Aio18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 1095

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AIO18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1095   

File number:

MLG 174 of 2018

Judgment of:

JUDGE CHAMPION

Date of judgment:

29 November 2023

Catchwords:

MIGRATION – Judicial Review – Where the Tribunal in error recorded the wrong interest rate as to a loan from a money lender and made a consequential erroneous finding as to the Applicant’s credibility – Whether a material risk that error cross-contaminated other factual findings – Whether the error was a material error – Whether the Tribunal’s adverse credibility assessment of the Applicant because of his inconsistent accounts of his work history was legally unreasonable or affected by other error –  Whether the Tribunal’s findings as to a police statement and the Applicant’s fear that he might be paralysed on return to Malaysia were legally unreasonable or affected by other error – Jurisdictional error as to adverse credibility finding based on the interest rate error – Other grounds not affected by error – Application successful – Matter remitted to Tribunal for re-determination

Legislation:

 Migration Act1958 (Cth) s. 476

Cases cited:

Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62

ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174

AVQ15 v Minister for Immigration and Border Protection (2018) 361 ALR 227; [2018] FCAFC 133

BAU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1169

DTN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1525

MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17

Nathanson v Minister for Home Affairs (2022) 178 ALD 536; [2022] HCA 2

SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562

VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117

Division:

Division 2 General Federal Law

Number of paragraphs:

84

Date of last submissions:

31 October 2023

Date of hearing:

31 October 2023

Place:

Melbourne

Counsel for the Applicant:

Mr Maloney

Solicitor for the Applicant:

Carina Ford Immigration Lawyers

Counsel for the First Respondent:

Mr Dour

Solicitor for the First Respondent:

Mills Oakley

ORDERS

MLG 174 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AIO18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE CHAMPION
DATE OF ORDER:	29 NOVEMBER 2023

THE COURT ORDERS THAT:

1.A writ of certiorari is issued bringing the decision of the Second Respondent dated 8 January 2018 into this Court and quashing it.

2.A writ of mandamus is issued directing the Second Respondent to re-determine the review according to law.

3.The First Respondent pay the Applicant’s costs in a sum to be fixed if not agreed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE CHAMPION:

SUMMARY

1. The Applicant, a Malaysian citizen, who seeks a protection visa, says he borrowed 30,000 ringgit from a loan shark and he fears that if he returned to Malaysia that loan shark could kill him, paralyse him or get a hitman to destroy him. The Tribunal disbelieved the Applicant’s account. The Tribunal (among other findings) found that the “applicant’s claim that the loan shark was prepared to lend him money on the basis of a 0.05 per cent [interest rate] …[was]… implausible” because loan sharks operate to make significant margins and not as “benefactors” for debtors (CB140; TD [61]). The Tribunal referred to a 0.05% interest rate three times in its reasons, when, in fact, the Applicant had told the Tribunal the interest rate on the loan was 5%. The First Respondent conceded that the Tribunal had made an error but submitted that the error was “self-contained” and that there were other “independent” findings which supported the Tribunal’s disbelief of the Applicant’s account.

2. In my assessment, because of the Tribunal’s interest rate error and consequential adverse credibility finding there was a “material risk that there was contamination of other factual findings on other matters”: DTN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1525, [55]. The material risk of cross-contamination of other factual findings was a material error because if the Tribunal had not made that error, there was a realistic possibility that there could have been a different outcome. I have found that Ground 1 has been made out.

3. My findings as to Grounds 2 and 3 have to be read in light of my conclusion as to Ground 1: namely, that there was a material risk that the interest rate error cross-contaminated other findings. Grounds 2 and 3 are not truly self-contained.

4. Subject to that qualification, I have otherwise found that as to Ground 2 the Tribunal made no jurisdictional error as to the way it approached differences between the Applicant’s account of his work history in his written protection visa application and in his oral evidence to the Tribunal. There was no error in the Tribunal’s conclusion that the Applicant had attempted to “revise his work history to enhance his claims” (CB139, [55]).

5. Ground 3 concerned discrete and peripheral issues as to a police statement and a statement the Applicant made in his visa application that he was at risk of being “paralysed” if he returned to Malaysia. In contrast to the issue that underpinned Ground 1, even if there was a lapse of logic as to these peripheral matters, there was no material risk that the Tribunal’s findings as to other issues was cross- contaminated. No error as to those issues was a material error.

