Federal Court of Australia

DTJ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 263

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

A    INTRODUCTION

1    This appeal has a relatively narrow focus.

2    It arises from orders made by the Federal Circuit and Family Court of Australia dismissing an application for judicial review of the second respondent’s (Tribunal) decision to affirm the first respondent’s (Minister) decision to refuse a protection visa application lodged by the appellant. I am spared the necessity to set out the relevant factual background, the summary of the Tribunal’s decision and the proceedings before the court below, as these matters are comprehensively dealt with in the decision of the primary judge: DTJ22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 728 (at 4–7 [2]–[12] per Laing J) (J).

3    Although the application for judicial review below commenced with reliance upon four grounds, the issues were refined and, today, although there were two grounds of appeal raised, it is common ground that the determinative issue is whether or not the primary judge erred in failing to find that the decision of the Tribunal was legally unreasonable.

B    RELEVANT PRINCIPLES

4    There is no dispute as to the relevant principles. The primary judge (at J 10 [27]) referred to what Allsop CJ had said in SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589; (2019) 78 AAR 464 (at 447 [40]), when his Honour explained:

40.     The development of the law on legal unreasonableness since Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 and Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 has seen the clearer recognition that findings of fact, even ones based on credit, are not immune from judicial review based on jurisdictional error. See, for example and in particular, the important judgment of Robertson J in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99. It can be accepted that credit findings have a particular and important place in decision-making, whether of courts or tribunals: see the remarks of McHugh J in Re Minister; Ex parte Durairajasingham [2000] HCA 1; 168 ALR 407 at [67]. For this reason, no doubt, a court exercising the power of judicial review should be cautious in its approach to deciding whether the decision-maker, in dealing with the factual material, including the oral evidence of the applicant, has failed to exercise its statutory task by an approach which can be criticised as seriously irrational, illogical or lacking material foundation in important aspects. There is no formula involved. Careful attention must be paid to the reasons and approval of the decision-maker: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 (Allsop CJ, Robertson and Mortimer JJ) not for the purpose of ascertaining the facts, but for the purpose of deciding whether the approach of the tribunal was sufficiently lacking in foundation, rationality, or logical coherence in a way that could have affected the outcome so as to be legally unreasonable. It can be accepted that reasonable differences of views as to material are insufficient to found legal unreasonableness. The flaw in the fact-finding or treatment of the evidence must be sufficiently seriously illogical, irrational or groundless as to compromise the decision, in that the credit finding can be seen as compromised. See the Full Court decisions which deal with the review of credit findings: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109; ASB17 v Minister for Home Affairs [2019] FCAFC 38; AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175. I refer to what I said in CWR16 v Minister for Immigration and Border Protection [2018] FCA 859 at [60]-[65].

C    CONSIDERATION OF BELOW DECISION

5    The primary judge correctly directed attention to the necessity for the relevant error to demonstrate that the decision is devoid of intelligible justification or is a decision to which no rational or logical decision-maker could arrive on the same evidence.

6    As Mr Boccabella of counsel explained during the course of his helpful and comprehensive submissions, the essence of the unreasonableness of the Tribunal was what he describes as the unjustified conclusion that the appellant had “fabricated” his case in the Tribunal in relation to what counsel termed the “Honjo bashing incident”, which included general threats directed towards the appellant by criminal gangs in China and Hong Kong.

7    Given the relatively narrow focus of the complaint made by the appellant, and despite its length, it is worth extracting paragraphs 67 to 75 of the Tribunal’s reasons, which are in the following terms:

The risk in China due to the applicant's involvement with gang members

67.     The delegate provided a summary of the background of the 'Big Circle Gang' in the decision record. It is unnecessary to repeat that at length, other than to observe that it was reported to be a triad-1 criminal enterprise formed in Guangzhou, China by a group of imprisoned Red Army Guard in the late 1970s. It was reported to operate without a central authority and to have cells operating in countries around the world that cooperate with each other on an ad hoc basis.

68.     The delegate summarised what the applicant said at the interview concerning his involvement with the gang. His first encounter was in 2005 and he became involved though friendship with gang members in Cabramatta. He detailed how he became involved, his involvement with their activity in Australia and his attempts at leaving the gang.

69.     The applicant told the Tribunal that he had never been assaulted in Australia by gang members. He told the Tribunal hearing about the bashing he received when he was in China in 2016, which was in accordance with the claim contained in the written statement attached to his protection visa application. However, the Tribunal was concerned by the fact that the applicant did not repeat this claim when he had his interview with the delegate to discuss his protection claims. In that interview, the applicant was asked whether he had any problems during his 2016 trip overseas. He said he did and when asked to detail what happened, he said in Hong Kong he was found by a gang member who said that he was owed money and he was asked to continue working for the group in Australia. He did not detail that he was assaulted.

