EPU17 v Minister for Immigration, Citizenship and Multicultural Affairs

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by: MCEVOY J DATE OF ORDER: 3 February 2023

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs as agreed or assessed.
3. The name of the first respondent be changed to "Minister for Immigration, Citizenship and Multicultural Affairs". Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MCEVOY J: 1 By notice of appeal dated 27 April 2022 and amended on 19 September 2022, the appellants appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) dated 7 April 2022: EPU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 322. The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal made on 3 October 2017 to affirm a decision of a delegate of the first respondent (the Minister) not to grant the appellants a protection (Subclass 866) visa. 2 The appellants arrived in Australia from Malaysia on 5 March 2014 on visitor (Subclass 601) visas. These visas ceased on 6 June 2014. The appellants remained in Australia unlawfully until they applied for the protection visas on 22 January 2015. Although the second appellant indicated in her application that she made claims for protection in her own right, it would seem that she applied for a protection visa as a member of the first appellant's family unit, that is, as his de facto partner. The first appellant's claims contained in his visa application were that he had fled Malaysia because he feared harm from the Ah Long (loan sharks) and other people to whom he owed money and who would harm him if he were to return. 3 In a statutory declaration dated 30 June 2016 the first appellant claimed that he had been assaulted by an Ah Long twice in Malaysia, and had fled from Penang to Kuala Lumpur in 2010 for a period to hide from the Ah Long, before they located him and he returned to Penang. 4 On 4 July 2016 the Minister's delegate refused to grant the appellants a protection visa as the delegate was not satisfied that the claims for protection were credible. On 16 July 2016 the appellants applied to the Tribunal for review of the delegate's decision, and on 31 August 2017 the appellants appeared before the Tribunal by video link, gave evidence and presented arguments with the assistance of a Mandarin interpreter. The hearing was adjourned for reasons that are unclear, and it resumed on 3 October 2017. 5 At the conclusion of the resumed hearing the Tribunal delivered an oral decision affirming the delegate's decision, and on 18 October 2017 the Tribunal produced a written reduction of its oral statement. The appellants then sought judicial review of the decision of the Tribunal in the FCFCOA, and on 7 April 2022 the primary judge dismissed the application. 6 The appellants appeal from orders of the primary judge dismissing the application. As the appellants have now separated, the second appellant has withdrawn from the appeal.

Grounds of Appeal 7 The appellant advances two grounds of appeal, which are substantially in the terms of those pressed before the primary judge. They are, first, that the primary judge erred by failing to find that the decision of the Tribunal was affected by jurisdictional error as the Tribunal had failed to exercise its jurisdiction, failed to carry out its statutory task, and/or failed to afford the appellant procedural fairness by not appropriately considering relevant information. It is said by way of particulars that: a) The applicant's written submissions in the form of [the] statutory declaration dated 30 June 2016 were central to setting out the applicant's claims and accordingly the statutory task to be undertaken by the Tribunal. b) The Tribunal failed to actively intellectually engage with the applicant's statutory declaration. This was demonstrated by: i. The significant and obvious factual error at [37] that "the applicant introduced claims to have received a second savage beating on the part of criminal associates of Ah Long for the first time in the second hearing with the tribunal, despite having had five previous opportunities to do so." The applicant described the second attack in his 2016 statutory declaration at paragraph [12]. ii. The lack of any explicit reference to the applicant's "statutory declaration"; iii. The single brief, unfounded and inexplicable reference to the applicant's written submissions at [41] that the "written claims" were "illogical and vague". 8 Secondly, the appellant contends that the primary judge erred by failing to find that the decision of the Tribunal was affected by jurisdictional error as the Tribunal made findings without a logical, rational or probative basis, and or acted unreasonably in considering the appellant's credibility. It is said by way of particulars that: a) An adverse credibility assessment was the foundation for the Tribunal's ultimate decision against the applicant (see [43]-[46]). However, this assessment was based on findings not reasonably open to the Tribunal. This included the Tribunal's findings at: a. [14]-[16], [34], [36]-[39], and [41] that the applicant's evidence was "illogical" or did not address "illogicalities", and was "inconsistent". b. [37] that "the applicant introduced claims to have received a second savage beating on the part of criminal associates of Ah Long for the first time in the second hearing with the tribunal, despite having had five previous opportunities to do so." The applicant described the second attack in his 2016 statutory declaration at paragraph [12]. c. [36] that the applicant failed to account for his ability to support a lifestyle of constant debt (where the applicant had provided evidence he continually changed the Ah Longs to whom he was indebted). d. [38] that the applicant's account did not accord with country information. e. [39] that the applicant had "evaded Ah Long successfully for much of his adult life". 9 For the reasons that follow I have concluded that neither of these grounds of appeal disclose appealable error on the part of the primary judge and accordingly that the appeal should be dismissed.

