DJW17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 479
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DJW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 479
File number(s): SYG 2385 of 2017 Judgment of: JUDGE LAING Date of judgment: 9 June 2023 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision not to grant the applicant a protection visa – whether the Tribunal’s credibility findings were illogical or irrational – significance of an adverse credibility finding based upon factual error – application succeeds Cases cited: BZD17 v Minister for Immigration & Border Protection [2018] FCAFC 94; (2018) 263 FCR 292
CRU18 v Minister for Home Affairs [2020] FCAFC 129; (2020) 277 FCR 493
CSU16 v Minister for Immigration and Border Protection [2022] FCA 1509
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21
EVI19 v Minister for Immigration [2022] FCA 518
Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
SZRHL v Minister for Immigration and Citizenship [2013] FCA 1093; (2013) 136 ALD 641
SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of last submission: 18 May 2023 Date of hearing: 18 April 2023 Place: Sydney Counsel for the Applicant: Mr O Jones Solicitor for the Applicant: Barriston Lawyers Counsel for the First Respondent: Mr T Reilly Solicitor for the Respondents: Australian Government Solicitor ORDERS
SYG 2385 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DJW17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
9 JUNE 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue, quashing the decision of the second respondent dated 6 July 2017 in case number 1507065.
2.A writ of mandamus issue directing the second respondent to determine the application for review according to law.
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 LAING:
INTRODUCTION
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the applicant a protection visa.
BACKGROUND
The applicant is a citizen of Iran. He arrived in Australia by boat in 2013 without a visa.
The applicant applied for a protection visa on 1 July 2013. Whilst his application was for a Protection (Class XA) (Subclass 866) visa, it was converted into an application for a Temporary Protection (Class XD) (Subclass 785) visa following legislative amendments.
The applicant’s protection visa application was refused by the Delegate on 11 May 2015. On 25 May 2015, the applicant applied for review by the Tribunal.
The applicant attended a hearing before the Tribunal on 30 May 2017.
On 6 July 2017, the Tribunal affirmed the Delegate’s decision.
THE TRIBUNAL’S DECISION
The Tribunal identified a number of credibility concerns regarding the applicant’s claims. The Tribunal summarised its credibility concerns at [18] of its decision as follows:
18) The Tribunal has not taken an overly stringent approach to the question of credibility and understands that memories fade over time and that anxiety and concerns about the future can dull a fulsome recollection especially if people have faced difficulties. The Tribunal also understands that in the course of an entry interview an applicant may due to confusion and stress exaggerate, embellish or even make claims which they later state are untrue. Nevertheless, the Tribunal has concerns regarding the applicant's credibility. These concerns relate to a number of facets of his claims and evidence as outlined below:
a. The applicant provided superficial written and oral evidence regarding the development and exploration of his sexuality in Iran when he was a teenager. Despite several attempts at prompting by the Tribunal for him to elaborate he did not deviate from his written submission except to a very minor extent. Essentially, his oral evidence was unconvincing.
b.The Tribunal also had regard to the fact that the applicant provided slightly different reasons for his departure from Iran at his Entry Interview and at his interview with the Department and different reasons again at the review stage. The Tribunal notes that the applicant left Iran to travel to Indonesia and then undertook considerable measures to secure passage on an unauthorised boat to travel to the Australia. He claimed that his [family sold] property to fund the cost of this travel. The Tribunal does not believe that a person who had taken such lengths to come to Australia and who was prepared to jeopardise the family's financial position would not, at the very first available opportunity to do so outline all of their claims for protection. The applicant was given access to a migration lawyer for the purposes of collating his claims for protection and was assisted by an interpreter. The applicant would, as a matter of course, been assured of the confidentiality of this process by his legal representative and encouraged to be forthcoming about all of the reasons in which he was seeking protection in Australia. The Tribunal finds that the applicant's delay in making claims regarding his sexuality contributed to the Tribunal's overall concerns about the applicant's credibility. In coming to this conclusion, the Tribunal is sensitive to the fact that an applicant coming from a Muslim country making claims regarding their sexuality would be highly reticent to do so. However, despite the applicant's explanations, the lateness of his claims regarding his homosexuality raised concerns regarding the veracity of those claims and the truthfulness of the applicant as a witness.
c.The applicant's credibility was further undermined by his claim that he had never discussed his sexuality with anyone until he told a few lawyers in Australia and it was his lawyers who told him to stick with his earlier claim. The Tribunal does not consider this claim to be plausible. It could reasonably be expected that lawyers assisting boat arrivals would advise them to pursue their strongest and most solid claims.
d.The applicant gave contradictory and confusing responses in his evidence which further undermined his credibility.
e.Further, the applicant and his witness provided inconsistent evidence in relation to some issues explored with them.
