FEDERAL COURT OF AUSTRALIA

BIR17 v Minister for Immigration and Border Protection [2019] FCA 850

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs of the appeal, as agreed or assessed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    The appellant is a Shia Muslin from Najaf in Iraq. He arrived in Australia on 22 January 2013 as an “unauthorised maritime arrival” as that term is defined in s 5AA of the Migration Act 1958 (Cth). On 15 February 2016, he applied for a Temporary Protection (subclass 785) visa. A delegate of the then titled Minister for Immigration and Border Protection refused to grant the visa. That decision was affirmed on review by the Immigration Assessment Authority in the exercise of its review function under Pt 7AA of the Act. The learned primary judge dismissed an application for judicial review of the Authority’s decision: BIR17 v Minister for Immigration & Anor [2019] FCCA 155. This is an appeal from that judgment.

THE VISA CRITERIA

2    The power to grant or refuse to grant a visa is conferred on the Minister by s 65 of the Act. The Authority’s power to affirm a decision of the Minister is conferred by s 473CC(2)(a).

3    The effect of s 65(1)(b) of the Act is that the Minister must refuse to grant a person a visa if the Minister is not satisfied that the person fulfils the visa criteria. The same obligation applies to the Authority in the exercise of its review function.

4    As they applied in the appellant’s case, the criteria for the grant of a protection visa included the alternate criterion in s 36(2)(a) of the Act (Refugee Criterion) and s 36(2)(aa) of the Act (Complementary Protection Criterion). Relevantly s 36(2) of the Act provided:

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

…

5    The word “refugee” in s 36(2)(a) is defined in s 5H, relevantly as follows:

5H    Meaning of refugee

(1)    For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a)    in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)    in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

….

6    The phrase “well-founded fear of persecution” is defined in s 5J relevantly as follows:

5J    Meaning of well-founded fear of persecution

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

Note: For membership of a particular social group, see sections 5K and 5L.

…

THE AUTHORITY’S DECISION

7    The appellant claimed that he had operated a successful butcher shop in Najaf with ten employees. He said that in September 2012 a competing store had been opened nearby by a person (Mr H) with connections to the militia group Asa’ib Ahl al-Haq (AAH). The appellant claimed that Mr H had caused armed members of the AAH to be posted outside of his store. This, he claimed, had made it difficult for customers to enter the store and so had affected his income. The appellant said that he had confronted Mr H in an altercation on 5 November 2012 in which he had verbally abused Mr H and the group, including a cleric. He claimed that in the course of the altercation Mr H had threatened to kill him. For the purposes of the Refugee Convention, the appellant claimed to fear persecution by Mr H and the AAH by reason of his membership of a social group, being persons who were perceived to be wealthy.

8    The Authority accepted that the appellant was a Shia Muslim from Najaf who had operated a successful butcher shop and that he had ceased operating his shop on 5 November 2012 because of a conflict with Mr H. The Authority also accepted that Mr H had threatened the appellant’s life and that the appellant had left Iraq because he feared he would be harmed.

9    However, the Authority identified inconsistencies in the information the appellant had provided in support of his claims. The inconsistencies were said to arise between the information given in an interview conducted with the appellant on 28 January 2013, six days after his arrival in Australia (the arrival interview), the information he had provided in a statutory declaration made on 12 February 2016 in support of his visa application and the information he had provided in an interview with the delegate (the PV interview) conducted on 10 January 2017.

10    In his arrival interview the appellant had not stated that Mr H had connections with the AAH and had otherwise not mentioned the AAH when asked why he had fled Iraq. When asked “Were there any armed groups, political groups or religious groups operating in the area you lived?” the appellant responded “No”.

11    The Authority summarised the content of the statutory declaration and the PV interview as follows:

8.    …  The applicant lodged his PV application and supporting statutory declaration on 15 February 2016. In this he states that [Mr H] was a member of the AAH. After [Mr H] opened his own shop he would have a number of armed militia men lurking directly outside of the applicant’s shop. Most of the applicant’s customers were not prepared to push their way through armed men to get to the shop. As a result the applicant had virtually no customers. He approached [Mr H] about this and they had an argument. The armed men were ready to shoot the applicant but [Mr H] told them to wait, he would teach the applicant a lesson he would not forget. The applicant closed up his shop for the day and did not return. After his departure from Iraq a group of AAH men came to the applicant’s house looking for him. They were told that he had left the country and responded that they would track him down.

