FEDERAL COURT OF AUSTRALIA

AZAFG v Minister for Immigration and Border Protection [2016] FCA 81

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

Introduction

1    This appeal was heard at the same time as another appeal in AZAFF by her litigation guardian Sister Mary Symonds RSM v Minister for Immigration and Border Protection & Another [2016] FCA 80 (AZAFF). The two appellants are sisters. They came together by boat from Vietnam and arrived at Christmas Island in March 2011. AZAFG was born on 30 November 2001 and her older sister AZAFF was born on 5 November 1997. Because both sisters were minors when they instituted their legal proceedings, Sister Mary Symonds, a member of the Order of Sisters of Mercy, was appointed their litigation guardian. The Minister agreed not to seek an order for costs against Sister Symonds in the event that the appellants failed in their respective appeals.

2    The appeals are from decisions of the Federal Circuit Court of Australia (FCCA), who rejected their judicial review applications against a recommendation made by an independent protection assessor (the assessor) that neither appellant was a person to whom Australia owed protection obligations under the 1951 Convention relation to the Status of Refugees as amended by the 1967 Protocol; relation to the Status of Refugees (Refugee Convention).

3    The appellants had common legal representation and they each relied upon the same oral and written legal submissions which were made on their behalves. Accordingly, to avoid unnecessary duplication, I will not repeat matters which are in common in respect of both appeals. These reasons for judgment apply to AZAFF.

Summary of background facts

4    The primary background facts are substantially agreed by the parties in both appeals.

5    As noted above, AZAFG arrived in Australia at Christmas Island by boat, accompanied by her older sister, AZAFF, on 19 March 2011. They were classified on their arrival as unaccompanied minors. They both sought protection.

6    In their respective requests for a protection obligations determination, they relevantly claimed that their parents abandoned them when they were aged eight and four respectively. As a consequence, they claim they were forced to live on the streets of various Vietnamese cities. They claimed that, over a period of six or seven years, they travelled together from one end of Vietnam to the other. They claimed to be homeless orphans who had lived on the streets and had survived by primarily collecting cans and bottles, which they sold for small amounts and used the money to buy bread to survive. They said that they had slept in parks or on the streets and were often harassed by police. They said that on one occasion they had been severely beaten by police.

7    They claimed that they arrived in Vung Tau, situated in the southern part of Vietnam, and went to an area where there were boats. They claimed that they boarded one of the boats to ask for food and, after eating a bowl of rice, they claimed that they fell asleep. They further claimed that, when they awoke, they found that the boat had commenced its journey, which took them to Christmas Island. Both sisters claimed that they feared persecution because of their membership of a particular social group, namely homeless street children or impoverished children in Vietnam (their claims for protection also relied upon a claim that they were Catholics and feared religious persecution, but that is not relevant in the appeals).

8    Their claims were assessed and rejected by a protection obligations evaluation officer from the Department of Immigration and Citizenship (DIAC). Their claims were then referred to an assessor from the Independent Protection Assessment Office. They were represented by the same migration agent. The assessor conducted a joint interview. In addition to the appellants, also present was their migration agent, a Vietnamese interpreter and an independent observer from Life Without Barriers. As will shortly emerge, during the course of the assessor’s interview, there was some discussion about the appellants’ literacy. The assessor drew attention to the fact that the sisters did not present as uneducated and homeless orphans. This conclusion was in regard to the younger sister’s writing in Vietnamese, a sample of which was included in the Departmental file, as well as the confidence with which both sisters conducted themselves during the interview (it might be noted that there was a sample of the older sister’s writing in Vietnamese also in the Departmental file). After the interview, the assessor sent a letter to both the appellants and invited their comments on certain adverse information. Their migration agent provided a detailed reply in a letter dated 24 February 2012. I will return to deal with this correspondence below.

9    On 12 March 2012, the assessor recommended that neither appellant be recognised as a person to whom Australia owed protection obligations under the Refugee Convention. The assessor provided detailed reasons for his conclusions. The reasons were relevantly identical in the case of both appellants. It is convenient to set out the relevant paragraphs principally from the assessor’s reasons for decision in relation to AZAFF, consistent with the way the cases were presented (while noting that the paragraph numbering differed in the case of AZAFG) (errors in the original):

[49]    Both minors appeared comfortable and responded well to questions and were confident to challenge when adverse points were put to them.

…

[64]    I said that my own experiences in Vietnam had lead me to be confident this was accurate and said that it would surprise me to find that being Catholic would put them at risk.

…

[79]    I said that I found it strange that from my own observations that street children usually moved and mixed with groups for protection but she had not mentioned being with any group.

[80]    She said that when they were in Saigon sometimes she and her sister had been with a group and sometimes university students came and offered help to these groups.

[81]    She elaborated by saying that with one of the groups she had been with there were sometimes visitors and university students came and asked if they would like help....

…

[84]    I said that, further, the information before me advised that education in Vietnam is compulsory and free so I asked her if her parents had ever tried to take her to a school. She said that she couldn't remember.

