SZLGP v Minister for Immigration & Citizenship [2008] FCA 1198 | Case summary

THE PRESENT APPEAL 12 On 29 May 2008, the appeal came on for hearing. On that day, I made a direction for pro bono legal assistance under O 80 of the Federal Court Rules. On 18 July 2008, an amended notice of appeal was lodged. The sole ground of appeal was in the following terms: The Federal Magistrate erred in failing to find that the Tribunal erred in applying the wrong test as to its level of satisfaction in respect of its ultimate determination that "the Tribunal is not satisfied that [the appellant] is a person to whom Australia has protection obligations under the Refugees Convention." Particulars The Tribunal was constrained to make its decision according to its "satisfaction" of relevant factors. The Tribunal otherwise determined relevant facts as follows: "The Tribunal is not convinced" (AB130.9) (3rd paragraph) "The Tribunal is not convinced" (AB131.5) (3rd dot point) "The Tribunal is not convinced by his explanations" (AB131.8) (2nd last paragraph) "The Tribunal has considered the [appellant's] explanations but finds them unconvincing and unpersuasive" (AB132.1) (1st paragraph) "The Tribunal has considered the [appellant's] explanations but finds them unconvincing and unpersuasive" (AB132.5) (2nd paragraph) "The Tribunal is not persuaded by his explanations" (AB132.9) (last paragraph) "The Tribunal is not convinced by his explanations" (AB133.5) (1st dot point) "The Tribunal has considered the [appellant's] explanations but is not persuaded" (AB134.6) (2nd paragraph)" 13 In general terms, the appellants' complaint was that the decision of the Tribunal that it was "not satisfied that [the appellant] is a person to whom Australia has protection obligations under the Refugees Convention" (s 65 of the Act) had no "jurisdictional" foundation. The lack of jurisdictional foundation was said to arise from two related events. First, that in stating that it was "unconvinced", "not persuaded" or "not convinced" of facts which the Tribunal treated as material, the Tribunal applied an incorrect (and more stringent) test: see [12] above. And secondly, having made that error, the Tribunal proceeded to make its determination based on those findings, ultimately concluding (at p 18): In essence, in light of the credibility, on the basis of the available information and in consideration of the evidence as a whole, the Tribunal is not satisfied [that] the applicant or any of his relations had any involvement in the conflict between the Chinese authorities and the locals of Dingcuo village. For these reasons, the Tribunal is not satisfied that the applicant has suffered any harm on the bases of any actual or imputed anti-authorities opinions or actions (or any other convention reason) or that there is a real chance that he would suffer any Convention-related harm in the reasonably foreseeable future. 14 On the other hand, the first respondent submitted, consistent with the findings of the Federal Magistrate, that the Tribunal complied with and completed its primary jurisdictional task under s 36(2) of the Act and "provided reasons to explain its findings on credibility which are not irrational … [and] were open to it on the material". 15 This appeal concerns the role of the Tribunal and the manner in which the Tribunal exercises that role. In WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568, Lee and Moore JJ described the role of the Tribunal in the following terms: 16. … [T]he Tribunal, subject to a qualification provided in s 416 that is not relevant in this case, is required to consider all relevant material and after having regard to that material make the necessary findings of fact required to support the determination made by the Tribunal. 17 The principal criterion for the grant of a protection visa under the Act is that the applicant have a well-founded fear of persecution for reason of race, religion, nationality, membership of a particular social group or political opinion. A fear of persecution is a well-founded fear if it is shown by the nature of past events, and/or the prospect that such events may occur in future, that there is a risk that the applicant may suffer persecution if returned to the country of nationality. The risk so described is one that is real and not fanciful. It is not a requirement that the risk be measurable as to degree of likelihood or probability. (See: Chan Yee Kin v Minister For Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 per McHugh J at 417). 18 The role of the Tribunal in conducting a review under the Act is to assess whether the material presented indicates that there is a real possibility that if the applicant were returned to the country of nationality events involving the applicant may occur which would constitute persecution of the applicant. If so, the Tribunal will be satisfied that the applicant qualifies for the grant of a visa and, pursuant to s 65(1) of the Act, must grant the visa applied for … If the material does not show that such a risk exists the visa must be refused. 19 In carrying out that assessment, involving as it does a determination of great importance to an applicant, the Tribunal must act "judicially" and according to law. … … 21 Failure of the Tribunal to act "judicially" will necessarily stamp the review procedure as one which did not accord an applicant practical fairness or justice. To act "judicially" and according to law the Tribunal must carry out its decision-making function rationally and reasonably and not arbitrarily. (See: Bond per Deane J at CLR 366-367). That is to say, the Tribunal cannot determine the matter by a "tossing a coin" or by making a "snap decision" or by acting on instinct, a "hunch" or a "gut-feeling". 