6. Because the Applicant has been successful as to Ground 1, I will (among other orders) issue a writ of mandamus be directed to the Tribunal requiring it to re-determine the Applicant’s application according to law. My reasons follow.

   BACKGROUND AND PROCEDURAL HISTORY

7. The Applicant is a Malaysian citizen (CB18). On 31 July 2016 the Applicant arrived in Australia on an Electronic Travel Authority (Subclass 601) visa.

8. On 25 October 2016 the Applicant applied for a protection visa by the completion of a written protection visa application (CB1-69).

9. Following the departmental delegate refusing the Applicant’s protection visa application on 16 February 2017 (CB70–83), the Applicant sought merits review. On 9 January 2018, the Tribunal notified the Applicant of its decision to affirm the delegate’s decision (CB129–145).

   The Tribunal Decision

10. In his written claim for a Protection Visa made on 25 October 2016, when the matter was before the delegate, the Applicant had described himself as a labourer in answer to a question about his employment history (CB33, Q84). He did not set out or disclose any more extensive engagement in business or business interests in the 2000-2012 period.

11. In a way which assumed significance in the Tribunal’s reasoning, and to which I will return in my analysis of Ground 2, the Tribunal found that after the Applicant was unsuccessful before the delegate, the Applicant had “revised his work history” to enhance his claims (CB139, [55]; [58]). The Tribunal said that it had difficulty with the Applicant’s “shifting of evidence, and the lack of clarity in detail with which he presented his claims at hearing” (CB138, [54]). It found his account of his work history “incoherent and inconsistent” (CB139, [55]). In his oral evidence to the Tribunal, the Applicant claimed that from 2001 to 2012 he had been engaged in business and, specifically, that he expanded a palm oil plantation business. He claimed that he initially leased a portion of the land on which a palm oil plantation operated and he had employed 7 people (CB131, TD[10]; CB137, [50], point 3).[1] The Applicant had not referred to this business activity when he completed his protection visa application on 25 October 2016.

    [1] The Tribunal's reasons at [50] set out a series of 23 unnumbered dot points. For ease of reference, I have identified them as “point 6”, “point 8” etc. in these reasons.

12. In or around 2012, the Applicant claimed that he borrowed money to expand his business enterprise by leasing a rubber plantation business. He wanted to own the rubber plantation business but lacked sufficient capital (CB137, [50], points 1-7). In 2012, for the purpose of pursuing the rubber plantation business, the Applicant claimed that he borrowed money from a moneylender or loan shark, a Chinese man named Ahming. He had wanted a friend Rahman to join with him but Rahman declined: (CB137, [50], point 7).

13. The Tribunal recorded that the Applicant claimed that: “He borrowed 30,000 Ringgit [from Ahming] at an interest rate of 0.05%” (sic) (CB137, [50], point 8). There was no paperwork for the loan and the rubber plantation in which the Applicant employed five people ran at a loss (CB137, [50], points 9-12).

14. From in or about 2013, the Applicant said that he worked as a construction worker in Singapore which enabled him to repay the debt to the moneylender (Ahming) and return to Malaysia (CB137, [50], point 15).

15. In 2016, the Applicant said that Ahming told the Applicant that he had not truly repaid the debt, which the Applicant disputed and, as a result, the Applicant and Ahming had an altercation, which became physical. The Applicant said that Ahming “had his men threaten the applicant” (CB138, [50], point 16). The Applicant claimed that he could not relocate anywhere because “they had gangsters and contacts everywhere” (CB13, [50], point 21). Further, “the Chinese man [Ahming] could kill him, paralyse him or get a hit man to destroy him” (CB138, [50], point 22).

16. The Tribunal found that the Applicant’s work history “as reflected in his [written protection visa] application [made on 25 October 2016] was genuine” (CB139, [56]): namely, that he was a self-employed labourer on plantations in Malaysia between 2000 and 2012. The Tribunal rejected what it characterised as the Applicant’s “new claims” as to his employment history that he was a businessperson “running a successful palm oil plantation (or part of) in the beginning and that then he wanted to expand his enterprise and lease a rubber plantation by employing five additional people to the seven who were already working on the palm oil plantation he had been leasing” (CB139, [58]). The Tribunal found that the Applicant had “revised” his work history to make it “consistent with the new claims” (CB139, [58]).

