SZRSX v Minister for Immigration and Border Protection

1. The application for an extension of time and for leave to appeal be dismissed.
2. The applicant pay the first respondent's costs, in the specified sum of $2,690. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ROBERTSON J: 1 This is an application for an extension of time to seek leave to appeal, and for leave to appeal, from orders of the Federal Circuit Court of Australia made on 22 March 2016 dismissing, pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the applicant's application. That application was for judicial review of a decision of the then Refugee Review Tribunal (Tribunal) made on 13 May 2015 affirming a decision of the delegate of the Minister not to grant the applicant a protection visa. 2 The applicant is a citizen of Fiji, who arrived in Australia on a tourist visa on 16 May 2011. She lodged her first application for a protection visa on 12 July 2011. That application was refused by a delegate of the Minister on 30 September 2011 and the decision was affirmed by the (differently constituted) Tribunal (first Tribunal) on 20 March 2012. Pursuant to the decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235 the applicant made a second application for a protection visa, the subject of these proceedings, on 14 February 2014. That application was refused by a delegate on 17 June 2014. As I have said, the Tribunal affirmed the delegate's decision on 13 May 2015. Apart from its alternate finding at [96]-[105] and [108], this Tribunal's decision was limited to the complementary protection criterion in s 36 of the Migration Act 1958 (Cth) (Migration Act). The first Tribunal had earlier dealt with the applicant's claims for protection under the Refugees Convention. 3 The show cause application which was before the primary judge was in the following terms: 1. The Refugee Review Tribunal decision failed to understand my fear of harm and persecution if I am compelled to return to Fiji. 2. The Tribunal's decision is contrary to the previous decision made on 20 March 2012 a copy of which is on file and in which the previous Member of the Tribunal accepted that the threats and abuse were not done for any of the five convention reasons. Now the new Tribunal Member denied the fear of persecution and threats and such denial is an error of law because it is based on assumption. 3. The Refugee Review Tribunal Member denied me [complementary] protection based on her assumption that I am not a witness of truth. Such statement is not true. 4. I shall provide the transcript of the hearing and ask the Honourable Court to give me a copy of all my documents as I believe I have an arguable case. 4 The primary judge considered the reasons of the Tribunal. The primary judge said that the Tribunal considered the applicant's claims against the complementary protection criteria as set out in s 36(2)(aa) of the Migration Act and found that the applicant was not a "credible, truthful, or reliable witness". The Tribunal essentially found, based on the inconsistencies identified by the Tribunal in the applicant's evidence, that the applicant lacked credibility in that she was not a "witness of truth". It found that the applicant's "vague, evasive, inconsistent and non-credible evidence" undermined the strength of her claims with respect to her job as a salesperson and her claims of continuous abuse. The Tribunal noted that the inconsistencies in the applicant's evidence went back to her 2011 Department interview for her first application, when she changed her evidence about whether she approached the police and a woman's crisis centre for help regarding her situation. Given the seriousness of the applicant's claims, the Tribunal was concerned about her "evasive and changing evidence" when discussing her husband and his reaction to her abuse. The Tribunal observed that the applicant's claims were not assisted by the fact that she travelled to Australia with her husband shortly after their divorce to visit her husband's brother. 5 The Tribunal was not satisfied that there was a real risk that the applicant would suffer significant harm on her return to Fiji for any of the reasons claimed. The Tribunal was not satisfied that the applicant was a person in respect of whom protection obligations were owed under s 36(2)(aa) of the Migration Act and, accordingly, affirmed the decision under review. 6 The primary judge said, with reference to authority, it was trite that the issue of credibility was a finding of fact for the Tribunal par excellence, and mere disagreement with the Tribunal's finding was not a ground of judicial review. The applicant's grounds predominantly carried a quality of disagreement with the Tribunal's findings without appreciating the question of jurisdictional error. The grounds were in large measure an invitation to the Court to engage in merits review. 7 As to ground 1, the primary judge said it was unparticularised and merely asserted that the Tribunal failed to "understand" the applicant's claimed fear of harm and persecution. Disregarding the lack of specificity in the ground, the primary judge said that a fair reading of the Tribunal's decision record (and the Tribunal hearing transcript filed by the applicant) showed that the Tribunal dealt with the applicant's claims in their entirety. A failure to understand implied a serious mistake of fact - this could not be established in circumstances where the Tribunal's findings were clearly open on the material before it. In this case, the Tribunal's adverse credibility findings were based upon the ever-changing and inconsistent evidence provided by the applicant. Ground 1 accordingly failed. 