FEDERAL COURT OF AUSTRALIA

SZRHL v Minister for Immigration and Citizenship (now Minister for Immigration and Border Protection) [2013] FCA 1093

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders made by the Federal Magistrates Court (now the Federal Circuit Court) on 30 October 2012 are set aside. In lieu thereof, it is ordered that:

(a)    the decision of the Refugee Review Tribunal dated 28 February 2012 is quashed;

(b)    the matter is remitted to that Tribunal for hearing and determination according to law; and

(c)    the respondent (first respondent to the appeal) is to pay the appellants’ costs of and incidental to the application to be taxed if not agreed.

3.    The first respondent is to pay the appellants’ costs of and incidental to the appeal, to be taxed if not agreed.

4.    The name of the first respondent be amended to the Minister for Immigration and Border Protection.

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

REASONS FOR JUDGMENT

1    The first and second appellants, SZRHL and SZRHM, are husband and wife respectively. They are each citizens of Bangladesh. They entered Australia on 4 March 2007, on the basis of the first appellant’s, SZRHL, holding a visa known as a student subclass 572 visa, issued under the Migration Act 1958 (Cth) (the Migration Act). An additional student visa was granted to him on 14 May 2009. The following year, on 17 June 2010, that additional student visa was cancelled. That meant that he and his spouse became unlawful non-citizens in Australia.

2    On 25 October 2010, the first appellant sought to lodge an additional application for a student visa but it was deemed an invalid application by virtue of the operation of s 48 of the Migration Act, which provides that an applicant may apply for a visa of a class prescribed for the purposes of that section, but not for a visa of any other class.

3    Thereafter, the appellants applied under the Migration Act for Protection (Class XA) Visas on two occasions. The first occasion was on 12 January 2011. The applications lodged that day were determined to be invalid by a decision given on 11 February 2011. They lodged their second protection visa applications on 28 February 2011. On this occasion, the appellants were granted a Bridging Visa C (subclass 030), which authorised them to remain in Australia pending the determination of their protection visa applications. The second appellant’s protection visa application has a derivative quality in that her claim for that visa is wholly dependent on the acceptance of the basis upon which her husband’s application was made. She advanced no separate factual basis for the granting of a visa to her.

4    On 25 May 2011, a delegate of the Minister for Immigration and Citizenship (now Minister for Immigration and Border Protection), who is the first respondent to the appeal, rejected the applications. The protection visa applications were rejected on the basis that the Minister’s delegate was not satisfied that the first appellant was a person to whom Australia had protection obligations under the Convention relating to the Status of Refugees 1951, as amended by the Protocol relating to the Status of Refugees 1967 (together, the Refugees Convention).

5    The bases upon which the first appellant claimed a protection visa centred on his alleged involvement with the Bangladesh Nationalist Party (BNP), a political party in Bangladesh. On the evidence before the Tribunal, the BNP is the main opposition party in that country. The more detailed bases on which the visa application was made were summarised (at [7]) by Driver FM (as his Honour then was) in the judgement under appeal. I gratefully adopt that summary:

(a)    the applicant fears persecution based on his involvement in political activities via his membership of the Bangladesh Nationalist Party (BNP). He claims to have been the subject of persecution by the Awami League;

(b)    after he finished his Bachelor of Mathematics degree in 1997, the applicant joined the BNP and in the following year became an executive member of the Birol Thana branch;

(c)    in 1999, he was arrested and held in custody for two days and while in custody, he was beaten and tortured ‘inhumanely’. He was later released on bail;

(d)    in 2004, he was elected as the joint secretary of the Birol Thana BNP and then in 2006, was elected an executive member of the Dinajpur district BNP;

(e)    following the political events of January 2007, a number of BNP leaders and activists were arrested and at that time, the applicant’s house was ransacked. As he felt insecure, he arranged a student visa and left Bangladesh on 4 March 2007.