17. The Tribunal’s finding at [60] (CB139-CB140) was as follows:

    The applicant's own confusion in providing a clear sequence of events and work history at hearing leads the Tribunal to reject that the applicant had ever worked on a plantation in Malaysia as a contractor or subcontractor leasing parts of a plantation and employing people. As the Tribunal rejects the applicant's central premise that he borrowed money from a loan shark to fund the lease of another plantation (palm oil), it follows that the Tribunal rejects all the associated claims that he borrowed money (30,000 Ringgit) from a Chinese man called Ahming and that Ahming and his gangsters were in pursuit of him to kill him or harm any of his family members even though he had paid off his debt. The Tribunal rejects that persons called Rahman and Ahming exist. The Tribunal considers that the applicant had been working as a labourer on plantation farms but was not in need of borrowing money to expand his contracting operations because the applicant had never embarked upon such an endeavour.

18. The Tribunal found that the “applicant’s claim that the loan shark [Ahming] was prepared to lend him money on the basis of a 0.05 per cent is also implausible” (CB140, [61]). As this finding is central to Ground 1, I will return to it below.

19. The Tribunal rejected the Applicant’s claim that he feared for his family and that “Ahming and his gangsters had murderous intent toward the Applicant because they wanted to extract more money from him” (CB140, [66]).

20. The Tribunal concluded at (CB140, [68]) that:

    Having regard to the applicant's claims individually and cumulatively, the Tribunal rejects them in their entirety comprising those in his initial application as well as those put forward at the time of review.

    JUDICIAL REVIEW APPLICATION

21. By an application made on 24 January 2018 (and amended on 10 October 2023) the Applicant seeks judicial review pursuant to s. 476 of the Migration Act1958 (Cth) of the Tribunal’s decision.

22. I received into evidence the Tribunal Transcript (Tribunal Transcript).

    Ground 1: Did the Tribunal misconstrue and thereby fail to consider the Applicant’s claim?

23. Ground 1 is that the Tribunal misconstrued, and thereby failed to consider, the Applicant’s claim as to the interest rate on the loan.

24. The Applicant’s claim was that in 2012 he borrowed 30,000 Ringgit from a loan shark known to him only as Ahming. In the Tribunal Transcript there was the following exchange as to the interest rate on the loan (T20:L11-14):

    Member: What was the interest rate?

    Interpreter: [Tamil language]

    [Applicant]: [Tamil language]

    Interpreter: $50 I had to give for every thousand.

    [Emphasis added]

25. That is, the Applicant referred to a 5% interest rate on the loan from Ahming.

26. The Tribunal three times, in error, in its reasons recorded the interest rate as 0.05%, not 5%: (CB132 [18], CB137 [50], CB140 [61]).

27. In wholly rejecting the Applicant’s claim that a loan shark targeted him, the Tribunal’s reasons at [61] (CB140) were as follows:

    The applicant's claim that the loan shark was prepared to lend him money on the basis of a 0.05 per cent [sic] is also implausible. The country information makes it clear that loan sharks operate to make significant margins and do not operate as benefactors assisting those who may need credit.

    [Emphasis added]

28. As noted, it was common ground that the Tribunal was in error in recording a 0.05% interest rate when, in fact, the Applicant had told the Tribunal that there was a 5% interest rate: “$50 I had to give for every thousand” (T20:L11-14).

29. The Tribunal’s error in setting out a “0.05%” interest rate was not merely a typographical error; the Tribunal drew a substantive credibility conclusion adverse to the Applicant that his claim as to the loan interest rate was “implausible” because the nominal interest rate marked Ahming (alleged to be a loan shark) as the Applicant’s “benefactor”, the antithesis of a loan shark (CB140, [61]).

30. Although the First Respondent conceded that there was an error, the real issue between the parties was whether it was a jurisdictional error, which at least in part involves an assessment of the seriousness or gravity of the error: see AVQ15 v Minister for Immigration and Border Protection (2018) 361 ALR 227; [2018] FCAFC 133, [4](c).

