FEDERAL COURT OF AUSTRALIA

CIC15 v Minister for Immigration and Border Protection [2018] FCA 795

ORDERS

THE COURT ORDERS THAT:

1.    Order 1 of the orders of the Federal Circuit Court of Australia made on 26 October 2017 is set aside.

2.    The decision of the Administrative Appeals Tribunal (“AAT”) made on 15 October 2015 is set aside.

3.    The matter the subject of that decision be remitted to the AAT differently constituted to be determined in accordance with law.

4.    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

BROMBERG J:

1    The appellant is a 33 year old Sri Lankan national, a fluent Tamil speaker who is a Muslim. He was born on the west coast of Sri Lanka where he worked as a fisherman and as a self-employed builder. After arriving in Australia, the appellant lodged an application for a Protection (Class XA) visa (“visa”) under s 65 of the Migration Act 1958 (Cth) (“Act”) on 31 October 2012.

2    A delegate of the first respondent (“the Minister”), refused to grant the visa on 19 December 2013. By this appeal, the appellant appeals the judgment of a judge of the Federal Circuit Court of Australia delivered on 26 October 2017 and published as CIC15 v Minister for Immigration & Anor [2017] FCCA 2825. By that decision, the primary judge rejected the appellant’s application for judicial review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister not to grant the appellant the visa.

3    The appellant made a number of claims before the Tribunal. Only one of the claims for protection there made is relevant to the disposition of this appeal. Relevantly, and in broad outline, the appellant claimed that he had, shortly before leaving Sri Lanka, given assistance to his neighbour who was involved in people smuggling. He claimed that, largely without being conscious throughout the whole of the period that his neighbour was so involved, he assisted by driving his neighbour who was engaged in gathering clients for a people smuggler to transport those people out of Sri Lanka. He claimed that when he recognised what was happening, and that he may be identified as being involved in people smuggling, he became concerned. He claimed that he discovered that two officers of the Criminal Investigation Department of Sri Lanka (“CID”) came to his neighbour’s house and asked for him by name as the driver of the vehicle involved in the neighbour’s operations and that, as a consequence, he became concerned and left Sri Lanka on a boat bound to Australia.

4    I will return shortly to the reasons of the Tribunal but, at the outset, I should record that the grounds of review relied upon by the appellant before the primary judge were different to, and did not include, the ground specified by the appellant in his Notice of Appeal in this Court. In essence, the appellant seeks to raise a new ground on appeal. In order to raise a new ground, the appellant needs the Court’s leave. Opposition to the raising of the new ground is not made by the Minister. And, on the basis of the principles which guide the exercise of the Court’s power to grant leave as set out by Griffiths and Moshinsky JJ in Singh v Minister for Immigration and Border Protection [2018] FCAFC 52 at [57], I am satisfied that it is expedient in the interests of justice to allow the appellant to rely on the new ground.

5    The essence of the ground sought to be relied upon by the appellant is that the Tribunal erred because it made adverse credibility findings in relation to the appellant’s association with his neighbour who was involved in people smuggling. The particulars to that ground allege that the adverse credibility findings made by the Tribunal were made on the basis of inconsistencies that were very small, insignificant or relatively minor.

6    The appellant appeared before me unrepresented but assisted by an interpreter. He relied on an outline of written submissions in which he contended that the Tribunal had been too stringent in its approach in relation to the credibility finding made against him, and that this constituted an error of law and a failure by the Tribunal to exercise its jurisdiction. The Minister submitted that the credibility findings which were made by the Tribunal were open to it on the materials before it and rejected the appellant’s allegation that in making the credibility finding that it did, the Tribunal committed jurisdictional error. I will return to those submissions later.

7    I should first deal with one aspect of the Minister’s submission to the effect that the making of credibility findings is a function of the primary decision-maker par excellence and that, accordingly, if a credibility finding is open on the materials, it ought not be disturbed on judicial review. That proposition is not entirely supported by the relevant authorities. The authorities recognise that a credibility finding may well constitute jurisdictional error. As Robertson J stated in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 (“SZRKT”) at [78]:

It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.

