FEDERAL COURT OF AUSTRALIA

BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184

ORDERS

THE COURT ORDERS THAT:

1.    Leave to raise the new issue alleged in ground 4 of the amended notice of appeal is granted.

2.    The appeal is dismissed.

3.    The appellant is to pay the first respondent’s costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1.    INTRODUCTION

1    This is an appeal from a decision of the Federal Circuit Court (FCC) dismissing the appellant’s application for judicial review of a decision made by the second respondent, the Administrative Appeals Tribunal (AAT), given on 30 June 2016. This was the second decision refusing the appellant’s application for merits review as an earlier decision by the then Refugee Review Tribunal (RRT) had been quashed on judicial review. By the second merits review decision, the AAT affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), to refuse to grant the appellant a Protection (Class XA) visa (the protection visa).

2    The appellant was represented by two counsel, each of whom filed separate written submissions. The first set of submissions, which was prepared by Mr Godwin, was filed on 25 July 2018 (AS1) and the second, prepared by Mr Mitchell, was filed on 26 July 2018 (AS2). Following the hearing of the appeal, the appellant filed an amended notice of appeal.

3    Ground 1 of the amended notice of appeal alleged that the primary judge erred in concluding that the AAT’s decision was not tainted by jurisdictional error by reason of the AAT’s failure to disclose to the appellant the existence of two invalid certificates purportedly issued under s 438 of the Migration Act 1958 (Cth) (the Act). However, the appellant requested that the determination of this ground be deferred pending the hearing and determination by the High Court of a number of appeals addressing similar issues relating to s 438 certificates. That course was not opposed by the Minister and acceded to by the Court. Judgment was subsequently delivered by the High Court in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 on 13 February 2019 and, following an inquiry by the Court, counsel for the appellant advised on 20 March 2019 that he had instructions not to press ground 1.

4    The amended notice of appeal otherwise alleged that the primary judge erred in the following respects:

(1)    in finding that the AAT had complied with its statutory obligations in the conduct of the review because “the [AAT] failed to have regard to all [of] the information provided to it pursuant to its request under s 359(1) of the Migration Act 1958” (ground 2);

(2)    in not finding that the AAT acted in a legally unreasonable way “in not listening to the extract of the appellant’s evidence to the first Tribunal [the RRT] which the appellant’s adviser had supplied to the Tribunal” (ground 3);

(3)    in not finding that the AAT erred “by giving no weight to the corroborating material from the instrumentalities of the Jordanian Government supplied to it by the appellant without considering their contents” (ground 4);

(4)    by failing to give adequate reasons or alternatively failing to try ground 1 in the application before him (namely, that the AAT failed to comply with s 359(1) of the Act by failing to have regard to the audio recording of the interview before the RRT) and “thereby constructively failing to exercise the Court’s jurisdiction” (ground 5); and

(5)    in not finding that the AAT failed to conduct a review of the appellant’s application for review under the Act “in circumstances where it did not consider all the evidence and submissions lodged by email with the [AAT] on 22 March 2016 in support of the application” (ground 6).

5    Leave was granted unopposed at the outset of the hearing of the appeal for the appellant to file his amended notice of appeal subject to the question of whether leave should be granted to raise ground 4. In this regard, the appellant conceded that ground 4 had not been raised in the FCC and that leave to raise the issue was therefore required. The grant of that leave was opposed by the Minister for the reasons set out in his written submissions.

6    For the reasons given below, leave to raise ground 4 should be granted but the appeal should be dismissed.

2.    BACKGROUND

2.1    The application for a protection visa and the appellant’s claims

7    The appellant is a citizen of Jordan and a Sunni Muslim. He arrived in Australia in mid-2013 as the holder of a visitor visa. Shortly thereafter, the appellant lodged an application for a protection visa (Appeal Book (AB) 1). He claimed to fear persecution on the grounds of race and of actual or imputed political opinion thereby satisfying the refugee criterion in s 36(2)(a) of the Act, or in the alternative to fear significant harm as defined in s 36(2A) so as to engage the complementary protection criterion in s 36(2)(aa). The appellant’s specific claims were set out in his statutory declaration dated 25 July 2013 (AB31) and may be summarised as follows.

(1)    After completing compulsory military duty between 2008 and 2010, the appellant voluntarily enlisted in the Jordanian military to pursue a career as a military officer due to his limited education and low prospects of obtaining work elsewhere in the then economic environment in Jordan.

(2)    He grew increasingly disgruntled with the policies of the regular Jordanian military and its treatment of political prisoners and pro-democracy protesters. He was also increasingly frustrated with the way he was singled out, mistreated on the basis of his Palestinian ethnicity, made to undertake duties not normally assigned to other recruits, and subjected to disproportionate mistreatment when he refused to carry out military orders.

(3)    He had been detained on three occasions for refusing to carry out military duties where he was subject to disproportionate mistreatment on the basis of his Palestinian background and was imputed with adverse political views. Details of the breaches of duty were set out in his statement. On each occasion he was detained for a period of one month. The forms of disproportionate mistreatment to which he was subjected included: being denied adequate food, water, physical activity, sleep, access to a legal representative, and access to medical assistance; being accused of maintaining pro-Palestinian sympathies; being subjected to a disproportionately lengthy period of detention and placed in isolation for extended periods; and being subjected to filthy and unhygienic prison conditions (AB34-35).

(4)    In 2013 he was transferred to a new unit and obtained a period of leave to visit family in Australia. He did not return.

8    The appellant also said that the events of the past two years “have augmented my disapproval of the Jordanian military. The military have become the oppressors instead of being the protectors of the Jordanian people and I vehemently object to serving such repressive regime in any capacity” (AB36).

9    In explaining why he feared returning to Jordan, the appellant stated in his statutory declaration (AB37) that:

35. I do not wish to return to Jordon and continue my military duty on the basis of my political and ethnically based objections.

36. Given the fact that I have not returned to Jordon within the specified leave period, I have now been issued with a military arrest warrant, which was orally communicated to my parents.

37. Should I to return to Jordon, I will be trialed by a military tribunal and prescribed a mandatory 5 years (up to 7 years) of military detention.

38. My application for political asylum is not based on a fear of legal prosecution, but due to my fears arising from the real likelihood of being subjected to significant harm, tantamount to persecuted whilst in military detention.

