SZUSP v Minister for Immigration & Border Protection

JUDGE: GILMOUR J DATE: 19 November 2015 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant, now aged 36 years, is a citizen of Turkey who arrived in Australia on 14 August 2011. His application for a protection (Class XA) visa was refused by the first respondent's (Minister) delegate on 24 January 2013. Upon review, the second respondent (Tribunal) affirmed the delegate's decision. The Federal Circuit Court of Australia dismissed an application for review of the Tribunal's decision: SZUSP v Minister for Immigration & Anor [2015] FCCA 656. He appeals from that judgment to this Court.

The Tribunal's decision 2 The following summary, which is not controversial, is mainly adopted from the Minister's written submissions. 3 The appellant claimed to fear persecution in Turkey for reason of his race and imputed political opinion. He claimed to be a Kurd and a member of the Kocgiri tribe and, because of this, to have suffered discrimination and harassment. He visited Switzerland for a week in 2009. He claimed he was arrested and detained and assaulted for three days by police in July 2010. He claimed that since his departure for Australia the police had visited his home on a number of occasions. 4 The Tribunal in its reasons noted significant concerns with the credibility of the appellant's claims and evidence as a whole and formed a strong impression that he had "misconstrued and exaggerated" his actual experiences to form the basis for his protection visa claims. It rejected the appellant's claims to have experienced discrimination in Turkey, noting that his education and employment history, family circumstances, trip to Switzerland in 2009 and limited evidence from the appellant of discrimination against other family members all suggested that the appellant had not experienced any official or societal discrimination of note. 5 The Tribunal considered that the appellant's return trip to Switzerland cast doubt on the veracity of his claims up to that time; the appellant's account of his experiences prior to his trip was highly unreliable. The Tribunal further considered the appellant's claims of harm after his return from Switzerland, in particular the alleged arrest and detention in July 2010, to be untrue, noting difficulties with the appellant's evidence and his choosing to remain in Turkey for another year. The Tribunal also disbelieved the appellant's claim that since his departure the police had visited his home. 6 The Tribunal concluded that while the appellant may have faced some discrimination in the past this did not rise to the level of "serious harm", and that his claim to have been detained and assaulted by the police, and that the police came looking for him after his departure from Turkey, was untrue. The Tribunal accordingly concluded that the appellant's fears of Convention-related persecution were not well founded and for the same reasons found that he was not entitled to protection under the "complementary protection" provisions of the Migration Act 1958 (Cth) (the Act).

The Federal Circuit Court's decision 7 The appellant, before the Federal Circuit Court, contended that the decision was vitiated by the following jurisdictional errors: (a) the Tribunal denied the applicant procedural fairness by basing its decision on speculation and guesswork, and not on reasonably probative evidence; (b) the Tribunal's decision was affected by apprehended bias in that it misrepresented the evidence before it and unreasonably dismissed other evidence; (c) the Tribunal's decision was irrational and/or illogical; (d) the Tribunal failed to carry out its statutory responsibility by failing to comply with Ministerial Direction No. 56 - consideration of Protection Visa Applications (Direction No. 56) made by the Minister under s 499 of the Act.

Procedural fairness 8 The appellant contended that the Tribunal made the following findings based on mere speculation or guesswork: (a) the Tribunal formed the strong impression that the then applicant had taken a number of actual life experiences and misconstrued and exaggerated these to form the basis of his protection claims; (b) his employer's willingness to accommodate an unscheduled week or so of absence is surprising given the applicant's other claim that from about October 2009, he was subject to bullying after his supervisor's husband discovered his Alevi Kurd and Kocgiri links; (c) the Tribunal considers that, if the applicant's employers were really interested in his place of origin and background, there would have been ample chance to examine his documentation and make enquiries during the recruitment process, without relying on secret military dossiers; (d) the Tribunal found on the available evidence that the applicant worked until February 2011, and was either dismissed for performance-related reasons or left of his own accord; (e) the Tribunal was not satisfied that the police were acting in a discriminatory or improper way; (f) the Tribunal disbelieves that the Turkish police detained, interrogated, mistreated, threatened or otherwise psychologically harmed the applicant, including forcing him to sign unknown documents, in July 2010. 9 This ground was rejected by the primary judge at [12] given the adverse credibility findings made by the Tribunal concerning the appellant. These findings had a rational basis in the view of the primary judge.

Apprehended bias 10 The primary judge concluded that the Tribunal's statements during the hearing evidenced a disbelieving mind but not a closed mind. He concluded that the Tribunal was merely unpersuaded by the then applicant's supporting statements which were afforded little weight: at [19], [21].