The Tribunal's decision 10 To understand the challenge made by the appellant before the primary judge and on appeal it is necessary to explain how the Tribunal evaluated the application. 11 The Tribunal noted that the appellant's claims were based on gambling debts he owed to more than 10 Ah Longs, that he had received threats of harm (in both Australia and Malaysia) and actual beatings, and that he feared returning to Malaysia for this reason. 12 The Tribunal accepted the delegate's discussion of country information and had regard to a DFAT Country Information Report: Malaysia dated 19 July 2016 and a department publication entitled "Malaysia: Common Claims" dated 1 September 2016. 13 The Tribunal noted that it had considerable doubts in respect of the appellant's evidence, which it found to be "vague, undetailed and illogical". The Tribunal identified a number of concerns with the appellant's claims and his evidence, including that: (a) the appellant had not raised a claim to have been beaten a second time in 2011 until the resumed hearing before the Tribunal; (b) the Tribunal expressed concern that the appellant's claim that the second appellant or the appellant's family had not been harmed was inconsistent with country information; (c) the appellant had failed to provide any corroborating evidence in support of his claims, despite the delegate raising this weakness with him; (d) the appellant's accounts of making reports to police immediately following savage beatings by the Ah Longs, and the police then doing nothing, were "illogical, inconsistent, and did not accord with country information"; and (e) the appellant's evidence that he would be located by Ah Longs anywhere in Malaysia was inconsistent with having evaded Ah Longs for most of his adult life. 14 The Tribunal found that the appellant had failed to provide sufficient evidence to demonstrate that his claims were true. On the basis of its stated credibility concerns the Tribunal did not accept that the appellant had taken a loan from Ah Longs in Malaysia, nor any of the appellant's claims dependent on that claim. The Tribunal found that on the evidence, including the country information referred to in the delegate's decision and referenced by the Tribunal, there was only a remote or far-fetched chance that the appellants would be harmed by Ah Long loan sharks because the appellant was indebted to Ah Long. Further, the Tribunal did not accept that the appellants would be seriously harmed for the reasons they claimed or for any other reason were he to return to Malaysia now or in the reasonably foreseeable future. 15 Thus the Tribunal found that the appellants did not face a real risk of serious or significant harm if removed to Malaysia, and it was not satisfied that the appellants were persons in respect of whom Australia owed protection obligations under s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth).

