Federal Court of Australia

BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs as taxed or agreed.

2.    The Second Appellant be removed as a party to the proceeding.

3.    The name of the First Respondent be changed to the ‘Minister for Immigration, Citizenship and Multicultural Affairs’.

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

REASONS FOR JUDGMENT

PERRAM J:

1    The principal question in this appeal is whether the Administrative Appeals Tribunal (‘the Tribunal’) made unwarranted assumptions in reaching its decision. Its ultimate conclusion was that the Appellant was not entitled to the grant of a protection visa and that an earlier decision to the same effect by a delegate of the Minister should be affirmed. The present appeal is brought from orders made by the Federal Circuit Court dismissing the Appellant’s application for judicial review of the Tribunal’s decision.

2    The Tribunal concluded that the Appellant’s account of certain events in Sri Lanka (from which place she now seeks refuge) was not credible. It is the Appellant’s case that in reaching that conclusion about her credibility the Tribunal made certain unwarranted assumptions. It is not controversial that in making credit findings a decision-maker may step into jurisdictional error if the finding is based on an assumption which the Court concludes is unwarranted, although why this may be so is subject to conflicting statements of principle.

Unwarranted Assumptions

3    There are three decisions of this Court in which jurisdictional error has been established on the basis of one or more unwarranted assumptions. The first is WAGO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 437; 194 ALR 676 (‘WAGO’). The question for the Tribunal was whether the appellant in that case was a political writer such that his return to Iran would have generated in him a well-founded fear of persecution. The appellant led evidence from a corroborative witness which, if accepted, tended to support the view that the appellant was a political writer. The Tribunal found the corroborative witness to be untruthful for two reasons only one of which is material to this discussion. This reason turned on a question the Tribunal asked the witness. The question was why the witness had not given his corroborative evidence earlier than at the hearing before the Tribunal. The witness had answered that he was not aware of ‘the legal process’. The Tribunal rejected this evidence because the witness was a detainee who had previously negotiated ‘the legal process’ although the nature of these processes were not identified in the Tribunal’s reasons. In fact, there was no evidence before the Tribunal of any legal process which required a person who was to be called as a witness to provide information in advance. The Full Court concluded that there was no foundation for the Tribunal’s conclusion: WAGO at [51], [57]. The Court subsequently described the Tribunal’s reasoning about the legal process as an ‘unwarranted assumption’ and concluded that the unwarranted assumption had caused the Tribunal to fail duly to consider the question raised on the material before it by disbelieving the corroborative witness’s evidence: WAGO at [54], [57].

4    The second case is BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 263 FCR 292 (‘BZD17’). In that case, which concerned a refugee claim from Cameroon, the appellant claimed to have been in a relationship with another man and that in consequence of that relationship the two men were set upon and brutally attacked. The other man died of his injuries. The appellant called a number of witnesses who corroborated the relationship in Cameroon. One of those, witness C, also gave evidence that not every assault or attack on homosexual people was reported, partly due to the Cameroonian government’s control over social media. Country information before the Tribunal also supported the claim about government control over social media. The Tribunal rejected this evidence of witness C because there were no social media accounts of the incident. It did note that the government controlled social media but dismissed the significance of this on the basis that information about the assault ‘could have been passed on anonymously to activists outside Cameroon for them to post on social media if it was too hard to do in Cameroon’. The Full Court concluded that this was an unwarranted assumption on which to disbelieve the corroborating evidence of witness C: BZD17 at [58].

5    A third case where unwarranted assumptions were made was in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 (‘DAO16’). That case concerned a refugee claim from India on the basis of homosexuality. The delegate did not believe that the appellant was homosexual. Before the Tribunal the appellant called 16 witnesses in support of his claim to fear significant harm by reason of his sexuality, amongst whom were a number of men who gave evidence that the appellant had had sex with them in Australia. The Tribunal concluded that the evidence of all 16 witnesses was false. It also concluded that if the appellant were homosexual, he could have led evidence from sexual partners he presumably would have had in Sydney earlier than the more recent partners on which he relied, given its ‘sizeable and visible’ gay population: see DAO16 at [20], [45]. Amongst other problems with the Tribunal’s reasoning in that case, the Full Court identified that it had made an unwarranted assumption, in relation to his activities in Sydney, that if the appellant had truly been homosexual he would have engaged in sexual relationships with a larger number of men: DAO16 at [45]. The decision was set aside on the basis of legal unreasonableness.