9.    The applicant and his representative Mr Alkafaji attended the PV interview on 10 January 2017. In relation to the central issue the delegate asked the applicant what was the motivation of the AAH members in standing outside his shop. The applicant responded that it was because he was doing well. Anyone who was doing well [financially] was a target. In relation to the final confrontation on 5 November 2012 the applicant said that as well as the armed AAH militia men there was a turbaned member of the clergy with them. The applicant put to [Mr H] that customers were not able to enter his (the applicant’s) shop and [Mr H] responded that the shop opposite was his shop and he could do what he liked. The applicant ‘just lost it’ and swore at [Mr H], the men outside his shop as well as the AAH. He swore at their dignity and honour. He maligned their parentage. Because he had sworn at a clergyman they were prepared to shoot him on the spot, but [Mr H] urged them not to because there were too many people around.

12    The Authority noted submissions made on behalf of the appellant to the effect that at the arrival interview the appellant had been told to state his reasons for leaving Iraq in one or two sentences and that this was why the appellant had not mentioned the AAH or the cleric at that time. The Authority continued:

11     … I also note that the applicant was subsequently asked in the arrival interview whether there were ‘any armed groups, political groups or religious groups operating in the area where you lived’. The applicant replied in the negative. I am of the view that had the AAH figured at all in his departure, then he would have appropriately mentioned them in answer to this question. I also note that the details of the event of 5 November 2012 are again altered in the applicant’s oral evidence as given at the PV interview. In this he stressed that it was his abuse of the cleric in particular that had the militia men about to shoot him. The presence of the cleric had not been previously mentioned. I am of the view that such a crucial detail would have been included in the applicant’s statutory declaration, had it occurred.

12     I accept that the applicant ceased operating his successful butcher’s shop because he had an altercation with another shopkeeper. I am satisfied that as a result of their conflict [Mr H] threatened the applicant’s life. I am not satisfied however that the applicant’s business declined because armed AAH militia men were posted outside it every day, that there was a member of the clergy with the armed men, or that the applicant abused the honour of a cleric or the AAH during his standing argument with [Mr H] on 5 November 2012.

13    Under the heading “Refugee assessment”, the Authority repeated its finding that the appellant was the subject of a threat from a fellow shopkeeper and that “due to this” he had left the country as he feared he would be harmed. It noted the appellant’s claim that he had been persecuted as a member of a social group, namely “people perceived as being wealthy”. The Authority continued (at [16]):

The applicant also submits that [Mr H] was a member of the AAH therefore the threat to him is not only the threat of harm from a fellow shopkeeper, but a threat from the representative of a feared militia group. Country information indicates that violent crime has increased since 2013 with militia groups using extortion and kidnapping to raise funds. I consider that if the AAH had wished to target the applicant due to any perceived wealth, the more usual tactic would have been to demand ‘protection money’ or the like, rather than depriving his successful business of customers and income. At the PV interview the delegate asked whether the AAH men had asked him for money and he replied that they had not. I am not satisfied that the applicant was targeted because he was perceived as wealthy or by the AAH or any other militia groups because of his financial success or for any other reason. I conclude that any actions taken by [Mr H] against the applicant were as a business competitor, rather than as a member of the AAH.

(Emphasis added)

GROUNDS 1 AND 2    

14    In the proceedings before the primary judge it was for the appellant to show that the Authority’s decision was affected by jurisdictional error: s 474, s 476 of the Act; Craig v South Australia (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [24] (French CJ, Bell, Keane and Gordon JJ).

15    By his first ground of judicial review, the appellant alleged that the passage at [16] of the Authority’s reasons (emphasised above) disclosed jurisdictional error because there was no evidence before the Authority concerning how a militia group was likely to act if it wished to target a person. The Authority was said to have engaged in a reasoning process which was irrational and therefore illogical. Rejecting this ground, the primary judge reasoned as follows:

(1)    Much depended on the question to which the Authority was addressing itself at [16] of its reasons.

(2)    The question was not how the militia in Iraq might be expected to behave if they wished to target a person.