The decision of the primary judge 16 The primary judge dealt with the two grounds of review which are pressed again on this appeal as follows. First, in relation to ground one, his Honour held that it was clear that the statutory declaration referred to two beatings and that those beatings occurred in or around 2010 before the appellant relocated to Kuala Lumpur. His Honour held that it was clear that in oral evidence the appellant had raised a claim of a further beating in 2011 that had not been raised in the statutory declaration or elsewhere, which suggested that this further beating had been invented. The primary judge accepted that this further beating should have been referred to as a "third" beating or "another" beating, however, his Honour considered that the Tribunal was clearly aware that the claim of the third beating had not been raised before and its reasons clearly showed that it was aware of the contents of the statutory declaration. Otherwise, so the primary judge reasoned, the Tribunal could not have been aware that the allegation was a new one. His Honour was satisfied that there was abundant indication in the Tribunal's reasons that it was aware of the statutory declaration and its contents and on this basis found that ground one was not made out. 17 In relation to ground two, the primary judge held that the conclusion of the Tribunal that much of the appellant's evidence was illogical and inconsistent was open to it. His Honour pointed to specific examples of instances where the Tribunal's findings on this basis were not illogical with reference to the particulars in the appellant's submissions. In particular, the findings about the appellant's gambling debts; the late claim about the 2011 beating; the lack of police response and its inconsistency with country information; and the fact that the appellant had evaded the Ah Long for most of his adult life. On these bases his Honour concluded that ground two was not made out either.

The application to adduce fresh evidence 18 On 14 October 2022, four days before the appeal was listed for hearing, the appellant's solicitor filed an affidavit annexing a copy of the transcript of the hearings before the Tribunal. The appellant's solicitors had provided the transcript to the Minister's solicitors on 7 October 2022. It appears to be common ground that the transcript was not before the primary judge. 19 At the commencement of the appeal hearing counsel for the appellant sought leave to rely on the transcript of the hearings before the Tribunal. It was contended, in substance, that the transcript was relevant to the question of whether the appellant's claim to having been subjected to a further beating by the Ah Long was made for the first time in the Tribunal. 20 The Minister opposed the admission of the transcript. It was submitted, first, that the application had not been made at least 21 days before the hearing of the appeal and there was no affidavit explaining the grounds of appeal to which the transcript related and why the evidence had not been adduced below: see Federal Court of Australia Act 1976 (Cth) s 27; Federal Court Rules 2011 (Cth) r 36.57; and Sami v Minister for Immigration and Citizenship [2013] FCAFC 128 at [7]. Further, having reviewed the transcript, it was the Minister's position that its admission would not likely have produced a different result in the application before the primary judge: August v Commissioner of Taxation [2013] FCAFC 85; (2013) 94 ATR 376 at 398 [116] and 399-400 [119]. In this regard the Minister submitted that the transcript was in fact consistent with the Tribunal's finding that the further beating the appellant alleged he had been subjected to was raised for the first time in the Tribunal. 21 In all the circumstances the parties agreed that counsel for the appellant should be permitted to make whatever submissions he wished to make based on the transcript of the hearings before the Tribunal, with the Minister reserving the right to make further submissions on the subject should that be thought necessary, and the question of whether leave should be granted for the appellant to adduce the transcript be dealt with in these reasons for judgment. 22 Having had the benefit of submissions from the appellant which referred to the transcript, I am satisfied that it does not advance the appellant's argument about the timing of his claim to have received a further beating from the Ah Long and is not material to either of his grounds of appeal. It cannot therefore be said that admission of the transcript might have produced a different result. For these reasons the appellant's application for leave to adduce further evidence in the form of the transcript will be refused.

