FEDERAL COURT OF AUSTRALIA SZUHJ v Minister for Immigration and Border Protection [2018] FCA 331 File number: NSD 1851 of 2017 Judge: FLICK J Date of judgment: 16 March 2018 Catchwords: ADMINISTRATIVE LAW – jurisdictional error – whether Tribunal erred in the manner in which it made adverse findings as to credit – whether there was no evidence for a finding made by the Tribunal – whether inconsistencies in the Applicant's account sufficient to make an adverse credibility finding – whether inconsistencies in the Applicant's account sufficient to make a finding that an event did not occur – whether decision unreasonable – whether Tribunal impermissibly imposed a burden of proof on the Applicant MIGRATION – protection visa – where Tribunal made adverse findings as to credit – whether adverse findings a to credit unreasonable – whether need for rebutting evidence before rejecting a factual assertion – consideration of weight to be given to evidence Legislation: Migration Act 1958 (Cth) ss 55, 423A Cases cited: AEX15 v Minister for Immigration and Border Protection [2018] FCA 82 CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146, (2016) 70 AAR 413 Kamm v New South Wales (No 4) [2017] NSWCA 189, (2017) 322 FLR 385 Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, (2010) 240 CLR 611 Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83, (2009) 247 FCR 404 Osland v Secretary, Department of Justice (No 2) [2010] HCA 24, (2010) 241 CLR 320 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1, (2000) 168 ALR 407 Repatriation Commission v O'Brien (1985) 155 CLR 423 SZUHJ v Minister for Immigration & Border Protection [2017] FCCA 2383 SZUXR v Minister for Immigration and Border Protection [2017] FCA 763 Date of hearing: 19 December 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 29 Solicitor for the Applicant: Mr H Ford, Solicitor Solicitor for the First Respondent: Ms E Cheesman of Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS NSD 1851 of 2017 BETWEEN: SZUHJ Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: FLICK J DATE OF ORDER: 16 MARCH 2018 THE COURT ORDERS THAT: 1. The application is dismissed. 2. The Applicant is to pay the costs of the First Respondent in the agreed sum of $6,800. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT 1 The Applicant in the present proceeding entered Australia in December 2011 on a Zimbabwean passport. 2 He applied for a Protection Visa in March 2012 but that application was refused in June 2012. An application for review of that decision was unsuccessful. The Refugee Review Tribunal affirmed the decision under review in March 2014. 3 The Applicant then applied for judicial review of the Tribunal's decision. The Federal Circuit Court of Australia dismissed that application in September 2017: SZUHJ v Minister for Immigration & Border Protection [2017] FCCA 2383. 4 The Applicant now seeks (inter alia) an order from this Court quashing the decision of the Federal Circuit Court. 5 The bases upon which the Applicant seeks relief are purportedly set forth in an Originating Application seeking relief under s 39B of the Judiciary Act 1903 (Cth). The bases upon which review is sought are, with respect, so confusingly set forth as to be almost impenetrable. At the hearing of the application, however, the solicitor for the Applicant more helpfully identified the bases upon which he proceeded as being jurisdictional error arising by reason of: error as to the manner in which the Tribunal made adverse findings as to credit; there being no evidence for certain findings made by the Tribunal; error in the application to the facts of the test of unreasonableness as set forth in Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332; and error arising by reason of the Tribunal impermissibly imposing a burden of proof. The Federal Circuit Court Judge, it was submitted, erred in not accepting like submissions when advanced before that Court. 6 The bases upon which the Applicant seeks review are misconceived. The Originating Application is to be dismissed with costs. The adverse findings as to credit made by the Tribunal 7 The adverse findings as to credit made by the Tribunal, and the focus of oral submissions made to this Court, relate to a claim made by the Applicant as to an incident that was said to have occurred in December 2009. 8 Although the Tribunal accepted that the Applicant had "been subject to some racism and discrimination in Zimbabwe as a coloured person", it rejected the claim that in December 2009 he was detained, assaulted and falsely charged by local police. In rejecting this claim, the Tribunal found that the claim was "fabricated to bolster his refugee claim". The reasons for reaching that conclusion (in very summary form) was that the claim: was a "new claim" which was only recently advanced for consideration – the inference being that, had the incident occurred, it would have been advanced previously; and involved "inconsistencies". 9 More fully expressed, the reasons and findings of the Tribunal on this issue were expressed as follows: 73. The Tribunal accepts that the applicant provided consistent and credible evidence, until the time when he introduced new evidence to the Tribunal about an incident in December 2009. The Tribunal notes that there may in some cases be valid reasons for introducing new evidence, however in this case, the Tribunal has concluded reluctantly (as it accepts the evidence in relation to earlier events) that the new evidence was fabricated to bolster his refugee claim. Reasons are set out in the following paragraphs. 