Many of those credibility findings are the subject of complaint. The Tribunal’s reasoning in this regard is therefore further expanded upon below. The Tribunal considered that when “[t]aken together, these concerns were of such a magnitude that the Tribunal was not satisfied that the applicant's claims [were] genuine, that he fear[ed] harm if he were to return to Iran because of his homosexuality, because he is a failed asylum seeker or for any other reason” (at [19]).
After expanding upon this reasoning and its views regarding the evidence before it at [20]-[71], the Tribunal’s findings were then summarised at [72]-[73]:
Findings
72) Considering the above issues the Tribunal has had regard to the applicant's oral and written evidence to the Department and the Tribunal and the representative's submissions. Having considered all of that evidence, the Tribunal does not accept the applicant is a truthful witness. The Tribunal considers the applicant has manufactured his claims regarding his homosexuality and his claims to fear harm in Iran as a result following the Department's refusal to grant him a temporary protection visa.
73) The Tribunal:
a.accepts that the applicant was not harassed or harmed as a result of his attendance at a political protest in 2009.
b.accepts the applicant will not be harmed because of his imputed political opinion if he were to return to Iran
c.accepts the applicant is not claiming harm because he did not obtain two jobs he applied for in Iran.
d.accepts that the applicant will not face harm in relation to his future employment prospects he were to return to Iran.
e.does not accept that the applicant is homosexual.
f.does not accept the applicant will be harmed as a failed asylum seeker.
Having regard to the above, the Tribunal found that the applicant did not meet the criteria for the grant of the protection visa. Accordingly, it affirmed the Delegate’s decision (at [74]-[83]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced proceedings before this Court through an application filed on 28 July 2017. He ultimately relied upon an amended application containing the following ground of review:
1. The Second Respondent (Tribunal) made a jurisdictional error in relation to the credibility of the Applicant and his witness.
a. The Tribunal may make a jurisdictional error by irrational findings with respect to material questions of fact: BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 151 at [29];
b. Irrationality for this purpose refers to matters not reasonably open on the material before the Tribunal: Minister for Immigration v SZRKT [2013] FCA 317; 212 FCR 99 at [148];
c.Irrationality in relation to credibility findings may emerge from reliance by the Tribunal upon minor inconsistencies: EVI19 v Minister for Immigration [2022] FCA 518 at [36];
d.Irrationality may emerge from reliance by the decision-maker upon unwarranted assumptions: BZI17 v Minister for Immigration [2022] FedCFamC2G 717 at [28]-[34], [48];
e. The Tribunal was irrational in the above senses with respect to the evidence of the Applicant’s witness, relying on inconsistencies which were peripheral and modest in degree and making unwarranted assumptions or drawing irrational conclusions regarding contact before the hearing between the Applicant and the witness;
f.The Tribunal was irrational in the above senses with respect to the evidence of the Applicant, making an unwarranted assumption or otherwise being irrational with respect to the Applicant’s homosexual experiences in his home country; making unwarranted assumptions as to the Applicant’s delay in claiming harm based on homosexuality and his receipt of legal advice regarding the same; and characterising the Applicant’s responses to questions as contradictory or confusing where the inconsistencies were minor or unfounded and reliance upon them was irrational;
g.The Tribunal’s irrationality, which concerned credibility findings, was material to the result: DTN16 v Minister for Immigration [2019] FCA 1525 at [51]-[52].
Principles
In EVI19 v Minister for Immigration [2022] FCA 518 (EVI19), Stewart J stated at [36]:
36.It is well-established that credibility findings are not immune from judicial review: CGQ15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [37]- [38] per McKerracher, Griffiths and Rangiah JJ. Credibility findings, like all findings, must be rationally made and based upon facts having logical and probative weight, and be articulated properly; minor inconsistencies and trivial errors do not constitute a valid ground upon which an adverse credibility finding may be made: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] per Flick J; SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 at [25] per Gordon J. See also DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 at [30] per Kenny, Kerr and Perry JJ and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [11] per Allsop CJ.
