ANN19 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1073
•14 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ANN19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1073
File number: MLG 395 of 2019 Judgment of: JUDGE FORBES Date of judgment: 14 July 2025 Catchwords: MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – where the applicant fears harm on the basis of his involvement with an opposition party – where the Minister concedes Tribunal misconstrued evidence – whether error was material – anatomy of decision-making considered – realistic possibility of different outcome – jurisdictional error established – writs issued Legislation: Freedom of Information Act 1982 (Cth)
Migration Act 1958 (Cth) s 36(2)
Cases cited: Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
BDY18 v Minister for Immigration and Border Protection (2020) 273 FCR 170
BKQ16 v Minister for Immigration and Border Protection [2019] FCA 40
CKC16 v Minister for Immigration and Border Protection [2018] FCA 1260
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562
VAAD v Minister for Immigration & Multicultural Affairs [2005] FCAFC 117
Division: Division 2 General Federal Law Number of paragraphs: 81 Date of hearing: 1 July 2025 Place: Melbourne Counsel for the Applicant: Mr Sharify Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the First Respondent: Mr Sypott Solicitor for the First Respondent: Australian Government Solicitor The Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 395 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ANN19
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
14 JULY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.
2.The name of the Second Respondent be amended to “Administrative Review Tribunal”.
3.A writ of certiorari issue directed to the Administrative Review Tribunal quashing the decision of the Administrative Appeals Tribunal dated 18 January 2019 (Case Number: 1507254).
4.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter according to law.
5.The First Respondent pay the Applicant’s costs fixed in the amount of $8,371.30.
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 FORBES
INTRODUCTION
On 18 January 2019, the second respondent (Tribunal) affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) (Subclass 866) visa (visa). By an application filed on 14 February 2019, the applicant seeks judicial review of the Tribunal’s decision.
The applicant contends that the Tribunal’s decision is affected by jurisdictional error. Specifically, the applicant submits that in reaching its decision to affirm the delegate’s decision, the Tribunal misconstrued a critical piece of evidence. The applicant submits that the error was material in that, had it not been made, there was a realistic possibility that the Tribunal’s decision could have been different.
The Minister has conceded, on the basis of the transcript of the Tribunal hearing[1], that the Tribunal did misunderstand the applicant’s evidence as contended by the applicant. However, the Minister submits that having regard to the manner in which the Tribunal made its decision, the error was immaterial and there was no realistic possibility that the Tribunal could have made a different decision.
[1] Court Book (CB) 83-85
For the reasons set out below, I am persuaded that the Tribunal’s decision was affected by jurisdictional error. Accordingly, the applicant is entitled to the relief he seeks.
BACKGROUND
The background to these proceedings was summarised in the outline of submissions filed by the Minister and is not contested. The following chronology draws substantially from that outline.
The applicant was born in 1980 and is a citizen of Guinea.
On 7 November 2013, the applicant first arrived in Australia as the holder of a Visitor (Class FA) (Subclass 600) visa.
On 28 November 2023, the applicant applied for the protection visa and in an accompanying statutory declaration alleged that:
(a)he is with the “movement for the improvement of the current state of human protection in Guinea”;
(b)he will be abused and mistreated by the Guinean government who want to ensure he does not “express what the government is doing”;
(c)he has previously been beaten, tortured and knocked unconscious by the police who are protecting the government;
(d)the Guinean authorities are killing people from his village; and
(e)he will be killed upon his return.
On 6 March 2015, the applicant participated in an interview with a delegate of the Minister and provided more details, claiming that:
(a)in or around 2009 the applicant and his friends witnessed the aftermath of a stadium massacre carried out by Guinean soldiers;
(b)at the time he was a medical student and attempted to assist injured persons at the site of the massacre, but was apprehended by soldiers who frisked him and found a membership card for ‘Union des Forces pour le Changement’ (UFC);
(c)the soldiers and police then tied him up, beat him and tortured him; and
(d)all the people he assisted with are either dead or missing.
On 13 May 2015, a delegate of the Minister refused the visa application. The delegate was not satisfied that the applicant was a refugee or a person in respect of whom Australia has protection obligations.
Administrative Appeals Tribunal
On 27 May 2015, the applicant applied to the then Refugee Review Tribunal for merits review of the delegate’s decision.
On 25 June 2018, the applicant’s legal representative wrote to the Tribunal providing a completed appointment of representative form signed by the applicant and a request for access to documents under the Freedom of Information Act 1982 (Cth).
