SZTGR v Minister for Immigration and Border Protection

The application for judicial review 15 Although the appellant's amended show cause application filed in the Federal Circuit Court on 5 December 2013 contained a number of grounds, the appellant ultimately pressed only one ground, stated as follows: (1) The Tribunal made jurisdictional error in that based on the hearing (A) there was no evidence for three of its findings and/or (B) it was unreasonable in making three of its findings shown below: Particulars (a) (CB 138 para. 21) - That the applicant has rehearsed her evidence about her relationship with Simran; and (b) (CB 138 para. 21 & 22) That she offered little detail beyond that set out in her written claim in relation to: (i) Relationship with Simran; and (ii) Home invasion in October 2011. 16 The Federal Circuit Court rejected that ground, concluding that the appellant had not demonstrated any jurisdictional error in respect of the impugned findings. The primary judge's reasons may be summarised as follows. 17 First, the impugned findings had to be viewed in the context of "the comprehensive rejection of the applicant's credibility". Secondly, the "impugned findings were not a critical step in the Tribunal's ultimate conclusion" that the appellant was not a credible witness. In this connection, the primary judge found that, when the Tribunal's decision is read as a whole, the impugned findings "formed only part of the Tribunal's concerns", which were amply supported by a large body of evidence. Thirdly, there was evidence to support the impugned findings, namely the appellant's own oral evidence given to the Tribunal. In this connection, the primary judge noted that the appellant's contention that there was "no evidence" was, in any event, problematic because there was authority to the effect that such a challenge is not available where the finding is, in substance, a negative one. Fourthly, it would be impermissible merits review for the Federal Circuit Court to engage in its own consideration of the appellant's oral evidence to form a view about whether it was rehearsed or lacking in detail. 18 With respect to the contention that the impugned findings were unreasonable, the primary judge reasoned that this contention did not, in the present case, translate into jurisdictional error. The impugned findings were open to be made on the evidence and, once again, were not critical steps bearing upon the Tribunal's required state of satisfaction with respect to the appellant's claims.

The appeal to this Court 19 The appellant's notice of appeal contains four grounds. Omitting the particulars provided, those grounds are stated as follows: (1) His Honour the learned Judge erred by his reasoning (akin to putting cart before the horse) where he referred to comprehensive rejection of credibility as the reason for the impugned findings whereas the impugned findings were part of the considerations in the assessment of the credibility. (2) His Honour the learned Judge erred by holding that the impugned findings were not a critical step to the ultimate conclusion. (3) His Honour erred in holding that there was evidence to support the impugned findings. (4) His Honour misunderstood the legal issue that was before his Honour. 20 Before considering the appellant's submissions, it is convenient to make some observations about the nature of the impugned findings. 21 The first impugned finding - that the appellant's oral evidence regarding her claimed relationship with Simran impressed the Tribunal as rehearsed rather than reflecting the appellant's recollection of her own true past experiences - is no more than a statement of the Tribunal's impression of the oral evidence given by the appellant about a particular matter. The second and third impugned findings - that the appellant's oral evidence regarding her claimed relationship with Simran and the claimed break-in, respectively, offered little detail beyond that set out in the appellant's written claims - were no more than observations about the extent of the evidence given on those matters by the appellant. 22 These "findings" were of a subsidiary nature and, at their highest, represented no more than intermediate findings on certain aspects of the evidence before the Tribunal. It may be accepted that each finding was part of the Tribunal's reasoning process. Each finding, together with other findings, can be taken to have played a role in the Tribunal's implicit rejection that the appellant had a same-sex relationship with Simran or that the break-in occurred, at least in the way that the appellant had claimed it to have occurred. These findings, in their own turn, and taken with other findings, can be taken to have to played a role in the Tribunal's lack of satisfaction that the appellant had a same-sex relationship or had the sexual orientation she claimed, or experienced past harm or adverse treatment in Fiji on the basis of her claimed actual or perceived sexual orientation. In their own turn, these subsequent findings can be taken to have played a role in the formation of the Tribunal's conclusion that the appellant did not have a well-founded fear of persecution for a Convention reason should the appellant return to Fiji. But