EIT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 1353
•9 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EIT19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 1353
File number(s): SYG 2853 of 2019 Judgment of: JUDGE MCCABE Date of judgment: 9 December 2024 Catchwords: MIGRATION – application for judicial review – protection visa – review of a decision of the Administrative Appeals Tribunal – where the Tribunal made adverse credibility findings – whether the Tribunal’s findings were legally unreasonable – application dismissed Legislation: Migration Act 1958 (Cth) ss 36, 424, 430
Migration Regulations 1994 (Cth)
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204
Sullivan v Civil Aviation Safety Authority Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816
W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of hearing: 20 November 2024 Counsel for the Applicant: Mr J R Young Solicitor for the Applicant: Shamser Singh Thapa (Shamser Thapa & Associates) Solicitor for the first respondent: Ms G Gutmann (Minter Ellison) Second respondent: Submitting appearance, save as to costs ORDERS
SYG 2853 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EIT19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MCCABE
DATE OF ORDER:
9 DECEMBER 2024
THE COURT ORDERS THAT:
1.The application for judicial review is dismissed.
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 MCCABE:
Ms EIT19 applied for a Protection (Class XA) (subclass 866) visa (protection visa) on 24 June 2015. A delegate (delegate) of the first respondent (minister) rejected her application, so Ms EIT19 sought review in the Administrative Appeals Tribunal (Tribunal). The Tribunal was unimpressed with her story and made adverse credibility findings against her. The adverse credibility findings were central to the Tribunal’s decision to affirm the delegate’s refusal of a protection visa. The applicant said those credibility findings are based on a factual finding that was wrong, and on findings in relation to several other matters that were not sufficiently serious to justify the Tribunal’s conclusion that she had actively fabricated her story. The applicant said the credit findings were unreasonable, and the Tribunal’s decision is therefore affected by material jurisdictional error.
BACKGROUND
Ms EIT19 is a citizen of Nepal. She lived there before entering Australia on a visitors’ visa in April 2015. Her statement in support of her application for a protection visa (translation reproduced in exhibit one (the court book) at pp 63-64) explained:
·she and her husband had refused to make donations to Maoists from their successful retail business;
·the Maoists threatened the couple with violence;
·the police said they could not protect the couple;
·the business was forced to close;
·Ms EIT19's husband was subsequently abducted – by the Maoists, she assumes – and has not been heard from since;
·Ms EIT19 left her son with relatives and came to Australia in light of the threats;
·her house in Nepal was later damaged in an earthquake and the family left behind (including her son) were living in pitiable circumstances; and
·Ms EIT19 said she fears being targeted by the Maoists if she returns to Nepal.
It is common ground that the applicant did not mention any of this in her application for a visitors’ visa. Indeed, the delegate noted the applicant did not mention in the earlier application that she was married.
The delegate invited the applicant to an interview where she was questioned about aspects of her claim for a protection visa. Amongst other things, the delegate asked the applicant why she did not declare in her visitor visa application that she was married. In the decision record (reproduced at pp 77ff) the delegate does not detail the response provided to that question. When recording his findings of fact, the delegate simply notes (at p 85 of the court book):
The applicant did not provide any satisfactory response despite the opportunity to do so.
The delegate went on to conclude he was not satisfied the applicant was married, or that her husband had been abducted, or that she was at any risk of harm if she returned to Nepal. In those circumstances, the delegate was satisfied Ms EIT19 did not have a well-founded fear of persecution, nor did she face a real risk of suffering significant harm. That meant she could not satisfy the criteria in s 36(2) of the Migration Act 1958 (Cth) (Act) for a protection visa.
I acknowledge the delegate’s decision is not the subject of these proceedings. I have nonetheless set out some of the details of the delegate’s findings because the Tribunal was said to have misunderstood and misdescribed those findings on review.
The delegate’s decision was made on 12 May 2016. The applicant applied for review in the Tribunal. On 22 January 2019, the Tribunal wrote to the applicant to ask her to provide any additional relevant evidence in anticipation that a hearing may be listed. On 19 August 2019, the Tribunal issued an invitation to attend a hearing. The invitation (reproduced in the court book at pp 106ff) noted (court book at p 108):
We have considered the material before us but we are unable to make a favourable decision on this information alone.
It appears from the Tribunal's reasons for decision (reproduced in the court book at pp 135ff) that “the material before us” included the contents of the minister’s department’s file and a recording of the interview that the delegate conducted with the applicant: see reasons for decision reproduced at p 138.