6    The jurisprudential bases of these decisions differ. In WAGO (at [54]), the Court considered that the Tribunal had failed duly to consider the question raised by the material. The unwarranted assumption in BZD17 gave rise to a similar error: BZD17 at [36], [58]. However, the rationality line of reasoning was used in DAO16 at [42], [45].

7    On the current state of the authorities, it seems to me that the better view is that there is no freestanding ground of unwarranted assumptions. However, the making of unwarranted assumptions as part of a credit finding may be reviewed on rationality grounds (DAO16) or because the decision maker has failed duly to consider the question raised by the material (WAGO and BZD17). For myself, the former test is easier to apply in practice in the sense that it appears less conclusory. There are various extant formulations of this ground. The Full Court in Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45] described it this way:

Illogicality, irrationality or legal unreasonableness in the reasons for an administrative decision may establish jurisdictional error, as may a failure to give proper, genuine or realistic consideration to a significant matter. An illogical or irrational administrative decision, or an illogical or irrational finding of fact or reasoning along the way to making the decision, may establish jurisdictional error if, for example, the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. Making a finding on a fact or issue in the application by drawing an inference or a conclusion which lacks a logical connection with the evidence might also be described as failing to give proper, genuine and realistic consideration to the fact or issue. However, any such decision or finding will not involve jurisdictional error if a reasonable decision-maker could reach that decision or finding on the same material: SZMDS at [130]-[132] and [135] per Crennan and Bell JJ and at [78] per Heydon J. As Allsop CJ observed in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [21] the question is “whether a decision-maker could reasonably come to the conclusion” reached. If the conclusion is one upon which reasonable minds can differ, it will not be legally illogical, irrational or unreasonable.

(See also Minister for Immigration, Citizenship and Multicultural Affairs v JSMJ [2023] FCAFC 77 at [39])

8    Thus, a party relying upon an unwarranted assumption to establish jurisdictional error will need to establish that the assumption is not one which a reasonable decision maker could make. Another way of asking this question is to ask whether the decision has an evident and intelligible basis: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [10] per Kiefel CJ, [82] per Nettle and Gordon JJ, citing Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ. In this case, therefore, this means that the question for decision is whether the Tribunal’s impugned credit findings were ones which could reasonably be arrived at or whether they lacked an evident and intelligible justification.

The Credit Findings

9    The Tribunal rejected the Appellant’s central claim that she had been detained and questioned at Colombo Airport on return to Sri Lanka from Norway in April 2014. It did so on the basis of a number of credibility concerns. The Appellant took issue with four of the concerns identified by the Tribunal. The first concern was identified at [41]-[50] of the Tribunal’s reasons. Paragraph [41] is as follows:

Firstly, it is not credible that authorities would have had the opportunity to undertake the complex investigations that would have been required to implicate the applicant in relation to activities occurring many years before. That is in the context of the applicant claiming that authorities first took an interest in her in early 2014 as a result of her interaction with [R] in Norway at that time.

10    It is not necessary to explain the backstory to this paragraph because the nature of the Appellant’s submission does not require it. The submission is that the Tribunal made the unwarranted assumption that the persons conducting the interview were telling the truth. It was true that if the interrogation of the Appellant involved putting to her a series of propositions about her antecedent history which her interrogators believed to be true then the Tribunal’s reasoning made sense. However, it was just as possible that the interrogators were putting a series of false propositions to her to see what information they could dislodge from her. If that were the case then the Tribunal’s reasoning would be unsound because it would not have been necessary to conduct the complex investigations to which the Tribunal referred as the interrogation was, in a sense, a work of fiction.

11    I agree that this is certainly an alternate hypothesis consistent with the facts examined by the Tribunal and inconsistent with its arc of reasoning. I would also accept that there are some circumstances where the existence of a reasonable alternate hypothesis can have forensic significance even without evidence. Thus in criminal cases that turn on circumstantial evidence, an accused person is entitled to an acquittal if there is a reasonable hypothesis consistent with their innocence: see, e.g., Peacock v The King (1911) 13 CLR 619 at 630, 634 per Griffith CJ; Barca v The Queen (1975) 133 CLR 82 at 104 per Gibbs, Stephen and Mason JJ; R v Baden-Clay [2016] HCA 35; 258 CLR 308 at [46] per French CJ, Kiefel, Bell, Keane and Gordon JJ. However, that is not the present domain of discourse. The question here, rather, is whether the Tribunal made an unwarranted assumption which, as I have explained above, devolves to inquiring as to whether the assumption was one which could reasonably be made (or which had an evident or intelligible justification).

