FEDERAL COURT OF AUSTRALIA

WZAUD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 219

ORDERS

THE COURT ORDERS THAT:

1.    The first appellant be appointed as litigation representative for the third appellant with effect from the filing of the appeal.

2.    Compliance with the requirements of r 9.63 and r 9.64 of the Federal Court Rules 2011 (Cth) be dispensed with.

3.    The name of the third appellant be amended to read, WZAUF by her litigation representative WZAUD.

4.    There be leave to raise the ground numbered 7 in the notice of appeal.

5.    Appeal dismissed.

6.    The first appellant do pay the first respondent's costs of the appeal fixed in the sum of $4,500.

7.    There be no order as to costs as against the second and third appellants.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The first appellant came to Australia from Zimbabwe on a student visa early in 2007. He was granted further students visas later in 2007 and in 2009. The 2009 visa was valid until 15 March 2012. On 14 March 2012 he applied for a protection visa. The second and third appellants are the wife and young daughter of the first appellant (husband). The wife also had student visas and then joined in her husband's application for a protection visa as a secondary applicant. The daughter was not yet born at that time. The protection visa application was refused. The appellants sought review in the Refugee Review Tribunal. The Tribunal affirmed the decision to refuse the protection visa application. The husband, wife and daughter sought review in the Federal Circuit Court, but that application was refused. They now bring an appeal.

Appeal grounds

2    The form in which the appeal grounds are expressed gives rise to some difficulty. They begin by stating, without any particulars, that the primary judge was in error in failing to uphold the review grounds raised. The lack of particularity is significant because the review grounds before the primary judge, though prepared by a lawyer, were discursive and, in many respects, did not reflect the fact that the application had to demonstrate jurisdictional error. Though expressed in a number of different ways, for the most part the grounds complained about the manner in which the Tribunal had found that the husband was an unreliable witness and then deployed that finding in reaching conclusions on various matters advanced to support the claim that the husband faces a real risk of harm if returned to Zimbabwe.

3    The appeal grounds list six errors that the Tribunal was alleged to have been made. They were expressed as follows (renumbering them 1 to 6):

1.    The Refugee Review Tribunal made an error of law by failing to conduct the hearing in a manner that was fair and just. The Tribunal hearing was not fair and just because the Tribunal made findings where there was no evidence to base such a finding, and further, the Tribunal made decisions which were not logical.

2.    The decisions of the Tribunal were so unreasonable that no reasonable Tribunal could have made such a decision.

3.    The Tribunal made an error by failing to point to some evidence upon which to base its finding that the Appellant was not a reliable witness.

4.    The Tribunal made an illogical finding of fact that the Appellant was not a credible witness.

5.    The Tribunal failed to engage in an active intellectual process in considering the Appellant's reasons for his delay in applying for a Protection visa.

6.    The Tribunal has taken into account an irrelevant consideration by considering an incorrect fact. The Tribunal raised the concern that that the Appellants' Protection visa application was only lodged after the First and Second Appellants' Student visas were cancelled. This is incorrect. The Appellants' Student visas were never cancelled, they simply expired.

4    Although for the most part the errors cover the same territory as the more extensive matters raised before the primary judge there is no attempt to link them to particular grounds advanced below or the manner in which those grounds were dealt with by the primary judge.

5    It is in that context that the appellants' written outline of submissions in the appeal fall to be considered. Although the husband appeared on his own behalf to make submissions (and said that he did so for all the appellants, see below), the submissions have plainly been prepared with some legal assistance. They include reference to legal authorities and divide the appeal into two parts. First, the errors listed at paras 1 to 5 above. Second, the matter listed at para 6 above. As to the first group of alleged errors, reliance is placed upon particulars and a summary that was advanced before the primary judge. In substance, the summary complains that the Tribunal did not provide any logical reasons for its adverse decision concerning the credibility of the husband. It submits that the Tribunal was obliged to expose reasons for that finding, but it did not do so. It is then said that it deployed that defective finding to reject the claims of the husband. It claims that the primary judge erred in not finding jurisdictional error on the basis of non-compliance. Accordingly, I will treat that matter as the first part of the appeal.

