Aze18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1097
•1 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AZE18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1097
File number: MLG 528 of 2018 Judgment of: JUDGE FORBES Date of judgment: 1 December 2023 Catchwords: MIGRATION – protection visa – judicial review of decision of the Administrative Appeals Tribunal – country information regarding prevalence of counterfeit documents - implicit finding that critical document was counterfeit or fraudulent – whether Tribunal should have invited applicant to comment prior to finding that document had little weight – where potential finding not put to applicant – whether Tribunal overlooked or failed to consider relevant material probative of applicant’s claim of detention – whether Tribunal overlooked translated video footage – whether Tribunal in as good a position as witness to identify the applicant – whether Tribunal’s evaluation of evidence irrational or illogical – Tribunal’s assessment of applicant’s credit – error identified Legislation: Migration Act 1958 (Cth) s 36, 65 and 425 Cases cited: ABT17 v Minister for Immigration and Border Protection & anor (2020) 383 ALR 407
AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83
BEL16 v Minister for Home Affairs [2019] FCA 1678
BHY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1146
BWO19v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 181
Minister for Immigration and Border Protection v Ly & Anor [2018] FCAFC 123
Minister for Immigration and Border Protection v SZMTA (2019) [2019] HCA 3
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67
Minister for Immigration and Border Protection v WZARH [2015] HCA 40
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
MZYTS v Minister for Immigration and Citizenship (2013) 230 FCR 431
National Disability Insurance Agency v WRMFI (2020) 276 FCR 415
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Revenue, Commissioner for Australian Capital Territory v Alphaone Pty Ltd [1994] FCA 293
SZLPH v Minister for Border Protection [2018] FCAFC 145
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116
WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
WAJR v The Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2004] 204 ALR 624
Division: Division 2 General Federal Law Number of paragraphs: 117 Date of hearing: 7 November 2022 Place: Melbourne Counsel for the Applicant: Ms Hamzi Solicitor for the Applicant: Holding Redlich Counsel for the First Respondent: Ms Amamoo Solicitor for the First Respondent: Australian Government Solicitor ORDERS
MLG 528 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AZE18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
1 DECEMBER 2023
THE COURT ORDERS THAT:
1.The First Respondent’s name be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.A writ in the nature of certiorari be issued quashing the decision of the Second Respondent (Tribunal) made on 6 February 2018.
3.A writ of mandamus be issued directing the Tribunal to hear and determine the Applicant’s application according to law.
4.The Minister pay the Applicant’s costs as agreed or in default of agreement in accordance with the scale prescribed in the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) as at the date of hearing.
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
In this matter, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 6 February 2018 to affirm the decision made by a delegate of the first respondent (the Minister), to refuse to grant him a protection (Class XA) visa under section 65 of the Migration Act 1958 (Cth) (the Act).
Pursuant to an amended application filed by the applicant on 14 October 2022, the applicant identifies three grounds of judicial review, alleging that the Tribunal fell into jurisdictional error by:
(1)failing to accord the applicant procedural fairness by not alerting him of its concerns regarding the genuineness of a critical document and failing to invite the applicant to comment prior to making its decision;
(2)failing to have regard to the material that the applicant relied upon in corroborating his claims for protection and engaging in irrational or illogical reasoning; and
(3)engaging in irrational and illogical reasoning in finding that the applicant was not a credible witness.
Having considered the filed materials and the written and oral submissions of the parties, I am persuaded that grounds 1 and 2 of the application are made out. The decision of the Tribunal is affected by jurisdictional error and the applicant is entitled to the relief sought in the amended application.
The decision of the Tribunal made on 6 February 2018 should be quashed and the application remitted to a differently constituted Tribunal to be determined according to law. It is appropriate that the Minister pay the applicant’s costs.
BACKGROUND
Unless otherwise stated, the following matters are uncontroversial or not contested.
The applicant was born in Baghdad, Iraq and identifies as a Sunni Muslim. He is an Iraqi citizen and arrived in Australia on 18 November 2012 on a student visa. The applicant is currently 34 years old.
On 7 July 2014, the applicant applied for a protection (Class XA) visa with the assistance of a migration agent. He claimed that he feared that he “would be murdered if [he] returned to Iraq for the reason of [his] religion, [his] membership of particular social group and [his] real and imputed political opinion[1]”. Relevantly, the applicant claimed that in Iraq he had been “held for 2.2 years in detention” in an “unknown address”[2].
[1] As summarised in the Applicant’s Outline of Submission at [4]; Court Book (CB) 41 at [18]
[2] Applicant’s Visa Application CB 41 at [18]
The applicant provided a statement of claims alongside his protection visa application. The further detail of his claims may be summarised as follows[3]:
(1)Prior to the invasion of Iraq in 2003, the applicant and his family were living happily. His mother worked for the Iraqi Government and, after his father was killed in the First Gulf war in 1991, the family received his father’s pension. Following the US invasion of Iraq, and the rise to power of a Shi’a government, the applicant’s mother lost her job as she was perceived to be a Ba’athist, and the family stopped receiving his late father’s pension. His older siblings were unable to enrol at university.
(2)The applicant continued going to school and was supported by his siblings and two uncles. However, his uncles were respectively killed in 2006 and 2009 on account of being Sunni.
(3)The applicant stopped going to school in 2006 due to ongoing threats and house searches. In 2007, his siblings escaped to Syria for their safety, but he stayed with his mother because he was young.
(4)The applicant stated that in 2007, when he was 17, armed men raided his family home, searched the house, beat him and abused his mother, and then detained him. The applicant says he was accused of supporting terrorism and ultimately held in a juvenile detention centre in Baghdad “with a number of other young Sunni people”. His family were not allowed to visit him, and he was subjected to torture and mistreatment. After nearly two years in detention, the applicant was brought before a judge. The accusations against him were dropped, and, after a further two months, the applicant was released.
