FEDERAL COURT OF AUSTRALIA

BAQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1847

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The adult appellants, being the first and second appellants, pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

BROMWICH J:

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia on 17 May 2019, by which an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal, was dismissed. The Tribunal had, on 8 February 2017, affirmed a decision of a delegate of the first respondent, now known as the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, to refuse the grant of protection visas to the appellants. It is convenient to refer to the principal claimant, the first appellant, simply as the appellant.

2    The appellant, his wife and their daughter are all citizens of Fiji. They are of Indian ethnicity. They arrived in Australia on three-month tourist visas on 11 December 2013. They lodged invalid protection visa applications just before their tourist visas expired in March 2014, and later made valid protection visa applications on 26 August 2014. The protection claims made at that time were in the visa application form and were very sparse, with the appellant indicating that he would provide documents later. No satisfactory explanation was given as to why, given the more than eight months since arrival in Australia, the basis for claiming protection could not have been made, or substantially made, by the time of validly applying for protection visas. As it transpired, the full suite of claims were not made until almost another two years had elapsed from the valid applications being made, commencing about two and a half years after arrival in Australia. This was not a promising beginning for credible and genuine applications for protection visas.

3    The applications were refused by a delegate of the Minister on 14 January 2015, principally upon the basis that the appellant did not attend an interview, which meant that the delegate was unable to make a finding about the credibility of the claims made in the protection visa applications. The non-attendance was because their migration agent did not tell them about the interview and they were not notified by the Minister’s Department, but nothing much turns on this.

4    The appellant and his wife and daughter applied for merits review of the delegate’s decision by the Tribunal. The review stage was the first time the appellant took the opportunity to advance substantive claims. The review application dated 27 January 2015 was:

(1)    accompanied by a short letter dated 26 January 2015;

(2)    supported by character references, some of them referring to the situation for Fijian Indians in general terms and the concerns the appellant had in equally general terms; and

(3)    supported by newspaper articles describing the situation for Fijian Indians in general terms.

One of the character referees described the appellant as being employed in a senior position at a company in the banking and finance industry with a high level of technical competence and skills in that industry.

5    The adult appellants subsequently advanced further claims, in the period from mid-April to late September 2016, therefore starting some 19 months after the valid protection visa applications were made:

(1)    in a statutory declaration by the appellant dated 18 April 2016;

(2)    at the first of two Tribunal hearings on 22 April 2016;

(3)    in a joint statutory declaration by the appellant and his wife dated 2 July 2016;

(4)    at a second Tribunal hearing on 5 September 2016; and

(5)    in a further joint statutory declaration after the second Tribunal hearing dated 29 September 2016.

6    The various claims were considered by the Tribunal in considerable detail. The Tribunal had concerns, described in detail over 20 typewritten pages of the Tribunal’s reasons, about:

(1)    the appellant’s credibility on nine bases;

(2)    the appellant’s wife’s credibility on four bases;

(3)    on the credibility of both adult appellants on six bases; and

(4)    the failure of the character references to mention any of the claimed specific past harm that the appellants said they had suffered.

7    The Tribunal found that, considered cumulatively, the concerns held about the adult appellants’ credibility led to the conclusion that they were not witnesses of truth and that they had fabricated accounts of events and claimed fears, upon which they based their protection claims.

8    The last of the 19 bases for concern about credibility, being the sixth joint concern, was the only aspect of the Tribunal’s decision that was the subject of the judicial review application, which was effectively maintained on appeal to this Court. The Tribunal’s concern was about the appellants’ allegation that it took them until their 2 July 2016 statutory declaration and the claims made at the second Tribunal hearing on 5 September 2016 to put forward all of their claims. The Tribunal had concerns about inconsistent information provided about the migration agent whom they blamed for not having made claims earlier. The Tribunal reasoned as follows (at [157] to [160]):

[157]    The Tribunal had concerns that the adult applicants gave inconsistent evidence about the claimed behaviour of the first agent. As put to the applicants at the second hearing (and referred to in the applicants’ fourth statement):

•    Their second statement claimed that they paid an initial $300 to the first agent and were requested to produce a further $700. However by this time (September 2014) they had finished all the money they had brought with them to Australia and did not have an income. They were “looking to borrow this $700”; it was only at the end of January 2015 that they borrowed the money and then the female applicant went to the first agent’s office.

•    Their third statement (after the first hearing) claimed that after they lodged their protection visa application they engaged the first agent. At the time of engaging him they paid him the monies that he asked for. They were advised he would take certain steps but they never heard from him.

