FEDERAL COURT OF AUSTRALIA

CYO17 v Minister for Immigration and Border Protection [2019] FCA 1584

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the costs of the first respondent, as agreed or assessed.

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

REASONS FOR JUDGMENT

SNADEN J:

1    The appellant is a 30-year-old citizen of Malaysia. In June 2016, he visited Australia on an Electronic Travel Authority visa. On 10 August 2016, he made an application under the Migration Act 1958 (Cth) (hereafter, “the Act”) for a protection visa (within the meaning attributed to that phrase by the Act). I shall refer to that application hereafter as, the “Visa Application”.

2    The bases upon which the appellant sought protection are simple enough. He claimed to have been accused of a crime or crimes that he did not commit. The circumstances leading to that require some elaboration. They begin in early May 2016, when the appellant says that he was at a house in Malaysia with some friends of his. He claims that police attended at the house, whereupon they conducted a search and uncovered a quantity of drugs and/or pills. They also searched the appellant’s car, which was parked outside, and found within it a Beretta pistol. The appellant says that he did not own the drugs or the gun. Nonetheless, he and two others were said to have been arrested and, in his words, “sentence[d] to prison”. He says that he was released after eight days (or possibly after 14 days) in custody after he was “bailed out” or, potentially, after his father paid police a bribe (the precise circumstances of his release are far from clear). He also claimed that his release was said to have been a consequence of his serving as a witness for the police, although it is not clear, either to the court or, it would seem, to the appellant, why the police (or anyone) would have made any such claim.

3    Regardless, the appellant maintains that the drugs and the gun (or, perhaps, some portion of those things) belonged not to him but to members of a gang. Members of that gang, he says, are now hunting him, apparently convinced that it was the appellant who was responsible for the police raid on the premises and the confiscation of some or all of the drugs or pills that the police discovered.

4    He says that, after his release from jail, associates of his friends—at least two of whom remained in jail—sought revenge against him. The forms that those attempts at revenge are said to have assumed are difficult to fully grasp; but, in summary, the appellant maintains that associates of the gang threatened him many times, “ma[de] chaos” in front of his house, let the air out of his car’s tyres and threw paint on his car.

5    The appellant says that he did not try to move to another part of Malaysia after the events in question, because, so he contends, the gang had associates throughout the country and would follow him wherever he went. That is why, he said, he decided to leave Malaysia altogether. He is of the view that the gang members will not tire until they exact revenge upon him, which he says will likely take the form of serious physical harm or death.

6    The appellant said that the authorities in Malaysia were and are unable to protect him, largely because he does not want to involve them. That reticence arises from the fact that the appellant himself has been the subject of police attention; and from his concern that reliance upon the police will only amplify the gang’s determination to exact revenge against him. There may also be some difficulty associated with the fact (or perhaps more accurately, the possibility) that the appellant was released from prison upon payment of a bribe. The appellant also claimed that the gang members have links to the police that, presumably, would reduce the latter’s willingness to afford the appellant effective protection.

7    On 23 November 2016, a delegate of the first respondent (hereafter, the “Minister”), refused the appellant’s Visa Application. In short, the delegate did not believe the appellant’s narrative. The appellant then applied to the second respondent (hereafter, the “Tribunal”) for a review of that decision.

THE TRIBUNAL DECISION

8    On 20 March 2017, the appellant attended a hearing before the Tribunal to give evidence and present arguments as to why his Visa Application should succeed. During that hearing, he indicated a desire to tender some documents that, he said, would corroborate his account of having been arrested and/or charged and/or jailed over the incident at the centre of his Visa Application. He sought a month within which to provide that material. The Tribunal, apparently (and, in my view, understandably) unimpressed by the appellant’s failure to come armed with that information on the day, gave him seven days to produce untranslated documents, and a further two days thereafter to produce English-translated versions. The Tribunal indicated at the time that it considered that those deadlines were reasonable given that the Visa Application had, by then, been live for approximately seven months; and that the appellant had been on notice since the delegate’s decision of 23 November 2016 of the fact that his claims would benefit from some corroboration.