…

[88]    I pointed to a piece of writing in Vietnamese on the DIAC file which I had assumed was written by the Claimant. I put to them that the writing appeared to be complete and correct even in the form of accent marks on it. I said that this indicated to me a reasonable level of learning rather than a few meetings with university students.

[89]    She said that it was as a result from the university students who helped from time to time.

[90]    At this point the younger sister pointed out that the work I was referring to was, in fact, hers rather than that of her sister.

[91]    I pointed out that was impressive. She then said that following arrival volunteers had provided some tuition. She then clarified that the volunteers taught English.

[92]    I put to her that what had impressed me was her Vietnamese writing.

[93]    I put to the adviser that the problems I had with the matter was that the independent information before me could lead me to find that a person practicing Catholicism at a regular level would not face persecution. Secondly, the level of written language and presentation of the minors indicated a greater level of learning than a few casual lessons in the street.

…

[After a recess, and adopting a suggestion from the assessor, the appellants advised that they would prefer to have their migration agent put their case and make submissions.]

[100]    The adviser submitted that the younger girl who had done the writing is a keen learner with a sharp brain and she did not want this to be counted against her with my suggestion that her Vietnamese writing with no formal education was of a high standard.

[101]    I accepted that she is quite a good learner and I had overheard her speaking to one of the Serco guards and considered that her level of English was very good considering that she had only been in Australia for nine months or so and learning formally.

[102]    The older sister interrupted to say that feedback from her sister's teacher was that she was a fast learner and that she and her sister made a point of practicing English and building up their vocab every day. Further that whenever there were visitors from the Vietnamese community [they] always urged them to learn.

…

[131]    Following the interview the independent material was sent to the adviser further commenting that the reviewer had doubts about the credibility of the claimant’s claims to be homeless street children given the young age they claimed this situation arose and the great distance they had travelled together with the independent material from several sources that the boat was a smuggling venture and that parents and guardians of the minors had been party to the arrangement.

10    In his statement of reasons the assessor referred to a letter which he had written after the interview, inviting comment on certain adverse information. The letter included the following paragraph:

As well as these concerns are the healthy and confident appearance and attitudes of the two minors. It could be considered that street children who have been on the streets for the past six to eight years would be malnourished and not have the manners or level of learning that these two have.

11    The migration agent’s written reply included the following material:

Our clients’ claim that they became homeless when they were eight and four and that they travelled to Vung Tau without any assistance. We understand that the Reviewer advises that they believe this aspect of our client's claims are implausible and not genuine. Specifically, the reviewer states that our clients present as healthy and confident and that "it could be considered that street children who have been on the streets for the past six to eight years would be malnourished and not have the manners or level of learning that these two claimants have.” ...

We believe the credibility assessment in this matter is clearly being based on the subjective or "gut feelings" of the Reviewer and do not derive from an objective basis, we believe [this] opens up the decision to significant error and does not follow the guidelines issued by the Australian courts and Australian government relating to assessment of credibility in assessments of refugee status.

…

In this case, the Reviewer has not presented any objective or verifiable facts to support findings that the Clients' appearance is not being consistent with someone who has lived on the streets. We are unsure what specific knowledge the Reviewer holds about how a street child from Vietnam should generally look or act like that would support findings that the clients' appearance in this matter supports that their accounts are implausible...

12    In his statement of reasons, the assessor made the following observations and findings concerning the demeanour and level of education of both the sisters (paragraphs below are in relation to AZAFF but related to both sisters (while noting that the paragraph numbering differed in the case of AZAFG) (errors in the original):

[184]    Throughout the entire interview I continually monitored the reaction of the two children. It was I who insisted on a break to avoid stress. At no time did either minor appear anxious or distressed.

[185]    Moreover, the responses to my questions were not the responses of uneducated illiterate minors. The responses were intelligent and well-argued and argued both politely and confidently.

…

[188]    They claimed to have wandered from place to place until they finally found themselves in Saigon, moving from Saigon to Vung Tau and neighbouring Ba Ria and then, coincidently, boarded a boat with thirty other people, many who were, coincidently from the same region and many, like them, homeless street children.

[189]    This set of claims, of itself is implausible as it suggests that two, extremely young children could travel from one end of the country to the other, surviving with no outside support for the next six or seven years and then suddenly find themselves aboard a boat smuggling many other minors, from the same region, where they paid no passage and all purely by coincidence. The nature of this account is implausible but, other evidence supports the finding that this is implausible.

[190]    These claims come, against a background of a boat of some thirty passengers, the bulk of whom claim to be minors and who claim that they boarded a boat without paying and not knowing that it was coming to Australia.

[191]    According to DIAC investigations the purpose of the boat was smuggling people and together with the nature of smuggling in an amnesty international report I find that this was the case.

[192]    Furthermore, reports from one of the minors who initially provided a similar account to say that she now advises that the truth is that she does have parents, was not a street child and that her parents payed for the trip to Australia, further supports the finding that the boat arrangements were that of a smuggling venture where passengers paid for passage.

…

[196]    The account of the two minors in this matter, together with their appearance and demeanour, against this collection of credible material leads me to find that the two girls were not abandoned, were not street children, but were educated and cared for, if not by their own parents, by a responsible guardian who had the financial resources to pay for the children's passage to Australia and that they were not from an impoverished background.