12    The availability of a reasonable alternative hypothesis does not, on its own, demonstrate that the assumption made by the Tribunal was unwarranted in the sense of being unreasonable. As the cases to which I have referred show, something more is required. The Appellant has not shown, for example, that the weight of evidence overwhelmingly supported her preferred hypothesis or that the assumption made by the Tribunal had at its foundation a false premise. In these circumstances, I do not think that it was unreasonable for the Tribunal to proceed on the basis that the interrogators were posing questions about real events. This is particularly so where the Appellant did not advance a case to the Tribunal that the interrogation had involved putting fictional events to her. I therefore reject the challenge to the first credibility concern.

13    The second credibility concern was dealt with at [51]-[55] of the Tribunal’s reasons. At [51] the Tribunal said this:

Secondly, notwithstanding claims that the applicant was told that there was evidence implicating her, including evidence of witnesses, no details of the substance of such evidence was presented to the applicant. This is not credible to the Tribunal, if there was incriminating evidence. Further, there was equivocation in the applicant’s evidence as to whether she was questioned at the Boosa camp. The explanation given by the applicant in the hearing as to why the details of incriminating evidence were not put to her was unlikely, in the Tribunal’s view.

14    The Appellant submitted that this reasoning was blighted by the same unwarranted assumption. For the reasons just given I reject this submission.

15    The third credibility concern was dealt with by the Tribunal at [56]-[62] of its reasons and concerned the Tribunal’s refusal to accept that the Appellant’s husband would have been able to bribe officials to secure the release of his wife. The Tribunal’s reasoning on this appears sufficiently from [56], [59] and [62] of its reasons:

56.    Thirdly, the claim by the applicant that she was released through the payment of a bribe and then told that she should leave the country and never return defies credibility, in light of allegations that the applicant was supporting LTTE separatism.

…

59.    The Tribunal does not discount the prospect of individuals detained in Sri Lanka being released through bribery. Independent evidence has been provided by the applicant supporting this. However, the Tribunal had some difficulty accepting that this would occur in relation to an individual who is accused of being an active separatist, given that this is the key concern of the Sri Lankan government. The Tribunal has even more difficulty in accepting that such an individual would be told to leave the country and not return. That is particularly the case in relation to the applicant because the allegations against her are due to her links with [R], a proscribed person, and an allegation that the applicant herself is engaged in separatist activities amongst the Tamil diaspora.

…

62.    The Tribunal considers that the scenario put forward by the applicant that she was told to leave the country lacks inherent credibility.

16    The Appellant submitted that this reasoning suffered from an unwarranted assumption. The unwarranted assumption was that individuals who were detained could not secure their release through a bribe and then be told to leave Sri Lanka and not come back.

17    The Tribunal was certainly aware that persons detained in Sri Lanka could in some circumstances bribe their way to liberty as [59] of the Tribunal’s reasons makes clear. However, it explained why it did not think that notion could be applied to the position of the Appellant who was being accused of being an active separatist. There was also evidence before the Tribunal that some persons who secured their liberty through bribery subsequently left Sri Lanka. For example, the Tribunal had before it a report dated March 2014 prepared by Yasmin Sooka of The Bar Human Rights Committee of England and Wales and The International Truth & Justice Project, Sri Lanka entitled An Unfinished War: Torture and Sexual Violence in Sri Lanka 2009-2014. At p 7 of that report this passage appears:

Witnesses were released from detention only after their family paid bribes to members of the security force, often through intermediaries from pro-government paramilitary groups. Those who exited the country through Colombo airport also paid bribes to avoid being stopped and questioned.

18    I do not think that the Tribunal assumed that detained persons could not secure their release by bribery. Rather, it examined evidence to the contrary and concluded that it did not apply for an articulated reason. I do not think it is correct, therefore, to say that the Tribunal made an assumption about this. Nor do I think that it assumed that persons who secured their release by bribery could not be asked to leave Sri Lanka and not return. Rather, what it found was that given that the Appellant was accused of being an active separatist, it was unlikely that she would be asked to leave the country and not return. The reason for this was stated in the last sentence of [59], namely, that the Appellant was accused of engaging in separatist activities amongst the Tamil diaspora.

19    I do not think that it can be said that this reasoning lacked an evident or intelligible basis or that it could not reasonably be arrived at.

