FEDERAL COURT OF AUSTRALIA CPW16 v Minister for Immigration and Border Protection [2017] FCA 1210 Appeal from: CPW16 v Minister for Immigration & Border Protection [2017] FCCA 818 File number: NSD 655 of 2017 Judge: FLICK J Date of judgment: 12 October 2017 Catchwords: MIGRATION – application for protection visa – review by Tribunal – claim fails by reason of adverse findings as to credit ADMINISTRATIVE LAW – adverse findings as to credit – judicial scrutiny of adverse findings as to credit – need to set forth basis upon which findings are made – mere assertion as to lack of credibility not sufficient – procedural fairness – need to bring to a party's attention the fact that credibility is in issue Legislation: Migration Act 1958 (Cth) s 36 Cases cited: Abebe v Commonwealth [1999] HCA 14, (1999) 197 CLR 510 AEX15 v Minister for Immigration and Border Protection [2017] FCA 821 AKY15 v Minister for Immigration and Border Protection [2016] FCA 232 APP15 v Minister for Immigration and Border Protection [2016] FCA 493, (2016) 69 AAR 202 AGU16 v Minister for Immigration and Border Protection [2017] FCA 441 AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193, (2015) 238 FCR 341 BMX16 v Minister for Immigration and Border Protection [2017] FCA 700 Chen v Secretary, Department of Social Services [2016] FCA 1474, (2016) 71 AAR 124 CPW16 v Minister for Immigration & Border Protection [2017] FCCA 818 CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146, (2016) 70 AAR 413 Hunter's Hill Council v Minister for Local Government [2017] NSWCA 188 Maan v Minister for Immigration and Border Protection [2017] FCA 906 Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, (2013) 212 FCR 99 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1, (2000) 168 ALR 407 Straits Exploration (Australia) Pty Ltd v Kokatha Uwankara Native Title Claimants [2012] SASCFC 121, (2012) 114 SASR 516 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, (2006) 228 CLR 152 SZLGP v Minister for Immigration & Citizenship [2008] FCA 1198 SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089, (2015) 233 FCR 451 SZVBT v Minister for Immigration and Border Protection [2017] FCA 355 Date of hearing: 9 and 15 August 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 37 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Mr T Shaw of Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS NSD 655 of 2017 BETWEEN: CPW16 Appellant AND: MINISTER FOR IMMIGRATON AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: FLICK J DATE OF ORDER: 12 OCTOBER 2017 THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The Appellant is to pay the costs of the First Respondent, either as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT 1 The Appellant is a citizen of Pakistan. 2 He first arrived in Australia in September 2008 on a student visa. He returned to Pakistan between August and October 2011. He thereafter resumed his studies in Australia. In September 2014 he lodged an application for a Protection (Class XA) visa. That application was refused by a delegate of the Minister for Immigration and Border Protection in May 2015. 3 The Appellant then sought review of the delegate's decision by the Administrative Appeals Tribunal. He appeared by way of a video link before the Tribunal conducting that review in August 2016. In September 2016 that Tribunal affirmed the delegate's decision not to grant the Appellant a Protection visa. 4 The Appellant then sought judicial review of the Tribunal's decision before the Federal Circuit Court of Australia. That Court dismissed the application in April 2017: CPW16 v Minister for Immigration & Border Protection [2017] FCCA 818. 5 The Appellant now appeals to this Court. 6 The Respondent Minister was represented by a solicitor. 7 When the matter was first before the Court on 9 August 2017, the Appellant failed to appear. There was no self-evident reason for his failure to attend. He had been notified of the time and place for hearing. The matter was stood down for a brief period to allow for attempts to be made to contact the Appellant by telephone. Those attempts were unsuccessful. In the interim, it emerged that the Appellant had contacted the Registry of the Court that morning advising that he was "unwell" and unable to attend. 8 An application was initially made by the Respondent Minister's legal representative on 9 August 2017 to have the proceeding dismissed for want of appearance. That application was rejected and the hearing of the appeal was adjourned. 9 The matter proceeded to hearing on 15 August 2017. The Appellant then appeared, albeit unrepresented. 