Illogical and/or irrational 11 The primary judge rejected this ground as without foundation in fact and as being contrary to authority.

Statutory duty - complementary protection 12 This ground too was rejected. The primary judge concluded that the Tribunal's assessment, whilst brief, was squarely based on the complementary protection criteria under s 36(2)(aa) of the Act and in particular that such harm as the applicant had suffered or might suffer did not constitute "significant harm" for the purposes of s 36(2A) of the Act.

The appeal 13 The appeal grounds are essentially a reiteration of those before the Federal Circuit Court except that in relation to the procedural fairness ground the appellant asserts that the primary judge applied the wrong test.

Procedural fairness 14 I do not accept that the primary judge made such an error. In any event, the appellant still requires to demonstrate jurisdictional error on the part of the Tribunal. 15 The appellant does not contend that the Tribunal must have evidence available to it before it can disbelieve an applicant's account, but submits that when there is probative evidence to support an applicant's claim, the Tribunal cannot dismiss that claim without reasonable probative evidence to support that dismissal. 16 He submits that where it does dismiss a claim without such reasonable probative evidence there is a reasonable implication that it has done so based on speculation and/or guesswork. 17 The appellant submits that his claims were supported in writing by: (a) a doctor; (b) a psychologist; (c) the President of the Australia Alevi Cultural Centre; (d) the appellant's university classmate; (e) a friend who witnessed the events; (f) his parents; (g) his sister; (h) his solicitor. 18 He then submits that a failure to base a finding on reasonably probative evidence and to do so on speculation and/or guesswork is a denial of procedural fairness, citing the decision of Deane J in Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 and Rawson Finances Pty Ltd v Commissioner of Taxation (2013) 133 ALD 39 per Jessup J at [62] and Jagot J at [84]. 19 The Federal Circuit Court dismissed this claim on the basis that "there was a rational basis of reasoning for the Tribunal to discount each of the statements relied upon by the applicant" (at [15]). This he submits was not the correct test which is set out in Pochi and Rawson Finances, namely, whether there was reasonable probative evidence to support the conclusion reached by the Tribunal or whether it was based on speculation or guesswork. 20 There was thus, he submits, an intermingling of the correct test with the test for irrationality or illogically. This, he submits, was jurisdictional error. 21 I do not accept these submissions. The primary judge in his reasons at [10]-[14] referred to the case law setting out the test as relied upon by the appellant. 22 The Tribunal does not need rebutting evidence before deciding that a particular claim is not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348. The primary judge, correctly in my view, concluded (at [15]) that the Tribunal's reasons provide rational reasons for rejecting the evidence proffered by the appellant. Once the Tribunal concluded that the appellant was not credible it was not bound to accept his oral evidence or the supporting documentary evidence: Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 per North and Lander JJ at [23]-[40], per Katzmann J at [50]. In that case, North and Lander JJ (Katzmann J agreeing) stated at [36]: When a decision-maker has conducted a hearing of the kind which is conducted by the RRT and has heard the applicant, and has reached the tentative conclusion that the applicant's claims have been fabricated, the decision-maker is entitled in our opinion to reject evidence which would, if accepted, have corroborated the applicant's account. That does not mean that any evidence of corroboration could be rejected. It would depend upon the nature, content and quality of the corroborative evidence before a decision-maker could determine to reject it out of hand. … In circumstances where the provenance of the document is unproved, but it is proffered by a witness whose credibility has been destroyed, the document has no more credit than the person proffering it. 23 As their Honours observed at [33]-[35], concerning the same point of principle, the Tribunal there weighed particular evidence against other evidence but was not persuaded by the particular evidence enough to alleviate its concerns in relation to the whole of the respondent's evidence. That, in effect, is what occurred in the present case. These principles are not inconsistent with what was said by Jagot J in Rawson Finances at [84]: "[I]f there is no probative evidence of a fact and no logical grounds to support the fact, the finding of that fact will involve error of law." 24 Here none of the asserted authors of what were said to be corroborative statements including, apparently, his doctor, friends, relatives and a solicitor were called by the appellant to give oral testimony. One of the supposedly corroborative statements was given by the appellant's sister who lives in Australia. Nonetheless, not even she was called to give oral evidence. The Tribunal's findings were open to it and so cannot be said to be based on "speculation and/or guesswork". 25 The Tribunal's finding that the appellant was not credible and his claims exaggerated or untrue is a finding of fact par excellence: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 58 ALD 609 per McHugh J at [67]. 26 There was no procedural unfairness. This ground fails.