9    The appellant also raised before the Tribunal a new allegation about having been subjected by Malaysian police to physical mistreatment a short time after his arrest.

10    Within the timeframe that the Tribunal had set, the appellant was able to produce two documents: the first appearing to be a court record showing that the appellant’s car had been impounded in May 2016 (hereafter, the “Court Record”); the second appearing to be a Royal Malaysian Police Report (hereafter, the “Police Report”). That latter document was more or less consistent with the account that the appellant gave the Tribunal of the night that he and others were arrested.

11    On 7 June 2017, the Tribunal upheld the delegate’s decision to refuse the appellant’s Visa Application (that decision is referred to, hereafter, as the “Tribunal Decision”).

12    In doing so, the Tribunal made the following findings (references omitted):

49.    As to the [appellant] fearing return for the reasons he claims, for the reasons that follow the Tribunal does not accept that the [appellant] is a credible witness. His account as to the difficulties he faced in Malaysia and why he fears return was inconsistent between the Department and Tribunal. It follows that it finds the [appellant] was never arrested or detained by police for drug or weapons charges, held in remand, charged, released on bail by paying 30,000RM or released as a witness. It follows it does not accept he was ever harassed or threatened by police or gangsters or his father secretly paid a bribe to have him released. It finds the [appellant]’s testimony inconsistent and a fabrication for the reasons set out below. This leads the Tribunal to find that the [appellant] is not a witness of truth.

50.    Firstly, he has provided inconsistent evidence as to whether he was charged and released on bail or not. In his protection visa application he claims he departed Malaysia as he was charged and accused of crimes he did not commit. He claims 8 days after he was arrested he was bailed out for RM 30,000. However, in contrast at the hearing he said and confirmed he was not charged, there are no pending charges against him, there was no bail rather he was released as a witness for the police. When the inconsistency was raised with the [appellant] he gave a number of reasons for the inconsistency. He referred to his ignorance as to the terms of being released, released on bail and released as a witness and said he only came to know he was not charged and not released on bail and released as a witness after he applied for his protection visa application when he talked further with his father. He said the confusion arose as his father had told him the case was still under his name and he had to present when required. He said he had no idea what was going on and thought he was released on bail. The Tribunal does not accept the [appellant]’s reasons for the inconsistency. Firstly, as he is well educated having completed high school and obtained a Diploma the Tribunal expects he would know after being detained for over a week whether he was charged and released on bail or released as a witness at or close to the time it occurred, not after August 2016 when he applied for protection. Further, it is his evidence he was living with his father after his release and the Tribunal is of the view he would have clarified with him the details of the release, as it is his claim at hearing his father was centrally involved. Further, his earlier evidence to the Tribunal at hearing is inconsistent with this latter claim as to the reason for the inconsistency, in that he stated that when the police officer read the case to the court after his time in remand, he heard the officer state that he was being released as a witness of police, he was not given bail or charged nor asked to pay money. The inconsistency in evidence between his claims in his application and internal inconsistency as to whether he was charged and released on bail, adds to the finding the [appellant] is not a credible witness.