[158]    The Tribunal put to the applicants that their third statement indicates that the lack of submissions was the fault of the first agent and the applicants had done everything they were meant to do, but their second statement indicated that they had not done everything they were meant to do, as they had not given him the money he required to get the file from the Department.

[159]    The female applicant claimed at the second hearing that the $700 was due once he had told them he had obtained a copy of the file however he did not thereafter contact them to ask them to pay the $700 (which money they did not have anyway). This was repeated in the fourth statement. In the fourth statement they said that they called the agent a few times and the receptionist told them that once they paid the deposit the agent would advise them accordingly; the applicants do not indicate that they paid the deposit referred to as required by the receptionist.

[160]    The Tribunal considers that their changing/inconsistent evidence about what was meant to occur with the first agent undermines their credibility and the blame they attach to their first agent and his actions.

9    The Tribunal concluded (at [164] to [166]):

[164]    The Tribunal was further concerned because, although the applicants appeared to complain and rely upon defects of their previous agents (which they had listed in detail in their third statement), as put to them at the second hearing, they had not made any attempt to complain about those agents to the relevant authority (MARA), including for example against the first agent and his actions which they claim led to the refusal of their claims by the Department on 14 January 2015. They then said to the Tribunal that they will lodge complaints against their former agents but their priority has been this Tribunal process. The Tribunal does not accept this explanation, noting for example that there was a period of over one year from the time their claim was refused (fault of first agent and Department) and the first Tribunal hearing, during which time they could have complained about that agent (and the Department). Further, they suggested that the second agent was also at fault by about May 2016, yet even by the time of the post-second hearing submissions (September 2016) they had not made a complaint to MARA about that agent. The Tribunal considers that their failure to lodge complaints about their claimed agents at the first opportunity (January 2015 concerning the first agent and May 2016 about the second agent) undermines their claims about these agents.

[165]    The Tribunal considers that the applicants had plenty of time between the time of their arrival in December 2013 and the time of lodgement of their (second) protection visa application forms in August 2014 to put forward all of their claims. The Tribunal is not prepared to accept their assertions that it took them until their third statement and a second hearing for them to put forward all of their claims, and that this was the fault of others, not their own. The Tribunal considers that their evolving claims undermines their credibility, and their claims.

[166]    On the basis of the above, the Tribunal considers that the adult applicants were not witnesses of truth either in relation to their own claims, each other’s, or in relation to the child applicant.

10    The Tribunal, after commenting upon the lack of corroboration for any of the specific claims made in any of the character references provided, then made findings about the appellants’ claims, and then considered country information in some detail. The Tribunal concluded (at [213]):

The Tribunal has considered the applicants’ claims individually, and on a cumulative basis, having regard to the findings that the adult applicants are not credible witnesses concerning past or future harm feared, as well as the relevant country information, other than those claims accepted above, the Tribunal rejects all the various claims made and finds that they do not have a well-founded fear of persecution for any of the reasons put forward by them or on their behalf.

11    As to complementary protection, the Tribunal was not satisfied that there was any real risk that the appellants would face a real risk of adverse attention amounting to significant harm from anyone, for any reason.

12    The Tribunal therefore affirmed the delegate’s decision.

13    On 13 March 2017, the appellants applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. They ultimately relied upon a further amended application advancing a single ground of review, with particulars.

14    The protection visa applications were based on the appellant’s claim that he and his family had experienced harm in Fiji. He claimed to fear harm if he and his family were to return to Fiji because of eviction from Native Land Lease areas of Indo-Fijians. It is convenient to reproduce the Minister’s accurate and concise summary of the challenge that was advanced before the Federal Circuit Court and of the primary judge’s reasons for dismissing each aspect of that challenge:

First, that the Tribunal erred in finding at AB 672 [165] that the appellants had plenty of time to put forward all their claims between their arrival in December 2013 and the lodgement of their second protection visa application in August 2014, and was not prepared to accept that it took them until their third statement (2 July 2016) and second hearing before the Tribunal (29 August 2016) to put forward all their claims. As his Honour held at [64-83], the Tribunal did not deny that the invitation to the hearing on 14 January 2015 before the delegate should have been sent to the appellants as well as their agent, or that their agent did not tell them about the hearing. Rather, while accepting this, the appellants still had ample opportunity to put forward their complete claims before the second hearing before the Tribunal. The Tribunal’s conclusion to that effect was, as his Honour held, open and not legally unreasonable.

