellants' draft notice of appeal raised one ground: Grounds of appeal The Federal Circuit Court made an unreasonable finding on lack of credibility and how this impacted the decision of the Administrative Appeals Tribunal (AAT). 41 The particulars of the ground of appeal dealt with the Tribunal's findings with respect to inconsistency between accounts of an incident claimed to have occurred at a military barracks. The appellants' case is that the versions of the incident were not materially different - 'only very slightly different'. As well the appellants say that the later account is not inconsistent with the earlier account - it 'simply provide[s] more detail'. The particulars are as follows: Particulars a) The AAT made a critical finding of fact, namely that the second applicant gave inconsistent evidence in relation to events described when she went to the military barracks to look for her son and husband. However, there was no material inconsistency in the evidence. The accounts were only very slightly different. This constitutes an error of law. b) At [23] the Federal Circuit court noted that Material differences between accounts given of a particular event are probative of a concern with the veracity of the claimed event. c) The differences were not material. At [70] the Tribunal states that the second applicant was 'pushed' and 'sworn at'. d) At [71] the Tribunal decision says that the second applicant was 'swung at' and 'verbally abused'. The account at [71] contains further detail regarding the second applicant being 'told to leave'; and a description that the guard(s) 'tried to chase her away'. e) There is no difference between being 'sworn at' and being verbally abused'. Therefore there is no inconsistency on that part of the evidence. The different between being 'pushed' and 'swung at' is so minor as to not amount to a material inconsistency. They both involve: i. Physical assault; and/or j. Physical harassment; and/or k. A threat of physical assault; and/or l. A threat of physical harassment. f) The other points raised regarding being told to leave and guard(s) trying to chase her away are not inconsistent with the first account. Those additional points simply provide more detail on what happened. Therefore there is no material inconsistency on that point. g) At [24] of the FCC decision, the Court notes: In any event, notwithstanding the Tribunal's concerns expressed at [70]-[71], which led it to reject as a fact the event described by the second applicant at [183], it is not apparent what impact this finding at [183] had on the Tribunal's assessment of the second applicant's claims for protection. h) The impact of the finding is described in [72] of the AAT decision. The impact raised 'concerns in relation to her credibility and the veracity of her claims.' 42 When asked to provide submissions regarding the ground of appeal it became clear that the appellants did not understand that the Court was not undertaking merits review. The appellants did not appear to understand the ground or the particulars in their draft notice of appeal, nor did it appear that they had understood the Minister's submissions notwithstanding the time between the filing of those submissions and the hearing, and the grant of an adjournment to enable the appellants to read them. 43 Mr Johnson, through the interpreter, made comprehensive oral submissions, consistent with his written submissions in the context of the appellants' draft notice of appeal and particulars, the relevant parts of the Tribunal's reasons and those of the primary judge. His assistance to the Court is gratefully acknowledged. 44 Despite that assistance, and my encouragement to the appellants to explain to the Court the basis upon which they considered the primary judge to have been wrong, the appellants did not make any meaningful submissions in support of their ground of appeal. 45 The appellants' submissions were, with respect, difficult to understand. To some extent they comprised statements repeating and amplifying claims made at the Tribunal, inviting impermissible merits review: Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 25, (Brennan J). The appellants criticised findings of the Tribunal and referred to grounds of appeal which were not before this Court. 46 How credibility findings should be approached was discussed in SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198. Gordon J stated: Notwithstanding the breadth of the Tribunal's discretion to make weight and credibility determinations, the requirement described in WAIJ to make those determinations "judicially" imposes limits that credibility and weight determinations be made rationally and logically, and be articulated properly. It is worth noting in this context that such requirements are not unique to Australia. Indeed, the United States Court of Appeals for the Ninth Circuit has stated that for a migration Tribunal's adverse credibility finding to survive appellate scrutiny, there must be a "legitimate articulable basis" for the Tribunal's finding and the Tribunal "must offer a specific, cogent reason for any stated disbelief": Stoyanov v INS (9th Cir 1999) 172 F3d 731, 736 (internal citations and quotation marks omitted). The Court in Stoyanov went on to state that "minor inconsistencies cannot support an adverse credibility finding" and that "trivial errors by an asylum applicant do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible": Stoyanov at 736 (internal citations and quotation marks omitted). 47 The task is to determine whether the Tribunal's credibility findings, even if those findings were illogical or irrational, affected its critical reasoning as to the first appellant's protection claim (Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159; 189 FCR 577 at 598-599 (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]). 48 The principles relating to unreasonableness were discussed in Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [11] (Kiefel CJ), [52] (Gageler J), [89] (Nettle and Gordon JJ) and [135] (Edelman J). By reference to these principles, the High Court has observed that the threshold for unreasonableness is usually high: Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550 at [26], (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ). Brennan J has described that the decision must be 'so unreasonable that no reasonable repository of the power could have taken the decision or the action': Quin at 36. In Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [68] Hayne, Kiefel and Bell JJ observed: The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable that no reasonable person could have arrived at it - nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship's judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. 49 For the following reasons the findings of the primary judge at [23]-[25] summarised at paragraph 3 above were correct. 50 First, the inconsistencies in the first appellant's evidence regarding the incident at the military barracks, although not significant, were more than minor or trivial. As the Minister submitted, the first appellant's oral evidence at the Tribunal hearing was more elaborate and serious than which she had set out in her protection visa application. 51 Second, as noted by the primary judge inconsistencies regarding this incident were among a number of inconsistencies the Tribunal identified in the appellant's evidence. The Tribunal found that many of the appellant's claims and much of their evidence was at odds with the available country information, including in relation to the extent and consequences of the second appellant's union involvement, the number of times he was arrested and taken to a military camp and the bases for any such arrests, the extent and nature of the appellants political associations and involvement, the circumstances surrounding the arrest of their son, and as to the extent, timing and potential consequences of their use of social media. The Tribunal thus logically and rationally articulated its basis for determining that the appellants lacked credibility. 52 Third, as submitted by the Minister and accepted by the primary judge at [24]-[25], the relevance of an incident unconnected with the first appellant's claims for protection is unclear. 53 For completeness, even if unreasonableness was made out, I am not persuaded that the error was material. While the threshold for establishing materiality is low, and the applicant need only prove that there is a realistic possibility that a different decision could have been made, it is difficult to see how the findings in relation to the incident at the military barracks was material when considering the reasons in their entirety (Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398 at [47] (Gageler J); Minister for Immigration & Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45] (Bell, Gageler and Keane JJ). 54 The ground has not been made out. The primary judge was correct in concluding that the Tribunal's finding in respect of which the appellants complain does not give rise to jurisdictional error.

conclusion 55 For those reasons the appeal should be dismissed. The appellant's should pay the Minister's costs to the appeal as they were unsuccessful. The Minister is not entitled to his costs associated with the application for an extension of time on which the appellant's was successful. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Meagher.