6    The written outline deals separately with the claim that there was reviewable error arising from a finding by the Tribunal that the student visas of the husband and wife were cancelled. I note that a written submission was advanced before the primary judge as to this aspect in the following terms:

The fact that the wife of the applicant had her visa cancelled is also an irrelevant consideration. The applicant did not apply for a protection visa because of the fact that his wife's visa was cancelled. The two issues are in no way connected. The Tribunal is taking into account another irrelevant consideration. The Tribunal has no evidence for its finding that the applicant made an application for a protection visa because of the fact that his wife's visa had been cancelled.

7    Therefore, it was not maintained before the primary judge that there was any error as to the finding made concerning cancellation of the visa. Accordingly, it was not a matter addressed in the reasons of the primary judge.

8    In those circumstances, I will treat the matter stated in para 6 as the second part of the appeal, being a ground of appeal that the appellant seeks leave to advance despite it not being raised before the primary judge. I note that the Minister opposes leave being granted to raise this second ground. It is opposed on the basis that no explanation is given as to why it was not raised below in circumstances where the appellants were legally represented and advanced detailed grounds. It is also said that the ground lacks sufficient merit for leave to be granted.

9    I observe that the appellants' written outline also includes a request that the Court 'do what is possible to assist [the appellants] and remain alert to the possibility of legal error in the Tribunal's decision' on the basis that the appellants are self-represented. Given that the submissions have plainly been prepared with legal assistance (a position confirmed by the appellant), I have considerable difficulty with the unqualified characterisation of the appellants as being self-represented. Further, the issue on appeal is whether error has been demonstrated in the reasoning of the primary judge.

10    The primary judge has provided extensive reasons dealing with discursive review grounds. It is not for this Court on appeal to go off in search of error by the Tribunal. To do so would be to go beyond the obligations which arise even where a litigant is truly self-represented. Those obligations extend to ensuring that a litigant has sufficient information about the practice and procedure of the court to ensure a fair hearing. I collected the relevant authorities in Zaghloul v Woodside Energy Limited (No 9) [2019] FCA 1718 at [17]. The requirement is one informed by what the particular circumstances require in order for a self-represented party to be afforded a fair hearing: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [59]-[77]. No issue arises as to whether the duties were not performed by the primary judge because the appellants had legal representation in the Federal Circuit Court.

11    I have reviewed the reasons of the Tribunal and the primary judge. I have considered the written submissions for the appellants. Other than in the written submissions, the husband does not point to any respect in which he is dissatisfied with the procedure followed by the primary judge. In the context of the submissions and the extensive grounds raised before the primary judge now condensed by the written submissions, I can identify no further respect in which the nature of the appeal process ought be explained in order for the appellants to be afforded a fair hearing on the appeal.

The Tribunal's reasons

12    The Tribunal recounted the evidence given by the husband concerning the basis of his alleged fear of being arrested, tortured, raped and killed if he was to return to Zimbabwe. The claims rested upon his alleged involvement with the Movement for Democratic Change (MDC) when he was in Zimbabwe. He said he was asked by a person (who he named) who was involved in the MDC to give him support and he did so. He described an alleged serious incident of physical and sexual abuse in late 2006 said to have been motivated by his involvement with the MDC. He explained that when he returned to Zimbabwe for a month in 2009 that he knew it was a gamble, but he returned to attend his sister's funeral and he had to pay someone to assist him to get through the airport.

13    The Tribunal recorded in its reasons that it raised with the husband its concerns about the significant delay between his arrival in Australia in 2007 and 2012 when he made the application for a protection visa. It expressed that matter as follows (para 44):

The Tribunal explained that it was concerned that there was a significant delay between his first arrival in Australia in 2007, and the applicant only making a protection visa application in 2012 after he and his wife's student visa was cancelled. The Tribunal put it to the applicant that such a delay may indicate there is not a genuine fear of persecution and that the applicant's evidence was not credible. The Tribunal invited the applicant to comment on this. The applicant responded that after what he had gone through, he did not want to go though it again and that he is not comfortable talking about the sexual abuse he experienced. He said he also kept on telling himself things would get better.

14    The Tribunal also dealt with the husband's evidence about how he obtained a police clearance certificate in Zimbabwe despite his claims (para 45). The Tribunal then dealt with country information. It dealt with the absence of any report about the named person having a role within the MDC of the kind described by the husband.

