FEDERAL COURT OF AUSTRALIA

CVB16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1392

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent be changed to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

MIDDLETON J:

1    On 26 August 2019, I made orders which relevantly dismissed the appeal with costs. These are the reasons for those orders.

2    In this matter, the Appellant appeals from a decision of a judge of the Federal Circuit Court delivered ex tempore on 8 March 2019, with written reasons provided on 1 April 2019 and published as CVB16 v Minister for Immigration and Border Protection & Anor [2019] FCCA 823. In that decision, the primary judge dismissed an application for judicial review of a decision of the Second Respondent (the ‘Tribunal’) to affirm a decision of a delegate of the First Respondent (the ‘Minister’) to refuse to grant the Appellant a Protection (Class XA) visa (the ‘visa’).

3    The factual background to this matter is set out in short summary at [5]-[7] of the primary judge’s reasons. Of particular relevance is that as part of his visa application the Appellant claimed that he feared he would be harmed if returned to his home country of Sri Lanka on account of him being identified as an individual of Tamil ethnicity on board a boat that was towed back to the port of Merak by Indonesian authorities during an attempted voyage to Australia. The boat, which along with its passengers became the subject of some publicity and media attention, was referred to as the ‘Merak boat’. The Minister refused to grant the Appellant the visa.

4    The Tribunal’s decision is summarised at [9]-[12] of the primary judge’s reasons. In short, the Tribunal affirmed the Minister’s decision, concluding that the Appellant was not on board the Merak boat as he had claimed due to inconsistencies between the evidence given by the Appellant and independent country information.

5    Before the primary judge, the Appellant sought to argue that the Tribunal had fallen into jurisdictional error because:

(1)    it had ‘no logically probative evidence from which it could have concluded that there was a contradiction between information given by [the Appellant] about where he was and his claim that he was on the Merak boat’; and

(2)    it ‘failed to have regard to the meaning of question 33 of the application form for the visa and [the Appellant’s] answer to that question’.

6    At this point, it is convenient to extract question 33 of the Appellant’s visa application form:

33 Details of countries of former habitual residence or transit before arrival in Australia

‘Status’ codes

C = Citizen T = Temporary resident V = Visitor O = Other

P = Permanent resident S = Student R = Refugee

7    The primary judge ultimately rejected the Appellant’s two grounds. Her Honour held, contrary to the Appellant’s submissions, that the question was directed towards details of ‘countries of former habitual residence or transit before arrival in Australia’ (emphasis added), which required the Appellant to divulge both any country in which he was a habitual resident and any country in which he was in transit. His answer to the question gave rise to an inconsistency between his visa application form and his claim that he was on the Merak boat, and this, in the primary judge’s view, meant that it was open the Tribunal to reach its conclusion.

8    The primary judge also found that the Tribunal had an independent ground for disbelieving the Appellant’s claim about being on the Merak boat. The Appellant claimed that he was free to come and go from the Merak boat while it was in port, whereas the independent country information regarding the conditions on the boat indicated this was not the case. The primary judge concluded that this ground operated independently of the other ground because the Tribunal’s discussion of the evidence regarding the passengers’ ability to come and go on the Merak boat followed the word ‘further’:

[26]    The Tribunal has considered the applicant’s claim that he was on-board the “Merak” boat and that the Sri Lankan government announced that those on board were LTTE and therefore he has a fear as a result of this incident too. The Tribunal asked the applicant when he boarded the boat in Malaysia and he stated it was “somewhere” in August 2009, although he also indicated that he had forgotten the month. The applicant claimed he was on the boat for a period of around two months. He also claimed that he just walked off the boat, the normal way, and went and stayed in a different place. In response to the Tribunal’s question as to whether there were navy people around the boat at the time, the applicant stated at that time you could get off, walk, play - anything you could do. When the Tribunal queried whether he could just walk off the boat, play and get back on the boat, the applicant stated yes, that they were able to go freely in the harbour and come back on to the boat.