On 10 July 2018, the Tribunal released in full the documents relevant to the applicant’s FOI request.
On 23 July 2018, the applicant was invited to attend a hearing before the Tribunal on 10 August 2018.
On 6 August 2018, the applicant’s representative provided written submissions and other supporting documentation to the Tribunal.
On 9 August 2018, the applicant’s representative provided the Tribunal with a statutory declaration of the applicant dated 3 August 2018 to be read with the written submissions provided.
On 10 August 2018, the Tribunal heard the application. The applicant attended the Tribunal hearing with his representative and the assistance of a French interpreter. The Tribunal’s Migration Hearing Record records that the hearing commenced at 9:34am and concluded at 1:45pm but suggests that there was an adjournment of over an hour during that time. At the conclusion of the hearing the Tribunal afforded the applicant an opportunity to provide further information or a response within 14 days.
On 11 August 2018, the applicant’s representative requested an audio recording of the hearing. This request was granted by the Tribunal on 13 August 2018.
On 24 August 2018, the applicant’s representative wrote to the Tribunal attaching further written submissions and evidence for the Tribunal’s consideration.
On 18 January 2019, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa. The applicant was informed of the decision and the Tribunal’s reasons on 21 January 2019.
Tribunal decision
The Tribunal identified the applicant’s claims as follows[2]:
(a)the applicant was a medical student at the university in Conakry at the time of a stadium massacre on 28 September 2009;
(b)while at university the applicant became a member an opposition political party, the UFC, because he believed in their values and the leader’s vision about helping people and maintaining human rights;
(c)the applicant and two of his friends helped victims of the massacre;
(d)when helping victims of the massacre the applicant was searched by soldiers and police who found his UFC party card and then tied him up and beat him unconscious. He bears the scars of having been wounded on the arm and the head;
(e)the applicant’s two friends were subsequently killed or went missing;
(f)the applicant went into hiding from the authorities fearing that he would be located and subjected to further harm. He moved around the country and then fled to Australia; and
(g)the applicant fears being killed for his membership of the UFC, an opposition political party, his witnessing the aftermath of the stadium massacre and his status as a doctor.
[2] Tribunal reasons at [1], [12]-[16]
In dealing with those claims, the Tribunal noted that it had concerns with significant parts of the applicant’s evidence at [21].
At paragraphs [11]-[14] of their Outline of Submissions filed in the judicial review application, the Minister summarised the critical elements of the Tribunal’s decision and its findings in relation to the issue of credibility of the applicant’s claims for protection. I am satisfied that the Minister’s summary, set out below, fairly and accurately reflects the Tribunal’s findings:
[11] The applicant had claimed that two of his friends – ‘A’ and ‘M’ – who had witnessed the aftermath of the massacre with him, had disappeared. In his written claims, he said that M was later found dead in a water pipe: [23]. However, at hearing, the applicant gave evidence that it was A who was murdered, and not M, and that he had been told this by A’s mother, with whom he lived at the time: [24]. The Tribunal found that this inconsistent evidence had not been adequately explained, and that it cut across his earlier written claims. The Tribunal noted that this caused it to have doubts about whether any of the applicant’s claims were A, M or A’s mother were true, and whether other evidence that had been given was true: [25]-[27].
[12] The Tribunal noted that the applicant made undetailed claims with his protection visa application, and that those claims did not align with the new claims that he advanced at, and since, his Departmental interview: [28]-[29]. It did not accept the suggestion made on behalf of the applicant that he did not receive adequate assistance from his registered migration agent, finding that the initial claims were prepared with a level of care and thought and that they were not a summary of the later claims that were advanced at the Departmental interview: [30]-[33]. It found that the discrepancies in the claims were not minor or inconsequential; the new claims – that he witnessed the aftermath of the massacre, that he was a UFC member, and that he was a trained medical professional – were “absolutely central” and were not initially raised with the visa application: [34]. It found that the discrepancies in the claims were strongly indicative of the claims raised at the Departmental interview having been “manufactured”, and that this also cast doubt on all claims made by the applicant: [35].
[13] The applicant claimed that, after being beaten unconscious on 28 September 2009, he did not depart Guinea until 5 November 2013. He said that was in hiding during this time period. The Tribunal observed that the applicant’s evidence on this time period was “confused and contradictory”, citing the following matters:
13.1. The Tribunal noted that the applicant had claimed at hearing that he did not engage in paid work during this period, whereas the applicant’s written claims stated that he was working nights loading and unloading food into trucks to save money to escape Guinea: [36].