39. Whilst in detention, I will be subjected to persecutory mistreatment, not merely on the basis of my refusal to undertake military duty but on the basis of what is considered by the Jordanian military authorities, maintaining adverse political views, in light of my Palestinian ethnicity and previous military record.

40. I also fear that given the fact of my Palestinian ethnicity, I will be prescribed a longer and a much harsher sentence.

(quoted without alteration)

10    With respect to his claim for complementary protection, the appellant said that he feared being subjected to significant harm whilst in detention, including cruel or inhuman punishment or degrading treatment or punishment. He expanded upon what he described as the “inhuman and deplorable conditions” to which he would be subjected in military detention as including:

•    overcrowding,

•    unsanitary conditions,

•    gross mistreatment,

•    lack of access to legal representation,

•    protracted legal processes,

•    lack of access to adequate medical care,

•    widespread practice of torture and other forms of physical and mental abuse.

•    rape and physical violence perpetrated by other prisoners.

(AB38; quoted without alteration)

2.2    The first merits review decision by the RRT

11    A delegate of the Minister made a decision refusing to grant the visa to the appellant on 24 June 2014 (AB45) and the RRT affirmed the delegate’s decision on 25 May 2015 (AB153) following a hearing on 6 May 2015. The appellant sought judicial review of the RRT’s decision in the FCC and the matter was remitted by consent to the AAT for redetermination according to law on 12 October 2015 on the basis of a failure to comply with s 424A of the Act (AB167).

2.3    The second merits review decision by the AAT

12    The appellant appeared before the AAT on 1 March 2016 with his representative and was assisted by an Arabic NAATI Level 3 (Professional) interpreter (MRD Hearing Record, AB225). Following the hearing, the appellant was afforded an opportunity to provide further submissions in writing by 22 March 2016 and his migration agents/solicitors provided a detailed further submission and documents pursuant to that leave (AB227, 234-281). As we later explain, this further material included an extract from the audio recording of the hearing before the RRT which was intended to address an apparent inconsistency in the appellant’s evidence as to the duration of his alleged detention in Gaza. A number of the grounds of appeal challenge the AAT’s decision on the basis that it did not have regard to this further material.

13    On 14 June 2016, the AAT wrote to the appellant’s solicitors attaching an invitation for the appellant to attend a further hearing on 29 June 2016 and explained that this was in order to afford the appellant an opportunity to address a matter “which the member wishes to address in his reasons for decision”, namely:

The matter is your client’s claim that he undertook two years of compulsory military service, prior to voluntarily joining the Jordanian Army. Towards the end of the hearing on 1 March 2016, the Member noted, when he was discussing the DFAT Thematic Report Palestinians in Jordan and Lebanon dated 2 March 2015 with your client, that par [3.50] of that report states that military service is not compulsory in Jordan.

The Tribunal requests that the applicant bring to the hearing on 29 June 2016:

1.    any relevant country information regarding the state of conscription in Jordan, including information demonstrating that military conscription is enforced;

2.    a copy of the relevant legislation imposing the obligation to undertake military service as claimed by the applicant;

3.    together with any other country information which may support your client’s claim that the Jordanian government requires its citizens to undertake compulsory military service or conscription for a period of two years.

(AB286-287)

14    By email dated 28 June 2016, the appellant’s solicitors provided additional documentation directed to addressing the issues raised by the AAT in its letter dated 14 June 2016 (AB 296-333). The further documents included a document entitled “Conscription (Military Service) and Reserve Duty Law” (the Conscription Act) purportedly setting out articles 1 to 52 of the Conscription Act translated by a translator (NAATI Professional Level 3) whose name and contact details were supplied. The translator had stamped, signed and dated each page of the translation.

15    The appellant attended the further hearing on 29 June 2016 without his representative but with the assistance again of an interpreter in Arabic, NAATI Level 3 (Professional).

16    On 30 June 2016, the AAT affirmed the delegate’s decision to refuse to grant the protection visa (AB339).

17    Starting with the claims to fear persecution for Refugees Convention reasons, first, in its findings under the heading “Does the applicant have a well-founded fear of persecution for one or more of the five reasons set out in the Refugees Convention in Jordan?”, the AAT found that it was not satisfied of the appellant’s credibility and rejected his claims relating to his alleged service in the Jordanian military for the following reasons.

112.    The Tribunal is not satisfied that the applicant was a credible witness. The Tribunal does not accept as true his version of the events which can be summarised as undertaking military conscription, voluntarily joining the regular Army, being detained for three disciplinary matters while serving in the Army, and then being transferred to the Jordanian Civil Defence.

113.    The Tribunal was not persuaded that he was speaking the truth because of the generalised nature of some of his evidence (“I had the right to fight for democracy and fight for the people”; Palestinians could not hold public jobs in Jordan; he did not trust his solicitor as the matter involved Israel), its speculative nature (he was allocated certain duties because he was a Palestinian), finds that he regularly exaggerated his claims (he said that he fled from the Army when in fact he applied for leave).

114.    These matters were not assisted by the applicant repeatedly giving evidence at the second hearing about matters he had never mentioned before (that he had a “military” passport; that he was given assistance to obtain his passport; that he had been physically assaulted while detained). And when the applicant stated at the first hearing that he was on a “watch list”, this was in response to the suggestion from the Tribunal, it was not volunteered by the applicant in the natural course of his evidence.

115.    In addition, some of the applicant’s explanations were evasive, such as suggesting that his solicitor was at fault for not including information, when in fact he had given the solicitor false information on purpose because he did not trust him.

116.    Further, some of the applicant’s evidence was simply not believable, such as the Jordanian Constitution forbidding soldiers from voting; his passport being a military passport; the legislation produced being “classified”; his explanation as to why legislation produced by him had a different name and title to the legislation referred to by his agent in country information in evidence provided the previous day; his evidence that soldiers could not wear uniforms outside barracks; and that the difference between a military passport and a non-military one was the presence of a photograph showing the passport bearer in a military uniform.