51.    Further, the [appellant] has been inconsistent between his claims in his protection visa application and at hearing as to his father’s involvement and why he had to pay 30,000RM as a bribe for his release. In his application for a protection visa the [appellant] claims that he paid 30,000RM to be released on bail. There is no mention in the application of the involvement of his father. However, in contrast at the hearing before me the [appellant] claims he did not know what was going on after he was initially arrested, and his father later told him that the police had contacted him. He said his father told him that the police had told him that the [appellant] would be charged for the drug crime with death by hanging unless he paid 30,000RM. He said as a result his father paid a bribe to the police of 30,000RM and then the [appellant] was released. He said at hearing he was not released on bail and did not refer to having to pay money to be released on bail. When the inconsistency in evidence was raised with the [appellant] he indicated that he is new to Australia and he did not want to bring his father into it. He said there are no guidelines on how to apply and he did his best. He said he was unsure what to include. The Tribunal does not accept these responses as explaining the inconsistency and omission in evidence. The [appellant] has provided contradictory evidence between the Department and Tribunal as to why he had to pay the 30,000RM. It is also of the view the role of his father in having to pay the bribe and negotiating his release is so significant that he would have included it in the application if true, even if there are no guidelines on how to apply. It has difficulty accepting he would not want to bring his father into it when the process of applying is confidential. These inconsistencies add to the finding the [appellant] is not a credible witness.

52.    The [appellant] has also provided inconsistent evidence as to how long he was detained. In his application for a protection visa he claims it was for 8 days and in his evidence to the Tribunal at hearing he said it was for 12 to 14 days or two weeks. He said his father was called to the station after 8 days but said he was not released for two weeks. When raised with him he said he felt confident in his new country and felt safe. The Tribunal is of the view if the [appellant] was detained in May 2016, being less than a year before the hearing that he would due to its significance be able to recall for how long he was detained consistently between his application and the hearing, even if new to the country and felt confident. This adds to the finding he is not a credible witness.

53.    The Tribunal also views as of concern that the [appellant] omitted to refer to the police harming him by slapping and hitting him in his protection visa application, as he claimed at hearing, when he went to collect his vehicle. The Tribunal is of the view if the [appellant] was hit by the police, due to its seriousness, he would have referred to it in his application if true. This adds to the finding he is not a credible witness.

54.    The Tribunal also views as of concern that despite claiming he went to court and was released, his complete lack of knowledge as to the court. While he knew it was located in Banting he did not know the name of the court, the level or where in Banting it was situated. He could not name the judge only saying it was a Malay lady. The Tribunal is of the view that a person with the level of education that the [appellant] had achieved would be able to provide more detail as to his court he attended than that which he provided. While not solely determinative his lack of detail in this regard adds to the finding he is not a credible witness.

55.    The Tribunal also views as inconsistent with his claim he fled in fear of his life and faced the difficulties he claims from the gangsters and police, his evidence at the hearing that he lived at home with his family until his departure. He said he travelled from his home to the airport and had lived there since he was young. Only later in the hearing when the Tribunal raised its concern in this regard did he claim that he only went home for short naps and would go and stay at relatives’ houses. The Tribunal does not accept this response and is of the view if this was the case he would have raised it earlier not only when the concern was raised, especially as it asked him whether he lived at his home until his departure. Further, it is of the view if he faced the difficulties he claims from the gangs/gangsters, his life was threatened as he claims and the gangs had come to his house, therefore knowing where he lived, that he would not return home for short naps. His continued stay at his home until his departure undermines the credibility of his claim to have faced the difficulties he claims at the hands of the gangs/gangsters and to fear return on that basis. It adds to the finding he is not a credible witness.

56.    The Tribunal views the above internal inconsistencies and concerns to be significant and as outlined above does not accept the [appellant]’s responses for the inconsistencies. These matters cumulatively lead the Tribunal to find the [appellant] is not a credible witness.

…

57.    For all the above reasons, considered cumulatively the Tribunal does not find the [appellant] to be a credible, truthful and reliable witness. The Tribunal is of the view that the [appellant] has fabricated claims and concocted evidence to achieve an immigration outcome. On the basis of the above cumulative credibility concerns the Tribunal therefore does not accept that the [appellant] is a credible witness and cannot be satisfied on the evidence before it that the [appellant] is a truthful witness as to his claims.

58.    In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner of which a question is asked. It is also sensitive to the various cultural differences that can impact on an [appellant]’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the [appellant] is not a reliable witness as to these claims.

