Eic20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 282
•19 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EIC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 282
File number(s): MLG 3587 of 2020 Judgment of: JUDGE BLAKE Date of judgment: 19 November 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Protection visa – Applicant applying for protection in 1997 and again in 2019 – credibility of Applicant critical issue – significant inconsistencies and untruths in evidence from the Applicant – Applicant aware of credibility issue – Applicant providing support letters from the Applicant’s brother and friend after the Tribunal Hearing – Tribunal finding Applicant lacked credibility and support letters not genuine – no weight given to support letters – whether Tribunal was required to invite Applicant to respond to concerns about the genuineness of support letters before making adverse finding – support letters not corroborative or critical in any event – Court finding Tribunal was not required to raise concerns with support letters - Tribunal not required to make inquiries to determine authenticity of support letters – Tribunal not accepting reasons provided by the Applicant for inconsistencies in evidence – Tribunal not acting irrationally or illogically in finding Applicant lacked credibility – no jurisdictional error found – application dismissed. Legislation: Migration Act 1958 (Cth), ss 422B, 425 501 (3A) Cases cited: AYT18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 597
CBN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and others [2019] FCA 2190
Minister for Home Affairs v DUA16 (2020) 95 ALJR 54
Minister for Immigration and Border Protection v Ly (2018) 263 FCR 512
Minister for Immigration and Border Protection v SZVFW [2018] 264 CLR 541
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Minister for Immigration and Citizenship v SZMOK and others (2009) 247 FCR 404
SZQPY v Minister for Immigration and Border Protection [2018] FCA 359
WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511
WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597
WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912,
WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624
Division: Division 2 General Federal Law Number of paragraphs: 101 Date of hearing: 6 October 2021 Counsel for the Applicant: Mr Fitzgerald Solicitor for the Applicant: N/A Counsel for the Respondents: Mr Wood Solicitor for the Respondents: Clayton Utz ORDERS
MLG 3587 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EIC20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
19 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The Application filed on 6 October 2020 and further amended on 21 September 2021 be dismissed.
2.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $7,467.
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 BLAKE:
INTRODUCTION
This is an application for review of a decision made by the Administrative Appeals Tribunal ('Tribunal) on 8 September 2020. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a protection (Class XA) visa ('Visa').
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The Applicant was born in Burkina Faso. There is a lack of clarity in the material as to the precise date the Applicant arrived in Australia, however it can be said generally that he arrived in around June/July 1997.
In around October 1997, the Applicant submitted an application for a protection visa (‘1997 Application’). The 1997 Application was supported by a Statutory Declaration that outlined his claims for protection (‘1997 Statutory Declaration’).
On 29 January 1998, a delegate of the Minister refused the 1997 Application. The matter was subsequently reviewed by the then Refugee Review Tribunal (‘RRT’) which affirmed the decision of the delegate on 16 November 1999. A subsequent request for Ministerial Intervention was not successful.
The decision of the Tribunal presently under review (‘Decision’) then records the following background:
11.The applicant married an Australian citizen in Australia in February 2000. He left Australia on 20 September 2001. He returned on 22 December 2011 after obtaining permanent residence on spouse grounds. He travelled on a Burkina Faso passport issued in Burkina Faso in 2011. It appears that he and his wife lived in the UAE for much of this time. He has four Australian citizen children born between June 2002 and July 2011. It appears that his wife and some of his children reside in the UAE. It is unclear whether his marriage is ongoing.
12.In December 2013 the applicant was convicted of importing drugs and sentenced to 10 years imprisonment. He has remained in jail since that time.
13.On 8 November 2017 the applicant's spouse visa was cancelled under s.501 (3A). This decision was upheld by a differently constituted Tribunal.
The Applicant then applied for the Visa on 22 August 2019.
On 17 December 2019 the Applicant attended a Protection Visa interview ('PV interview'). On 9 March 2020, a delegate of the Minister ('delegate') refused to grant the Applicant the Visa (Court Book 551).
On 30 March 2020, the Applicant applied to the Tribunal for review of the delegate's decision. On 4 June 2020 the Applicant provided a written statement to the Tribunal explaining the reasons why he had fled from Burkina Faso (Court Book 666).
On 10 August 2020, a hearing was held at the Tribunal (Court Book 667). The Applicant and his support person attended the hearing.
Following the hearing, the Applicant sent to the Tribunal various documents to support his case. The Tribunal also obtained documents from the Tribunal file relating to the cancellation of the Applicant’s spouse visa. I will return to some of the documents described in this paragraph later, however they included reports containing general country information, medical reports and statements of support.
On 8 September 2020, the Tribunal affirmed the decision of the delegate not to grant the Applicant the Visa.
The Applicant commenced proceedings in this Court by filing an application for review of the decision of the Tribunal and an affidavit in support on 6 October 2020.
On 21 September 2021, the Applicant filed an Amended Application (‘Application’) and Outline of Submissions. The Minister filed an Outline of Submissions on 1 October 2021.
The matter was listed for Final Hearing before me on 6 October 2021, but was not completed because of difficulties with information technology the Court experienced that day. The hearing subsequently concluded on 14 October 2021.
THE DECISION OF THE TRIBUNAL AND THE EVENTS LEADING TO IT
There are subtleties to this case and the factual spectrum extends over the course of some years. It is apparent from reading the reasons of the Tribunal that the credibility of the Applicant was a critical issue. In order to properly understand the Application and assess it, is important to set out the principal events leading to the decision of the Tribunal, and to briefly traverse the reasons of the Tribunal.
As I have noted above, the 1997 Application was accompanied by the 1997 Statutory Declaration (Court Book 138). The Applicant set out his claims for protection in the 1997 Statutory Declaration. In that document, he claimed, among other things, that his father, mother and two brothers had been killed. That claim, among others, did not form part of the Applicant’s present application for the Visa.
The difference between the Applicant’s claims for protection in 1997 and his claims for protection as part of the present application for the Visa was a matter which attracted the attention of the delegate and to which the delegate devoted considerable attention in the delegate’s reasons (commencing from Court Book 551). Ultimately, the delegate found, among other things, that the Applicant was not credible (Court Book 555). The delegate noted that the Applicant maintained he had not previously lodged a protection visa application. The delegate noted that the claims the Applicant made in 1997 were different from the claims that he was now making (Court Book 553- 5). The Applicant was aware that his credibility was an issue from this time.