At the hearing, the Tribunal questioned the applicant about aspects of her claim. There is no transcript of that hearing before me. Following the hearing, the Tribunal decided to affirm the delegate’s decision on 11 October 2019.
THE TRIBUNAL’S DECISION
At the beginning of its reasons for decision, the Tribunal correctly explained the criteria for a protection visa in s 36(2) of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The Tribunal then summarised Ms EIT19’s claims contained in the written protection visa application (at [13]-[29] of the reasons). It noted (at [28]) a recent submission provided by the applicant’s migration agent which confirmed what had been said previously and which purported to offer some up-to-date commentary on the situation in Nepal. The Tribunal then moved to evaluate those claims, referring as it went to the applicant’s oral responses to questions asked at the hearing. The Tribunal noted at the outset of this discussion that it concluded “the applicant is not a witness of truth” having regard to at least five anomalies in the applicant’s account. The Tribunal identified a series of perceived shortcomings or anomalies in the applicant’s evidence which led to the Tribunal’s adverse credibility finding (recorded at [43]). I will briefly summarise each of those five matters below.
Inconsistent evidence provided about the applicant’s living arrangements in Nepal
The Tribunal noted the applicant had nominated a long-term address in her written application but was concerned she had then claimed (at the delegate interview and at the Tribunal hearing) she had moved to another address out of fear of the Maoists. The Tribunal concluded (at [33]):
… In the Tribunal’s view, the failure to detail the change in where she was living in her written application (and specifically stating that she did not relocate to another place to live), and only claiming this at the delegate interview, raises a fundamental concern about the applicant's credibility. The applicant, who completed her written protection visa application with the assistance of a migration agent, and provided two submissions in the course of the protection visa process, never once claimed to have relocated to avoid this harm. In the Tribunal’s view, such detail would have been included if the claimed relocation was true ...
The Tribunal recorded raising its concerns in relation to this anomaly with the applicant at the hearing, but it was not satisfied with her response. It went on in the same paragraph to conclude the inconsistencies between the earlier written account and the oral account:
… suggests that the applicant had changed her evidence to provide a more persuasive narrative to address an obvious potential question about the applicant continuing to reside at the same premises since 1993 in her written protection visa application. In combination with the other concerns that the Tribunal has about the applicant’s credibility, the Tribunal finds that the applicant is not a witness of truth.
The applicant had not previously suggested the Maoists had attended the family home in the middle of the night
In her evidence at the Tribunal hearing, Ms EIT19 mentioned for the first time an incident in which intruders that she assumed to be Maoists had surrounded the family home in the middle of the night in an apparent attempt to gain entry. The Tribunal said it was troubled the applicant had not previously described this incident in the written application, nor had she mentioned it to the delegate. The Tribunal observed (at [35]) it:
… struggles to accept that the applicant would not have detailed an attendance on the family home in the middle of the night where presumably the Maoists were putting into action their threats …
The Tribunal put its concerns to the applicant pursuant to s 424AA of the Act. It was not persuaded by the response. It found (at [36]):
… the Tribunal’s assessment is that the applicant never previously raised the attendance at the family home because it did not occur. She fabricated this claim in an attempt to lend credibility to her claims of being threatened. In the Tribunal’s judgment, this significantly undermines her credibility as a witness.
The applicant provided inconsistent oral evidence about the number of times she made a report to the police
The Tribunal noted Ms EIT19 initially said she lodged a report with the police after the Maoists visited in the middle of the night. When asked whether that was the only occasion on which she had provided a report to the police, she confirmed that was so. But when the Tribunal subsequently asked Ms EIT19 whether she made a further police report when her husband went missing, she agreed she did. The Tribunal said the evidence of the second police report was inconsistent with the earlier evidence she had provided to the effect she only made a report to the police on one occasion. The Tribunal observed (at [38]):
… To the Tribunal’s way of thinking, it appeared that the applicant was not a witness of truth because her evidence was shifting to accommodate the Tribunal’s line of enquiry. It was a pretty simple question. Was this the only report you ever made to police? The applicant said that it was. Clearly, the applicant became attuned to the serious question that would have been raised by the applicant persisting that she had only made one report to the police, and did not report her husband as missing …
The Tribunal went on in the same paragraph to observe it raised this inconsistency with the applicant but concluded:
The applicant’s response to the Tribunal’s concern did not address the fact in issue and in the Tribunal’s view, the applicant did not do so because there was no reasonable explanation for this shift in her evidence, other than it was fabricated in the course of the hearing.
