FEDERAL COURT OF AUSTRALIA

BGV15 v Minister for Home Affairs [2018] FCA 1753

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellants are to pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    The appellants appeal from a decision of the Federal Circuit Court of Australia (FCC) delivered on 12 July 2018. In that decision the FCC dismissed an application for judicial review of the determination of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal) which on, 23 June 2015, affirmed a decision of the Minister for Immigration and Border Protection not to grant protection visas to the appellants. The Minister’s decision had been made on 28 May 2014.

2    The first and second appellants, who are wife and husband respectively, each submitted their own claims for a protection visa. The third appellant is their son and he was included in the application as a member of a family unit. Although the husband advanced his own claim for a protection visa, it was dependent upon the acceptance of the factual substratum of his wife’s claims. In order to distinguish between the various appellants the nomenclatures “wife appellant”, “husband appellant” and “child appellant” will be used.

Background facts

3    Each of the appellants are citizens of Bangladesh who arrived in Australia on 24 July 2013. They each lodged applications for protection visas with what is now referred to as the Department of Home Affairs.

4    The essence of the wife appellant’s claim for a protection visa is founded upon her assertion that she was raped on a number of occasions by a business associate of her husband. She claimed that she and her husband had been in business together and, subsequently, they entered into another business with a number of other persons including a Mr R. Mr R was the Chairman of the corporate vehicle through which the new business was pursued.

5    The wife appellant claimed that she was sexually harassed by Mr R during the course of their business relationship and, in July 2009, he raped her. She said that she reported the commission of this offence to the police. She further claimed that her cousin confronted Mr R about the rape and that Mr R shot and killed him on 20 July 2009. She also said that although Mr R was arrested he was subsequently released because he was rich and powerful. For reasons which were identified by the wife appellant, she and her husband remained in business with Mr R despite the occurrence of the alleged rape.

6    The wife appellant asserts that she was raped by Mr R on two more occasions in April 2013. She says that it was this which precipitated their departure from Bangladesh and travel to Australia.

The Tribunal’s decision

7    The crux of the Tribunal’s decision is that it did not believe the appellants’ claim that the wife appellant had been raped on a number of occasions and, as that was the foundation of the appellants’ claimed fear of harm, it determined that they were not persons to whom Australia had protection obligations under the United Nations Convention Relating to the Status of Refugees 1951, as amended by the Protocol Relating to the Status of Refugees 1967, or s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act).

8    The reasons of the Tribunal included a detailed consideration of the evidence before it in relation to the allegations of rape. It assayed that evidence and identified numerous inconsistencies across the various integers of the wife appellant’s claim. It reached the conclusion that the wife and husband appellants had fabricated this core element. Although it does not do justice to the careful analysis undertaken by the Tribunal it suffices to summarise its findings as to why it concluded the appellants were not truthful as follows:

(a)    The appellants were insufficiently able to explain why it was that given the alleged rapes they remained in Bangladesh despite having visas to visit Canada which were granted to them on 29 October 2012. Although that date was prior to the alleged second and third rapes, the visa apparently remained valid until 2017. Nevertheless, they did not seek to utilise it to travel to Canada where they could have claimed asylum. Instead, they remained in Bangladesh after the alleged second and third rapes in April until they left in July 2013. Their explanations for that were, as the Tribunal found, unconvincing.

(b)    The wife appellant’s account of the first rape was “unpersuasive”. In particular, it was found that given her alleged knowledge of Mr R’s dangerous character and long history of alleged sexual harassment, it was most unlikely she would have voluntarily attended a business office where she would be alone with him. Her attempted explanations for doing that were found to be unconvincing.

(c)    The wife appellant gave inconsistent and changing evidence as to her discussions with other persons about the conduct of Mr R.

(d)    The wife appellant also gave inconsistent and varying evidence about the occasions on which she reported the harassment and rape to the police. The evidence between herself and her husband had significant and important differences. It was also found that the wife appellant gave inconsistent evidence about Mr R and what she had been told about him.

(e)    The evidence from the appellants as to the interactions between the husband appellant and Mr R were also inconsistent. These were important aspects of the allegation which were unlikely to have been forgotten or confused.