The Applicant having filed an application with the Tribunal, attended a hearing before it on 10 August 2020. At paragraphs [39]-[58] of its reasons, the Tribunal summarised what occurred during the hearing. Among other things, the Tribunal:
(a)advised the Applicant that it had significant difficulty accepting his claims regarding his involvement in politics in Burkina Faso in the 1990’s because he had given inconsistent accounts of events and because his claims appear to be at odds with evidence regarding the situation in Burkina Faso at the time: at [40];
(b)raised with the Applicant the claim he made in 1997 that his parents and two siblings had been killed, but that in his present application he claimed that his father had been killed after the Applicant had left Burkina Faso and that his mother and siblings were still living in Burkina Faso. The Tribunal indicated that these inconsistencies appeared to indicate that the Applicant was not a credible witness and he was invited to comment: at [41];
(c)recorded that the Applicant did not deny that he had made the claims set out in the 1997 Application, but said that one reason for the inconsistencies in his claims was that he had not been aware that he was suffering from PTSD at the time he lodged the 1997 Application: at [42];
(d)recorded that the Applicant, when asked to confirm that his father had died before he left Burkina Faso, provided an answer that was inconsistent with his earlier evidence to the Tribunal: at [43];
(e)noted that the letter from the Applicant’s mother stated that his father had died of illness which was at odds with the Applicant’s claim that he had been murdered and tortured: at [45];
(f)noted the Applicant had claimed that he was married with children prior to leaving Burkina Faso in 1997 and that the Applicant now denied that this was true. The Tribunal noted that the Applicant said he might have been confused because he was suffering from PTSD and flashbacks and also that his poor English might have been a problem: at [46].
Having recorded the matters above, and received further information from the Applicant post hearing (discussed by the Tribunal at paragraphs [59]-[70]), the Tribunal made a series of findings at paragraphs [71]-[80]. These findings are important because it is the reasoning and approach of the Tribunal in this part of its reasons that is principally under challenge. In summary, the Tribunal:
(a)stated that it ‘did not find the applicant to be a truthful or credible witness’: at [71];
(b)considered the claims made by the Applicant over time, the inconsistencies in those claims and the Applicant’s reasons for those inconsistencies at paragraphs [72]-[73] before concluding that it did not accept his explanations: at [74];
(c)considered the Applicant’s different accounts of what occurred in Burkina Faso and concluded that no credible explanation had been provided for those inconsistencies: at [75];
(d)reviewed the available evidence in relation to human rights and other abuses in Burkina Faso in the 1990’s, noted that none of the available evidence suggested student activists were being killed, abducted or detained and stated that ‘while this alone would not have been sufficient for me to reject the applicants claims entirely, I find it a further indication that his claims lacked credibility’: at [76];
(e)found that the Applicant’s claims that he was a political activist in Burkina Faso and that he fled because he was at risk of serious harm were ‘concocted’ to support his application for protection and residency in Australia: at [77];
(f)considered the medical evidence before it and stated at [78] as follows:
78.In reaching this conclusion I have considered the reports from Mr Sexton, Dr Ahmet and Dr Kochar which state that the applicant was suffering from PTSD in the late 1990s as a result of his experiences in Burkina Faso. However, these diagnoses were based primarily on the applicant's claim that his family had been murdered, a claim which he now states is untrue. It is perhaps possible that the applicant suffered from symptoms of PTSD for some reason when these men assessed and counselled him in the late 1990s, but there is no credible evidence before me which suggests that this was the result of trauma related to his involvement in political activities in Burkina Faso.
(g)considered two letters of support the Applicant submitted after the hearing from his brother and a friend and stated at [80] that:
80.Finally, I have considered the letter provided following the hearing, reportedly written by the applicant's brother and a friend. These letters purport to confirm claims which I have found to be lacking in credibility. No verifiable evidence has been provided regarding the identity of the authors of these letters or their relationship to the applicant. I believe that these letters were written by the applicant or at his instructions for the purpose of supporting his claim for protection and I have given them no weight.
After considering a range of other matters, the Tribunal ultimately concluded that the decision of the delegate not to grant the Applicant a protection visa should be affirmed: at [96].
THE APPLICATION
Ground 1
The first ground of review in the Application is:
The Tribunal fell into jurisdictional error by failing to accord the Applicant procedural fairness before making its purported decision on 8 September 2020 (‘Purported Decision’).
Particulars
a)On 10 August 2021, the Tribunal conducted a hearing. It raised concerns about the Applicant’s credibility, but not about the genuineness of documents he had submitted in support of his claims.
b)On 21 August 2021, the Applicant provided the Tribunal with two letters in support of his Application: one from his brother, and another from a friend (‘Support Letters’).
c)In its reasons for the Purported Decision, the Tribunal found that the Support Letters were ‘written by the [A]pplicant or at his instructions for the purpose of supporting his claim’ and accordingly gave them ‘no weight’ (at [80]). Implicitly, the Tribunal found that the letters were not genuine.
d)The Tribunal did not alert the Applicant about its concerns of the genuineness of the Support Letters before making that finding. There was nothing on the face of the documents to suggest they were forgeries.
e)That error was material.
Under this ground of review, the Applicant takes issue with the finding of the Tribunal at paragraph [80] of its reasons. I have set out that paragraph earlier in these reasons.
The two letters of support referred to in paragraph [80] of the Tribunal’s reasons are a letter from the Applicant’s brother (Court Book 706) and a letter from the Applicant’s friend (Court Book 704) (the ‘support letters’). Each support letter is signed and dated by the writer. Each letter contains an email address and telephone number for the writer.
The Applicant’s principal submission under this ground of review is that the Tribunal was required to invite the Applicant to comment on the genuineness of the support letters before making adverse findings about them. This is particularly so given the finding of the Tribunal to the effect that the support letters were a fraud or forgery. It was submitted that the support letters (which were sent to the Tribunal after the Tribunal hearing) were critical to the Applicant’s case given the concerns the Tribunal had raised with the Applicant about his credibility. It was also submitted that the support letters provided corroborative evidence of various matters including that the Applicant was a political student activist in Burkina Faso, that he had become an enemy to many, that he had been arrested for protesting against the government, that he was taken to prison and tortured and that he would be killed if returned to Burkina Faso.
It was further submitted by the Applicant that the Tribunal afforded no weight to the letters and that finding was premised solely on the Tribunal’s conclusion that the Applicant was not a credible truthful witness. In this way, it was suggested, that the Tribunal placed the ‘cart before the horse’ in that having accepted the letters, it nevertheless gave them no weight and determined the matter on the basis of its earlier conclusion as to the Applicant’s credibility. The Applicant emphasised that the finding of the Tribunal at paragraph [80] of its reasons was effectively a finding that the Applicant had engaged in forgery or fraud. At no stage, however, did the Tribunal express to the Applicant its concerns about the genuineness of the support letters or put the Applicant on notice that it considered the letters to be a fraud.
At this point, it is necessary to record the following matters in relation to the applicable principles and some of the facts.