Ground 1 23 The appellant contends that the primary judge erred by failing to find that the decision of the Tribunal was affected by jurisdictional error because the Tribunal failed to exercise its jurisdiction, failed to carry out its statutory task, and/or failed to afford the appellant procedural fairness by not appropriately considering relevant information. 24 The appellant's submissions in relation to this ground are focused on the extent to which the Tribunal had regard to the statutory declaration. It is submitted that: (a) the Tribunal's reasons and the purported errors within those reasons raise the question of whether the Tribunal in fact read the statutory declaration and that the reasons demonstrate a "failure to actively intellectually engage with the content" of the statutory declaration; (b) the appellant's statutory declaration is a core document that provided a foundational outline to the appellant's claims and was summarised in the delegate's written reasons; (c) a number of factors, considered individually and cumulatively, demonstrate a failure of the Tribunal to engage with the statutory declaration including: (i) the failure to include the statutory declaration in the original court book provided by the respondent at the hearing before the primary judge, which raises the question of whether it was before the Tribunal; (ii) the absence of any reference to the statutory declaration in the Tribunal's reasons where the Tribunal otherwise referred to the appellant's "written claims" being "illogical and vague", without explaining the reference to "written claims" and where the Tribunal ultimately made adverse credibility findings against the appellant based at least in part on "inconsistencies" within the appellant's claims; (iii) the "obvious factual errors in the Tribunal's reasons" which, it is said, would not have been made if the Tribunal had engaged with the statutory declaration; in particular the Tribunal's finding at [37] of its reasons that the appellant introduced claims to have received a second beating for the first time in the second hearing before the Tribunal despite having five previous opportunities to do so, a matter which it is said was factually incorrect as it was "clearly and explicitly" described in the statutory declaration; and (iv) what are said to be the unsubstantiated and unjustified conclusions within the Tribunal's reasons. 25 In relation to the submission that there was an "obvious factual error" in the Tribunal's reasons, the appellant submits that the Tribunal concluded that a second beating was only raised at the second oral hearing because it did not read the statutory declaration, or if it did, it failed actively to engage intellectually with it. The appellant contends that the primary judge acknowledged the reference to two beatings in the statutory declaration but attempted to explain this as merely a minor error on the part of the Tribunal, and in doing so effectively re-drafted the Tribunal's reasons in a way which amounted to merits review by engaging in fact finding which did not reflect the facts found by the Tribunal. 26 The appellant also contends in this connection that the primary judge's reasoning is flawed because: (a) his Honour's use of the phrase "third or another" is at least a partial misnomer because his Honour had accepted there were two beatings as claimed in the statutory declaration; (b) his Honour made findings of fact not made by the Tribunal which the Tribunal could have made and that even if these findings of fact were permissible for a supervisory court to make, there was no evidentiary basis for such findings, or they were contradictory to the Tribunal's findings; and (c) his Honour's reasoning was circular in relation to the Tribunal's awareness of the content of the statutory declaration. 27 The appellant submits that the Tribunal's finding that his written claims were illogical and vague was unsubstantiated by reference to the statutory declaration itself given that it included specific details. He contends that the Tribunal's "perfunctory adverse finding" demonstrates a lack of active intellectual engagement with, or the ignoring of, this centrally relevant material. It is the appellant's position that consideration of the statutory declaration was critical to the Tribunal's statutory task and the document bore significantly on the key issue of the appellant's credibility. It is said that the purported failure to engage with the document demonstrates a failure by the Tribunal to exercise its jurisdiction and, or alternatively, a failure to carry out its statutory task such as to amount to jurisdictional error. 28 I do not consider that the criticisms which are made by the appellant of the Tribunal's treatment of the statutory declaration and, correspondingly, of the primary judge's analysis of the Tribunal's treatment of the statutory declaration, are well founded. In the present case the Tribunal was required to assess whether the appellants satisfied the criteria for a protection visa under s 36 of the Act. In determining whether the appellant had a well founded fear of persecution (or met any other criteria for a protection visa), the Tribunal was required to resolve questions of credit, attribute weight to particular evidence, and consider the inherent probability or improbability of claimed events: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282 (Brennan CJ, Toohey, McHugh and Gummow JJ). 