Apprehended bias 27 The appellant submits that the Tribunal approached its task as one in which it was looking for ways to dismiss his claims. 28 He amplifies this submission by asserting that rather than considering his evidence in total before making a finding as to his credit, the Tribunal listened to him, made a finding as to his credit and then dismissed the supporting evidence which he adduced. In particular, he points to the following conclusion of the Tribunal: The supporting evidence, all prepared during the course of and for the purpose of this application, does not dispel the Tribunal's concerns about the truthfulness of the applicant's claims. … The Tribunal notes that the applicant has produced some supporting statements referring to these incidents, for instance from his friend Ms Didem Kocman, who claims to have been with him in May 2011. These do not displace the Tribunal's concerns as set out above. . . . The Tribunal is not satisfied that a lawyer would genuinely believe or speculate that the Turkish authorities would be looking to blame the applicant - who has been out of the country for several years, and has no prior adverse criminal or political profile - for recent political unrest in Turkey. 29 The Tribunal found at [54] and [62] of its reasons: The Tribunal has considered the supporting documents that the applicant submitted … This appears to have been prepared for use in this application. The Tribunal considers that the letters from the applicant's relatives, and their contents, were scripted to assist the applicant in this application. The Tribunal places very little weight on these letters as independent evidence to support the applicant's claims. 30 The appellant submits that if an applicant's evidence is dismissed simply because it was generated to support a claim or review there would seem little point in an applicant seeking supporting material to support their claim as the Tribunal would simply dismiss the material because it was "scripted to assist the applicant in this application." 31 Rather, he submits that it is logical for an applicant to provide corroboration for his account of what happened to him from those who would have seen first-hand the results of those incidents: his family, his friends and his solicitor. 32 This is a somewhat disingenuous submission. Given the rejection by the primary judge of the appellant's version, based in adverse credit findings, it was open to him to also reject evidence advanced as corroboration. Indeed, the word "scripted" has, in my view, been employed by the Tribunal as a euphemism for "concocted". This is apparent from the Tribunal's reasons at [62] where it positively rejected evidence which had been "corroborated" by statements from others. 33 The appellant complains in particular as to the Tribunal's treatment of his psychological evidence. 34 The appellant's psychologist, Dr Reza Pishyar provided two reports. In the first, dated 16 December 2013, Dr Pishyar opined as follows: In my professional opinion, [the Applicant] is unable to attend to his appointment with the RRT hearing on 19 December 2013 due to his mental incapacity and require to attend to his psychotherapy sessions for improving his coping and adjustment strategies … His current psychological symptoms are included poor memory and concentration and feeling of agitation and irritability. (Errors in original.) 35 In the second report, dated 20 January 2014, Dr Pishyar opined as follows: In my professional opinion, [the Applicant's] current mental health condition is related to his past traumatised experiences in Turkey and … his current immigration status in Australia. [The appellant's] psychological symptoms are included: 1. Poor memory and concentration. 2. Poor sleeping and wakening early morning. 3. Feeling of hopelessness and helplessness. 4. Feeling of agitation and irritability. Given the chronic course of his mental instability and accuse [sic] phase of his psychological condition, it is unlikely that he will improve enough in the future. (Errors in original). 36 The Tribunal dealt with the issue of the appellant's mental health at [16]-[17] of its reasons: The Tribunal is satisfied, based on its observations of him at the hearing and the many submissions that it has received from the Applicant and his representative, that the applicant was competent to give evidence and, overall to present his case. … The health care professionals the applicant consulted appeared to have accepted the applicant's account of his experiences in Turkey, and readily attributed at least some of his health problems to the traumatic after-effect of those experiences. Details are lacking as to whether they critically evaluated the applicant's assertions, and if, so on the basis of what professional expertise. 37 The appellant submits that the Tribunal, faced with these reports, dismissed them due mainly to its own lay observations of the appellant as well as questioning the diagnostic rigour of the appellant's psychologist. 38 It is this approach by the Tribunal in dismissing the appellant's evidence which, the appellant submits, leads to the clear inference in the mind of a well-informed onlooker that the Tribunal has approached its task with a closed mind and looked for ways to reject the application, thereby demonstrating a reasonable apprehension of bias. 39 The appellant submits that the conclusion of the primary judge in his reasons at [19] that "[t]he statements indicate a disbelieving mind, but not a closed one" is a distinction without a difference. Rather, he submits a disbelieving mind is, at least, an indication that the Tribunal brought a closed mind to its decision making process which leads to a conclusion of apprehended bias. 40 As the primary judge noted at [20], it will be a rare case where apprehended bias can be demonstrated from the Tribunal's reasons alone: Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 at [18] per North and Lander JJ. Moreover, as the Minister correctly submits, the attribution of little or no weight to supporting evidence because of concerns about an applicant's credit is not evidence of bias: see SZNPG at [25], [37]. 41 The rationale for the attribution by the Tribunal of little weight to the appellant's medical evidence at [17] of its reasons turns on the Tribunal's rejection of the appellant's account of his past history to the practitioners concerned. It was not their diagnostic expertise which his Honour questioned but rather the underlying premises of those opinions which depended upon an uncritical acceptance of the appellant's history provided to them by him. As the Tribunal notes at [15] of its reasons, it rescheduled the original hearing because of the appellant's medical evidence. No submission was made or evidence put below that the appellant was unfit to attend the rescheduled hearing in the sense of him being incapable of giving evidence or being denied a "real and meaningful" opportunity to participate in the hearing: Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 at [30]-[34]. As the Minister submits, the Tribunal was entitled to form its own view on the appellant's fitness to give evidence at the rescheduled hearing, and this view is entitled to weight: NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 56 at [68]-[69]; see also SZOVP v Minister for Immigration and Citizenship (2012) 126 ALD 290 at [37]-[38]. That it formed such a view does not evidence apprehended bias. 42 This ground has not been established.