(3)    Rather, the Authority had relied on a limited generalisation as to the tactics the militia would usually employ if the militia wished to target a person because of the person’s perceived wealth, namely a generalisation that the militia would “in those circumstances” usually demand protection money or something similar.

(4)    The limited generalisation was, in turn based on a broader common sense generalisation: a person who targets another person because of that other person’s wealth usually does so to extract money or some other value from that person.

(5)    The Authority was “entitled to rely on these generalisations based on the Authority’s common experience without any specific evidence to support them” (at [20]). For this proposition, the primary judge citied this passage from Heydon, JD, Cross on Evidence 10th Australian edition, LexisNexis Butterworths at [3200] which, his Honour said applied a fortiori to fact finding by Administrative Tribunals:

Much empirical material is employed in decision making by courts without evidence being received, without judicial notice being taken, without admissions being made, and without any specific warning being given to the party against whom that empirical material is used … . It is material which is part of the make-up of the human beings who form courts arising out of their general common experience of life.

(6)    There was, in any event, evidence to support the “generalisation”, namely country information to the effect that militia groups in Iraq use extortion and kidnapping to raise funds.

(7)    Even if the Authority had reasoned irrationally in the manner alleged, the error would not have made a difference to the outcome because the Authority had previously identified (at [11] and [12] of its reasons) a sufficient and discrete basis for rejecting the appellant’s claims. That discrete basis had turned on discrepancies in the appellant’s claims and did not depend upon any assessment as to how a militia group in Iraq might be expected to behave.

16    The first and second grounds of appeal are to the effect that the primary judge committed appealable error by failing to identify the alleged error and for concluding that any such error could not have been material to the outcome in any event.

Submissions and consideration

17    The appellant raised three arguments.

18    The first is that the more limited generalisation to which the primary judge referred was a question of evidence and not a matter to be presumed by the Authority on the basis of its common experience.

19    I would accept that the Authority did indeed reason from an unspoken factual premise that the militia’s motivations for targeting persons perceived to be wealthy was to extract money from them. That is not a generalisation as such. It is a factual finding about the subjective motivations for the militia targeting a particular social group.

20    Contrary to the conclusions of the primary judge, I do not consider that the motivations for a militia group in Iraq to target those perceived to be wealthy to be a subject matter upon which the Authority may reason from its “common experience”. I have some difficulty identifying what is common about the subject matter with which the Authority was concerned. The beliefs and motivations of militia groups in Iraq is not a part of ordinary human experience of life so as to permit persons appointed to the Authority to make factual assumptions or to take steps in reasoning that have no support in the materials before it. There is nothing to suggest that the decision-maker in the present case had any actual personal experience or expertise in the composition, activities and motivations of the AAH in Iraq. In any event, the Authority was dependent upon the referred material and indeed was required by the Act to confine itself to those materials subject to narrow exceptions that do not presently apply.

21    Notwithstanding all that, in my view the primary judge was correct in his alternate conclusion that there did exist an adequate evidentiary foundation for the Authority’s findings. At [19], the Authority said that the information referred to it (which included the country information) did “not indicate in any way that well-off individuals are targeted for harm other than by militias, as discussed above”. The “above” discussion of that subject is the Authority’s reference at [16] to militias using extortion and kidnapping to raise funds. These two paragraphs, read together, provide adequate support for an inference that if the militia targeted the wealthy in Iraq, they did so to extract money from them to fund their activities. From that premise it was open to the Authority to conclude that the militia might reasonably be expected to use more direct demands for money, as distinct from the financial advantage that might be achieved by opening a rival butcher shop.

22    The appellant’s second argument is that the “common sense generalisation” referred to by the primary judge was consistent with the appellant’s case. It was submitted that the militia had indeed sought to extract money from the appellant by adopting tactics that affected his business income which, it was said, was diverted to Mr H’s competing store. I reject that argument. The Authority was aware that the appellant’s business had suffered because of “tactics” employed by Mr H who owned a competing store. Fairly understood, the Authority’s reasons are to the effect that militia would usually employ more direct tactics than the more indirect means the appellant claimed had been employed against him. I do not consider these conclusions to be affected by the language of “generalisations” employed by the primary judge. I have, in part, rejected an analysis based upon wider or narrower “generalisations”. I conclude that, on a proper interpretation of the Authority’s reasons, the Authority made a finding of fact about the militia’s purposes for targeting wealthy people and that finding had some evidentiary support in the material before it.