22 The requirement that the review procedure be carried out according to law, is an irreducible duty arising out of s 75(v) of the Constitution. (See: Abebe v Commonwealth (1999) 197 CLR 510 per Gummow, Hayne JJ at [170]). Failure to observe that requirement will mean that the purported decision of the Tribunal has no "jurisdictional" foundation. (See: Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59per Gleeson CJ at [5]-[9]; McHugh, Gummow JJ at [34], [37]; Kirby J at [116], [127]-[128]). The Tribunal only obtains power to make a determination under the Act where the determination is based on findings or inferences of fact that are grounded upon probative material and logical grounds. (See: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gummow J at [145]; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 per Gleeson CJ, Gummow, Kirby and Hayne JJ at [34]; Hill v Green (1999) 48 NSWLR 161 per Spigelman CJ at [72]). A determination based on illogical or irrational findings or inferences of fact will be shown to be a decision not supported by reason and to have no better foundation than an arbitrary selection of a result. It is because it is based upon such findings that the determination is an unreasoned decision. Such findings or inferences of fact become part of, and are not distinguishable from, the decision subject to judicial review. (See: S20/2002 per McHugh, Gummow JJ at [54]; Bond per Mason CJ at 338, 359-360). A review culminating in such a decision would be a process lacking practical fairness or justice and would not be a process conducted according to law. 23 The Tribunal is instructed by the Act to determine whether a protection visa is to be granted to an applicant or refused. In effect the outcome of that adjudication depends upon whether the Tribunal is satisfied that the applicant is a refugee within the meaning of that term as used in the Convention. (See: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh, Gummow JJ at 275-276). The requirement that the Tribunal be so satisfied is a "jurisdictional fact" and not a state of mind formed at the Tribunal's discretion. The satisfaction, or lack thereof, must be determined reasonably, that is, properly, according to the principles set out above. (See: Eshetu per Gummow J at [134]-[146]). 24 The importance of the Tribunal's function and acknowledgement of the foregoing principles is recognised by s 430 of the Act which requires the Tribunal to explain its decision by providing a written statement that sets out the findings made by the Tribunal on material questions of fact, the evidence or material relied upon for those findings, and the reasons of the Tribunal. (c.f. W157/00A v Minister for Immigration and Multicultural Affairs (2001) 190 ALR 55 at [47]- [52]). 16 What then did the Tribunal do in the present case? For the reasons that follow, the Tribunal did not act "judicially" in the sense described in WAIJ. Its decision is based on irrational findings and is not supported by reason. As such, the Federal Magistrate erred in failing to quash the decision for jurisdictional error and the appeal must be allowed. 17 The principal finding (on which the first respondent placed considerable emphasis) was that "the Tribunal [was] satisfied that the [first appellant] [had] fabricated the fundamental aspects of his claims in order to support his refugee claims". That conclusion was said by the Tribunal to be a finding made in light of "noted concerns, on the basis of the available information and in consideration of the evidence as a whole". The Tribunal's decision was, as noted earlier, based on an adverse credibility determination. It is well settled that findings going to credibility and weight are generally matters for the decision-maker at first instance and not subject to appellate review. In the instant case, however, there are a number of problems with the fabrication finding that cause it to fall outside the scope of the general rule. 18 Counsel for the first respondent referred to the following passages in the Tribunal's reasons for decision which refer to "fabrication". The passages were: [1] The Tribunal asked the [first appellant] where he took his cousin and the brother. He said he took them to Gianyan, specifically to Mushan village which is about 20-30 kilometres from the [first appellant's] homeland. The Tribunal referred the [first appellant] to his statement provided in support of the application for a protection visa and indicated to him that in the statement there is no mention of the place where he took his cousin and his brother. The [first appellant] acknowledged that he did not put the name of the village in the statement. He said at that time he did not consider matters fully. The [first appellant] denied any implication of fabrication and said that he did not even go to his father's funeral when he died. He said he ran away from China in a hurry. The Tribunal is not convinced. (at p 14 of 19) [2] In the s 424A response, the [first appellant] said that during the preparation of his application for a protection visa, he was really in fear. He did not understand the operation of the government