31. The First Respondent submitted that the factual error was a self-contained finding that did not invalidate the whole of the decision (RS, [18]).[2] The First Respondent submitted that Other adverse findings as to the Applicant’s credibility, most particularly as to his work history (Ground 2 below), were “findings independent of the interest rate of the loan and demonstrate that the interest rate was not material to the outcome and did not “contaminate” these [other] findings.” (RS, [16]; emphasis added). The Respondent contended that the same result would have ensued in any event because of these other, independent findings.

    [2] References to the Applicant’s and First Respondent’s submissions are respectively marked “AS” and “RS”.

    Legal principles

32. There are several authorities as to when, and if, an erroneous finding as to one issue which is used to make an adverse credibility finding invalidates the whole of the decision.

33. In DTN16 Beach J at [55] found that there was a “material risk” that an erroneous credibility finding as to one issue meant there was “contamination of other factual findings on other matters”. His Honour contrasted a case of cross-contamination with a case in which there was a “disjunction of facts” and other facts not affected by the error supported the decision. It “all depends upon the context and circumstances”: DTN16, [50].

34. In ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 at [97] the Tribunal had in the decision under review “made a series of cascading adverse findings relating to […] credibility” and a Full Court held that “the dependent findings […] [were] infected by the legal flaws in that initial adverse credibility finding” (emphasis added).

35. In SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [44]–[45] Lee J held as to credibility findings various aspects of evidence cannot be put into “hermetically sealed boxes”. An assessment of credibility is “necessarily […] impressionistic […] [and] takes into account all the evidence.” The relevantly impugned finding in SZTFQ “was plainly not an issue the Tribunal had considered to be peripheral to assessing his creditworthiness.”

36. In Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62, [81] Kirby J held: “Disbelief of a litigant or witness on one point might carry over to affect the decision-maker’s disbelief of the same person on other points.”

37. In VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [79] a Full Court held that “an assessment of credibility is not necessarily linear.” If the Tribunal in that case had accepted one piece of evidence as “genuine […] it [was] possible that the Tribunal would have been more likely to accept other aspects of the appellants’ account of their experiences.”

38. Finally, in BAU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1169, Bromberg J held at [22] that where the applicant’s credit was wrongly impugned the possibility of other findings being contaminated was “not able to be excluded” and it was not possible to say that the error in question was “immaterial to the outcome of the review.”

    Application of the principles to this case

39. The First Respondent rightly cautioned me against unduly fastening upon particular words the Tribunal deployed in its reasoning. Nonetheless, the loan was important in the scheme of the Applicant’s case and the Tribunal’s reasoning. The Tribunal had reasoned “that the applicant’s entire claims rested on the pivotal claim that he borrowed 30,000 Ringgit from a Chinese loan shark on the basis that he wanted to expand and acquire access to more land” (CB135, [39]). At another point, the Tribunal wrote that it rejected the Applicant’s “central premise that he borrowed money from a loan shark to fund a lease of another plantation” (CB139, [60]). I do not accept the First Respondent’s submission that the loan and the interest rate are discrete issues one from another and that the Tribunal’s findings as to the loan were independent from its findings as to the interest rate.

40. As to whether the finding was self-contained and other findings independently would have resulted in the same ultimate conclusion, it is accurate to note (as the First Respondent did) that the Tribunal had regard to other factors in its ultimate conclusion that it disbelieved the Applicant. It found that he had revised his work history to enhance his visa prospects (Ground 2 below). It had regard to a lack of documents including as to: “why Ahming would give him MR 30,000 without entering into a formal contract” (CB140, [63]). It had regard to the fact that the Applicant was able to provide “little detail” about the mechanics of leasing properties and “how he would go about spending the 30,000 Ringgit” (CB140, [64]). It had regard to the fact that the Applicant could not provide the Tribunal with any documents about his enterprises including any lease with a landlord (CB140, [65]). Each of these matters — which did not concern the interest rate on the loan — contributed to the Tribunal’s conclusion that it disbelieved the Applicant. Considered independently (as set out in my analysis of Ground 2 below) each of those findings was open to the Tribunal.

1. The Tribunal ultimately concluded that “having regard to the Applicant’s claims individually and cumulatively the Tribunal rejects them in their entirety” (CB140, [68]).