…

[204]    Neither do I accept that they are uneducated except for a few lessons from university students on the streets.

[205]    I accept the information before me that education is free and compulsory to the age of 14 years. Even though some children do not receive this level of education if their parents keep them at home or the authorities do not enforce this I find this is not the case in the current matter, their reading and writing skills and their oral skills indicated that they have received an education in Vietnam and, would be able to do so if they returned in the reasonably foreseeable future.

…

[224]    Having considered the Claimant’s claims as a whole I find that the Claimant was cared for by her parents or a responsible guardian and was receiving an education and was never a street child or impoverished child in Vietnam. Accordingly, I find that she does not face a real chance of serious harm for reasons of membership of a particular social group of street children in Vietnam or as an impoverished child in Vietnam should she return to Vietnam.

The primary judge’s reasons summarised

13    The appellants sought judicial review in the FCCA. Broadly, they raised the following three claims:

(a)    the assessor did not base his decisions on findings or inferences of fact supported by probative evidence or logical grounds and/or afford the appellants procedural fairness;

(b)    the assessor denied the appellants procedural fairness; and

(c)    the decisions and findings were unreasonable.

14    The primary judge rejected each ground. In dealing with an argument that alternative streams of reasoning can sustain an otherwise illogical conclusion, the primary judge said (footnotes omitted):

64.    In this context, what was said by Besanko J in AZABM v Minister for Immigration & Citizenship appears to be apposite. He rejected the proposition that one illogical stream of reasoning necessarily rendered the entirety of a relevant decision-maker's irrational (sic). He said as follows:

There were five reasons given by the Tribunal in support of its conclusion that the appellant did not have a genuine fear of persecution. Even if one of those reasons lacked substance, it is not possible to say, having regard to the other reasons, that the Tribunal’s conclusion was irrational or illogical.

65.    Of course, the centrality or otherwise of one flawed piece of reason to the ultimate conclusion reached must be examined on a case by case basis to determine whether there has been a jurisdictional failure by the Tribunal concerned...

Appellant’s submissions summarised

15    The appeals raised two central issues. The first concerned the primary judge's conclusion that the assessor’s reliance upon his own expertise in a foreign language as a basis for making an adverse credibility finding was not central to, or decisive for, the ultimate conclusion reached. That conclusion was said to be erroneous because it was inconsistent with the assessor’s reasons. Accordingly, it was not supported by the authority relied upon by the primary judge, namely, AZABM v Minister for Immigration & Citizenship [2012] FCA 860 (AZABM).

16    The second central issue related to the alleged failure of the primary judge to engage with the principal issue contested by the appellant, namely that the assessor’s reliance on his own expertise of a foreign language (Vietnamese) to make an assessment of the appellant’s language proficiency and level of education was permissible. The appellant contended below that any such assessment ought to have been a matter of independent expert evidence.

17    It is convenient to now summarise the appellant’s submissions in respect of these two central issues by reference to the four grounds set out in the notice of appeal, all of which were pressed and some of which overlap. As will emerge the submissions were somewhat repetitive.

Ground 1: Flawed reasoning cannot be isolated

18    The appellant’s case below was that the assessor engaged in a process of reasoning which consisted of the following assumptions:

(a)    that the assessor was expert in the Vietnamese language in the written form;

(b)    that the assessor was expert in evaluating the developmental degree of learning in the Vietnamese language in the written form;

(c)    that the sample of writing provided by the appellant was capable of providing sufficient evidence to evaluate the degree of learning or level of educational achievement of a child in her circumstances; and

(d)    that the assessor’s expertise enabled him to engage in the evaluative exercise with reference to the sampled writing.

19    The above reasoning led to the assessor's conclusion that the appellant's claim with respect to her circumstances in Vietnam lacked credibility, which ultimately led to the assessor's rejection of the appellant's claim to protection.

20    The appellant's case below was that the assessor's reliance on his own expertise in foreign language, as well as an asserted ability to evaluate the appellant's level of education by an assessment of a single sentence of handwriting in a foreign language, lacked an evident and intelligible justification and was thus unreasonable in the relevant sense and constituted a denial of procedural fairness.

21    The appellant argued that the primary judge wrongly relied on AZABM because that case turned upon the existence of entirely separate strands of reasoning, as opposed to strands that were interdependent as was the case here.

22    The appellant submitted that the strands of reasoning leading to the assessor’s adverse credibility finding were woven together and were inseparable. Accordingly, the primary judge was required to, but did not, assess whether the assessor's reliance upon his own expertise in a foreign language gave rise to jurisdictional error. The substantive issue on the application was simply left undetermined.

Ground 2: No probative evidence or logical grounds

23    The primary judge failed to deal with the substance of the appellant’s case, which was the assessor's finding that "their reading and writing skills and their oral skills indicated that they have received an education in Vietnam" must have been based on the assessor's own knowledge of the written form of the Vietnamese language.