In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS), it was stated (per Crennan and Bell JJ):
132.Because illogicality or irrationality may constitute a basis for judicial review in the context of jurisdictional fact finding as explained above, it becomes necessary to decide whether the Tribunal's conclusion about the state of satisfaction required by s 65 and its findings on the way to that conclusion revealed illogicality or irrationality amounting to jurisdictional error. It is clear, from the extracts from the Federal Court decision set out above, that the Federal Court emphatically disagreed with the Tribunal's finding that the first respondent's return to Pakistan and failure to seek asylum in the United Kingdom was conduct which was inconsistent with the claimed fear of persecution arising as a result of homosexuality. It also seems clear that the Federal Court, acting on the same material or evidence on which the decision was based, would have been satisfied that the first respondent feared persecution as alleged.
133.However, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it…
135.On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. 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…
In relation to unwarranted assumptions, the Full Court stated as follows in BZD17 v Minister for Immigration & Border Protection [2018] FCAFC 94; (2018) 263 FCR 292 at [36] (per Perram, Perry and O’Callaghan J):
36.… Similarly, “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it”: SZVAP v Minister for Immigration & Border Protection (2015) [2015] FCA 1089; 233 FCR 451 (SZVAP) at [22] (Flick J) (citing WAGO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 676 at [54] (Lee and Nicholson JJ)); see also eg SZLGP v Minister for Immigration & Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [34] –[37] (Logan J). Unwarranted assumptions may also establish that a finding is illogical, irrational or not founded on any probative evidence: see eg DAO16 at [45] (the Court).
Impugned findings regarding the applicant’s witness
Issue was taken with the Tribunal’s credibility findings regarding the applicant’s witness, which were set out at [47]-[52] of the Tribunal’s decision. In those paragraphs, the Tribunal raised concerns regarding:
(a)inconsistency in the evidence between the applicant and his witness as to “when the applicant first told her that he had applied for protection” (at [47]-[49]);
(b)inconsistency in their evidence regarding the extent of their contact (at [50]-[51]); and
(c)their meeting on the day before the hearing (at [52]).
Inconsistencies
Whilst the applicant acknowledged the inconsistencies in the evidence, he submitted that they were minor in nature. The “central assertion” of the applicant’s witness was submitted to have been engagement in sexual intercourse with the applicant on a number of occasions. It was submitted that this, “given she… retains male genitalia, would be relevant to the question of the Applicant’s homosexuality”: [22] of the applicant’s submissions (AS). This was a matter regarding which the Tribunal made no direct, express finding. Questions of when the applicant told his witness that he was seeking protection and how often they were in contact were, it was submitted, “peripheral to the central point” (AS [22]). The applicant submitted that it was irrational for the Tribunal to have relied upon such minor inconsistences in the manner that it did, relying upon cases such as EVI19 at [36] and the cases cited therein.
The inconsistency regarding when the applicant told his witness he was seeking protection is confirmed in the transcripts before the Court. In response to a question asking when the applicant told the witness that he was seeking protection, the witness responded, “I didn’t know until March when he tried to commit suicide”. The Tribunal clarified that the witness was saying that she previously “had no idea that he was seeking protection” and the witness responded, “[n]o. I didn’t. I didn’t even know that he came here by boat” (page 6 of the transcript of the second Tribunal hearing). In contrast, when asked by the Tribunal, “[w]hen did you tell her that you were seeking protection in Australia?” the applicant responded: “[f]rom the day one [the witness] knew that I am Iranian and came here as a refugee to Australia” (page 23 of the second transcript).
The applicant submitted that coming to Australia as a refugee “does not necessarily suggest he has an active case” (AS [23]). However, given that this was in response to the Tribunal’s question about when he told the witness that he was “seeking protection”, I find that it was open to the Tribunal to interpret this evidence in the manner that it did (i.e. as inconsistent with the witness’s evidence that she had “no idea that he was seeking protection” until a later stage in their relationship).