First, an issue that arose before me in this matter was whether section 422B together with section 425 of the Act operated to, in effect, displace what may be referred to as the content of common law procedural fairness requirements. The Minister’s position was that the law is governed by section 425 of the Act rather than some broader common law procedural fairness duties. The Applicant accepted that section 425 of the Act was engaged but submitted that failing that, the Court was bound to follow the decision in Minister for Immigration and Border Protection v Ly (2018) 263 FCR 512 (“Ly”). Given the way I have approached the matter, and given the reasons which follow, it is unnecessary for me to resolve this issue.
Second, each of the parties referred the Court to a number of authorities said to support their respective contentions. The Court is grateful to the parties for their endeavours and I will refer to those authorities as needed. It is also pertinent, however, to point out, that the parties were not in any real dispute about certain facts or principles which emerged from those authorities and from the matter presently before the Court. The matters about which there was agreement (or no real dispute) may be briefly stated as follows. First, there was not a dispute that at paragraph [80] of its reasons, the Tribunal (impliedly if not expressly) made a finding of fraud. Second, the authorities make clear that a finding of fraud should not be lightly made. Third, what may be required to afford an applicant procedural fairness depends on the circumstances of the case. Fourth, if the Tribunal has doubt about a document, it may be required to alert an applicant to questions about the genuineness of the document. Finally, and connected with the fourth point, there is not a general rule or requirement that every time the Tribunal is minded to make a finding that a document is fraudulent, an applicant must be alerted to that or else procedural fairness requirements will have been breached.
Returning then to the matter before me, in advancing the submissions above, the Applicant took me to a number of authorities.
WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 (“WACO”) was a case in which the then tribunal had doubts about the various claims made by the applicant. The applicant subsequently provided two written letters in support of his claims after the tribunal hearing. The tribunal subsequently found those documents to be false without putting the issue of falsity to the applicant. The Full Court remitted the matter to the tribunal for re hearing. In doing so, the Full Court made powerful statements at [42] and [53] – [55] that procedural fairness in that case required the tribunal to give the applicant an opportunity to answer a potential finding of fraud. A similar outcome was reached in similar circumstances in WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597, at [50] – [57].
In WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912, (“WAGU”), it was put to the applicant by the Tribunal in that case that his claims had evolved considerably over time since his arrival interview. Following the hearing in the Tribunal, the Tribunal received a submission from the appellant’s advisor which enclosed a copy of an email message from the Secretary General of the Freedom Movement of Iran. The email supported the applicant’s claims. The Tribunal found the applicant was well enough connected to have such an arrangement, which was an implicit finding that the document was fraudulent. The applicant submitted he was denied procedural fairness because the Tribunal rejected the email without hearing from him about it. In quashing the decision of the Tribunal, French J (as he then was) stated at [34]:
34.It may well be the case that where a Tribunal has made findings adverse to the credibility of an applicant before it, those findings may form a basis for rejecting the authenticity of documentary evidence tendered to the Tribunal by the applicant. There is a danger in so proceeding because it may be that documentary material itself should be taken into account in assessing credibility. To proceed otherwise risks putting the cart before the horse.
At [36]-[38], French J stated:
36.Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party’s credibility. In such a case a failure to put to the tendering party that the evidence may be so regarded cannot constitute a breach of procedural fairness. This is just a special case of the general proposition that procedural fairness does not require the decision-maker, in this case the Tribunal, to invite comment upon its thought processes on the way to its decision. But where corroborative evidence is rejected on the basis of a finding of fraud or forgery or on some other positive basis which has never been put to the tendering party there may be a failure of procedural fairness. Such a failure may have very practical effects for it means that the corroborative material is never weighed in the balance of the general assessment of the tendering party’s credibility
37.In the present case there is no doubt that the Tribunal made findings generally adverse to the credibility of the appellant. It decided that the appellant’s claims of involvement with the Freedom Movement of Iran were fabricated. That finding having been made would perhaps have supported a finding that the email from the Secretary-General should be given no weight. But the Tribunal expressly disclaimed any reflection upon the character of the author of the email and observed that:
‘No doubt the applicant is well-enough connected there to have such statements arranged.’
This was a proposition, which as the learned magistrate observed, was not supported by any evidence before the Tribunal. It was a proposition that the Tribunal never put to the appellant and does not naturally flow from adverse findings as to his credibility. It essentially involves a finding that the appellant has been involved in some kind of conspiracy with a person or persons in Iran to fabricate information about his connection with the Freedom Movement to dupe its Secretary-General so that he would send an email to Australia confirming the appellant’s involvement. None of this was ever put to the appellant. Moreover, it provided a basis for rejection of the document which meant that it did not have to be taken into account in the assessment of credibility.
38.It might be argued that the Tribunal’s reasons should be construed as involving an adverse finding in relation to the appellant’s credibility which in turn supports the rejection of the email evidence and the hypothesis that it was fabricated in the way suggested. The difficulty with that characterisation of the Tribunal’s reasoning is that it is not apparent from the way the Tribunal has expressed itself. The strong impression left after reading the reasons is that the Tribunal has reconciled the existence of the email evidence with its preceding findings as to credibility on the unsupported ground that it was produced pursuant to a fraudulent arrangement made by the appellant himself
The Applicant understandably placed some emphasis on WAGU and I accept the matter bears some similarity to the present matter. Two observations should be made, however, about WAGU. First, French J stated at [36] that corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party’s credibility. Second, French J appeared to accept at [38] that there would not have been any unfairness if ‘the Tribunal’s reasons should be construed as involving an adverse finding in relation to the appellants credibility which in turn supports the rejection of the email evidence and the hypotheses that was fabricated in the way suggested’.
In WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 the tribunal made adverse findings in respect of the appellant’s credibility and expressed grave doubts that the appellant was who he claimed to be. The tribunal also expressed grave doubts about the veracity and credibility of documents produced by the appellant in support of his claims. The appellant complained that at no stage did the tribunal put to him any basis upon which it might reject the authenticity of the documents. French J at [56] held:
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. But where as 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, then on the authorities I have referred to, procedural fairness would require an opportunity be given to the appellant to comment. I took a similar approach in WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912; BC200304925.
In Ly at [44]-[45] and [51], the Tribunal asked if hotel receipts existed to corroborate the applicant’s claims that she and the visa applicant had stayed together at a hotel. The applicant stated that she had receipts and subsequently provided them to the tribunal after the hearing. In its decision, the Tribunal recorded, among other things, that the receipts were only provided to it after the hearing, they appeared to be in the same handwriting, they had not been provided to the Department before the decision by the delegate was made and in those circumstances, the Tribunal had concerns about the genuineness of the receipts.