(5)Following his release from custody, the applicant claims to have moved to Maysan Governorate in Southern Iraq where he found work with a construction company and pretended to be Shi’a to avoid harm. After one year, and having saved some money, he moved back to Baghdad and tried to return to school. He was over 18 at this point and therefore, in order to be permitted to re-enrol at school, he obtained a letter from the Iraqi Court confirming that he had been detained for two years. The applicant was permitted to re-enrol school following which he completed high school and began studying civil engineering at Baghdad University.
(6)The applicant was awarded a scholarship to study in Australia, on the assurance that he would return to Iraq.
(7)The applicant stated that while he was optimistic about returning to Iraq, following the 2014 election and ISIS’ seizure of Mosul, the Shi’a Iraqi Government began seeking revenge against Sunnis. Sectarian violence also increased. At one point, his older brother was kidnapped from the family home by armed men, who said they would be coming back to take the Applicant too. The applicant’s mother informed the men that the applicant was in Australia, to which they replied that they would “know” if the applicant returned.
[3] Applicant’s Outline of Submission at [5]
The applicant has many claims, however, critical to the application for protection is the applicant’s assertion that he was detained in a juvenile detention facility when he was 17 years old on the basis that he was a Sunni Muslim. He claims that he was detained in Baghdad and was accused of supporting terrorism which he claims is a very serious accusation under Iraqi law for which a prisoner may be executed[4].
[4] CB 40 at [9]
The applicant claims that he was held in detention for almost two years before the case against him was dismissed by a judge and he was released by Court order[5]. Following his release, the applicant claims to have worked at a construction company, but then after one year of employment, the applicant then sought to compete his HSC studies. The applicant claims that as a 20 year old he was rejected by a school “due to his age which was over the average”[6]. However, the applicant claims his application for enrolment was successful after he was able to “get a letter from the court that [showed he] was detained for two years which was accepted by the school to re-enrol [him]”[7].
[5] CB 40 at [10]
[6] Applicant’s Visa Application CB 40 at [12]
[7] Applicant’s Visa Application CB 40 at [12]
In support of his protection visa application, inter alia, the applicant relied on documentary evidence which included[8]:
(1)a copy of a Court statement issued by the Iraqi Central Criminal Court for Minors which purports to confirm that the applicant was arrested on 12 July 2007 and released on 13 January 2009 (Court Statement); and
(2)a translated copy of his father’s death certificate.
[8] Applicant’s Outline of Submission at [6]
On 15 September 2015, the applicant attended an interview with a delegate of the Minister. At that interview, the delegate put to the applicant concerns about the plausibility of the account of his imprisonment. In response the applicant provided a link to a YouTube video which the applicant claims shows him in a juvenile detention centre in Iraq (the YouTube Video).
On 26 November 2015, the delegate notified the applicant of its decision to refuse his application as the delegate was not satisfied that the applicant was a person in respect of whom Australia had protection obligations for the purpose of section 36(2) of the Act.
The delegate accepted that the applicant was a Sunni man from Baghdad but otherwise had “credibility concerns over much of the remainder of the applicant’s claims and the circumstances surrounding them”[9]. In particular, the delegate was not persuaded that the applicant’s account of his detention was sufficiently detailed or plausible or that the applicant was “recalling genuine experiences”[10] of detention.
[9] Delegate’s Reasons CB 162
[10] Delegate’s Reasons CB 162
In relation to the detention claim, the delegate was unable to verify the authenticity of the Court Statement and therefore was unable place any weight on it[11]. The delegate raised concern over the validity of the document on the basis that “the document from which the translation has been taken is a photocopy of a computer printout”[12]. Further, the delegate was concerned that the applicant was 19 years old at the time of his claimed release, and was therefore not satisfied that he would have “appeared before a Court specifically for minors”[13]. The delegate was also not satisfied that the applicant would have appeared before a Court for “only being Sunni”[14].
[11] Delegate’s Reasons CB 163
[12] Delegate’s Reasons CB 163
[13] Delegate’s Reasons CB 163
[14] Delegate’s Reasons CB 162
Furthermore, the delegate stated that they were unable to identify the applicant in the YouTube Video. The delegate stated that given the quality of the video and the amount of time that had passed (the applicant was 17 years old when he alleges he was detained and was 26 at the time of the time of the delegate’s decision), they did not place any weight on that video evidence[15].
[15] Delegate’s Reasons CB 163
Tribunal review
On 30 November 2015, the applicant (with the assistance of his migration agent) applied to the Tribunal for a merits review of the delegate’s decision.
The applicant filed submissions in support of his application for review, reiterating his fear of persecution due to being a Sunni Muslim, but elaborating on his earlier claims. As to his real and imputed political opinion he stated that, by reason of being Sunni, he would be perceived as being “pro-ISIS”, a “Baath party support” or “anti-Shi’a government”. As to his membership of a particular social group, he referred to his membership of the well-known Al-Dulaimi tribe and the fact that his family had fought against Iran in the Gulf War[16].
[16] CB 203
Relevantly, the pre-hearing submission filed by the applicant contended that the delegate had not given adequate consideration to the Court Statement or the YouTube Video and asserted that the applicant appeared in the video[17].
[17] CB 203
On 20 December 2017, the applicant attended a hearing before the Tribunal. He gave evidence in English and Arabic, with the assistance of an interpreter. The applicant contends that the Tribunal had doubts about the applicant’s credibility during the hearing – a proposition which appears to be borne out in the Tribunal’s later reasons. The Tribunal’s concerns related to, inter alia:
(1)perceived inconsistencies in the applicant’s account of his detention in 2007;
(2)perceived inconsistencies in the applicant’s response to a question about how he knew that people in Iraq were aware that he had applied for a protection visa;
(3)doubts about the applicant’s father’s death; and
(4)the addition of new claims in the applicant’s submission before the Tribunal founding his fear of persecution which had not been included in his original application.
A few weeks later, on 9 January 2018, the applicant provided the Tribunal with a post-hearing submission, which included the following additional material:
(1)a certified translated version of the YouTube Video (including subtitles) (Translated YouTube Video)[18]; and
(2)a still image taken from the YouTube Video which purportedly identified the applicant in the video[19].
