FEDERAL COURT OF AUSTRALIA

GKX18 v Minister for Home Affairs [2020] FCA 263

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

DAVIES J:

1    The appellant has appealed the decision of the Federal Circuit Court of Australia (FCC) dismissing his application for judicial review from a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal), which had affirmed a decision of the delegate of the first respondent (Minister) not to grant the appellant a protection visa.

2    The appellant is a citizen of Iraq. He claimed that if he returned to Iraq he would be killed by Shi’a Islamic groups because of his father’s profile as a Ba’athist, and as friend of Saddam Hussein and because he and his family were Sunni. The Tribunal accepted that the appellant’s father had been a lieutenant-colonel in the Iraqi police service and had performed similar or related services during the Saddam Hussein era. The Tribunal also accepted that the appellant’s father was a member of the Ba’ath Party. However, the Tribunal did not accept that the appellant came to the attention of Shi’a militias or that he or members of his family were targeted: at [49] of the Tribunal’s reasons. The Tribunal found the appellant’s evidence to be inconsistent, at times implausible and to lack credibility and did not find him to be a reliable, credible or truthful witness: at [48]. Relevantly the Tribunal:

(a)    did not accept that the appellant was a member of the Ba’ath party or that he would be targeted because his father had been. The Tribunal noted that there was no reason why the appellant would have needed to be in the Ba’ath party given he was 14 years old at the time of the US invasion and there was also no country information that indicated that the family of “simple Ba’th [sic] Party members” were or are targeted: at [51];

(b)    rejected the appellant’s claim that his father had been the subject of attacks in 2004 and 2005 on the basis that it was unsupported by any evidence and the Tribunal found that the appellant’s oral evidence lacked credibility: at [52];

(c)    rejected as not credible the appellant’s claim that he was used by his father as a bodyguard, reasoning that the appellant had never mentioned that claim prior to the Tribunal hearing, and the idea that his father would use a 14, 15, 16 or 17 year old boy (noting that the appellant was not specific about when he started) with no training in close personal protection lacked credibility. The Tribunal further noted that when this was put to him, the appellant later revised his claim to say that he and his brother would drive his father to meetings and that there was a weapon in the car. The Tribunal stated this was “a far cry from being a bodyguard” and was satisfied this “was proposed by the [appellant] on realising his claim of being a bodyguard lacked credibility”: at [53];

(d)    on the basis of its rejection of the appellant’s claim that he had been a bodyguard for his father, the Tribunal also did not accept that the militia “would have bothered” to attach an improvised explosive device to the appellant’s car in 2005 “or [that they would] have done it is [sic] such an amateurish fashion that a completely untrained 16 year old boy would have been able to determine its presence”: at [55];

(e)    found as not credible the appellant’s claim to have been beaten by militias trying to gain information about his father’s whereabouts, but having been released when he said he did not know the whereabouts of his father. The Tribunal reasoned that if the militias believed his father to be in hiding in Iraq, then it was reasonable to believe that they would have detained the appellant, tortured him for the information and/or held him until the appellant’s father gave himself up, returned to Iraq or another family member revealed his location: at [56]; and

(f)    did not accept that their house was shot at and attacked by militias who screamed at them, reasoning this “relie[d] entirely on the [appellant’s] oral claim,” which the Tribunal found lacked credibility: at [57].

3    Before the FCC, it was argued for the appellant that it was irrational, illogical or otherwise unreasonable for the Tribunal not to accept the appellant’s claim that a faulty improvised explosive device had been attached to his car in 2005 and his claim to have been bashed by militias. In short, the appellant argued that both findings were based on unwarranted assumptions which lacked a probative basis. The FCC rejected both grounds: GKX18 v Minister for Home Affairs & Anor [2019] FCCA 2028 at [149]. Further, the FCC held that neither of the impugned findings could be said to inform the Tribunal’s rejection of the appellant’s central claim to fear harm arising from his father’s circumstances and his relationship with his father and threats from the militias: at [99]. The FCC also rejected the appellant’s third ground of judicial review that there was a breach of procedural fairness by reason that the Tribunal failed to put the appellant on notice at the hearing that the “assumptions” which underpinned the rejection of the two factual claims made by the appellant where important issues in the review: at [190].