8 The primary judge said that ground 2 was, on its face, hard to understand and failed to identify clearly any jurisdictional error. There was no authority to suggest that the findings of the second Tribunal were in any way bound by the findings of a previous Tribunal. In this case, the present Tribunal referred to evidence before the previous Tribunal but clearly applied its own reasoning pursuant to its powers. The primary judge said it was also unclear how the Tribunal's decision was "contrary to the previous decision made on 20 March 2012". The previous Tribunal rejected the applicant's claim on a completely different basis pursuant to the refugee criteria. Even if they were relevant, the findings of the previous Tribunal did not support the applicant's claims for protection in this case. Cumulatively, the applicant asserted that the Tribunal's findings were based upon "assumption". The applicant asserted as much because the Tribunal's findings were adverse to her claims. The primary judge said that mere disagreement with the Tribunal's findings was not a ground for judicial review. Ground 2 failed to establish a comprehensible argument capable of demonstrating an arguable case. 9 The primary judge said that ground 3 failed because credibility findings were within the jurisdiction of the Tribunal par excellence and were open on the material before it. 10 The primary judge said that ground 4 disclosed no basis for judicial review and spoke only to the applicant's intention to provide documents to the Court, which was met. The transcript generally, and at pages 22-25, 31-32, 36-41, 44-45, 48-50 and 54 in particular, revealed a thorough discussion of the applicant's claims and that the Tribunal's concerns about the applicant's credibility were discussed with her. Ground 4 failed. 11 The grounds of the draft notice of appeal are as follows: 1. His Honour Judge Driver dismissed my case yet I have not received the full judgment. I will provide particulars when I receive the full judgment. 2. His Honour as well as the Tribunal failed to take into consideration the previous decision made on 20 March 2012 in which the Tribunal accepted that the threats and abuse were not done for any of the five convention reasons. 3. His Honour and the Tribunal do not have evidence to support a finding that I am not a credible, truthful or reliable witness. 4. I ask the Honourable Federal Court to reconsider the case as I still believe that I have an arguable case. 12 As may be seen, it is only the grounds numbered 2 and 3 which could constitute grounds of appeal. Whether there is any substance in those grounds requires consideration by this Court in relation to the application for leave to appeal and for an extension of time. 13 The applicant filed written submissions. The applicant submitted that she did not agree that the first Tribunal decision was free from jurisdictional error. She submitted that she believed that the Tribunal failed to take her vulnerable situation into account and failed to accept and understand the continuous abuse. The applicant submitted that the primary judge was bound to accept the decision of the Tribunal but his Honour failed to take into account that she was harmed in Fiji and the harm she suffered should be considered as significant harm and met the complementary protection criterion. The applicant attached to her written submissions a copy of the decision record of the first Tribunal dated 20 March 2012. She submitted she was a woman at risk and the second Tribunal did not have evidence to support a finding that she was not a credible, truthful or reliable witness. She submitted that she did not intentionally change her evidence and any inconsistencies in her evidence were the result of her depression and fear because her circumstances were unique. 14 In her oral submissions the applicant added that she was not satisfied with the decision that was made against her. In relation to proposed ground 2, the applicant submitted that the first Tribunal accepted her claimed fear of persecution and this was not taken into account by the second Tribunal. In relation to proposed ground 3, the applicant submitted that she was a credible witness and asked how the Tribunal could say that she was not. 15 The Minister, in his written submissions, said that the applicant's claim in proposed ground 2 was patently wrong and misfired for a number of reasons. First, it was factually wrong. The second Tribunal had express regard to and indeed undertook a detailed review of the first Tribunal's decision. The second Tribunal's assessment of the matters and issues raised during the first Tribunal's decision were central to the credibility findings which it reached against the applicant. The Tribunal identified many inconsistencies in the applicant's evidence by contrasting and examining the applicant's current application against her claims and evidence made in her first application. Secondly, it was unclear how a finding by the first Tribunal that "the threats and abuse were not done for any of the five convention reasons" assisted the applicant's prospects of success in any way. The primary judge expressly alluded to this issue at [19] of his reasons. Most relevantly, the Minister submitted, it was difficult to understand how a no Convention nexus finding could assist the applicant even if the first Tribunal accepted that the threat and abuse had occurred. This was because, for the reasons given by the primary judge, a second Tribunal was not bound by the findings of an earlier Tribunal. 16 As to proposed ground 3, the Minister submitted it revealed a misunderstanding of fundamental administrative law principles. The "legal framework applicable to credibility findings" was set out as a general observation at [16] of the primary judge's reasons. Findings about credibility were the function of the Tribunal "par excellence" and disturbing them if they were open on the evidence would amount to impermissible merits review. Importantly, a Tribunal was empowered to make findings based upon inferences, and it was unnecessary for it to be possessed of any particular contradictory evidence in order to reject claims made by an applicant. The Minister submitted that, absent any particulars by the applicant, proposed ground 3 was merely an expression of disagreement with the Tribunal's credibility finding, and for that reason, ought to fail. It should be observed, the Minister submitted, that the same conclusion was made in the reasons of the primary judge, at [16], that "the applicant's grounds predominantly carry a quality of disagreement with the Tribunal's findings without appreciating the question of jurisdictional error". 