6    The appellants sought the review by the Refugee Review Tribunal (the Tribunal) of the Minister’s delegate’s decision. On 28 February 2012, the Tribunal decided to affirm the Minister’s delegate’s decision. The appellants then sought the judicial review of the Tribunal’s decision in what was then known as the Federal Magistrates Court (now the Federal Circuit Court). That court dismissed their application on 30 October 2012. It is from that order of dismissal that the appellants now appeal to this Court.

7    As pleaded, the appellants’ notice of appeal advances four grounds of appeal:

(a)    The Second Respondent made an error in considering irrelevant matter [sic] which may rise jurisdictional error.

(b)    The Second Respondent made false allegation [sic] that there was no charges against the appellant which was not correct. It is an error from the part of the Second Respondent was not determined by the Court bellow [sic].

(c)    The Second Respondent made an error His Honour erred [sic] by failing to find that the RRT made jurisdictional error by failing to have regard to the appellant adverse finding regarding credibility.

(d)    His Honour FM clearly said “in my view, that while the Tribunal was strictly incorrect in assuming that there was no mention of false case in the applicant’s protection visa application” this significant error rise jurisdictional [sic] and the Court below has not taken I an error [sic].

8    The appellants were represented by counsel in the court below. They appeared on their own behalf on the hearing of the appeal. Unsurprisingly in light of that, the notice of appeal suffers not only from a want of particularity but also from a failure to engage with the judgement below. Instead, it rehearses the grounds of review originally pleaded in the application before that court. When the judicial review application came on for hearing in that court, their counsel, recognising the deficiency in a like want of particularity in the grounds of review, sought on their behalf and was granted leave to file an amended application. The grounds in the application came, by amendment to be these:

Oral evidence concerning searches and destruction of his family’s property:

1.    The tribunal acted ultra vires in making an adverse finding of the First Applicant’s credibility on the grounds that the First Applicant omitted evidence in his Statutory Declaration of searches and destruction of material – namely searches at his parent’s home when a television was destroyed, searches for the First Applicant at his father-in-law’s premises and the destruction of his brother’s nursery business; in doing so, and thereby having regard to an irrelevant consideration giving rise to jurisdictional error.

2.    In the alternative, the Tribunal failed to apply the natural justice hearing rule as it applies in s 424A(1)(a) of the Migration Act and provide notice to the Applicant of the Tribunal’s adverse inference as to credibility arising from omissions in the Applicant’s statement.

3.    In the alternative, the Tribunal’s adverse finding of the omission in the First Applicant’s statutory declaration was irrational and not based on logical probative material, or no evidence, or not based on findings or inferences of fact supported by logical grounds.

Oral evidence concerning a false case relating to arms and bombing

4.    The Tribunal acted ultra vires in making an adverse finding of the first Applicant’s credibility on the grounds that the First Applicant omitted evidence in his Statutory Declaration of a false charge against him; and thereby having regard to an irrelevant consideration giving rise to jurisdictional error.

5.    In the alternative, the Tribunal’s adverse finding of the omission in the First Applicant’s statutory declaration; and/or until specifically asked by the Tribunal during the hearing; was irrational and not based on logical probative material, or no evidence, or not based on finding or inferences of fact supported by logical grounds.

6.    In addition, or in the alternative, the Tribunal failed to take into account relevant considerations when determining to reject the First Applicant’s evidence of a false case, including the First Applicant’s ‘Application for an Applicant who wishes to submit their own claims to be a refugee’; and, the corroborative statements of MD Mizanur Rahman of the Birol Upa-zila, Dinajpur of the BNT and, MD Mukur Choudhury, General Secretary of the BNP, Dinajpur, constituting jurisdictional error.

7.    In the alternative, the Tribunal failed to apply the natural justice hearing rule as it applies in s 424A(1)(a) of the Migration Act and provide notice to the Applicant of the Tribunal’s adverse inference as to credibility arising from omissions in the Applicant’s statement; and/or to provide notice to the Applicant of the Tribunal’s rejection of witness statements by MD Mizanur Rahman of the Birol Upa-zila, Dinajpur of the BNP and, MK Mukur Choudhury, General Secretary of the BNP, Dinajpur.