the impugned findings should not be confused with, and should be distinguished from, all other factual findings by the Tribunal leading to the Tribunal's ultimate conclusion that the appellant is not a person in respect of whom Australia owes protection under s 36(2)(a) of the Migration Act 1958 (Cth). In my view, it cannot be reasonably argued that the impugned findings were "critical" findings in the sense in which it has been held, at least in this Court, that, where a fact is a critical step in a conclusion which has been reached, and there is "no evidence" to support that fact, there may be jurisdictional error: see, for example, Jessup J's analysis in Australian Postal Corporation v D'Rozario and Others (2014) 222 FCR 303 at [52]-[67], Bromberg J agreeing at [106]-[117]. 23 It should also be noted that the impugned findings were made with respect to and, therefore, were plainly based on, the appellant's oral evidence. Thus, the appellant cannot contend that there was "no evidence" for these findings. In this connection, an allegation of "no evidence" is to be contrasted with an allegation of insufficiency of evidence, the latter allegation plainly relating to the weighing of available evidence. 24 I would also add that the Tribunal's impression that the appellant's evidence was rehearsed rather than reflecting the appellant's recollection of her own true past experiences is not one that is readily susceptible to challenge. The accuracy of such impressions, even if available to be challenged, cannot be communicated simply by reading a transcript of the evidence given. So too with the Tribunal's finding in relation to the appellant's overall credibility. Here, of course, the Tribunal gave detailed reasons for its conclusion that it was not satisfied of the truth of significant aspects of the appellant's claimed circumstances in Fiji, including her claimed sexual orientation. 25 It follows from these observations that, in my view, grounds 2 and 3 of the appeal cannot be sustained and fail at the outset. 26 I turn now to consider the appellant's first ground of appeal. 27 The first ground of appeal focuses on [20] of the primary judge's reasons. In that paragraph, the primary judge said that the Tribunal's reasons concerning its disbelief about the appellant's alleged relationship with Simran and her claim of a break-in (his Honour said, "home invasion") in October 2011 must be viewed in the context of the Tribunal's decision as a whole and, specifically, in the context of "the comprehensive rejection of the appellant's credibility". The primary judge reasoned that, when so viewed, the appellant had not demonstrated jurisdictional error in respect of the impugned findings. 28 It is necessary to set out [20] of his Honour's reasons in full: 20. Viewed in the context of the Tribunal's decision as a whole, the Tribunal's reasons concerning its disbelief about the applicant's alleged relationship with "Simran" and her claim of a home invasion in October 2011 are less problematic than is claimed by the applicant. While it may appear odd that the Tribunal reasoned that her consistent claims concerning Simran were rehearsed, after finding that her claims about Sheena were inconsistent, and that she had given little detail about the home invasion when many aspects of her claim were highly detailed and were examined by the Tribunal at a hearing of approximately three hours, viewed in the context of the comprehensive rejection of the applicant's credibility, I am not persuaded that the applicant has demonstrated any jurisdictional error in respect of the two impugned findings. In this regard, I agree with the Minister's submissions. 29 The appellant submits that, in this part of the primary judge's reasons, his Honour "put the cart before the horse". The impugned findings could not be viewed "in the context of the Tribunal's decision as a whole" or "in the context of the comprehensive rejection of the appellant's credibility" because, the appellant says, these findings form part of the reasons for the decision as a whole and the Tribunal's comprehensive rejection of the appellant's credibility. The appellant submits that the primary judge dealt with the impugned findings as if the Tribunal's overall credibility finding was the basis for those findings. 30 I do not accept that submission. However, this is not to say that there are no difficulties with the primary judge's reasoning. 31 To begin with, I do not read [20] of the primary judge's reasons as stating that the Tribunal's overall credibility finding was the basis for the impugned findings. However, it is to be remembered that the impugned findings are the three findings specifically identified in the grounds of review that were before the Federal Circuit Court. 32 It is apparent that, in [20] of the primary judge's reasons, his Honour was addressing the Tribunal's rejection of the fact that the appellant had a same-sex relationship with Simran and the Tribunal's rejection of the fact that the appellant was the victim of a break-in, as she had claimed. Thus, when stating in [20] that jurisdictional error had not been established in respect of "the two impugned findings", the primary judge was addressing the Tribunal's implicit finding that the appellant was not in a same-sex relationship with Simran and the Tribunal's implicit finding that the appellant was not the victim of the break-in she had claimed. It was the making of these two findings which, the primary judge said, must be viewed in the context of the comprehensive rejection of the appellant's credibility. 