24    The assessor's conclusion was not supported by probative evidence. It was derived from an assumption otherwise unexposed and unsupported that the assessor was an expert in Vietnamese language proficiency as well as being an expert in the evaluation of formal educational attainment discerned by recourse to a sentence written in Vietnamese. That factual finding was critical to the ultimate adverse finding on credibility.

25    The premises underlying the assessor's reasoning were not supported by any factual foundation (or expert evidence) beyond an implied assertion of relevant expertise reposing in the assessor. So understood, the defect in the reasoning process leaves the ultimate conclusion unsupported by probative or logical evidence. That is to say, “no rational or logical decision-maker could arrive [at the same conclusion] on the same evidence”: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [130] per Crennan and Bell JJ.

26    Following SZMDS, it has been made clear that "the decisive test is not whether there was an error in logic or reasoning but whether there was no foundation for the conclusion reached": Tisdall v Webber[2011] FCAFC 76; (2011) 193 FCR 260 at [126] per Buchanan J, quoted with approval in Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26 per Jagot J at [85], (Nicholas J agreeing); SZOOR v Minister for Immigration & Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 per McKerracher J at [85] (Reeves J agreeing); Minister for Immigration & Citizenship v SZOCT [2010] FCAFC 159; (2010) 189 FCR 577; per Buchanan J at [64]; SZMWQ v Minister for Immigration & Citizenship [2010] FCAFC 97; (2010) 187 FCR 109; per Flick J at [124]; see the discussion of the differing approaches in the High Court in MZXSA v Minister for Immigration & Citizenship [2010] FCAFC 123 at [42]-[45] per Keane CJ, Perram and Yates JJ.

27    Applying that test here, there was no evidentiary foundation to support the conclusion reached. There was no more than an assertion on the part of the assessor that the appellant’s language proficiency was of a sufficient standard so as to deny the substance of her claim. Such an approach is erroneous. There must be an evidential foundation to support the conclusion reached and that evidentiary foundation could only be supplied in this case by independent expert evidence.

Independent expert evidence required

28    The appellant submitted three reasons that the matters upon which the assessor made adverse factual findings were of a quality and character and that they should have been the subject of independent expert evidence, citing among other authorities Rodriguez v Telstra Corporation Ltd [2002] FCA 30 (Rodriguez) at [25] per Kiefel J.

29    First, the assessor's accumulated knowledge in migration matters may be accepted so far as it goes. However, accumulated knowledge obtained in the process of assessing applications for protection under the Refugee Convention does not extend to expertise in foreign languages.

30    Second, expertise in foreign languages is in an entirely different category to knowledge accumulated in assessing claims for protection. Expertise in the translation of the Vietnamese language to the English language is a specialist skill which is properly characterised as the subject of expert opinion: Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486; R v Bonython (1984) 38 SASR 45; and R v Leung and Wong [1999] NSWCCA 287 at [20] per Simpson J (Spigelman CJ agreeing).

31    Third, it would be incongruous for assessors to resort to their own purported knowledge of foreign languages in light of the protections afforded to appellants in statutory processes more generally: see for example, s 366C of the Migration Act 1958 (Cth) (the Act). That is to say, recourse to accredited interpreters is regarded as fundamental to processes undertaken for the purposes of the Act generally and the independent protection assessment process ought to attract the same obligation. If expertise in a foreign language, as well as expertise in the ability to evaluate educational attainment or development of a person in a foreign language, was not a matter ordinarily reserved to experts trained in that area, there would appear little need for accredited interpreters to be engaged in the process of assessment and review.

Ground 3: Denial of procedural fairness

32    The primary judge rejected the procedural fairness case on the basis that the appellant was on notice about her language proficiency. However, the denial of procedural fairness in this case was not based on a failure to provide the appellant with an opportunity to comment on her written language skills per sè, it was the assessor's failure to reach his decision on the basis of independent evidence and his failure to disclose the basis of his own expertise that robbed the appellant of the opportunity to make an informed submission in response. The appellant was not made aware of the evidence before the assessor with respect to either the assessor's expertise in the Vietnamese language (in its formal written form) or the assessor's expertise in evaluating the educational development or attainment of the assessor.

Ground 4: Unreasonableness

33    The appellant’s unreasonableness case relied upon Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (Singh).

34    The appropriate test to be applied as indicated by Singh is to ask: do the reasons evidence an intelligible justification for the conclusion reached with respect to the appellant's claim that she was a street child? The appellant argued that the primary judge erred in not finding that there was unreasonableness in the following two distinct ways:

(a)    the conclusion drawn was unreasonable because the factual substratum leading to it had no evidentiary foundation; and

(b)    the reasoning process was unreasonable. The process of reasoning with respect to the appellant’s language ability and thus her education proceeded via a series of assumptions that are unsupported by any evidentiary material save for the piece of writing on the DIAC file. The writing does not, of itself, support any conclusion other than the appellant wrote words in a language other than English. The evidence used to support the conclusion was the apparent expertise of the assessor. However, there is no evidentiary basis revealed in the reasons supporting the assessor’s capacity to undertake that process. Indeed, it is likely to be the case that if the assessor had set out in the reasons a reasonable and intelligible evidential justification for the conclusion he reached, the jurisdictional error would probably have been averted, because the assessor would have realised that he was not capable of reaching the conclusion he did in the absence of independent expert evidence.