8    The relevant principals were summarised by Griffiths, Perry and Bromwich JJ in ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 (“ARG15”) at [83] as follows:

Many of the relevant legal principles which guide the review or a judicial review of findings concerning credibility were recently discussed by the Full Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [36]-[44] per McKerracher, Griffiths and Rangiah JJ. They may be summarised as follows:

(a)    McHugh J’s oft quoted comments in Ex parte Dumairajasingham (which were cited by the primary judge in the proceedings here) to the effect that a finding on credibility is the function of the primary decision-maker (or Tribunal) par excellence, does not mean that such findings are not susceptible to review for jurisdictional error on several potential grounds;

(b)    the issue whether or not a credibility finding is tainted by jurisdictional error is “a case specific inquiry” and it is not one which should be analysed by reference to fixed categories or formulas (SZRKT at [77] per Robertson J);

(c)     in each case, what the decision-maker has decided must be analysed in detail in order to determine whether or not a jurisdictional error has occurred (SZRKT at [77] per Robertson J); and

(d)     without derogating from what is said above regarding the danger of relying too heavily on “fixed categories or formulas” (which includes the danger of blindly repeating McHugh J’s comments in Ex parte Dumairajasingham), adverse credibility findings might involve jurisdictional error on recognised grounds such as:

(i)     failure to afford procedural fairness;

(ii)     reaching a finding without a logical or probative basis;

(iii)     unreasonableness; and/or

(iv) other grounds as discussed by Flick J in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; 233 FCR 451 at [20]-[21] and in SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31], as referred to approvingly by the Full Court in CQG15 at [40]-[42].

9    As that summary identifies, the Full Court in ARG15 relied on the principles earlier discussed by McKerracher, Griffiths and Rangiah JJ in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (“CGQ15”) at [36]–[44]. The authorities to which their Honours referred to in CQG15 included the judgment of Gordon J in SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 (“SZLGP”) where, at [25]–[26], her Honour relevantly said this:

[25]    Notwithstanding the breadth of the Tribunal’s discretion to make weight and credibility determinations, the requirement described in WAIJ to make those determinations “judicially” imposes limits that credibility and weight determinations be made rationally and logically, and be articulated properly. It is worth noting in this context that such requirements are not unique to Australia. Indeed, the United States Court of Appeals for the Ninth Circuit has stated that for a migration Tribunal’s adverse credibility finding to survive appellate scrutiny, there must be a “legitimate articulable basis” for the Tribunal’s finding and the Tribunal “must offer a specific, cogent reason for any stated disbelief”: Stoyanov v INS (9th Cir 1999) 172 F3d 731, 736 (internal citations and quotation marks omitted). The Court in Stoyanov went on to state that “minor inconsistencies cannot support an adverse credibility finding” and that “trivial errors by an asylum applicant do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible”: Stoyanov at 736 (internal citations and quotation marks omitted).

[26]     Here, the inconsistencies (or rather, omissions) in the first appellant’s evidence adverted to by the Tribunal are at most minor or trivial. Further, the Tribunal’s reasons disclose no legitimate articulable basis for the finding, based on those omissions, that the first appellant fabricated fundamental aspects of his refugee claims. Instead, the Tribunal, even while acknowledging that it is not to be expected that an applicant will include every detail in the initial application, concludes without reasons that these are details that should have been provided, finds that they are details so weighty or important as to go to fundamental aspects of the claims, makes an adverse credibility finding, and infers that the claims were fabricated. Once the bases for these findings and inferences of fact are tested in the manner outlined, it is apparent that the Tribunal’s determination is based on illogical or irrational findings or inferences of fact. It is a decision not supported by reason. To put the matter another way, “because it is based upon such findings … the determination is an unreasoned decision”.

10    The Full Court in CQG15 addressed a contention that there was no logical or probative basis to find that the appellant in that matter was not a witness of truth. In assessing that challenge the Full Court also endorsed the principles collected by Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, where, at [52] and [54]–[56], his Honour said this:

[52]    As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “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”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

        …

[54] The Minister’s submission in that regard is rejected. The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].

[55]    Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].

[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: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.

11    It is evident from those authorities that an irrational or illogical finding, or irrational or illogical reasoning, leading to a finding made by a decision-maker that an applicant is not a credible or honest witness may lead to a finding of jurisdictional error. That is particularly the case where the adverse credibility finding was critical to the decision of the decision-maker and is based on minor or trivial inconsistencies.

12    I need now to return to the decision of the Tribunal.

13    The Tribunal noted in its decision that the appellant’s claim for a visa was supported by a statutory declaration and, at [11], set out extracts from that statutory declaration. The Tribunal accepted that the appellant had travelled to Australia by boat without a travel document but had provided several documents identifying his name and place of birth, including his national identity card and birth certificate. The Tribunal found that the appellant had provided consistent information regarding his identity and place of birth. The Tribunal accepted that the appellant is a citizen of Sri Lanka. The Tribunal then turned to what it characterised as the importance of adopting a reasonable approach in a finding of credibility. The Tribunal referred to two judgments, relevantly, Minister for Immigration and Ethnic Affairs v McIllhatton and Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 at [482] (Foster J) and Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at [39] (Kirby J).