4    The appellant’s notice of appeal raised the same 3 grounds. As ground 3 was not pressed, it is only necessary to refer to grounds 1 and 2 which are as follows:

1.    The Administrative Appeals Tribunal (“the Tribunal”) did not accept that the appellant had a faulty improvised explosive device attached to his car in 2005 (“the IED Finding”). The appellant contended in the Federal Circuit Court that the IED Finding was infected by jurisdictional error. The Federal Circuit Court found at [149] of its decision that this ground was not made out. The Federal Circuit Court erred in rejecting this ground of review.

2.    The Tribunal did not accept that the applicant as [sic] bashed by the militias whenever he went shopping when he refused to lead them to his father’s location that they believed was somewhere in Iraq (“the Militias Finding”). The appellant contended in the Federal Circuit Court that the Militias Finding was infected by jurisdictional error. The Federal Circuit Court found at [149] of its decision that this ground was not made out. The Federal Circuit Court erred in rejecting this ground of review.

5    The “unwarranted assumptions” in this case were said to be:

(a)    with respect to the Tribunal’s rejection of the appellant’s evidence that there was a failed assassination attempt on his life in 2005 when a faulty explosive device was found attached to his car, the Tribunal’s reasoning that it did not accept that a militia would have attached an explosive device “[in] such an amateurish fashion that a completely untrained 16 year old boy would have been able to determine its presence”;

(b)    with respect to the Tribunal’s rejection of the appellant’s evidence that he was bashed by militias trying to gain information about his father’s whereabouts and released when he denied any knowledge, the view of the Tribunal that “if they believed his father to be in hiding in Iraq, then it is reasonable to believe that they would have detained the [appellant], tortured him for the information and/or held him until the father gave himself up, returned to Iraq, or another family member revealed his location”.

6    Jurisdictional error can be established if a decision is “irrational, illogical and not based on findings or inferences of fact supported by logical grounds”: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 (SZMDS) at 625 [40] per Gummow A-CJ and Kiefel J; 638 [102] per Crennan and Bell JJ, citing Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at 998 [37]–[38] per Gummow and Hayne JJ. Credit findings are not immune from judicial review for jurisdictional error and a credit finding based on an unwarranted assumption may be characterised as legally unreasonable: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 at 130–1 [83(d)]; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 (DAO16) at 184 [30(4)]; BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 263 FCR 292 at 302 [33] (BZD17). In DAO16, the Full Court at 183–4 [30(3)] set out the relevant principles for whether credibility findings give rise to jurisdictional error on the basis of unreasonableness, irrationality or illogicality as follows:

By way of example, in [Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99] at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 at [37].

In BZD17 the Full Court similarly said at 303 [36]:

… “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it”: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 (SZVAP) at [22] (Flick J) (citing WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676 at [54] (Lee and Nicholson JJ)); see also eg SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 at [34]-[37] (Logan J). Unwarranted assumptions may also establish that a finding is illogical, irrational or not founded on any probative evidence: see eg DAO16 at [45] (the Court).

However, for an illogical or irrational adverse credit finding to constitute jurisdictional error, it is necessary for the Court to be satisfied that the finding was “material” to the ultimate decision, in the sense that it deprived the appellant of the realistic possibility of a successful outcome: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 (Hossain) at 134–5 [30]–[31] per Kiefel CJ, Gageler and Keane JJ; 147–8 [72] per Edelman J; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at 433 [2]–[3] and 445–6 [48]–[49] per Bell, Gageler and Keane JJ. Further, considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review: SZMDS at 636 [96] per Crennan and Bell JJ. Even emphatic disagreement with the Tribunal’s reasoning is not sufficient to make out illogicality: SZMDS at 645–6 [124] and 647 [129] per Crennan and Bell JJ; BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [51(c)].