Minister’s submissions summarised

The primary judge's reliance on AZABM

35    It was not incorrect for the primary judge to refer to AZABM. That case stands for the proposition that if a separate alternative basis (described as an 'alternative stream of reasoning') exists to uphold what is otherwise an irrational or illogical process of reasoning, then the relevant decision can be sustained. In any event, both Besanko J's remarks in AZABM and the primary judge's reference to that case were obiter. Justice Besanko accepted the Minister's contention that the relevant finding was not irrational or illogical. To like effect, the primary judge in this case found that the assessor's decision in this matter cannot be regarded as being vitiated by unreasonableness either in the sense of the conclusion reached by him or the manner in which he reached it, a part of which included an examination of the piece of handwriting in question. This conclusion was plainly right.

Finding not supported by probative evidence or logical grounds

36    Ground 2 of the notice of appeal asserts that the primary judge erred in failing to decide that the assessor did not base his decisions on findings or inferences of fact supported by probative evidence or logical grounds. The sub-grounds allege that the assessor had no probative evidence or logical grounds to support his conclusion that the appellants were educated, and that any assessment of their level of education should have been the subject of expert evidence.

37    Ground 4 is expressed in terms similar to ground 2. It asserts unreasonableness in that connection.

38    Here, the assessor's decision patently had an intelligible justification, as his detailed set of reasons makes plain. There was at least some evidence for the conclusions reached, i.e. the written and oral evidence given by the appellant. Further, the assessor's judgment of the appellant’s level of education was but one consideration among several. When considered in the context of the various findings, and being mindful of the injunction directed to examining the impugned finding in isolation with an overzealous eye seeking to discern some error, the rejection of the appellant’s claims was not unreasonable.

39    Further, the decision did not lack a rational justification. There were several other considerations which, taken together, provided ample basis for the assessor’s conclusion:

(a)    the inherent implausibility of the claims concerning walking to Saigon (sic), the accidental boarding of the boat and the willingness of those operating it to bring them to Australia without charge;

(b)    the implausibility of the appellant’s account of boarding the boat in circumstances where other minors on the boat had made similar claims and had subsequently retracted them;

(c)    the appellant’s appearance (i.e. not appearing malnourished, as might be expected of children living on the streets for a considerable time); and

(d)    the independent country information concerning people smuggling.

40    The finding that the appellant was educated finds support in the general evidence (accepted by the assessor) that children in Vietnam received free and compulsory education, coupled with the assessor's findings as to the plausibility of the claims, on the assessor’s own assessment of her reading, writing and oral skills in the Vietnamese language.

41    It is not legally unreasonable or irrational for a person to make a general assessment of another person's level of education by reason of their apparent capacity to read and write, even in a language that is entirely foreign to the assessor. Nor was it necessary in the circumstances of the case for the assessor to have obtained an independent expert report in relation to the translation of a Vietnamese handwritten document. The appellant’s reliance on Kiefel J's holding in Rodriguez is misguided. As her Honour accepted (at [26]):

It may be said that expert evidence is sometimes over-utilised and is called in situations where an arbiter of fact is in a position to determine the matter for itself. Sometimes all that is necessary is for a method or process to be explained, so that the court or tribunal can then apply it to the facts it finds …

42    Rodriguez concerned a decision of the Administrative Appeals Tribunal (the Tribunal). The Tribunal, including a member with medical expertise and without obtaining any medical evidence on relevant questions, concluded that an employee's admittedly “ongoing major depressive disorder” had ceased to be caused by certain potentially compensable factual events and had become instead, caused by other, non-compensable events. This was because the employee had, after a time, complained to doctors less of the compensable events than of the non-compensable events. Her Honour said (at [24] and [25]):

… If the tribunal did act upon the medical opinion of one of its members it did not state this. In any event if a view is formed by a tribunal which goes beyond the opinions expressed by the experts in evidence, fairness requires that it be disclosed and the parties permitted an opportunity to address it …

… The drawing of an inference without evidence is an error of law … Similarly such error is shown when the tribunal bases its conclusion on its own view of a matter which requires evidence.

43    This is not a case in which the assessor required expert evidence. It was not necessary for the assessor to be informed by a person possessing a peculiar skill relating to subject-matter of the Vietnamese language. When properly understood, the assessor drew conclusions - which were open for him to make - about levels of education from the appellant’s apparent intelligence, capacity to formulate responses, and ability to read and write. The relevant findings depended on a range of considerations, which were not separate but bore upon each other. The assessor was properly in a position, as the arbiter of fact, to form a correct judgment about such matters without expert evidence. In effect, the assessor considered that the evidence of the appellant’s handwriting skills were not consistent with a person who claimed to have been an abandoned child with limited education. The relevant finding is best understood as one directed to an assessment of credibility.

44    The evaluative assessment undertaken in this case should be regarded as a matter for the finder of fact. The judgment was one in which reasonable minds might differ.