[18] CB 233
[19] CB 231
Further, in the post-hearing submissions the applicant’s representative explained that they had made efforts to provide the Tribunal with a facial recognition report to confirm the applicant’s identity as one of the detainees shown in the YouTube Video, however they had been unable to obtain such a report. Instead, the applicant provided the Tribunal with two statutory declarations from individuals who each deposed to have known the applicant since childhood (the Statutory Declarations), and stated that they had been able to identify a teenage version of the applicant within the YouTube Video screenshot[20].
[20] CB 235-240
Tribunal reasons
On 6 February 2018, the Tribunal delivered its reasons which affirmed the delegate’s decision to refuse the applicant’s visa, determining that the criteria stipulated in s 36(2)(a) or s 36(2)(aa) was not satisfied[21].
[21] Tribunal’s Reasons CB 256-257
The Tribunal found that the applicant’s evidence of his claims lacked credibility[22]. The Tribunal set out, in some detail, its consideration of the applicant’s claims and evidence, concluding that many aspects of the claims were inconsistent, implausible, unsupported and only recently proffered[23].
[22] Tribunal’s Reasons CB 253 at [57]
[23] Tribunal’s Reasons CB 255-256 at [67]-[75]
The reasons reveal a high degree of scepticism on the part of the Tribunal and a distinct lack of satisfaction that the applicant had given a true account of his circumstances and alleged fears of persecution. The Tribunal introduced its detailed consideration of the applicant’s claims with the observation that the applicant was not a “reliable, credible or truthful witness” and that “he had fabricated his claim in order to be granted a protection visa”[24].
[24] Tribunal’s Reasons CB 253 at [57]
Among other things, the Tribunal rejected the applicant’s claim that he had been held in detention by Shi’a militias before being released by a judge[25]. The Tribunal concluded that the claim lacked credibility. At [58] of its reasons, the Tribunal states that it took into account the pieces of evidence provided by the applicant, but afforded them little weight[26].
[25] Tribunal’s Reasons CB 253 at [58]
[26] Tribunal’s Reasons CB 253 at [58]
At [59] of its reasons, the Tribunal expressed its reluctance to give any weight to the YouTube Video or the screenshot image as evidence of the applicant’s detention, finding that the video was “not translated”, which made it difficult to place it into context. Further, the Tribunal held that given the passage of time, it was not satisfied that the person depicted in the still image was the applicant, and that even if he had been able to provide a facial recognition report which confirmed that it was him, any such report would not have been able to verify the context (ie detention) in which the video was taken.
At [60] of its reasons, the Tribunal considered the two Statutory Declarations provided by the applicant post-hearing, but decided to give them little weight, finding that the declarations:
“60.[…] simply say they recognise the face of the person in the video based on their knowledge of the applicant. I have had access to the same data as them and disagree with the claimed match – theirs are simply unscientific assertions. They also do nothing to contextualise the video/photo of the applicant.”
(emphasis added)
Further, at [62] of its reasons, the Tribunal also gave little weight to the Court Statement as evidence probative of the applicant’s detention claim. The Tribunal said the Court Statement should be afforded little weight because:
(1)relevant country information indicated that “counterfeit or fraudulently altered/obtained documents are commonly and cheaply available”[27]; and
(2)the document purported to be from a Court for minors but had been issued when the applicant was 20 years old.
[27] Tribunal’s Reasons CB 254 at [62]
Application for judicial review
On 2 March 2018, the applicant filed an application seeking judicial review of the Tribunal’s decision. The original application identified two grounds of review, but an additional ground of review was added in an amended application which was filed prior to the hearing.
As stated earlier, the three grounds of review identified by the applicant are as follows:
(1)the Tribunal made jurisdictional error by failing to accord the applicant procedural fairness by failing to alert the applicant of its concerns of the genuineness of the Court Statement prior to making its decision;
(2)the Tribunal’s decision is affected by jurisdictional error because the Tribunal engaged in irrational or illogical reasoning by failing to have regard to the Translated YouTube Video and the Statutory Declarations; and
(3)the Tribunal fell into jurisdictional error in finding that the applicant was not a credible witness as that finding was based on irrational or illogical reasoning.
Prior to the hearing each of the parties filed detailed written outlines of submissions. A court book, supplementary court book and a joint list of authorities was also made available. An audio file of the Tribunal’s hearing and a transcript of the proceedings was also filed – the transcript being received into evidence without objection.
On 7 November 2022, the parties came before me for a final hearing of the matter. The applicant was represented by Ms Hamzi of Counsel and the Minister was represented by Ms Amamoo of Counsel. Counsel sought to rely on their written submissions, which they developed orally at trial.
Ground 1 – procedural fairness
Applicant
At [62], the Tribunal made the following finding:
“62.I have taken into account the copy of a court statement that he claims orders his release from custody however lend it little weight. Country information indicates that counterfeit or fraudulently altered/obtained documents are commonly and cheaply available and I note that while the document purports to be from a court for minors he was 20 years old when it was signed.”
The applicant provided the Court Statement in support of his original protection visa application and it formed part of his evidence before the Tribunal. The applicant’s case is that the Court Statement was acquired by his mother in 2009 to provide an explanation as to why the applicant had been absent from school as a teenager and was trying to enrol in school when he was 20[28]. The Court Statement was issued on 26 October 2009 – approximately nine months after the applicant was released from detention[29]. The Court Statement confirmed that the applicant had been detained from 12 July 2007 and was released on 13 January 2009.
[28] Applicant’s Outline of Submission at [29]
[29] Applicant’s Outline of Submission at [29]
The applicant asserts that the Court Statement was critical to his case as it corroborated his claims that he had been detained for almost two years from the age of 17 years on the basis that he was a Sunni Muslim.
