FEDERAL COURT OF AUSTRALIA

BZH15 v Minister for Immigration and Border Protection [2018] FCA 236

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

YATES J:

Introduction

1    The appellants appeal from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) given on 29 August 2017, which dismissed their application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), given on 2 September 2015. The Tribunal’s decision affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), not to grant the appellants protection visas.

2    The appellants are citizens of Fiji. The first appellant is the primary applicant for a protection visa. The other appellants are members of the same family unit whose claims are dependent on the first appellant’s claims.

3    The first appellant claims to fear harm from the Fijian military. These claims are more particularly identified in the primary judge’s reasons at [21]: BZH15 & Ors v Minister for Immigration and Border Protection [2017] FCCA 2054. There is no challenge to either the completeness or accuracy of the primary judge’s summary:

21.    The Applicant provided a statement in support of his protection visa application in which he stated:

a)    He was physically harmed by the Fijian regime because he was a strong supporter of the Soqosoqo Duavata ni Lewenivuana Party (“SDL”) and actively supported his nephew who was the founding General Secretary of the SDL and campaign director during the 2006 elections.

b)    He was involved with the anti-coup group that stood beside former Fijian Prime Minister Laisenia Qarase during his court case on corruption charges.

c)    He was physically abused by soldiers on 14 December 2006 after he was stopped at a roadblock, confirmed he was related to [name given] (the founding Secretary of the SDL) and expressed dissatisfaction about the military’s actions and his support of the SDL.

d)    He was taken and mistreated on a second occasion in December 2006, his brother and nephew were also taken and he was watched all the time.

e)    In August 2012 he was taken to a military camp and beaten after he made inflammatory remarks at court following Mr Qarase’s sentencing.

f)    He planned to attend a protest against a visit by Mr Frank Bainimarama and met with Mr Qarase in Griffith. The Applicant’s brother is President of the Fijian Lau Community Group in Griffith. The Applicant claimed he was known to the Fijian regime and his activities in Griffith were monitored.

The Tribunal

4    The appellants provided a number of documents to the Tribunal to support the first appellant’s claims. These documents are identified and discussed, with other aspects of the evidence relied on by the appellants, at [14]–[38] of the Tribunal’s Decision Record. For present purposes, it is only necessary to draw attention to two of those documents. They are two letters which are identified at [30] of the Tribunal’s Decision Record:

30.    Two original letters were brought to the Tribunal hearing. Translations were provided following the hearing. The letters are from [name given] who is indicated to be a neighbour of the applicant. The letters are dated 13 July 2015 and 20 July 2015, respectively. The first letter indicates that soldiers have been looking for the applicant. The second letter indicates that four soldiers came in a military vehicle asking for the whereabouts of the applicant and was told that he was in Australia. It was indicated that this is the second time there has been a visit.

5    In its Decision Record, the Tribunal expressed significant concerns about the credibility of the first appellant’s claims. The Tribunal said that these concerns were based on its consideration of all the evidence.

6    The Tribunal identified six reasons for these concerns. They are discussed in some detail at [47]–[72] of the Decision Record. The concerns are helpfully summarised at [36] of the primary judge’s reasons. There is no challenge to either the completeness or accuracy of this summary:

36.    The Tribunal had “significant concerns with the credibility” of the Applicant’s evidence about his claims of detention and harm by military personnel, the monitoring of the Applicant by military and other authorities and that the Applicant made inflammatory statements during the sentencing of Mr Qarase. The Tribunal identified six matters that contributed to its adverse assessment of the Applicant’s credibility:

1)     The Applicant failed to include key claims in his original Protection visa application. He failed to include reference to a second occasion on which he was detained in December 2006 and that he was detained and harmed in 2012 after the court hearing sentencing Mr Qarase.

2)     The Applicant’s evidence provided to the Delegate concerning the circumstances and number of occasions on which he was detained, was considered to be “uncertain, shifting and inconsistent with claims elsewhere.” The Tribunal noted that the claim that the Applicant was taken from his home whilst he was asleep was inconsistent with the Applicant’s evidence previously in the hearing recounting the circumstances of his detention where he made no mention of being taken from his home while asleep. The Tribunal noted that the consequences of relying on this information would be to question the credibility of the Applicant’s account of his detentions, and more generally.