Procedural fairness

45    Grounds 2 and 3 both contain traces of alleged denial of procedural fairness. In the case of ground 2, the allegation does not rise higher than a hypothetical or abstract allegation. How unfairness is revealed in any case will depend on the circumstances. Fairness is essentially a practical concept. There is no unfairness in not putting an expert report, which was not obtained, for comment.

46    In relation to ground 3, the assessor's reasons make it plain that he did rely upon his own assessment of the appellant’s appearance and demeanour, and his impression of her skill level in reading, writing and oral skills in the Vietnamese language.

47    Significantly, at interview and in the post-interview letter, the assessor drew attention to the possibility that he may find that the appellant was in fact more educated than she said, and that her level of education was inconsistent with she and her sister being street children who had learnt to write from a few meetings in the street with university students. It was therefore open on the known material that the assessor was directing attention to the sisters’ fluency in written Vietnamese and their manners, which spoke contrary to their claims to be uneducated street children. That was the gravamen of the allegation. The assessor indicated that he may have regard to the demeanour of the appellants - in particular, their confidence and manners - and that that might lead him to conclude that they were not uneducated street children.

48    The assessor adequately disclosed the “evidence” supporting the inference that the sisters were educated. That evidence was, relevantly, the appellants’ demeanour, in the sense of their confidence, manners and capacity to respond intelligently in the interview, and the apparently high standard of writing of the younger sister (AZAFG). These considerations were taken into account circumstantially together with the inherent implausibility of their account and the evidence concerning other claimants from the same boat in arriving at the conclusion that their claims, including as to their level of education, were not genuine.

49    A decision-maker is not obliged to draw the attention of a person to any issue that is apparent or obvious from the known material, or the nature of the decision to be made. Nor is a decision-maker obliged to expose his or her mental processes or provisional views prior to making the decision (see SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63; (2006) 228 CLR 152 and Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; (1994) 49 FCR 576).

50    Applying the relevant principles to the facts of this case, the assessor was not obliged to disclose his mental processes as the sisters gave their evidence. But where, as here, credibility was at issue, the assessor was required to disclose the substance of his concerns, which he did.

51    More particularly, with respect to the complaint that the assessor was required to disclose his qualifications, the reasons do not clearly identify any particular qualifications or background experience that he claimed to have relied upon. This part of the ground therefore proceeds on the premise of speculation and should be rejected.

52    In any event, so far as background experience was concerned, the assessor did refer in the interview to his own experiences in Vietnam and to his own observations of street children, presumably meaning street children in Vietnam. The sisters must be taken to have been on notice that the assessor had such experience and might draw upon it in assessing whether they were educated in Vietnam.

53    Accordingly, the assessor sufficiently raised the substance of his concerns and afforded procedural fairness.

Resolution of the appeal

54    It is convenient to address each of the four grounds of appeal in turn. As will shortly emerge, I consider that none of the grounds has been made out. I substantially agree with the Minister’s submissions as to why the appeal should be dismissed.

The AZABM point (ground 1)

55    The central point raised by ground 1 is whether the primary judge erred in relying on AZABM in rejecting the appellants’ argument that the assessor fell into jurisdictional error because, in determining that the appellants’ claims were not credible, he took into account his own assessment of the appellants’ literacy and language skills in Vietnamese and did not obtain expert evidence. There are several reasons why this ground of appeal must fail.

56    First, the primary judge reasoned that the assessor’s findings in respect of AZAFG’s handwriting in Vietnamese was not “decisive” in his ultimate conclusion. The adverse credibility findings made by the assessor were based on a range of factors which caused him to disbelieve the appellants’ overall claims of being homeless and uneducated orphans. These matters included:

(a)    the inherent implausibility of the claims that, over a period of six or seven years, the two young girls had walked from one end of the Vietnam to the other and had survived primarily by selling recycled cans and bottles;

(b)    the appearance and demeanour of the sisters, including the confidence and intelligence with which they responded to questions at the interview;

(c)    the implausibility of their account of how they came to be on the boat which brought them to Australia, including the coincidence that they happened to find themselves on board a boat with 30 other people, many of whom made strikingly similar claims to those of the appellants of being homeless orphans who travelled to Australia by boat without paying the people smugglers;

(d)    the fact that one of the other minors on board the boat subsequently retracted her claim and admitted her parents had paid the people smugglers; and

(e)    press reports of other parents having paid for their children’s passage on the boat.

57    Without question, the assessor’s assessment of the appellants’ literacy and education formed part of his adverse credibility findings, as is evident from [209] of his reasons for decision concerning AZAFG ([205] in AZAFF’s case). Significantly, however, the assessor’s evaluation of AZAFG’s writing skills was one of several elements which underpinned his ultimate conclusions on these matters. The assessor also relied upon his assessment of the sisters’ reading and oral language skills, which he had personally observed.

58    In my view, it was open to the primary judge to conclude that the handwriting issue was not decisive. No error has been established in respect of his Honour’s rejection of the appellants’ claim of jurisdictional error.