I accept that when the applicant told his witness of this fact was not the central force of his evidence regarding that relationship. However, this does not mean that it was necessarily so minor that it was incapable of rationally informing the Tribunal’s credibility assessment together with the other matters that the Tribunal relied upon. The accounts given by the applicant and his witness regarding their relationship had potential import beyond their claimed sexual relationship. The credibility of those respective accounts was, potentially, capable of being informed (at least to some extent) by the consistency of their evidence regarding when the applicant had shared significant information about his life.
In relation to the contact between the witness and the applicant, the witness told the Tribunal that they had regular contact (albeit of varying frequency) after December (page 8 of the transcript of the second Tribunal hearing). The varying frequency of this was described as “it's not like everyday thing but couple days, may be a week, couple weeks sometimes whenever I wanted to talk to him I called him and vice versa”. However, when asked by the Tribunal when he had been in “regular” contact with the witness, the applicant responded that this had been since his hospitalisation in March (at page 28 of the second transcript).
I have greater concerns in relation to this issue. What constitutes “regular” contact is potentially a subjective measure: what is regular to one person is not necessary regular to another. Had the Tribunal relied solely upon this issue it had identified in the evidence, then I may well have accepted the applicant’s argument that this was irrational.
However, I accept that some context was given by the Tribunal to the word “regular” at the hearing (at page 28 of the second transcript), when it referred to its earlier discussion with the applicant. Earlier in the transcript, the applicant had stated that they hadn’t had much contact at first but that this had become “more and more”, growing to a situation where one week he might not call but another it might be “3-4 times” (at page 24 of the second transcript).
The applicant accepted that the evidence in this regard was somewhat inconsistent (although submitted that this was in a relatively minor way and that he did not “flatly contradict” his witness’s evidence). I consider that it was open for this inconsistency to have informed the Tribunal’s credibility assessment to some extent. Whilst the placing of illogical or disproportionate weight upon it might have revealed relevant error, I do not accept that this is what the Tribunal did in the present case. The Tribunal’s assessment of this inconsistency was only one of a number of observations that the Tribunal made regarding the evidence that collectively informed the Tribunal’s assessment of credibility. Given this, and on balance, I am not persuaded that the Tribunal’s reasoning in this regard is capable of meeting the high thresholds that attend grounds such as illogicality or irrationality.
“Unwarranted assumptions”
The applicant also submitted that the Tribunal, in essence, assumed that the applicant and his witness had coached each other in bad faith for the hearing when they had met for lunch the day before the hearing. The impugned part of the Tribunal’s reasoning in this respect was located at [52] of its decision:
52) Both the applicant and the witness gave evidence that they had met the day before the hearing and had lunch together. The Tribunal is concerned that while the witness corroborated evidence gave regarding their sexual relationship they provided quite different answers in relation to other evidence. On the face of it, the Tribunal is concerned that the day before the hearing they met and discussed answers to questions that they expected the Tribunal to ask. However, their responses to questions that may not have been anticipated were not rehearsed and therefore conflicted. For this reason, the Tribunal found it was not satisfied that the evidence presented by the witness regarding the sexual relationship between the applicant and the witness corroborated the applicant's claims that he is homosexual.
I do not accept that the Tribunal made an assumption of the nature contended. The Tribunal did not assume that the applicant and his witness had discussed or rehearsed their evidence. What the Tribunal did was raise a “concern” that this may have occurred (notwithstanding the applicant and his witness’s evidence they had discussed other matters). I am not persuaded that it was closed to the Tribunal to have had this concern, in circumstances where two witnesses had met and spoken with each other the day before they were due to give evidence before the Tribunal. I consider that it was open to the Tribunal to have had concerns about the possibility that this may have affected their evidence, without finding that this was done in bad faith.
Read in isolation, the Tribunal’s suggestion in [52] that it had not accepted the corroborative effect of the witness’s evidence “[f]or this reason” was potentially more problematic. The mere possibility that witnesses had discussed their evidence seems a questionable basis upon which to reject the corroborative effect of that evidence. However, when read in context it becomes clear that the Tribunal’s credibility concerns were cumulative and not based upon any one aspect of the evidence or concern held by the Tribunal. The Tribunal did not, in fact, simply rely upon this aspect of the evidence in assessing the witness’s evidence. Its ultimate credibility findings appear to have only been reached when considering the difficulties and/or concerns that it had identified in the evidence “[t]aken together” (at [19]).