3)     The Applicant provided directly inconsistent evidence at the departmental interview and to the Tribunal in respect of the Applicant’s presence inside or outside of the courthouse when he stood up and criticised the verdict at Mr Qarase’s sentencing.

4)     There were significant discrepancies between the Applicant’s evidence and that of his wife the Second Applicant in terms of how many times the Applicant was taken to an army camp and whether military ever visited and took the Applicant from his home.

5)     The Applicant waited seven years to come to Australia following the two significant incidents that he claims happened in 2006 as well as the monitoring activities carried out by the military and other authorities. The Applicant and members of his family (the Second, Third, Fourth, Fifth, Sixth and Seventh Applicants) made a combined 15 visits to Australia between 2007 and 2013. This undermines the Applicant’s claimed fear of serious or significant harm, and

6)     The Applicant’s ability to maintain employment with a government organisation throughout the period of his claimed difficulties is not consistent with his claims of political connections, outspokenness and his being monitored.

7    At [73]–[74] of its Decision Record, the Tribunal concluded:

73.    The six areas of concern outlined significant omissions in the applicant’s initial claims, fundamental inconsistencies, as well as other issues, that go to the credibility and plausibility of what is claimed. The extent and nature of the difficulties with the applicant’s evidence cause the Tribunal to consider that the applicant has fabricated his core claims. The Tribunal does not consider that the applicant has been a truthful witness in relation to claims of him being detained and physically harmed by the Fiji authorities, or the applicant making an outspoken statement during the sentencing of Qarase.

74.    The extent of the inconsistencies and other problems with the applicant’s evidence are such that the Tribunal is not satisfied as to any of the applicant’s claims in this respect. The Tribunal is conscious that the delegate found as credible the applicant’s accounts of being detained on two occasions in 2006. The Tribunal has carefully considered this finding, but in the light of all the evidence and difficulties outlined it cannot be satisfied that these events occurred.

8    The Tribunal turned to make findings on certain aspects of the first appellant’s claims. At [81] of the Decision Record, the Tribunal considered the two letters:

81.    In terms of the two letters that were provided by the applicant’s neighbour attesting to the authorities looking for the applicant and his family, the Tribunal gives these documents little weight. It does so in considering the significant credibility concerns outlined with the evidence of the applicant. It does not consider that the applicant is trustworthy. As noted to the applicant in the hearing, it would have been very easy for the applicant to have requested his neighbours to write and send these documents. The applicant said that these letters were written without any input by the applicant. The letters do not ameliorate the significant credibility concerns outlined.

9    The Tribunal summarised its overall findings at [96]–[99] of the Decision Record:

96.    In summary, the terms of the Refugees Convention criterion, the Tribunal is not satisfied that the applicants have a well-founded fear of being persecuted on the basis of political opinion, or for any other Convention reason including on the basis of any past harm or adverse interest due to political connections, inability to subsist, having made a claim for asylum in Australia and having lived in Australia for a period, or for any other reason.

97.    Having considered the Refugees Convention criterion, the Tribunal considers the complementary protection criterion. The Tribunal repeats its findings that there has been no past harm suffered by the applicant or any of the other applicants, or adverse interest by authorities in the applicants, as a result of the applicant’s political connections and activities. The Tribunal therefore does not consider there is a real risk of significant harm to the applicants arising from past adverse interest by authorities in the applicant or past harm suffered. The Tribunal does not consider that the applicant has a profile of political activity either in Fiji or Australia that would subject him or the other applicants to a real risk of significant harm in Fiji today. The Tribunal is not satisfied that the applicants face real risk of significant harm based on an inability to subsist or for reasons of claiming asylum in Australia, having lived in Australia for a period, or for any other reason.

98.    In summary, the terms of the complementary protection criterion, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Fiji, there is a real risk they will suffer significant harm due to past or future political opinion, adverse interest by authorities in the applicant, inability to subsist, claiming asylum in Australia or having lived in Australia for a period, or for any other reasons.

99.    For the reasons given above the Tribunal is not satisfied that any of the applicants are persons in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.(36)(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visas.