59.    In making this finding the Tribunal accepts that some information has been consistent over time, such that he was with friends at another friend’s house when the police came and detained them for possessing drugs on 4 May 2016, a gun was found in his car and he fears return from the gangsters who threw paint at his house and threatened him. However the Tribunal considers that these matters are relatively easy matters to recall and his consistency in these matters does not outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the [appellant] is not a credible witness.

60.    In making this finding the Tribunal has also considered the two police reports submitted by the [appellant] after the hearing but on the basis of the [appellant]’s complete lack of credibility and on the prevalence of document fraud in Malaysia places no weight on these documents as evidence of his claims.

61.    As the Tribunal has found on the basis of the cumulative evidence before it that the [appellant] is not a witness of truth, it follows it does not accept he was with friends at another friend’s house in May 2016 when the police arrested them for having in their possession cannabis, amphetamines and other drugs. It follows it does not accept his car was searched and a gun, bullets or anything else was found it. It follows it does not accept as true he was taken to court or held in remand for any period in May 2016, he was charged and accused of a crime he did not commit, released on bail of 30,000RM. It follows it does not accept his father was contacted while the [appellant] was in detention, and told the [appellant] could be charged with a crime with the penalty of death by hanging so paid the police a bribe of 30,000RM to have him released. It follows it does not accept he was released as a witness of police. It follows it does not accept he was later called by the police, hurt, harmed or threatened by them and had to pay 200RM to have his care released or that his car is still required under court order.

…

66.    The Tribunal rejects the [appellant]’s claims in their entirety and does not accept he has a profile with or is known by the police, authorities, gangs or anyone else for the reasons he claims. It follows it does not accept he came to Australia in June 2016 in fear for the reasons he claims or to protect his dignity, save himself from harm or as he was traumatised or as he could not go anywhere in Malaysia as the police and gangsters would find him.

13    On the strength of those findings, the Tribunal determined that the appellant did not satisfy any of the criteria that condition the grant of protection visas under the Act. It upheld the delegate’s decision to refuse the appellant’s Visa Application.

JUDICIAL REVIEW APPLICATION AND APPEAL

14    On 3 July 2017, the appellant commenced an action in the Federal Circuit Court of Australia (hereafter, the “FCCA”) for orders that the Tribunal Decision be quashed and that the Visa Application be remitted back to the Tribunal for redetermination. He contended that the Tribunal Decision was the product of jurisdictional error, which the FCCA was obliged to correct by means of the relief that he sought.

15    That application failed. On 6 March 2019, the FCCA declined to grant the orders sought and dismissed the appellant’s application with costs: CYO17 v Minister for Immigration & Anor [2019] FCCA 457 (Judge Dowdy).

16    The appellant now appeals from that judgment. By his notice of appeal, the appellant cites five grounds upon which he charges the FCCA with error. Only three of those five grounds are pressed. It is convenient to identify them (errors in original):

2.The Federal Circuit Court erred when it did not find the Tribunal failed to accord ‘to substantial justice and the merits of the case’ in compliance with S 420 (b) of the Migration Act by granting leave to the Applicant to obtain documents and to then, without considering any particular aspect of the documents, or without considering the documents in any meaningful way, or without making a finding that they were fraudulent, to reject them.

Particulars.

Tribunal decision at Paragraphs [59) and [60]

Federal Circuit Court at Paragraphs [19] – [28]

3. The Federal Circuit Court erred when it did not find the Tribunal, by granting leave to the Applicant to obtain documents and then determining to reject them,

i.without considering any particular aspect of the documents, or without considering the documents in any meaningful way, or otherwise by

ii.thereby making an unreasonable finding to reject them, or otherwise by

iii.failing to take into consideration relevant factors being the nature and content of the documents themselves, or otherwise by

iv.failing to engage in the Applicant's claim that the documents supported his claim that he had been arrested by police along with three others in relation to drugs and a pistol, or otherwise by

v.taking into account irrelevant factors being the DFAT Malaysian report, or otherwise by

vi.making a finding that there was a prevalence of document fraud in Malaysia without making a finding the specific documents were or were likely to be fraudulent.

