Federal Court of Australia

FOW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1447

ORDERS

THE COURT ORDERS THAT:

1.    The notice of appeal filed 29 November 2019 is dismissed.

2.    The appellants are to pay the first respondent’s costs to be taxed if not agreed.

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

REASONS FOR JUDGMENT

REEVES J:

INTRODUCTION

1    There are two appellants in this appeal: a father (the first appellant) and a son (the second appellant). The appeal concerns two aspects of the treatment of three documents said to be corroborative of the appellants’ claims made in their applications for protection visas under the Migration Act 1958 (Cth). The first aspect relates to the order in which the Administrative Appeals Tribunal (the Tribunal) considered the three documents concerned. Specifically, that it did so after, rather than before, making its adverse credibility findings in respect of the first appellant. The second aspect relates to the manner in which the Tribunal treated the three documents. Specifically, that it allegedly dismissed them as fabrications without reasons and contrary to the material before it.

2    The primary judge held that the Tribunal did not err in its treatment of either aspect (see FOW17 & Anor v Minister for Immigration & Anor [2019] FCCA 3155 (FOW17)).

3    For the reasons that follow, neither basis for challenge to the Tribunal’s decision can be accepted. Accordingly, the primary judge was correct in his decision. Thus the appellants’ appeal from that decision must be dismissed with costs.

FACTUAL BACKGROUND

4    The factual background to the appellants’ visa application was recorded in the Tribunal’s decision (noting that its decision occurred approximately three years ago) in the following terms (at [9]-[12]):

9.    The [appellants] are a 51 year old married man ([the first appellant]) and his 17 year old son [(the second appellant)]. They are both dual nationals holding Italian and Albanian citizenship. [The first appellant] was born in Albania but has lived in Italy since about December 1994. He obtained Italian citizenship after residing in the country for more than 16 years. His son was born in Italy and holds Albanian citizenship by decent.

10.    [The first appellant] joined the Albanian police force in April 1991 and served as a police officer until 25 August 1994 when he was made redundant. In December 1994 he left Albania and entered Italy illegally. According to documents provided to the Tribunal he was first granted … a permit to remain in Italy on 25 March 1996. According to his evidence he obtained Italian citizenship after 16 years residency. He resided in Molfetta which is located near Bari in the south of Italy until his departure for Australia in 1994 [sic].

11.    [The first appellant] married in Albania in 1994. His wife joined him in Italy in late 1995. In addition to the second [appellant] they have a 21 year old daughter who remains in Italy with her mother.

12.    The [appellants] departed Italy on 2 September 2015 using their Italian passport[s] and electronic visas issued in Italy. These visas where cancelled at the airport while the [appellants] were in migration clearance. As the [appellants] are both dual nationals they were initially unable to make a valid application for protection visas pursuant to section 91N (1) [sic] of the Migration Act 1958. However, on 29 April 2016 the Minister exercised his discretion to allow [the appellants] to lodge a valid application.

PROCEDURAL HISTORY

5    On 31 July 2016, the appellants re-applied for Temporary Protection visas (Subclass 785) and submitted application forms dated 28 July 2016 (first appellant) and 24 March 2016 (second appellant). Their applications were supported by written statements of claims.

6    On 26 June 2017, the delegate of the Minister for Immigration and Border Protection refused to grant the visas.

7    On 2 July 2017, the appellants applied to the Tribunal for review of the decision.

8    On 16 and 25 October 2017, the appellants appeared before the Tribunal to give evidence with the assistance of an interpreter. The appellants also provided written submissions dated 9 October 2017 via their migration agent.

9    On 20 November 2017, the Tribunal affirmed the delegate’s decision not to grant the appellants the protection visas they sought.

10    On 18 December 2017, the appellants filed an application for judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia and on 5 November 2018, they filed an amended application.

11    The Federal Circuit Court heard the appellants’ amended application for judicial review on 6 June 2019 and dismissed it on 8 November 2019.