9    Of these amended grounds, those numbered 2 and 7, pertaining to issues of natural justice, were not pressed before the court below. Likewise, they were not pursued in the appeal to this Court.

10    On the hearing of the appeal, the Minister adopted the commendably fair approach of treating the grounds of appeal as if they were the bases upon which, as particularised in the court below, that court ought to have found jurisdictional error on the part of the Tribunal.

11    Adopting this approach, there are two principal issues to be determined in this appeal. One issue, which is derived from grounds two and four in the notice of appeal and the related particulars in the amended application below, is whether the learned Federal Magistrate erred in rejecting that the contention that the Tribunal impermissibly acted on a factual error about the appellant’s criminal background (the ‘false case issue’). The other issue, derived from grounds one and three in the notice of appeal and the related particulars in the amended application below, is whether his Honour erred in treating the Tribunal’s decision as one turning on findings on the appellant’s credibility which the Tribunal was entitled to make or whether his Honour should have instead concluded that the Tribunal’s failure to be satisfied as to the existence of a protection obligation was illogical or irrational (the ‘credibility and rationality issue’).

The false case issue

12    It was before the Tribunal and remains the first appellant’s contention, necessarily also adopted by his wife, that a “false case” has been brought against him by the Awami League in Bangladesh about arms and bombings. The term “false case” is one first used by the first appellant in response to a question on his protection visa application form which seeks details of any pending criminal charges. No details of the nature of the “false case” were given in the answers on the application form or in an accompanying, supporting statutory declaration.

13    The first appellant subsequently gave details of this alleged “false case”. He claimed that the false case was instigated in 2000, but that he had not faced court in respect of it by virtue of the BNP coming to government in 2001. He further claimed to have been informed by his brother that the false case is still pending such that, should he be returned to Bangladesh, he would face the prospect of court proceedings in respect of that allegation. That prospect was not said to be remote because the Awami League had come to power in Bangladesh in 2009 (see [74]-[75] of the Tribunal’s reasons).

14    The Tribunal concluded that the factual basis upon which the first appellant advanced his protection visa application was not credible. The Tribunal’s reasoning to this conclusion was expressly influenced by its finding that the appellant had made “no mention” in the protection visa application of such a false case, as the following excerpt (at [114]-[119]) from its reasons reveals:

114.    In letters from BNP members submitted to the department, as mentioned above in this decision, it was claimed that a false case was taken out against the applicant by the Awami League. Although closely questioned by the Tribunal as to what harm of difficulties he had with the Awami League when he was in Bangladesh and although asked what news he had been given by his family since his arrival in Australia that would cause him to fear returning to Bangladesh, the applicant made no mention of the case being taken out against him.

115.    It was not until a later stage of his evidence and when specifically asked if any cases had been taken out against him that he finally made that claim. His explanation for not mentioning this important matter earlier in his evidence (when asked what harm he suffered in Bangladesh and what news he received since his arrival in Australia), was that he did not mention the case in the statement he lodged with his protection visa application.

116.    The Tribunal does not accept that explanation as, whether or not he mentioned the existence of the case in his statement, the fact a case was taken out against him and, according to the news he received from family, the fact that it is still active, are important matters; the applicant himself indicating to the Tribunal that the existence of the case was a reason he could not return to Bangladesh. Accordingly, it is inconceivable that the applicant would not have mentioned this to the Tribunal until specifically asked if cases had been taken out against him.

117.    Further, it is also inconceivable that the applicant would actually make no mention of this matter in his statement. The Tribunal rejects his explanation that he chose only to mention in his statement the difficulties he faced when he was in Bangladesh. The case was taken out against the applicant when he lived in Bangladesh. While he claims that it does not cause any problems for him when he was there, because in 2001 his own party came to power, he nevertheless claims to have gone into hiding in Bangladesh once the caretaker government took over and the existence of the case could have increased the risk of harm for him at that time.