59    Secondly, I consider that the primary judge’s reference to AZABM was not critical to his Honour’s reasoning. It is evident from [63] to [65] of his Honour’s reasons for judgment that the reference to AZABM was made in the context of an assumption that there was some irrationality or illogicality in the assessor’s reliance on the handwriting issue. There was no actual finding by the primary judge that there was any such illogicality or irrationality. Accordingly, the Minister’s submission that the primary judge’s reference to AZABM was merely obiter must be accepted.

No probative evidence (ground 2)

60    This ground overlaps with ground 4 and the claim of unreasonableness.

61    The essence of the complaint is that the assessor ought to have obtained expert evidence on the issue of the appellants’ education and their proficiency in Vietnamese and the assessor fell into jurisdictional error when he simply relied upon his own observations and knowledge of the Vietnamese language.

62    The primary judge was plainly cognisant of the appellants’ argument on this matter. It is summarised at [52] to [58] of the primary judge’s reasons for judgment. The argument was rejected on the basis that the handwriting issue was a relatively minor part of the assessor’s reasoning and was not decisive by itself. As is evident from the reasons given above, no appealable error has been established in relation to that reasoning.

63    In any event, I would not accept the appellants’ argument that the assessor was not entitled to make the findings that he did based on his own personal observations and knowledge rather than seek and rely upon expert evidence. In my view, it was open to the assessor to rely on his own personal observations of the appellants’ demeanour and appearance in assessing their credibility. Moreover, in a case such as this where the assessor happened to have some familiarity with the Vietnamese language, I see no jurisdictional error in him relying on that knowledge and assessing the appellants’ proficiency in writing and speaking Vietnamese. It is not as though the assessor was being called upon to make a precise assessment of that level of proficiency as if he was marking an examination paper. Rather, the issue arose in the context of the appellants’ claim that they were homeless and orphaned children who had wandered the streets and roads of Vietnam for six or seven years and whose only education came occasionally from well-intentioned university students. Indeed, even without any familiarity with Vietnamese, it is evident from the sample of AZAFG’s handwriting that the writing was very neat and well-formed.

64    In my opinion, Rodriguez is of limited, if any, relevance. As emphasised above, the assessor was carrying out an assessment exercise which did not have a direct statutory foundation. The assessor’s role and function and powers were different from a statutory tribunal such as the Tribunal. The assessor’s role is entirely inquisitorial and results in a recommendation being made to the Minister as to whether or not a claimant should be given protection. It may be that in an exceptional case an assessor will need to consider whether the case is one which requires expert evidence but the circumstances here did not give rise to any such legal obligation. The assessor’s impression of the appellants’ language and education skills contributed to the assessor’s conclusion that their claims were not credible, but it was not, by itself, decisive. In any event, I reject the appellants’ submission that the assessor was not entitled to make his own assessment of the appellants’ language and education skills in the way that he did.

65    Moreover, in my view, Rodriguez is distinguishable. In that case, several medical experts had given evidence as to the medical condition of a claimant for workers’ compensation. The Tribunal made a finding on that issue which had not been addressed by any of the medical experts in their evidence. In addition, the Tribunal’s finding was inconsistent with the expert medical evidence. The Tribunal had effectively substituted its own opinion for that of the experts without providing the experts with an opportunity to comment on that opinion. It is hardly surprising that in those circumstances Kiefel J found that the Tribunal had fallen into appealable error. The circumstances here are very different.

66    Ground 2 is rejected.

Procedural unfairness (ground 3)

67    There is no dispute that the appellants were put on notice and given an opportunity to respond to the assessor’s concerns regarding their level of learning and their overall demeanour and appearance. These concerns were raised by the assessor during the course of their interview. They were then further itemised in the letter which was sent to the appellants’ migration agent after the interview, in which the areas of concern were identified for the purposes of inviting a response.

68    The appellants’ procedural fairness case was directed to the assessor’s failure to disclose for comment the fact that he proposed to rely upon his own observations, experience and familiarity with the Vietnamese language in coming to the adverse findings which he did.

69    The primary judge found there was no “practical injustice” because:

(a)    the assessor’s findings regarding the appellants’ language skills were not “greatly influential” in shaping the assessor’s conclusions and recommendations;

(b)    an opportunity was given during the course of the hearing to comment on the handwriting issue (noting also that the assessor himself had expressly raised the matter during the interview and in circumstances where it was self-evident that he did so based on his own knowledge of the Vietnamese language); and

(c)    the assessor recorded at [97] in his statement of reasons concerning AZAFG ([93] in AZAFF’s case) that he put to the appellants’ migration agent at the interview that “the level of written language and presentation of the minors indicated a greater level of learning than a few casual lessons in the street”.

70    No appealable error has been established in respect of the primary judge’s reasoning on this issue. Indeed, I respectfully agree with it.