74. Firstly, there has been no real valid explanation as to why this evidence was not introduced earlier. In his application, the applicant was asked why he feared returning and he did not refer to his father's political involvement, nor that there had been an incident when he had been arrested possibly because of association with his father. If he really did fear returning because of his association with his father, it would be expected that he would have stated this in his application. Furthermore, he did not discuss it with the delegate of the Department when asked about this fear of returning, despite a thorough canvassing of issues in that interview. In fact he told the delegate that he had never been unlawfully detained. When asked by the Tribunal why he had omitted to include the information in the application or discuss this with the delegate, he offered some different explanations. He said that he thought that it would cause difficulties for his protection case. The Tribunal does not accept this was a valid reason as the applicant was legally advised, and deprivation of liberty is a category of persecution mentioned as one of the possible types of serious harm. He also said that he did not think of it, and that he did not want the application to be a "pile of pages". The Tribunal does not accept he would not think of this incident if it did happen, nor that he would not include it because he thought it would make his application too long, as the incident is key to his claims. He has also said that he asked his father to provide a statement, and so the new evidence was based on his father's memories as well as his own, and he thought earlier the focus was on him, not his father. While it is certainly reasonable to include his father's recollections, this still does not explain why he did not earlier provide the information about the incident as he would have known about it without his father's statement. Furthermore, the incident clearly concerned him as well as his father, as it was he who allegedly was arrested and beaten up. 75. Another reason that the Tribunal has concluded that the December 2009 incident was fabricated, are the inconsistencies in the evidence concerning the circumstances. At the first Tribunal hearing he indicated that the police took him to a cell outside the city, where there was no cars. At the second Tribunal hearing (and also in his recent statement) he said that he was taken to Mzilikazi Police Station, close to the city. When asked about this discrepancy, the applicant said that he had matters clarified by Lenkosi who he spoke to prior to providing the recent statement. The Tribunal does not accept that this would be the kind of information which would require clarification, as a person would be able to recall where they were taken by police. At the first Tribunal hearing, he said that three of his Black friends were also arrested at their homes and charged with them. In a letter from his adviser dated May 2013, the names of these friends were provided. However at the second Tribunal hearing he said that he was charged with one friend only, Lenkosi. He said that the other two charged with them were strangers to him. When asked about this by the Tribunal, he said he later found out information and clarified it in his recent statement. However this does not explain why he earlier said that he was arrested with three friends, and why they were named. He also said at the first Tribunal hearing that he was charged with fraud, armed robbery and assault. At the second Tribunal hearing, he said that they were not charged, but that the lieutenant who spoke to them on the third day suggested they accept a charge in order to get released, so they said that they had assaulted someone and were charged with assault. When asked about this discrepancy he said that a police officer had called them "fraudster", which indicated to him he was being charged with fraud, armed robbery and assault, and that the lieutenant had in fact told them they would be charged with these offences. The Tribunal accepts that it is possible that when called a fraudster a person may think that they will be charged with fraud. It does not explain why at the first Tribunal hearing he also referred to armed robbery, a serious offence. The Tribunal does not accept that the lieutenant told them that they would be charged with these three offences, as the applicant had earlier told the Tribunal that no-one had told them what the charges would be. 76. Taking into account all this evidence cumulatively, the Tribunal is not satisfied that the December 2009 event took place. The Tribunal is not satisfied that the police came to his parents' house, took him away to a secluded area and beat him up and then took him to Mzilikazi police station where he was kept for a few days before being released on bail for assault. For these reasons, the Tribunal has given little weight to the father's letter which claims these events took place. The Tribunal does not accept that the incident took place notwithstanding this letter. The errors relied upon 10 Each of the four bases upon which review was sought before this Court overlapped one with the other. 