FEDERAL COURT OF AUSTRALIA

Avesta v Minister for Immigration & Multicultural Affairs [2002] FCAFC 121

MIGRATION – citizen of Iran – whether the primary judge erred in rejecting a challenge to the Refugee Review Tribunal’s affirmation of the refusal to grant the appellant a protection visa – whether the primary judge erred in law in failing to find that the Tribunal had reached findings not supported by any probative material or logical grounds and had no rational, evidential or logical basis – whether the primary judge erred in law in finding that it was open to the Tribunal to conclude that there were significant inconsistencies in the appellant’s evidence – whether the primary judge erred in law in finding that it was open to the Tribunal to conclude that the appellant’s evidence was implausible on any material issue – whether the “facts” referred to are “facts” of the kind referred to in the former s 476(1) Migration Act 1958 (Cth) 

WORDS AND PHRASES – “particular fact”

Migration Act 1958 (Cth) s 476 (since repealed), s 430, Part 8 (since repealed)

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, referred to

Puhlhofer v Hillingdon London Borough Council [1986] AC 484, cited

Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (1999) 74 ALJR 405; 168 ALR 407, cited

Minister for Immigration and Multicultural Affairs v Epeabaka (1998) 84 FCR 411, cited Minister for Immigration and Multicultural Affairs v Perera [2001] FCA 1212, cited

Minister for Immigration and Multicultural Affairs v Rajamanikkam (2000) 179 ALR 495, referred to

HOSSEIN AVESTA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

No W 335 of 2001

SPENDER, O’LOUGHLIN, GYLES JJ

PERTH

10 MAY 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed, with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

1                     This is an appeal from a judgment of a single judge of the Court (French J) who on 11 July 2001 dismissed an application to review a decision of the Refugee Review Tribunal (the Tribunal) made on 26 February 2001, whereby the Tribunal affirmed a decision of the delegate of the Minister made on 22 November 2000 not to grant a protection visa to the appellant. The decision the subject of this appeal was prior to the commencement of the regime which was introduced by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) No 134 of 2001.

2                     The appellant is a citizen of Iran who arrived in Australia in November 1999 and was interviewed by an officer of the Department of Immigration and Multicultural Affairs (the Department) on 28 November 1999.  He made an application to the Department for a protection visa on 11 May 2000.  On 22 November 2000, the delegate of the respondent Minister made a decision to refuse to grant the appellant a protection visa.   The Tribunal, in affirming that decision, said:

“… having regard to the inconsistencies in the [Appellant’s] evidence identified above and to the fact that I consider the [Appellant’s] account to be implausible for the reasons given above, I do not consider … the [appellant] … can be accepted as [a] credible witness.”

3                     The appellant was unrepresented before the primary judge.  Mr M. Howard of counsel, who appeared pro bono for the appellant on the appeal, obtained leave to substitute two appeal grounds for those which the appellant had formulated.  Those substituted grounds are:

“1.    The learned primary Judge erred in law in holding that the Refugee Review Tribunal (‘RRT’) decision of 26 February 2001 was not reviewable pursuant to subsection 476(1) of the Migration Act (the ‘Act’) when the learned primary Judge ought to have held that the RRT decision was reviewable pursuant to paragraphs 476(1)(e) and (g) of the Act in that there was no basis for the RRT to reject the [appellant’s] evidence and there was no evidence or other material to justify the making of the decision by the RRT.

2.      The learned primary Judge erred in law in holding that the RRT decision was not reviewable pursuant to subsection 476(1) of the Act when the learned primary Judge ought to have held that the RRT decision was reviewable pursuant to paragraphs 476(1)(e), (b) and (c) of the Act in that the RRT rejected key parts of the [appellant’s] evidence and claims as being implausible where the RRT had no rational, evidential or logical basis to reject such evidence and claims, and so reached findings which were not supported by any probative material or logical grounds.”