The Federal Circuit Court

10    At the hearing of the appellants’ application for judicial review, leave was granted to file a further amended application, containing two grounds of review expressed as follows:

1.    The Tribunal’s approach and reasoning was irrational or illogical when it made adverse credibility findings against the first applicant and those findings formed a basis for placing little weight on documents, however those documentary materials themselves should have been taken into account in assessing credibility.

Particulars

Two letters from the applicant’s neighbours in Fiji dated July 2015, informing him that the Fijian military were looking for the applicant and his family.

2.    The Tribunal fell into jurisdictional error when it failed to make an inquiry with the author of the two letters as to whether the Fijian authorities were looking for the applicant and his family.

Particulars

The telephone contact details of the author of the letters were before the Tribunal. It was an obvious inquiry about a critical fact, the existence of which could be easily ascertained.

11    The primary judge concluded that neither ground was made out.

12    As to the first ground, the primary judge found that, on a fair reading of the Decision Record, the Tribunal considered the totality of the evidence before it and had, in that connection, summarised the entirety of the allegedly corroborative material disclosed in the letters. The Tribunal did not fail to consider the material in the letters or to have regard to that material. The primary judge found that the Tribunal assessed the value of the content of the letters and considered its effect in light of the view it had formed about the first appellant’s credibility. In this connection, the primary judge found (at [58]):

58.    A fair reading to the Tribunal’s decision record makes clear that the Tribunal did not disregard the allegedly corroborative material in the letters. Rather, having reached the tentative conclusion that the Applicant’s claims of harm in Fiji were fabricated, the Tribunal’s assessment of the nature, content and quality of the content of the letters was such that it determined to give the letters little weight. The Tribunal found that the contents of the letters did not ameliorate the significant credibility concerns that the Tribunal had outlined in some detail. The Tribunal did not refuse to consider the letters. The Tribunal weighed them in the balance after making its credit findings as it was entitled to do (see Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485 at [33], [37], and [38]; SZVHO v Minister for Immigration and Border Protection [2016] FCA 1499 at [34]- [44]).

13    The primary judge concluded (at [59]) that the Tribunal did not act irrationally or fall into jurisdictional error by first making an assessment of the first appellant’s credit and then giving attention to the corroborative evidence.

14    As to the second ground, the primary judge noted that there was no evidence to suggest that the Tribunal was asked to make the enquiries which, the appellants argued, should have been made. The primary judge concluded that, in the circumstances of the case, there was no obligation cast on the Tribunal to make further enquiries in relation to the letters, and it was not unreasonable for the Tribunal not to do so. The primary judge concluded that this ground of appeal had not been made out.

15    Accordingly, the primary judge dismissed the application for judicial review, with costs.

The appeal

16    The notice of appeal in this Court contains three grounds, expressed as follows (omitting particulars):

Ground 1

The Federal Circuit Court failed to find that the Tribunal fell into jurisdictional error in determining without logical and probative basis that a critical aspect of the appellant’s evidence upon which his claim was based was false.

…

Ground 2

The Federal Circuit Court failed to find that the Tribunal fell into jurisdictional error by not informing the appellant that the issues in relation to the letters were open to doubt and failing to provide the appellant with an opportunity to provide evidence or submissions with respect to those issues.

…

Ground 3

The Federal Circuit Court failed to find that the Tribunal fell into jurisdictional error in determining that a critical aspect of the appellant’s evidence upon which his claim was based was false, when such a finding was illogical and/or irrational.

…

17    The first appellant appeared at the hearing of the appeal, assisted by an interpreter. When invited, the first appellant did not seek to advance any oral argument in support of the appeal. However, the appellants had filed written submissions. These appear to have been drafted by someone with legal knowledge and skills.

18    The appellants’ written submissions treated Grounds 1 and 3 as consolidated into one ground, which was that the Tribunal’s approach and reasoning was irrational and illogical because the Tribunal failed to assess and weigh the evidence in the two letters. In essence, the appellants submitted that the Tribunal simply disregarded the letters. This consolidated ground is the same as the first ground in the appellants’ application for judicial review before the Federal Circuit Court. The appellants say that the primary judge erred by failing to find that the Tribunal fell into jurisdictional error in this regard.