11 The primary way in which jurisdictional error was sought to be exposed was a contention that the adverse findings as to credit merely evidenced the fact that there were inconsistencies in the evidence. Left unresolved, it was then submitted, was whether or not there was evidence to support a finding that the incident claimed to have occurred in December 2009 did not take place. An inconsistency in the account being given by the Applicant, it was submitted, more evidenced the fact that there were differences in the account being given but provided no basis for a finding that the incident did not take place. 12 A variant of that submission was the submission that the mere fact that the account being given by the Applicant may involve inconsistencies did not carry with it the consequence that the Applicant was not an otherwise credible witness. The error said to have been committed by the Tribunal was to halt its fact-finding task at that point where it concluded that there were inconsistencies in the evidence and to not proceed to otherwise consider whether the evidence as to the claimed incident was otherwise credible. 13 More starkly expressed, the rather bold submission advanced on behalf of the Applicant was that the Tribunal "must accept a claim until there is evidence to the contrary". Evidence to the contrary, so it was submitted, could not be found in the very fact of inconsistency. Inconsistencies said "nothing", so it was submitted, "as to the factual merit of the claim as made". 14 Even more starkly expressed, a further variant of the same submission was that "when the tribunal engages in credibility assessment it acts unlawfully". 15 The findings made by the Tribunal were said to reveal an inconsistency between ss 55 and 423A of the Migration Act 1958 (Cth). Section 55 provides as follows: Further information may be given (1) Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision. (2) Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information. Section 423A provides as follows: How Tribunal is to deal with new claims or evidence (1) This section applies if, in relation to an application for review of an RRT-reviewable decision (the primary decision) in relation to a protection visa, the applicant: (a) raises a claim that was not raised in the application before the primary decision was made; or (b) presents evidence in the application that was not presented in the application before the primary decision was made. (2) In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made. 16 The consequence of these variant ways of presenting the claim for relief, so it was submitted, was that the finding as made by the Tribunal (at para [76]) was a finding made upon no evidence, or was a finding unreasonably made or a finding which imposed upon the Applicant an impermissible burden of proof to make good his claim as to the December 2009 incident. 17 It was submitted that what the Tribunal required, in order for it to make the finding in fact made at para [76] in a reasonable manner and in a manner in accordance with law, was further evidence adduced perhaps by way of the Tribunal questioning the Applicant in respect to matters such as the circumstances in which the incident took place, when it took place, whether it resulted in hospitalisation of the Applicant and so on. The arguments rejected 18 There is no authority to support any of the various ways in which the Applicant sought to establish jurisdiction error. Indeed, the submissions made are contrary to well and long-established authority. 19 The Tribunal (at paras [73] and [74]) was entitled to place reliance upon the circumstances in which the "new claim" was raised. It was entitled to place reliance upon the various reasons expressed (particularly at para [74]) as to why it discounted the claim belatedly advanced. Sections 55 and 423A do not place any impediment in the path of reasoning pursued by the Tribunal. 20 Section 55, clearly enough, permits further evidence, or "additional … information", to be given; and, in those circumstances in which s 423A applies, that section permits an "unfavourable" inference as to credibility to be drawn. But neither section prohibits the Tribunal from making a finding of fact founded upon an adverse finding as to credibility. Nor does the "exhortat[ion]" to the Tribunal found in s 422B(3) of the Migration Act to "act in a way that is fair and just" create any substantive right or impose any "procedural requirement over and beyond what is expressly provided for": Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 at [15], (2009) 247 FCR 404 at 409 per Emmett, Kenny and Jacobson JJ. 21 The Tribunal was also entitled to rely upon inconsistencies in the account being given by the Applicant as a basis upon which it could be satisfied that the incident did not take place. There is no necessity for the Tribunal to possess "rebutting evidence" before concluding that a factual assertion may be rejected: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [65], (2016) 70 AAR 413 at 435 to 436 ("CQG15"). McKerracher, Griffiths and Rangiah JJ there concluded: [65] Next, the 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. To the contrary, it is clear on authority that the Tribunal does not need to possess rebutting evidence before holding that a particular factual assertion is not made out: see, for example, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 per Heerey J (at 348). This is not a case like [WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74, (2004) 80 ALD 568] where the majority, Lee and Moore JJ, held (at [52]) "[t]he Tribunal appears to have considered that it could disregard documents that it was otherwise bound to consider if it surmised that it was possible that the documents could have been fabricated". In that case, it was held that the Tribunal had erred, but not for the reasons advanced by the appellant in his argument. See also: SZUXR v Minister for Immigration and Border Protection [2017] FCA 763 at [15] per O'Callaghan J; AEX15 v Minister for Immigration and Border Protection [2018] FCA 82 at [11] per O'Callaghan J. 22 In making the finding at para [76], it is concluded that the Tribunal did not act in any way which was not "fair and just" and certainly did not make a finding which was unreasonable. Reliance by the Applicant upon Minister for Immigration and Citizenship v Li [2013] HCA 18, (2013) 249 CLR 332 at 365 to 366 was misplaced. Hayne, Kiefel and Bell JJ there observed: [72] The more specific errors in decision-making, to which the courts often refer, may also be seen as encompassed by unreasonableness. This may be consistent with the observations of Lord Greene MR, that some decisions may be considered unreasonable in more than one sense and that "all these things run into one another". Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [(1986) 162 CLR 24 at 41], Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is "manifestly unreasonable". Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense. (Footnotes omitted.) See also: Kamm v New South Wales (No 4) [2017] NSWCA 189 at [70], (2017) 322 FLR 385 at 398 per Beazley P (Bathurst CJ agreeing). The Applicant's argument was that on the facts of the present case the Tribunal had placed "excessive weight [upon] an irrelevant factor of no importance", namely the inconsistencies in the account provided. However, the finding made by the Tribunal was a finding open to it. As recognised by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [131], (2010) 240 CLR 611 at 648, what was involved was a finding upon which "different minds might reach different conclusions". The evidence given, and the raising belatedly of the "new claim", was a matter which could: [131] … give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. 23 Just as the argument that the Tribunal erred in making the finding at para [76] has been rejected, including the argument founded upon inconsistencies (at para [75]), so too is rejected the present argument as to the decision of the Tribunal being unreasonable. 24 The findings of fact made by the Tribunal were open to it upon the evidence and, in particular, upon the fact that the claimed incident that was said to have occurred in December 2009 was a "new claim" and a claim exposing inconsistencies. The task of fact finding has long been accepted as a task entrusted to the Tribunal: Osland v Secretary, Department of Justice (No 2) [2010] HCA 24 at [19], (2010) 241 CLR 320 at 332 per French CJ, Gummow and Bell JJ; Repatriation Commission v O'Brien (1985) 155 CLR 423 at 430 per Gibbs CJ, Wilson and Dawson JJ. So, too, has it been long-accepted, that findings as to credibility are 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 . To confine the Tribunal to only being permitted to make a finding consistent with the factual account being given by a claimant in the absence of rebutting evidence and not by reference to inconsistencies in that factual account would be inconsistent with the task entrusted to the Tribunal by the legislature to make findings of fact by reference to the evidence before it and would be inconsistent with authority: CQG15 [2016] FCAFC 146, (2016) 70 AAR 413. Although the difficulties of proof which may be encountered by a claimant seeking protection may readily be accepted, the Tribunal is not obliged to accept uncritically a factual account given by, or submissions advanced by, a claimant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 to 452 per Beaumont J 25 It remains a matter for a claimant to place before the Tribunal such materials as is best considered to support the claims made and a matter for the Tribunal to make a decision based upon such materials as are before it. No course should be unnecessarily or impermissibly encouraged whereby the Tribunal is precluded from making a finding of fact without itself first seeking to pursue a factual line of inquiry by (for example) questioning a claimant. It is, at least initially, a matter for the Tribunal as to the procedural course which it pursues. CONCLUSIONS 26 None of the arguments advanced on behalf of the Applicant expose error on the part of the Tribunal. The Federal Circuit Court Judge was correct to reject substantially the same arguments when advanced before that Court. 27 The proceeding is to be dismissed. 28 There is no need to resolve the Notice of Objection to Competency filed by the Respondent Minister or the Interlocutory Application filed by the Applicant. 29 It was agreed between the parties that costs should follow the event. THE ORDERS OF THE COURT ARE: 1. The application is dismissed. 2. The Applicant is to pay the costs of the First Respondent. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 16 March 2018