(f)    The evidence of the appellants as to their contact with police about the allegations was also inconsistent and unconvincing.

(g)    Similarly, the evidence of the wife appellant alleging that her cousin had been shot by Mr R in relation to the rape allegations was not credible and was inconsistent with her allegations of rape.

(h)    The wife appellant’s claims as to assault by Mr R on her brother and other members of her family were also inconsistent.

(i)    The appellants’ travel histories in Bangladesh and internationally, including the husband’s solo travel to the United Kingdom for a holiday in 2010, were not consistent with the rape allegations. The claims that the appellants were fearful of Mr R after the rape in 2009 were not consistent with the husband appellant taking a holiday in the United Kingdom by himself.

(j)    The alleged documentary medical evidence which was adduced was identified as probably being fraudulent and forgeries. That was particularly so because the dates shown on the documents were inconsistent with the events recorded.

(k)    The Tribunal concluded that the concerns which it had as to the many inconsistencies and improbabilities in the evidence were so numerous and significant that it could not be satisfied of the truthfulness of the claims that the wife appellant had been raped as alleged. The husband appellant’s claim that he feared harm as a result of the rapes having occurred, necessarily fell with the rejection of those allegations. His claim that the third appellant would suffer psychological harm on return to Bangladesh were also unsupported because it had been determined that the rapes which had been alleged did not in fact occur.

Grounds of appeal

9    The grounds of appeal in the Notice of Appeal are in identical terms to those advanced to the FCC. They should be taken as allegations that the FCC erred by failing to detect the identified errors in the Tribunal’s decision. Because of the precisely overlapping grounds there is no need to separately set out the reasons of the FCC.

10    Shortly prior to the date set for the hearing of this matter the appellants filed written submissions which went beyond the scope of the grounds in the filed Notice of Appeal. Those submissions were outside of the time prescribed by the directions made for the filing of written submissions. A proposed Amended Notice of Appeal was delivered with the written submissions although the new grounds of appeal are not significantly different from those in the original notice of appeal. The Minister, very appropriately, did not oppose reliance on the new grounds.

Ground one – original Notice of Appeal

11    The first ground of appeal, which appears to be the same as that pursued by the proposed Amended Notice of Appeal, is:

The RRT has made a decision so unreasonable or illogical that no reasonable person would have made it.

Particulars:

In determining the First Applicant’s credit by reference to a false factual premise, namely that her account of having been in hiding for a period of three months after she was sexually assaulted was inconsistent with the address she had nominated as residing at “for six months” or more in the last 10 years” in her initiating application, the Tribunal has made a decision so illogical or unreasonable that no reasonable person would have made it.

12    This ground relates to the Tribunal’s conclusion that the wife appellant’s account of hiding at a friend’s house for a period in the three months prior to coming to Australia was not consistent with her answer to question 35 of her Protection Visa Application form in which she said she lived at a particular address in Dhaka from July 2010 to July 2013. The appellants complain that the answer given was in response to a question which only required the provision of addresses where a person had lived for six months or more. It is said that the Tribunal erred in understanding the answer which was provided because the appellants were hiding there for only three months such that they would not have been required to disclose that address in answer to the question.

13    However, the appellants’ submissions misconstrue the effect of the Tribunal’s finding. By the answer given the wife appellant indicated that she had been living at the same address for a period of three years until July 2013. If she had in fact been living at another address and in hiding for three months prior to leaving, her answer would have been erroneous. She would have indicated that she only resided at the identified address until about April 2013. This is the manner in which the learned primary judge construed the Tribunal’s determination and it has not been shown that there is any error in that conclusion.

14    It follows that no error was made in identifying inconsistency between the answer to question 35 and the claim that the family had been in hiding.

15    The appellants also submitted that there was no inconsistency between the statements because the documents were delivered to the department at the same time and should be read together. It was submitted that, following this approach, there was no inconsistency between the various statements. That submission also cannot be accepted. The statements are quite obviously at odds. The answer to question 35 is to the effect that the wife appellant and the child appellant were living at one address until July 2013 and the statement at paragraph 26 of the wife appellant’s statement was to the effect that she did not live there after the second alleged rape occurred. It is not possible to read them consistently as the appellants submit. There was no error in the Tribunal detecting an inconsistency in them.