2. Nonetheless, the loan and the interest rate payable were important, not peripheral, issues: SZTFQ. In my view the Tribunal made a series of “cascading adverse findings” (ARG15) and there was a “material risk” that the adverse credibility finding based on the interest rate error cross-infected other findings. Disbelief of the Applicant as to the interest rate might have carried over to affect the decision-maker’s disbelief on other points: Applicant NAFF. Had the Tribunal correctly identified the interest rate it was possible it would have been more likely to accept other aspects of the Applicant’s account: VAAD.

3. I accept the Applicant’s characterisation of the interest rate error as an “essential link” in the Tribunal’s chain of reasoning leading it to reject the Applicant’s claim. The Tribunal expressly wrote that it considered the claims “cumulatively” (CB140, [68]). Each finding as to a significant issue built upon other findings to produce an overall picture and, in that sense, each finding depended on the other.

4. In summary, there was a “material risk” that the erroneous finding as to the interest rate on the loan cross-contaminated other factual findings. If the Tribunal had not made the error there could have been a different outcome as to its assessment as to the Applicant’s credibility: DTN16, BAU18.

5. Looking at the overall decision, the error was a material error because there was a realistic possibility that a different decision could have been made had the Tribunal not made the error it did. Considering the counterfactual, it cannot be said that the error could not have made a difference to the outcome actually reached: MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17, [101]. This was a case in which the Tribunal’s overall adverse credibility findings were the reason for the outcome of the decision adverse to the Applicant. The interest rate error was one link in the chain. As the plurality in Nathanson v Minister for Home Affairs (2022) 178 ALD 536; [2022] HCA 2 at [33] held: “the standard of “reasonable conjecture” is undemanding”.

6. Ground 1 has been made out.

   Ground 2: Was the Tribunal’s finding as to the Applicant’s work history legally unreasonable or affected by other error?

7. As a result of my conclusion that Ground 1 has been made out, I will quash the decision and remit the matter for re-determination. Nonetheless, in case the matter goes further, I have also addressed Grounds 2 and 3.

8. In doing so, my reasoning is that there was a material risk that the error as to Ground 1 cross-contaminated other findings including as to Grounds 2 and 3 and the error was material because if the error had not been made there could have been a different outcome. On the basis of that reasoning, Grounds 2 and 3 are not truly self-contained or independent of Ground 1. My analysis as to Grounds 2 and 3 must be read in that context.

9. The Tribunal concluded that once his application for a protection visa was unsuccessful before the delegate, the Applicant had “revised his work history” to enhance his claims (CB139; [55], [58]). As part of its reasoning process, the Tribunal conducted a comparative exercise between the Applicant’s work history as recorded in his written protection visa application of 25 October 2016 (CB33) and his oral evidence at the Tribunal hearing on 14 December 2017 and found the two versions of the work history to be inconsistent.

10. Besides differences between the written protection visa application and the Applicant’s oral evidence, the Tribunal’s disbelief of the Applicant’s account as to his work history also stemmed in part from the lack of cogency in the Applicant’s account. The Tribunal had difficulty with the Applicant’s account “in terms of his claimed sequence of events, his shifting of evidence and the lack of clarity and detail with which he presented his claims at hearing” (CB138, [54]).

11. The First Respondent referred in detail to the Tribunal Transcript which he submitted supported the Tribunal’s finding that there was a lack of clarity and detail in how the Applicant presented his claims at hearing (CB138, [54]). Reading the Tribunal Transcript, I accept the First Respondent’s submission that the finding at [54] (CB138) of the Tribunal’s reasons that the Applicant’s account lacked cogency was open to it. Making due allowance for the Applicant’s challenges in giving evidence to the Tribunal in circumstances in which he was a person who had completed only year 9 education (CB131, [10]), was self-represented and relying on an interpreter, his account was nonetheless difficult to follow and it was open to the Tribunal to conclude that the Applicant’s claims had a “lack of clarity and detail.”

    The relevant principles drawn from AVQ15

12. As to Ground 2 the Applicant significantly drew on statements of principle drawn from AVQ15, [27], [28] and [41](a)–(f). The Full Court in AVQ15 held that “the term ‘inconsistency’ should be used with appropriate caution and an appreciation of the danger of using labels or formulae which mask the need for deeper analysis”: AVQ15, [27]. It was a matter for the decision-maker as to how relevant matters were “weighed and evaluated” AVQ15, [28]. At [41](b) of AVQ15, the Full Court held:

    […]

    (b)While findings as to credit are generally matters for the administrative decision-maker, they may be amenable to judicial review on several grounds including legal unreasonableness, reaching a finding without a logical, rational or probative basis, failure to perform the required statutory task of review, and failure to take into account material critical to the formation of the requisite state of satisfaction.