18    The AAT concluded on the issue of credibility as follows:

117.    The Tribunal has set out above many instances of where it has raised concerns with the applicant’s evidence, and received unconvincing explanations in response. Each of these matters, individually, may not cause the Tribunal to doubt the applicant’s credibility, and cumulatively they may give the Tribunal cause for concern. The Tribunal may have been prepared to give the applicant the benefit of the about [sic] these aspects of his evidence. However, there were so many instances of the applicant’s evidence being unsatisfactory the Tribunal does not extend the benefit of the doubt to the applicant. As described above, multiple aspects of the applicant’s evidence raised significant concerns regarding the overall truth of his claims and his general reliability as a truthful witness. While some matters of concern are not singularly determinative in and of themselves, cumulatively they leave the Tribunal unable to be satisfied of the truth of significant and central aspects of the applicant’s claimed circumstances. The Tribunal considers that the principle referred to by the High Court of Australia in Re Minister for Immigration and Multicultural Affairs [Ex parte Applicant S20/2002] [2003] HCA 30 [at [49]] is applicable, namely:

it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant’s argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.

(emphasis added)

19    Secondly, and as a consequence of its categorical rejection of the appellant’s credibility, the AAT “place[d] no weight on the many documents produced by the applicant and claimed to be genuine documents of the Jordanian Government or other authorities including the military and the Civil Defence”, applying the “poisoned well” principle referred to Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 (S20/2002) at [49] (AAT’s reasons at [118] (emphasis added)). This finding is challenged by ground 4 of the amended notice of appeal.

20    Thirdly, the AAT found that certain articles produced by the appellant at the hearing on 29 June 2016 were stamped with a translation stamp “in an attempt to give greater verisimilitude to the documents” as it was apparent from the website addresses from which the articles were sourced that they were already in English (at [119]). The AAT also considered that two pieces of legislation also produced by the appellant at the hearing on 29 June 2016:

120. … were at odds in one important aspect. This is that the Compulsory and Reserve Law for 1986 states that “every Jordanian” is subject to compulsory service, while the Conscription (Military Service) and Reserve Duty Law 1986 Act states that it is only Jordanian males. The Tribunal considers that if these were genuine documents there would not be such an obvious inconsistency, and concludes that the documents were fabricated for the purpose of improving the applicant’s application for protection.

(emphasis added)

21    We note that the AAT had specifically put to the appellant that the documents referred to at [120] may be fabricated during the hearing, as noted in its reasons at [89].

22    Fourthly, despite its findings with respect to the documents produced by the appellant at the hearing on 29 June 2016, the AAT accepted on balance that conscription was reintroduced in Jordan in 2007 (at [131]). However, the AAT found that whether it was compulsory for men and women, the length of service required, and whether conscription has ever been enforced, were unclear (AAT at [131]; see also at [99]). The AAT concluded at [131] that “[d]oing the best, the Tribunal finds that conscription was reintroduced, but that, consistent with county [sic] information produced by the applicant, and applied to males born after 1989. As the applicant was not born after 1989, the applicant was not subject to compulsory conscription.”

23    In the fifth place, the AAT set out the bases on which the appellant claimed to fear persecution if returned to Jordan as confirmed by him at the hearing on 29 June 2016 at [133] of its reasons as follows:

•    persecution on the basis of his Palestinian ethnicity (Convention ground ethnicity).

•    persecution because of his adverse political views (Convention ground political views; imputed political views?)

•    persecution by reason of being a member of a particular social group:

•    Army deserter;

•    having sought protection in Australia.

and that on the basis of all or any of these grounds the applicant will suffer significant harm on his return including but not limited to being detained at the airport, interrogated, tortured, and imprisoned.

24    The AAT rejected the first ground on the ground that it preferred the DFAT Thematic Report, Palestinians in Jordan and Lebanon, dated 2 March 2015 (the DFAT Report) over the appellant’s country information, and the DFAT Report did not support his claims (at [135]-[136]). Nor did the AAT accept that the appellant had any particular political views, whether they were imputed because he is a Palestinian or otherwise, that would bring him to the authorities’ attention (at [137]).

25    The AAT also considered whether the appellant would face a real risk of serious harm or persecution by reason of not returning in accordance with the terms of the leave granted to him on the basis of its earlier findings that he had been employed by Civil Defence only, and was not in the Army and did not leave it. In this regard, that AAT found that:

139. … this claim is not supported by independent country information, and as the Tribunal has found that the Civil Defence is not part of the Army, the Tribunal finds that the applicant has a well-founded fear of persecution for reason of being a Palestinian by reason of being [employed in Civil Defence] who has not returned in accordance with his leave entitlements.

26    The AAT concluded with respect to the Refugees Convention claims:

140. The Tribunal has considered each of the applicant’s fears of serious harm amounting to persecution both individually and cumulatively. The Tribunal does not consider that the applicant has a real chance of serious harm for any of the reasons claimed, or cumulatively, or arising on the evidence. It follows that the Tribunal is not satisfied that the applicant faces a well-founded fear of persecution for a Convention reason in Jordan now or in the reasonably foreseeable future and that the Tribunal is not satisfied that the applicant is a refugee under s.36(2)(a) of the Act.

27    The AAT also found that the appellant failed to meet the alternative criterion in s 36(2)(aa), finding that:

145. Based on the applicant’s individual circumstances, taken singularly and cumulatively, and the findings above, including that the applicant has fabricated almost all his claims for protection and is not a credible witness, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Jordan, there is a real risk that he will suffer significant harm.

2.4    The decision below

28    In his application for judicial review in the FCC, the appellant alleged that the AAT had erred in two respects, namely:

(1)    the AAT had failed to comply with s 359(1) of the Act in disregarding the opportunity to listen to the audio recording of the RRT hearing which could have addressed the concerns which the AAT had with the appellant’s evidence (ground 1, judicial review application); and

(2)    he was denied procedural fairness in that the AAT had conducted itself in a manner which displayed apprehended bias by reason of its failure to listen to the sound recording.

29    The appellant, who appeared in person in the FCC, also alleged at the hearing that the psychologist’s report dated 6 November 2014 had not been taken into account and took issue with the Tribunal’s adverse credibility findings (FCC reasons at [18] and [20]).

30    The primary judge rejected both grounds in the judicial review application, with his rejection of ground 1 only being the subject of complaint on this appeal. With respect to the issues raised in oral submissions, his Honour held that the adverse credibility findings were open to the AAT for the reasons which it gave and those reasons were not irrational, illogical or unreasonable (FCC reasons at [18]). The primary judge further held that the Tribunal had expressly referred to the psychologist’s report in its reasons and the appellant’s submissions on this issue were in substance an invitation for the Court to engage in impermissible merits review (FCC reasons at [20]).