system in Australia. He was also "afraid that some of my friends, who had not been discovered by the PRC authorities and who had lived in Mushan Village (incorrectly interpreted by the interpreter as "Muchan"), might have been in troubles if some of particular information in my protection application were divulged. That was why I did not mention the name of the village where I took my cousin and his brother in my statement provided in support of my application for a protection visa". Whilst the Tribunal does not dispute that the spelling of Mushan could have been Muchan, the Tribunal does not accept that this was due to misinterpreting; either spelling in English would be correct in the Tribunal's opinion. The Tribunal is of the view that the fact remains that the [first appellant] did not mention the name of the village in the statement provided in support of the application for a protection visa. The Tribunal is particularly concerned about the [first appellant's] responses that he was afraid that information in his protection visa would be divulged. This is a significant explanation that he did not offer in the course of hearing. The Tribunal is not convinced by his explanations. [3] As to his other explanations that according to local tradition in his hometown, "I would be dogged by my father's soul forever if I had neither attend his funeral nor promised to the public that I would continually looked after him. So, there would be nothing that could stop me to attend my father's funeral; unless I was in great dangers". The Tribunal does not want to sound harsh or inappropriate in any way, there could be many reasons as to why the [first appellant] did not attend his father's funeral, if indeed he did not, a claim which the Tribunal seriously doubts. [4] The Tribunal has considered the [first appellant's] explanations but finds them unconvincing and unpersuasive. The Tribunal appreciates that a hearing is an opportunity to clarify and elaborate on one's claims and the Tribunal does not expect every detail of a claim to have been included at the primary stage. However, the Tribunal considers that the name of the village to be important; the Tribunal is of the view that the fact that the [first appellant] did not provide the name of the village in what the Tribunal considers to be a detailed statement suggests fabrication, raising doubts about the veracity of his claims and credibility generally. [5] The [first appellant] gave evidence that he knew a person by the name of Mr Lu Qing (Qing Hu Lu) who lived in Mushan village. The [first appellant] does not mention that Mr Lu lived in Mushan in the statement provided in support of the application for a protection visa. The [first appellant] said that the distance between Mushan and his home town is not very far. He stated that the statement does not clearly and comprehensively state all his claims. In the s 424A response, the [first appellant] explained that the interpreter, or the Presiding Member, might have misinterpreted or misunderstood his claims about the name of the person who had intended to smuggle his cousin and his brother to Taiwan. The correct name of the person was "Mr Qing Hu Lu" instead of "Mr Lu Qing". Mr Lu was a fisherman. "For particular reason above, I did not mention that the name of his living village was Mushan Village; and I had to care about safety of other friends in that village". The Tribunal accepts that the name as stated by the [first appellant] was Mr Qing Hu Lu, but does not accept that there was any misinterpreting or misunderstanding. Further, the Tribunal was not suggesting that there were any inconsistencies in respect of the names. The issue is that the [first appellant] does not mention that Mr Lu lived in Mushan in the statement provided in support of the application for a protection visa. The Tribunal has considered the [first appellant's] explanations but finds them unconvincing and unpersuasive. The Tribunal reiterates its appreciation that a hearing is an opportunity to clarify and elaborate on one's claims and the Tribunal does not expect every detail of a claim to have been included at the primary stage. However, the Tribunal is of the view that the fact that the [first appellant] did not mention that Mr Lu lived in Mushan in what the Tribunal considers to be a detailed statement suggests fabrication, raising doubts about the veracity of his claims and credibility generally. (Emphasis added) 19 As a preliminary matter, the use of the phrases "not convinced" or "not persuaded" in these and other passages in the Tribunal's reasons for decision cannot be and is not determinative. In WADE of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 214, the Full Court considered the use of similar language and concluded at [18]: Though the Tribunal used the word 'convinced' in this passage, we are mindful of the injunction of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 and, in the light of the otherwise fully and carefully expressed reasons, we consider that the use of that word does not betray any misunderstanding by the Tribunal of its primary jurisdictional task under subs 36(2) of the Act. 20 Rather than focusing on the use of particular words (i.e. 