13.2. The Tribunal noted that the applicant had claimed to have done some work for the UFC during an election in this period and that the applicant had “avoided the question” when asked how this was possible if he was in hiding: [36].
13.3. The Tribunal asked the applicant at hearing where he had lived while he was in hiding. He initially “answered vaguely” that he did not have a fixed place. However, when pressed by the Tribunal, he listed a number of locations but could not provide detail as to when, and for how long, he was living in each location: [37], [40]-[41]. [T]he Tribunal also asked the applicant how his girlfriend, who became pregnant with his child in 2011, had stayed with him while he moved between a number of locations. He responded by saying that if someone loves you, they follow you in whatever you do: [37].
13.4. The Tribunal was concerned that the applicant had remained in Guinea for four years while authorities searched for him, but had not been located in that time, given its concerns about whether the applicant was hiding. The applicant’s response to this concern was to state that the country was ‘closed’ at various times between 28 September 2009 and 5 November 2013, and that when he attempted to leave in 2012, he was unable to do so and subsequently became scared to leave due to the murder of his friend’s mother: [38]-[39]
13.5. The Tribunal found that the applicant’s evidence about whether or not he was working, the time periods which he spent in various places, and how he managed to move around as claimed whilst his pregnant girlfriend was with him. The Tribunal found that, in light of these concerns, the evidence was insufficient to establish that he was in hiding as claimed and that he was able to hide from the authorities for a period of four years in a context where the authorities had information about him (having seized his UFC and ID cards in 2009). These concerns led the Tribunal to doubt that the applicant was of interest to the authorities at this time or any other time: [41]. (Court Book 392)
[14] The Tribunal found that its concerns were significant, going to the very heart of the applicant’s claims. It found that he was not a witness of truth, and that his claims were not credible. Accordingly, it rejected the entirety of the applicant’s claims about witnessing the aftermath of a massacre and going into hiding for a period of four years: [42]-[43]. (Court Book 392)
The Minister’s outline also included a convenient summary of the conclusions reached by the Tribunal in relation to the applicant’s claims for refugee and complementary protection. Again, I adopt and reproduce that summary which I consider to be fair and balanced:
[19] The Tribunal found that the applicant would not be associated with or imputed with being part of the medical profession, given he never worked as a medical professional and only studied medicine a number of years ago: [55]. It did not accept that he was of interest to the authorities due to his previous status as a medical student: [57]. The Tribunal further noted that he was not of interest to the authorities on the basis of: having witnessed the aftermath of a massacre, providing first aid to wounded victims, or being a member of, and working for, the UFC party in 2013 (having earlier rejected the factual basis of those claims): [57]. (Court Book 396)
[20]Based on country information, the Tribunal found that the applicant could be a member, and contribute to the work, of the UFC and not face a real chance of harm, because the political situation had improved since his departure. In this regard, it noted that the leader of the UFC is a member of Cabinet and that UFC members would therefore have a level of support from the authorities and would not be, or not be imputed to be, in opposition to the Government: [58]. (Court Book 396)
[21]Accordingly, the Tribunal did not accept that there was a real chance of the applicant being harmed for reasons of his actual or imputed political opinion, status as a former medical student, his claimed mental health issues, or any other reasons: [59]-[61]. For essentially the same reasons, the Tribunal found that the applicant was not a person to whom Australia owed protection obligations under s 36(2)(aa) of the Migration Act 1958 (Cth): [62]-[67]. (Court Book 397)
JUDICIAL REVIEW
The application for judicial review, filed on 14 February 2019, advances a single ground of judicial review, expressed in the following terms:
1. The tribunal decision is vitiated by jurisdiction error on the basis that the tribunal misconstrued a critical fact. This led the Tribunal to make a negative finding on the Applicant’s credibility which was undermined by a false premise: that he claimed to work for the UFC.
Particulars
1.1 Paragraph [36] of the tribunal’s decision concludes that the Applicant was working for UFC while he was in hiding. It is stated at paragraph [36] that ‘the applicant also claimed to have done some work for the UFC in an election during this period. When I asked him how he could have done this if he was in hiding, he avoided the question’
1.2The Applicant never expressly claimed to have worked for the UFC. The Applicant informed the tribunal that he is just a party member of the UFC and was provided with documentation to allow him to register to vote.