3.    RELEVANT PRINCIPLES: CREDIBILITY FINDINGS AND LEGAL UNREASONABLENESS

31    As the AAT’s decision turned upon its findings as to the appellant’s credibility, it is convenient briefly to summarise the relevant principles applying to findings of this nature.

32    First, the relevant question for the AAT under ss 36(2)(a) and (aa), 65 and 415 of the Act is whether it is “satisfied” that the criteria for a protection visa are met and as a consequence the decision of the AAT is subjective in nature: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-277 (Brennan CJ, Toohey, McHugh and Gummow JJ); and W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 (W148/00A) at [65] (Tamberlin and R D Nicholson JJ).

33    Secondly, the fact that a decision-maker has expressed her or his reasons sequentially does not mean that the decision-maker has decided each factual issue in isolation from the others. To the contrary, “[o]rdinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole”: S20/2002 at [14] (Gleeson CJ); see also at [49] (McHugh and Gummow JJ); and Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 (Chen) at [33]-[35] (the Court). Indeed, there is no necessary error in the Tribunal not considering corroborative material until after it has reached its conclusions of credibility where the Tribunal has (lawfully) found that “the well has been poisoned beyond redemption”: S20/2002 at [49]; and Chen at [35].

34    Thirdly, notwithstanding the subjective nature of the assessment required by the AAT and the factual nature of an assessment of credibility, the AAT’s decision must still be made within the bounds of legal reasonableness. The Full Court in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 (DAO16) at [30] explained the relevant principles as follows:

(1) While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).

(2) Without derogating from the case specific nature of the inquiry, 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 (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:

135.     … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

(Emphasis added)

…

(4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:

56.     An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…

(citations omitted)

(5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].

35    Finally, in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 (SZVFW), the High Court held that, where it is alleged that the judge at first instance wrongly failed to find that an administrative decision maker’s decision is legally unreasonable, the appellate court must determine whether the primary judge’s conclusion was, in the appellate court’s opinion, correct and not whether the primary judge’s conclusion was open: SZVFW at [19], [20], [55] and [56] (Gageler J) and [85]-[87] (Nettle and Gordon JJ (Kiefel CJ agreeing at [18])).

4.    CONSIDERATION

4.1    Alleged error by the primary judge in failing to give adequate reasons (Ground 5, amended notice of appeal)

36    For reasons which will become apparent, it is convenient first to deal with ground 5 of the amended notice of appeal.

37    By the fifth ground, the appellant alleges that the primary judge failed to give adequate reasons, or alternatively, failed to try ground 1 of the application for judicial review, thereby constructively failing to exercise the Court’s jurisdiction. As the Minister submits, this ground appears to be limited to the manner in which the primary judge dealt with the first ground of the application for judicial review below challenging the AAT’s failure to listen and have regard to the extract from the audio recording of the RRT hearing (see above at [28] and [30]). That ground in turn equates to ground 2 of the amended notice of appeal.

38    The primary judge dismissed ground 1 of the judicial review application for the following reasons:

21. In relation to ground 1, the Tribunal expressly referred to the applicant’s submissions in relation to the inconsistency in respect of the applicant’s evidence and the applicant’s assertions in relation to the interpreter and the invitation to listen to the sound recording. The Tribunal found it was not necessary to listen to the recording to determine that issue of inconsistency in relation to the 20 days. No procedural unfairness was occasioned to the applicant by reason of the Tribunal deciding for the reasons identified, not to listen to the sound recording.

22. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with the requirements of procedural fairness in the conduct of the review. No jurisdictional error as alleged in ground 1 is made out.

39    It was incumbent on the primary judge properly to consider whether or not ground 1 was made out and to give reasons as an incident of the judicial process in line with the principles recently confirmed in DAO16 at [47] (the Court) and BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 (BZD17) at [24] (the Court). In our view, the primary judge did not engage with ground 1 of the application but, as in DAO16 and BZD17, in his reasons merely asserted conclusions. The fact that the reasons were delivered ex tempore does not mitigate that conclusion: AXL16 v Minister for Border Protection [2018] FCA 208 (AXL16) at [21] (Perram J); BZD17 at [25]. The question then arises as to whether the matter should be remitted to the primary judge for reconsideration according to law.

40    Three factors in particular tell strongly against remitting the matter to the FCC. First, it is clear that both parties wished the substantive issues to be determined by this Court. Thus, ground 5 was put by the appellant in the alternative to this Court determining the substantive issue on the appeal. Secondly, in this case, there would be no apparent utility in remitting the matter to the FCC, given among other things that the issue is a discrete one which, with respect, cannot succeed for the reasons explained below. Thirdly, this issue overlaps with the issues raised also by grounds 3 and 6 of the amended notice of appeal. As such, we consider that the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth) would best be served by this Court resolving the substantive issue, as reflected in ground 2 of the amended notice of appeal (see by analogy BZD17 at [30]).

4.2    Alleged failure by the AAT to comply with s 424(1) of the Migration Act (Ground 2, amended notice of appeal)

4.2.1    The appellant’s submissions in support of ground 2

41    By ground 2 of the amended notice of appeal, the appellant alleges that the primary judge erred in failing to find that the AAT did not comply with its obligations under s 359(1) of the Act to “have regard to” all of the information provided to it pursuant to that provision. As Mr Godwin confirmed at the hearing (T21.1), the appellant in fact intended to refer to s 424(1) which applies to Part 7 reviewable decisions such as the AAT’s decision here. Section 424(1) provides that:

In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

42    The information in question was an audio extract of the hearing before the RRT on 6 May 2015 which was provided as part of a post-hearing submission dated 22 March 2016 (AB235) to the AAT by the appellant’s advisors. The post-hearing submission relevantly explained that the audio recording was intended to address an inconsistency in the appellant’s evidence regarding the duration of his detention raised by the AAT during the hearing (AB238-239). Specifically, in its reasons, the RRT had recorded that the appellant claimed to have been detained in a hospital in Gaza for 20 days. However, this evidence was inconsistent with his evidence before the delegate and the AAT where he claimed that he had been detained for 52 days. The AAT questioned him about this inconsistency at the hearing as follows:

Member    Okay the period in the basement you told me that you were in that basement for 52 days. Correct?