70.     The Tribunal asked why the applicant did not raise this assault during his interview with the delegate. The applicant said that he was not asked the question. The Tribunal does not accept that to be correct. In the subsequent statement to the Tribunal addressing this issue, the applicant reiterated that he mentioned this assault in his original statement accompanying the protection visa application.

71.     The Tribunal asked the applicant why he did not raise any of his claims concerning his fear of harm from the gang in the AAT review of the decision to not revoke the cancellation of his previous visa. The applicant responded that it did not occur to him that his claims concerning the gang could form the basis for the cancellation decision to be revoked. He claimed that he told his agent at the time that he owed money to the gang. After the Tribunal hearing, the applicant provided a statement where he directed the Tribunal to the fact that a submission was made that he felt 'under threat' by people 'demanding repayment of the money' which was discussed at paragraph 135 of the AAT decision. The Tribunal accepts that the applicant provided that to that Tribunal as a reason for the offending and was not provided in the context of claiming that he would be harmed by gang members upon his return to China.

72.    The Tribunal also queried why the applicant would not raise any of his claimed fear of harm from the criminal gang at his located person interview in April 2020. The applicant responded that his claim about the debt was detailed in a 2016 pre-sentence report. The Tribunal observes that no such report was provided to the Tribunal. The applicant responded that he did not think his fear of harm concerning the gang was relevant as the located person interview in April 2020 was concerning his connection to the Australian community.

73.     Considering all the applicant's evidence about his claimed involvement with the gang in Australia, his claimed past experience of harm at their hands due to a bashing overseas in 2016, and his claim that a debt was owed, and that he had been instructed while in prison that the money needed to be returned, the Tribunal is not satisfied that if there was any truth to his claims that he owed a debt, had been harmed overseas, or was considered a traitor to the gang, those claims would not be detailed in the located person interview in 2020, or in the applicant's response to the 501 notice, or be cited as a reason in the AAT review of the decision to not revoke the cancellation of his visa as a basis for protection claims.

74.     Rather, the Tribunal is satisfied that while the applicant has been involved in criminal activity with a 'gang' as demonstrated by his criminal history, the Tribunal is not satisfied that there is any truth to the applicant's claims that he has been previously harmed due to this association or due to a debt related to the money which was confiscated, or that he will be harmed in the future.

75.     Rather, the Tribunal is satisfied that the applicant has no fears of harm from the gang and decided to fabricate this claim in order to lodge a protection visa. The Tribunal suspects that any claim in a pre-sentence report concerning the debt (if there had been such a claim) or explanation about fear due to demands of a debt' made in the course of the AAT review was manufactured to explain the context of the offending, not because there was any truth to the claim.

8    The reference to what the delegate had been told is a reference to an interview that occurred on 1 March 2021, when, following an application for a protection visa made on 9 February 2021, the appellant was requested to attend an interview to discuss his visa application and his claims that he was a person in respect of whom Australia has protection obligations. The purpose of the interview was to obtain more information about the appellant’s application.

9    That interview was conducted by a person other than the delegate of the Minister, but it is evident that the interview was the subject of audio recording. One of the curiosities of this case is, notwithstanding the existence of the audio which was referred to by both the delegate and the Tribunal, it was not provided to the primary judge, nor, as a consequence, is it available to me on appeal. The only record of the representations made by the appellant to the interviewer are those summarised in the reasons of both the delegate and the Tribunal.

10    This is important because much emphasis was placed by counsel for the appellant on the nature of the questions that appear to have been asked of the appellant in circumstances where the appellant (being the party bearing the onus in establishing jurisdictional error) is unable to point to the specifics of the questions asked.

11    As can be seen from the above extract of the Tribunal’s reasons, the Tribunal did not accept the appellant’s claim concerning his fear of harm from the gang of which he was a member (at [75]). It is this conclusion that is the kernel of the appellant’s argument.

12    Mr Boccabella places much reliance on Smith v New South Wales Bar Association (1992) 176 CLR 256, where Deane J said (at 271):

Unless it be truly necessary for the purpose of disposing of the particular case… a specific finding that a party or witness has deliberately given false evidence should ordinarily not be made.

13    His Honour further observed that the circumstances in which such a finding is necessary includes where (at 271):

There is a direct conflict of evidence and it is apparent that there is no real possibility of honest mistake.

14    Here, the appellant says that there was no reason for the Tribunal to make its finding of fabrication, and that this finding has infected its reasoning process. To this end, the appellant submits that it is asking too much to “try and unscramble the egg”. The appellant further argues that the Tribunal’s emphatic finding as to adverse credibility has infected the reasoning process of the Tribunal, rendering it legally unreasonable.