12    On 29 November 2019, the appellants filed a notice of appeal in this Court.

THE GROUNDS OF APPEAL

13    As alluded to at the outset, the appellants’ notice of appeal contains two grounds. With supporting particulars, they are as follows:

Ground One

The lower court failed to find that the decision of the second respondent (“the Tribunal’’) was affected by jurisdictional error in that the Tribunal failed to complete the task under section 414, evident in the Tribunal’s assessment of the corroborative documents produced by the first [appellant] in support of his claim, namely (i) the certificate dated 10 June 1996 (“Certificate”); (ii) the police report relating to 26 [sic] September 1991 (“Police Report”); and (iii) the letter from the Ministry of Interior of Albania dated 25 October 2017 (“Ministry of Interior Letter”), (collectively “Corroborative Documents”).The Corroborative Documents were part of the review material and as such the Tribunal was required to consider them for the corroborative purpose for which they were advanced prior to arriving at the adverse credibility finding with respect to the Blood Feud Claim. The Tribunal failed to give proper, genuine or realistic consideration to whether the corroborative documents were genuine and made findings that were not supported by evidence.

Particulars

a)    First Appellant claimed that he was at risk of being killed if he returns to Italy or Albania or anywhere else in Europe because he killed two brothers who were attempting to rob him in September 1991 and the family members of these men are seeking revenge as part of the tradition of blood feuds in Albania.(‘‘Blood Feud Claim’).[Paragraph 18]

b)    The Tribunal gave the Certificate, the Police Report and the Ministry of Interior Letter “no weight” in part because the Tribunal incorrectly considered that the Certificate “describes [the first appellant] as a civilian when according to his evidence he was a serving police officer”, when the true position is that the Certificate described [the first appellant] as “citizen” and not at all as a “civilian”. There was no basis for this finding in the Certificate or other material before the Tribunal.

c)    The Tribunal gave the Certificate, the Police Report and the Ministry of Interior letter “no weight” in part based on its findings that they “could easily have been manufactured by anyone with a typewriter or computer” and were “copies of typewritten letters with simple letterhead which could easily have been manufactured by anyone”, when there was no basis for such findings in the nature of the documents.”

Ground Two

Dismissed the Corroborative Documents (i) based on adverse findings of fact founded upon credibility, where the adverse credibility findings were founded simply upon an assessment as to whether the [first appellant] is to be believed or disbelieved, thereby exposing jurisdictional error; (ii) as fabricated without reasons and in circumstances where such a finding was not supported by material before the court.

Particulars

a)    I do not accept that [the first appellant] killed two robbers in self-defence in September 1991. I find that this claim was concocted to support his application for protection in Australia. As I do not accept that [the first appellant] killed these men in 1991 it follows that I do not accept that the family members of these men wish to kill or harm him or anyone else in his family (the “Adverse Credibility Finding”) [Paragraph 24]

b)    “ …As noted all three documents are copies of typewritten letters with simple letterheads which could easily have been manufactured by anyone. In these circumstances and in light of my findings regarding [the first appellant’s] credibility set out above and below, I have given them no weight. [Paragraph 27]

(Emphasis removed; errors in original)

THE TRIBUNAL’S DECISION

14    The Tribunal made separate findings of fact in respect of each appellant: the first appellant at [18]-[53], and the second appellant at [54]-[56]. However, the latter findings were essentially based on the former.

15    In respect of the first appellant, the Tribunal began by recording his claims concerning the September 1991 incident and the “blood feud” to which he claimed it gave rise, thus resulting in his claim to fear for his safety if he were to return to Italy or Albania. It did so in the following terms (at [18]):

[The first appellant] claims he is at risk of being killed if he returns to Italy or Albania or anywhere else in Europe because he killed two brothers who were attempting to rob him in September 1991 and the family members of these men are seeking revenge as part of the tradition of blood feuds in Albania. For the following reasons I did not find [the first appellant] to be a truthful or a credible witness and do not accept any of these claims.