1.3By drawing an adverse inference on the basis of the applicant’s involvement with the UFC, the tribunal erred in finding that the applicant was not a credible witness.
Hearing
The hearing of the application for judicial review was held on 1 July 2025. Both parties were represented by counsel. Mr Sharify appeared on behalf of the applicant, and the Minister was represented by Mr Sypott.
Prior to the hearing each party filed written Outlines of Submissions. Counsel relied on their written outlines and developed them orally at the hearing.
Applicant
As previously mentioned, in the course of its reasons the Tribunal explored the applicant’s claim that he had been in “hiding” for a period of about 4 years after being beaten unconscious on 28 September 2009 until he departed Guinea in November 2013. That claim was central to his claim for protection. The Tribunal observed that the applicant gave confusing and contradictory evidence about his activities during that period, causing the Tribunal to question the applicant’s credibility and doubt the veracity of his claims.
Specifically, the Tribunal found an inconsistency between the applicant’s claim that he had been in hiding and his claim “to have done some work for the UFC in an election during this period” [36]. The Tribunal says it tested that inconsistency by asking the applicant how he could have worked for the UFC while he was in hiding, in response to which “he avoided the question” [36].
The applicant submits, and the Minister concedes, that the Tribunal misconstrued this evidence. The transcript of the hearing before the Tribunal was in evidence before the court. The relevant exchange between the applicant and the Tribunal[3] does not support the finding that the applicant had claimed to have worked for the UFC in an election. The applicant submits that contrary to the Tribunal’s reasons, the applicant did not expressly claim to have worked for the UFC in an election. Rather, he explained that he received a document from the UFC which allowed him to register to vote.
[3] Reproduced at [6] in the applicant’s Outline of Submissions filed on 3 June 2025
Further, the Tribunal did not ask the applicant how he worked in the election while he was in hiding. Rather, the Tribunal asked the applicant whether he would be at risk of being found by the authorities having registered to vote.
In respect of that claim (of being in hiding from the authorities), the Tribunal observed that the applicant gave confusing and contradictory evidence about his activities during that period, causing the Tribunal to question the applicant’s credibility and to doubt the veracity of his claims more broadly.
The applicant submits that the Tribunal misrepresented the applicant’s evidence in its reasons and thus improperly and unfairly concluded that his evidence about the nature of his relationship with the UFC lacked credit. The flawed finding that the applicant had performed work for the opposition political party in an election was among the Tribunal’s concerns about the applicant’s evidence. Those concerns led to a finding that the applicant was not a witness of truth, and that his claims were not credible. Based on that adverse credit finding the Tribunal rejected the entirety of the applicant’s claims about witnessing the aftermath of a massacre and going into hiding for a period of four years: [42]-[43].
The applicant’s case is that the Tribunal’s error (ie its misconstruction of evidence) was material and therefore jurisdictional. The Tribunal found that its concerns about the applicant’s evidence went to the very heart of the applicant’s claims. The applicant contends that the error was material because it informed and underpinned the Tribunal’s adverse credibility finding. The applicant submits therefore that the Tribunal’s adverse credibility finding lacked a logical or probative basis.
The applicant contends that had the error not occurred, there is a reasonable possibility that Tribunal might have reached a different conclusion on his application.
The Minister
Both parties agreed that the issue for determination in this judicial review application is whether the error was or was not material.
The Minister agreed that a Tribunal may fall into error if it misunderstands evidence of importance to the proper exercise of its review function: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111], [113]-[114]; also Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at [27].
However, for an error to be jurisdictional, it must be material to the decision that was made in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. The Minister submits that the applicant bears the onus of establishing materiality and that it has failed to do so in this case.
The Minister’s case is that having regard to the manner in which the Tribunal made its decision, there was no realistic possibility that, had the Tribunal not made the error, it could have made a different decision. Unsurprisingly, the Minister contends that the identified error was benign, essentially contained to one paragraph within the reasons and incapable by itself of having any material affect on the reasoning process and the ultimate decision. The Minister rejects the applicant’s submission that the error should be regarded as material by the mere fact that it contributed to an adverse credibility finding.
In his submissions, Counsel for the Minister impressed upon the court a requirement that materiality should be assessed in the “real world” and that materiality will not be made out where the error leads to no practical injustice.