The Full Court (Rares, Robertson and Farrell JJ) reviewed the relevant authorities and dismissed the appeal by the Minister. At paragraphs [44] and [45], the Full Court stated:
44.…the review applicant ought already to have been aware from what had been said by the delegate and by the Tribunal during the hearing that there was an issue about whether the review applicant and the visa applicant had stayed together in hotels, and that the Tribunal was interested in receipts or supporting evidence in relation to that question, highlights the problem rather than resolving it. We understand it to be common ground that the Tribunal regarded the receipts as important…
45.…As we have indicated, any issue as to the genuineness that the Tribunal had in mind from the appearance of the hotel receipts supports, if not requires, the need for that matter to be brought to the attention of the review applicant. Presumably the Tribunal’s thinking was that the visa applicant had readily to hand blank printed receipts from the Asia Hotel, in different colours and different typefaces over the years 2010 and 2012 as compared to 2013, 2014 and 2015 and different email addresses for the hotel which she could readily fill in, together with her apparent signature and the apparent signature of the visa applicant. This confirms, in our opinion, that the Tribunal should have given the review applicant an opportunity to be heard as to the genuineness of the receipts on the basis that, although dated different years and in different printed formats, they appeared to be completed in the same handwriting.
The Applicant contended that the circumstances in each of these decisions were similar to the situation presently before the Court and that the effect of those decisions was that the Tribunal was required in a matter such as the present, to give the Applicant an opportunity to comment. Furthermore, in referring to the decisions above, I understood the Applicant to seek to draw a distinction between an applicant being put on notice about concerns the Tribunal has about their credibility as a witness compared to its concerns that an applicant has relied on forged or fraudulent evidence.
The Minister emphasised two authorities. In Minister for Immigration and Citizenship v SZSNP (2010) 184 FCR 359 (“SZSNP”) (North, Lander and Katzmann JJ), the RRT found that the respondent had fabricated her claim. Given that finding, the RRT did not give weight to a statement from a key witness. An issue before the Court was whether it was irrational for the RRT to have concluded that the respondent was lying without first weighing the witness statement. At paragraph [32] and [33] of their reasons, North and Lander JJ stated:
32But even if it is a precondition, a finding that the first respondent’s claims were not credible and that she had fabricated her claim is tantamount to a finding of lying. It is a finding that the party making the claims has made those claims up. To make up claims is to lie about the existence of those claims.
33Thus, consistently with Applicant S20/2002 77 ALJR 1165; 198 ALR 59 it was open to the RRT to assess the credit of the first respondent and then, in the light of that assessment, consider what weight should be given to the witness statement. This was the process followed by the RRT which it described in the sentence “Given the adverse credibility finding, the Tribunal does not give weight to the document”. Although expressed in the most cryptic terms, this statement shows that the RRT made an assessment of the value of the witness statement and then considered its effect in the light of the view it had formed to that point about the credibility of the first respondent.
Then, at paragraph [35], North and Lander JJ stated:
35.Moreover, it was open to the RRT to conclude that, in view of all the evidence in the case, no reliance should be placed on the witness statement. The corroborative evidence was not corroborative evidence at all. It did not tend to prove that the first respondent’s evidence was true, nor does it act to strengthen that evidence. Corroborative evidence should be evidence independent of the person whose evidence is sought to be corroborated. It was evidence presented to the RRT by a person whom the RRT was of the opinion was fabricating her claims. The provenance of the witness statement was not established. It could easily have been created by the first respondent herself. It did not amount to corroborative evidence in the absence of proof of the provenance of the document and the reliability of the author, if in fact the author was Lu. If the first respondent was fabricating her claims, it would follow that she would fabricate the evidence upon which those claims are brought. That evidence would include the “corroborative” evidence of Lu.
Finally, at paragraph [36], North and Lander JJ stated
36.The applicant, whom the RRT believed was not a credible witness, proffered it as Lu’s statement, but there was no other evidence other than the applicant’s say so that it was. There is nothing irrational about the RRT in those circumstances rejecting the document by giving it no weight. In circumstances where the provenance of the document is unproved, but it is proffered by a witness whose credibility has been destroyed, the document has no more credit than the person proffering it.
The Applicant submitted SZNSP was a limited assistance because the Tribunal did not make a finding of fraud (which is what occurred in this case). There is no rule of general application, however, that whenever the Tribunal finds a document to be a fraud, procedural fairness requires the matter to be raised with an Applicant. SZNSP is important for at least two reasons. First, it provides guidance as to when evidence said to be corroborative ought to be properly regarded as corroborative. Second, it dispels to some extent the notion that the Tribunal ‘places the cart before the horse’ when it assesses credibility first, and then uses that assessment to decide what weight should be given to a document. These matters are instructive in a case such as the present.
In Minister for Immigration and Citizenship v SZMOK and others (2009) 247 FCR 404 (“SZMOK”), the Tribunal after referring to the Applicant’s claims said it was not satisfied that the applicant provided a truthful account of his circumstances and was not satisfied as to the applicant’s general credibility. During the course of the hearing before the Tribunal, the applicant claimed there was a false case pending against him in Bangladesh. The Tribunal permitted the applicant to submit documents in respect of this new claim after the hearing. The Tribunal considered these documents but in view of its finding that the Applicant lacked credibility, the Tribunal was not satisfied that the documents were genuine.
At [61], the Full Court (Emmett, Kenny and Jacobson JJ) stated:
61.Nevertheless, fairness may require that, before a finding of forgery is made, the person accused of forgery be given the opportunity of answering the accusation. A finding of forgery, like a finding of fraud, is not one that should be lightly made. Both involve serious allegations. A finding that documents are forgeries could turn upon the credit of an applicant insofar as the finding is that the documents have been concocted by that applicant to advance his case
Then at [64], the Court stated:
64.There may well be cases where the Tribunal’s questions during a hearing sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. Such an indication may be given in many ways. It is not necessary for the Tribunal to put to an applicant, in so many words, that the applicant is lying or that the applicant may not be accepted as a witness of truth or that the applicant may be thought to be embellishing the account that is given of certain events. The Tribunal is not to adopt the position of a contradictor.
The Full Court continued at [68]:
68.… there is no general rule that the Tribunal cannot make a finding that a document is not genuine without specifically referring to its concerns about the document. The circumstances may be such that the Tribunal had sufficiently alerted an applicant to the doubts it had about the genuineness of all documents that the applicant had submitted. While a finding of forgery should not be lightly made, the circumstances of a particular case may be such that it would be unnecessary to afford a person affected by such a conclusion the opportunity of dealing with it.
Finally, the Full Court at [73] stated:
73.The Tribunal made it abundantly clear to the Applicant that it did not believe the very late claim that he was then making. The Tribunal was at first reluctant to give the Applicant time to provide further material, because it was of the view that the Applicant had made up the claim as he went along. It must have been abundantly clear to the Applicant that, even if some documents were provided, the Tribunal may not accept them.