'convinced' or 'persuaded' as opposed to 'satisfied'), a better way of approaching the question is to ask whether the Tribunal's reasons for decision otherwise fully and carefully express reasons which betray no misunderstanding by the Tribunal of its primary jurisdictional task under subs 36(2) of the Act: WADE of 2001 [2002] FCAFC 214 at [18]. Bearing in mind the injunction that a Tribunal's reasons for decision "are not to be construed minutely and finely with an eye keenly attuned to the perception of error" (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (internal quotation marks and citation omitted)), in my view the decision of the Tribunal nevertheless discloses no "jurisdictional" foundation. 21 The fundamental problem is that neither a fair reading of the identified passages nor the reasons of decision of the Tribunal as a whole address or identify what the Tribunal regarded as "the fundamental aspects of [the first appellant's] claims" or which of those claims the Tribunal was satisfied had been "fabricated". That of itself is sufficient reason to conclude that the Tribunal has failed in its primary jurisdictional task. 22 That is not an end of the problems with the Tribunal's reasons for decision. Even if a reader of the reasons for decision was asked to assume that the extracted passages were the passages being referred to by the Tribunal when it stated that "the [first appellant] [had] fabricated the fundamental aspects of his claims in order to support his refugee claims", it would not resolve the problems I have identified because it would be unreasonable, and even irrational, to find that those fabrications (if such they were) went to "fundamental aspects" of the first appellant's refugee claims. 23 If, by way of example, one takes paragraph [1] of the reasons for decision which have been extracted, that paragraph does not disclose whether the Tribunal is "not convinced" about one or more of the first appellant's explanations for his initial failure to disclose the name of the village to which he took his cousin and his cousin's brother, that the first appellant did not go to his father's funeral or that he ran away from China in a hurry. Of course, other parts of the reasons for decision might provide the answer to that question. But they do not. In addition, the reference to "fabrication" is in the context of the first appellant having "denied any implication of fabrication". Whether that is a matter being referred to by the Tribunal as a finding of fabrication is not clear. As will be apparent, I reject the first respondent's submissions that it was open to the Tribunal to make a "finding of fabrication without even referring to which aspect the Tribunal [found had been] fabricated". 24 And finally, even if the reasons for decision are to be read as making a finding or inferring that the failure to name a village in a statement provided in support of the application for a protection visa is a fabrication of a "fundamental aspect" of the first appellant's claims or supports a finding or inference of fact that some other unidentified "fundamental aspect" of the first appellant's claims has been fabricated, then I am of the view that those findings or inferences of fact are not grounded upon probative material and logical grounds. As the Federal Magistrate said at [22], "minds might differ on the significance of some of the points made by the Tribunal as indicators of unreliable evidence" and the weight that a decision maker attaches to material before it and what it makes of it is a matter for the decision-maker and not the subject of review: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 and Minister for Immigration and Multicultural Affairs v Eshetu (1997) 197 CLR 611. The difficulty here is the Tribunal has not otherwise provided fully and carefully expressed reasons for decision. How is the first appellant's initial failure to disclose the name of Mushan village so important as to go to fundamental aspects of his refugee claims and undermine his overall credibility? The Tribunal does not tell us. Similar criticisms can be made in regard to the other passages that have been extracted. For example, why does the initial failure to disclose that the fisherman Mr Lu was also from Mushan support the inference that the first appellant fabricated fundamental aspects of his claims? No reason is given, and I am unable to discern any rational one. 25 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). 26 Here, the inconsistencies (or rather, omissions) in the first appellant's evidence adverted to by the Tribunal are at most minor or trivial. Further, the Tribunal's reasons disclose no legitimate articulable basis for the finding, based on those omissions, that the first appellant fabricated fundamental aspects of his refugee claims. Instead, the Tribunal, even while acknowledging that it is not to be expected that an applicant will include every detail in the initial application, concludes without reasons that these are details that should have been provided, finds that they are details so weighty or important as to go to fundamental aspects of the claims, makes an adverse credibility finding, and infers that the claims were fabricated. Once the bases for these findings and inferences of fact are tested in the manner outlined, it is apparent that the Tribunal's determination is based on illogical or irrational findings or inferences of fact. It is a decision not supported by reason. To put the matter another way, "because it is based upon such findings … the determination is an unreasoned decision".

SZLGP v Minister for Immigration & Citizenship

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