The applicant submits that the Tribunal’s finding at [62] amounted to an implicit finding that the Court Statement was counterfeit or had been fraudulently altered or obtained. While the Tribunal does not expressly find that the applicant engaged in forgery or relied upon false documents, the applicant submits that a finding to that effect is necessarily implied from the Tribunal’s conclusion to place “little weight” on the Court Statement.
Whereas the delegate had expressed concerns about the genuineness of the document[30], the Tribunal’s decision to give it little weight relied on country information regarding the prevalence and availability of cheap fraudulent documents in Iraq. It is submitted that the Tribunal’s conclusion about the weight to be afforded to the document was therefore made on the basis of different information, not specifically raised with the applicant.
[30] CB 163
The applicant submits that prior to making its decision, the Tribunal did not express its concern about the genuineness of the Court Statement or express to the applicant that it harboured concerns about the provenance or genuineness of the document[31]. It is not contested that the Tribunal did not put the possibility of fraud to the applicant. The transcript which has been tendered in evidence makes this clear.
[31] Applicant’s Outline of Submission at [32]
The applicant contends that the implicit finding that the document was bogus and that the applicant may have been complicit in its production or alteration was so prejudicial that it was not a finding that should have been made without affording him an opportunity to comment. The applicant contends that this error was material.
The applicant relies on the uncontroversial principle, recently upheld by the Full Court in National Disability Insurance Agency v WRMFI (2020) 276 FCR 415, that “[the Tribunal’s] exercise of statutory power is conditioned by the requirement that it be exercised in compliance with the rule of procedural fairness”[32]. The applicant submits that the rules of procedural fairness entitles the subject of a decision to have their mind directed “to the critical issues or factors on which the decision is likely to turn in order to have the opportunity to deal with them, and the subject is entitled to respond to any adverse conclusion drawn on material supplied by or known to the subject which it not an obvious and natural evolution of that material”[33].
[32] National Disability Insurance Agency v WRMF (2020) 276 FCR 415, 430 [61] citing Minister for Immigration and Border Protection v WZARH [2015] HCA 40 at [55] (Gageler and Gordon JJ)
[33] SZLPH v Minister for Border Protection [2018] FCAFC 145 at [38] citing Revenue, Commissioner for Australian Capital Territory v Alphaone Pty Ltd [1994] FCA 293 at 590–591
The applicant contends that the Tribunal was obliged to invite the applicant to comment as the Court Statement was central to corroborating one of his critical claims for protection, being that he was detained. In support of that submission, the applicant cited the Full Court in WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171, where the Court considered whether the Tribunal was entitled to reject a document, which on its face was genuine, without inviting the tendering party the opportunity to comment on the genuineness of the material or provide further documents in support. At paragraph [42], the Full Court held that:[34]
“[42]An administrative tribunal undertaking an inquisitorial function is not obliged to put to an appellant an assertion of apparent falsity or unreliability in respect of each and every matter raised by the appellant for the appellant’s comment. However, the tribunal will have a duty to raise clearly with the appellant the critical issues on which his or her application might depend.”
(footnotes omitted and underlining added)
[34] WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 (WACO) at [42]
In WAJR v The Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2004] 204 ALR 624 (WAJR) at [56], French J discussed the requirement for procedural fairness and identified two categories of documents:[35]
“[56]It may be that procedural fairness would not require the tribunal to invite comment prior to finding no more than that it was not satisfied about the reliability or genuineness of particular documents [the first category]. But whereas here, there is a clear implication in the tribunal’s reasoning by reference to the appearance of the documents, that they were concocted for the purposes of the application […] procedural fairness would require an opportunity be given to the appellant to comment [the second category].”
[35] WAJR v The Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2004] 204 ALR 624 (WAJR) at [56]; more recently affirmed in Minister for Immigration and Border Protection v Ly & Anor [2018] FCAFC 123 at [42]
Counsel for the applicant submitted that the Court Statement plainly fell into the second of the categories described by Justice French. Ms Hamzi submitted that that the second category of document only requires an implication of fraud, emphasising that there does not need to be an express finding to give rise to procedural fairness[36].
[36] Transcript at page 9
Counsel asserted that the Tribunal’s finding at [62] went beyond mere dissatisfaction as to the reliability of the document (the first category). The applicant submits that the principal reason the Tribunal did not afford much weight to the document was because of the existence of country information indicated that counterfeit and fraudulently altered documents were readily available and common in Iraq[37]. Counsel submitted that the connection between the Court Statement and the country information in [62] amounts to an implicit finding by the Tribunal that the document was counterfeit or otherwise fraudulent[38].
[37] Transcript at page 8
[38] Transcript at page 8
The applicant submitted that the circumstances here are similar to those which were before Justice McEvoy in BHY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1146 (BHY17) In that case, the appellant tendered letters which contained a police stamp to corroborate his claim of persecution. The Tribunal placed “little weight” on those letters in light of independent information which had regard for the high volume of fraudulent letters in Pakistan and the ease with which an official stamp could be procured[39]. On appeal, his Honour held at [25]:
“[25]The Tribunal’s failure to put the appellants on notice of its conclusion that the reports the father maintained he had made to police were fraudulent so as to enable a response to be made to this was a breach of the Tribunal’s statutory obligation pursuant to s 425 of the Act to provide procedural fairness to the appellants. The primary judge erred in concluding otherwise.”
[39] BHY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1146 at [13]
The applicant submitted that a finding of fraud or forgery, express or implied, is highly prejudicial and should not be made lightly[40].
[40] WACO at [53].
The applicant submits that the Tribunal’s failure to invite comment on the authenticity of the document was a material error, asserting that had he been allowed to comment or provide further supporting material, such as a fresh statement from the Iraqi Court, there was a realistic possibility that the outcome of the decision would be different[41]. He submits that it is possible that the Tribunal could have reached a different conclusion about his credibility and his claim more generally[42].