23    The appellant’s third argument is expressed in written submissions as follows:

…  if the [Authority] relied only on the evidence of Iraqi militia’s ‘more usual tactics’, this would not have been a reason to reject the Appellant’s claim. The only reason that the Appellant’s claim would be rejected in that instance is if the [Authority] concluded that the existence of a ‘more usual tactic’ was sufficient to conclude that a different tactic was not carried out by the AAH in this instance.

24    The difficulty with this submission is that it misapprehends the task of the Authority under s 65 of the Act. The Authority accepted that the appellant had been targeted by Mr H and that the actions of Mr H were consistent with an intention to harm the appellant’s business by diverting customers to Mr H’s own business. The Authority positively concluded that the activities of Mr H were to be regarded as the actions of a business competitor and not the actions of the AAH. It is not to the point that the Authority might reasonably have arrived at a different conclusion by a different path of reasoning (including a path by which the militia acted other than in its usual way). It was not irrational or otherwise legally unreasonable for the Authority to arrive at the conclusion that it did, fairly interpreting its reasons as a whole. The first ground of appeal must therefore be rejected.

25    In the circumstances it is not necessary to ask whether the asserted error, if made, was material to the outcome or not. The question raised by the second ground of appeal does not arise.

GROUNDS 3 TO 7

26    Grounds 3 to 6 concern the Authority’s reliance upon the negative response the appellant had given at his arrival interview when asked whether there were any armed groups, political groups or religious groups operating in the area where he lived. Ground 7 concerns the Authority’s adverse credibility findings arising from perceived inconsistencies in the appellant’s accounts as to the presence and role of the cleric in the altercation that occurred on 5 November 2012.

27    It is convenient to deal with these remaining grounds together.

28    The Authority expressed the view (at [11]) that had the AAH figured at all in the appellant’s departure from Iraq, then he would have mentioned the AAH when asked whether there were armed groups operating in the area where he lived.

29    The Authority further held that the involvement of the cleric had not been mentioned by the appellant in the arrival interview or in his statutory declaration. The relevant portion of the statutory declaration states:

However, my problems started when in the beginning of 2012 another competitor [[Mr H]] opened butchery business which was located in front of my business, [Mr H] was a ring leader in Asaeb ahl alhaq group, however he employed his son in the business, he and his son were very envious and started harassing me and my employees, they used to have followers who were holding guns and meet nearby his shop, things gradually started deteriorating as people started to be scared to shop from my butchery shop.

Just before my departure from Iraq, I have an altercation with [Mr H] about why he bring some armed men and put them in front of my business. I complained to him about that as I was losing customers every day because of the fear these groups put in the hearts of the men and women who shop from me, he replied that these men belong to alasaeb group and no one can prevent them from being there, he threatened me that if I don’t like it so I should close my shop. I was very angry so I swore at him and his group, the armed men were ready to shoot at me but he told them to wait as he will teach me a lesson that I will never forget …

(Emphasis added)

30    The Authority said that the appellant had, in his PV interview, “stressed that it was his abuse of the cleric in particular that had the militia men about to shoot him”. At that interview, the appellant had been asked if there was any contact with Mr H after Mr H had opened the competing store. The appellant responded:

He kept a group of militia men close to my shop that would not allow customers to come near my shop. For example these groups gathered it wasn’t my shop they wouldn’t even dare to go near my shop. I told him this is not right because I’m losing customers and I’m losing income. He wouldn’t budge so we had an argument we started yelling at one another. So, I, I actually was forced to abuse this group of people and I swore at the actual Asaih group. The individuals who were one of the people among the group was actually a clergy, meaning he was wearing the religious garb. And they wanted to kill me straight away and they basically prepared their weapons. The person his name [Mr H] he said no don’t do it now because there’s a lot of people here. There were thousands of people there at the market. He said leave him for now I know how to deal with this person.

31    Later in the interview the following exchange occurred:

Interviewer    So in your final confrontation can you take me through what you said to the militia group?