4                     The grounds upon which the decision of the Tribunal in this case might be reviewed by the Federal Court are set out in the former s 476 of the Migration Act 1958 (Cth) (the Act) which, in the parts relevant to the present appeal, provided:

“(1)  Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

…

(b)          that the person who purported to make the decision did not have jurisdiction to make the decision;

(c)          that the decision was not authorised by this Act or the regulations;

…

(e)          that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

…

(g)          that there was no evidence or other material to justify the making of the decision.

…

(4)      The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

…

(b)     the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”

5                     What were said by the Tribunal to be significant inconsistencies in the evidence of the appellant were summarised by the primary judge as follows:

“1(i)        In his original application the [appellant] said he had been offered good money to deliver a load of guns and ammunition to General Ahmad Shah Massoud’s forces in Afghanistan.

(ii)                   At the hearing he said he had not been told where in Afghanistan they wanted him to take the load but that the ammunition was to be delivered to the opposition to the Taliban ‘Massoud or whatever’.

2(i)         In the statement accompanying his original application, the [appellant] said that when he had complained to the courts in Mashhad and Tehran he had been told that as the Islamic leader had ordered that his truck be confiscated there was nothing that the courts could do about it.

(ii)               At the hearing before the Tribunal, the [appellant] said for the first time that the Taliban had taken the trucks and had not returned them or the cargo and they had killed many of the drivers as well.

3(i)       In the statement accompanying his original application, the [appellant] said he had been held in Evin for ten days.

(ii)           Interviewed by the primary decision-maker, the [appellant] said his protest with the placard had taken place almost at the end of the fifth month in the Iranian calendar (about mid August 1999) and that he had been held in Evin Prison for about two months.

(iii)         At the hearing he said he had only been in prison for ten days and that when he had been released on bail he had been given a date in a month’s time to appear before the Revolutionary Court.

4(i)     In his original application, the [appellant] said that after being detained in Evin Prison he was taken before a Revolutionary Court where the judge told him that they had a photograph of him taking part in a demonstration against the government, that he had insulted the leader and Islam, that he would be tried in one month and that he would receive eighty strokes of the cane and a minimum of ten years imprisonment.

(ii)       Interviewed by the primary decision-maker, the [appellant] said he had been taken before the Revolutionary Court at the Evin complex where the judge had set a date for hearing.

(iii)     At the hearing before the Tribunal, the [appellant] said he had not been taken before a Revolutionary Court but to the Prosecutor’s Office in Evin Prison where he had been given a date in a month’s time to appear before the Revolutionary Court.  It was a Mullah in the Prosecutor’s Office who had told him that he would face a minimum of ten years in prison.”

6                     The Tribunal also considered that the appellant’s account was implausible, which the primary judge took to mean “inherently improbable”.  The Tribunal identified six aspects which it characterised as implausible:

(a)          that by October 1998 it would have been possible for the Iranian Government to supply the Northern Alliance by trucks across the border into Afghanistan;

(b)         that the appellant would be asked to take arms and ammunition to the forces opposing the Taliban in Afghanistan in mid-September to mid- October 1998 as the Taliban controlled the border between Afghanistan and Iran and had control of it for some years;

(c)          that the Iranian authorities could have contemplated sending 140-150 trucks carrying arms and ammunition across the border into Afghanistan when the Iranian Government had massed its troops on the border;

(d)         that the appellant would have been told he was going to be sentenced to a minimum of ten years for his activities;

(e)          that the Government would have viewed the appellant’s lone protest as warranting a minimum of ten years imprisonment;

(f)           that the appellant would have been released on bail after having been told that he was going to be sentenced to a minimum of ten years in prison.