Particulars.

Tribunal decision at Paragraphs [59] and [60)

Federal Circuit Court at Paragraphs [19] - [28]

[5].The Federal Circuit Court erred when it stated at [26] “The Applicant did in fact submit documents to the Tribunal which the Tribunal considered and took into account..”, when the Tribunal did not consider the 2 documents provided in any meaningful way nor took any aspect of them into account in any meaningful way, and rejected them on the basis of other material before it.

Particulars.

Tribunal decision at Paragraphs [59] and [60]

17    As he must if his appeal is to succeed, the appellant seeks to impugn the Tribunal Decision as a product of jurisdictional error. As is summarised above, his application for relief in the FCCA proceeded upon that same premise. However, the three species of error that he identifies in his grounds of appeal before this court are not the same (or, at least, are not quite the same) species of error of which he complained in the court below. To put it another way, the jurisdictional errors by reason of which he asks this court to quash the Tribunal Decision and remit the Visa Application for redetermination are not, in terms, the same alleged errors by reason of which he asked for equivalent relief in the court below.

18    Assuming that there is, as there appears to be, some divergence in the grounds advanced below and now—and given that he did not press in the court below what he seeks to press now—the appellant likely requires leave to agitate the grounds that he now wishes to agitate. The Minister—very sensibly, if I may say so—did not oppose his having that leave (if he required it) and I proceed on the basis that he should have it if he needs it.

19    Before coming to the grounds now pressed, mention should be made of the FCCA’s reasoning. It is not necessary that I should here set out the findings upon which the FCCA decided as it did. To the extent that they pertain to grounds that are not pressed in this appeal, there is no challenge to them. To the extent that they are, directly or in effect, the subject of challenge here, the correctness of the court’s decision turns solely upon whether or not the Tribunal Decision was a product of jurisdictional error. If it wasn’t, then the FCCA will have correctly decided as much. If it was, then the FCCA will have erred.

THE THREE APPEAL GROUNDS: LEGAL UNREASONABLENESS

20    I turn, then, to the three grounds that the appellant presses. Counsel for the appellant—again, if I may say so, sensibly—accepted that all three grounds arise from the same premise. It is convenient, then, to address that premise all-inclusively.

21    The appellant complains that the Tribunal wrongly ignored or disregarded the documents that he produced after the Tribunal hearing of 20 March 2017 (that is, the Court Record and the Police Report). Those documents, he says, corroborated his account of having been arrested on 4 May 2016. The nub of the appellant’s complaint is that the Tribunal did not find that they were fraudulent; it simply determined not to afford them any weight. In doing so, it should, so the appellant contends, be understood to have not seriously considered what he had advanced. Further, the appellant says that it was unreasonable (in the sense identified in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”), 351 [29]-[30] (French CJ), 362 [63] (Hayne, Kiefel and Bell JJ), 370 [88]-[89] (Gageler J)) in the circumstances for the Tribunal to have made adverse credibility findings against him (which, in turn, were at the centre of its wholesale rejection of his narrative). Either way, the Tribunal Decision was, he says, the product of jurisdictional error, which ought to be corrected by means of the relief that is sought.

22    Respectfully, I don’t accept the appellant’s contentions.

23    Insofar as it resolved not to afford the documents in question any weight, the Tribunal was not obliged to first find that they were inauthentic. In AAG16 v Minister for Immigration and Border Protection [2019] FCA 1214, I had occasion to consider an almost identical argument. There, an applicant for a protection visa claimed to have been the subject of death threats that he said had been made by the Pakistani Taliban. He produced what he said were documents that made those threats explicitly. The Tribunal, in that case, placed little weight upon those documents but did not, in terms, find that they were inauthentic. The appellant contended that it could not ignore the content of the two documents without first finding that they were fakes. The appellant here advanced precisely the same contention. I made the following observations (the references to the “TTP Letters” were references to the documents upon which the appellant in that case relied):