Impugned findings regarding the applicant’s evidence
The applicant also sought to impugn the Tribunal’s findings regarding the level of detail in his evidence, his delay in making claims based upon sexuality, legal advice he may have been expected to have received, and inconsistencies that it identified in his evidence.
Detail
The Tribunal at [18(a)] of its decision stated:
a.The applicant provided superficial written and oral evidence regarding the development and exploration of his sexuality in Iran when he was a teenager. Despite several attempts at prompting by the Tribunal for him to elaborate he did not deviate from his written submission except to a very minor extent. Essentially, his oral evidence was unconvincing.
At [37], the Tribunal stated:
37) Through its questioning the Tribunal attempted to establish some understanding of the applicant's behaviour in Iran. The Tribunal was not seeking elaborate detail, but expected that the applicant would have been able to contextualise such significant early experiences in his life. His responses were superficial and did not elaborate to any significant extent on the claims in his written statement. His oral evidence was not compelling but rather, raised serious concerns about the veracity of his claims that he was a homosexual. The Tribunal was therefore not satisfied that the applicant had homosexual relationships in Iran.
There are parts of the transcripts in evidence that, on one view, may be said to support the Tribunal’s impression. In response to an early, open question asked by the Tribunal regarding the issues he claimed regarding his identity, the applicant’s initial response mirrored fairly closely the manner in which he had given his written evidence (page 6 of the first transcript). The Tribunal then indicated an intention to speak “in detail” about the applicant’s sexuality claims.
The Tribunal subsequently asked questions having noted that although it may be uncomfortable, “the more detail” the applicant could give “the better” in communicating matters about his sexual identity such as how he started to have these feelings about his identity, “what was going on for [him] at that time, where” and “about [his] schooling and how” it “all developed” for him (page 19 of the first transcript). Despite indicating that a substantial level of detail was sought there were, on one view, limitations in the level of detail provided by the applicant in response. Many of his answers to the Tribunal’s questions, arguably, could potentially have been supported by additional contextual detail had it been volunteered. For example, when the Tribunal queried how the applicant’s watching homosexual pornography with someone with whom he claimed to have been in a relationship in Iran had “come about”, the applicant responded, “We were young people, we started watching these movies together, we became more and more interested and whenever one of our houses was empty we would go to that house and watch movie” (page 20 of the first transcript). This did not involve, it may be accepted, specific detail regarding the conversations and interactions that resulted in this situation occurring. When asked for greater detail regarding the circumstances of the applicant’s sexual interactions in Iran, the applicant’s answers were, on one view, fairly brief, with further information only elicited through more specific prompting by the Tribunal (at [21]-[23] of the first transcript).
On another view, much of the applicant’s evidence in response to the Tribunal’s questions appears, arguably, to have been reasonably detailed and responsive to the questions that were asked by the Tribunal. There is some force to the applicant’s submission that it was not made clear exactly how much detail the Tribunal expected or required in relation to the applicant’s evidence. This was in circumstances where, as the Tribunal acknowledged, the applicant may not have been comfortable discussing his sexuality and experiences.
On balance, however, I consider that I am ultimately obliged to conclude that the level of persuasive detail provided by the applicant regarding his sexuality was a matter regarding which different conclusions were available on the evidence. Irrationality is not able to be demonstrated in these circumstances: SZMDS at [135].
Delay and legal advice
At [18], the Tribunal relevantly reasoned:
b. The Tribunal also had regard to the fact that the applicant provided slightly different reasons for his departure from Iran at his Entry Interview and at his interview with the Department and different reasons again at the review stage. The Tribunal notes that the applicant left Iran to travel to Indonesia and then undertook considerable measures to secure passage on an unauthorised boat to travel to the Australia. He claimed that his [family sold] property to fund the cost of this travel. The Tribunal does not believe that a person who had taken such lengths to come to Australia and who was prepared to jeopardise the family's financial position would not, at the very first available opportunity to do so outline all of their claims for protection. The applicant was given access to a migration lawyer for the purposes of collating his claims for protection and was assisted by an interpreter. The applicant would, as a matter of course, been assured of the confidentiality of this process by his legal representative and encouraged to be forthcoming about all of the reasons in which he was seeking protection in Australia. The Tribunal finds that the applicant's delay in making claims regarding his sexuality contributed to the Tribunal's overall concerns about the applicant's credibility. In coming to this conclusion, the Tribunal is sensitive to the fact that an applicant coming from a Muslim country making claims regarding their sexuality would be highly reticent to do so. However, despite the applicant's explanations, the lateness of his claims regarding his homosexuality raised concerns regarding the veracity of those claims and the truthfulness of the applicant as a witness.