14    The Tribunal then stated that with that consideration in mind, it would turn to an assessment of the appellant’s claims. At [20] the Tribunal stated that it did not accept the appellant’s claims regarding his association with his neighbour who was involved in people smuggling. The Tribunal relevantly said this:

While the applicant has consistently claimed that all he did was drive his neighbour, [L], to various places in an auto which he borrowed from a friend, the Tribunal does not accept the applicant engaged in this activity due to a number of inconsistencies and discrepancies in his evidence.

15    The Tribunal at [21]–[25] then set out each of the inconsistencies or discrepancies it found. These are conveniently summarised in the submissions of the Minister as follows:

(1)    In his statutory declaration, the appellant claimed to have driven his neighbour around in a tuk tuk for “around a month in April-May”, whereas at the Tribunal hearing, he claimed to have done so for a period of two months, up until a few days before leaving Sri Lanka on 28 June 2012.

(2)    In his statutory declaration, the appellant claimed to have been paid 400 rupees a night by his neighbour which the appellant then gave to the tuk tuk owner, whereas at the Tribunal hearing he claimed to have been paid anywhere between 400 and 750 rupees per night.

(3)    At the Tribunal hearing the appellant claimed that when he spoke to his neighbour about whether he was involved in people smuggling, his neighbour neither admitted nor denied such an involvement, whereas in his statutory declaration the appellant stated that his neighbour told him that he was gathering people for someone else who was organising the boats.

(4)    In his statutory declaration, the appellant stated that he continued to drive his neighbour for a week after he “knew what he was doing was wrong, and I could get in trouble for helping him, but he was pestering me”, whereas at the Tribunal hearing the appellant claimed to have only driven him another two or three times over a two-week period because his neighbour only had one leg, and there was no-one else to take him.

(5)    In the delegate’s decision, the appellant was recorded as stating that CID officers went to his neighbour’s house and asked his wife about the whereabouts of her husband, whereas at the Tribunal hearing the appellant said that they had not identified themselves as CID.

16    It is not apparent from the Tribunal’s decision whether, at the hearing before the Tribunal, the Tribunal gave the appellant an opportunity to explain each of the discrepancies or inconsistencies which the Tribunal identified other than one. As is recorded at [21], it seems that in relation to what I have identified as the first discrepancy, the appellant was given an opportunity to respond and his response was that this had happened three years earlier. It seems apparent and not in contest that some three years of time passed between the making by the appellant of his statutory declaration which, in each case, was relevantly relied upon by the Tribunal to find a discrepancy, and the evidence given by the appellant to the Tribunal at the hearing.

17    At [26] the Tribunal records that it has taken into consideration the appellant’s response that he had said what he could remember and that it happened a long time ago. The Tribunal accepted that these events happened “a few years ago and that this may, in some circumstances, make recalling aspects of what occurred challenging”.

18    The Tribunal also said that it had regard to the significance of the events and the fact that they occurred over a short period of time just before the appellant left Sri Lanka. At [26] of its reasons, the Tribunal then relevantly said this:

Although a passage of time may explain a few trivial inconsistencies and discrepancies, and those identified above, in and of themselves may be minor, when taken together, the Tribunal finds that they undermine the credibility of the applicant’s claims.

19    The Tribunal went on to say that it had also had regard to submissions made by the appellant’s adviser as to the appellant’s lack of familiarity with the formal interview process, distrust of authorities and the fact that the appellant had been required to convey information through an interpreter. The Tribunal held, however, that those factors did not account for the discrepancies and did not dispel the Tribunal’s concerns regarding the credibility of the appellant’s claims. The Tribunal then concluded at the end of [26] that, for the reasons stated: “the Tribunal does not accept that the applicant drove [L] around as he claimed”.

20    That non-acceptance by the Tribunal was critical to the Tribunal’s non-acceptance of the appellant’s claim that he had a well founded fear of harm should he be returned to Sri Lanka. Although it is not apparent from the Tribunal’s decision what Convention reason was being considered as the basis for the appellant’s claim under the Refugees Convention (Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees, done at New York on 31 January 1967), at [30], the Tribunal concluded that it did not accept that the appellant was involved in people smuggling or that he had been falsely implicated in people smuggling activity.