10 The appeal is to be dismissed. Neither of the two Grounds of Appeal relied on have any substance. THE GROUNDS OF APPEAL 11 The Grounds of Appeal as set forth in the Notice of Appeal provide as follows (without alteration): 1. The Tribunal incorrectly applied s. 36(2)(a) and s.36(2)(aa) of the Migration Act 1958 to the facts presented by the appellant; Particulars The appellant fears persecution in Pakistan because he converted/is being perceived as converted to Christianity. Wilful abandonment of Islam is a crime in Pakistan. The appellant fears that he will be punished if he returns to Pakistan. The appellant claims to be persecuted from two ends, by the authorities for apostasy and by those who hold extremist views. The appellant submits that the seriousness of his threats were not properly applied to his evidence and that there was an incorrect application of the law, namely sections 36(2)(a) and 36(2)(aa) to the facts presented by the appellant. 2. The appellant pleads that the Tribunal took into account irrelevant considerations and disregarded relevant considerations resulting in jurisdictional error. These two Grounds are much the same as the grounds relied upon before the Federal Circuit Court. THE ADVERSE ASSESSMENT AS TO CREDIBILITY 12 One fundamental difficulty confronting the Appellant, both before the Federal Circuit Court and this Court on appeal, was the adverse assessment made by the Tribunal as to his credibility. 13 This difficulty presents an insurmountable obstacle to success on the part of the Appellant for either of two reasons, namely: the fact that a finding as to the credibility of a witness is primarily a task entrusted to the Tribunal to resolve; and the fact that the Tribunal's assessment as to the credibility of the Appellant was soundly based. No great elaboration of either reason is presently called for, but each should nonetheless be briefly considered. Credibility – a finding of fact par excellence but not a shield from judicial scrutiny 14 On an application for judicial review an applicant must expose legal error in the decision-making process; factual error, generally, falls short of legal error. And "a finding on credibility … is the function of the primary decision-maker par excellence": Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67], (2000) 168 ALR 407 at 423 per McHugh J. Neither the Federal Circuit Court nor this Court on appeal has any general role to review the findings of fact made by the Tribunal: AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [38], (2015) 238 FCR 341 at 350 to 351 per North, Besanko and Flick JJ; AKY15 v Minister for Immigration and Border Protection [2016] FCA 232 at [20] per Markovic J. 15 But findings as to credibility are findings of fact the same as any other fact: cf. SZLGP v Minister for Immigration & Citizenship [2008] FCA 1198 at [25] per Gordon J. "[A]dverse findings as to credit by the Tribunal", accordingly, "do not shield its decision-making processes from scrutiny": SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] per Flick J. See also Maan v Minister for Immigration and Border Protection [2017] FCA 906 at [48] per Charlesworth J. It is, accordingly, not sufficient for an administrative decision-maker to simply set forth an adverse finding as to credibility without also setting forth the basis upon which that assessment has been made: cf. Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [78], (2013) 212 FCR 99 at 121 per Robertson J; SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089 at [23], (2015) 233 FCR 451 at 457 per Flick J; APP15 v Minister for Immigration and Border Protection [2016] FCA 493 at [23], (2016) 69 AAR 202 at 208 per Logan J; SZVBT v Minister for Immigration and Border Protection [2017] FCA 355 at [14] per Flick J. 16 A mere recitation by an administrative decision-maker as to the credibility of a witness, it is thus accepted, does not preclude judicial scrutiny: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146, (2016) 70 AAR 413. McKerracher, Griffiths and Rangiah JJ there explained the observations of McHugh J in Ex parte Durairajasingham and summarised the position as follows (at 425 to 426): [37] It is important to note that McHugh J's observations and his Honour's use of the phrase "par excellence" were made in the specific context of a claim that the Tribunal had not complied with its statutory obligation under s 430 of the Migration Act to give reasons for its decision. Nothing said by McHugh J suggests that the Tribunal's adverse findings on credibility are not amenable to judicial review on jurisdictional error grounds. There is a risk that a mechanical use of the phrase "par excellence" as a formula fails sufficiently to appreciate this important reality. The fact that credibility is a matter for the Tribunal to determine as a question of fact does not mean that challenges to credibility are not open. This appeal illustrates three of a number of potential bases of challenge to credibility findings on well-established legal precedent. In the present appeal, the foundation for the challenge is on the basis of no logical or probative basis for the finding in relation to ground 1, illogicality and/or irrationality in relation to ground 2, and, in relation to ground 3, a lack of natural justice. [38] There are several other potential bases upon which credit findings can be challenged. Recitation of the expression that credibility is a matter par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as: (a) failure to afford procedural