15    This argument fails to do justice to the Tribunal’s reasons in several respects because it ignores a series of intermediate findings and observations which preceded the conclusion reached in its decision (at [75]). These intermediate findings and observations are as follows:

16    First, when asked by the Minister’s delegate whether the appellant had experienced any problems during his trip overseas in 2016, the appellant recalled that he was found by a gang member who said he was owed money and who asked him to continue working for the gang in Australia. He did not state that he was assaulted, which was a source of concern to the Tribunal (at [69]). Relatedly, the Tribunal did not accept as accurate the statement of the appellant that he did not mention the assault during the interview because the delegate did not ask a question about it (at [70]).

17    Secondly, the Tribunal made reference to the fact that the appellant did not mention his fear of harm from the gang during the review of the decision not to revoke the earlier decision to cancel his visa. The appellant said that it did not occur to him that claims concerning the gang could form the basis of the revocation of the decision to cancel his visa, but that he had said that he felt “under threat” by people “demanding repayment of the money” (at [71]).

18    The Tribunal found that this submission was made as a reason for the offending, and not in the context of claiming that he would be harmed by gang members if he was to return to China (at [71]). The Tribunal reasoned that this omission had significance, as the request for revocation form invited the appellant to explain whether he had any concerns or fears about what would happen to him if he was returned to his country of citizenship, and whether a person seeking revocation of a decision to cancel their visa engages Australia’s non-refoulement obligations is a matter to which regard may be had for the decision-maker exercising power under s 501CA(4) of the Migration Act 1958 (Cth) (Act) where representations have been made in relation to that topic. Relatedly, if one has regard to the earlier Tribunal reasons of 18 February 2020, the Tribunal member states that the appellant “[did] not make any claims with respect to Australia’s non-refoulement obligations, and none arose on the evidence” (at [168]).

19    Thirdly, the Tribunal also made reference to the fact that the appellant made no mention of his fear of harm from the gang during a 17 April 2020 Australian Border Force “located person interview”. During that interview, the appellant was asked a series of questions, and his responses were recorded in interview notes by the official. The appellant was asked whether there were any reasons why he could not return to China. He indicated yes. As is recorded in the Tribunal’s reasons, his response was “I have nothing there” (at [26]).

20    Accordingly, the Tribunal stated that, having regard to all the evidence, it was (at [73]):

… [N]ot satisfied that if there was any truth to his claims that he owed a debt, had been harmed overseas, or was considered a traitor to the gang, those claims would not be detailed in the located person interview in 2020, or in the applicant's response to the 501 notice, or be cited as a reason in the AAT review of the decision to not revoke the cancellation of his visa as a basis for protection claims.

21    This state of non-satisfaction was of course sufficient for the Tribunal to reach the conclusion that the appellant had not satisfied it that there was a real chance of serious harm to the appellant in China due to his race, religion, nationality or membership of a particular social group or political opinion, and hence did not satisfy s 36(2)(a) of the Act. As the appellant points out, however, the Tribunal went further, and decided that there had been fabrication of the claim in order to lodge a protection visa application.

22    As the Federal Court of Australia Full Court explained in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 (at 518 [65] per McKerracher, Griffiths and Rangiah JJ):

… [T]he contention that the Tribunal had to find “specific evidence of falsity” before concluding that the appellant was not a witness of truth and that only “a direct conflict of evidence” could achieve this, cannot be accepted.

D    CONCLUSION AND ORDERS

23    The relevant issue is whether the appellant, who bore the onus before the primary judge, could establish that the approach of the Tribunal was sufficiently lacking in foundation, rationality or logical coherence in a way that could have affected its decision, causing it to be legally unreasonable. I am satisfied that the Tribunal’s state of non-satisfaction was justified on the evidence. This would have been sufficient, but I am also satisfied it was legally open to find that the rational explanation of why this was the case was the fabrication of a claim.

24    As evidenced by its reasons, the Tribunal found it difficult to see what other explanation there could be for the appellant’s account of events being raised in the circumstances of this case for the first time in writing during the course of making the protection visa application in February 2021, and following the appellant’s return visa being cancelled on character grounds in February 2019, a request for the revocation of that cancellation being refused, and a merits review of that non-revocation decision being refused.

25    I do not consider the decision of the Tribunal to be infected by legal unreasonableness, and the primary judge was, in my respectful opinion, correct in dismissing the application for judicial review.

26    It follows the appeal must be dismissed with costs.

Associate:

Dated:    20 March 2024