The applicant provided inconsistent evidence about her reasons for leaving her employment in Nepal
The Tribunal noted Ms EIT19 had said in her protection visa application forms that she lost her employment when she departed Nepal but subsequently told the Tribunal she had ceased working for that employer one or two months before she came to Australia. The Tribunal observed (at [39]):
In the Tribunal’s view, the applicant’s inability to provide consistent evidence about something as basic as her employment history, is troubling and suggests that the Tribunal should be guarded in accepting the applicant's evidence as being truthful.
The Tribunal recorded raising those concerns with the applicant and concluded in the same paragraph:
… the Tribunal finds the applicant's evidence about the end of her employment contradictory between her written and oral evidence, and suggestive that she is willing to change her evidence to provide a more believable narrative, with the obvious Tribunal enquiring being why she would continue to go to work (as suggested by her written protection visa application) if she was being threatened by Maoists …
That anomaly was said to provide a basis for finding (in the same paragraph):
The applicant is not a credible witness and is willing to fabricate and change evidence to provide a more credible narrative to support her claims.
The applicant’s failure to accurately describe her marital status
The Tribunal remarked (at [40]) on the fact the applicant did not mention she was married when she filled out the application for a visitors’ visa. The Tribunal noted the applicant had told the delegate she had not mentioned her husband because she did not have a husband at the time - which the Tribunal understood to mean the applicant did not mention her husband because he had 'disappeared' when he was kidnapped. The Tribunal thought that odd because “in the Tribunal's view, something as basic as declaring a marital status should not be a contentious issue”: at [41]. The Tribunal invited Ms EIT19 to respond but was dissatisfied with the response. It observed (at [42]):
…her marital status was a basic question and the fact that she provided inconsistent answers about her reason for doing so to the delegate and the Tribunal suggest that the applicant has a flexible approach to the truth. The Tribunal cannot understand why the applicant would not disclose that she had a husband in her visitor visa application. It was basic information. [Emphasis added]
The Tribunal went on in that paragraph to conclude:
In the Tribunal’s assessment, when considering the other concerns that the Tribunal has about the truthfulness of the applicant's answers, the Tribunal is satisfied that she did not do so [ie, she did not disclose the existence of her husband in the visitor visa application] because she in fact has no husband in Nepal and invented him as part of her protection visa application.
I have highlighted the factual finding made by the Tribunal at [42] of its reasons because Mr Young, counsel for the applicant, argued it misrepresents the findings of the delegate. As I have already noted, the delegate records asking Ms EIT19 about why she had not declared her marriage on the visitor visa application and recounts (at p 85 of the court book) “the applicant did not provide any satisfactory response despite the opportunity to do so.” The delegate did not otherwise explain what the applicant actually said in response to the questions. As we shall see, Mr Young argues the Tribunal did not have a proper basis for finding the answers provided to the delegate were inconsistent with those provided to the Tribunal because the answers to the delegate are not quoted in the Tribunal's reasons.
At the conclusion of its discussion of each of the anomalies it had identified, the Tribunal noted the anomaly in question, when considered in combination with the other anomalies it identified, caused the Tribunal to doubt the applicant's credit. By structuring the findings in this way, the Tribunal decision suggests each finding tended to reinforce the conclusion of each other finding to the effect that the applicant was not a witness of truth. The 'cumulative' effect of the findings on each matter was summarised at [43] when the Tribunal explained:
Taking all the above matters into account, the Tribunal is left in a position where it cannot be satisfied that the applicant is a credible witness. The inconsistent evidence as outlined above, together with the applicant's failure to raise the claim that the Maoists had attended her family home until the Tribunal hearing are significant matters in the Tribunal's judgment. These concerns go to the very heart of the applicant's protection claims: … The Tribunal is satisfied, when taking its concerns into account individually and cumulatively, that it can place no weight on the applicant's claims because the Tribunal is not satisfied that the applicant is a witness of truth.
Having made that damning credit finding, the Tribunal rejected the applicant's claims “in their entirety” (at [45]) and – on that basis – found it could not be satisfied the applicant met the criteria for a protection visa: at [46].
Some general observations about legal unreasonableness and jurisdictional error in credit findings
In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 (LPDT), the High Court expounded on the fluid concept of jurisdictional error. In that case, the plurality (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Beech-jones JJ) explained (at [2]) a jurisdictional error occurs when there is a “breach of an express or implied condition of a statutory conferral of decision-making authority” which causes the decision-making process to miscarry. A decision affected by a material jurisdictional error is deprived of legal effect.