[27]    The Tribunal does not accept the applicant was on the Merak boat as it does not find his evidence to be consistent with the independent information regarding the situation on the boat, including the information cited by the applicant’s adviser in their submission received following the hearing, which refers to the somewhat dire situation on the boat. As the Tribunal put to the applicant, the independent information does not suggest that people were free to get on and off the boat as they like, as he suggested. Further, the Tribunal notes according to the applicant’s protection visa application the applicant claimed that he was in Indonesia from 27 July 2012 to 7 August 2012. The Tribunal notes, according to the adviser’s submission, consistent with independent information, the boat intercepted by Indonesian navy after departing from Malaysia was moored in the Indonesian port of Merak for some six months between October 2009 and April 2010. The Tribunal finds the applicant’s evidence in his protection visa application regarding his period of stay in Indonesia, conflicts with his evidence that he was on board the Merak boat for a period of around two months from what would have been October 2009 when it was first moored in Merak. For these reasons, the Tribunal does not accept that the applicant was on the Merak boat and instead finds that he has embellished this aspect of his claims in an effort to bolster his case. As the Tribunal does not accept that the applicant was on this boat, it does not accept that the applicant’s name was taken when he was allegedly on this boat and the Sri Lankan government would know that he was on the boat, as submitted by his adviser, or that he will be well-known to the Sri Lankan authorities due to the publicity which surrounded the incidents in Merak, as the applicant claimed in his statutory declaration attached to his protection visa application. The Tribunal therefore does not accept that the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future for reasons of his membership of a particular social group of Tamils on the “Merak boat” or an imputed political opinion based on his alleged presence on the Merak boat.

9    As will become apparent, this independent ground for the Tribunal to disbelieve the Appellant’s claim that he was on board the Merak boat is of particular importance to my reasons for upholding the primary judge’s decision.

10    The Appellant’s notice of appeal identified the same two grounds which were put before the primary judge (although each were adapted to allege error in the primary judge’s decision). The Appellant also sought leave to add a third ground at the hearing of the appeal, a matter to which I will return later in these reasons.

11    As the Appellant’s two original grounds of appeal agitate the same issue, it is convenient to deal with them compendiously.

12    In short summary, the Appellant’s contentions on appeal seemed to rehearse the submissions made below: the Tribunal, which is obliged to act rationally and according to logically probative evidence, rejected the Appellant’s claim that he was on the Merak boat by impermissibly relying on his answers to question 33 on the visa application form and accordingly fell into jurisdictional error. The Appellant alleged the Tribunal had misunderstood the meaning of question 33: it was not, on the Appellant’s submission, directed at the Appellant’s whereabouts ‘from day to day’, but was rather directed at the Appellant’s ‘countries of former habitual residence or transit’ and his ‘status’ in those countries (including ‘citizenship’). Similarly, the Appellant alleged that the primary judge’s reliance upon the part of the question which asked about ‘transit’ was not sufficient, contrary to her Honour’s conclusions, to make it unassailably clear that the question was directed at instances such as where a visa applicant was on a boat embarking on what would have been an unauthorised voyage to Australia. In other words, it was understandable why the Appellant may not have understood that his attempted voyage to Australia and subsequent tow-back to Indonesia placed him in a situation of being ‘in transit’ in Indonesia. The Appellant also submitted that no response to any other question in the visa application form gave a basis for the Tribunal to conclude that there was a contradiction between information given by the Appellant about his whereabouts and his claim that he was on the Merak boat.

13    As is now well-established, in order for a decision to be “vitiated for jurisdictional error based on illogicality or irrational findings of fact or reasoning, ‘extreme’ illogicality or irrationality must be shown”: see CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [60], endorsing the principles set out in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52] and [54]-[56]. In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Crennan and Bell JJ observed at [131]:

… the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

14    While it is my view that, consistent with the conclusions of the primary judge, the Tribunal had on the evidence before it a logical or rational basis for arriving at its conclusion that the Appellant was not aboard the Merak boat, the interpretation of the Appellant’s answer to question 33 is very much a matter upon which reasonable minds may differ, especially in the context of other parts of the Appellant’s visa application which appear to affirm that the Appellant was indeed on a boat in at the relevant time in 2009 (see Appeal Book at 111).