49    The Act does not, in terms, impose upon the Tribunal an obligation to make any particular findings. Clearly in this case, the Tribunal could not discharge its statutory task without at least finding that it was or was not satisfied that the appellants met one or more of the criteria for which s 36 of the Act provides. Such a finding—and any others that went to what the Tribunal considered were material questions of fact—required expression in the Tribunal’s written decision: the Act, s 430(1); Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 346 (McHugh, Gummow and Hayne JJ). If it failed to record in its reasons the conclusions that it drew, and the evidence or other material upon which it drew them, then the Tribunal risked being thought to have not made them and, potentially thereby, to have overlooked matters that it was obliged to consider. That, in turn, would expose it to a charge that it had failed to perform the statutory task with which it was entrusted: Minister for Home Affairs v Buadromo (2018) 362 ALR 48 (“Buadromo”), 59 [47] (Besanko, Barker and Bromwich JJ).

50    The appellants maintain that the Tribunal was obliged to make (and state) a finding as to whether or not the TTP Letters were authentic. Heavy reliance was placed to that end upon the decision of this court in NAQG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1631 (“NAQG”) (Allsop J). There, the court set aside a decision of the Refugee Review Tribunal by which an application relevantly identical to the one presently under consideration was declined. The appellants were a family of Bangladeshi citizens. The husband and wife appellants, who claimed to have been politically active in Bangladesh, sought protection on the basis that they would be persecuted in their homeland because of that activism. In support of that claim, the husband claimed that he had been falsely charged with some offences in Bangladesh and tendered some documents that he said established as much. Country information available to the Tribunal suggested that false documentation of the kind upon which the appellants relied was easily obtained. In rejecting the applicants’ claims, the tribunal concluded that the husband had not, in fact, been falsely charged. However, save for a summary reference to having received them, it said nothing about the documents upon which the appellants had relied to establish that proposition. Allsop J observed (at [17]):

[T]he issue as to whether the Tribunal completed its jurisdictional task arises if it can be seen to have decided a fact without addressing material before it which, on its face, contradicted the conclusion that it was otherwise minded to draw and which it expressed.

    Later, at [41]-[42], his Honour stated:

If the Tribunal has not made a finding about the documents in question it has failed, in my view, to complete its jurisdictional task. It simply cannot conclude that there are no false charges only upon disbelieving the first appellant’s evidence, without making a finding upon documents which on their face prove the fact that there are such charges.

…

[T]he evidence, which is not merely corroborative, but on its face documentary evidence negating of the fact otherwise found, was not dealt with.

(emphasis added)

51    For obvious reasons, the appellants point to the words emphasised above. So the submission proceeds, they reflect that the Tribunal was obliged to state in its reasons either that the TTP Letters were or were not authentic; and that its failure to do so amounts to a failure to understand and properly discharge the statutory function with which it was entrusted.

52    The language employed in NAQG—referring, as it does, to the Tribunal “making a finding”—is not limited to that authority. In [Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559], the majority (Brennan CJ, Dawson J, Toohey J, Gaudron J, McHugh J and Gummow JJ) discussed the need, in cases such as the present, for the Tribunal to engage in what I have described above as “informed speculation” about what might happen to a visa applicant if he or she is returned to his or her country of origin. At 575, it said:

In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. In the present case, for example, the Tribunal correctly relied on what it found had happened to Mr Guo and others to make a finding that he was not “differentially at risk for a Convention reason.” Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the Tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reason if he were returned to the PRC.