Second, the Tribunal erred in finding at AB 670-671 [157-160] an inconsistency in the appellants’ evidence about whether they had paid their agent a requested $700. As his Honour held at [84-107] the Tribunal’s conclusion was reasonably open and not legally unreasonable.

Third, that the Tribunal erred at AB 671 [164] in finding that the appellants’ failure to complain about their agents undermined their claims about them. As his Honour held at [108-125] the Tribunal’s conclusion was again reasonably open and not legally unreasonable.

15    The Minister further points out, accurately, that the primary judge held that the appellants’ complaints were as to only one of the 19 bases for credibility concerns, referred to at [9] above, characterising the impugned findings as “but a minute part” of the Tribunal’s comprehensive reasoning as to why the adult appellants were not believed. The Minister therefore effectively submits that even if the reasoning attacked was found to be defective, that would not be enough to establish legal unreasonableness overall, citing Pennie v Minister for Home Affairs [2019] FCAFC 129 at [24]:

Finally, we note that even if there had been irrationality demonstrated in the particular findings it would still have been necessary for Mr Pennie to demonstrate that the decision was unreasonable by reason of that aspect of the reasons.  As stated in Tsvetnenko v United States of America [2019] FCAFC 74 at [85] (Besanko, Banks-Smith and Colvin JJ):

[R]eview for legal unreasonableness concerns the overall character of an administrative decision. Erroneous or illogical reasoning at a particular point in the decision-making process may or may not lead to the conclusion that the decision as a whole fails to conform to the implied statutory standard of reasonableness.

Unreasonableness of the kind described in authorities such as Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 is a narrow ground of review.  There was no attempt before the primary judge or on appeal to demonstrate that the alleged irrationality, if established, was of such a character that it made the decision as a whole unreasonable in the requisite sense.

16    The Minister submits that as the notice of appeal is in substance a rerun of the case advanced below, and no error on the part of the primary judge is established, the appeal should be dismissed with costs. That is a generous way to read the notice of appeal, but it is a satisfactory and fair way in which to approach this appeal as the substance is much the same as it was before the primary judge.

17    The appellants did not furnish any written submissions. Rather, supported by an affidavit from the appellant affirmed 24 October 2019, the appellants applied for an adjournment of the hearing. That application was refused with oral reasons being separately given. The appellants therefore said that they were unable to make any submissions in support of their appeal and did not make any such submissions.

18    I can see no error in the reasoning or conclusions of the primary judge, nor any error, let alone jurisdictional error, on the part of the Tribunal as alleged below and on appeal. In particular, by reference to the notice of appeal:

(1)    there was nothing unreasonable, let alone legally unreasonable, in the Tribunal finding that the appellants had plenty of time between arrival in Australia in December 2013 and lodging valid protection visa applications in August 2014 to put forward all their claims, which had nothing to do with the error in not notifying them about the delegate’s interview because that came later;

(2)    nor was there anything unreasonable, let alone legally unreasonable, in the Tribunal not accepting that it took the appellants almost a further two years, until their 2 July 2016 statutory declaration and beyond at the second Tribunal hearing on 5 September 2016 to put forward all of their claims, and in not accepting that this was the fault of others;

(3)    far from the Tribunal erring in finding inconsistency between the statutory declaration by the appellant dated 18 April 2016 and the joint statutory declaration by the appellant and his wife dated 2 July 2016, and far from the primary judge erring in not finding error on the part of the Tribunal, the two statutory declarations are plainly inconsistent in the manner that the Tribunal identified;

(4)    the findings of the Tribunal concerning the absence of a complaint being made against the migration agent were open, and there was no obligation to accept the explanation given by the appellants, let alone any legal unreasonableness in failing to do so; and

(5)    there is no proper foundation for the assertion now made that the adverse findings made by the Tribunal stem from the error in not notifying the appellants about the delegate’s interview, or that this was part of a “chain reaction” leading to the findings complained about.

19    As the complaints about the impugned findings have not been made good, it is not necessary to decide that even if they had been established, this would not have amounted to jurisdictional error. However, and for completeness, there was no meaningful attempt that is apparent below, and certainly not on appeal, to demonstrate that, had the challenge to the impugned part of the Tribunal’s reasons been made good, that would have made the decision as a whole legally unreasonable.

20    The appeal must be dismissed with costs.

Associate:

Dated:    11 November 2019