fairness; (b) reaching a finding without any logical or probative basis; (c) unreasonableness; and/or (d) jurisdictional error as discussed by Flick J in [SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089, (2015) 233 FCR 451]. See also: BMX16 v Minister for Immigration and Border Protection [2017] FCA 700 at [24] per Collier J; AEX15 v Minister for Immigration and Border Protection [2017] FCA 821 at [40] per O'Callaghan J. The delegate & the Tribunal's findings 17 The claim for protection as made by the Appellant, as exposed in his written claims and from an interview held on 7 April 2015, focussed upon a claim that he converted from being a Shia Muslim to Christianity. Although he stated in his written claims that he "did not experience harm when [he] was in Pakistan because nobody knew [he] had converted to Christianity", he further stated that if he went "back to Pakistan by law in Pakistan [he] will be obligated to attend the court but [he was] sure [he wouldn't] reach to that stage and [he] will get killed by biased people before [he got] to the court". 18 The delegate concluded that the Appellant "demonstrated no knowledge of the Christian faith" and that he did not claim, in any event, to have genuinely converted to Christianity. The Appellant claimed that he only had converted so that he could marry his fiancé. The delegate further stated (inter alia) that the Appellant's "account of problems experienced, were vague and unconvincing". 19 The Tribunal was equally critical of the Appellant's claims. 20 The Tribunal's reasons thus set forth an exposition of the evidence given by the Appellant, including an exchange of emails between himself and his sister, and state in part as follows (without alterations other than marked): Evidence to the Tribunal 28. [CPW16] gave oral evidence to the Tribunal on 30 August 2016 but provided no supporting evidence of any kind in the course of his review application. 29. [CPW16] initially told me that he had only a couple of hours of religious instruction before he was allowed to be "converted". He said this involved having water sprinkled on his face while the priest read the Bible. He said the church was Roman Catholic but he could not remember the name of the church. He said it was a community church. I told him it might have been named after a person or event in church history but he still was unable to name it. I put to [CPW16] that according to widely available independent information, the Catholic church would not baptise an adult, previously non-Christian individual who had not undergone several months of catechism aimed a faith formation. I essentially put to [CPW16] that his claim to have been inducted into the Catholic church was at stark odds with the universally approved and required process of induction into the church. In response he said he was in Pakistan for two months. He indicated that he talked about converting with his girlfriend, but he did not give a satisfactory explanation as to how a Catholic priest would have baptised him within mere hours of his first encounter with the Church. … 33. [CPW16] said he met his girlfriend in 2011 and they decided to marry. He said the family was not sure, "so I moved to Australia." He thus suggested he came to Australia in October in order to facilitate a marriage that was not accepted by his or her family in Pakistan. However, this reason for coming to Australia in 2011 does not appear sit with other evidence he gave at the Tribunal hearing, because he told me he came here with the intention of studying and detailed to me the numerous courses he enrolled in and pursued before and after his 2011 visit to Pakistan; in particular he told me he was still in Australia in 2012 due to an intention to study for a Master degree. The findings in relation to s 36(2)(a) included the following: 47. Meanwhile, [CPW16] has provided no evidence to the Department or to the Tribunal to support his claim as to the existence of the woman for whom he underwent the process of baptism. I do not proceed in this decision from any expectation or presupposition that an applicant for a protection visa must have retained photographs of an erstwhile fiancée or that he must have retained evidence of their long-distance conversations. However, I am entitled to consider [CPW16's] evidence about never having accumulated such material in a cumulative consideration of his evidence about the woman who he claims to have sought to marry, and I have done so in this case. On the evidence before me, I find that I cannot rely on [CPW16's] claim to the effect that she has ever existed let alone died, let alone been murdered, let alone for the reasons claimed. I find that [CPW16's] claims about the existence and significance of this woman in his life are a complete fabrication. 