The Minister contends that the Tribunal’s rejection of the applicant’s claims were supported on a number of independent bases. In particular, the Tribunal’s finding that the applicant was not in hiding as claimed was based not only on the misconception that he was working for the UFC, but also on evidence that he was performing volunteer work unloading food trucks, spent time in various places, moved around from place to place with his pregnant girlfriend and the implausibility that the authorities were unable to locate him.
Put simply, the Minister submits that the presence of error in the Tribunal’s reasons did not materially contribute to the adverse credibility finding and the rejection of his claim. Rather, the rejection of the claim was inevitable given the weight of other evidence.
The Minister submits that the application should be dismissed with costs.
LEGAL PRINCIPLES ON MATERIALITY
In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610, the plurality of the High Court said the following in relation to jurisdictional error (omitting citations):
[7] In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. That is because it is now accepted that a statute which contains an express or implied condition to be observed in a decision-making process is ordinarily to be interpreted as incorporating such a “threshold of materiality” in the event of non-compliance.
…
[9] Where it is alleged in an application for judicial review that a decision is affected by jurisdictional error constituted by a breach of an express or implied condition of a conferral of decision-making authority by a statute which incorporates a requirement of materiality, there are two questions: has an error occurred; and, if so, was that error material.
[10] The enquiry posited by each question is wholly backward-looking. Both questions are to be answered by reference to the decision that was made and, depending on the nature of the error, how that decision was made. Those are facts in respect of which the applicant for judicial review bears the onus of proof on the balance of probabilities. Proof of these facts ought to be neither difficult nor contentious.
In the present case the error is conceded by the Minister. That is, the first of the two questions posed in LPDT has been answered. These proceedings concern the second question, namely, was the error material.
In LPDT the High Court said at [13] that “… Whether the error is, or is not, material is determined by inferences drawn from the evidence adduced on the application”. The court went on, at [14] to state:
[14] The question in these cases is whether the decision that was in fact made could, not would, “realistically” have been different had there been no error. “Realistic” is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.
[15]… Importantly, a Court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained…
[16] In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).
When considering the question of materiality in the circumstances of the case before it, the High Court said at [32] that in assessing whether the error was material so as to constitute jurisdictional error “The starting point is the nature of the error”. The Court continued:
…The question was whether the decision that was in fact made by the Tribunal could, not would, “realistically” have been different had there been no error. The answer to that question, in this appeal, is to be determined from the face of the Tribunal’s reasons.
In LPDT the High Court found that the Tribunal failed to fulfil its obligation to identify mandatory considerations which were relevant to the particular circumstances of the applicant and failed to engage in an evaluative assessment involving the weighing of those mandatory considerations with other relevant considerations. Those aspects of the error compelled the court to find that the evaluative conclusion reached by the Tribunal could have been different had there been no error. That was so because each particular of the error contributed in some measure to the evaluative and discretionary decision made by the Tribunal. At [36] the plurality concluded:
[36] It would involve improper speculation to attempt to discern how the Tribunal would have reasoned if it had not departed from the required process of reasoning in these respects. It follows that there is a possibility, not fanciful or improbable, that the decision that was made in fact could have been different if the error had not occurred. The threshold of materiality was met. None of the facts before the court provided a basis to consider that the outcome would inevitably have been the same had the error not been made. The error was jurisdictional. The curial relief sought by the appellant should be granted.
In a separate judgment, Beech-Jones J agreed with the plurality’s statements of principle in relation to jurisdictional error and materiality. His Honour wrote separately in relation to the application of those principles to the circumstances of the case.
In his submissions, counsel for the Minister impressed upon the court a requirement that materiality should be assessed in the “real world”. To emphasise this point, counsel relied on MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 where the plurality (Kiefel CJ, Gageler, Keane and Gleeson JJ) said at [32], in the context of a discussion regarding the threshold of materiality:
[32] The principle of statutory interpretation enunciated in Hossain reflects what was there described as a “qualitative judgment about the appropriate limits of an exercise of administrative power to which a legislature can be taken to adhere in defining the bounds of such authority as it chooses to confer on a repository in the absence of affirmative indication of a legislative intention to the contrary”. The principal might equally be described as “a commonsense guide to what a Parliament in a liberal democracy is likely to have intended”. The principle accommodates determination of the limits of decision-making authority conferred by statute to the reality that “[d]ecision-making is a function of the real world” by distinguishing the express and implied statutory conditions of the conferral from the statutory consequences of breach and by recognising that the legislature is not likely to have intended that a breach that occasion no “practical injustice” will deprive a decision of statutory force…
In MZAPC the Court observed that determination of materiality involves:
[37]…a question of counter-factual analysis to be determined by the court as a matter of objective possibility as an aspect of determining whether an identified failure to comply with the statutory condition has resulted in a decision that has in fact been made being a decision that is wanting in statutory authorisation[4]…
[4] CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at 95-96 per Kiefel CJ and Gageler J
The court added that “[m]ateriality is concerned with the significance of the failure to conform to the statutory task entrusted to the decision-maker” and that “[t]he enquiry is backward looking and concerns what the decision-maker did in the particular case”[5].