7                     The conclusion of the Tribunal that there were significant inconsistencies in the appellant's accounts was the subject of guarded criticism by the primary judge, who said:

“I have reservations about whether some of the matters identified as ‘inconsistencies’, were in truth such, whether they were ‘significant’, and whether they supported the sweeping judgment of want of credibility reached by the Tribunal.  The [appellant’s] statement that he was told his truck was to be taken to General Massoud’s forces in Afghanistan was not, in my opinion, inconsistent with his statement that he did not know the location to which it was to be taken.  Similarly, his statement that he was told that the truck had been commandeered or confiscated by order of the Islamic Leader in Iran was not inconsistent with the statement that it was seized by the Taliban in Afghanistan.  Overall however, I cannot discern, underlying the Tribunal’s approach, any predisposition to disbelief which would amount to an error of law.  The Tribunal may have erred in fact, but if there were such an error it is not correctable by this Court.”

8                     The primary judge concluded that the decision as to the appellant’s credibility was “otherwise supportable by reference to a range of matters to an extent that precludes the invocation of the ‘no evidence’ ground”,and that, even excluding the inconsistencies about which he had reservations, there were “parallel links supporting the Tribunal’s ultimate conclusion about the credibility of the” appellant. 

9                     In summary, the Tribunal did not accept the appellant’s account of what had happened to him in Iran.  It did this because it did not believe him.  The Tribunal said it did not believe him because of what it said were significant inconsistencies in the appellant’s accounts, and because material aspects of his story were implausible.

10                  On the appeal, counsel for the appellant accepted that the Tribunal’s conclusion on credibility was based on the inconsistency finding and on the implausibility finding. The inconsistencies and the implausibilities provide two separate bases for the rejection of the appellant as a credible witness.   The Tribunal in its reasons had identified what it regarded as significant inconsistencies in the appellant’s evidence.  It then proceeded to identify the specific instances of the appellant’s account that it regarded as implausible, noting that these instances were “quite apart from the inconsistencies in the [appellant’s] evidence”.

After specifying those particular matters which it considered implausible, the Tribunal said:

“I accept that the [appellant’s] wife corroborated the [appellant’s] evidence in certain respects.  However, having regard to the inconsistencies in the [appellant’s] evidence identified above and to the fact that I consider the [appellant’s] account to be implausible for the reasons given above, I do not consider that either the [appellant] or his wife can be accepted as credible witnesses.”

11                  The first ground of appeal contends that there were, in fact, no significant inconsistencies in the appellant’s evidence, nor was the appellant’s evidence implausible on any material issue.  As a consequence, it was submitted, the “particular fact[s]”  on which the Tribunal relied in rejecting the appellant’s evidence (and therefore on which the decision to reject the application for a protection visa was based) did not exist, with the result that the Tribunal incorrectly interpreted the applicable law in reaching a conclusion which was not justified by any evidence or other material.  It was further submitted that, despite the expressed reservations about whether some of the alleged inconsistencies were actually inconsistencies, the primary judge failed to find that the inconsistencies identified by the Tribunal were not inconsistencies at all, with the consequence that the primary judge did not find that the error specified in s 476(1)(g) of the Act had occurred. 

12                  In oral argument counsel for the appellant concentrated on attacking some of the alleged inconsistencies (particularly those referred to by the primary judge) recognising that some of them were fairly obvious.  He submitted that wrongly finding and relying upon some of the inconsistencies would undermine the whole process of reasoning. 

13                  It is unnecessary to reach a conclusion as to whether what the Tribunal said were significant inconsistencies were in fact significant inconsistencies, or what the consequences would be if some were not.  This is because the Tribunal’s conclusions as to what it regarded as implausibilities in the appellant’s account were, in our view, clearly open to it, hence an essential element of the factual foundation for the appellant’s first ground of appeal, namely that the asserted implausibilities did not exist, is not established. Whether a matter is inherently improbable is something on which minds might differ.  In this case, it was open to the Tribunal to conclude that each of the six matters which it regarded as implausible was inherently improbable. 