13. Nonetheless, the standard of legal unreasonableness remains a stringent one and the Court ought not to slide into merits review.

14. The Applicant submitted that the Tribunal’s approach to the Applicant’s work history was amenable to judicial review on each of the several grounds identified in AVQ15, [41](b) above: namely, that it was legally unreasonable, failed to take into account relevant material and that the Tribunal failed to perform the required statutory task of review.

    Material before the Tribunal as to the Applicant’s work history

15. On 25 October 2016 the Applicant had made his written application for the Protection Visa: (CB17–41). In answer to Q84 the Applicant gave details of the history of all his employment and unemployment. The departmental template provided for an answer in a table format. Following the template, the Applicant described his employment between 2000 and 2012 as “self-employment – plantation – labourer – Malaysia” (CB33). At Q89, at a slightly different point in the written application, in answer to a question “why did you leave that country?” the Applicant ended his answer by writing “[…] the rest of the story I would like to explain in person” (CB36).

16. It was common ground that the delegate did not interview the Applicant and therefore the first time the Applicant gave an oral account of his story was before the Tribunal.

17. In his written protection visa application, the Applicant had relevantly described his “occupation and duties” as labourer. The Tribunal found that if the Applicant’s work history were “truly critical” to his claim he would have accurately stated that “between 2001 and 2012 [he] was in charge of a group of workers and would not have listed [himself] … as simply ‘a labourer’” (CB139, [58]). The Tribunal’s finding was that:

    […] the applicant has revised his work history in order to be consistent with the new claims that he was running a successful palm oil plantation (or part of) in the beginning and that then he wanted to expand his enterprise and lease a rubber plantation by employing five additional people to the seven who were already working on the palm oil plantation he had been leasing.

18. The Tribunal rejected the claim that the Applicant had ever worked on a plantation in Malaysia as a contractor or subcontractor leasing part of a plantation and employing people: (CB139 [60]). The Tribunal found that there was a shift between the account the Applicant had given in his written protection visa application and the account he orally gave in the Tribunal. With reference to the differences between the two accounts, the Tribunal concluded that the Applicant gave a “sometimes incoherent and inconsistent account of his work history” (CB139, [55]; emphasis added).

    The Applicant’s submissions

19. The Applicant submitted that in circumstances in which he had completed a “template answer box” in the protection visa application (CB33) “it could not reasonably be considered adverse to his credibility that he did not include additional descriptive or discursive details about his work” (AS, [19.1]). Further, he had expressly written that he wished to explain the rest of the story in person (CB36). The Applicant contended that the further details he gave at the Tribunal “were subsumed under and entirely consistent with the description of his employment and his claims, theretofore offered in writing” (AS, [19.3]).

    The First Respondent’s submissions

20. The First Respondent’s answer was that it was “reasonably open” for the Tribunal to find that the Applicant’s claims about his work history were “sometimes” inconsistent and that the Applicant “after receiving a refusal from the Department attempted to revise his work history to enhance his claims” (RS, 26).

    Consideration

21. The word “inconsistency” may be used in different ways: evidence may be inconsistent because an applicant gives two directly contradictory accounts of events or because there is an omission of an important factor in a first account which is included in a later account in circumstances in which the importance of that factor means that a decision-maker might reasonably have expected the matter not to have been omitted in the first account. It is a case specific inquiry and a matter of analysis rather than labels or formulae: AVQ15, [27].

22. The Applicant had written that he was a labourer in his written protection visa application. He presented a different picture to the Tribunal that he was a businessperson who employed 5 people and, after 2012, employed 7 people. Two aspects of the different picture he presented in the oral account in the Tribunal were as follows: first, that he was engaged in the business of leasing acreage for a palm oil and then a rubber plantation and, secondly, that he was an employer of others. The reader of the protection visa application could have no inkling of these issues. The Tribunal was entitled to weigh and evaluate for itself (AVQ15, [28]) the significance of the new information omitted from the written protection visa application which the Applicant proffered for the first time before the Tribunal, particularly given its importance to his claim. The Applicant’s claim was that he had borrowed money from a loan shark for the purposes of his business enterprise in Malaysia and that he confronted a significant risk of harm at the hands of that loan shark if he returned to Malaysia. Given the alleged business purpose of the loan was central to the Applicant’s claim, it was unremarkable that the Tribunal should have attributed significance to the omission of the mention of any business activities in the written protection visa application.