It is pertinent to observe that the Full Court in Ly at paragraph [51] (which reviewed all the relevant authorities) also considered the decision in SZMOK and after citing from paragraph [68] of SZMOK, stated:
51.We do not regard what the Full Court there said as inconsistent with what French J said in WAJR. The Full Court was saying that there was no general rule but that it was necessary to look at the circumstances of each case. With respect, we agree. What is procedurally fair or unfair in relation to a finding that a document is not genuine depends on the procedures adopted, including whether the Tribunal had sufficiently alerted an applicant to doubts it had about the genuineness of documents submitted by him or her. Similarly, it is not always a jurisdictional error for the Tribunal to reject corroborative evidence, including of a documentary kind, on the basis of its views of an applicant’s credit.
The Applicant sought to distinguish the decision in SZMOK on the basis that in SZMOK, the Applicant was aware that the Tribunal did not believe his claim. While I understand that submission, in my view, in the circumstances of this case, it is for reasons which I will come to, largely a distinction without a difference. In SZMOK as in this case, the Tribunal expressed firm views about the Applicant’s credibility. In both cases, documents were submitted after the hearing and disregarded. I regard SZMOK as instructive.
I return then to the facts of the present matter. In this matter, the Applicant accepts that his credibility was an issue. He challenges, however, the manner in which the Tribunal dealt with the support letters which he says were critical to his case. He places much emphasis on the fact he was effectively not given notice of the Tribunal’s concerns about the support letters and that he was not given an opportunity to address the concerns about the support letters. These submissions need to be weighed not only by reference to the authorities that the Applicant has referred to, but also to the particular circumstances of this case, which I now turn to.
An important observation to be made about the circumstances of this case is that the inconsistencies in the Applicant’s evidence and the apparent untruths that emerged in his accounts were significant. This was not a case where the Tribunal merely described evidence given by the Applicant as vague and lacking in detail, or where the inconsistences in the evidence were minor. The Tribunal’s concerns extended well beyond that to the extent they made a finding the Applicant had ‘concocted’ claims: at [77]. What follows is intended to provide some illustration of the evidence and conduct of the Applicant that the Tribunal observed.
The first matter of note is that the Applicant had already made an application for a protection visa in 1997. That application had been refused. Not only that, a subsequent request for ministerial intervention was refused. These, self-evidently, are matters that would have been known to the Applicant when he made the current application for the visa.
The Applicant did not disclose, and arguably sought to conceal, the fact he made the 1997 Application. As part of the present visa Application, the delegate asked the Applicant whether he applied for protection in 1997. The Applicant initially denied that this was the case. He was then told that the Department held records of his 1997 Application (Delegates decision, Court Book 555). Only then did he change his evidence and say that he had applied for protection (Tribunal at [29]).
The Applicant sought to explain his change of evidence noted above by saying he had not had assistance from anyone when he lodged the 1997 application. However, Department record showed that he had been assisted by a migration agent (Tribunal at [29]).
In the 1997 Application, the Applicant claimed consistently he had been involved in an anti-government student group while at university and that he had returned home from a meeting or protest in 1996 to find his parents and two siblings killed (Tribunal at [22]). In contrast, as part of the present application, he claimed he had been imprisoned for seven months because of his political activities and that his father was captured and tortured to death after he left the country (Tribunal at [24]). In subsequent correspondence to the Tribunal after he attended the hearing, the Applicant then claimed he was told of the murder of his parents after he was released from prison and he believed this was the case until he learned otherwise (Tribunal at [67]).
In the 1997 Application, the Applicant claimed he fled Burkina Faso (Tribunal at [22]). In the present application, he stated he was told to leave Burkina Faso (Tribunal at [24]).
The delegate drew the Applicant’s attention to the fact he had unsuccessfully sought ministerial intervention in 2000 based substantially on claims that his parents and siblings had been killed before he left Burkina Faso, and that he was married with children prior to leaving Burkina Faso. The Applicant said the information in his 2000 Ministerial Intervention Application was not correct and that the people referred to as his wife and children in his first Application were in fact his siblings (Tribunal at [30]). He subsequently told the Tribunal after the Tribunal Hearing that the statements regarding his wife and children in Burkina Faso were false and the signature on the application is not his (Tribunal at [68]).
At paragraph [32], the Tribunal recorded the delegate’s view of the inconsistencies that had emerged as follows:
32.The delegate accepted that the applicant may have had some involvement in political activities in Burkina Faso but found most of his claims lacked credibility. In reaching this conclusion he noted that the claims made by the applicant in 1997 were markedly different from those made in 2019 and found his explanation for these discrepancies implausible as he had repeated these claims in written and oral submissions to the Department and the Tribunal. He also noted that the applicant had initially denied lodging an application in 1997 and when confronted with the evidence that this was not true, falsely claimed that he had not been represented when he lodged that application. He also noted that the applicant had made no mention of fearing that he would be killed because of his past political involvement when responding to a question about any problems he might face if he returned to Burkina Faso in his application for revocation of the cancellation of his partner visa in 2017 or during a hearing of a differently constituted Tribunal in relation to the application.
At paragraph [40], the Tribunal expressly advised the Applicant that it had ‘significant difficulty accepting his claims regarding his involvement in politics in Burkina Faso in the 1990s because he had given inconsistent accounts of events which occurred prior to his departure from his homeland and because his claims appear to be at odds with evidence regarding the situation in Burkina Faso at the time he claims to have been detained’.
At paragraph [41], the Tribunal raised the various issues and inconsistencies with the Applicant which I have referred to above and observed ‘that these inconsistencies appear to indicate that he was not a credible witness and invited him to comment’.
At paragraph [42], the Tribunal recorded that the Applicant:
42.did not deny that he had made the claim set out in his 1997 Application. He said one reason for this was that he had not been aware that he was suffering from PTSD at the time he lodged that application. He said that he now wanted to provide an accurate account of what happened.
At paragraph [46], the Applicant was asked about his claim in 1997 that he was married with children prior to leaving Burkina Faso. He again referred to his PTSD and also stated that in 1997, ‘his English had been poor and he was speaking in broken French so there might have been some problems with translation’. The Tribunal noted, however, at paragraph [64] that the report of Dr Kochar subsequently received by the Tribunal recorded that the Applicant had told Dr Kochar he had left his wife and children in Burkina Faso, and that Dr Kochar had recorded that the Applicant spoke English at the time (1999). Furthermore, the Tribunal reviewed the 1997 Application and noted it was prepared with the assistance of the North Melbourne Legal Centre and a French interpreter.
I have set out the information above at some length to illustrate the circumstances of this case. The inconsistencies in the Applicant’s evidence were not minor. They were significant. They disclosed how the Applicant repeatedly failed to be frank, honest or candid, including during the course of prosecuting the present application for the visa. The Applicant’s concession in this case that he knew his credibility was in issue does not do justice or adequately explain the real position having regard to the circumstances. The real position which was open to the Tribunal to take, and which it found was that set out at paragraph [77] of the Tribunal’s reasons - the Applicant had not merely been inconsistent, he had ‘concocted’ claims. The truth of the Applicant’s claims were squarely in issue.