Applicant    Yeah. You see all the mission went for 72 days. The first 20 days I was you know receiving the orders and instructions and when I disobeyed I was put in that place in the basement.

Member    So for how long? Between how long were you in the basement?

Applicant    52 days.

Member    52 days okay that is what you told the delegate. I think you told I think you told the tribunal 20 days.

Applicant    Member the 20 days when I was given the instruction and then refused to do them within the first 20 days.

Member    Yep look maybe the delegate, maybe the tribunal made a mistake but what he says in paragraph 21 is this.

Applicant    But he didn’t ask me about Gaza.

Agent    I do have a transcript but I think I will check this.

43    In his post-hearing submission, the appellant’s representatives submitted that:

1. The interpreter at the hearing did interpret he was detained for 20 days;

2. However, we have conducted our own inquiries – extracting that part of the Tribunal audio and producing it to a NAATI qualified interpreter;

3. The interpreter did confirm that there is a problem saying with conclusiveness whether the applicant meant twenty days (for being detained, or 20 days coming outside and inside as the applicant mentions the 20 days in the middle and refers to “going inside and outside” and “being detained” within the same timeframe);

4. The applicant advised he was under pressure; he was talking too fast and did could not thoroughly articulate his words.

5. We do not think that this is reliable evidence to be used against the applicant in relation to providing an inconsistent statement. We have extracted the audio for the purpose of allowing the member to conduct his own inquiries in order to determine whether to accept our submission that there was a problem with determining with conclusiveness what the applicant meant.

6. We strongly believe that the interpreter should have intervened to advise our client to provide short sentences instead of allowing him to speak in paragraphs and then attempting to summarize. We do acknowledge that the applicant did have problems with articulating his sentences due to the pressure of the hearing environment and as a result, this seemed to create further confusion.

7. It is our submission that the applicant has been consistent in relation to his claims and that this does not provide any solid evidence against our client in relation to providing an inconsistent statement.

8. We therefore submit that this evidence should not be considered reliable due to the ambiguous nature of the response.

44    While the submission referred to a NAATI qualified interpreter having identified a difficulty in determining what the appellant meant by referring to the 20 day period, no evidence was placed before the AAT (or this Court) from a NAATI qualified interpreter or other expert interpreter to that effect. Rather, the AAT was asked to make its own inquiries based upon the audio recording in order to determine whether or not to accept the submission that there was a problem with determining conclusively what the appellant meant in this part of his evidence.

45    The AAT dealt with this request at [121] of its reasons as follows:

The Tribunal noted above that the applicant provided a sound recording for the Tribunal to listen to and to make its own mind in order to determine whether or not to accept a submission in relation to his inability to articulate at the hearing on 1 March 2016 as he was under pressure. Given the Tribunal’s findings in relation to the applicant’s credit it is not necessary to determine this issue.

46    The appellant submitted, first, that the primary judge ought to have held that the AAT fell into error in failing to listen to the audio recording and to decide whether or not to accept the appellant’s explanation for the following reasons:

The first question is whether a tribunal can identify an inconsistency in a significant part of an applicant’s evidence, and then not engage with the explanation and evidence provided on the applicant’s behalf to explain/resolve the inconsistency. The explanation and the extract from the hearing record were provided by the adviser to the Tribunal after the first hearing. At the end of that hearing the Tribunal had given the adviser 3 weeks to provide submissions [at AB444]. It is submitted that this constituted an oral invitation to provide information under s 359(2) of the Act and the Tribunal was thus statutorily commanded to have regard to the submissions. It is submitted that the reasoning of the Tribunal was that it did not have to intellectually engage with the aspect of the submissions relating to the inconsistency because of its other findings. It is submitted that this is an error.

(AS1 at [9])

47    Secondly and in any event, the appellant submitted that, by excluding from its consideration “aspects of the applicant’s submissions which are directed at establishing the applicant’s credit on the basis that there are other matters which the [AAT] considers impugn his credit” (AS1 at [10]), the Tribunal failed to complete its review. Rather, in his submission, given that an assessment of credibility “is not necessarily linear” (as the Full Court held in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [79]), the whole of the appellant’s evidence should have been considered in assessing his credibility.

48    Finally, the appellant submitted that while the decision in S20/2002 meant that the Tribunal could make an overall finding that an applicant was not credible before considering corroborating evidence, this did not mean that the AAT could dismiss the corroborating evidence without considering it.

4.2.2    Ground 2 must be dismissed

49    The appellant’s submissions in support of ground 2 must, with respect, be rejected.

50    First, as the Minister submits, the AAT did not “get” the submission and accompanying audio recording in the exercise of its powers under s 359(1) because that section did not apply to the AAT’s review; nor did it do so under s 424(1) of the Act. Contrary to the appellant’s submissions, the AAT member’s acceptance of the three week period for further submissions requested by the appellant’s agent cannot be characterised as “an oral invitation to provide information under [s 424(1)] of the Act” (AS1 at [9]; emphasis added). Rather, the AAT simply acceded to the request by the appellant’s agent to have an opportunity to provide further submissions which the appellant and his agent considered to be relevant, as opposed to the AAT seeking information which it considered relevant so as to engage s 424(1) of the Act.

51    Secondly and in any event, the AAT did have regard to the post-hearing submission and in particular to those parts (AB238-239) which were intended to address the apparent inconsistency in the appellant’s claim as to the duration of his detention in Gaza. The AAT referred expressly to the submission at [72]-[73] of its reasons under the heading “Post hearing documents and submissions”. In this regard we agree with the Minister’s submission that the fact that the AAT ultimately left unresolved this apparent inconsistency does not establish that the AAT failed to engage intellectually with the submission. Rather, as Sackville J held in Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152 at [59], “[t]he extent of the required intellectual process must depend on the nature of the information and its degree of relevance” (emphasis added). In the present case, the AAT left the question of the inconsistency unresolved on the ground that it was unnecessary to decide and therefore effectively not relevant because of the credibility findings otherwise made by the AAT. This does not establish any failure by the AAT to complete its task on review.