15    The Tribunal then made findings about the claims. At the beginning of the section of the reasons where the claims about harm were addressed, the Tribunal said (para 83):

On weighing all the evidence and after considering the applicant's claims and oral evidence carefully, the Tribunal concluded that the applicant is not a reliable witness. As will be explained in the relevant paragraphs which follow, the Tribunal found the applicant exaggerated the extent of his activism with the MDC. It also finds that it does not accept his claim that he was mistreated at the hands of the ZANU PF. The Tribunal also found inconsistencies, such as the delay in the application for a protection visa, and the inconsistency between what the applicant claims and the independent country information as to the circumstances in Zimbabwe further weaken the applicant's claims. For these reasons, the Tribunal considers the applicant's evidence is not reliable.

16    It can be seen that the finding in the first sentence rested upon the following matters:

(1)    subsequent findings that claims of activism in the MDC were exaggerated;

(2)    the rejection of the husband's claim of mistreatment for political reasons;

(3)    delay by the husband in making the claim to protection; and

(4)    inconsistency between the claims by the husband and the country information.

17    Therefore, the overall finding as to credibility was said to be supported by what was to follow, including findings of delay and inconsistency.

18    The paragraph stating the finding on credibility was followed by reasons why the account concerning the person who was alleged to have led to his involvement with the MDC was not accepted (para 84). The Tribunal was not satisfied that the husband was an active member of the MDC. It relied upon the earlier finding about the absence of reports, the credibility finding already made and a finding that the account appeared to be 'rehearsed and insincere'.

19    In this and subsequent findings the Tribunal relied upon its finding at para 83 that the husband was not a reliable witness (see, for example, para 84). However, it also included separate and further reasons as to why particular aspects of the account by the husband were not accepted (see, for example, paras 88-90).

20    As to the claim of mistreatment, the Tribunal found that the husband was not truthful in the account he gave (para 86). Its finding rested upon the earlier finding that he was not a member of the MDC and his failure to seek medical treatment. Therefore, its finding on these matters did not depend upon its earlier general finding at para 83. The same position applied to other claims made to support his claim of risk of harm due to his alleged involvement with the MDC (paras 87-88).

21    The Tribunal also dealt with inconsistencies with the country information. It found that if the husband was indeed connected with the MDC then he would have been questioned or detained when he returned (para 88). This reasoning was not based upon any general credibility assessment of the husband.

22    The Tribunal dealt in more detail with the significance of the delay in making the claim to protection in the following terms (at para 89):

The Tribunal considered the applicant's explanation as to the delay between his arrival in Australia and the application for the protection visa. The Tribunal notes that the applicant said he hoped that things would get better and that this is why he did not apply for protection upon arrival in Australia, or shortly thereafter. The Tribunal finds this an implausible explanation, given the description he has given of his severe mistreatment, including beating, abuse, being burned by melted plastic, and sexual assault. The Tribunal considers that if all this had indeed occurred as described, it is unlikely that the applicant would delay applying for a protection visa upon his arrival in Australia. The Tribunal finds that the applicant's delay is, contrary to the submissions of the applicant's representative, a relevant consideration in assessing the genuineness of the claimed fear by the applicants. In this case, given the significant delay in the application for a protection visa, the Tribunal concludes that the applicant did not hold a fear of serious harm at the prospect of return to Zimbabwe.

23    The Tribunal also dealt with the evidence about the return to Zimbabwe in 2009 and rejected the claim that the experience on that return trip was the catalyst for the claim to protection (para 90). It concluded those findings with the following finding:

… Having regard to all the evidence, the Tribunal finds that it is rather more than less likely that the reason for the applicant's application at the time it was made is because the applicant had exhausted other visa options when he was no longer able to continue studies.

24    The reasoning in that paragraph must be considered in the context of the earlier reasoned findings for not accepting the claims made by the husband.

25    The Tribunal rejected the account of the wife, principally on the basis of its earlier findings that they were not of interest to the ruling forces (para 91).

26    Ultimately the Tribunal was prepared to accept that the husband had been a 'passive and ordinary member of the MDC' (para 84), but no more. On the basis of that finding and its reasoned view that 'the security situation in Zimbabwe has improved significantly and is generally calm' (para 92), the claims were rejected.

Part 1: Credibility findings by the Tribunal

27    The Tribunal's reasoning as to credibility had a degree of circularity. The finding at para 83 that the husband was not a reliable witness was stated to be based, amongst other things, upon the conclusion that the husband's claims of activism with the MDC were exaggerated. That claim was then rejected, in part based upon the general finding of unreliability. However, there were a number of independent reasons given for the conclusion reached. Further, although views about the credibility of the husband's account formed the basis for other reasoning, the Tribunal gave separate reasons for its conclusions.