It is also important to bear in mind that in this case, the Tribunal formed its view that the Applicant was not truthful or credible, and had concocted his claims, on a number of bases. There were the various, significant, inconsistencies in the Applicant’s evidence to which I have already referred. There is the fact that he had repeated those false claims to others in counselling sessions (at [74]). There is the fact that none of the other available evidence suggested that student activists who participated in demonstrations in the 1990s were being killed, abducted, detained or forced to flee (at [76]).
It is in the context I have described above that the Applicant’s submission about lack of procedural fairness in respect of the Tribunal’s treatment of the support letters needs to be assessed. It is to be remembered that the support letters were tendered by the Applicant in an effort to assuage the real concerns that the Tribunal had about whether the Applicant was being truthful.
The Applicant sought to draw parallels between his case and the cases I have referred to earlier. The circumstances of the present matter are, in my view, very different. In this matter, the Applicant had already made a protection visa application once before. He did not disclose it when he made the present application. He only admitted to the 1997 Application when confronted with evidence of it. He sought to attribute responsibility for the differences between the 1997 Application and his present application to a lack of representation, his lack of command of English and PTSD. Yet each of these explanations (considered by the Tribunal) were also shown to be untrue or based on false assumptions. He had enjoyed representation in 1997, he had had access to an interpreter, and the medical evidence on which he sought to rely and which he proffered to the Tribunal was based on information he provided to medical practitioners which he now admits was false. All of these issues in relation to the Applicant’s truthfulness and credibility were present, before one even comes to the veracity of the claims the Applicant made to support his claim for protection. None of the authorities that the Applicant points to and relies on resemble the factual situation I have described above.
The Applicant says that the support letters were ‘critical’ and ‘corroborative’ of his accounts. I am not persuaded, given the circumstances of this case which I have outlined at some length, that the support letters, given their content, who they were from, and who produced them, were ‘critical’. Moreover, I am not persuaded that the support letters could truly be said to be ‘corroborative’ of the Applicant’s account of events. The support letters were not corroborative in the sense of them being evidence independent of the person whose evidence was sought to be corroborated. They were letters from the Applicant’s brother and Applicant’s friend - persons who might be expected to support what the Applicant said. The support letters were not sworn statements. Further, the support letters were sourced by the person whose credibility was seriously and repeatedly in question and produced to the Tribunal by the person whose credibility was seriously and repeatedly in question. The support letters were in truth simply the Applicant asserting by another means matters that he was already on notice that the Tribunal doubted were true. Moreover, the support letters did nothing to address the other bases upon which the Tribunal concluded he was not credible or truthful, for example, the country information at [76] or the Applicants conduct and explanations relating to the 1997 Application.
The Applicant placed much emphasis on the decision in Ly. The facts in Ly are not similar to the facts before me. In the circumstances of this case, there was nothing surprising about the Tribunal’s reasoning concerning the genuineness of any support letter produced ‘by the applicant’. It was ‘abundantly clear’ to the Applicant the issues that he faced yet he sourced and produced unsworn documents which were in truth not corroborative. Further, in Ly the dispositive issue was whether the receipts were not genuine because they were in the same writing and this was not an obvious issue. That is not the case in this proceeding. The issues with the Applicant’s credibility and truthfulness, given what occurred, was obvious.
It can be appreciated that the issue before me is one that is difficult to resolve. Ultimately, however, I have come to the view that this is one of those rare cases where, given what occurred, the Tribunal was not required to raise with the Applicant the concerns it had about the support letters. This matter falls to be resolved along the lines set out in SZNSP. The Applicant was clearly on notice of the Tribunal’s concerns about his credibility and that the truth of his claims was in issue. The document he produced in support of his claims was a document which he sourced and was not one that was truly corroborative. While the Tribunal at [80] gave no weight to the support letters, it did so in circumstances where it had already closely examined the inconsistencies in the Applicant’s evidence (at [41]-[58]), it had recorded that the inconsistencies had not been sufficiently explained (at [72]-[75]), it had noted that none of the available evidence suggested that student activists were being killed abducted or detained (at [76]) and where it did not accept that the Applicant was a political activist, that he fled his homeland in 1996, and where it found he had ‘concocted’ his claims to support his application for protection and residency in Australia: at [77].
Ground 1 of the Grounds of Review must therefore be dismissed.
Ground 3
It is convenient next to deal with Ground 3 of the Grounds of Review given that it is also based on the Tribunal’s treatment or response to the support letters.
The third ground of review in the Application is as follows:
The Tribunal constructively failed to exercise its review jurisdiction by failing to make obvious inquiries about critical facts.
Particulars
a)The Applicant refers to and repeats paragraphs (b) and (c) to the particulars of paragraph 1.
b)The Tribunal possessed discretionary powers when conducting the review. It was subject to an implied condition of reasonableness when discharging its review function.
c)The genuineness of each of the Support Letters were critical facts. They corroborated the Applicant’s claims in circumstances where the Tribunal had expressed concerns about the credibility of his evidence.
d)The genuineness of the Support Letters was easily ascertainable as contact details were recorded on them. Obvious inquiries that could have been made included for the Tribunal to ascertain the genuineness of the documents.
e)The Tribunal did not make any attempts to confirm the genuineness of the Support Letters.
f)For those reasons, it failed to make obvious inquiries to confirm the genuineness of the Support Letters.
The substance of this ground of review is that the Applicant claims the Tribunal ought to have made enquiries to determine the authenticity of the support letters, and that it was unreasonable for the Tribunal not to have done so in the circumstances. Those circumstances included that each of the support letters was signed, and contained a contact telephone number and an email address for the writer, and that the Tribunal ultimately went on to find that the support letters were false.
The test for legal unreasonableness is ‘necessarily stringent’ (Minister for Immigration and Border Protection v SZVFW [2018] 264 CLR 541 at [11] (Kiefel CJ)) and the required threshold is ‘high’ (Minister for Home Affairs v DUA16 (2020) 95 ALJR 54 at [26] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ)). The Applicant accepted in advancing this ground that the Tribunal is not subject to a general duty to enquire, however says this is one of those rare and exceptional cases where a failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, can supply a sufficient link to the outcome to constitute a failure to review.
In support of his submission, the Applicant pointed to the decision of AYT18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 597 (“AYT18”). In that matter, the IAA found that the applicant had fabricated his claim and expressed ‘significant concerns’ about a document the applicant produced to strengthen his claim. Moshinsky J concluded that it was unreasonable for the IAA not to seek a response or explanation from the applicant in circumstances where the applicant was not on notice that there was an issue as to whether the document was false.
The following matters need to be considered and weighed given the submissions advanced by the Applicant.