71    It is notable that the appellants were also given a further opportunity to respond to the assessor’s concerns when their migration agent received the post-interview letter. As noted in [10] above, the assessor made express reference in the letter to his concerns regarding the claims that the appellants were homeless orphans. Those concerns were said to be based on the appellants’ “healthy and confident appearance and attributes” and their “manners or level of learning”. Self-evidently, these concerns were based on the assessor’s personal observations of the sisters. Significantly, although the appellants’ migration agent drew attention in her written response to doubts about the basis of the assessor’s characterisation of the sisters’ appearance, no comment was made in that response regarding the basis of the assessor’s concerns regarding their level of language. This serves to further underline the correctness of the primary judge’s conclusion that there was no practical injustice in the particular circumstances here.

72    Ground 3 should be rejected.

Unreasonableness (ground 4)

73    In view of the appellants’ reliance on the concepts of unreasonableness and irrationality, particularly in ground 4, it is desirable to emphasise some important matters relating to these judicial review grounds.

74    First, it is important to note that the Minister did not dispute that these heads of review were available in respect of decision-making under the non-statutory independent protection assessment process. The High Court’s decision in Plaintiff M 61 / 2010 E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319 (Plaintiff M 61) leaves little, if any, room for debate on the question of whether the decision-making process of an independent assessor is subject to the requirements of procedural fairness: it plainly is. There may be room, however, to question whether the principles identified in cases such as Li and Singh relating to legal unreasonableness can be fully transposed from the context of judicial review of decisions made in the context of statutory provisions which confer discretionary power into the non-statutory realm of decision-making by an independent protection assessor. As noted above, however, the Minister did not dispute that such principles are relevant to judicial review of an assessor’s recommendation. Accordingly, the Court has not heard any argument on the issue and it will be assumed, without deciding, that these authorities and principles are relevant to the assessor’s decision-making processes.

75    Secondly, (and proceeding on that assumption), the following two principles from Singh are relevant here:

(a)    where a decision-maker has given reasons for a decision, as is the case here, the reasons themselves will be centrally relevant in assessing whether unreasonableness in the legal sense is present, noting that it would only be in “a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable” (at [47]); and

(b)    the reasoning process in judicial review for legal unreasonableness “will inevitably be fact dependent”. Thus any analysis which relies on the concept of “intelligible justification” in reviewing a decision-maker’s reasons for exercising power in a particular way “must involve scrutiny of the factual circumstances in which the power comes to be exercised” (at [48]).

76    Thirdly, while cases such as Li and Singh identify important principles which guide the nature and scope of the head of judicial review for legal unreasonableness, they ought not to be viewed as exhaustively identifying those principles. As Allsop CJ recently observed in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [10] (to similar effect, see also at [62] per Griffiths J):

[10]    This concept of legal unreasonableness is not amenable to minute and rigidly-defined categorisation or a precise textual formulary. For instance, in argument, the submission was put that [76] of Li in the judgment of Hayne, Kiefel and Bell JJ contained two (different) “tests”: (1) if upon the facts the result is unreasonable or plainly unjust and (2) if the decision lacks an evident and intelligible justification. The submission reflected the dangers of overly emphasising the words of judicial decisions concerning the nature of abuse of power, and of unnecessary and inappropriate categorisation. The plurality’s discussion of unreasonableness at [63]-[76] in Li should be read as a whole – as a discussion of the sources and lineage of the concept: [64]-[65], of the limits of the concept of reasonableness given the supervisory role of the courts: [66], of the fundamental necessity to look to the scope and purpose of the statute conferring the power to find its limits: [67], of the various ways the concept has been described: [68]-[71], of the relationship between unreasonableness derived from specific error and unreasonableness from illogical or irrational reasoning: [72], of the place of proportionality or disproportion in the evaluation: [73]-[74] (as to which see also French CJ at [30] and see also McCloy v New South Wales [2015] HCA 34; 325 ALR 15 at [3] (French CJ, Kiefel, Bell and Keane JJ)), of the guidance capable of being obtained from recognising the close analogy between judicial review of administrative action and appellate review of judicial discretion: [75]-[76].

77    Bearing these general principles in mind, I am not satisfied that appealable error has been demonstrated in respect of the primary judge’s rejection of the appellants’ claims of unreasonableness and/or illogicality. In particular:

(a)    the assessor’s reasons for decision do disclose an intelligible justification for his conclusion to reject the appellants’ credibility. They included, but were not limited to, the assessor’s personal assessment of the appellants’ level of education. That was important, but not decisive, in the assessor’s overall rejection of the appellants’ claims, which were inherently implausible in several respects (see [56]-[58] above);

(b)    it is not legally unreasonable or irrational for a person conducting an independent protection assessment to make a general assessment of another person’s level of education by reason of their apparent capacity to read and write; all the more so in a case such as this where the assessor had some knowledge of Vietnamese and his assessment of their language skills was disclosed to the appellants’ migration agent for any response to be made and none was forthcoming; and

(c)    the primary judge’s analysis is supported by the following observations of Crennan and Bell JJ in SZMDS at [135]:

On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here...

78    Finally, in my view, the appellants’ claims in respect of unreasonableness and/or irrationality are not strengthened by their argument that expert evidence had to be obtained. That submission must be rejected for the reasons set out above.

Conclusion

79    For these reasons, the appeal must be dismissed. The Minister did not seek costs.

Associate:

Dated:    16 February 2016