The plurality in LPDT resisted setting out an exhaustive list of examples of jurisdictional error because “the categories of jurisdictional error are not closed”: at [3]. Having said that, common examples of jurisdictional errors made by decision-makers were said to include:
… misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe applicable requirement of procedural fairness. [Underlining added]
The concept of reasonableness has been discussed in cases like Minister for Immigration and Citizenship v Li [2013] HCA 18 (Li) and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS). In SZMDS, the discussion focused on illogicality and irrationality. Crennan and Bell JJ explained (at [135]):
… 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…
A credit finding might be legally unreasonable, and it might cause any decision that is based on an unreasonable credit finding to be judged to be unreasonable in turn. That potential was made clear by the Full Court in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 where Kenny, Kerr and Perry JJ observed (at [30]):
… adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis …
In making its assessment of the Tribunal’s process, the Court does not consider whether it agrees with the Tribunal's finding. While the finding must be legally reasonable, the Court will otherwise be deferential to the Tribunal’s assignment of weight to different pieces of evidence in the course of the fact-finding process: see Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, see also Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [197] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ.
As it performs its supervisory role, the Court must keep in mind the difficulty of the task confronting the Tribunal – a task the Tribunal (in migration cases, at least) must perform without the benefit of a contradictor. There are also features of the protection visa caseload which present special challenges. In protection visa cases, the outcome will often turn on the credibility of a witness with an interest in the outcome who recounts a largely uncorroborated story. The quality of that recollection varies. A witness’s recollection of events in another country might be affected by trauma, mental illness and other factors. Equally, the witness's self-interest and the essentially unverifiable nature of their claims might tempt them to exaggerate, dissemble or lie.
When dealing with such a thin evidential record, inconsistencies in a witness’s account over time may be an important indicator of reliability: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 (AVQ15) at [23] per Kenny, Griffiths and Mortimer JJ. But the Court in AVQ15 pointed out the decision-maker had to be careful in deciding what it made of any inconsistencies in a witness’s account. Experience shows even an honest and helpful witness may slip up when repeatedly recounting details of their own story. That is common where the memory in question relates to events which occurred some time ago, or where it relates to stressful events, or where there is good reason to believe the applicant's recollection may be distorted by trauma, mental illness, the effects of torture or domestic violence or alcohol abuse or other stressors: see, generally W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379 at [15] per Lee, Carr and Finkelstein JJ. The Tribunal must also remember a witness might exaggerate or embellish a true story. The Tribunal's job is to isolate the true story as best it can and evaluate that story with reference to the relevant criteria. The Tribunal is not excused from its responsibility for evaluating the claim simply because a witness fibs or fumbles on some of the details of their account.
Before dealing with the grounds of review, I should also refer to s 5AAA of the Act. Section 5AAA applies to cases where a non-citizen claims they are person who is owed protection obligations. Section 5AAA(2) confirms:
…it is the responsibility of the non - citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.
Having said that, there is ample authority for the proposition that the Tribunal “should give the benefit of the doubt to those who are generally credible, but unable to substantiate all their claims”: see, for example, SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 at [25] per Middleton J. That does not mean the Tribunal is entitled to decide in favour of the applicant in the absence of evidence - merely that it may accept the uncorroborated testimony of a witness who otherwise appears to be credible, and draw favourable inferences more readily.
THE GROUNDS OF REVIEW
The applicant’s amended grounds of review allege two instances of jurisdictional error. The first ground is directed to the Tribunal’s factual finding that the applicant ‘invented’ a husband as part of her protection visa application. This ground alleges the finding was legally unreasonable in the sense that expression is used by the High Court in Li. Mr Young argued at the hearing and in written submissions that the finding was unreasonable because it was made without a proper factual basis that was recorded in the Tribunal's reasons for decision. I will return to this ground in due course.
The second ground alleges the decision was legally unreasonable to the extent it was based on credit findings that were made with reference to relatively minor inconsistencies in the evidence. Mr Young says the Tribunal exaggerated the importance of some of these objectively minor matters to reach the (unjustified and unreasonable) conclusion that the applicant was fabricating her story. Mr Young argued a finding that the applicant was actively dishonest in her evidence could not be sustained on the basis of the particular shortcomings which the Tribunal discussed in its reasons.