Interviewee    He argued with me and him and I said that customers are no longer coming into my shop. Predominantly customers that come to the shop are either woman with their children. When they see these militia men with their arms standing in front of the or congregating in front of the shop, people would not dare to come over to my shop. They said this is my shop and I’ll free to do as I please. So we started arguing. I abused them. I swore at them. There was a clergyman with a turban, and he is a Sayyid, he’s referred to as a Sayyid, the meaning is from the progeny of the prophet. So when I abused the clergy, they wanted to attack me and kill me.

…

Interviewer    So when you said you abused them, what did you say to them?

Interviewee     I swore at the dignity and honour, I swore at the actual militias group called Asaeb.

Interviewer    What were your actual words?

Interviewee     I swore at their father and the mother of Asaeb. It is a figure of speech. Because I basically abused them very grossly. I said words to the effect that you are a woman on a horse.

Interviewer    I don’t know what you said. The father of the Asaeb did you say.

Interpreter    The father of Asaeb, this is a figure of swearing, just like saying that they are bastards and their fathers are bastards.

Interviewer    And what did they, how did they react?

Interviewee     They straightaway took their arms out, they wanted to kill me.

32    The Authority expressed the view that the “crucial detail” about the cleric would have been included in the appellant’s statutory declaration, had it occurred. Earlier in its reasons the Authority had noted that no mention had been made of the cleric at the arrival interview, although the passage at [12] of the Authority’s reasons in my view confirms that no weight was placed on that particular omission. Read fairly, the Authority’s reasons indicate that it accepted the appellant’s explanation that he had been told to keep his responses brief and so had not raised the issue of the cleric in response to the question as to why he had left Iraq. The Authority’s adverse credibility finding in connection with the cleric was based on the appellant’s failure to mention the cleric in his protection visa application and the statutory declaration that supported it.

33    It was these disparities that explained the Authority’s rejection of the appellant’s claims concerning the involvement of the AAH in the events giving rise to his fear of persecution.

34    On his application for judicial review the appellant submitted that the Authority’s reasoning process in relation to the disparities was “irrational and therefore unreasonable” in a number of related respects. It was submitted that the credibility findings were based on “minor inconsistencies and trivial errors” that were insufficient to support the IAA’s ultimate finding”. It was further submitted that the question concerning armed groups had been asked at a point in the arrival interview after the appellant had been asked to “briefly” state why he had left Iraq. It was further submitted that any disparity arising from the content of the arrival interview had to be assessed in accordance with the principles stated by the Full Court in MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 at [56] (as to which see [39] below). In relation to the issue concerning the cleric, it was submitted that the Authority had identified an inconsistency when in fact there was none.

35    The grounds of appeal are to the effect that the primary judge erred by rejecting these arguments.

Principles

36    In SZLGP v Minister for Immigration & Citizenship [2008] FCA 1198, Gordon J identified jurisdictional error affecting a Tribunal’s decision founded on adverse credibility findings. In that case, the then-named Refugee Review Tribunal (RRT) concluded that the visa applicant’s claims to be a refugee were fabricated. The appellant in that case had claimed (among other things) that he had helped to arrange the safe passage of his brother and cousin out of China on a fishing boat. That aspect of the claim was rejected because in an earlier statement made in support of the visa application the appellant had not mentioned the name of a village to which he had taken his brother and cousin. Gordon J referred to WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 in which Lee and Moore JJ said at [21]:

Failure of the tribunal to act ‘judicially’ will necessarily stamp the review procedure as one which did not accord an applicant practical fairness or justice. To act ‘judicially’ and according to law the tribunal must carry out its decision-making function rationally and reasonably and not arbitrarily: see Bond at CLR 366–7; ALR 45–6; ALD 30–1 per Deane J. That is to say, the tribunal cannot determine the matter by a ‘tossing a coin’ or by making a ‘snap decision’ or by acting on instinct, a ‘hunch’ or a ‘gut-feeling.

37    Gordon J was unable to discern any rational basis for the RRT’s conclusion that the initial failure to disclose the name of the village was so important as to go to fundamental aspects of the refugee claims or to undermine the claimant’s overall credibility. Her Honour concluded:

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’.