(emphasis added)

53    The authenticity of the TTP Letters was a matter that, together with others, was capable of informing the Tribunal’s assessment of whether or not the TTP had accused the first appellant of spying and, for that reason, had threatened his life. That was an issue of the sort to which the High Court in Guo referred in the passage cited above: it was one that called for a conclusion (that is to say, a “finding”) as to the occurrence of a past event (namely, whether the first appellant’s life had been threatened) in order that an assessment might be made of the likelihood of a future event (namely, that the first appellant would be subjected to relevant persecution or harm were he to return to Pakistan). Questions arising in respect of the evidence and submissions that informed that conclusion, however, would not themselves qualify as questions of material fact.

54    I do not read either NAQG or Guo as requiring that the Tribunal make and record findings on intermediate factual or evidential issues. On the contrary, I consider that the law is clear that it is under no such obligation. A finding of fact “…may not be required if the claim or issue is irrelevant or if it is subsumed within a claim or issue of greater generality”: Buadromo, 59 [46] (Besanko, Barker and Bromwich JJ); see also Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, 604-605 [46]-[47] (French, Sackville and Hely JJ).

55    Further and more significantly, the weight to be given to the evidence about a particular fact is a matter for the Tribunal: Abebe v The Commonwealth (1999) 197 CLR 510, 580 [197] (Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 (“SZJSS”), 176 [33] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

56    Whether or not the TTP Letters were or were not authentic was not dispositive of the Tribunal’s review of the Minister’s Decision. It would have been open to the Tribunal to find that they were authentic but that the first appellant nonetheless did not satisfy one or more of the criteria upon which his Visa Application turned (for example, because he might reasonably avoid the risks that they foreshadowed by relocating to another part of Pakistan); or even, alternatively (although perhaps less likely), that he did notwithstanding that they were fakes. The weight (if any) to be given to the TTP Letters was a matter for the Tribunal: SZJSS, 176 [33] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). Subject to the principles of legal unreasonableness (with which this ground of appeal does not engage), the Tribunal could attribute to the TTP Letters whatever significance it considered was appropriate. It was obliged only to take account of them in forming the view that it formed about whether or not the first appellant had been threatened in the way that he claimed (and, more broadly, whether he was able to satisfy one or more of the criteria upon which his Visa Application turned).

57    To speak of its obligation to “take account” of the TTP Letters is to do no more than to recognise that the Tribunal was obliged to engage in an “active intellectual process” directed to the issue or question in respect of which the appellants advanced them: Tickner v Chapman (1995) 57 FCR 451, 462 (Black CJ), 476-477 (Burchett J), 495-496 (Kiefel J); Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, 364 (Griffiths, White and Bromwich JJ); Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1, 7 (Lindgren, Rares and Foster JJ); Telstra Corporation Ltd v ACCC (2008) 176 FCR 153, 181-182 (Rares J). The Tribunal was obliged to recognise that the TTP Letters were advanced in support of the appellants’ contention that the TTP had threatened the first appellant; and then, conscious of that reality, to turn its mind to whether or not the TTP Letters warranted acceptance of that claim.

58    There is not any real doubt that the Tribunal in this case turned its mind to—that is to say, engaged in an active intellectual process regarding—what should be made of the TTP Letters. Its reasons contained several references to them and exposed a clear consciousness of their significance to the appellants’ Visa Application (namely, that they supported the appellants’ contention that the TTP had mistaken the first appellant for a spy and had threatened him accordingly). The Tribunal evidently did not consider that the TTP Letters, viewed under the light of other considerations, were sufficient to warrant acceptance of that contention. Whether that was because it considered that they were fake was not stated (although it is difficult to envisage any other explanation). But, regardless, the Tribunal was not obliged to form or state a view on that, nor to explain “…the sub-set of reasons why it accepted or rejected individual pieces of evidence…”: Buadromo, 59 [48] (Besanko, Barker and Bromwich JJ); Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, 423 [67] (McHugh J). Subject to the principles governing legal unreasonableness—which, as already identified, are not engaged by this ground of appeal—it was for the Tribunal to determine what weight it gave to the evidence, including the TTP Letters, that informed its conclusion that the first appellant had not been mistaken for a spy or relevantly threatened.