I will address the second ground first since it admits of a clearer answer. An adverse credit finding may be legally unreasonable if the factual findings on which it is based do not point to that conclusion. That was recognised by the Full Court in AVQ15 where it was emphasised the nature and extent of any inconsistencies needed to be evaluated. Kenny, Griffiths and Mortimer JJ explained (at [28]):
… even where it is reasonably open to find that a person has given inconsistent evidence, the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it. This requires consideration of, for example, the significance of the inconsistency having regard to the person's case as a whole and whether the inconsistency is on a matter which is central to the person's case or is at its periphery and involves an objectively minor matter of fact. It also requires the decision maker to remain conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given. Consideration should also be given to whether there is an acceptable explanation for the person having given inconsistent evidence such that the fact of the inconsistency should attract little, if any, weight. How all these matters are weighed and evaluated in a particular case is a matter for the decision-maker, but a failure by the decision-maker to appreciate the particular nature of the task, or to perform it reasonably and fairly, may be the subject of judicial review.
Particular care is required where the Tribunal makes a finding that someone lied or was actively dishonest. Findings of actual dishonesty are a very serious matter that should only be made where the evidence points to that conclusion. That was made clear by the Full Court in Sullivan v Civil Aviation Safety Authority Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 (Sullivan) where Flick and Perry JJ observed (at [111]):
Some findings of fact, however, have been long-recognised as calling for considerable caution before being made and for care being exercised in respect to the evidence upon which the finding is made. Findings as to a party or a witness having engaged in fraud or having lied are but examples …
Flick and Perry JJ in Sullivan referred to the reasoning of Kirby P (as his Honour then was) and Clarke JA in O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204, a case which dealt with findings of dishonesty made against a solicitor by a disciplinary tribunal. Kirby P explained (at p 208):
… There is no doubt that a conclusion of deliberate lying to the Committee, at least in a matter material to its inquiry into the solicitor, would warrant a conclusion that the solicitor was guilty of professional misconduct. In a proper case, it could sustain an order removing his name from the Roll. The Committee, and this Court, must approach such a conclusion, having regard to the seriousness of its consequence. It must do so with great care. A high degree of satisfaction is required before the conclusion may finally be accepted. It is important to observe the distinction between preferring the evidence of another witness or doubting the evidence of the solicitor (on the one hand) and reaching the affirmative opinion that the solicitor has deliberately lied to the Committee (on the other). [Underlining added]
Clarke JA reached a similar conclusion about the need for evidence that justified an actual or affirmative finding of dishonesty in such cases. There is no reason to suppose a less exacting standard should be applied to fact-finding in cases where the applicant claims they are owed protection obligations.
The Full Court made clear in Sullivan that its observations about the need for a proper evidentiary foundation before making an adverse credit finding were not the product of the application of a rule of evidence or a principle of law, such as the so-called Briginshaw rule.[1] As the Full Court acknowledged in Sullivan, the rules of evidence do not bind the Tribunal, which is generally entitled to inform itself as it sees fit. But the Full Court nonetheless observed it was entitled to evaluate whether the Tribunal’s reasons “expose a proper and adequate factual basis upon which it made its findings” and “sufficiently expose a consciousness of the seriousness of the findings being made and sufficiently expose the basis upon which it proceeded…”: at [107] per Flick and Perry JJ.
[1] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
I have already explained the Tribunal in this case made an adverse credit finding against the applicant to the effect that she had fabricated evidence, and it concluded she was “not a witness of truth”. The Tribunal said it gave no weight to her claims as a consequence: at [45]. The credit finding was made having regard to the five ‘inconsistencies’ the Tribunal addressed at [33]-[42] of its reasons for decision. I acknowledge the Tribunal concluded each of the five inconsistencies individually caused it to doubt the applicant was a witness of truth. It observed (at [43]):
The Tribunal is satisfied, when taking its concerns into account individually and cumulatively, that it can place no weight on the applicant's claims because the Tribunal is not satisfied that the applicant is a witness of truth.