38    The principles were more recently summarised by Allsop CJ in CWR16 v Minister for Immigration and Border Protection [2018] FCA 859 as follows (at [62]):

The fact that a finding by the Tribunal is on a matter of credit does not ‘shield its decision-making processes from scrutiny’: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. As Flick J wrote later in that paragraph, credit findings, ‘like all findings, must be rationally made and based upon facts having logical and probative weight’. Determinations on credibility and weight must ‘be made rationally and logically, and be articulated properly’ and minor inconsistencies and trivial errors in an applicant’s account cannot be used to find that an applicant is not credible: SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 at [25] per Gordon J. Where the Tribunal goes on to use such minor inconsistencies or omissions to make an adverse credibility finding and conclude that an applicant’s claims are concocted, without disclosing a legitimate articulable basis for the finding, then it may become apparent that a decision is based on illogical or irrational findings or inferences: SZLGP at [26].

39    In MZZJO, the Full Court dismissed an appeal in which adverse credibility findings of the RRT were subject to challenge. The Court concluded that the primary judge had not erred in finding no jurisdictional error in circumstances where the RRT had relied on omissions in an arrival interview, among other things, to reject the appellant’s claims. However, in obiter, the Court said:

56    On the latter issue, some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called ‘people smuggling’. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.

57    Had the Tribunal relied only on a failure to mention details at the entry interview, we may have been inclined to see this as involving a misunderstanding of its task on review. However, the Tribunal relied on inconsistencies arising from information presented by the appellant after the entry interview as well, including inconsistencies between the delegate interview and what he said to the Tribunal, and the somewhat inexplicable reluctance of the appellant to have his childhood friend, who arrived on the same boat, give evidence to corroborate aspects of his account. We consider its approach was open to it as a merits decision-maker, and the Federal Circuit Court was correct to so find.

The AAH disparity

40    The primary judge dealt with the AAH disparity at [35] as follows:

The Authority did not accept the applicant’s claim that his business declined because AAH militia men were posted outside it every day because during the Entry Interview the applicant answered ‘no’ [to] the question whether there were ‘any armed groups, political groups, or religious groups operating in the area’ in which the applicant lived. The applicant’s having answered this question ‘no’ cannot reasonably be considered a minor inconsistency or otherwise trivial. The presence of armed men in the area in which the applicant lived was a central element of the applicant’s claims for protection as stated in the Statutory Declaration and during the TPV Interview.

41    Later (at [44]) the primary judge said this:

… There is nothing in the circumstances surrounding the Entry Interview that rendered irrational or legally unreasonable the Authority’s relying on the applicant’s answering that question ‘no’; as a reason for not accepting the applicant’s claims that his business declined because armed AAH men were posted outside the applicant’s business every day, or that the applicant abused the AAH during the altercation with the shopkeeper on 5 November 2012.

42    In my judgment, the primary judge did not err in characterising the involvement of the AAH as a central element in the appellant’s claims for protection. His Honour was correct to find that the “no” response to the question that had been put to the appellant gave rise to an inconsistency that was neither minor nor trivial.

43    The primary judge went on to say (at [41]) this of the judgment in MZZJO:

With respect, it is difficult to identify from this passage what is meant by ‘some caution in relation to omissions by applicants of matters at entry interview’, and how any lack of caution is capable of grounding a finding that the decision-maker has misunderstood its task. The passage cannot reasonably be taken to establish a distinct category of jurisdictional error that applies to the treatment of an applicant’s giving or omitting to give information during entry interviews, with jurisdictional error being established if the decision-maker fails to exercise caution when assessing the significance of the applicant’s giving or omitting to give information. In my opinion MZZJO goes no further than stating that when assessing whether a decision-maker has acted unreasonably or irrationally in relying on what an applicant said or omitted to say at an entry interview, the court exercising judicial review jurisdiction may need to have regard to whether there was anything in the circumstances of the entry interview that would render irrational or legally unreasonable the decision-maker’s reliance on what the applicant said or omitted to say during the interview.