29 In Plaintiff M1/2021 v the Minister for Home Affairs (2022) 96 ALJR 497 at 508-509 [24]-[26] (Kiefel CJ, Keane, Gordon and Steward JJ), the majority emphasised that the weight to be afforded to representations in relation to such matters is a matter for the decision maker, and that labels like "active intellectual process" and "proper, genuine and realistic consideration" have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised" (citing Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 at 520 [24], quoting Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at 442 [65]). That, as the majority observed, is not the correct approach and it is critical to bear constantly in mind the limited role of a court reviewing the exercise of an administrative discretion: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 (Mason J). 30 I accept, as the Minister submits, that ground one of the appeal would require the Court to engage in the indefinite and subjective application of the Tribunal's reasons which Plaintiff M1/2021 cautions against. The Tribunal's reasons are not to be construed minutely and finely with an eye keenly attuned to the perception of error (as to which see Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; Wu Shan Liang at 272; and CKL21 v Minister for Home Affairs (2022) 401 ALR 647 at 655 [27]); and the Tribunal's reasons should be viewed as a whole: AON15 v Minister for Immigration and Border Protection [2019] FCAFC 48 at [56]. 31 When the Tribunal's reasons are read in this way, I do not accept that the Tribunal overlooked the statutory declaration, especially given that there was no requirement for the Tribunal to make reference in its reasons to every piece of evidence and every contention made by the appellants: Applicant WAEE v Minister for Immigration and Multicultural Affairs (2003) 236 FCR 593 at 604-605 [46]-[47]. 32 I accept the force of the primary judge's conclusion at [16] that the Tribunal's reasons indicate that it was aware of the statutory declaration and its contents. As the Minister submits, the delegate summarised the claims advanced in the statutory declaration at pages 2-3 of the Protection Visa Assessment dated 4 July 2017 and the Tribunal set out the appellant's claims outlined in the statutory declaration and summarised the delegate's decision: see [15], [18]-[19], [20]-[23]. 33 In any event, and as the Minister submits, even if the Tribunal overlooked the statutory declaration this would not of itself constitute jurisdictional error in circumstances where the Tribunal considered the appellant's claims which were either expressly made or arose squarely on the material before it: NABE v Minister for Immigration and Multicultural Affairs (No 2) (2004) 144 FCR 1 at 18 [58]. 34 Although it may be accepted that the Tribunal is required by s 430 of the Act to make a written statement which identifies its findings on material questions of fact and refer to the evidence on which such findings are based, an examination of the entirety of the Tribunal's reasons illustrates that the appellant's claims and his evidence were considered, even though the statutory declaration was not expressly mentioned. For example, at [23] of the Tribunal's reasons the Tribunal noted the appellant's claim of another beating in 2011 following the "red paint attack" at his girlfriend's house. At [28] and [37] the Tribunal noted the fact that this beating (described as the "second beating") in 2011 had not been raised prior to the second hearing despite the appellant having five previous opportunities to do so. Further, at [7] the Tribunal noted that at the first hearing the appellants were asked and declined to amend or add any information to their claims and responded in the affirmative when asked whether the Tribunal could proceed on the basis of the information before it. 35 In relation to the appellant's submission regarding the number of beatings that he claims occurred, I accept the primary judge's summary at [8]-[9] and [15] that the statutory declaration refers to two beatings that occurred in 2010 in quick succession, and that a further, third beating, that had not been previously mentioned, was raised in oral evidence by the appellant at the hearings before the Tribunal. It was open to the Tribunal to make an adverse credibility finding against the appellant in light of the late making of the 2011 beating claim (which formed part of that adverse credibility finding). 36 I also accept the Minister's submission that no jurisdictional error arises from any error on the part of the Tribunal as to the number of times the appellant claimed to have been beaten in circumstances where the Tribunal assessed the appellant's underlying claims: Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 at [28]; Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 at [51]. As the Minister submits, the Tribunal asked the appellant at the hearing why he "had not raised the second beating he claims he received in 2011 prior to the second hearing with the Tribunal" and the appellant indicated that he had forgotten about it (see at [28] of the Tribunal's reasons). As much can be discerned in the transcript of the hearings in the Tribunal which the appellant sought to adduce at the commencement of the appeal hearing. The appellant did not say that he had raised that matter in his statutory declaration. 37 Finally, insofar as the appellant submits that the primary judge was making findings of fact in relation to the appellant's claimed beatings, I do not accept that this was so. The primary judge was doing no more than interpreting the Tribunal's decision and the associated findings of fact there made. 38 For these reasons, ground one fails.