24    Those passages expose the insurmountable challenge that the appellant here faces. The weight to be attributed to constituent parts of the evidence before the Tribunal was for the Tribunal to decide: Abebe v The Commonwealth (1999) 197 CLR 510, 580 [197] (Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, 176 [33] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). It is apparent on the face of the Tribunal Decision that it was cognisant of what the documents disclosed. It quite apparently understood their significance; but it was not moved to attribute weight to them for the reasons that it nominated: Tribunal Decision, [60]; above, [12].

25    It is, of course, the case that the Tribunal was obliged to consider the appellant’s claims about why it was that he feared that he would be harmed if returned to Malaysia; and that, to that end, it was obliged to consider the evidence that he advanced in support of his contention that such fears were well-founded (or why it was that he was at real risk of significant harm). I am not persuaded that the Tribunal failed on either of those fronts. A conclusion that the Tribunal has not engaged in an active intellectual process vis-à-vis a contention advanced before it is one that this court will not lightly make: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, 364 (Griffiths, White and Bromwich JJ). It most certainly will not be made merely because the Tribunal has favoured one conclusion over another.

26    Similarly, I am not persuaded that the Tribunal’s decision to treat the Court Record and Police Report as it did, and to proceed to make the credibility findings that it made, was (in either case) legally unreasonable. It can readily be accepted that, in discharging its statutory obligations, the Tribunal is (and was) obliged to act reasonably: Li, 351 [29]-[30] (French CJ), 362 [63] (Hayne, Kiefel and Bell JJ), 370 [88]-[89] (Gageler J). In Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 (Allsop CJ, Griffiths and Wigney JJ), this court—referring to Li, Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (Allsop CJ, Robertson and Mortimer JJ) and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (Allsop CJ, Griffiths and Wigney JJ)—observed (at 172 [65]):

…the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary: Stretton at [2] and [10] (Allsop CJ) and [62] (Griffiths J). That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise: Singh at [42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.

27    In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Crennan and Bell JJ observed (at 648 [131]) that:

…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.

28    To succeed on this front, then, the appellant needs to establish that, in light of the Court Record and the Police Report, the Tribunal had no option reasonably open to it other than to conclude that the appellant had, in fact, been arrested as he had claimed.

29    I do not accept that proposition. The Tribunal was not obliged to afford the documents any particular significance and it was open to the Tribunal—in the sense that the Tribunal, acting reasonably, was at liberty—to treat them in precisely the manner that it did. Given the inconsistencies to which the Tribunal pointed en route to making the findings that it did about the appellant’s credibility (Tribunal Decision, [49]; above, [12]), it was open to the Tribunal to reach the conclusions about his arrest that it did, even in the face of documents that tended to corroborate his story. It may well be—indeed, I accept that it certainly was the case—that it was also open to draw other conclusions, including that the appellant was arrested as he had said he had been. But given the obvious and pronounced difficulties with (and inconsistency in) a lot of his narrative—and the material before the Tribunal about the prevalence of document fraud in Malaysia—it was not beyond the Tribunal’s decisional freedom to reason that the Court Record and the Police Report should be given little if any weight. It cannot, then, be said that the adverse credit findings that the appellant seeks to impugn, nor the Tribunal’s rejection of his narrative about having been arrested as he claimed, were the product of legal unreasonableness.

30    In truth, the appellant’s complaint is that the Tribunal ought to have reached a different conclusion in light of the information that the documents contained; that is to say, that it ought not to have rejected his narrative about having been arrested in May 2016 and ought not to have written him off as untruthful in the way that it did. One may well understand why the appellant advances that argument; but the difficulty with it is that it does not bespeak jurisdictional error. It is, instead, an invitation to embark upon impermissible merits review.

31    None of the appellant’s grounds of appeal can be upheld. The appeal will be dismissed with costs.

Associate:

Dated:    30 September 2019