48. Overall, I find that [CPW16] is not a witness of truth. In view of finding [CPW16] to be a wholly unreliable witness in this matter, I give no weight to the emails suggesting that he faces relevant harm in Pakistan. On the evidence before me, I do not accept that [CPW16] has any cousins who converted to Christianity in Pakistan, let alone that any was arrested and gave evidence to the police against him. On the evidence before me, I am not satisfied that [CPW16] would be imputed by anyone anywhere in the world, let alone in Pakistan, to have abandoned Islam. THE ABSENCE OF APPELLABLE ERROR 21 The claims for judicial review as advanced before the Federal Circuit Court were rightly rejected. 22 The Tribunal's assessment as to the credibility of the Appellant, being findings which compelled the rejection of the factual basis upon which his claims for protection were advanced, were findings open to it and findings having an apparent evidential basis in the evidence available. 23 In the absence of a factual basis for the claims made, no question thereafter arose of any error in the construction of application of s 36 of the Migration Act 1958 (Cth). 24 Although the second ground upon which judicial review was sought was expressed before the Federal Circuit Court in terms of both a failure to consider relevant considerations and the taking into account of irrelevant considerations as well as a denial of procedural fairness, there was a failure before that Court to identify the consideration(s) not taken into account or the irrelevant consideration(s) said to have been erroneously taken into account: [2017] FCCA 818 at [28]. Nor could the Federal Circuit Court Judge discern any denial of procedural fairness: [2017] FCCA 818 at [29]. 25 It was: unquestionably open to the Tribunal to have made the adverse findings as to the credit of the Appellant which the Tribunal did in fact make. However, some initial reservation was nevertheless expressed during the appeal to this Court as to whether: the Tribunal made it apparent to the Appellant that the inconsistencies in his evidence or questions as to the reliability of his evidence could potentially be relied upon as a basis for making those adverse findings and – more fundamentally – as a basis for rejecting the claims made. 26 A recitation by a decision-maker that he "put to" a party a particular matter so that an explanation may be provided may not be sufficient. It may be that a Tribunal Member needs to give an express statement that a failure to provide an adequate explanation may lead to the rejection of the evidence being given and a finding being made that the party is not a witness of truth. A legal representative may well expect a submission to be advanced as to credibility in circumstances where a witness is being cross-examined and it is being "put" in cross-examination that an account of evidence is open to question. An unrepresented party on the other hand, who may have little education and little command of the English language, may well not be aware that his credibility is thereby being put in issue by simply being asked to provide an explanation as to (for example) differences in the evidence being given. 27 The need for judicial scrutiny of adverse findings as to credibility assumes particular significance in the present statutory context where many claims for protection fail by reason of a claimant being disbelieved and where adverse credibility findings are commonly made by the Tribunal undertaking a review of the factual merits of a claim. 28 Although it may readily be accepted that an administrative decision-maker need not identify to a party each and every inconsistency in the evidence being given or each particular piece of evidence in respect to which a question as to their reliability may arise, procedural fairness would generally require a party to be put on notice that an adverse finding as to his credibility may be made: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [42] to [47], (2006) 228 CLR 152 at 165 to 166 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; Straits Exploration (Australia) Pty Ltd v Kokatha Uwankara Native Title Claimants [2012] SASCFC 121, (2012) 114 SASR 516. 29 How such notice is to be given, and the circumstances in which a more general expression by a decision-maker of doubts as to the credibility or reliability of evidence being given should be conveyed to a party as opposed to those circumstances in which more specific expressions of such doubts should be conveyed, obviously depends upon the facts and circumstances of each particular case and the importance of the evidence being given to those findings of fact fundamental to the decision as ultimately made. 30 Needless to say, a "running commentary" on evidence is generally not required. In SZBEL their Honours thus concluded (at 165 to 166): [47] First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. [48] … Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment. See also: AGU16 v Minister for Immigration and Border Protection [2017] FCA 441 at [18] to [25] per Nicholas J. Similarly, in Chen v Secretary, Department of Social Services [2016] FCA 1474, (2016) 71 AAR 124 it was observed (at 133 to 134): [31] … There is no requirement that the Tribunal expose its reservations as to the reliability of the evidence being given during the course