20    To the extent that the Appellant maintains her submission that the reasoning underpinning this concern was blighted by the same unwarranted assumption as the first two credibility concerns, such that the Sri Lankan authorities in fact did not believe her to be an active separatist and could therefore plausibly have allowed her release to be secured through bribery, I reject this submission for the same reasons given above.

21    The Appellant next submitted that the Tribunal’s fifth reason for disbelieving her revealed an unwarranted assumption (the Tribunal’s fourth reason is subject to a separate challenge). This fifth reason is at [69]-[70] of the Tribunal’s reasons. The finding at [69] was in these terms:

Fifthly, evidence by both applicants that the most recent passports of the applicant and the applicant husband were both returned to the applicant husband at the airport, before he left, is not credible in light of the allegations against the applicant. Given the nature of the allegations against the applicant, the Tribunal considers that her passport would have been retained during the process of detention and interrogation.

22    The Appellant submitted that the Tribunal did not have before it any evidence concerning country practices on which this finding might be based and there were three reasons which tended against it. Firstly, the CID did not make allegations against the husband so there was no reason for his passport to be retained. Secondly, if the CID was really concerned about her activities with the LTTE then it could have charged her at the end of the interrogation and continued to detain her. Thirdly, the Sri Lankan authorities had ‘sophisticated … stop and watch databases’. Using these databases the authorities could stop a person (such as the Appellant) leaving Sri Lanka even if they had a passport. These three reasons provided the explanation for why the Appellant’s passport was returned before she was released from detention.

23    It would appear that the unwarranted assumption is that, given that the allegation against the Appellant was that she was involved in separatist activities, it was unlikely that her passport would have been returned to her. I would accept that the Tribunal made this assumption and I also accept that there was no evidence before the Tribunal about the circumstances in which passports are kept or returned when a person is detained following an interview at the airport. However, not all assumptions are unwarranted. In this case, the Tribunal linked the making of the assumption to the nature of the allegation made against the Appellant. I do not think that in reasoning that way it may be said that the Tribunal acted unreasonably or that its assumption lacked an evident or intelligible justification.

24    As to three matters which were said to tend in the opposite direction, I accept that there does not appear to be any reason why the husband’s passport would not have been returned to him. But assuming the Tribunal erred in that regard, this would have had no impact on its conclusion in relation to the return of her own passport where its reasoning would still apply. I accept that the CID could have charged the Appellant but I do not understand how this provides a reason why her passport would have been returned to her. In the same vein, whilst it is plausible that the existence of the stop and watch databases might explain why her passport was returned, I am unable to conclude that their existence made it unreasonable for the Tribunal to reason as it did.

25    I therefore reject the Appellant’s case on each of the unwarranted assumptions. It is not necessary therefore to determine whether the Appellant had to succeed on all of them or whether, as she submitted, the findings were comingled such that success on one would undermine the others. For completeness, applying the standard in WAGO and BZD17 I would reach the same conclusion. In the case of each of the unwarranted assumptions set out above, I would conclude that the Tribunal did consider the question posed by the material before it.

Failure to comply with s 424A

26    The Tribunal did not accept that the husband’s account of what had happened at the airport was credible. It reached that conclusion because it identified an inconsistency in his evidence. The husband was also an applicant before the Tribunal (he passed away after the proceedings in the Federal Circuit Court). In the Court below it was submitted that the Tribunal had failed to comply with s 424A of the Migration Act 1958 (Cth) (‘the Act’) which provides:

424A    Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

(2)    The information and invitation must be given to the applicant:

(a)    except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)    if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(2A)    The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)    that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is non-disclosable information.

(4)    A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

27    In the Court below both the Appellant and her husband accepted that this submission could not succeed because of the High Court’s decision in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190 (‘SZBYR’). The Appellant now seeks to resile from that position. I do not think it would be appropriate to permit that to occur. The Appellant was represented at first instance by solicitors. No evidence was led on the hearing of this appeal to suggest any principled basis on which the Appellant could be relieved of the consequences of the way in which the case was run at trial.

28    Even if it had been appropriate to entertain the point, I would not have accepted it. The Tribunal’s view that the husband’s account contained an inconsistency was not information to which s 424A applied as SZBYR holds.

Conclusions

29    The appeal should be dismissed with costs as taxed or agreed. The Appellant’s husband passed away after the commencement of this proceeding and is named as the Second Appellant. To regularise the Court record his name should be removed as the Second Appellant. The name of the First Respondent should be changed to the ‘Minister for Immigration, Citizenship and Multicultural Affairs’.

Associate:

Dated:    6 June 2023