[5] BDY18 v Minister for Immigration and Border Protection (2020) 273 FCR 170 at 187
In terms of the realistic possibility that a decision without error could have been different, the High Court in MZAPC said at [32]:
[32] The counterfactual question of whether the decision that was in fact made could have been different had there been compliance with the condition that was in fact breached cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made. Like other historical facts to be determined in other civil proceedings, the facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence. And like other counterfactual questions in civil proceedings as to what could have occurred-as distinct from what would have occurred-had there been compliance with the legal obligation that was in fact breached, whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities.
In the present case the Tribunal rejected the applicant’s claim of having been in hiding, based on inconsistencies in his evidence which gave rise to adverse credibility findings. Reading the reasons fairly and as a whole, it can be seen that a number of inconsistencies were identified by the Tribunal which each contributed in some way individually or in aggregate to the Tribunal’s rejection of the applicant’s claim.
The difficulty for the court is that the Tribunal’s reasoning does not provide any clear line of sight into the weight which the Tribunal attributed to any of the individual inconsistencies, nor whether its erroneous finding was critical or essential to its rejection of the applicant’s claim. All that can be said is that the identified inconsistencies were each taken into account and informed, in some way, the Tribunal’s adverse credibility finding and its rejection of the applicant’s claim of having been in hiding. Each counsel agreed that it was not apparent on the face of the Tribunal’s reasons as to whether one consideration carried any greater weight than any other.
The Minister submitted that the conceded error was relatively minor and was contained to the issue of whether the applicant did or did not perform some work for the UFC in an election. It was submitted that the error did not undermine the broader relevant finding that the applicant had performed some work during the time he claimed to be in hiding.
The difficult task for the court in this case is to determine whether, absent the error, the Tribunal would have reached the same conclusion in relation to the applicant’s claim of having been in hiding. The Minister says that the Tribunal would have done so as there were other independent bases which supported the finding, and which preclude any realistic possibility of a different outcome.
In BKQ16 v Minister for Immigration and Border Protection [2019] FCA 40, Mortimer J considered whether an error was material where there were other independent bases for the Tribunal’s credibility findings against an applicant. The Minister in that case contended that the reasoning of the Tribunal provided an independent, rational and logical basis for its adverse credibility finding, such that the factual mistake by the Tribunal was immaterial. At [89], Mortimer J endorsed the observations of Lee J in CKC16 v Minister for Immigration and Border Protection [2018] FCA 1260 where his Honour said at [33]-[35]:
In SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [44]-[45], I made the point that:
It is [often] not realistic to put the various aspects of the appellant’s evidence into hermetically sealed boxes or to approach the reasoning of the Tribunal member on the basis that this is how the evidence was approached. The assessment of credibility is necessarily an impressionistic one, which, if properly formed, takes into account all of the evidence. As the Full Court (Hill, Sundberg and Stone JJ) observed in VAAD v Minister for Immigration & Multicultural Affairs [2005] FCAFC 117 at [79] “an assessment of credibility is not necessarily linear”. Put another way, as Gleeson CJ commented in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 89, “[d]ecisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive.”
Like in the very different circumstances of the error in SZTFQ, the erroneous findings here, that the appellant had recently invented his evidence about his father’s role, or about the making of the relevant political statement, were not peripheral to assessing the creditworthiness of the appellant. No other fair reading of the reasons seems to me to be available. It is understandable that the Tribunal member would have serious concerns about the appellant’s overall credibility, given the misapprehension held as to the Religious Claims Error and the Political Statement Error. As I noted in SZTFQ at [45]:
To be too confident that emphatic disbelief on one issue would not inform, even subconsciously, the approach taken to weighing other evidence of the person disbelieved is, to my mind, to underplay the complexity of the anatomy of decision-making. As Kirby J observed in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at 23 [81]:
…decision-making is a complex mental process. 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. Contrary-wise, establishing that an initial disbelief of a person’s credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person’s entire evidence in a new light.