17 In his oral submissions, the Minister drew to my attention that the Tribunal had also dealt with an alternate finding, at [96]-[105] and [108], as to the applicant's refugee claims. 18 I turn now to consider the competing submissions. 19 In relation to proposed ground of appeal 2, the claimed failure to take into consideration the previous decision made on 20 March 2012 in which the first Tribunal accepted that the threats and abuse were not done for any of the five Convention reasons, I see no arguable error in the reasons of the primary judge. Insofar as the proposed ground raises the contention that a second Tribunal may not make different findings from those of an earlier Tribunal, at that level of generality it has no substance. The present Tribunal was not, except in its alternate finding, dealing with the applicant's claims based on the Refugees Convention, which the first Tribunal had done, but only with her claims under the complementary protection provisions. Furthermore, a reading of the reasons of the first Tribunal shows that it is incorrect to say that that Tribunal found the facts in favour of the applicant. At [51] of those reasons the first Tribunal said: "The Tribunal found the claims made by the applicant to be lacking in credibility." At [53] of those reasons the first Tribunal then went on to say that even if the applicant were threatened and abused by her supervisor as she had described, such threats and abuse were not done to the applicant for any of the five Convention reasons. I also note that the primary judge referred to authorities going back to Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407 for the proposition that the second Tribunal was not bound by the findings of the first Tribunal. 20 Turning to proposed ground of appeal 3, I interpret it to mean that the primary judge erred in not finding jurisdictional error in the Tribunal's finding that the applicant was not a credible, truthful or reliable witness. The Tribunal identified, at [29] of its reasons, the bases on which it said it had significant concerns about the applicant's credibility. The bases were her evidence as to past harm, why she came to Australia, why she lodged her protection visa applications, and what she feared upon return to Fiji. The Tribunal then set out a number of paragraphs giving specific reasons for its concerns about each basis: first, the applicant's evidence as to whether she left her job as a salesperson at a particular shop; secondly, about the applicant's claim to have remained in the job despite the ongoing and frequent sexual abuse; thirdly, about the applicant's inconsistent evidence concerning whether she had taken any action concerning the abuse; fourthly, what the Tribunal described as the applicant's evasive and changing evidence about when she and her husband separated; fifthly, what the Tribunal said was the vague, changing and not credible evidence concerning how long the abuse had been occurring before the applicant and her husband separated; sixthly, the inconsistent evidence about what the applicant's husband did when he found out about the "relationship" with the supervisor; seventhly, the evidence about why the applicant travelled to Australia with her husband whom she had divorced two months earlier; and eighthly, the Tribunal referred, at [60], to its failure to be satisfied that the applicant had been genuine about her past employment history. 21 In my opinion, there is no substance in this proposed ground. The Tribunal reached its conclusion as to the applicant's credibility by evaluating what she said by reference to objective facts and by reference to inconsistencies in what she had said. These findings were open to the Tribunal. 22 As to the applicant's submission that any inconsistencies in her evidence were a result of her psychological state, in my opinion that was a matter of fact for the Tribunal to decide. It does not appear that this submission was put to the primary judge. More importantly, this specific submission, and evidence in support of it, does not appear to have been put to the Tribunal. In this respect I note what the Tribunal said at [63]-[67], referring to the applicant being nervous and upset, that there was no medical evidence suggesting that her ability to answer questions was impaired. The Tribunal considered whether its concerns with the applicant's evidence could be explained by the evidence about the applicant's nervous condition and concluded that it could not. 23 In my opinion, there is no substance in either of the two proposed grounds of appeal, being proposed grounds 2 and 3, and the application for an extension of time and for leave to appeal should be refused, with costs. 24 The Minister applied for a costs order to be fixed pursuant to s 43(3)(d) of the Federal Court of Australia Act 1976 (Cth). The Minister relied on an affidavit of Elodie Jane Cheesman affirmed 1 August 2016 in this respect. On the basis of the estimates in that affidavit I order that the applicant is to pay the first respondent's costs in the specific sum of $2,690. The applicant said she did not know how she could pay the Minister's legal costs, but that is not a basis on which the Court would not make a costs order or award a party costs in a specified sum. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.