118.    Further, since his arrival, he has been told that the case is still active (the Awami League having come to power since he left Bangladesh) and were that claim true, the Tribunal does not believe the applicant would chose to omit that claim from his statement and, instead, only mention certain incidents that occurred when he was in Bangladesh.

119.    The Tribunal also does not accept his claim that he did not mention the case in his statement because he thought the department and the Tribunal would not believe him if he did. The applicant mentioned other incidents of harm which he claims to have occurred in Bangladesh which the department and the Tribunal also may not have believed and he has advanced no satisfactory reason why he would mention those matters and not also the important matter of the case being taken out against him.

[Emphasis added]

15    Although the Tribunal’s statement that there was no reference to the false case in the statutory declaration which accompanied the visa application was correct, the first appellant had nonetheless, as noted, made a reference to a false case in response to a question on the application form itself.

16    The learned Federal Magistrate (at [24]) was alive to the Tribunal’s error, stating:

The Tribunal appears to have been in error in believing that there was no mention in the applicant’s protection visa application of the asserted false case. Part C, Schedule A if the protection visa application form completed by the applicant at question 64 required the applicant to disclose details of any convictions, charges, investigations or crimes committed. Under the heading, “Criminal Charges Pending” the words “a false case” and “Bangladesh” appear. No details were provided. It is unfortunate that the Tribunal appears to have overlooked that reference. While the Tribunal was correct in finding that there was no reference to the false case in the statutory declaration forming part of the protection visa application which set out the applicant’s claims, it was incorrect in assuming that there was no reference to the false case anywhere in the protection visa application.

17    Having noted this error, his Honour concluded (at [35]) that:

… while the Tribunal was strictly incorrect in assuming that there was no mention of the false case in the applicant’s protection visa application, that error has no jurisdictional significance.

18    It is axiomatic that it was not the task of the Federal Magistrates Court on judicial review, much less is it that of this Court on appeal, to review the factual merits of the Tribunal’s decision that it was not satisfied that the appellants were persons to whom Australia had protection obligations under the Refugees Convention. If all that obtains is a value judgement by the Tribunal, reasonably open, as to the factual merits of a claim it is nothing to the point that a judge on a reviewing court might have reached a different state of satisfaction; there is no jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [56] per Gleeson CJ and McHugh J (Hayne J agreeing), at [147] per Gummow J and at [194] per Callinan J. Jurisdictional error would taint the Tribunal’s decision if the Tribunal, as McHugh, Gummow and Hayne JJ (Gleeson CJ agreeing) stated in Minister for Immigration v Yusuf (2001) 206 CLR 323 (Yusuf) at [82]:

…falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

19    Further, having regard to Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618 (Li), it must now be accepted that the Tribunal is constrained to undertake its “core function” of review reasonably, which includes exercising, reasonably, ancillary discretionary powers granted to the Tribunal for that purpose. A decision on review would only transgress this underlying requirement of reasonableness and thereby constitute jurisdictional error if the decision were so unreasonable that no reasonable Tribunal could have so decided the review application. That is a conclusion to be reached with restraint, having regard to the constitutional separation of powers and recognition that the task of determining eligibility for the grant of a protection visa is one consigned by Parliament to the Executive, not to the Judiciary. To approach the question otherwise is to undermine the role and legitimacy of judicial review: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36-37 per Brennan J. It would be as if “the notion of ‘unsafe and unsatisfactory’ has invaded judicial review”: see J R S Forbes, Justice in Tribunals, 3rd Edn, at pp 95-96.