14                  In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, Gleeson CJ and McHugh J at 626-7 referred to observations by Lord Brightman in Puhlhofer v Hillingdon London Borough Council [1986] AC 484 which, while dealing with a different question, is apposite to the present question.   Lord Brightman said (at 518):

“Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.”

15                  Whether a particular matter is inherently improbable can in certain circumstances be obvious, in other circumstances debatable, and, perhaps, in other circumstances just conceivable, but unless a conclusion that a particular matter is inherently improbable is perverse, that is to say is not open to the decision maker, it is not a matter on which the Court should substitute its view. 

16                  There is a further matter which is fatal to this appeal, and that is that the “facts” alleged in this case to be non-existent are, in our judgment, not “facts” of the kind referred to in s 476(4)(b) of the Act.  They are assessments reached by the Tribunal after a consideration of the appellant’s evidence and the claims he advanced.  The Tribunal rejected the appellant’s account because it did not believe him.  The reasons for that disbelief were the Tribunal’s assessment that the appellant had been inconsistent in significant ways in his recounting of particular matters and the Tribunal’s determination that material features of his account were inherently improbable.  These reasons are not “particular fact[s]” for the purposes of s 476(4)(b) of the Act.  An attack on the correctness of the reasons for finding that the appellant was not believable is a challenge to the correctness and rationality of the reasoning process, and does not provide an available basis for review of the decision reached as a result of that reasoning. 

17                  Observations by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (1999) 74 ALJR 405 at 416; 168 ALR 407 at 423 are particularly helpful in this context.  In that case, the Tribunal made an express finding that it did not accept the evidence of the prosecutor’s wife.  McHugh J held that that was sufficient to comply with the requirements of s 430(1) of the Act which provided:

“Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a)         sets out the decision of the Tribunal on the review; and

(b)         sets out the reasons for the decision; and

(c)          sets out the findings on any material questions of fact; and

(d)         refers to the evidence or any other material on which the findings of fact were based.”

18                  At [67], McHugh J was dealing with the allegation by the prosecutor that the Tribunal had breached s 430(1) by failing to set out reasons for its finding that one of the prosecutor’s claims was “utterly implausible”.  McHugh J said:

“However, this was essentially a finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is the function of the primary decision-maker par excellence.  If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed.  The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.  In any event, the reason for the disbelief is apparent in this case from the use of the word ‘implausible’.  The disbelief arose from the tribunal’s view that it was inherently unlikely that the events had occurred as alleged.”

19                  The second of the substituted grounds of appeal depends on this Court being satisfied that the matters which the Tribunal claimed were implausible were clearly not so. The appellant’s evidence and claims which the Tribunal regarded as implausible were the subject of detailed consideration by the Tribunal before it reached that conclusion.  That conclusion, we have earlier said, was open to the Tribunal, but it is simply not correct that that material was ignored with the consequence that jurisdictional error was committed.  Even if the conclusion by the Tribunal that a particular claim was implausible is regarded as incorrect or as the consequence of illogical reasoning, that does not involve jurisdictional error or give rise to any ground of review based on the former s 476(1) of the Act.   See Minister for Immigration and Multicultural Affairs v Epeabaka (1998) 84 FCR 411 at 421 and Minister for Immigration and Multicultural Affairs v Perera [2001] FCA 1212 at pars 22-26.

20                  In the light of our specific findings of the merits of the grounds relied on, it is unnecessary for us to deal with the contention advanced on behalf of the Minister that the “no evidence” ground of review in the former Part 8 of the Act applies only where a statutory power has been exercised, with the consequence that that ground does not apply to a decision to refuse to grant a protection visa or to a decision of the Tribunal affirming a decision not to grant a protection visa.  This Court was told that this question was the subject of submissions in the appeal from the judgment in Minister for Immigration and Multicultural Affairs v Rajamanikkam (2000) 179 ALR 495, which was argued before the High Court on 14 November 2001 and which is presently under consideration. 

21                  The appeal should be dismissed with costs.

Associate:

Dated:              10 May 2002