c. The applicant's credibility was further undermined by his claim that he had never discussed his sexuality with anyone until he told a few lawyers in Australia and it was his lawyers who told him to stick with his earlier claim. The Tribunal does not consider this claim to be plausible. It could reasonably be expected that lawyers assisting boat arrivals would advise them to pursue their strongest and most solid claims.
The applicant submitted that the Tribunal, despite purporting to be sensitive to his circumstances, did not adequately grapple with his reticence to provide such sensitive information. The applicant contended that the Tribunal made an unwarranted assumption that, with the benefit of legal representation and an assurance of confidentiality, the applicant would have disclosed his homosexuality. The applicant further contended that the Tribunal’s assumption that the applicant’s lawyers would have advised him to pursue his strongest and most solid claims regardless of whether they had previously been raised was unfounded.
I am unable to accept that the Tribunal’s reasoning was relevantly closed to it on the basis contended. The applicant, throughout a significant part of the application process, had advanced his application on a different basis to his sexuality. It was only after his application had been refused by the Delegate that the applicant admitted that key aspects of his previous claims had been untruthful and claimed that he had fled Iran for reasons that were different from those that he had previously claimed. In these circumstances, it was open to the Tribunal to have found that the applicant’s delay in making the claims that he ultimately relied upon was adverse to his credibility, notwithstanding the potential sensitivities and reticence that the Tribunal acknowledged may have been involved.
I also accept the Minister’s submission that it was open to the Tribunal to reject the plausibility of the applicant’s contention that his lawyers in Australia would have told him to stick with his earlier claim. Encouraging the applicant to maintain false claims, or otherwise mislead the Department as to the true reasons that he left Iran, would have been inconsistent with a lawyer’s professional responsibilities. It was open to the Tribunal to have found it inherently unlikely that this would have occurred.
Inconsistencies
At [43]-[44], the Tribunal found that the applicant’s evidence regarding how he became aware of venues to meet other gay men had been “not straightforward” and contradictory. At the first hearing, the applicant had given evidence that he had only told his legal representatives about his sexuality (page 25 of the first transcript). At page 28, in response to a question regarding how the applicant knew to go to Oxford Street, the applicant initially stated that this was because it was “written everywhere” and suggested that it could be Googled. The applicant then said that he “hear[d] it among my friends that it’s for gays”, one of whom had been there the night before. When the Tribunal requested further details, the applicant stated: “May be they were not friends” (page 29). When the Tribunal asked for a “clear answer”, the applicant stated that when he said “friend, maybe I saw them once”. The Tribunal again asked the applicant how he found out about Oxford Street, noting that he had claimed not to have told anyone that he was gay. The applicant then said he “did hear it”, “did search in google” and knew Sydney well after living there for some time (at page 29).
Having regard to the above, I accept the Minister’s submission that it was open to the Tribunal to have found the applicant’s evidence in this regard to have been “not straightforward” and contradictory. Whilst the applicant did not state in terms that he had discussed his sexuality with the persons who told him about Oxford Street, this was a possible inference from the context of the discussion (i.e. that the applicant had been discussing a venue for meeting gay people with someone who had been there the night before). When this was put to him, the applicant did not clarify his evidence but instead referred generally to hearing about or Googling the venue, and knowing the city.
The applicant submitted that the above inconsistencies in the evidence were minor and incapable of rationally sustaining the Tribunal’s credibility findings. However, I am not persuaded that it was relevantly closed to the Tribunal to have attached some significance to the above inconsistencies in the applicant’s account of his experiences in Sydney. Such experiences were of clear relevance to the applicant’s central claims. The Tribunal does not appear to have placed irrational weight upon any one difficulty that it identified in the evidence alone. Rather, it was the cumulative effect of the difficulties that it identified that led to the Tribunal’s findings in relation to credibility.