20    The proper role of a court undertaking judicial review and the bases upon which jurisdictional error might be found were accurately summarised in the reasons for judgment of the learned Federal Magistrate, albeit without the benefit of the High Court’s judgement in Li, which had not by then been decided. His Honour viewed these subjects through the prism of the discussion of Yusuf by a Full Court of this Court in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 (unreported, Hill, Sundberg and Stone JJ, 20 June 2005) (VAAD).

21    VAAD was decided against the background of a misapprehension by the Tribunal that a document corroborating the basis of the protection visa applicant’s claim was not already on file and a consequential, erroneous finding that the document had only been provided by the applicant in response to an invitation given in a letter sent under s 424A of the Migration Act to respond to potentially adverse information. The misapprehension by the Tribunal as to when the document was sent formed part of a chain of reasoning that the letter was not genuine and that the applicant was not a credible witness. The misapprehension was not therefore merely an erroneous finding of fact. Rather, so the Full Court concluded in VAAD, it constituted a jurisdictional error constituted by a failure to consider relevant material. That failure had, in the circumstances, deprived the applicant of the possibility of a favourable outcome.

22    Not every factual misapprehension by the Tribunal will give rise to a jurisdictional error of this kind. Some may be, as Mason J stated in Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24 at 40, so ‘insignificant that failure to take it into account could not have materially affected the decision’. SZQRW v Minister for Immigration and Citizenship (2012) 134 ALD 454 (SZQRW) is a recent example of that kind. In SZQRW, the independent merits reviewer had misstated the appellant’s version of events in part of her reasons. The Full Court distinguished the facts of the case from those in VAAD and concluded that no jurisdictional error had occurred because (at [56]):

The error made by the reviewer in this case is to be characterised in the same way as the error in the MZXSA, namely, as an instance of errant fact-finding which occurred in the course of considering the appellant’s claims, and which was relied on only in a peripheral way. In other words, this was an error in fact-finding which could not have materially affected the decision nor have deprived the appellant of the possibility of a successful outcome.

23    In the case mentioned in the passage cited from SZQRW, MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441, the Full Court observed that (at [83]):

A distinction is to be drawn between the failure to deal with a claim (a constructive failure to exercise jurisdiction) and what has been described as errant fact-finding: HTUN v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42] per Allsop J; cited with approval by the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 where the Full Court discussed extensively errors of fact and jurisdictional error in the Tribunal. In Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 at [28] North and Lander JJ observed that an error of fact based on a misunderstanding of evidence in considering an applicant’s claims is not jurisdictional error so long as the error does not mean that the Tribunal has not considered those claims.

24    That there is a difference between a failure to deal with the claim as made for a protection visa and dealing with a claim as made but making a wrong finding of fact in the course of so doing may be accepted. The boundaries of that difference may be elusive where the fact concerned is an integral part of the claim as made. Further, as Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 (Dranichnikov) illustrates, exactly what constitutes the nature and scope of the claim as made for a protection visa may itself be a subject upon which reasonable minds might reasonably differ. That is an ever present risk in cases of this kind where so often the protection visa application will be authored on behalf of, if not by, a person whose first language is one other than English.

25    Yet further, a conclusion that the claim as made has been dealt with and that the error is to be regarded as “errant fact finding” does not, in itself, mean that there can be no jurisdictional error. The end result of that errant fact finding may yet be that the Tribunal has conducted its “core function” of review in a way that is unreasonable in the sense described by Gageler J in Li (at [105]):

[105]    “It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason.” Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.

26    Correctly apprehending the claim as made for a protection visa but determining that claim in a way that is so unreasonable that no reasonable person could so have dealt with it is just as much a failure to exercise a review jurisdiction according to law as not dealing with the claim as made. Even where an administrator has provided reasons which disclose an “evident and intelligible justification” (cf Li at [76] per Hayne, Kiefel and Bell JJ) for a decision those reasons may be intelligible only in the sense of making evident an illogical or irrational process of reasoning to an ultimate conclusion of fact.