52    Thirdly, with respect, we do not agree with the appellant’s submission that the AAT cannot exclude aspects of an applicant’s submissions directed towards establishing her or his credit on the basis that there are other matters which it considers impugn his credit. In this regard, it is apparent from the decision in S20/2002 at [49] upon which the AAT relied that it was unnecessary for it to consider and make findings on all of the material provided to it before concluding that the appellant’s claims lack credibility where, as here, it considers that his credibility is so damaged that even the corroborating evidence can be given no weight: see above at [18] and [33]. While the appellant submits that S20/2002 does not apply because the corroborating evidence here is the testimony of the appellant himself (presumably in the sense of the audio recording of that testimony), he refers to no authority in support of this proposition and gives no principled reason as to why that factor should make any difference. Nor is any such reason apparent.

53    Finally, the post-hearing submission invited the AAT to listen to the audio recording of the first interview in order to alleviate the AAT’s concerns about the apparent inconsistency in the appellant’s evidence regarding the duration of his detention in Gaza, submitting in effect that the evidence before the RRT that he had been detained for only 20 days was ambiguous and therefore should not be relied upon by the AAT adversely to him. The AAT accepted that submission insofar as it did not rely upon this apparent inconsistency in assessing the credibility of his claims, albeit that it did so on the ground that it was unnecessary to determine the issue (at [121]). As such, the AAT did not “use” the apparent inconsistency against the appellant, in line with the post-hearing submission. The submission made on the appeal however appears to assume that the resolution of the apparent inconsistency concerning the length of the appellant’s detention in Gaza was an issue relevant to a determination of his credibility. That was plainly, however, not the case.

54    It follows for all of these reasons that ground 2 must be dismissed. In short, as the Minister submitted, it was open to the AAT to proceed by determining not to resolve one apparent inconsistency in the appellant’s evidence where the AAT had formed the view, in effect, that the resolution of that apparent inconsistency would not affect the outcome because of all of the other difficulties with the appellant’s evidence.

4.3    Alleged unreasonableness in not listening to the audio recording (Ground 3, amended notice of appeal)

55    By ground 3 of the amended notice of appeal, the appellant contends that the AAT acted unreasonably in not listening to the extract of his evidence before the RRT which he gave to the AAT. This contention must also fail. The AAT gave cogent reasons for deciding not to listen to the audio recording as earlier explained. The fact that a different decision-maker may disagree, even strongly, with the decision not to resolve the apparent inconsistency in the appellant’s evidence to which the audio recording related, and therefore may have listened to the audio recording, falls well short of establishing legal unreasonableness as the authorities earlier referred to explain (see above at [34]).

4.4    Alleged error in failing to give any weight to corroborating material (Ground 4, amended notice of appeal)

4.4.1    Should leave be granted to raise the new issue?

56    By ground 4, the appellant contends that the AAT erred in attributing no weight to many documents produced by the appellant without considering their content on the basis of its finding at [117] that the appellant’s evidence lacked any credibility. As earlier mentioned, this ground raised a new issue which had not been raised by the appellant before the primary judge. As a result, the appellant requires leave to raise the issue, which was opposed by the Minister.

57    The principles governing the exercise of discretion to grant leave to raise a new ground on appeal in the context of migration matters were explained by the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 (VUAX) as follows:

46. … Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so …

47. In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

48. The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. …

See also Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 (Iyer) at [22]-[24] (the Court); Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510 at [19]-[20] (Griffiths and Perry JJ).

58    The appellant submits that there is a question as to whether the findings about his credit in the AAT’s reasons at [112] to [117] were “sufficiently strong to reject the whole of his testimony without engaging with the appellant’s adviser’s submission and that testimony” (AS1 at [12]). In support of the grant of leave the appellant submitted that this ground raises a purely legal question which would be determined on the basis of the Court’s findings relating to the second issue. As such, the appellant contended that the grant of leave was in the interests of justice (AS1 at [12]). The relevant passages from the AAT’s reasons cited by the appellant are quoted above at [17]-[18].

59    In our view, it cannot be said that ground 4 lacks any merit. Nor is any prejudice pointed to by the Minister in responding to the new issue. In those circumstances and given the potential consequences of an adverse decision for the appellant, we consider that leave to argue the new issue should be granted.

4.4.2    The issues raised by ground 4

60    The appellant accepted that all of the documents relied upon by him to corroborate his claims were provided by him. It follows that it was not in issue that in principle it was open to the AAT to apply the “poisoned well” principle in S20/2002 at [49] so as to reject the corroborating evidence on which the appellant relied on the ground that his testimony lacked any credibility. Nor was it in issue as a matter of principle that, while specific matters taken into account by the AAT may not provide a rational or logical basis for rejecting an applicant’s claims if considered in isolation, the cumulative weight of such matters may suffice to establish that it was open to the Tribunal to reach such a conclusion: W148/00A at [69] (Tamberlin and R D Nicholson JJ); Chen at [40] (the Court).

61    However, the appellant submitted that the findings as to his credibility made by the Tribunal in its reasons at [112]-[116] were erroneous and did not provide an adequate or rational basis for the wholesale rejection at [117]-[118] of the documentary evidence said to corroborate his claims. In essence, the submission is that the AAT’s findings were not sufficient to bring it within that category of “rare” cases where a party’s credibility has been so weakened that the tribunal of fact may treat what is proffered as corroborative evidence as being of no weight because “the well has been poisoned beyond redemption”: DAO16 at [33] (the Court); see also SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638 at [23]-[24] and [27] (Finkelstein J), and Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485 at [36]-[38] (North and Lander JJ) and [50] (Katzmann J). In this regard, it is important to emphasise that the AAT effectively found at [117] and [145] that it had no doubt that the appellant’s claims were fabricated. Otherwise the AAT would have been required to consider in the alternative whether the appellant faced a real chance of persecution or a real risk of significant harm. As the Full Court held in DAO16:

36. … the AAT must be taken to have entertained no real doubt about the falsity of appellant’s claim as to his sexuality.  If the AAT had entertained any real doubts, it would have been required to consider in the alternative whether there was a “real risk” that the appellant may suffer “significant harm” as defined in s 36(2A) of the Act on the assumption that it was wrong in finding that claim to be fabricated: see Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) at 576 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ); see also Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 (Sackville J at [62] (North J agreeing)). In this regard, it is important to emphasise that it suffices to establish a “real risk” for the purposes of s 36(2)(aa) if there is a reasonable possibility of the harm occurring even if that risk is less than 50%, that is, the level of risk required is the same as that for s 36(2)(a): Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 at [246]-[247] (Lander and Gordon JJ) (Besanko and Jagot JJ agreeing at [296] and Flick J at [342]).