33 In my respectful view, that was the correct way to view those findings, but they were not the three findings which the appellant had identified in her amended show cause application as the findings under challenge. The three findings identified in the appellant's amended show cause application were findings anterior to the findings addressed by the primary judge. There is no suggestion in the primary judge's reasons that, before the Federal Circuit Court, the appellant advanced a case that was not the one identified in the amended show cause application. To that extent, therefore, it seems to me that, in [20], the primary judge misdirected himself and, thereby, erred. 34 That said, in other parts of the reasons, it is clear that the primary judge was directing his attention to the three impugned findings. For example, in [27]-[28], the primary judge said: 27. The Tribunal considered the applicant's oral evidence and formed the view that her evidence about her relationship with Simran was rehearsed, and that her evidence about her relationship with Simran and a claimed home invasion offered little detail beyond that set out in her written claims. It is well settled that credibility is a factual determination for the Tribunal. In my opinion, those views were open to the Tribunal on the material before it. 28. For the Court to engage in its own consideration of the applicant's oral evidence and form a view as to whether it was rehearsed or lacking in detail would be to engage in impermissible merits review. 35 It is also clear that, earlier, in [23]-[24], the primary judge was dealing with the finding that the appellant's claim concerning the break-in offered little detail beyond that set out in the written claims: 23. I also accept that, with respect to the Tribunal's finding that the applicant's evidence offered little detail beyond that set out in her written claims concerning the alleged home invasion, that finding was akin to a finding in the negative. There is authority that the "no evidence" ground is not available where the finding challenged is in substance a negative one. The Minister relies upon the decision of the Federal Court in Sunchen Pty Ltd v Commissioner of Taxation. I accept, however, from the applicant's submissions, that the legal position concerning the no evidence ground is not as simple as that contended for by the Minister. 24. It is, however, unnecessary in this case to resolve the dispute on that point of principle because I am persuaded that there was evidence to support the impugned findings by the Tribunal. 36 Notwithstanding my finding that, in [20] of the reasons, the primary judge erred by not addressing the impugned findings, I do not think that that error means that the primary judge was in error in the ultimate conclusion to which he came, namely that the Tribunal's decision is not affected by jurisdictional error. 37 In my view, a fair reading of the Tribunal's reasons shows that its concerns about the appellant's credibility did not stop at the point where it found the appellant's oral evidence and written claims to be inconsistent. Having noted that the appellant's evidence regarding her claimed relationship with Simran was consistent with her written claims, albeit offering little beyond what was set out in her written claims, the Tribunal specifically stated (at [21]) that it viewed that claim "in the context of the significant and cumulative concerns identified in the balance of the Tribunal's considerations". It was in that context that the Tribunal went on to make the finding - that is, the statement of its impression - that the appellant's evidence in respect of that claim was "rehearsed rather than reflecting the applicant's recollection of her own true past experiences". It is to be noted, in that connection, that the Tribunal had earlier rejected the appellant's claims to have had same-sex relationships with Priya and Sheena, for the detailed reasons which the Tribunal gave. 38 I can see no jurisdictional error in [21] of the Tribunal's reasons when dealing with the appellant's claim to have had a same-sex relationship with Simran. 39 Similarly, having noted that the appellant's evidence about the claimed break-in was largely consistent with her written claims, although, once again, offering little further detail, the Tribunal went on to consider, as it was entitled to do, the appellant's evidence concerning police contact on that and other occasions. The Tribunal considered this evidence to be "vague and changing". This part of the Tribunal's reasons cannot be reasonably read as standing outside the Tribunal's statement of its overall assessment of the appellant's credibility. Once again, I can see no jurisdictional error in that conclusion. 