16    It might also be observed that even if there were some error, it was with respect to a relatively minor credit issue amongst an array of other credit issues. The Tribunal identified nine core areas in respect of which it disbelieved the appellants. The first concerned the apparent lack of reaction by the appellants to the occurrence of the rapes and the inconsistency in question was merely one factor in the conclusion that the conduct of the appellants was not consistent with the rapes having occurred. The determination by the Tribunal in this respect was a mere finding of fact and in no way close to being an integer of any claim advanced by the appellants. In that way, even if there were an error made in the factual analysis of this minor credit point, it was not a jurisdictional error: CQG v Minister for Immigration and Border Protection (2016) 253 FCR 496 at 517 [60], citing Wigney J in Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 [55]. In this case there were numerous other findings which undermined the credibility of the appellants and the veracity of the matters alleged by them. It is extremely unlikely that the determination of the inconsistency in the information as to where the family resided in the period from April 2013 to July 2013 would have made any difference to the conclusions reached by the Tribunal. Even if the Tribunal was in error, it would not have deprived the appellants of a different outcome.

17    The appellants relied upon the decision of Logan J in SZRHL v Minister for Immigration and Citizenship (now Minister for Immigration and Border Protection) (2013) 136 ALD 641 where his Honour said:

[33] That credibility findings are “par excellence” the function of the primary decision-maker: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; 58 ALD 609; 74 ALJR 405; [2000] HCA 1 at [67] is a given. That does not mean that an ultimate conclusion, based on an assessment of credibility, as to an absence of satisfaction that a visa applicant is a person to whom Australia has protection obligations under the Refugees Convention is immune from judicial review.

[34] As I opined by reference to earlier authority in SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113; 112 ALD 501; [2009] FCA 1470 at [37], “the adjectives ‘ignorant’, ‘arbitrary’ and ‘perverse’ aptly apply to a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise”. That is this case. The process of reasoning that led to the damning of the first appellant’s credibility by the tribunal was premised upon the basis that a reference to a “false case” laid against him in the courts of Bangladesh had only emerged belatedly, as opposed to when the visa application was made. That premise was not peripheral.

18    The appellants submitted that the finding in relation to the inconsistency between the answer to question 35 on the Protection Visa Application form and her claim to be in hiding was not peripheral to the conclusion that the wife appellant lacked credibility. That submission cannot be sustained. As has been indicated above, the Tribunal determined that the wife appellant lacked credibility for a considerable number of reasons involving inconsistencies and implausible answers given by her. The alleged erroneous inconsistency relied upon by the appellants was a minor part of a wider determination of but one of the reasons why the appellants were disbelieved. There is no substance in the suggestion that the finding in relation to the paragraph 35 answer was significant to the determination that the wife appellant lacked credibility or her claims lacked veracity.

Ground two

19    The second ground of appeal, which is also substantially similar to the proposed amended second ground of appeal, is as follows:

The RRT has breached Section 425 of the Migration Act 1956

Particulars:

1.    The RRT has failed to consider the claims of the Second Applicant, despite the Second Applicant having made an independent claim due to the claims being mischaracterised as solely dependant on the First Applicant's claim alone.

2.    The RRT has failed to apply the reasoning of SZTQD v Minister for Immigration [2016] FCA 339 at [48]-[49].

20    This ground also cannot succeed. The husband appellant’s claim was based upon the facts underlying the wife appellant’s claim. He says that he suffered a fear of harm because his wife had previously been raped. However, given the determination by the Tribunal that the rape allegations were fabrications, it must necessarily follow that his claim also fails.

21    It is also alleged that the second appellant was at risk of harm because the assaults on his wife caused him to be “mentally, physically, economically and socially very much disturbed”. Again, the insurmountable difficulty with this submission is the absence of any underlying foundation for the alleged assault. Secondly, the harm which the second appellant claims he fears is not the type of harm which is within the scope of s 36(2)(aa) of the Act.