21    The Tribunal did not accept that, if returned to Sri Lanka, the appellant would be suspected of having been involved in such activities. The Tribunal held that, on that basis, it did not accept that the appellant faces a real chance of serious harm from the Sri Lankan authorities or anyone else should he be returned to Sri Lanka. It is clear that the Tribunal’s conclusion in this regard was based on the Tribunal’s holding that it did not accept the appellant’s claim to have been involved with his neighbour as credible and regarded the claim to be false.

22    At [44] of its reasons, the Tribunal also considered whether the appellant might be harmed on being returned to Sri Lanka as a failed asylum seeker. It referred to reports which suggested that persons without any adverse profile are released at the airport without further interest. The Tribunal then said this:

As the Tribunal does not accept the applicant’s claims regarding his involvement in people smuggling or that [L] has falsely implicated him in people smuggling activities, the Tribunal does not accept that the applicant has been of any interest to the authorities in the past or that he would be of any interest to them for this reason on his return to Sri Lanka.

23    On the basis that the appellant would not have an adverse profile, the Tribunal concluded that he faced no real chance of serious harm on return to Sri Lanka as a failed asylum seeker. The Tribunal then turned to the complementary protection obligations set out in s 36(2)(aa) of the Act and at [48] came to essentially the same conclusion as that which I have just recorded. The Tribunal held that it did not accept that the appellant’s return to Sri Lanka would involve a real risk of significant harm. As earlier discussed, the Tribunal did not accept that the appellant was involved in people smuggling or that he was falsely implicated in those activities. Ultimately, the Tribunal rejected the appellant’s claims and affirmed the decision of the delegate not to grant the appellant a visa.

24    In arriving at its finding at [26] that the appellant should not be believed as to his claim to have been involved in driving for his neighbour’s people smuggling operation, the Tribunal relied on the five discrepancies earlier outlined. The Tribunal’s reasons record, and the Minister accepts, that the Tribunal accepted that each of those discrepancies, of itself, may be regarded as minor or trivial. The Tribunal seems also to have accepted that each of the discrepancies, considered alone, may be explained by the passing of time.

25    As earlier stated, particularly when a credibility finding on a matter critical to a claim is based on minor or trivial discrepancies, jurisdictional error may be apparent and a lack of logicality or rationality may be the cause. The criticality of the credibility finding made by the Tribunal in this case to the claim made by the appellant and the disposition of the Tribunal’s function is evident. I consider that the Tribunal’s reasons for concluding that the applicant had fabricated his evidence that he had been involved in assisting his neighbour lack a rational basis and are based on illogicality.

26    As I have said, each of the five discrepancies identified by the Tribunal was, of itself, minor or trivial, and each was recognised by the Tribunal as being explicable by reason of the passing of time. If each discrepancy is explicable by reason of the passing of time, each discrepancy, on its own, contributes nothing towards a conclusion that the appellant fabricated his story. I recognise that the Tribunal came to its conclusion relying on the sum of the five discrepancies but the difficulty with that reasoning is that if none of the discrepancies of itself contributed any weight in favour of the conclusion, it does not follow that the sum of the weight of the five discrepancies supports the conclusion. In plain language, five times nothing equals nothing; it does not equal something.

27    It may be that the Tribunal intended to say that three inconsistencies are explicable by reason of the passing of time, but that five inconsistencies are not. However, if all of the discrepancies were trivial or minor and each the possible product of poor recollection it is difficult to understand how three may be explicable but five are not. Once it is accepted that a person’s recollection of trivial matters will be poor, it logically follows that all or most trivial matters will be equally affected. It does not then logically follow that five rather than three discrepancies in relation to matters that are trivial, supports a conclusion that each such discrepancy is based on a fabrication.

28    The Minister submitted that each of the inconsistencies went to essential elements of the story. I do not accept that submission. It seems to me that the discrepancies were inconsistencies as to detail, not as to the essential facts of the story. It is, I think, for that reason that the Tribunal itself characterised the inconsistencies as minor or trivial. In any event, even if the inconsistencies had touched on matters more germane to the fundamentals of the story, so long as the matters were trivial, what I have said in relation to a lack of logicality remains.

29    For those reasons, I am satisfied that the decision of the Tribunal is infected with jurisdictional error, and that jurisdictional error was not identified by the primary judge, although no criticism can be made of the primary judge given that the appellant relies on a new ground.

30    It is appropriate that orders be made setting aside the decision of the primary judge and remitting the matter to the Tribunal to be determined in accordance with the law.

Associate:

Dated:    30 May 2018