27    In the court below, the learned Federal Magistrate accepted a submission of the Minister, which was repeated on the hearing of the appeal, that the claim as made had been considered and that the misapprehension as to the absence of reference to the “false claim” in the visa application was mere “errant fact finding” in the sense described in MZXSA and adopted in VAAD. His Honour concluded that, unlike the outcome on the facts in VAAD, the error in the present case could not possibly have made a difference to the Tribunal’s assessment of the credibility of the first appellant and thus of the basis of his claim for a protection visa. His Honour reasoned (at [34]):

I accept the Minister’s submission that the case before this Court is distinguishable from the cases such as VAAD where omitting consideration of evidence has been held to be jurisdictional error, not least because of the fact that the issue of the “false case” was raised by the Tribunal itself, and there is no reason to imagine that if the Tribunal had noted the response to question 64, the matter would have proceeded any differently. It seems likely that the Tribunal would still proactively have raised the matter with the applicant and asked why it was not discussed in the statement (ie, in the substantive claim) and why the applicant had not mentioned it at the hearing in response to specific questions about incidents after 1999 or news from his family (see the Tribunal’s reasons at [80]-[81]). In fact, had the applicant responded to the Tribunal by pointing out that the matter was raised in his application, there could be no suggestion of a jurisdictional error.

[Emphasis in original]

28    I accept that the Tribunal did deal with the claim for a protection visa as it came to be made by the first appellant. That claim was always that he feared persecution on the basis of his BNP activities. By the time the Tribunal came to review the Minister’s delegate’s decision, even if not before, his assertion that he was subject to a false claim in the courts was put forward by him as one reason why he had a fear of persecution, based on those activities, which was well-founded. The Tribunal did consider and determine the claim as so made. There is not present here a constructive failure to exercise jurisdiction of the kind exemplified in Dranichnikov. To this extent, I am in agreement with the conclusions of the learned Federal Magistrate. As I have highlighted earlier, to reach that conclusion is not necessarily exhaustive of whether the Tribunal’s decision is affected by jurisdictional error. Rather, given the alternative way in which the appellants’ challenge to the Tribunal’s decision was made before the court below and pressed on appeal, it requires consideration now to be given as whether the Tribunal’s failure to be satisfied that the appellants were persons to whom Australia had protection obligations was unreasonable. I have termed that the “credibility and rationality issue”.

The credibility and rationality issue

29    The material before the Tribunal included two letters (letters dated 5 April 2011 and 6 April 2011), purportedly from BNP officials, that had been provided on behalf of the first appellant to the Minister’s delegate. These letters detailed the first appellant’s role in the BNP. Each letter included reference to a ‘false case’ having been initiated against the appellant by Awami activists. These letters were, if accepted as authentic, capable of corroborating the account which the first appellant gave as to the basis upon which he feared persecution. If, on the other hand, the first appellant’s account of a false claim were to be regarded as a recent invention, the letters might be regarded as nothing more than a contrived part of that invention.

30    The Tribunal certainly had regard to the letters. They were reproduced (see para [26] of Tribunal’s reasons) by the Tribunal in its reasons for affirming the Minister’s delegate’s decision.

31    In the course of the hearing it conducted, it was the Tribunal - not the first appellant - that made first mention of the false case. Under the heading, ‘evidence about not previously mentioning the case taken out against him by the Awami League’, the Tribunal provided the following summary of how the subject unfolded at the hearing:

80.    After he had given evidence about the Awami League taking out a case against him, as narrated above, the Tribunal put to the applicant that, before giving that evidence, he had been asked what trouble he had with the opposition apart from being arrested in 1999 and, specifically, in the period between his arrest and the BNP coming to power in 2001. The Tribunal put to the applicant that, in response to those questions, he made no mention of the Awami League taking out a case against him in 2000.

81.    Further, the Tribunal also reminded the applicant that when questioned as to what news he had been given by his family since arriving in Australia, in particular, whether he had been told anything that indicated that it would be dangerous for him to return to Bangladesh, he also made no mention of the case being taken against him by the Awami League. The Tribunal reminded the application that the first time he mentioned this matter in his evidence was when he was specifically asked by the Tribunal if any cases had been taken out against him.