(See also WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 at [27] (the Court).)

4.4.3    Ground 4 must be dismissed

62    Notwithstanding the caution which must be exercised before making so serious a finding, the appellant has not established that the AAT fell into reviewable error in finding that the appellant’s evidence was so unsatisfactory that it had no real doubt that his claims were fabricated and, as such, gave no weight to the documents on which the appellant relied to corroborate those claims. Ground 4 must therefore be dismissed.

63    Taking each of the matters relied upon by the appellant in turn, first, the appellant submitted that he had in fact claimed at the first opportunity that he had been physically assaulted in detention, contrary to the AAT’s finding at [95] and [114] that the allegation was new. Specifically, in his statutory declaration provided on 31 July 2013 shortly after lodging his application for a protection visa, the appellant said that he had been “physically and psychologically abused” during his period of detention (AB34). However, while his statutory declaration arguably referred to a claim to have been physically assaulted, no claim specifically in those terms was made or elaborated upon, and the general reference to physical and psychological abuse could equally have referred to the conditions of his detention of which he also complained. As such, the proposition can be put no higher than that the AAT interpreted the evidence in a particular way with which the appellant disagrees. At its highest, therefore, the Tribunal made an error of fact. However, there is no jurisdictional error in the AAT simply making a wrong finding of fact: Chen at [42] (the Court) and the authorities there cited. In short, the evidence in the statutory declaration having been ambiguous on the point, it was open to the AAT to find that the claim to have been subjected to physical assault was new.

64    Secondly, the appellant submitted that the AAT wrongly found at [16] that neither the translation of the appellant’s military identity card, nor the document evidencing his security clearance, was “a certified translation” (AB41-42). In this regard, the AAT acknowledged that a translation was provided. However, while a stamp appears on the face of those documents stating “General Services Office Sworn Translator Jordan Translators Association Member No. (249)” and an address and telephone numbers are given, it is apparent that the translations were not by a NAATI certified translator. As such, it appears that the AAT meant no more than that the translation was not “certified” by a NAATI certified translator. We also note that no evidence was given to the AAT (or the Court) as to the qualifications, if any, required of a member of the Jordan Translators Association, any professional and ethical standards by which they are bound, or of the qualifications of this particular translator to translate the documents in question.

65    Thirdly, the appellant submitted that the AAT failed to take into account that his solicitor was no longer registered as a migration agent, as advised in the letter from the RRT to the appellant dated 24 November 2014 (AB80). In the appellant’s submission, this matter lent weight to his explanation for failing to raise certain claims earlier, namely, that he “did not trust” his solicitor. In this regard, the appellant relied in particular upon his statutory declaration dated 8 March 2016 following the first hearing before the AAT on 1 March 2016. At that hearing the appellant sought to explain differences between his written statements and what he had said at the RRT hearing on the basis that he had been afraid to mention some matters to his solicitor particularly with respect to his trip to Gaza (AAT reasons at [56] and [60]) and that other matters had been mentioned to his solicitor even though they did not appear in his statement (AAT reasons at [62]). In his statutory declaration, the appellant also said that:

4. I had been initially represented by my Migration Agent, Sam Issa, who I understand has now lost his registration and been struck off the roll by the law society. Mr Sam Issa did not properly represent my claims. I did not have a trustworthy relationship with Mr Sam Issa and did not tell him the truth regarding my visit to Gaza. At the interview, I, through my own initiative, made the effort to clarify with the officer that the dates I had provided were incorrect in relation to my Gaza visit and subsequent detention upon return to Jordan.

(AB278; emphasis in the original)

66    However, the Tribunal’s reasons at [69] refer expressly to the appellant’s “affidavit” sworn 8 March 2016, observe that it “raises a number of matters”, and record the appellant’s submission that the solicitor did not properly represent his claims and had since been struck off the roll, as well as quoting his further evidence about the Gaza incident. At the second hearing on 29 June 2016, the AAT questioned the appellant again about his contention that he had not mentioned the first Gaza incident to his solicitor because he did not trust him but found his explanation to be “unconvincing and unpersuasive” (AAT reasons at [102]). Subsequently in its reasons at [113] for rejecting the appellant as a credible witness, the AAT referred to not being persuaded that he was speaking the truth because, among other things, “of the generalised nature of some of his evidence” including that he did not trust his solicitor because the matter involved Israel.

67    In these circumstances, while the Tribunal did not expressly refer to the fact that the solicitor had also been deregistered as a migration agent, the appellant has not established on the balance of probabilities that this was overlooked by the Tribunal. To the contrary, the more compelling inference is that the Tribunal did not consider that matter to be material. That is understandable given the more serious sanction imposed upon the solicitor of being struck off as a legal practitioner, to which the Tribunal expressly referred.

68    Fourthly, the appellant submitted that the AAT should have considered his evidence in light of the diagnosis made of his depressive disorder by a consultant psychologist in a report dated 6 November 2014 (AB129). In that report, the psychologist diagnosed the appellant as suffering from a Major Depressive Disorder and as having experienced symptoms of Post-Traumatic Stress Disorder (AB133). The psychologist also expressed the opinion that the appellant was “suffering from a great deal of psychological problems and has experienced marked distress with impairment in his interpersonal, social and cognitive functioning” (ibid).

69    However, the AAT did not overlook that evidence. To the contrary, at the hearing on 1 March 2016 the AAT noted the psychologist’s report and asked the appellant for an update about his current health circumstances (AAT reasons at [63]). The appellant said that he was “okay”, taking a tranquilliser every three to four days, that the doctor had said that it was “no use” the appellant coming back to him, and that it had been a “long time” since he had seen a psychologist (ibid). In those circumstances, where there was no further evidence provided about the appellant’s mental health, no error has been established in the AAT’s apparent failure expressly to factor the November 2014 diagnosis into its assessment of the appellant’s credibility. Rather, it can be inferred that the AAT considered that the views of the psychologist in that respect were out of date and therefore not material.