22    This ground of appeal appears to raise, albeit tangentially, an assertion that the Tribunal should have perceived on the material before it that the husband faced a risk of serious or significant harm even if his wife had not been assaulted. That arises by the reference in the second ground of appeal to the decision in SZTQD v Minister for Immigration (2016) 240 FCR 181 at [48]-[49]. There Rares J held:

[48] In my opinion, the Tribunal had before it a substantial, clearly articulated argument relying upon established facts that appeared pellucidly in the wife’s separate application for a protection visa: Dranichnikov 197 ALR at 394 [24]–[26], 408 [95]; NABE 144 FCR at 17–18 [55]. She had applied to the Tribunal to review that claim. Her claim had not been considered by the delegate, indeed it had been mischaracterised by the delegate in her decision as being one dependent upon the husband’s claims alone. The wife’s claim was made as a separate claim in both the Form 866C and in the application to the Tribunal for review of the delegate’s decision. It was not merely a claim solely dependent on the husband’s claims. Moreover, during the course of the hearing the wife, as the Tribunal recorded at [60] of its reasons, she told it that “there is no safety for her and [her] husband in Sri Lanka”.

[49] The Tribunal’s characterisation that the wife had not made any protection claims on her own behalf amounted to a failure by it to perform its function of review of the delegate’s decision under s 425. That function required that the wife appear before the Tribunal, give evidence and present arguments relating to the issues arising in relation to the decision of the delegate under review. The decision of the delegate under review had ignored the wife’s independent claim for a protection visa, as did the Tribunal.

23    Here the Tribunal was aware that the husband appellant had made his own application for a visa. However, as the FCC observed, it is not apparent that any unarticulated claim arose with sufficient clarity from the material before the Tribunal such that the Tribunal was required to consider it. The FCC concluded that the husband’s alleged fear of harm was predicated upon the existence of the sexual assaults which had allegedly been perpetrated upon his wife. As the Tribunal had determined that those assaults did not occur there was no basis to the husband’s claimed risk of harm.

24    The husband appellant also asserted that he suffers additional harm because of the psychological consequences of the claim made by his wife, even if they are not true, even though he also claims to have independently verified the claims. He says that he had suffered mentally as a result of becoming aware of his wife’s claim and lost pride in his business and interest in his shops and warehouses in Bangladesh. He says that he is “mentally, physically, economically and socially very much disturbed”.

25    The appellants submitted that the claim was clearly articulated in paragraph 5 of the husband appellant’s statement attached to his visa application. The learned primary judge held that no such unarticulated claim as now asserted appeared from that paragraph. The appellants were not able to show any error in that conclusion. The paragraph is predicated upon the actual occurrence of the assaults on the wife appellant, it does not identify any claim to a fear of or risk of harm arising merely from the knowledge of the events allegedly occurring. Nothing has been shown which suggests that the learned primary judge was in error in not identifying some unarticulated claim which clearly arises from paragraph 5 of the husband appellant’s statement.

26    The appellants submitted that this alleged unarticulated claim does not depend upon the veracity of the wife’s claim. However, that submission cannot be accepted. It is apparent from the terms of paragraph 5 of the husband’s statement that one of the foundations of his alleged claim is his alleged verification of his wife’s claims. If the alleged assaults did not happen, it would follow that he could not have verified they occurred.

27    Moreover, even if that alleged claim did appear from the husband appellant’s statement, it does not identify the type of harm against which the Convention or the complimentary protection grounds protect. As presently articulated it appears that the harm sustained by the husband appellant has occurred and that remains so whether he is in Australia or Bangladesh and it will not be caused by the husband appellant being returned to a receiving country. It follows that this alleged claim was not one which needed to be considered by the Tribunal.

28    It follows that there is no substance in the second ground of appeal either.

Conclusion

29    The reasons identified for the rejection of each of the above two grounds of appeal and the proposed amended grounds reflect those which were advanced to the FCC. That Court was correct to reject the grounds of appeal for the reasons which it gave. The appellants have not identified anything which might suggest any error on the part of the FCC.

30    It follows that the appeal must be dismissed and the appellants must pay the first respondent’s costs of the appeal.

Associate:

Dated:    15 November 2018