82.    In response to these questions, the applicant said that he made no mention of this matter to the Tribunal until specifically asked about it because he had not mentioned it in his statement. He said he did not mention the matter in his statement because he thought that if he did, the department (and the Tribunal) would not believe him. He was only willing to mention the matter after the Tribunal specifically asked him if a case had been taken out against him.

83.    The Tribunal put to the application that it had difficulty accepting that he would not have mentioned this significant matter in this statement given that, in that document, he mentioned that he had been arrested in 1999, that the Awami League had tried to shoot him and that he left Bangladesh in fear for his life. In response, the applicant said that, in his statement, he only mentioned the difficulties he faced at the time he was in Bangladesh. He said that the case did not cause any problem for him while he was there and so he did not mention it.

84.    The Tribunal asked the application why he did not say in his statement that in 2009 his brother told him that the case was active and alive following the takeover of the Awami League in government. In response, the application repeated his earlier claim that he only mentioned in his statement those difficulties or problems he had when he lived in Bangladesh; as the case did not cause problem for him when he in Bangladesh, he did not mention it in his statement.

[Emphasis added]

32    I have already set out above paras 114 to 119 of the Tribunal’s reasons. There is no doubt that the Tribunal’s conclusion as to the first appellant’s absence of credibility was influenced by its perception that there had been no reference to the “false case” at the time when the protection visa application was made. The learned Federal Magistrate considered that the error made by the Tribunal as to that absence of reference could not possibly have made a difference to that credibility assessment. I respectfully disagree.

33    That credibility findings are “par excellence” the function of the primary decision maker: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [67] is a given. That does not mean that an ultimate conclusion, based on an assessment of credibility, as to an absence of satisfaction that a visa applicant is a person to whom Australia has protection obligations under the Refugees Convention is immune from judicial review.

34    As I opined by reference to earlier authority in SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 at [37], “the adjectives ‘ignorant’, ‘arbitrary’ and ‘perverse’ aptly apply to a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise”. That is this case. The process of reasoning that led to the damning of the first appellant’s credibility by the Tribunal was premised upon the basis that a reference to a “false case” laid against him in the courts of Bangladesh had only emerged belatedly, as opposed to when the visa application was made. That premise was not peripheral.

35    One way of characterising the Tribunal’s reasoning as to the first appellant’s absence of credibility is that it, based as it is upon a false premise, it is illogical or irrational. That is the alternative way in which the appellants grounded their challenge in the court below to the Tribunal’s decision and, in this Court, put their case that the Federal Magistrates Court had fallen into error. A decision so based is not “within the range of possible acceptable outcomes” (Li at [105]).

36    Another way of characterising the jurisdictional error, as the discussion in SZLGP reveals, is that it was procedurally unfair to the first appellant for the Tribunal, when questioning him in the course of the hearing, to have put to him that he had failed to mention a “false case” in the statement in the statutory declaration which accompanied the protection visa application but to have failed to mention to him that he had mentioned that matter in the application itself. The answers which the first appellant came to make at the hearing to questions proceeding from this false premise in turn formed part of the reasoning that led to a conclusion that the first appellant was not credible.

37    Recalling the Full Court’s observation in VAAD at [39], that “[a]n assessment of credibility is not necessarily linear”, it is not, in my view, open to conclude that the appellants have not, as a result of the error made by the Tribunal, been deprived of the possibility of a successful outcome on the merits of their protection visa applications. It is the existence of such a possibility which is both necessary and sufficient to warrant the granting of relief on judicial review: Stead v State Government Insurance Commission (1986) 161 CLR 141; Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82.

38    For these reasons, the appeal must be allowed. The matter is one which must be remitted to the Tribunal for reconsideration according to law.

Associate:

Dated:    23 October 2013