16    As indicated in the last sentence above, at [19]-[24] of its reasons, the Tribunal developed its reasons for finding the first appellant not to be “a truthful or a credible witness”. First, at [19], it recorded the descriptions he gave of the September 1991 incident in his statement dated 22 September 2015; in his statement dated 24 March 2016; and during his interview with the Minister’s delegate.

17    At [20], it noted that “[a]t the hearing [before the Tribunal, the first appellant] said that he had never made the claims contained in the 22 September 2015 statement and he believed that there had been a mistake”. The Tribunal then recorded the description of the September 1991 incident that the first appellant gave at the hearing before it.

18    At [21], the Tribunal noted three difficulties it had raised with the first appellant at the hearing. They were as follows:

(a)    “that robbers would attempt to steal a relatively inexpensive item from a uniformed police officer who was carrying a gun”;

(b)    “that an armed police officer who had been assaulted would have left the scene of the crime without checking the state of the men who were clearly armed and dangerous and could have been a risk to others”;

(c)    “that a police officer who had been assaulted by armed robbers would have failed to report the incident to his superiors or anyone else until the following day”.

19    The Tribunal then set out, at [22]-[23], its basis for rejecting the first appellant’s evidence as implausible, as follows:

22.    I found [the first appellant’s] evidence at the hearing confused and unconvincing and his account of the September 1991 attack far-fetched and implausible. It is not plausible that robbers would have attacked an armed uniformed police officer to steal a radio cassette player. More significantly, it is not plausible that an armed police officer would have left the scene of an assault and failed to report the incident to anyone until the following day.

23.    In reaching this conclusion I have considered [the first appellant’s] explanation that he left the scene because he was fearful. However, according to his evidence, his assailant’s gun had not worked and he was able to shoot both men who had accosted him dead before leaving the scene. Even if he was not aware they were dead at the time, it is clear that they cannot have been pursuing him. And if he believed that the robbers were still alive, it is not plausible that he would have left them at large with a gun without reporting the incident to his superiors or at least telling his cousin who was also a police officer and who could have reported the incident on his behalf.

20    Finally, at [24], the Tribunal summed up its reasons for concluding that the September 1991 incident did not happen and therefore that any resulting “blood feud” did not occur:

I do not accept that [the first appellant] killed two robbers in self-defence in September 1991. I find that this claim was concocted to support his application for protection in Australia. As I do not accept that [the first appellant] killed these men in 1991 it follows that I do not accept that the family members of these men wish to kill or harm him or anyone else in his family.

21    The Tribunal then turned to consider the three documents at the centre of this appeal. First, at [25], it described the first two of those documents as follows:

(a)    “The first is dated 10 June 1996 and signed by the village chief of the Municipality of Postribe Shkoder District. It states that on 22 September 1991 two men [who] attempted to rob [the first appellant] were killed. [The first appellant] was called to the investigation office on 25 September 1991 and three days later he was declared innocent”.

(b)    “The second appears to be an extract from a police report dated 25 September 1991 which states that [the first appellant] was detained because he murdered two people on 23 September 1991. It adds that he shot the men in self-defence when they attempted to steal his stereo”.

22    With respect to these two documents, the Tribunal noted in the concluding sentences of [25] that “[a]t the hearing I noted that the documents which [the first appellant] had provided could easily have been manufactured by anyone with a typewriter or computer. [The first appellant] maintained that the documents were genuine”.

23    Next, at [26], the Tribunal described the third document in the following terms:

Following the hearing [the first appellant] provided a letter dated 25 October 2017. It is on letterhead of the General Directorate of the Ministry of Interior in Albania and states that [the first appellant] was detained on 25 September 1991 because he had murdered two people on 23 September 1991, but adds that [the first appellant] was defending himself from the men who were attempting to steal his … tape recorder and other items.