First, for reasons which I have adverted to earlier under ground one, the genuineness of the support letters was not critical to the Applicant’s case. As I have noted earlier, the Tribunal had already formed its view as to the credit of the Applicant and had made a finding based on other material and evidence that the Applicant had ‘concocted’ his claims. In SZQPY v Minister for Immigration and Border Protection [2018] FCA 359 (“SZQPY”), Colvin J considered, inter alia, a submission that the Tribunal should have made its own enquiries of the authors of two letters put forward by the applicant in that matter to support his case. The Tribunal had found the two letters were not genuine and were submitted to the Tribunal to support a false account put forward by the applicant. At paragraph [117], in dismissing the ground of review, Colvin J stated:
117.The authorities recognise an exceptional case where the Tribunal may have an obligation to make an obvious inquiry with respect to a critical fact the existence of which is readily ascertained: Minister for Immigration and Citizenship v SZIAI at [25] and SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [49]. However, this was not a case where there was a need for an obvious inquiry to be made as to a critical matter that had not been addressed. The appellant had provided the information by way of letter. It was then a matter for the Tribunal to form a view as to the reliability of the contents of the letter. It formed an adverse view consequent upon the conclusion it had already reached about the credibility of the appellant’s account.
Second, it is not apparent that the Tribunal could have easily formed a better appreciation of the genuineness of the letters, or their probative value, by making a further inquiry.
In Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 (“SZIAI”), the applicant for a visa claimed to be a member of a particular faith. He supplied the Tribunal with copies of certificates signed by persons purportedly associated with the organisation connected with the faith in Bangladesh. The certificates included the telephone numbers of those persons. The Tribunal made an enquiry with an association in Australia connected with the faith about the veracity of the certificates. That association made its own enquiries and subsequently told the Tribunal that the applicant for the visa was not a member of the organisation and the certificates were fake. The Tribunal invited the applicant for the visa to comment on the letter from Bangladesh before affirming the decision to refuse a protection visa. The visa applicant applied for judicial review and argued that the Tribunal should have made further enquiries using the telephone numbers on the certificates. A Federal Magistrate dismissed the initial judicial review application. The Federal Court allowed the visa applicant’s appeal.
In the High Court, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ allowed the Minister’s appeal in part. Relevantly, at [26], their Honours stated:
26.…there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves
The Applicant sought to distinguish SZIAI on the basis that the Tribunal in that matter had made enquiries with the faith association in connection with the claims in the letters, whereas no inquiry had been made about the support letters. I accept that fact, but in my view it does not provide a complete answer to the issue in the circumstances of the case. The observations of the High Court as to the usefulness of any further inquiries about the certificates apply equally to this case. I observe that the reasoning of the High Court has been picked up in other cases and applied: see SZSFM v Minister for Immigration and Border Protection [2014] FCA 860 (Siopis J) at [27]-[28].
In this case, had the Tribunal contacted the authors of the support letters and those authors had admitted to the support letters containing false statements, the decision of the Tribunal would have been strengthened. Alternatively, if the authors of the letters had said the contents were true, it would not have added anything to the statements contained within the support letters and in any event would not have altered the outcome given that the Tribunal had already reached a conclusion (in the circumstances of the case) that the Applicant had ‘concocted’ his claims – see my earlier reasoning.
When all of these matters are considered, I am of the view that this ground of review should be dismissed.
Ground 2
Turning then to Ground 2 of the Grounds of review. The second ground of review in the Application is:
The Tribunal fell into jurisdictional error in finding that the Applicant was not a truthful or credible witness, where that finding was based on irrational or illogical reasoning, or where it was made without any logical or probative basis.
Particulars
a)The Tribunal found that there were ‘significant differences’ between the Applicant’s claims initially made in support of his application lodged in October 1997 (including in his subsequent application for review) (‘1997 Application’) and in his claims made in support of the application subject of the Purported Decision (at [72]-[78]).
b)The Applicant’s explanation for the inconsistencies between his accounts included the effects of his mental health at the time of the 1997 Application and his poor command of English.
c)Medical evidence relied on by the Applicant established that, at around the time of the 1997 Application:
(i)the Applicant was presenting ‘with a number of stress related psychiatric symptoms’;
(ii) the Applicant ‘appear[ed] to have trauma related memory problems’;
(iii)those memory problems made it ‘difficult for [the Applicant] to give a consistent, chronological account of his persecution…’; and
(iv)the Applicant had suffered, and was suffering from, ‘severe’ post-traumatic stress disorder (‘PTSD’).
d)The Applicant also relied on the Support Letters. The Applicant refers to and repeats paragraph (c) to the particulars at ground 1 above.
e)The Tribunal:
(i)misconstrued the effect of the medical evidence relied on by the Applicant;
(ii)erred in finding that the Applicant’s earlier mental health ‘problems’ would not have led to the ‘significant differences’ in his claims (c.f. [72]-[74]); and
(iii)erred in finding there was no verifiable evidence to establish the identity of the authors of the Support Letters or their relationship to the Applicant (c.f. [80]).
f)Those erroneous findings led to an adverse credibility finding against the Applicant.
g)They adverse credibility finding infected the remaining findings in the Purported Decision.
There was not any dispute between the parties as to the principles to be applied in respect of this ground. A decision based on illogical or irrational reasoning or findings may be legally unreasonable. An irrational or illogical path of reasoning that an applicant was not credible may lead to a finding of jurisdictional error.
Under this ground of review, the Applicant takes issue with aspects of the reasoning of the Tribunal at paragraphs [72] – [80]. The Applicant accepts that the Tribunal was entitled to rely upon inconsistencies between the accounts he gave in 1997 and the accounts he gave in support of the present visa application in reaching its conclusion. The Applicant, however, contended that the approach adopted by the Tribunal was not fair, logical or reasonable. The Applicant says that the Tribunal made its decision principally because it found he was not a credible witness. He claims that the differences or inconsistencies in his accounts arose because he was suffering from PTSD in 1997 and also, his English language skills were poor at that time. Notwithstanding those explanations, and notwithstanding that he produced medical reports to support his diagnosis of PTSD, the Applicant complains that the Tribunal did not accept his medical problems would have caused him to complain repeatedly over the years that most of his family had been murdered in 1996, and that it reached this view without any medical evidence to support such a view. He further submits his explanation in relation to his difficulties with English was not accepted. He takes further issue with the statement of the Tribunal that the support letters were provided without verifiable evidence. The Applicant submits that the findings were not open to the Tribunal and that the decision of the Tribunal in respect of these matters was, among other things, illogical or irrational.
In support of these submissions, the Applicant relied on CBN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and others [2019] FCA 2190 at [59], [78] – [81] (“CBN18”). I have considered the comments of Stewart J. I note that Stewart J was concerned with a situation very different from this matter. In the CBN18, the issues arose from what the applicant in that matter had said at his entry interview shortly after his arrival. That is a far cry from the present matter. Here the inconsistencies arose out of an earlier protection visa application that the Applicant undertook both with legal assistance and the assistance of an interpreter and in circumstances where the Applicant (as I will come to below) provided false information to the medical practitioners who provided opinions.