23. Finally, the Tribunal considered the Applicant’s account of his work history in a broader context and not solely by reference to omissions from the written protection visa application. The Tribunal’s weighing and evaluation of the evidence also took into account the context that the Applicant’s evidence was highly general and provided little detail (CB138, [54]), that there were gaps in the Applicant’s account both as to explanations the Tribunal might reasonably have expected him to be able to provide (CB140, [64]) and that the Applicant could not provide any relevant documents (CB140, [65]).

24. Returning to the way in which the Applicant submitted there was jurisdictional error, the Tribunal’s approach was not legally unreasonable. It was within the Tribunal’s area of decisional freedom to attribute a significance to the fact that the Applicant had omitted any mention of business activities from his written protection visa application. In my view, the Tribunal was entitled to attribute significant weight to that omission in its assessment of the Applicant’s credibility.

25. The Applicant also framed this ground in terms of a failure to take into account all relevant circumstances and, in particular, referred to a failure to take into account relevant circumstances as to the prescriptive template-form of the protection visa application (at Q84), the fact that the Applicant said that he wished to explain the rest of the story in person (Q89), the Applicant’s statement that someone else filled in the protection visa application on his behalf and that the Applicant did not read English and had completed only year 9 education. 

26. Whether or not a credibility finding is affected by jurisdictional error is a “case specific inquiry”: AVQ15, [41](c). The Tribunal did not overlook or fail to engage intellectually with the statement the Applicant made to the department: Cf. AVQ15. It analysed, evaluated and compared both the evidence the Applicant had given in his written protection visa application and his oral evidence to the Tribunal. It did so in the broader context of its assessment of the cogency of the Applicant’s account. The Tribunal expressly referred to the fact that the Applicant only had year 9 education and therefore did not overlook that issue (CB131, [10]). It also expressly referred to the fact that the Applicant had told it that a person had assisted him to write his protection visa application (CB139, [58]). I do not accept that either of those facts (education or a friend’s assistance to complete the form) or any prescriptive template in the protection visa application form confined or restricted how the Applicant completed his application or shielded the Applicant from an adverse assessment of his credibility if he omitted a significant matter from his written application which he later relied on in his oral evidence. The Tribunal hearing afforded the Applicant an opportunity to tell the rest of his story in person as he had requested in his written protection visa application which the Tribunal then assessed. The Tribunal did not fail to take into account critical material: AVQ15, [41](b).

27. Further, the Tribunal did not fail to perform the required statutory task of review: AVQ15, [41](b). In my view, as to assessing the Applicant’s account(s) of his work history, the decision-maker appreciated the particular nature of the task and performed it reasonably and fairly: AVQ15, [28]. It analysed and evaluated the evidence as it was mandated by the statute to do.

28. Ground 2 has not been made out.

    Ground 3: Did the Tribunal make a jurisdictional error in its finding that there was an inconsistency in the Applicant’s account of filing a police complaint and the claim that he feared physical harm from the loan shark?

29. The Applicant submits “Ground 3 arises from the Tribunal’s identification of inconsistency in the Applicant’s evidence about his police complaint and the physical harm he feared from the loan shark. Here again, on a correct understanding of the evidence and claims before it, it was not open to the Tribunal to impute an inconsistency to the Applicant.” (AS, [21]).

    The Tribunal’s reasons

30. The Tribunal referred to the Applicant’s statement that he may be “paralysed” and his police statement in its reasons as follows (CB136, [44]–[45]):

    44. The Tribunal also noted that his narrative in his application was not entirely as the one he provided at hearing. The Tribunal noted that there were references to him being killed or permanently paralysed if he returned to Malaysia. The Tribunal asked why he would specifically be paralysed and why had he not mentioned this at hearing. The applicant stated that they could chop off his limbs. The chances were that that they could do these things.