44    I agree with that analysis and now add the following.

45    The obiter remarks of the Court in MZZJO are concerned with matters that may affect the relative weight that might be afforded inconsistencies or omissions founded on things said or not said by a visa applicant at an arrival interview. Read in the context of what is said at [57], the Court in MZZJO should be understood at [56] to be cautioning a decision-maker against rejecting outright a person’s claim to be a refugee by reference solely to omissions or inconsistencies arising from arrival interviews in fact having features mentioned in that paragraph. In such a case, the existence of the factors may result in the arrival interview affording no proper evidentiary foundation for a conclusion that past events did not occur as the visa applicant claimed. The Court did not posit a rule to be applied in every case. In all cases, the weight that may be rationally (that is, lawfully) afforded omissions or inconsistencies identified by reference to an arrival interview must be considered in the context of the individual case. The circumstances may be such as to wholly explain an omission so that no weight may be afforded the omission at all in any assessment of a visa applicant’s credit. Whether or not factors of the kind to which the Court referred exist, and whether or not they explain an omission, is for the Tribunal to decide, within the bounds of legal reasonableness and in accordance with the rules of procedural fairness, to the extent that they apply.

46    The appellant’s failure to mention the cleric at the arrival interview is illustrative of the point. The appellant claimed that he had not mentioned the cleric in the interview because he had been told by the interviewer to keep his response short when asked why he had left Iraq. As I have said, the Authority appears to have implicitly accepted that explanation. It did not reason from the premise that the omission to mention the cleric at the arrival interview adversely affected the appellant’s credit. That particular omission was adequately explained.

47    The explanation given in relation to the cleric did not, in the Authority’s view, explain the appellant’s “no” response to the interviewer’s question about armed groups operating in the area where the appellant lived. That view was open to the Authority. The question could just as briefly have been answered “yes”.

48    I do not accept the submission that the Authority gave no consideration at all to the circumstances in which the arrival interview was conducted. To some extent the circumstances were apparent from the transcript of that interview and also from the PV interview to which the Authority had regard. It was clear from the transcript of the arrival interview that the appellant had been told to give a “yes” or “no” answer to the question in issue. The question before the primary judge was whether it was open, on the material before the Authority, to conclude that the “no” response was given because the AAH had not in fact featured in the appellant’s subjective fear of persecution.

49    It was submitted (and for present purposes I am prepared to accept) that there existed some material before the primary judge that bore on the question of whether the features of an arrival interview identified in general terms by the Court in MZZJO were present in the appellant’s case. In the appellant’s written submissions, the following propositions were made, with some cross references to the materials before the primary judge that tended to support them:

(a)    The entry interview took place 6 days after the Appellant’s arrival in Australia and the appellant was suffering from seasickness and anxiety because the sea voyage was ‘really really rough’;

(b)    A large part of the entry interview addressed the question of the Appellant’s voyage to Australia and people smugglers;

(c)    It can be inferred from the interview transcript that this was the Appellant’s first interview, that only the Department official and interpreter were present, that they were strangers and that the Appellant was asked a large amount of information about personal matters of family and individual history;

(d)    It can be inferred from the TPV interview that the Appellant did not appreciate how the information from the entry interview would be used;

(e)    The fact that Iraq is a country where authority figures may be viewed with some fear and mistrust is a matter which can be assumed by decision makers according to their ‘common experience of life’;

(f)    It is obvious from the transcript that the Appellant was being asked to digest a lot of information quickly and in circumstances he might perceive as hostile.

50    Even accepting these circumstances to exist, it remained open to the Authority to afford some weight to the fact that the appellant had positively denied that armed groups operated in the area in which he lived, especially having regard to the importance of the AAH’s involvement to his claims under the Refugee Criterion. In my view it was not necessary for the Authority to state why it afforded the omission weight, other than stating its conclusion that the response would have been “yes” if the events had occurred as the appellant subsequently claimed they had.

51    As I have said, the Court in MZZJO did not purport to specify a judicial method for courts exercising powers of judicial review of decisions under the Act where incongruities or inconsistencies arising out of an arrival interview are relied upon. More specifically, the Court did not purport to identify any one or more of the features it mentioned as mandatory considerations for the purpose of the exercise of any particular power: EBC17 v Minister for Immigration and Border Protection [2018] FCA 1836 at [22] (Farrell J). Nor do I consider the Court to have suggested that an “incautious approach” taken by a decision-maker in the Authority’s position would be demonstrative, in and of itself, of jurisdictional error. The Authority in the present case is not shown to have reasoned irrationally, whether by identifying this omission or by assessing the significance of the omission to its overall assessment of the appellant’s credibility.