70    In the fifth place, the appellant pointed to his post-hearing submission at AB238-239 addressing the inconsistencies between his evidence to the RRT as to the duration of his detention in Gaza, and explaining that the appellant had problems with articulating his sentences due to the pressure of the hearing environment which seemed to create confusion. However, as we have earlier held, the AAT did not ultimately hold this apparent inconsistency in the appellant’s evidence against him, finding that it was unnecessary to resolve this issue and, in so doing, did not fall into error.

71    Sixthly, the appellant submitted that at [100] of its reasons, the AAT took into account different names given to the military conscription legislation in the material relied upon by him in finding that the legislation was fabricated but failed to take into account the possibility that those differences might have been due to differences in translation, or other possible explanations such as that the legislation had been amended. Thus, the article quoted in the appellant’s post-hearing submission at AB298 referred to the relevant legislation as the Compulsory Military Service Act 1986, while the translations at AB302 and AB318 identified the legislation as the “Compulsory and Reserve Law for 1986” and the “Conscription (Military Service) and Reserve Duty Law” respectively.

72    At [100] of its reasons, the AAT explained that in response to questioning at the second AAT hearing as to the different names for the legislation, the appellant responded that “it’s the same … it means the same” (ibid). The AAT returned to this evidence at [116] where it rejected the appellant’s explanation as to why the legislation produced by him had a different name and title from that referred to by his agent on the ground that it was “simply not believable”. In turn, this finding was one of the matters which cumulatively led the Tribunal to reject the central aspects of the appellant’s claims at [117]. Significantly, neither the appellant nor his agent sought to explain these differences in the title of the legislation to the AAT by reference to differences in translation or the other grounds now suggested: see the AAT’s reasons at [88]-[89] and [100]. The AAT simply considered and rejected the appellant’s explanation for the apparent inconsistency as implausible, and took that finding into account in assessing his credibility. As such, it cannot be said that the AAT fell into error in failing to consider other possible explanations.

73    In the seventh place, the appellant submitted that there was no “hard evidence” showing that his claims as set out in the AAT’s reasons at [116] were “not believable”. However, it is for the appellant to establish his claims. Importantly in this regard, each of the matters referred to at [116] had been the subject of submission or testimony from the appellant only, despite the fact that they were not matters personal to him. For example, it was said that the legislation produced was “classified”, that soldiers could not wear uniforms outside barracks, and that there were certain differences between military and non-military passports. In this regard, we accept that a different decision-maker may well have reached a different view on the plausibility of the matters referred to in the AAT’s reasons at [116]. However, that does not of itself establish that the finding was legally unreasonable or that the AAT otherwise fell into jurisdictional error: see above at [34]. In this regard, it is well established that a finding as to credibility is a question of fact and is not to be set aside simply because the Court considers that “the probabilities of the case are against, or even strongly against, the finding”: W148/00A at [64] (Tamberlin and R D Nicholson JJ).

74    The appellant also submitted the strength of the consistency in his evidence given over four hearings and multiple statutory declarations was a matter which the AAT ought to have taken into account. The appellant submitted that it was “almost extraordinary” that over all of the interviews and the statutory declarations, only two inconsistencies in his evidence were identified by the AAT (i.e. the date when he went to Gaza and the length of his detention) (T7.32). However, it is clear that in assessing credibility, a decision-maker may weigh many different factors of which consistency in an applicant’s claims may comprise only one factor. Thus as Tamberlin and R D Nicholson JJ explained in W148/00A at [64], “[o]ften a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information coupled with ordinary experience as to likely patterns of response.” As such, the appellant’s complaint is ultimately as to the weight to be given to the extent of consistency in the appellant’s evidence which is a matter falling squarely within the jurisdiction of the AAT to determine: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 (Mason J); Federal Commissioner of Taxation v Primary Health Care Ltd [2017] FCAFC 131; (2017) 252 FCR 496 at [21] (the Court).

75    It follows for these reasons that the appellant has not established that the findings as to his credibility made at [112]-[116] of the AAT’s reasons were erroneous and could not cumulatively provide an adequate or rational basis for the rejection of the documentary material upon which he relied to corroborate his claims.

4.5    Alleged failure to consider all of the evidence and submissions lodged by email with the AAT on 22 March 2016 (Ground 6, amended notice of appeal)

76    Ground 6 of the amended notice of appeal overlaps significantly with the other grounds. As developed in his oral submissions, the appellant contends that the Tribunal fell into jurisdictional error in failing to listen to the audio recording of the RRT in support of a submission that the appellant was unable to articulate his claims at that hearing as he was under pressure (AS2 at [2]).

77    This ground must also be dismissed.

78    First, the appellant contends that the AAT’s decision not to resolve the apparent inconsistency concerning the duration of his detention in Gaza constituted a failure to consider a claim in the sense discussed in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 (Dranichnikov) and Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 (Htun) at [42] (Allsop J (Spender J agreeing at [1])) (AS2 at [15]).

79    In this regard, it is well established that a decision-maker is required to correctly construe and consider claims (and their component integers) made by an applicant or apparent on the material before the decision-maker: Dranichnikov at [24] (Gummow and Callinan JJ (Hayne J agreeing at [95])). As Allsop J (as his Honour then was) held in Htun:

42. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. See also Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding.

80    However, the appellant’s claim, in the sense referred to in these authorities, was that he was detained in Gaza for a period of time for disobeying military orders. The AAT resolved that claim when it rejected his claims that he had served in the Army, was sent on missions, and underwent any period of detention for disciplinary offences (AAT reasons at [125] and [131]), and found that he had fabricated “almost all” of his claims for protection (AAT reasons at [145]). The decision not to listen to the audio recording was a consequence of the AAT’s findings that there were so many other instances of the appellant’s evidence being unsatisfactory that it was unnecessary to reach a view on whether the appellant had given inconsistent accounts of his claim to have been detained in Gaza which might cast further doubt on the genuineness of that claim. It follows that the AAT’s decision not to resolve that issue did not amount to a failure to consider a claim or an integer of a claim so as to result in jurisdictional error.

81    Secondly, the submission that if the AAT had listened to the sound recording it may have given greater weight to the submission as to the appellant’s difficulty in articulating his claims should be rejected for the reasons given at [53] above (cf AS2 at [13]).

5.    CONCLUSION

82    For the reasons set out above, the appeal should be dismissed with costs.

83    The Court expresses its gratitude to Mr Mitchell for accepting the referral for legal assistance made by the Court on 5 March 2018.

Associate:

Dated:    21 October 2019