of a hearing. It may do so – but it is not required to do so. There is, in particular, no requirement for a decision-maker to give a "running commentary" on its assessment of the evidence throughout the course of a hearing: cf Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [31] per Gleeson CJ and Hayne J. A decision-maker's assessment of the probative weight to be given to the evidence being adduced by a party may vary considerably throughout the course of the hearing itself as the evidence is tested in possible cross-examination and when further, possibly corroborative evidence is adduced. Its assessment may also change after the hearing has concluded and the decision-maker is considering the evidence in its entirety in the course of preparing reasons for decision. 31 But what is generally required by procedural fairness is for a claimant to be on notice that there is a serious question being raised as to whether his evidence is reliable and whether he is a credible witness or "to warn an applicant if material is likely to be used in a way which was not reasonably to be expected": Hunter's Hill Council v Minister for Local Government [2017] NSWCA 188 at [188] per Basten JA. If notice is given and an opportunity extended to a party to respond, what may initially appear (for example) to be inconsistency in evidence may be exposed as perhaps misunderstanding or possibly even confusion on the part of the decision-maker or may be resolved by further evidence. 32 On the facts of the present case, and although not advanced as a Ground of Appeal, it is nevertheless separately considered that there was no denial of an opportunity having been extended to the Appellant to explain the factual basis upon which his claims were advanced given (inter alia): the fact that the Appellant was on notice well before the Tribunal hearing that his credibility was in issue, especially given the adverse findings previously made by the delegate; an important factual basis upon which those adverse findings were made was the content of the emails, being a matter evidenced by the emails themselves and a matter expressly referred to by the delegate, as opposed to (for example) an assessment made during the course of the hearing before the Tribunal primarily by reference to (for example) demeanour; and the fact that there was not one matter – but a number of matters – in respect to which the Tribunal "put" to the Appellant that his account was being questioned. An isolated rejection of evidence, albeit a matter of evidence going to a finding of fact central to the Tribunal's decision, it is considered, stands separate from an administrative hearing during which a series of matters arise which give rise to a concern on the part of the decision-maker. An unrepresented party may not be alerted by an isolated occasion upon which a contrary proposition is being "put" by a decision-maker; but repeated occasions may well be sufficient to put an unrepresented party on notice that his evidence is being challenged as to its reliability and credibility. Moreover: during the course of the hearing before the Tribunal in August 2016 the Tribunal did apparently alert the Appellant to the difficulty it was experiencing in the various accounts being advanced by the Appellant. During the course of the hearing, the Appellant thus accepted that the Tribunal member told him (for example) that he was "just making up the story" or that he was "lying" or "not telling the truth". 33 Such reservations as are presently expressed could, of course, be readily addressed by an administrative decision-maker during the course of hearing expressly bringing its reservations as to the reliability or credibility of the claimant's evidence to his attention. A statement to that effect thereafter in reasons for decision would make such an approach self-evident in those cases where there is no available transcript, as is frequently the case. In expressing the need to provide notice to a party that the reliability or credibility of evidence is in question, obvious care needs to be taken not to put too great a reliance upon a requirement to "put to a party" that his evidence is open to question. Such a requirement would impermissibly have the tendency to deny to the administrative process its essentially non-adversarial character: Abebe v Commonwealth [1999] HCA 14 at [187], (1999) 197 CLR 510 at 576 per Gummow and Hayne JJ. The requirement imposed by procedural fairness simply remains a requirement to provide notice to a party and to afford an opportunity to respond. 34 No appellable error is, however, discernible in the rejection by the Federal Circuit Court of the arguments then advanced for resolution. CONCLUSIONS 35 Neither Ground of Appeal has been made out. 36 The appeal should, accordingly, be dismissed. 37 There is no reason why costs should not follow the event. THE ORDERS OF THE COURT ARE: 1. The appeal is dismissed. 2. The Appellant is to pay the costs of the First Respondent, either as agreed or taxed. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 12 October 2017