[41] Minister for Immigration and Border Protection v SZMTA (2019) [2019] HCA 3 (SZMTA) at [2]-[3] (Bell, Gageler and Keane JJ), and [90] (Nettle and Gordon JJ). See also MZAPC v MIBP [2021] HCA 17 at [2]-[3] and [39] (Kiefel CJ, Gageler, Keane and Gleeson JJ)
[42] Applicant’s Outline of Submission at [35]
Minister
The Minister submits that the Tribunal acted within the realm of decisional freedom when it accorded the Court Statement “little weight”[43]. The Minister asserts that the Tribunal was entitled to give the document minimal weight, due to:
(1)the relevant country information that the Tribunal relied upon was evidence that counterfeit documents were commonly available; and
(2)the document purported to be from a Court for minors when the applicant was not a minor.
[43] Tribunal’s Reasons at [62] CB 254
The Minister similarly relied on the observations of French J in WAJR, in particular his Honour’s observation that procedural fairness should be afforded where “there is a clear implication in the tribunal’s reasoning by reference to the appearance of the documents that they were concocted for the purposes of the application”[44]. The Minister submits that the Tribunal’s reasoning in paragraph [62] does not clearly imply that the Court Statement was a forged or counterfeit document, as contended for by the applicant. Rather, the Minister submits that the Tribunal (like the delegate) should be taken to have been not satisfied as to the genuineness of the Court Statement such that it was a document of the type which fell within the ambit of the first category identified by French J in WAJR. On this basis, there was no reason for the Tribunal to give notice to the applicant to comment on the document.
[44] WAJR at [56]
The Minister also submitted that the Court should exercise caution before relying on the decision in BHY17, as McEvoy J did not draw on the distinction between the two categories of documents identified by French J in WAJR.
Further, the Minister submits that pursuant to section 425 of the Act, the applicant always knew that the genuineness of the Court Statement was in issue. The Minister says that the decision of the delegate[45] already put the applicant on notice about the nature of the concerns about the document and the applicant had been afforded an opportunity address those concerns in the pre-hearing submission.
[45] CB 163
Conclusion
In my view, fairly read in the context of the reasons as a whole, paragraph [62] of the reasons reveals an implicit finding by the Tribunal that the Court Statement was counterfeit or the product of fraud. It is a highly prejudicial finding about which the applicant should have been put on notice and afforded the opportunity to comment.
The paragraph is introduced by, and the Tribunal’s finding is substantially based on, the country information which notes that counterfeit or fraudulently altered/obtained documents are commonly and cheaply available. The country information suggests that there is a high prevalence of counterfeit documents in Iraq. The words of the Tribunal decision at [62] infer that the Court Statement on which the applicant relied was regarded by the Tribunal as a document of the type that fell within the class of documents about which the country information cautioned. The country information and the Tribunal’s decision not to lend weight to the Court Statement are inseparably linked and the connection between the two is conscious.
I agree with the applicant that the Tribunal’s concern that the document might be fraudulent should have triggered an invitation to the applicant to comment. A finding or even a high suspicion of fraud or forgery, express or implied, is highly prejudicial and should not be made lightly. In the circumstances of this case, where the applicant’s period of detention was central to his claims for protection, any concern about the genuineness of documentary evidence which served to corroborate his claim should have been brought to the applicant’s attention for comment.
I do not accept that the applicant was adequately on notice regarding the possibility of the finding that was made. Nor do I accept that the Tribunal was merely “not satisfied about the reliability or genuineness” of the Court Statement, such that it should be regarded as falling into the first categories of Justice French’s descriptors in WAJR.
The Tribunal introduced the country information in its reasoning as a basis for not giving the document weight. Even if it was not the sole basis, it was certainly a substantive and operative factor in the reasoning process. Mention of the country information was not a mere passing observation. This was a different basis and level of concern to that expressed by the delegate and it does in my view infer a conclusion that the document might be bogus.
Where country information ignites the Tribunal’s concern that a critical document might be counterfeit or the product of fraud, as opposed to merely lacking in reliability or genuineness, it is incumbent on the Tribunal as a matter of fairness to give the applicant an opportunity to comment upon or respond to the potentially more prejudicial finding. That is the essential distinction between the first and second categories drawn by French J in WAJR. If that were not so, any document, no matter how genuine or important to an applicant’s case, might be given little weight by a Tribunal on the basis of suspicion fuelled by generalised country information.
Moreover, the Tribunal’s decision to give the document little weight was likely one of the elements which fed into the Tribunal’s observation that the applicant was not a “reliable, credible or truthful witness” and that “he had fabricated his claim in order to be granted a protection visa”[46]. Alternatively, the Tribunal’s overall impression of the applicant’s credit may have fed into its assessment of the Court Statement. Either way, there was an implicit finding by the tribunal that the Court statement was not the genuine article and likely the product of fraud.
[46] Tribunal Reasons [80]-[81], CB 256-257.
The Tribunal should have extended an invitation to comment. By its failure to do so the Tribunal fell into error. The error was material because it goes to a central element of the applicant’s claim.
It is not necessary for the Court to speculate about how the applicant might have responded to such an invitation, or how any such response might then have shaped the Tribunal’s decision-making. It is sufficient that there be a realistic possibility that the response might have produced evidence which might have led to a different outcome. It is reasonable to assume that the applicant might have tried to explain the document or might have provided further information regarding its provenance. As a matter of reasonable conjecture, the assessment of the applicant’s claims may have been different if the Tribunal member had given the applicant an opportunity to address its concern that the document might be fraudulent or counterfeit.
I am satisfied that ground 1 is made out and that the applicant is entitled to the relief sought in his amended application.
While it is not strictly necessary to deal with the other grounds, in case I am wrong, I will deal with the subsequent grounds as necessary.
Ground 2 – jurisdictional error
Applicant
It is the applicant’s case that the Translated YouTube Video depicts the former Vice-President of Iraq visiting a group of underage boys held in detention. The applicant claims that he is one of the detainees in the video.