7    In the present case, the “assumptions” underpinning the adverse credit findings on the two factual claims in issue were not based on any evidence. However, it does not necessarily follow that the adverse credit findings on those two factual claims were illogical or irrational. As the reasons of the Tribunal disclose, the rejection of the claim that the appellant was the subject of an assassination attempt was based on the Tribunal’s rejection of the appellant’s claim that he had been a bodyguard for his father. The Tribunal’s rejection of that claim, in turn, was based upon the assertion of that claim for the first time at the hearing and the revision of the evidence that the appellant gave when the Tribunal put to the appellant that it “seems a bit hard to believe” that his father “would employ a 15 year old boy with no military training or any kind of training as a bodyguard” to say that he and his brother used to drive their father where he wanted to go. The Tribunal considered that driving his father was “a far cry from being a bodyguard” and concluded that the claim that he had been a bodyguard for his father lacked credibility. The adverse credibility finding must be viewed in light of that conclusion, cumulatively with the Tribunal’s earlier rejection of the appellant’s claims about the interest of the militia in his father and the claims that his father had been targeted in incidents in 2004 and 2005 (which were not the subject of challenge). So viewed, a logical and rational basis can be discerned for the adverse credibility finding. Further, as the FCC correctly stated at [115], the “amateurish fashion premise when read fairly was in addition to the reasons given by the Tribunal, and separate to those reasons”.

8    The Tribunal’s adverse credit finding on the appellant’s claim that he was bashed by militias who wanted information about his father’s whereabouts was based upon what the Tribunal considered was the improbability of the militias releasing the appellant each time he denied any knowledge of his father’s whereabouts, given the appellant’s evidence regarding the interest the militias had in his father. In rejecting the ground that the adverse credibility finding was illogical and irrational, the FCC correctly reasoned (at [147]–[148]):

…When read fairly what the Tribunal reasoned was that if the militias were so intent on finding his father, repeatedly bashing the [appellant] when he went to the market, and then releasing him, would not have achieved this purpose.

What lacked credibility in the [appellant’s] claim, in the Tribunal’s view, was that the militias, who were said to be intent on finding his father, and from whom he otherwise said he feared such great harm that on return they would kill him, would continue to act in the same unsuccessful fashion, without seeking to try further, even harsher, and more effective means of advancing their intention.

Further, the FCC correctly reasoned that the credibility findings in issue must be understood, fairly, in light of what preceded them in the Tribunal’s reasoning and the rejection of the appellant’s “central, and core, claims relating to his father’s claimed status and circumstances, his own claimed conduct in relation to his father (for example, “bodyguard”), and what he said he feared from militias as a result of this relationship”: at [120]. Considered fairly in the context of the reasons as a whole, there was an evident and rational basis for the assumption about the manner in which the militia would have behaved.

9    The FCC at [121] agreed with the submissions for the Minister that the underlying reason for the two impugned findings flowed from the central rejection of the basis of the appellant’s claim of fear, namely the interest of the militias in his father (which has not been challenged). Contrary to the submissions of the appellant, there was both an intelligible and logical basis provided for each of the assumptions: Republic of Nauru v WET040 [No 2] [2018] HCA 60; 93 ALJR 102 at 109 [35]; SZMDS at 649–650 [135] per Crennan and Bell JJ.