A further inconsistency – factual error
At [42] of its decision (made in 2017), the Tribunal reasoned:
42) The Tribunal asked the applicant when he first became sexually active in Australia. He stated that maybe it was a year ago. He arrived in Sydney around mid-2013. He then revised his answer and said he maybe had a few relationships in the first couple of years but because he was scared to talk about his sexuality and did not know his way around it took a while. The applicant provided confusing and conflicting evidence regarding when he became sexually active in Australia.
At the hearing of this matter, the applicant initially argued that this inconsistency was minor in nature and ought not to have been given the significance that it was given by the Tribunal. The Minister more persuasively submitted that the difference between the applicant (a) claiming not to have engaged in sexual relationships at all for some years after arriving in Australia, and (b) engaging in sexual relationships within his first couple of years in Australia, was significant. This was in the context of protection claims that centred around the applicant’s claimed fear of harm based upon his sexuality and this becoming known in Iran. The Minister’s Counsel argued that it was at least open to the Tribunal to have attributed to this inconsistency the significance that it did.
When reviewing the materials, however, it became apparent that the Tribunal’s reasoning at [42] was based upon a factual error. The applicant’s evidence at interview, set out at page 28 of the transcript of the first hearing, was as follows regarding his first sexual relationships after arriving in Australia (emphasis added):
Interpreter: Relationship. They were not a lot just a few. For first 2 years not at all but after that may be a bit. Because I was scared of talking about it with anybody, I was also new in Sydney and didn't know my way around.
At no point in the transcripts before the Court does the applicant suggest that he engaged in sexual relationships within the first couple of years of living in Australia.
In response to this issue being raised, the applicant contended that this factual error, based upon illogical reasoning, revealed jurisdictional error in the present case. This was contested by the Minister.
Authorities
There are a number of cases that have considered the circumstances in which factual error may, or may not, reveal jurisdictional error.
In the oft cited decision of Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 (SZUXN), it was stated:
49.There may be circumstances where illogicality or irrationality in the decision-making process may constitute or justify a finding of an underlying jurisdictional error. A Tribunal that employs irrational or illogical reasoning, or makes irrational findings of fact not based on probative material, is likely to be in breach of the implied requirement that it act reasonably in exercising its statutory review powers and jurisdiction. A decision based on, or flowing from, irrational and illogical reasoning or factual findings is likely to be legally unreasonable and beyond power…
53.The Minister submitted that a decision of the Tribunal can only be overturned on the basis of illogicality or irrationality if it is shown that the end result is one which no logical or rational decision-maker could arrive at. The submission appeared to be that, where a decision is challenged on the basis of illogicality or irrationality, the reviewing court should decide for itself whether the end result was irrational on the materials that were before the decision-maker, as opposed to whether the decision-maker’s reasoning was illogical or irrational. This was said to flow from the judgment of Crennan and Bell JJ in SZMDS.
54.The Minister’s submission in that regard is rejected. The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]- [62].
55.Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159; (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].
56.An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.
The reasoning in SZUXN has been endorsed in a number of subsequent cases: see CRU18 v Minister for Home Affairs [2020] FCAFC 129; (2020) 277 FCR 493 at [35]-[36] (per Wigney, Jackson and Snaden JJ) and the cases cited therein.
As will be apparent from the above, whether or not illogical reasoning is capable of revealing jurisdictional error will depend upon the significance of the reasoning within the context of the Tribunal’s decision.
In assessing the significance of the error to the Tribunal’s credibility findings in this case, I am cognisant of what was said by Lee J in SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [44]-[45] (see also CSU16 v Minister for Immigration and Border Protection [2022] FCA 1509 at [25]-[51] per Bromberg J):
44.It is 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, although it is not accurate to say that the Hospital Evidence was minor, 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.” The finding that the appellant had been deceitful about the hospital was plainly not an issue the Tribunal member had considered to be peripheral to assessing his creditworthiness.
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.