The applicant submits that Tribunal failed to have regard to the Translated YouTube Video, the Statutory Declarations and the Court Statement when making its decision, and therefore engaged in irrational or illogical reasoning. The applicant asserts that each of these documents, individually and collectively, corroborated the applicant’s claim that he was detained as a teenager on account of being Sunni. Ultimately, the applicant submits that the Tribunal’s error was material.
The applicant’s written submission asserted that when reviewing the merit of a decision, it is incumbent on a decision-maker to have regard for the merits of the decision “in light of the information, evidence and arguments which are relevant to the application and which are provided to it”[47]. Failure by a decision maker to take into account “cogent evidence providing substantial support to the applicant’s case” may amount in jurisdictional error[48]. A decision maker’s level of engagement “must occur within the bounds of rationality and reasonableness”[49].
[47] SZMTA at [13], citing WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [44]
[48] SZMTA at [13] (Bell, Gageler and Keane JJ)
[49] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (Plaintiff M1/2021) at [25]
Whether a Tribunal’s decision has been affected by jurisdictional error “depends upon the circumstances of the case and the nature of the material, including the cogency of the material and its place in the assessment of the applicant’s claims”[50].
[50] Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 at [28] referring to Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111]-[112]; MZYTS v Minister for Immigration and Citizenship (2013) 230 FCR 431 at [68]-[70]; Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 at [52]-[56]. In Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 Robertson J explained at [111]: “The fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error.”
The applicant asserts that the Translated YouTube Video and still image screenshot (taken from the video footage), which were provided to the Tribunal member as part of a post-hearing a submission, were critical to corroborating his claims that he had been detained as a 17 year old. It is submitted that the translated video footage also bolstered his credibility in circumstances where the delegate had expressed some concern about its ability to accurately identify the applicant in the untranslated YouTube Video.
At paragraph [59] of the Tribunal’s decision, the member made the following finding in relation the YouTube Video and screenshot:
“59.The video and screen shot allegedly showing the applicant in some form of dormitory or detention is not translated so it is hard to place it into context. More importantly, given the passage of time I am not satisfied that the person in the photo is the applicant. I note the reasons why the applicant has been unable to provide a facial recognition report (folio 60) but even if it did state that they were the same person it would not verify the situation in which the video was taken (ie from the prison that the application claimed it was).”
(underlining added for emphasis)
The applicant submits that paragraph [59] gives rise to a clear inference that the Tribunal had no regard to the Translated YouTube Video. Had it done so, the Tribunal would have noted that the video had been translated with subtitles and that those subtitles provided context that the untranslated video did not, namely that the former Vice President of Iraq was visiting juvenile detainees in a facility.
Furthermore, post-hearing, the applicant provided the Statutory Declarations from two individuals who claimed to have known him from childhood. Those witnesses deposed that they could identify a younger version of the applicant within the YouTube Video and still image. Yet, at paragraph [60] of its reasons, the Tribunal gave little weight to those statutory declarations for the following reasons:
“60.They simply say they recognise the face of the person in the video based on their knowledge of the applicant. I have had access to the same data as them and disagree with the claimed match – theirs are simply unscientific assertions. They also do nothing to contextualise the video/photo of the applicant.”
(underlining added for emphasis)
The applicant submits that the Tribunal failed to properly consider and reasonably evaluate the contents of the Statutory Declarations, and improperly disregarded the significance of each declarant stating to have known the applicant since childhood. The applicant asserts that the Tribunal should not have dismissed these documents on the basis that the decision maker and the declarants had “access to the same data”, as this was irrationally dismissive of the more informed perspective of the declarants. The applicant submitted that the very purpose of the declarants giving evidence was to offer their interpretation of an image based on their unique ability to identify someone they had known since childhood, a perspective the Tribunal could not bring to the evaluation itself.
The applicant also submits, as it did in ground 1, that the Tribunal failed to have regard to the Court Statement. The applicant asserts that paragraph [62] was the only reference to the Court Statement throughout its reasons, suggesting that the Tribunal failed to give it any further consideration after finding that it might be counterfeit or fraudulent.
In essence, the applicant submits that the Tribunal’s reasons give rise to a strong inference that the Tribunal failed to properly engage with the body of evidence that the applicant provided to corroborate one of his central claims.
The applicant submits that the overlooking and dismissal of this evidence did not occur “within the bound rationality and reasonableness”[51], and accordingly that it was infected by jurisdictional error.
[51] Plaintiff M1/2021 at [25].
The applicant asserts that these errors were material, as there is a realistic possibility that the Tribunal may have reached a different conclusion concerning the applicant’s central claim as well as his overall credibility had it reasonably engaged with, considered and evaluated the Translated YouTube Video, Statutory Declarations and Court Statement.
Minister
The Minister submitted that there is no substance to the applicant’s complaint about the Tribunal’s consideration of the Court Statement, the Statutory Declarations and the Translated YouTube Video. In essence, the Minister contends that the applicant merely disagrees with the merits of the Tribunal’s conclusions with regard to this evidence.
In relation to the Tribunal’s evaluation of the Court Statement, the Minister states that the applicant’s contention is a reiteration of the first ground of review. The Minister raised the same arguments to support its submission that the Tribunal’s finding in relation to the Court Statement was open to it and unimpeachable.
As to its consideration of the Translated YouTube Video, the Minister conceded that the Tribunal probably erred at [59] by finding that the video was not translated. However, the Minister submitted that the Tribunal did not fall into jurisdictional error because it remained open even on the translated YouTube Video for the Tribunal to find that the applicant was not the person visually depicted. The Minister also submitted that the subtitles on the Translated YouTube Video did not elucidate any critical contextual information such as the location or the time or year at which it was taken. Furthermore, the Minister submits that the subtitles within the Translated YouTube Video do not identify the older man as the former Vice President of Iraq and, even if it was accepted that it was him, that does not assist the applicant.
Accordingly, the Minister submits that even if the Tribunal did overlook or did not have regard to the Translated YouTube Video, the error was not material in the relevant sense and the applicant was not deprived of a realistic possibility of a different outcome.