The applicant said some if not all the anomalies the Tribunal identified were objectively minor and that none of them individually justified the serious finding that was made, even if each of the anomalies raised questions about the quality of the applicant's evidence. While I accept there may be issues in establishing whether each factual finding provided a proper basis on its own for the adverse credit finding that was made, the reasons of the Tribunal must be read as a whole. Those reasons make clear the adverse credit finding is also based on a cumulative assessment of the various anomalies. Whether each anomaly would individually “expose a proper and adequate factual basis” for the adverse credit finding the Tribunal made, the pattern of anomalies the Tribunal identified offers an intelligible basis for rejecting the evidence of the applicant. Moreover, the Tribunal made clear the individual anomalies it identified were not merely of incidental importance having regard to what the applicant was required to prove to satisfy the statutory criteria. As the Tribunal explained at [43] of its reasons for decision, its concerns went “to the very heart of the applicant's protection claims…”. I accept each of the findings was made in relation to aspects of the applicant’s core claims about a history of (and the potential for) persecution and harm in Nepal. The detailed scrutiny of each of those claims in the reasons for decision evidences a consciousness of the seriousness of the Tribunal’s task. In those circumstances, I am not satisfied the applicant has made out the second of her grounds of appeal.
That brings me back to the first ground which arises out of the factual finding made about the applicant ‘inventing’ her husband. The Tribunal reached that conclusion after asking the applicant about why she had not mentioned her husband in the application for a visitor visa. The Tribunal was unimpressed with the applicant's response. But the inadequacy of that response was not the only issue that the Tribunal referred to when reaching its conclusions on this issue. The Tribunal also referred to the fact the applicant had “provided inconsistent answers about her reasons for [failing to disclose her marital status in the visitor visa application form] to the delegate and the Tribunal…”: at [42] [underlining added]. At [40], the Tribunal asserted:
… In the interview, the applicant agreed that she did not [disclose her husband on the form] because she did not have a husband at the time of making her visitor visa application, which the Tribunal understands to mean that because her husband had been 'disappeared', she felt no need to include him in the visitor visa application.
The Tribunal recorded (at [40]) that it asked the applicant about this response to the delegate in accordance with its obligations under s 424A of the Act because that information raised concerns about her credit. The Tribunal then recorded (at [41]) Ms EIT19's answer as follows: “she did not know that she had to write down information about her family and she only mentioned herself”. The Tribunal said that explanation “was a shift from what she had previously told the delegate”. That perception of a ‘shift’ appeared to weigh heavily against the applicant in the Tribunal's assessment of her credit.
Mr Young pointed out on behalf of the applicant that the delegate's decision record does not disclose what the applicant actually said in response to questions about why she had not mentioned her husband in the visitor visa application. The delegate merely records they were not satisfied with the answers without detailing what those answers were. Mr Young says the Tribunal could not rely on answers that were said to be given to the delegate if those answers were not reproduced in the delegate's decision record. Mr Young goes on to argue it was unclear what weight the Tribunal gave to that flawed finding when it formed a view about credit having regard to all its concerns. In those circumstances, he argued, the adverse credit finding was unreasonable because it was reached in partial reliance on a flawed factual finding.
I was not provided with a transcript of the hearing or a recording of the interview before the delegate, although I note the Tribunal apparently had access to a recording of the interview. Ms Gutmann, who appeared for the minister, said I was entitled to infer from the Tribunal's reasons that it had listened to the tape and then identified the answers it recounted in [40] of its reasons. She said the Tribunal's reasons for decision were the best record of what occurred at the hearing (and the interview) in the absence of a transcript, and it was up to the applicant to provide a transcript if it wished to make the point. Mr Young agreed there was no need to obtain a transcript: he said s 430 of the Act required the Tribunal to set out its decision, reasons, and findings - and the evidence on which those findings were made. He argued the Tribunal's statement of decision was inadequate because it failed to record the supposedly inconsistent answers; that record should not be supplemented by references to a transcript at this late stage.
I agree it is not appropriate for me to require a transcript or recording of the delegate's interview – although either party was able to tender that evidence if they thought it helpful. In the absence of a transcript, the reasons for decision should be evaluated as they are. But the fact is the reasons do clearly identify (at [40]) what the applicant said to the delegate at the interview, even if the Tribunal does not make clear it derived that information by listening to the tape or reading a transcript. While it would have been better if the Tribunal had expressly identified how it came by that information, the Tribunal does point to the source of the information (ie, the interview). If there was a factual dispute over the Tribunal's account of what was said at the interview or hearing, the applicant could have filed a transcript. That did not happen. In those circumstances, I am satisfied it is appropriate to draw an inference from the reasons for decision that the applicant did, in fact, answer the question from the delegate as the Tribunal recorded. That inconsistency related to a core aspect of the applicant's protection claim. It was reasonable for the Tribunal to rely on it as a foundation (or part of the foundation) for making a credit finding. The first ground of review must also fail.
CONCLUSION
The application for judicial review is dismissed.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe. Associate:
Dated: 9 December 2024
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