24    At [27] the Tribunal stated its ultimate conclusion with respect to the three documents: “In these circumstances and in light of my findings regarding [the first appellant’s] credibility set out above and below, I have given them no weight”.

25    Earlier in that paragraph the Tribunal set out the “circumstances” to which it was referring in this conclusion as follows:

(a)    “[w]hile [the first appellant] spoke about an investigation following the shooting in 1991 in his written and oral submissions to the Department he made no mention of being detained by the police or investigated [by] the local municipality when the 1991 incident was discussed at the hearing”;

(b)    “I also note that the 1996 letter describes [the first appellant] as a civilian when according to his evidence he was a serving police officer”;

(c)    “[a]s noted all three documents are copies of typewritten letters with simple letterheads which could easily have been manufactured by anyone”.

26    At [28] the Tribunal turned to “the evidence [the first appellant] gave regarding the events which followed [the September 1991] incident”. It said that evidence was “vague, somewhat contradictory and generally unpersuasive”. It then introduced its analysis of that evidence in the succeeding 22 paragraphs of its reasons with the statement that “[f]or the reasons set out below, I … also find these claims to be lacking in credibility”. In that analysis, the Tribunal examined the first appellant’s evidence about the events that occurred after he left the police force in August 1994 and came to Australia in September 2015. It also examined and found the evidence of the first appellant’s wife about those events to “be lacking credibility” (at [51]). It then came to the following conclusions (at [52]-[53]):

52.    After considering all of the relevant evidence I do not accept that [the first appellant] killed two men in Albania in 1991 or that he has been the target of a blood feud since that time.

53.    There is no credible evidence before me which suggests that [the first appellant] faces a real chance of suffering serious or significant harm within the reasonably foreseeable future for any reason. I am therefore not satisfied that he has a well-founded fear of persecution for any reason set out in 5J(1)(a) or that there are any substantial grounds for believing that there is a real risk of significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa). Therefore, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the [appellants] being removed from Australia to Italy or Albania, there is a real risk that he will suffer significant harm.

(Headings omitted)

THE FEDERAL CIRCUIT COURT DECISION

27    The primary judge discussed the Tribunal’s treatment of the three documents from two different perspectives. First, he considered whether there was a “logical failing” with respect to them (FOW17 at and from [63]). And, secondly, he considered whether the Tribunal had “failed to give the documents a proper level of consideration” (at and from [83]). In the course of that consideration, his Honour came to a number of firm conclusions about the two issues at the heart of this appeal. While there is a degree of overlap between the two, those conclusions are reflected in the following passages of his reasons.

28    First, on the order in which the Tribunal approached its assessment of the three documents, his Honour concluded that it first assessed the appellant’s credibility and quite properly reached its conclusions on that matter and then separately and independently assessed the three documents. He did that at [75]-[76] as follows:

75.    … A fair reading of the Tribunal’s reasons, in my view, indicate that it reached its conclusion regarding the credibility of [the first appellant’s] account of the shooting after it had analysed his oral evidence and earlier statements about it.

76.    However, it could not ignore the documentary evidence provided by the [appellants] as this was a central aspect of their case. However, in my view, there is nothing to indicate that the Tribunal’s rejection of the veracity of those documents was necessary for it to reach its credibility findings, which were not necessarily the result of any cumulative process of reasoning. The findings were supportive of one another but not dependent on each other.

(Footnote omitted)

And later in his reasons at [90]-[91]:

90.    … A fair reading of the reasons indicate why the Tribunal found the claim [that the appellant was the subject of a blood feud because he had killed two individuals in Albania in 1991] to be implausible.