It follows from the above that I reject the Minister’s submission that the errors in rejecting the claims were not critical to the end result. As I have explained, the independent support for rejecting the religious claims, was itself based upon an illogical process of reasoning containing unwarranted assumptions. The finding as to implausibility of the political claim as “somewhat far-fetched”, provides no truly independent support for the conclusion that the appellant did not make the political statement, but is rather inseparable from the credibility findings impacted upon by the errors. Ground two is made out.
At [92], Mortimer J observed:
…When the Court is assessing the effects, or consequences, of a misunderstanding of the evidence or information by a decision-maker such as the Tribunal, it must, in my opinion, be careful not to conduct that assessment by reference to what the Court knows only with the benefit of hindsight about the remainder of the decision-maker’s approach. The Court must act on the basis that the decision-maker, if properly instructed on the evidence and information, had a mind open to persuasion. The Court does not, and cannot, know the weight the appellant’s perceived recent invention had with the Tribunal in terms of its overall approach to the appellant’s credibility. As Lee J observes, these kinds of findings cannot be nicely compartmentalised from one another: that is not how credibility reasoning works.
CONSIDERATION
In LPDT at [10], the High Court explained that the enquiry into the materiality of error is wholly backward-looking. The question is to be answered by reference to the decision that was made and, depending on the nature of the error, how that decision was made. At [32] the court reinforced this point:
…[t]he question [is] whether the decision that was in fact made by the Tribunal could, not would, “realistically” have been different had there been no error. The answer to that question, in this appeal, is to be determined from the face of the Tribunal’s reasons.
Investigating the anatomy of the decision-making process through the published reasons is the means by which the error can be seen in context and its materiality or otherwise to the ultimate decision assessed. Even though decision-making involves a complex mental process, it is necessary to explore the relationship between the error and the impugned decision in an effort to understand the effect of the former on the latter.
In the current case, the Tribunal introduced paragraph [17] of its reasons under the bolded heading “Credibility”. The Tribunal then sets out its intended approach to the assessment of credibility in the context of a protection visa application:
[17] In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant herself [sic], in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for her or him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.
(MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGE (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
[18]In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
[19] On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
From paragraphs [20] to [41] of its reasons, the Tribunal addresses aspects of the applicant’s evidence and whether it supports his claims for protection, including the claim that he was in hiding after the stadium massacre (see [36]-[41]). In the course of its discussion, the Tribunal interrogates and weighs the evidence, finding discrepancies, inconsistencies, lack of detail and many other “concerns”.
Paragraph [42] is introduced under the heading “Conclusions on credibility” which is critical to what follows. At [42] the Tribunal states:
The above concerns are significant and go to the very heart of his claims that he will be harmed on return to Guinea. They lead me to disbelieve that the things he claims have happened to him have in fact happened. They lead me to the conclusion that the applicant has not been a witness of truth in this process and I find that the applicant’s claims are not credible. (emphasis added)
It is a strongly worded adverse conclusion. The Tribunal’s reference to the “above concerns” can only be a reference to the various matters explored in paragraphs [20] to [41] in respect of which the Tribunal expressed concern, doubt or scepticism. Those concerns cover such issues as the applicant’s claimed mental health condition [20], the evidence given at the Tribunal hearing in relation to his claims [21], the applicant’s language abilities [22], evidence regarding the disappearance or death of his two friends [23]-[27], variations in his claims for protection [28]-[35] and, relevantly, the applicant’s claim of going into hiding after being beaten unconscious on 28 September 2009 [36]-[41].
Properly read, paragraph [42] of the reasons conveys the impression that the Tribunal regarded each of its concerns as being “significant” in the sense of going “to the very heart of [the applicant’s] claims” that he will be harmed on return to Guinea. The Tribunal also states that it is those very concerns which caused it to disbelieve the applicant’s claims and to find that the applicant had not been a witness of truth.
Based on this strong adverse finding about the applicant’s credibility (or lack thereof) the Tribunal at [43] rejects nearly all of the applicant’s claims for protection. The Tribunal rejects the applicant’s evidence about being witness to and giving first-aid to victims of the 28 September 2009 stadium massacre, rejects his claim of having been beaten and traumatised, rejects his claim that his friends were either murdered or abducted and rejects his claim of having gone into hiding in order to evade the authorities.