28    Assessment of the credibility of the account given is a matter for the Tribunal. It is at the heart of its statutory task. The Tribunal must engage intellectually with that task and provide reasons for any adverse view that it forms. Those reasons must disclose an approach that is legally reasonable in the sense that it manifests logic, method and reasoning of a kind that is consistent with a reasonable discharge of the statutory task.

29    The principles to be applied in assessing whether there has been jurisdictional error by reason of a breach of the implied standard of reasonableness in fact-finding were summarised in Vo v Minister for Home Affairs [2019] FCAFC 108 at [43] (Derrington, Banks-Smith and Colvin JJ). Further, where inconsistency is relied upon by the decision-maker then any assessment on review of the reasonableness of the approach must be mindful of the matters explained in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83 at [22]-[41] (Kenny, Griffiths and Mortimer JJ). Also, the form in which error that amounts to a failure to properly discharge the fact-finding task entrusted by statute to the Tribunal may be demonstrated is not confined to unreasonableness. It may be manifest where a conclusion is supported by illogical or irrational reasoning, especially as to a critical step or a failure to actively engage in the fact-finding task such that the reasoning is superficial or fails to adequately descend into a true evaluation of the factual material: BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292 at [32]-[38] (Perram, Perry and O'Callaghan JJ).

30    Applying those principles, whilst the circular aspects of certain parts of the reasoning by the Tribunal might be criticised, I am satisfied that the decision and the reasons meet the required legal standard of reasonableness and have the requisite statutory character.

31    It is not the case, as submitted in the summary provided to the primary judge (and relied upon in support of the appeal) that no logical reasons were provided by the Tribunal to support its decision concerning the credibility of the account given by the husband. The conclusions reached were reasoned and did not depend upon bare conclusions or an unsupported overall impression. The reasoning did not depend upon inconsistency of a kind that might be explained by the subject-matter of the account or translation and other circumstances. Nor was it a case where the Tribunal needed to consider whether the temptation to embroider an account in order to support a claim to ensure protection from a genuine risk of harm might explain aspects of an account which was otherwise truthful.

32    Otherwise, the particulars relied upon did not rise beyond articulating reasons for disagreeing with the findings made by the Tribunal.

33    For those reasons, the grounds relied upon to support a claim that the primary judge should have found jurisdictional error as to the credibility findings by the Tribunal have not been made out and those grounds should not be upheld.

Part 2: The finding concerning the cancellation of the student visas

34    Counsel for the Minister accepted that there was factual error in the Tribunal's finding that the student visas of the wife and the husband had been cancelled. The written submission for the appellants that the visa had expired by effluxion of time and that the appellants had been granted temporary protection visas pending the outcome of the protection visa applications was not disputed.

35    In the course of oral argument, counsel for the Minister was taken to the submission concerning the finding about the cancellation of the visa that had been advanced to the primary judge. The full submission (part of which was quoted above) is as follows:

Paragraph 44 Delay in Application

The Tribunal has pointed to the significant delay between the arrival of the applicant in 2007 and the date of the protection visa application. The Migration Act and Regulations do not require an application for a protection visa to be made within a certain time. The Tribunal should not be drawing any adverse inferences from the fact that an application for a protection visa was made 'late'.

The delay is an irrelevant consideration when it comes to the question of the applicant's credibility. The fact that there has been a supposed delay does not mean that the applicant's claims have been concocted.

The fact that there was a delay does not of itself mean that the applicant does not fear persecution. The applicant could still have been the subject of persecution even though there was a delay in making the application.

36    It can be seen that the submission before the primary judge recognised that the reasoning by the Tribunal rested upon the delay in bringing the claim for protection rather than the additional finding about the cancellation of the visa.

37    The finding by the Tribunal appears to have been based upon the following statement by the delegate:

The fact that the applicant and his wife returned back to Australia on the student visa, even though the applicant's wife failed to attend her studies since the first semester in 2009 owing $11,275 to the education provider ignoring repeated requests to make payments or meet (during the PV interview the applicant confirmed this departmental information) in my view impinges on their credibility.