I also bear in mind what was said by Logan J in SZRHL v Minister for Immigration and Citizenship [2013] FCA 1093; (2013) 136 ALD 641 at [34]:
34. As I opined by reference to earlier authority in SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37], “the adjectives ‘ignorant’, ‘arbitrary’ and ‘perverse’ aptly apply to a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise”…
Application
The Minister accepted that the Tribunal’s reasoning at [42] was based upon factual error. However, the Minister submitted that it would nonetheless have been open to the Tribunal to have found at [18(d)] that the applicant had given “contradictory and confusing” evidence based upon other issues it had identified in his evidence. Further, it was contended that given the “five separate and apparently independent matters” the Tribunal relied upon at [18] of its decision in finding the applicant not to be credible, factual error in relation to one of them was insufficient to render the Tribunal’s ultimate decision legally unreasonable. The Minister emphasised that not every lapse in logic gives rise to jurisdictional error and that in some cases a lack of logic “may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction”: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 at [34] per Allsop CJ, Besanko and O'Callaghan JJ.
The difficulty with the Minister’s position is that in the present case, the Tribunal’s adverse credibility finding was expressed to have only been made when the credibility issues that it had identified were “[t]aken together” (at [19]). This has informed why I have not accepted the applicant’s arguments above to the effect that many of the credibility concerns identified by the Tribunal were minor and therefore logically incapable of sustaining the decision. Had the Tribunal relied singularly upon some of those concerns, then the applicant’s case in this regard would have had greater prospects. However, the Tribunal did not base its credibility findings solely upon any one concern that it had identified in the applicant’s evidence. The Tribunal’s reasoning in this regard was, expressly, cumulative.
Some of the Tribunal’s credibility concerns identified at [18] were logically capable of exerting greater force than others. As the Minister submitted at hearing one such concern, potentially, was the Tribunal’s concern regarding the delay that had attended the applicant’s making of his claims based upon sexuality. However, the Tribunal made clear at [19] that it was only when this concern was “[t]aken together” with its other concerns (including its concern at [18(d)] regarding the “contradictory and conflicting responses” it considered had been given by the applicant in his evidence) that its “concerns were of such a magnitude” that it was not satisfied that his claims were genuine.
I accept, as the Minister submitted, that the Tribunal also found other aspects of the applicant’s evidence as to how he became aware of homosexual venues in Sydney to have been “not straightforward” and to have contradicted other evidence that he had not discussed his homosexuality with anyone other than lawyers (at [43]-[44]). I have found above that this finding was open to the Tribunal. However, it relied upon the drawing of inferences that, whilst available, were not the only inferences that could have been drawn from the underlying evidence. It is therefore questionable whether this feature of the applicant’s evidence alone would have been relied upon by the Tribunal to characterise the evidence as “contradictory and confusing” in the manner that it did and with the force that attended this finding at [18(d)].
In any event, the Tribunal did not rely upon this feature of his evidence on its own. In relying upon its finding that the applicant had given “contradictory and confusing responses”, the Tribunal relied upon its finding at [42] that the applicant had given “confusing and conflicting evidence regarding when he became sexually active in Australia”.
The Minister submitted that the applicant’s evidence in this regard was inconsistent regardless of the error. This is because the applicant had differed in whether he had commenced sexual activity in Australia one year previously, or longer. However, the applicant’s evidence in this regard only varied to a limited extent, in circumstances where he had emphasised that he could not remember the exact timeframe. At pages 24 to 26 of the first transcript, the applicant estimated his first sexual activity occurring “About 1, 1.5 year ago” or thereabouts, commencing sometime after his first two years in Australia. Whilst that evidence may have been regarded as inconsistent, it also may have been regarded as an understandable estimate range regarding which the applicant had not purported to be precise.
Regardless, this was not the inconsistency that the Tribunal relied upon at [42]. At [42], the Tribunal relied upon what it understood to be the rather more wildly inconsistent evidence that that the applicant had claimed not to have engaged in any homosexual relationship for years after arriving in Australia, and yet had then “revised his answer and said he maybe had a few relationships in the first couple of years”. This understanding, which was not logically available on the evidence, was expressly relied upon by the Tribunal in impugning the applicant’s credit. It then expressly formed part of the credibility concerns that, when “[t]aken together”, were relied upon by the Tribunal in rejecting the applicant’s central claims (at [18]-[19]).
In these circumstances, I accept the applicant’s contention that the illogicality in the Tribunal’s decision was sufficiently central to its credibility findings to have resulted in the decision being infected by jurisdictional error.
CONCLUSION
For the above reasons, the application before this Court succeeds.
I will hear from the parties in relation to costs.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 9 June 2023
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