Regarding the Statutory Declarations, the Minister submits that the Tribunal afforded little weight to these documents for two reasons:
(1)the declarants stated that they recognised the face of the applicant, however, the Tribunal disagreed with that conclusion; and
(2)the declarants’ statements did not contextualise the video or still image, and therefore provided no information in relation to where the video was taken or corroborate the applicant’s claim that he was held in detention.
The Minister contends that the Tribunal gave an active intellectual consideration to the Statutory Declarations which was neither illogical or unreasonable.
Conclusion
In Plaintiff M1/2921 v Minister for Home Affairs [2022] HCA 17 (Plaintiff M1/2021), the plurality (Kiefel CJ, Keane, Gordon and Steward JJ) said at [23]-[27]:
“[23]It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.
[24]Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision‑maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
[25]It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
[26]Labels like “active intellectual process” and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision‑maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.
[27]None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision‑maker's reasons discloses that the decision‑maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
(footnotes and citations omitted)
The absence of a translation for the video was identified as an issue at the hearing before the Tribunal. It is self-evident that the applicant sought to address that deficiency. Such was the importance of the video to the applicant’s case, steps were taken by his representatives to obtain an English translation and a subtitled video was provided to the Tribunal in a post-hearing submission, together with the statutory declarations.
Having observed the Translated YouTube Video which forms part of the material contained in the court book, it is clear that the translation does provide an important extra dimension to the video which, if it had been considered by the Tribunal, might have altered the weight accorded to it in the decision-making process. Crucially, it was the absence of a translation which caused the Tribunal to observe that it was not able to put the video in context. But once a translation was provided, it is possible that some of that contextual deficit might have been addressed and potentially to the benefit of the applicant.
In my view, if the Tribunal had watched the Translated YouTube Video, not only might it have impacted the weight given to that evidence by the Tribunal, it might also have impacted the Tribunal’s consideration of whether the applicant was in the video, by reason of the possibility that the translation might be seen to be corroborative of the broader narrative around the applicant’s claims.
The very purpose of the translation and subtitles was to give context to evidence which the Tribunal considered lacked context. The reasons suggest that the Tribunal did not even consider the additional evidence. But if it did the reasons reveal no engagement with it. The failure to consider the video is an error of the type referred to in Plaintiff M1.
I also agree with the applicant’s submission that the Tribunal member was unduly and unreasonably dismissive of the Statutory Declarations of the applicant’s teenage acquaintances. It appears that the Tribunal placed no weight on that evidence because it believed itself to be in as good a position as the declarants to determine the identity of the person in the photo. That is, the Tribunal believed it was just as able to interpret “the same data” that the witnesses had viewed.
The dismissive rejection of the Statutory Declarations as simply unscientific assertion was illogical. In my view the Tribunal was not in the same position to evaluate the YouTube Video screenshot as those who had known the applicant since childhood. The Tribunal failed to recognise that persons with a knowledge of the applicant since childhood must have had an advantage in their interpretation of that data. Tellingly, the Minister’s own submissions accept “it is self-evident that a person’s features change with the passage of time”[52]. The delegate had also acknowledged the difficulty in reconciling images of a 17 year old with those of a 26 year old.
[52] Ministers Outline of Submissions at [33.1]
In relation to the Tribunal’s assessment of the Court Statement, I have already found that the Tribunal fell into jurisdictional error. It is not necessary to repeat my reasons.
The Tribunal did not properly engage with the material available to it relevant to the applicant’s claim to have been detained for nearly two years in a juvenile facility. Each of the Court Statement, the Translated YouTube Video and the two Statutory Declarations were probative of that claim.
As I mentioned earlier, the reasons reveal a high degree of scepticism on the part of the Tribunal and a distinct lack of satisfaction that the applicant had given a true account of his circumstances and alleged fears of persecution. The Tribunal treated each of the applicant’s claims and the evidence advanced in support as lacking in credibility. The Tribunal is entitled to reach such a conclusion, but its path of reasoning must be reasonable, logical and explicable.
In my view, in considering the applicant’s detention claim, the Tribunal failed to properly engage with each item of evidence or the evidence as a whole. Its failure to do so was material and denied the applicant the possibility of a different outcome. For that reason, jurisdictional error found in relation to ground 2.
As above, while it is not necessary to deal with the final ground, I will do so in the event I am found to be wrong in my earlier findings.
Ground 3 – credibility
Applicant
At paragraph [57] of its reasons the Tribunal concluded that the applicant’s evidence regarding his claims to lacked credibility, finding that the applicant was not a “reliable, credible or truthful witness”[53].
[53] CB 253
In evaluating his various claims, the Tribunal also found that the applicant gave inconsistent or unpersuasive evidence in relation to the following:
(1)his claims to have been held in detention by Shi’a militias for two years;
(2)his responses in relation to how people in Iraq knew he had applied for a protection visa;
(3)his response in relation to a phone call with the Australian Embassy in Amman about whether he lived with his parents; and
(4)other matters which had not previously been raised the applicant, such as that he was a member if the Al-Dulaimi tribe or that his family fought against Iran.
By ground 3, the applicant submits that the Tribunal, in finding that he was not a truthful or credible witness, engaged in irrational or illogical reasoning, made findings without any probative basis and/or failed to carry out its statutory task in making those findings.
Among other things, the applicant submits that the Tribunal was illogical or irrational in making an adverse credibility determination because it was based on alleged inconsistencies which, on a proper analysis, were not inconsistencies at all. The applicant submits that an unwarranted degree of scepticism about the applicant’s evidence lead the Tribunal to error, submitting that the Tribunal’s starting point was to disbelieve the applicant and that it too rapidly deployed the term “inconsistency”, because it was looking to undermine his credibility.
As for the relevant principles regarding the Court’s evaluation of the Tribunal’s reasoning, the applicant relied on Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, where their Honours Crennan and Bell JJ held at [135] that:
“[135][a] decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn”.