Consideration of this ground must begin with an examination of the three medical reports. The reports are contained in the Court Book (Dr Kochar at Court Book 685, Mr Sexton at Court Book 690 and Dr Ahmet at Court Book 719).
Dr Ahmet’s report is dated 6 December 1998. He reported that the Applicant demonstrated symptoms of both major depression and post-traumatic stress disorder. He stated that the Applicant reported experiencing disturbances in long-term and short-term memory. Of some significance, Dr Ahmet notes that the Applicant presented with a number of stress related psychiatric symptoms which ‘appear to be clearly related to his immediately preceding social history’. That ‘immediately preceding social history’ is recorded in the report and includes ‘the murder of his father, mother and two brothers’, a matter that the Applicant now acknowledges to be false.
Mr Sexton’s report is dated 4 August 1999. He records that the Applicant appears to have trauma related memory problems which make it difficult for him to give a consistent, chronological account of his persecution, trauma and subsequent flight. He also recorded that the Applicant appeared oblivious to the fact that his accounts were lacking in clarity and completeness. Of some significance, Mr Sexton noted that the Applicant ‘experienced strong aversive stress reactions when discussing the murder of family members’.
Dr Kochar’s report is dated 25 March 1999. Dr Kochar reported that the Applicant felt a ‘marked sense of loss, felt confused, numbness and sense of going mad and crazy all related to the loss of his family members’. He further records that the Applicant saw ‘all his family members being killed’. In terms of diagnosis, Dr Kochar stated that ‘from the history and information given above and from the other relevant material made available to me I am of the opinion that [the Applicant] suffers from Severe Post-Traumatic Stress Disorder and he is still haunted by the “flashback and memories and images of his family massacre”. He has difficulties sleeping, he is agitated and feels a sense of loss, despair and he periodically gets “agitated and paranoid”’.
The following observations may be made about these reports. First, the diagnosis of each of these medical practitioners (including any diagnosis of PTSD) is based on critical and false information provided by the Applicant concerning the murder of his family members. Any opinion provided by these medical practitioners was therefore infected (in my view seriously so) with false information given to them by the Applicant. Second, none of these medical practitioners stated or provided any opinion to the effect that any PTSD the Applicant may be suffering from causes him to have false memories about the murder of his family members.
In this context, it is then necessary to return to the reasoning of the Tribunal. Relevant to this ground of review, at paragraphs [73] and [74], the Tribunal stated:
73. … At the hearing [the applicant] agreed that he had provided a different account of events in his 1997 application and said that the difference occurred because he was suffering from PTSD, had difficulty with dates and numbers, did not speak English well and only spoke broken French. In post hearing submissions he claimed for the first time that he had believed his family had been killed before he left Burkina Faso because this is what he was told at the time, but he later learned this was not true.
74. I do not accept any of these explanations. Not only did the applicant states that his parents and siblings were killed in his 1997 protection visa application, he repeated this claim during counselling sessions with Mr Sexton, Dr Ahmet and Dr Kochar. It is clear from the extract from his 1997 application which was provided on 4 September 2020 that he had legal assistance when preparing his application and Dr Kochar’s report indicates that he spoke English. And while having difficulty remembering dates and confusion regarding numbers and suffering from PTSD could cause an applicant to forget some claims or provide a confused account of events, I do not accept that any of these problems would have caused the applicant to claim repeatedly over several years that most of his family had been murdered in about 1996 if this had not occurred. Finally, if the applicant had believed that his family had been murdered when he first arrived in Australia but later learned that this was not true, I believe he would have mentioned this in his initial statement, during his discussions with the delegate or at the very least at the hearing. He failed to do so and I find this explanation was concocted late in proceedings in an attempt to overcome problems with his claims. [emphasis added]
The reasons of the Tribunal set out above are nuanced and bear close scrutiny. The Tribunal remained open to the possibility that the Applicant suffered from PTSD. It accepted ‘having difficulty remembering dates and confusion regarding numbers and suffering from PTSD could cause an applicant to forget some claims or provide a confused account of events’. The Tribunal did not accept, however, that PTSD could cause the Applicant to claim repeatedly ‘over several years that most of his family had been murdered in about 1996 if this had not occurred’: at [74]. That is a finding that was open to the Tribunal in the circumstances. As I have noted, there is simply no evidence (based on false information provided by the Applicant or otherwise) that any condition that the Applicant may have suffered from would cause him to give a false account of the murder of his family members. Further, the medical evidence and opinions the Applicant points to and relies on was seriously infected with false information that he provided to the health practitioners.
There are two other matters that the Applicant points to as part of this ground. First, the Applicant offered as an explanation for the inconsistencies in his accounts that he did not speak English well. I observe that Dr Kochar noted in his report that the Applicant spoke English. The Tribunal recorded in its reasons that the Applicant had had access to legal assistance. I also note what I stated previously – the Applicant had the assistance of an interpreter in 1997. It was therefore open and not illogical, in my view, for the Tribunal to reject as an explanation for the inconsistencies in the Applicant’s evidence that his English was poor.
Second, I understood the Applicant to submit that the Tribunal positively found that the inconsistencies in his account were not explainable by his PTSD. I reject that characterisation of the reasoning of the Tribunal. Rather, the Tribunal was simply not satisfied about a matter based on the material that was before it.
When all of these matters are considered, I am of the view that the reasoning of the Tribunal was not illogical or irrational. The findings of the Tribunal were open to it.
The Applicant also made a further submission under this ground of review. It relates to the adverse credibility findings made about him by the Tribunal. He submits the Tribunal erred when it stated that the support letters were provided without ‘verifiable evidence’ regarding the identity of the authors. The Applicant says that conclusion is not sustainable given the clear presence of contact details on each of the support letters. He says that the Tribunal’s findings about his credibility based on this statement are illogical or irrational.
This last issue may be simply disposed of. The provision of phone numbers and email addresses in the support letters does not of itself verify who the authors are or the nature of the relationship they have with the Applicant. More would be required to verify identity, for example, a birth certificate, passport, drivers licence or other identity document. None were provided. The provision of contact details does no more than potentially put the Tribunal on a process of inquiry.
When all of the above matters are considered, this ground of review must fail. The Tribunal did not act or reason illogically or irrationally either in relation to its treatment of the medical reports, its consideration of the Applicant’s explanation for the inconsistencies in his evidence, or in relation to its treatment of the support letters.
DISPOSITION
In light of everything I have set out above, the Application must be dismissed. The Applicant has been entirely unsuccessful. The Minister seeks costs in the amount of $7,467. In my view, is appropriate to make the costs order.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 19 November 2021
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