15    However, this notwithstanding, I am satisfied that the other independent basis on which the Tribunal may have reached this conclusion – that being, as identified by the primary judge, that the Appellant’s description of the circumstances and conditions on the Merak boat was in stark contrast to independent reports – was sufficient (on its own) to support the Tribunal’s finding that the Appellant was not on board the Merak boat (and therefore, that the Appellant would not face any risk of harm if returned to Sri Lanka for the reasons he had claimed). Having regard to that basis for the Tribunal’s conclusion, any error of the type contended in the Appellant’s grounds of appeal would not be jurisdictional because it would not have been material to the outcome: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780 at [30]-[37].

16    I turn now to the third ground of appeal in respect of which leave was sought to rely upon. The proposed third ground of appeal was in the following form:

3.    The Tribunal fell into jurisdictional error in that it failed to give the Appellant procedural fairness.

PARTICULARS

(a)    The Tribunal in breach of section 425 of the Migration Act 1958 failed to give the Applicant an opportunity to give evidence and to present arguments about the issue of whether he had been in Indonesia in 2009 so as to have been able to be on the Merak boat.

(b)    Further, or in the alternative to particular (a) to this Ground, the Tribunal in breach of section 425 of the Migration Act 1958 failed to give the Applicant an opportunity to give evidence and to present arguments about his answers and evidence in his application for the visa and how these were relevant to the issues of his movements and status in Indonesia and whether he was on the Merak boat.

17    In support of this proposed new ground, which was not advanced at first instance the Appellant sought leave to put the transcript of the Tribunal’s hearing as evidence before me. It was said that the transcript, which was not available to the Appellant at first instance, showed that the Tribunal did not ask questions about, or alert the Appellant to, the potential contradiction in the Appellant’s evidence.

18    The Minister objected to the Court granting leave to advance the proposed new ground on basis that, on the Minister’s submission, it lacked sufficient merit or prospects of success. Despite this objection, I was content to grant leave for Appellant to advance this proposed new ground and for the supporting transcript of the Tribunal’s hearing to be admitted into evidence before me.

19    However, upon reviewing the evidence in combination with the Tribunal’s reasons, I am not satisfied that the third ground of appeal is made out.

20    The Tribunal’s reasons at [26] and [27] (extracted above at [8]) show that it asked the Appellant questions which tended to challenge whether the Appellant was actually on board the Merak boat. For instance, during the course of those paragraphs, the Tribunal records that it asked the Appellant whether the navy was around the Merak boat (to which the Appellant responded that ‘at that time you could get off, walk, play - anything you could do’). This seems to me to suggest the Appellant was, contrary to the charge of the third ground of appeal, given an opportunity to give evidence and present arguments about this issue. Further support for this view can, on my reading, be found in the transcript sought by the Appellant to be adduced into evidence, which records the interviewer as stating:

The information that I’ve read about the situation on that boat doesn’t suggest to me people were free to get off and get on, get off inside get back on the boat. Actually, the information about what happened at that time is that it was pre-dive compound drive situation with people very ill and going on a hunger strike and things not being provided to people. It wasn’t a nice situation. I’m a bit concerned and it doesn’t suggest to me you were able to just walk off the boat and leave without any contact with authority. I’ve read reports of people jumping off and swinging. It raises a concern in my mind as to whether you were actually on this boat.

21    Further, and in relation to the second particular for the third ground of appeal, I do not regard the Appellant’s answers on his visa application, and the relevance of those answers to his time in Indonesia (including whether he was on the Merak boat) to be an ‘issue arising’ for the purposes of s 425 of the Act.

22    First, the Tribunal’s questions during the hearing (particularly those recorded in [26]-[27] of its reasons), sufficiently indicated that all the evidence the Appellant had given in support of his claim relating to being on board the Merak boat was ‘in issue’: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (‘SZBEL’) at [47].

23    Second, the Tribunal was not required to give the Appellant a ‘running commentary’ by putting to him for comment at the hearing its thought processes and preliminary reasons in respect of whether it accepted his claim to have been on board the Merak boat: SZBEL at [48].

24    And third, the Tribunal was not required to identify to the Appellant the significance of the questions it asked him about his presence on the Merak boat: Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285 at [88]-[89].

25    For the reasons set out above, the appeal should be dismissed with costs. As requested by the Minister, I will also order that the Minister’s name on the court file be amended to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

Associate:

Dated:    29 August 2019