40 In her written submissions, the appellant submits that the Tribunal did not have valid reasons for rejecting "the oral claims that were consistent with the written claims". The appellant points to the "further evidence" that she provided orally in respect of her claimed relationship with Simran and the break-in. The appellant also raises other arguments as to why the Tribunal should not have rejected these claims. 41 These submissions are, in substance, no more than an invitation to the Court to engage in an evaluation of the evidence before the Tribunal to determine its sufficiency for the conclusions to which the Tribunal came concerning its lack of satisfaction that the appellant had a same-sex relationship with Simran and that the applicant had been the victim of the break-in she had claimed. Plainly, that is not the task of the Court on this appeal. Similarly, as the primary judge recognised, it was not the task of the Federal Circuit Court when undertaking judicial review of the Tribunal's decision. 42 The appellant's second ground of appeal is that the primary judge erred in concluding that the impugned findings were not a critical step to the Tribunal's ultimate conclusion. I have already found that that ground of appeal cannot be sustained. 43 The appellant's third ground of appeal is that the primary judge erred in holding that there was "no evidence" to support the impugned findings. I have also found that that ground of appeal cannot be sustained. 44 As to that ground, the appellant also submits that a finding that evidence is "rehearsed" cannot be made arbitrarily. The appellant submits that there must be a basis for that finding and that basis is an issue that is "examinable" by the Court. 45 In my view, there is nothing on the face of the Tribunal's reasons that shows that, in coming to the conclusion that the appellant's evidence concerning Simran was rehearsed, the Tribunal was acting capriciously, unreasonably, irrationally, illogically or in any other way that would indicate that it failed to properly exercise its functions in a way that could possibly amount to jurisdictional error. 46 The appellant's fourth ground of appeal is that the primary judge mistook the legal issue that was before him. In that connection, the appellant submits that the primary judge erroneously thought he was being invited to engage in a merits review of the Tribunal's decision. The appellant submits that, in fact, the primary judge was being asked to consider whether there was evidence before the Tribunal which would enable it to make the impugned findings. This ground is obviously related to the third ground of appeal. 47 In order to consider this ground, it is necessary to set out [24]-[28] of the primary judge's reasons dealing with the "no evidence" issue: 24. It is, however, unnecessary in this case to resolve the dispute on that point of principle because I am persuaded that there was evidence to support the impugned findings by the Tribunal. 25. To establish error on the basis that there was "no evidence" one must cross a high threshold: What must be remembered here is that, to make out his "no evidence" assertion, let alone to show that legal error is revealed, the threshold is set, as stated, at "no evidence". That is, if there is some evidence (even a "skerrick") to support the reviewer's finding, then no legal error is revealed (Shop, Distributive and Allied Employees Association v National Retail Assn (No 2) [2012] FCA 480 at [31] per Tracey J). Even where some subsequent miscalculation may have occurred on the part of the decision maker, that would be an error in a finding of fact which would not lead to jurisdictional error (MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 at [28] per Black CJ, Sundberg and Bennett JJ). 26. In my view, the applicant's case fails to clear this threshold. There was evidence before the Tribunal to support the impugned findings, being the applicant's oral evidence given at the Tribunal hearing. 27. The Tribunal considered the applicant's oral evidence and formed the view that her evidence about her relationship with Simran was rehearsed, and that her evidence about her relationship with Simran and a claimed home invasion offered little detail beyond that set out in her written claims. It is well settled that credibility is a factual determination for the Tribunal. In my opinion, those views were open to the Tribunal on the material before it. 28. For the court to engage in its own consideration of the applicant's oral evidence and form a view as to whether it was rehearsed or lacking in detail would be to engage in impermissible merits review. 48 In my view, when these paragraphs of the primary judge's reasons are considered, it is clear that his Honour did not misdirect himself, as the appellant contends. Having found that there was evidence before the Tribunal relating to the three impugned findings, the primary judge, at [28] of his reasons, simply made the unremarkable observation that it is not for the court to engage in its own evaluation of the appellant's evidence to form its own view that the evidence was rehearsed or lacking in detail. No error, as alleged, has been established by the appellant.

Disposition 49 For these reasons, each ground of appeal is rejected. The appeal will be dismissed, with costs. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.