The applicant concedes that a Tribunal may rely upon inconsistencies or discrepancies in the evidence (where they arise) in making an adverse credibility finding, however, in doing so, the Tribunal must reason carefully, fairly and reasonably as to avoid a “quest to disbelieve”[54] in order to avoid legal unreasonableness or irrationality its approach to credibility.
[54] BEL16 v Minister for Home Affairs [2019] FCA 1678 (BEL16) at [16] (Beach J)
In BEL16 v Minister for Home Affairs [2019] FCA 1678, discussing the circumstances in which a Tribunal may rely upon inconsistencies, Beach J said at [16]:
“[16][…] a Tribunal may rely upon inconsistencies properly so-called, but the Tribunal must reason carefully and fairly to avoid any undue propensity to scepticism. Indeed, an error may be identified in how the Tribunal went about its task if the Tribunal had approached the task in one or more of the following ways:
[…]
(c)Viewing inconsistencies, vagueness or omissions in the applicant's version of events without regard to imperfections in memory that naturally occur over time or due to stress or language difficulties particularly when an interpreter has been used or due to reticence to be forthcoming with people or bodies perceived to be in authority. In this respect, inconsistencies, vagueness or omissions do not necessarily indicate a deliberate lack of truthfulness, although they may affect the assessment of reliability. Indeed, and conversely, too much detail and consistency may be “merely corroborative detail, intended to give artistic verisimilitude to an otherwise bald and unconvincing narrative” in the words of WS Gilbert’s Pooh-Bah.”
(underlining added)
Similarly in AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83 (AVQ15) the Full Court held that the term “inconsistency” must be applied by the Tribunal with caution and they should be wary of “using labels or formulae which mask the need for deeper analysis”[55], as failing to do so may invite error[56].
[55] AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83 at [26]
[56] BEL16 at [18].
The applicant submits that the alleged inconsistencies in his evidence were peripheral to his central claims for protection. The dismissal of his claim of detention, for example, was dismissed on credibility grounds, but relying on inconsistencies in his evidence generally. As argued in relation to grounds 1 and 2, the applicant submits that lack of credibility was an illogical and unreasonable basis to reject that claim.
Minister
The Minister submitted that the Tribunal’s adverse credibility finding was not irrational or illogical, and that by ground 3 the applicant is complaining about the merits of the decision rather than its legality.
The Minister does not take issue with the principles which frame the applicant’s submission, however, it emphasised that when assessing credibility, a Tribunal’s starting point must be decisional freedom in respect of its assessment of credit. In that context the Minister relied on the Full Court’s decision in AVQ15, where at [23] it was held that:
“[23]A decision-maker is entitled to rely upon inconsistencies in assessing a visa applicant’s credibility but it is important that the process be conducted fairly and reasonably, taking into account that the assessment of the reliability, and credibility, of accounts given by asylum seekers is well recognised as involving a number of particular features and considerations, and calls for a careful and thoughtful approach.”
At paragraph [50] of its reasons, the Tribunal stated the following in relation to inconsistencies in the applicant’s evidence:
“50.Individually, these were small inconsistencies, but together, they were more significant and could raise questions as to whether this occurred”
The Minister submits that paragraph [56] of its reasons reveals that the Tribunal well understood how credibility should be considered. At paragraph [56], the Tribunal states that the following:
“56.In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is noy telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by the applicant”
The Minister’s written submissions go to each of the purported inconsistencies found in the applicant’s evidence as well as his new claims. The Minister submits that the Tribunal was entitled make an adverse inference as to the applicant’s credit on each. For example, the Tribunal was entitled to have regard to late-made claims as part of its assessment of credit overall[57].
[57] BWO19v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 181 at [121]
The Minister asserts that weighing up pieces of evidence is ultimately a matter for the Tribunal. The Minister submits that the Court must therefore exercise a high degree of caution when considering whether an adverse credibility finding of the Tribunal was a jurisdictional error, to ensure that the Court does not embark on a merits review of the Tribunal’s decision[58].
[58] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Plaintiff M1 at [24] (Kiefel CJ, Keane, Gordon and Steward JJ)
Conclusion
I agree that it was open to the Tribunal to have regard to a series of individual inconsistencies in the applicant’s evidence, and when viewed broadly, to consider them in the aggregate in giving rise to a lack of credibility. I accept that it is open to the Tribunal to have regard to the newly raised claims in its assessment of the applicant’s credit overall.
I have mentioned more than once in this judgment my observation regarding the degree of scepticism portrayed by the Tribunal’s reasons. I can well understand the applicant’s concern that the errors identified in grounds 1 and 2 are examples of and perhaps compounded an overall quest to disbelieve his claims for protection.
However, while I have formed the view that there was error in the Tribunal’s consideration and reasoning in relation to the applicant’s detention claim, the issue of credit was determined more broadly on all the material and evidence before the Tribunal, not just those matters where I have found error.
I accept the Minister’s submission that the decision-maker enjoys a particular advantage in assessing the credibility of an applicant, which should not lightly be disturbed by the Court[59]. I agree that it was open to the Tribunal to have regard to a series of individual inconsistencies and to consider them in the aggregate as giving rise to issues regarding credit and reliability. There is nothing inherently unreasonable, irrational or illogical about that approach.
[59] ABT17 v Minister for Immigration and Border Protection & anor (2020) 383 ALR 407 at [22]-[25]
The credibility finding was not irrational or illogical. Ground 3 is not made out.
DISPOSITION
For the reasons articulated above, I am satisfied that the applicant has demonstrated error in relation to grounds 1 and 2 of review. I am satisfied that each of the relevant errors was material and therefore jurisdictional.
By virtue of the errors established, the decision of the Tribunal ought be quashed and a writ of mandamus be issued directing the Tribunal to determine the applicant’s application according to law.
I will grant the relief sought by the applicant. The Minister should pay the applicant’s costs in accordance with the scale as at the date of hearing.
I certify that the preceding one hundred and seventeen (117) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 1 December 2023
1
23
1