19    I see no error in the primary judge’s reasoning or conclusion on this matter. I do not accept that the Tribunal simply disregarded the two letters. It plainly considered them (as is apparent from [30] of the Decision Record) and, indeed, discussed them with the first appellant (as is apparent from [81] of the Decision Record). Ultimately, however, the Tribunal gave little weight to the letters which, when balanced with all the evidence, did not (in the Tribunal’s words) “ameliorate the significant credibility concerns” which the Tribunal had outlined.

20    The appellants’ written submissions repeat a submission made to the primary judge to the effect that the Tribunal’s reasoning on this aspect of the review involved a finding of a conspiracy between the first appellant and a person in Fiji to fabricate information which lead to the Tribunal failing to make an impartial assessment of the letters or any weighing up of the evidence.

21    I do not accept that submission. It is true that at [81] of the Decision Record the Tribunal said that it did not consider the first appellant to be trustworthy. The Tribunal also adverted to the possibility that it would have been very easy for the first appellant to have requested his neighbour to write and send the letter. The Tribunal, however, also recorded the first appellant’s response to this suggestion—namely, that the letters were written without any input from him. It is tolerably clear that the Tribunal’s assessment of this evidence, taken with the letters themselves, did not lead it to a positive state of satisfaction that there was a conspiracy to fabricate evidence or, more specifically, that the first appellant, with the purpose of fabricating evidence, directed his neighbour to write the letters.

22    For the reasons given above, I do not accept that the Tribunal failed to weigh up the evidence. I also reject the submission that the Tribunal failed to make any impartial assessment of the letters. There is nothing in the Tribunal’s reasons to support that submission.

23    Some of the appellants’ written submissions on this consolidated ground tended to stray into the appellants’ case under Ground 2 of the appeal. I will deal with those submissions when considering that ground.

24    The appellants’ written submissions also tended to challenge the Tribunal’s findings concerning the first appellant’s credibility, with a view to arguing that the Tribunal should have assessed the two letters in a different light, and certainly without reference to the significant credibility concerns it had. There is no basis on which, in light of the Tribunal’s reasoning, this Court should interfere with the Tribunal’s credibility findings or the way in which the Tribunal weighed up the evidence before it. Further, the Tribunal was entitled to assess the weight it would attribute to the two letters in the light of the credibility concerns it had: Minister for Immigration and Border Protection v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485 at [33] and [37].

25    For these reasons, Grounds 1 and 3 are not made out.

26    As to Ground 2, it should be noted at the outset that aspects of this ground stray beyond the appellants’ case before the Federal Circuit Court. The case before the Federal Circuit Court, as expressed through the second ground of judicial review, was that the Tribunal fell into jurisdictional error by failing to make enquiries of the author of the two letters as to whether the Fijian authorities were looking for the first appellant and his family. Ground 2, as formulated in the notice of appeal, is that the Federal Circuit Court failed to find that the Tribunal fell into jurisdictional error by not informing the first appellant that the two letters were open to doubt and by failing to provide the first appellant with an opportunity to provide evidence or submissions with respect to those doubts. Even so, the submissions advanced by the appellants in support of this ground appear to repeat the matters advanced before the primary judge—namely, that the Tribunal failed to make inquiry in respect of the letters when it was, according to the appellants, under a duty to do so. I will deal with both matters.

27    As to the first matter, it is apparent from [81] of the Decision Record (see [8] above) that the Tribunal did engage with the first appellant about the two letters and raised its concerns with him. It was, of course, for the appellants to adduce the evidence they wished to rely on to support their claims. There is nothing before me to suggest, for example, that the appellants wished to provide further evidence on this issue or sought an opportunity to do so.

28    As to the second matter, I (like the primary judge) am not persuaded that, in the circumstances of this matter, the Tribunal was under an obligation to make further enquiry in respect of the letters by seeking to find and interrogate the first appellant’s neighbour about the matters that had been conveyed by the letters. I do not accept, therefore, that the Tribunal failed, in this regard, to exercise its jurisdiction to review the appellants’ claims: Minister for Immigration and Citizenship v SZIAI [2009] HCA 3; (2009) 259 ALR 429 at [25].

29    Once again, I see no error in the primary judge’s reasoning or conclusion. For these reasons, this ground of appeal is not made out.

Conclusion and disposition

30    Each ground of appeal fails. The appeal will be dismissed, with costs.

Associate:

Dated:    8 March 2018

SCHEDULE OF PARTIES