52    Finally on this topic, I should add that in oral submissions counsel for the appellant contended that it was not open to the Authority to afford any weight to the appellant’s negative response without first asking itself whether the appellant might have drawn a distinction between the place where he lived and the place where he worked (notwithstanding that on the facts both places were situated in Nasaf) or otherwise positively enquiring about whether the inconsistency could be explained. It followed from that submission that in order to draw an adverse inference about the appellant’s credit it was incumbent upon the Authority to seek new information from the appellant so as to afford him an opportunity to explain away the response. In my opinion the Authority had no such obligation.

The cleric disparity

53    The Authority correctly identified that the appellant had provided details of the events of 5 November 2012 at the PV interview that had not been provided in his statutory declaration. The issue is whether the Authority reasoned illogically or irrationally with respect to the appellant’s failure to provide the details at the time of the visa application.

54    Of this aspect of the Authority’s decision, the primary judge said:

36.    …  I do not accept the applicant’s submission that he intended to include the cleric in ‘his group’. Before the words ‘his group’ in paragraph 7 of the Statutory Declaration the words ‘these groups’ and ‘the alasaeb group’ appear. In these circumstances it was at the very least reasonably open to the Authority to construe ‘his group’ as not including the cleric, and that the applicant first mentioned the presence of a ‘cleric’ at the TPV Interview.

37.    The applicant’s failing to include any reference to ‘cleric’ in the Statutory Declaration is not a minor inconsistency or otherwise trivial. In the account of the altercation the applicant gave at the TPV Interview, it was the fact that the applicant had abused the cleric that led to the members of AAH to want to attack the applicant.

(footnote omitted)

55    Whilst I agree with the conclusion that the Authority’s reasoning was not affected by jurisdictional error, I reason to that conclusion by a different path.

56    The Authority said that the appellant had, in his PV interview, “altered” the details of the events on 5 November 2012 previously given in his statutory declaration. In my view it was not open to the Authority to characterise what had occurred as an “alteration” of “detail”. The appellant had stated in his statutory declaration that he had sworn at “the group”. When asked to state what he had said to the group, he gave details of the abusive things that he had said and identified a person in the group (the cleric) to whom some (but not all) of that abuse was directed. He gave a further detail to the effect that the reason the armed men in the group wished to shoot him was the nature of the abuse he had directed at the cleric in particular. None of that detail detracted from the accuracy of the brief and general account given in the statutory declaration. The Authority did not express a view that the cleric was not to be regarded as a part of the group to which the appellant had referred in his earlier declaration.

57    The Authority said that the appellant had “stressed” the detail about the cleric in the PV interview, although the manner and degree to which the appellant was said to have stressed the information was not stated. It is correct to say that the appellant himself raised the issue of the cleric in the course of a narrative about an altercation in which his life was threatened and that the abuse directed at the cleric was the reason the armed men in the group expressed a desire to kill him. However, the appellant did not place special significance on that detail in such a way that would alter the fundamental aspects of his claim to fear persecution. As the interview transcript shows, the appellant persisted in his claim that he had directed abuse at all of the members of the group. The cleric was but one aspect of the narrative as the extracts at [30] and [31] of these reasons show.

58    The detail was, in the Authority’s assessment, so “crucial” that the appellant would have provided the detail in his statutory declaration, had the events concerning “the group” occurred at all. As I have said, the only aspect of the narrative the Authority accepted was the fact of an altercation with Mr H and the threat Mr H had made to kill the appellant.

59    Had the “disparity” concerning the cleric been the only disparity upon which the Authority relied to support its rejection of the appellant’s claims, I would incline to the view that the decision was affected by legal unreasonableness. However, on a fair reading of the Authority’s reasons as a whole, the Authority’s rejection of the claims should be understood as founded not only on the disparity concerning the cleric but also on the appellant’s negative response to a critical question in his arrival interview. Whilst I am of the view that the Authority was wrong to characterise the cleric disparity as an “alteration”, its later description confirms that it properly understood the disparity to be in the nature of a failure to provide detail. The Authority was entitled to place some weight on the omission it identified. That omission, together with the more significant disparity arising out of the arrival interview were sufficient to support the Authority’s inference that the events connected with the AAH had not occurred. It matters not that a different decision-maker might have reasoned to a conclusion more beneficial to the appellant.

60    I would accordingly dismiss the appeal.

Associate:

Dated:    7 June 2019