    45. The Tribunal also noted that the applicant in his application had stated that he had filed a complaint with the police but that the police ignored his statement. At hearing the applicant instead stated that there was no written record. The applicant stated that his friend had written it in that way.

    [Emphasis added]

    The statement: “I will be killed or permanently paralysed”

31. In his written protection visa application (CB36, Q90) the Applicant had written in answer to a question: what do you think will happen to you if you return to that country?

    My life will be in danger. Either I will be killed or permanently paralysed for the rest of my life….

32. In his oral evidence before the Tribunal (T44:L19-T45:L2) there was the following exchange:

    Member: All right. This says that you claim you will be killed or permanently paralysed if you return to Malaysia.

    Member: Why would you be permanently paralysed?

    Member: You didn't tell me that today.

    Interpreter:     What if they chop off my limbs or anything?

    Applicant: [Tamil language]

    Interpreter:     These chances are there, they could do these things.

    [Emphasis added]

33. As to the Applicant’s fear that he may be killed or permanently paralysed if he returned to Malaysia, the Applicant submitted that he had “endorsed” what he had written in the protection visa application at the Tribunal hearing and that there was “no discernible inconsistency in this aspect of his account” (AS, [27]).

    The police statement

34. In his written protection visa application at Q89, as to the police statement, the Applicant wrote (CB36):

    […]

    I filed a complaint against them but the police ignores my statement. I have no other option rather than move out from there. The rest of the story I would like to explain in person.

    [As written but emphasis added]

35. At the Tribunal hearing, when the Applicant was asked: ‘[W]hen you went and reported the matter to the police, did they write down a report?’, the Applicant said, “Just a verbal chat. That’s all we had” (T37:L21–27).

    Consideration

36. As to the Applicant’s claimed fear of being paralysed, the Tribunal Transcript exchange discloses only that the Applicant did not until prompted repeat his claim about a fear of being paralysed if he returned to Malaysia. There was no relevant inconsistency between the Applicant’s written protection visa application and his oral evidence to the Tribunal.

37. As to the police statement, I agree with the Applicant’s submission that there was no basis to impute an inconsistency to the Applicant as to what he wrote in his protection visa application about filing a police statement and what he said at the Tribunal hearing. He had written in his protection visa application that he “filed a complaint.”  The “filing” of a complaint could comprehend either a written or oral complaint.

38. There was a lapse of logic in the Tribunal’s finding that the Applicant’s “narrative in his application was not entirely as the one he provided at hearing” as to the fear of being paralysed and another lapse of logic in its imputation that the Applicant was being inconsistent as to whether he made a written or oral police complaint (CB136; [44]).

39. Any lapse in logic of the Tribunal was a minor part of the Tribunal’s reasoning process. In its “consideration of claims and evidence” (CB137–140, [50]-[68]), the Tribunal did not again advert to these issues (except for a passing reference to the risk that the Applicant may be paralysed (CB138, [50], point 22). These were peripheral matters which the Tribunal addressed only in passing, and to which it did not return, consistent with their peripheral nature: Cf. the centrality of the impugned findings in SZTFQ. I do not assess any error as to these issues in the Tribunal’s reasoning to be so serious or grave so as to amount to jurisdictional error: Cf. AVQ15, [41](c).

1. The peripheral nature of these issues stands in contrast to the importance of the loan interest rate error (Ground 1). In contrast to Ground 1, I do not assess that any error as to these matters cross-contaminated other findings.

2. Any irrationality or illogicality in the Tribunal’s reasons as to either the risk of being paralysed or the police report which may be gleaned from the passing references to them at [44]–[45] (CB136) — or any inconsistency which was in error imputed to the Applicant — was “immaterial, or not critical to, the ultimate conclusion or end result”: see AVQ15, [41](d); Cf. DTN16. 

3. Having regard to the limited place these issues had in the Tribunal’s reasons, if the Tribunal had not made the error, there was no realistic possibility that there could have been a different result.

4. Ground 3 has not been made out.

   CONCLUSION

5. As Ground 1 has been made out, I will quash the Tribunal’s decision and remit the matter to the Tribunal to be heard in accordance with the law. I will order that the First Respondent pay the Applicant’s costs to be fixed, if not agreed.

I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion.

Associate:

Dated:       29 November 2023