Illogical and irrational 43 As the appellant correctly submits, where reasoning on critical facts can be shown to be irrational, illogical and not based on findings or inferences of fact supported by logical grounds, this may amount to jurisdictional error: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224 at [37]-[38]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 per Gummow ACJ and Kiefel J at [40] and [53] and per Crennan and Bell JJ at [130]. 44 The appellant contends that the following reasoning of the Tribunal concerning events at his place of work reflects irrational and/or illogical reasoning: His employer's willingness to accommodate an unscheduled week or so absence is surprising, given the applicant's other claim that from about October 2009, he was subject to bullying after his supervisor's husband discovered his Alevi Kurd and Kocgiri links. 45 He contends that his employer and supervisor are two different people. The Tribunal found at [21] of its reasons that he worked for Migro Bilgit Kayit ve Dagitim, a "Technical and Scientific Information" company. He submits that in such a company it is "probable" that the "employer" and the "supervisor" are different people. 46 This complaint, even if its asserted factual basis is correct, is but "little more than an argument with a very minor aspect of the Tribunal's decision" as the primary judge correctly concluded at [24] of his Honour's reasons. 47 It does not warrant a conclusion that the Tribunal's decision, in relation to its state of satisfaction under s 65 of the Act, is one at which no rational or logical decision maker could arrive. Accordingly, illogicality is not established.

Statutory duty - complementary protection 48 Section 499 of the Act provides: (1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about: (a) the performance of those functions; or (b) the exercise of those powers. … (2) Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations. 49 Direction No. 56 is such a direction. Clause 2 provides: 2. In performing functions or exercising powers under section 65, 414 or 415 of the Act, the decision-maker is to take account of the following guidelines prepared by the Department of Immigration and Citizenship to the extent that they are relevant to the decision under consideration. 50 The appellant submits that the Tribunal was not required to take account of Direction No. 56 as it found that it ought to have, as that direction is an invalid exercise of the power contained in s 499 of the Act as it required a decision-maker to take account of a policy. It thus, he contends, elevated Direction No. 56, which is mere policy, to the status of legislation. 51 This new point, not raised below, was, shortly before the appeal, notified to the Minister but at a very general level and without specificity. To that extent the Minister was taken by surprise. I would refuse leave to advance this point for that reason. In any event, I was not persuaded by the appellant's novel submission. 52 The Tribunal is required, by s 499(2A) of the Act, to comply with a direction given by the Minister under s 499(1) of the Act. Direction No. 56 at cl 2 requires the decision-maker to "take account of … guidelines" and "to the extent that they are relevant" to the decision under consideration. It is not immediately apparent why such a written direction by the Minister, as Direction No. 56 would constitute an invalid exercise of the power contained in s 499. 53 By s 499(2) the Minister is not empowered to give directions that would be inconsistent with the Act or the relevant regulations. No such argument was attempted by the appellant. Direction No. 56 in any event, does not purport, self-evidently, to impose policy. 54 The appeal should be dismissed. The appellant must pay the Minister's costs. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.