10    The appellant cavilled with the reasoning of the FCC at [121] that the central rejection of the basis of the appellant’s claim of fear was not based on the two impugned findings. It was submitted that the FCC’s reasoning might be correct if the Tribunal’s rejection of the appellant’s claims concerning his father’s background and circumstances, that members of the father’s family were targeted because of the father’s background and circumstances and that the appellant was a bodyguard for his father, were independent of and uninfluenced by the two adverse credibility findings sought to be impugned. It was submitted that the Tribunal’s findings relating to the appellant’s father were not independent of, and uninfluenced by, those two findings. This submission was based on the contention that the two adverse credit findings in issue became a basis for the Tribunal’s “upfront adverse credibility finding” so that, it was said, there was a circular link between the “upfront” adverse credibility finding and the Tribunal’s rejection of the appellant’s claims with respect to his father. Thus, it was submitted, if the Tribunal had not rejected some of the claims under the heading “father’s circumstances”, the Tribunal may not have made the upfront adverse credibility finding it made, which in turn may have affected whether it rejected other claims made by the appellant. I reject this submission, which is based on a misconception of [48] of the Tribunal’s reasons. Paragraph 48 of the Tribunal’s reasons stated:

… I found the [appellant’s] evidence regarding his claim to be inconsistent, at times implausible and to lack credibility. For reasons set out below I did not find him to be a reliable, credible or truthful witness, and that he fabricated much of his claim in order to be granted a protection visa.

There was no “upfront” adverse credibility finding. Fairly read, [48] simply set out the Tribunal’s conclusion on the credibility of the appellant for the reasons then set out in the following paragraphs. It was not a separate finding but merely a conclusionary statement of the Tribunal’s ultimate finding on credibility. As [48] expressly made clear, that finding was reached for the reasons then set out. The contention that the Tribunal’s rejection of the appellant’s claims with respect to his father was based on the rejection of the two claims in issue is simply not correct. The submission disregards the structure of the Tribunal’s reasons and the conclusionary statement in [48] in respect of the Tribunal’s finding.

11    Next it was contended that the FCC erred in holding at [123] that even if there was some error, the error was not material in the sense explained in Hossain “given the rejection, now not impugned, of the central and core aspects of the claim to fear harm”. This submission also rested on the same misapprehension that what was contained in [48] of the Tribunal’s reasons was a separate “upfront” adverse credibility finding.

12    Finally, the appellant argued that the primary judge erred in holding at [135] that it was reasonable to infer that the “impugned premises” upon which the two factual findings were based arose from the expertise of the Tribunal member. The transcript of the Tribunal hearing records that the Tribunal member stated to the appellant during the course of the hearing:

I have a PhD in Arab Islamic studies, my thesis is on Shia political development. I’m pretty familiar with Shia – interrelationship between Shia and Sunni across the Middle East. I travel to the Middle East regularly. I’ve lived in five countries in the Middle East, I’m pretty familiar with the place. I don’t need history lessons, I don’t need regional lessons. I just need you to tell me who you believe is going to harm you, for what reason they’re going to harm you, and how they’re going to harm you. So who is going to harm you?

13    The FCC reasoned at [135]:

Given the emphatic statement made by the Tribunal member in the current case at the Tribunal hearing, it is, in my view, reasonable to at least infer, that the impugned premises in the current case arose from the Tribunal member’s own knowledge and experience of conditions in the country of claimed persecution at the relevant times. Contrary to the applicant’s submissions now, therefore, there was a probative basis for the two impugned findings.

14    There are three reasons for rejecting this final argument. First, the inference drawn by the FCC was not the subject of an appeal ground. Secondly, a Tribunal member is entitled to use his or her own knowledge, observations or experience of the situation or conditions in a particular region or country in deciding an application: Muin v Refugee Review Tribunal [2002] HCA 30; 76 ALJR 966 at 969 [7] per Gleeson CJ; 988 [116] per HcHugh J; 1010 [263] per Hayne J; 1015 [291] per Callinan J; Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; 205 CLR 507 at 562–3 [180] per Hayne J; NAEH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 927 at [13]; BWC15 v Minister for Immigration and Border Protection [2017] FCA 199 at [16], [21]. Thirdly, there was an evident and rational basis for both assumptions and no error has been shown in the approach of the Tribunal.

15    Accordingly the appeal should be dismissed.

Associate:

Dated:    5 March 2020