The wholesale rejection of the applicant’s claims at [43] exposes the relationship between the adverse credibility finding at [42] and the “significant” concerns held by the Tribunal about the matters discussed in the earlier paragraphs. Indeed, to repeat the Tribunal’s own words, those concerns go to the very heart of the applicant’s claims.
In terms of the decision-making process, the other revealing aspect of the adverse credibility finding at [42] is that it relies on the totality of the Tribunal’s concerns about the applicant’s evidence. It does not identify any particular aspect of or inconsistency in the applicant’s evidence as giving rise to any greater or lesser concern than any other. Fairly read, the Tribunal relies upon the aggregation of all those concerns to support its adverse credibility finding and its rejection of the applicant’s claims for protection.
Based on the sheer number of concerns and doubts expressed by the Tribunal about the applicant’s evidence, it might be argued that an error in relation to one minor issue could not be material in the overall sense of things. It might be argued that the weight of the remaining doubts and inconsistencies is sufficient to overwhelm minor error.
However, the issue of materiality cannot be approached as a mere mathematical exercise. The decision-making process takes place in the mind of the Tribunal member. Unless spelt out in detail, it is extremely difficult if nigh on impossible to unpack the Tribunal’s process of intellectual engagement with the evidence. It would be unusual if the Tribunal weighed all of its concerns about the applicant’s evidence equally. It is only natural that some concerns and doubts will leave a greater impression than others. Theoretically it is possible that a series of inconsistencies or concerns aggregate to a certain point in the decision-making process and then one acts as the straw that broke the camel’s back. When a decision-maker relies on a number of concerns as the basis for an adverse credibility finding, it is difficult to find the tipping point.
The conundrum for the court, when a decision-maker expresses itself as the Tribunal did at [42], is determining whether a particular error is material, such that if it had not occurred a different result might have been reached. As Lee J observed in CKC16, these kinds of findings cannot be nicely compartmentalised from one another: that is not how credibility reasoning works.
In BKQ16, Mortimer J acknowledges that the court does not, and cannot, know the weight the misunderstanding of the facts had with the Tribunal in terms of its overall approach to the applicant’s credibility.
In my view, the Tribunal by its language sought to make plain that the concerns it had about the applicant’s evidence (as revealed and explored from paragraphs [20] to [41]) were each significant and materially informed its state of disbelief and the conclusion that the applicant was not a witness of truth.
The error which was conceded by the Minister is in my view significant. The Tribunal’s misconstruction of the evidence caused the Tribunal to form an incorrect view about the applicant’s engagement with the UFC, which the Tribunal had accepted was an “opposition political party” [2]. Moreover, the Tribunal’s finding that the applicant avoided questioning about the UFC was not only incorrect but it would have been an additional weighty factor which compounded the Tribunal’s doubts and led to the adverse credibility finding.
In my view, the erroneous finding about the nature of the applicant’s engagement with the UFC formed an inseparable part of the chain of reasoning which led to the strong adverse credibility finding which in turn led to the Tribunal’s rejection of the applicant’s claim for protection. At the very least it was a link in the chain which informed the rejection of the applicant’s claim that he had been in hiding from the authorities since the stadium massacre. It was not peripheral to assessing the creditworthiness of the applicant[6].
[6] See Lee J in CKC16
It follows from this analysis of the decision-making process that demonstrated error in relation to one of those underlying concerns could go to “the very heart of the applicant’s claims” (to use the language of the Tribunal). Looking backward at the decision made and how it was made in the present case, I am persuaded that there is a realistic possibility, not fanciful or improbable, that the decision that was made could – not would – have been different if the error had not occurred.
Finally, I accept the Minister’s submission that there are other identified concerns in the applicant’s evidence which support the Tribunal’s adverse credibility finding. However, those other concerns, even in aggregate, do not allow me to affirmatively conclude that the outcome would have inevitably been the same.
DISPOSITION
In the circumstances of this Tribunal decision, I have concluded that the error identified by the applicant and conceded by the Minister was material. The decision was therefore affected by jurisdictional error and the applicant is entitled to the relief he seeks.
The application will be allowed, the decision of the Tribunal will be quashed and the matter remitted to the Tribunal to be determined according to law.
I will hear the parties on the question of costs.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 14 July 2025
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