91.    This conclusion was reached after a close analysis of the facts available to it. The Tribunal then engaged with the documents, which the [appellants] asserted corroborated their rejected account …

29    On the manner in which the Tribunal assessed the three documents, his Honour concluded that, in the circumstances, the Tribunal properly considered and duly rejected them at [73]-[74] as follows:

73.    … as it was entitled to do, the [Tribunal], after having examined the documents, found reasons within them, which supported its primary characterisation of the [appellants’] case as being improbable and unbelievable, namely there was some level of inconsistency in the descriptor of [the first appellant] and more importantly, on their face, the documents were susceptible to being readily fabricated.

74.    These are findings of fact. They may be consistent with the assessment of the Tribunal that the [appellants] are not to be believed but having found [the first appellant’s] account of the shooting to be unbelievable, the findings in respect of the other documents were not necessary for the Tribunal to make its assessment of credibility of the shooting account.

And further, later in his reasons at [91]-[93]:

91.    … As a matter of logic, having found the account unbelievable, it would have been impossible for the Tribunal to have accepted the documents as being accurate in respect of the events they purported to report. The two pieces of evidence are mutually exclusive of one another. In these circumstances, in my view, the rejection of the documents cannot be characterised as being based on an unwarranted assumption.

92.    As it was entitled to do, in these circumstances, having noted that, on their face, such documents could easily have been manufactured it elected to give them no weight …

93.    Having rejected [the first appellant’s] account of the shooting, in my view, the Tribunal was not required (and nor could it) explain the provenance of the documents concerned …

(Emphasis in original)

CONSIDERATION

30    With one exception which I will come to below, I do not consider the primary judge erred in the conclusions outlined above on the two issues raised by this appeal. On the first issue, concerning the order in which the Tribunal considered the three documents, provided that it proceeded according to the precepts of reasonableness and considered any cogent evidence presented by the first appellant and his clearly articulated claims, it was open to it to conduct the review in the order it considered appropriate (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 (S20/2002) at [14] and Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485; [2010] FCAFC 50 at [33]). Thus, it could, as it did (at [18]-[24], summarised at [15]-[20] above), first consider the appellant’s claims and evidence about the September 1991 incident and determine whether it thought they were credible. There is, in my view, no error in adopting that approach.

31    Having done so, again subject to the same constraints, it was also open to it to proceed (as it did at [25]-[27], summarised at [22]-[25] above), to assess the relevance of, and weight to be given to, the three documents. In that exercise, as Gleeson CJ observed in S20/2002 (at [12]):

… It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.

32    However, in this matter, the Tribunal did not even go that far. That is to say, instead of rejecting the three documents outright, it said “I have given them no weight” (at [27], see at [24] above). Furthermore, instead of just relying on its anterior adverse credibility findings in respect of the appellant, it provided three additional reasons (but see further at [33] below) why it decided to proceed in that manner (see at [27] of the Tribunal’s reasons). Hence, I do not consider the Tribunal committed any error in the manner in which it dealt with the three documents.

33    Two further matters remain to be mentioned. Both involve errors, one by the primary judge and the other by the Tribunal. However, neither of them affects the validity of my conclusions above. That is to say, the first is not sufficiently significant that it adversely affects the overall correctness of the conclusions reached by the primary judge as discussed above and the second does not reach the level of seriousness necessary to constitute jurisdictional error on the part of the Tribunal (see Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [111] and BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94 at [145]). The first concerns the exception mentioned at the outset of this section (see [30] above). For the reasons already given above (at [32]), I do not consider the Tribunal went as far as “reject[ing] the veracity” of the three documents as the primary judge appears to have concluded at [76] of his reasons (see at [28] above; see also [91] of FOW17 at [29] above). The second concerns the second of the three reasons the Tribunal provided at [27] of its reasons for deciding to give the three documents no weight. In this appeal, it is common ground that the Tribunal erred in describing the first appellant as a “civilian” for the reasons provided by the primary judge at [80]-[82].

CONCLUSION

34    For these reasons, I do not consider either of the appellants’ two grounds of appeal has any merit. The notice of appeal filed 29 November 2019 must therefore be dismissed with costs.

Associate:    

Dated:    8 October 2020