The applicants applied for Protection visa on 14 March 2012 only after their student visas were cancelled.

Considering the overall evidence I find that it raises serious concerns about the immediacy, gravity and credibility of the applicant's claims to fear persecution in Zimbabwe.

38    Neither the delegate nor the Tribunal linked the statement about the student visas being cancelled to any adverse finding as to credibility. Rather, the reasons of both the delegate and the Tribunal focussed upon the delay in making the application up until the visas were cancelled. It was the delay, not the cancellation, that provided one of the reasons for the adverse view formed by the Tribunal of the account given by the husband. As noted above, the conclusions reached by the Tribunal as to the lack of credibility of the husband's account were all couched in terms of the significance of the delay, not any adverse view formed by reason of 'cancellation'.

39    Further, although the appellants dispute that their student visas were cancelled and, through the submissions by the husband on appeal, maintain that there was no issue with payment by his wife for her studies, there is no dispute that the protection visa was sought after the appellants had been in Australia as students on successive student visas and was only sought when those visas were about to expire.

40    In those circumstances, given the manner in which the Tribunal reasoned, namely by reference to the significance of the delay rather than by giving any significance to the visas being cancelled, it has not been shown that there was a factual error of a kind that had any consequence for the Tribunal's reasoning. It therefore could not be an error of a kind that might found a claim of jurisdictional error, whether that be couched in terms of legal unreasonableness, the taking into account of an irrelevant consideration or a finding without any evidentiary basis. Even if it might be expressed in those terms then it was an error of a kind that was not material in the sense that it could not realistically have resulted in a different decision if corrected: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [38], [44]-[45] (Bell, Gageler and Keane JJ).

41    Given the nature of the ground, its arguable merit and the subject matter of the appeal, I grant leave to raise the ground of appeal but dismiss the ground for the reasons I have given.

Wife's appeal

42    At the hearing the husband appeared and relied upon the written submissions. They indicated that they were advanced on his behalf. He said that he made submissions for all the appellants. I indicated that there should be formal confirmation from the wife that the matters in the written submissions were all that the wife sought to advance on the appeal or she should advance any further submissions in writing. Since the hearing, that confirmation has been provided.

43    In any event, the wife was notified of the hearing date and chose not to appear in person. Irrespective of whether the submissions made by the husband are treated as made on her behalf or there was no appearance and no submissions on her behalf, her appeal must be dismissed. The wife's application for a protection visa was dependent upon the claims made by her husband. She completed an application which stated that she did not have her own claim to protection.

44    The wife gave evidence before the Tribunal in support of the husband's claim that he feared harm if returned to Zimbabwe. As I have noted, the Tribunal did not accept the evidence of the wife and provided reasons for that conclusion. Save for the complaint about the finding that the student visas of both the husband and the wife had been cancelled, the submissions advanced on the appeal were in relation to the findings as to the credibility of the husband's account.

45    In all those circumstances the conclusion that the husband's appeal must be dismissed leads to the conclusion that the wife's appeal must also be dismissed.

Appointment of husband as litigation representative of the daughter

46    At the hearing I raised with the husband the need for a representative to advance any appeal on behalf of his daughter. The responsibilities of a representative as to costs orders were explained. Counsel for the Minister accepted that there were no additional costs associated with the appeal advanced by the daughter which depended entirely upon whether the claim by her father succeeded. The father confirmed that he was willing to act as a representative. Therefore, given the position of the Minister as to costs, in order to regularise the appeal I indicated that I would make orders for the appointment of the father as a litigation representative.

Daughter's appeal

47    Though not included in the original application for a protection visa, by the time of the decision by the delegate of the Minister the daughter had been born. The application to review the decision of the delegate in the Tribunal was made by the husband, wife and daughter. Before the Tribunal, the claims of the wife and daughter to protection visas depended upon their status as members of the husband's family.

48    Therefore, as the appeal by the husband has been unsuccessful it must follow that the appeal by the daughter must also be dismissed.

Outcome and costs

49    For reasons I have given, the appeal must be dismissed with costs. The Minister seeks an order for costs fixed in the amount of $7,000. There is an affidavit before the Court indicating that costs in excess of that amount have been incurred. Having regard to the manner in which the appeal grounds were confined by the written submissions and the issues raised I consider it appropriate to fix costs in an amount of $4,500 plus GST.

Associate:

Dated:    28 February 2020