Ground 2 39 The appellant contends that the primary judge erred by failing to find that the decision of the Tribunal was affected by jurisdictional error as the Tribunal made findings without a logical, rational or probative basis, and/or acted unreasonably in considering the appellant's credibility. 40 The substance of ground two is that the Tribunal's adverse credibility findings were not reasonably open to it. The appellant complains that the primary judge erred in failing to accept that this was so. 41 The appellant submits that the Tribunal's decision rested on its adverse credibility findings against the appellant and contends that there was insufficient evidentiary foundation for these credibility findings. It is submitted that the Tribunal misapprehended the evidence or made unreasonable or illogical findings. In support of this ground the appellant refers to a number of examples of purported "misapprehension[s] of evidence or unreasonable findings", in particular that: (a) the Tribunal at [37] erroneously found that the appellant had introduced claims of the second beating only at the Tribunal hearing, which was incorrect because it was described in the statutory declaration; (b) there was an absence of logic in the Tribunal's summary of a beating incident in that the Tribunal erroneously found that it supported an adverse credibility finding when it actually went to the response of the police and supported the appellant's claims regarding a lack of protection from the authorities; and (c) the Tribunal's finding that a lack of police response was illogical, inconsistent and did not accord with country information, was incorrect and was not open to the Tribunal. 42 The appellant submits that because the Tribunal's adverse credibility finding was the determining issue, the purported errors by the Tribunal were fundamental to the ultimate disposition and thus constituted jurisdictional error which ought to have been corrected by the primary judge. 43 The Minister submits that this ground of appeal seeks impermissibly to cavil with the merits of the Tribunal's decision and reflects nothing more than disagreement with it. The Minister notes that the Tribunal found that the appellant had provided no corroborative evidence of his alleged beatings, had failed to provide credible information about how he was able to live relatively unharmed for six years despite owing debts to numerous Ah Longs, had failed to account for his ability to support his lifestyle despite those debts and ultimately found his claims to be inconsistent. The Minister maintains that these findings provided a proper basis for the adverse credibility findings which the Tribunal made. The Minister also submits that the Tribunal's findings were open to it based on the country information that was before it. 44 I accept the Minister's submissions in this regard and, in substance, the analysis undertaken by the primary judge in relation to ground two. In DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at 184 [30(5)], the Court, quoting Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [148], noted that 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". While there may be varieties of illogicality and irrationality, 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: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 649 [135] (Crennan and Bell JJ); CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at 517-518 [60]. A decision might be said to be illogical or irrational if there is only one conclusion open on the evidence and the decision maker did not reach that conclusion, or if the relevant decision was not open on the evidence, or if there is no logical connection between the evidence and the inferences or conclusions drawn: SZMDS at 649-650 [135]. Further, and as has been observed, the Tribunal's decision should not be construed minutely and finely with an eye keenly attuned to the perception of error: Wu Shan Liang at 272, quoting Pozzolanic at 287. 45 In circumstances where there was an entirely intelligible justification to support the Tribunal's rejection of the appellant's claims, and the Tribunal's finding that the appellant's claims were not supported by the corroborating material was plainly open, the Tribunal's reasons are far from reaching any threshold of illogicality. The Tribunal's reasons and its adverse credibility findings were not illogical, the Tribunal's credibility findings were open, and there was no jurisdictional error on the part of the Tribunal in this respect. 46 Ground two does not identify an appealable error in the findings of the primary judge and must also fail.

Conclusion 47 Both grounds of appeal having failed, the appeal will be dismissed. As it appears to be common ground that the name of the respondent Minister should be changed to "Minister for Immigration, Citizenship and Multicultural Affairs", there will be an order to this effect also. The appellant should pay the Minister's costs as agreed or assessed. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy.