FEDERAL COURT OF AUSTRALIA

AWU16 v Minister for Immigration and Border Protection [2020] FCA 513

ORDERS

THE COURT ORDERS THAT:

1.    Leave to rely on paragraph 4 of the proposed further amended notice of appeal filed on 25 November 2019 be refused.

2.    The appeal be allowed with costs, such costs to be paid directly to counsel for the appellant in accordance with r 4.19(3) of the Federal Court Rules 2011 (Cth).

3.    The orders made by the Federal Circuit Court of Australia on 24 September 2018 be set aside and, in place of those orders, order that:

(a)    the decision of the Administrative Appeals Tribunal made on 24 March 2016 be set aside;

(b)    the matter be remitted to the Administrative Appeals Tribunal to be heard and determined according to law;

(c)    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

MORTIMER J:

Introduction and summary

1    This is an appeal from orders made by the Federal Circuit Court on 24 September 2018, dismissing the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal and ordering the appellant to pay the first respondent’s costs in the amount of $7,328.00: see AWU16 v Minister for Immigration and Border Protection [2018] FCCA 2721.

2    On 8 August 2019 I granted the appellant an extension of time pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) to file a notice of appeal: see AWU16 v Minister for Immigration and Border Protection [2019] FCA 1241 (extension of time decision).

3    The appellant was unrepresented at the extension of time hearing, but having granted an extension of time, the Court made a pro bono referral in his favour, and counsel appeared on his behalf at the hearing of the appeal. The Court extends its gratitude to counsel for assisting the appellant in this matter.

4    On 25 October 2019 the appellant filed an amended notice of appeal. Appropriately, the Minister did not oppose the appellant relying on an amended notice of appeal in the circumstances, despite the fact the grounds advanced were not advanced before the Federal Circuit Court. The alleged error in the Federal Circuit Court’s decision is therefore appropriately described as a failure to identify jurisdictional error in the Tribunal’s decision.

5    There were initially three grounds of appeal. Two related to allegations of jurisdictional error by the adoption by the Tribunal of irrational or illogical reasoning. A third related to an alleged denial of procedural fairness.

6    At the hearing of the appeal, and after the development of oral argument, counsel for the appellant foreshadowed seeking leave to add a fourth ground of appeal. The proposed ground also contended that the Tribunal engaged in irrational or illogical reasoning, and included the factual matters which formed the basis of grounds 1 and 2. Directions were given for the filing of a proposed further amended notice of appeal incorporating the proposed fourth ground and submissions by the parties relating to the question of leave and the proposed fourth ground.

7    For the reasons set out below, the appeal will be allowed.

Relevant background

8    The appellant was the primary applicant for a protection visa. His wife appears to have been a secondary applicant, and did not make her own claims to protection.

9    I explained the relevant background to the appeal in the extension of time decision at [4]-[8]. For completeness, I set it out again below:

The applicant is an Ethiopian national and arrived in Australia, on a valid visa, in July 2011 with his wife. The Tribunal’s reasons indicate he came to Australia for a professional development program. While he was here, and after an event he claimed occurred in Ethiopia in early September 2011, on 14 October 2011 the applicant applied for a protection (Class XA) visa. The visa was refused by a delegate on 30 December 2011. The applicant applied to the Tribunal for a review of the delegate’s decision and on 8 April 2013 the Tribunal affirmed the decision of the delegate not to grant a protection visa.

On 6 May 2013 the applicant applied to the Federal Circuit Court for a review of the Tribunal’s decision. On 4 March 2014 the Federal Circuit Court made orders by consent setting aside the Tribunal’s decision and remitting the application for review to the Tribunal. I note the Tribunal gives a different date for this decision, but I am satisfied, having looked at the Minister’s submissions and checked the Commonwealth Court’s Portal, that the correct date is 4 March 2014. The applicant appeared before the Tribunal on 7 August 2014 and on 26 August 2014, and again on 10 December 2015.

The Federal Circuit Court explains the three hearings at [11] of its reasons. In substance, the review and consideration of the applicant’s case has been deleteriously and significantly affected by the practice of allowing Tribunal members to hear reviews which they may not be able to complete, because their contract of appointment expires and they are then not reappointed. This approach to administration is one which might benefit from some reflection on the part of those responsible for the conduct of reviews within the Tribunal.

Eventually, on 24 March 2016 the Tribunal, as constituted by a third Tribunal member, affirmed the delegate’s decision to not grant a protection visa. The applicant was represented by a migration agent before the third Tribunal.

The process of the judicial review of the Tribunal’s decision in the Federal Circuit Court took a further 18 months or so. It is now not far off 8 years since the applicant lodged his protection visa application.

10    In these reasons, it will be necessary for me to distinguish the Tribunal as constituted to make the decision on 8 April 2013 (subsequently set aside by the Federal Circuit Court), and the Tribunal that decided the appellant’s application which was the subject of the Federal Circuit Court’s orders now under appeal. That second Tribunal, as the extract above indicates, was reconstituted to a different Tribunal member in August 2015. In other words, the appellant has had his review conducted by three different Tribunal members. No doubt this convoluted course of events may in part be responsible for the unusually large number of communications to the Tribunal, and the unusually large number of statutory declarations given by the appellant. He has been put through four Tribunal hearings: one for the first Tribunal decision and three for the second Tribunal decision. It would appear he has been asked to relate much of the same factual narrative on each occasion. Of such a circumstance, in W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379; 67 ALD 757 at [15] the Full Court observed:

As anyone with even a passing familiarity with litigation will know, to have to give a decision-maker three or more separate versions of the basis for a claim is an invidious position to find oneself in, even in the case of an honest witness. All the more so when the accounts have been provided by a person who speaks no English and who has required the assistance of an interpreter. It is inevitable that each version will be slightly different, and may even be very different once the impact of the interpreter is taken into account.

11    Where necessary, in these reasons I will refer to the Tribunal which made the decision on 8 April 2013 as the first Tribunal and the Tribunal which made the decision subject to judicial review in the Federal Circuit Court and now the subject of appeal to this Court as the current Tribunal.

12    Both grounds 1 and 2 centre on the current Tribunal’s fact finding about the appellant’s claim to have been detained in April 2011. As part of the narrative setting out why he had a well-founded fear of persecution, the appellant related an account of how he was detained at the airport in Ethiopia, and subsequently at a police station and then a prison some distance from the airport, on his return from Germany. The appellant had given detailed evidence about this event in his statutory declaration in May 2012, and added to the narrative in some of his subsequent statutory declarations.

13    The appellant’s written submissions set out the key aspects of the appellant’s account which were material to assess the allegedly irrational or illogical reasoning of the Tribunal:

The appellant’s first two grounds of appeal concern the primary judge’s reasoning as it related to the appellant’s 2011 detention. As part of his claim for a protection visa, the appellant said that on 24 April 2011 he was arrested at the airport in Ethiopia having flown in from Germany. The appellant also claimed that he:

3.1    was taken to the police station at [redacted], held there for 3 days, accused of being a member of the Ginbot 7 and assaulted;

3.2    was then transferred to [redacted] Prison accompanied by two police officers and a driver whom the appellant believed was not a police officer;

3.3    pleaded during the trip that someone call his wife and let her know that he was alright ― twice stated his telephone number to facilitate this call; and

3.4    was further interrogated and assaulted at [redacted] Prison for around 2 weeks, after which time he was collected by his father, brother and wife.

The appellant’s wife claimed that 4 days after her husband was due to arrive at the airport, she received a call from someone in [redacted] who said that the appellant was in [redacted] prison. Both the appellant and his wife inferred, in the circumstances, that the person who made the call was the person who drove the appellant to [redacted] Prison.

(Footnotes omitted.)

14    In its reasons, under the heading “Consideration of claims and evidence”, having set out the material before it and a summary of the appellant’s claims (which was not impugned on the appeal) the Tribunal stated (at [29]):

I have considered carefully the applicants’ claims but I do not consider them to be credible witnesses.

15    It then gave six reasons for this conclusion, which I have numbered for convenience:

1    The applicant has claimed that he was a member of the EPPF and that he donated money to it and attended meetings and that he would continue to be involved in its new merged form. However when asked at the hearing, he was not aware of its main ideology of Ethiopianism and his understanding of the party’s goals and policies was vague and limited as he was only able to state that it was to overthrow the government and bring a more democratic system and that it supported more private ownership of land. Though he was aware that the party had merged with Ginbot 7, he was not able to say the name of the new merged group, Arbegnoch Ginbot 7 for Unity and Democracy Movement (AGUDM). I have taken into account that the applicant has been outside Ethiopia since 2011 and has been working to support his family. He has also claimed that the applicant claimed that his involvement in EPPF was more due to his involvement of his cousin, however I do not accept that if the applicant was a supporter of this party who was willing to become a member of the party and donate money to it that he would not be aware of such critical matters and I find this detracts from his credibility.

2    I do not find it plausible or credible that a driver transporting the applicant between prisons with two government officials in a vehicle would contact his wife. The applicant claimed that the driver did this for compassionate reasons and it was submitted that it could have been because the driver had suffered similar treatment, had a grievance with the authorities himself, believed the applicant, was particularly religious and had the same faith as the applicant or believed in the work he was doing. However, these explanations seem very speculative and country information before the Tribunal indicates that the Ethiopian authorities often act in an arbitrary and violent manner with impunity which would deter such an action by the driver and I consider this implausibility of the claim detracts from the overall credibility of the applicants.

3    In the statutory declaration of the applicant wife, dated 2 May 2012, it is claimed that she visited the applicant in prison the next day after she was told of his imprisonment. However in the hearing with the first Tribunal, she stated that it was on the same day she was told of his imprisonment. The applicant commented that she was not the main applicant and their culture was based on the man protecting the family and that she had gone through a lot and was a housewife and baby sitter and was not getting support and had issues with her memory and a fear of going back. I have considered this explanation, but I do not accept that it satisfactorily addresses why she could not consistently recall such an important detail relating to such an important event and I consider the inconsistency detracts from the credibility of the applicants.

4    I consider the applicant’s claim that the authorities left a note on his windshield stating vaguely that they “knew what he was doing” to be implausible and not credible. The applicant commented that he was working with Pastor Dan and was working in the prison and getting information from prisoners. He said they wanted to give him a warning and hadn’t found any evidence that he was in opposition and would harm the government. I have considered his response, however country information before the Tribunal indicates that the Ethiopian authorities often act in an arbitrary and violent manner with impunity against suspected political opponents and I find this claim that that they would act in this way rather than taking more direct action against him to detract from his credibility.

5    The Tribunal has not identified any reports of the Ethiopian authorities targeting members of the JFA-PFE. Indeed, its website indicates that it is still operating and working with the Ethiopian government and has signed Memorandum of Understandings (MOUs) with the Federal and Regional Supreme Courts of Ethiopia and the Oromia Justice Bureau which is part of the executive arm of government. The applicant commented that the group was more into justice and that in 2005 everything changed, they built toilets and that the government wanted them to focus on mercy missions and not be political. He said the group was linked with international organisations mostly based in the USA and the government did not want to lose benefits given to it by other agencies. In submissions, the relationship between JFA-PFE and foreign donors is noted and that JFA-PFE is an advocacy group. I have taken into account these comments and accept that the Ethiopian government would be concerned about international opinion. Whilst I accept that they have signed a MOU with the judiciary, it is also apparent they have signed a MOU with part of the executive arm of government. Furthermore, country information indicates that Ethiopian authorities often act in an arbitrary and violent manner without impunity against suspected political opponents and I find the total lack of reports indicating that members of this group are or have been targeted and that it is working with the judicial and executive arms of government detract from the credibility of the applicant’s claims to have been targeted due to an association with this group.

6    The Tribunal has not identified any reports of members of YWAM having been targeted or harmed within Ethiopia. The applicant commented at the hearing that in his past history he had been imprisoned and that his name was on a list and the police went to his family house and will look into his political involvement and that they are interested in who leaked information to Wikileaks. It was later submitted that there would not be any reports of YWAM missionaries being harmed as it was the applicant himself who was responsible for organising, managing and co-ordinating the missions to Ethiopia. I have considered his comments and the submissions, however I consider the total absence of reports of targeting of any members of YWAM detract from the credibility of his claims to have been of interest to the Ethiopian authorities and to have been targeted and harmed as a result.

(Footnotes omitted.)

16    Two of these six reasons are, separately, challenged by grounds 1 and 2 respectively. Then, as an entire reasoning process, all six reasons are challenged in the proposed ground 4 on the basis that none of them are capable, whether viewed singly or cumulatively, of supporting the finding that the appellant was not a credible witness or narrator.

17    The finding at [29] led the Tribunal to reject every material aspect of the appellant’s narrative about what had happened to him, which formed the foundation of his claims for protection. At [30]-[33] the Tribunal made the following findings adverse to the appellant:

The applicant wife did not comment on these matters at hearing and given these highly significant and fundamental concerns about their credibility, I do not accept that the applicant has ever been or is a member of supporter of the EPPF or that he attended their meetings and donated money to them. 1 do not accept that he is a supporter of the newly merged group AGUDM.

I do not accept the applicant was interrogated on several occasions about why he brought so many foreigners and about the real purposes of their visits. I do not accept he was suspected of running underground campaigns and experienced repeated harassment by security forces and agents. I do not accept that he had been abused by unknown persons at home, and to and from work, and through phone calls and threatening letters. I do not accept that in or around June 2009, police questioned him for 15-20 minutes but he was not harmed and allowed to leave.

I do not accept that on his way back to Ethiopia, the applicant was arrested at the airport and incorrectly accused of attending meetings of Ginbot 7 in Europe. I do not accept that he was subjected to three weeks of unlawful detention and torture and denied access to proper food and medical treatment, before being released on a strict warning to disassociate himself from anti-government activities. I do not accept that in 2011, a note was left on the applicant’s windscreen which said “we know what you are doing” and he believed people were following him.

I do not accept that in September 2011, the applicant was advised by family in Addis Ababa of a raid on his family home by security forces that confiscated belongings including his laptop and documents and several family members were interrogated. I do not accept that his father was ruthlessly interrogated and assaulted and accused of collaborating with Ginbot 7 in an anti-government campaign. I do not accept that the applicant or any of his family members are or ever were of adverse interest to the Ethiopian authorities or anyone else.

18    Where necessary to the resolution of the appeal, I refer below to further aspects of the current Tribunal’s reasoning, and the evidence before it.

Resolution

Some relevant matters of legal principle

19    In AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 at [23]-[28] and [41], the Full Court made a number of statements of principle about the approach which needed to be taken to adverse findings of credibility on merits review of visa refusals for asylum seekers, in particular when a decision-maker is inclined to make a finding of “inconsistency” as between one aspect of the material or evidence before the decision-maker, and another. See also ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271 at [39]-[45], and the earlier Full Court decision in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 176 at [30]. I adopt the approaches set out in those decisions in the resolution of this appeal.

20    Second, as Lee J pointed out in SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [44]-[45] (and see also Beach J’s agreement with these propositions in DTN16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1525 at [46]-[52]), the assessment of credibility is necessarily impressionistic, and emphatic adverse findings on credibility may well, expressly or implicitly, be linked with one another so that it will not be possible, or realistic, for a reviewing Court to be confident that an error in one strand of credibility reasoning does not infect other strands. I respectfully agree.

Ground 1: Tribunal relying on speculation it invited the appellant to make

21    This ground seeks to impugn the second of the Tribunal’s credibility reasons, extracted at [15] above.

22    The appellant submits:

[I]t is apparent that for the Tribunal to ask the appellant why the driver called his wife, was to invite speculation. The appellant could not know the answer to the Tribunal’s question; he could only speculate and did so upon the Tribunal’s invitation. The counter-factual preferred by the Tribunal was no less speculative. It presumed the driver would be motivated by fear that communication with the appellant’s wife would be discovered by Ethiopian authorities, attributed to the driver, and that such authorities may retaliate in a violent manner with impunity.

Even if the appellant speculated wrongly, it does not follow that he was not to be believed on the factual elements of his claims based on lived experience. The possibility that the applicant guessed wrongly as to the motivations of the driver “cannot justify a finding that the appellant was not truthful or credible on the essential factual elements of which he had first-hand knowledge”.

The central aspects relevant to the appellant’s truthfulness were what had happened to the appellant. To reason that the appellant’s credibility was impaired by speculation invited by the Tribunal and in respect of which the appellant had no first-hand knowledge was to reason in an illogical and irrational manner.

(Emphasis in original; footnotes omitted.)

23    The Minister’s submissions emphasised the high threshold imposed by the authorities before irrational or legally unreasonable credit findings could support a finding of jurisdictional error. The Minister’s submissions also emphasised the approach set out by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 13; 185 CLR 259 at 272, and endorsed many times since, concerning how a supervising Court should approach the way an administrative decision-maker has expressed her or his reasons. All of that may be accepted.

24    Referring to CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [61], the Minister submitted that the alleged illogicality or irrationality of reasoning must be of an “extreme” kind, not a matter on which reasonable minds might differ, and not a matter on which a supervising Court simply disagrees with a decision-maker, even emphatically.

25    Save for the gloss arising from the word “extreme”, those propositions can also be accepted and are well established. There is nothing in High Court authorities such as Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 which suggests that the adjectival description of “extreme” is a necessary element in a finding of illogicality or irrationality. If the decision-maker’s fact finding is proven to be irrational or illogical, in a way which was material to the outcome of the review, that is sufficient. The stringency of the threshold arises in the need for the decision-maker’s reasoning to be capable, objectively, of being described as irrational or illogical.

26    “Irrational” or “illogical” implies that no reasonable person could reason in such a way. As Crennan and Bell JJ said in SZMDS at [135]:

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

27    Another example is that given by Flick J in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; 233 FCR 451 at [22]:

Unwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].

(Emphasis added.)

28    Flick J’s observations were approved in CQG15 at [40]-[42].

29    The Minister contends it was not the appellant’s explanation that was the focus of the Tribunal’s reasoning in this paragraph, but rather the claim that a police driver in those circumstances would have contacted the appellant’s wife. The Minister relies on what was said by the High Court in The Republic of Nauru v WET040 (No 2) [2018] HCA 60; 93 ALJR 102 at [35]:

For the Tribunal so to observe was not “speculation” or “conjecture”. It was to recognise that, when all these matters were taken together, the respondent’s version of events so ill-accorded with the probabilities of ordinary human experience as to be implausible.

30    That, the Minister contends, is how the Tribunal’s reasoning here can be described, emphasising that the Tribunal – in the usual way – relied at least in part on country information, and its focus was on the underlying facts of the appellant’s account about what a police driver would or would not do.

31    On the evidence, in what was on any view a long and detailed narrative by the appellant of past events giving rise to his claims for protection, this particular aspect of his account was of some concern not just to the current Tribunal but also to the first Tribunal. Following the first Tribunal hearing on 17 July 2012, the first Tribunal requested further information from the appellant, including about this account. In a statutory declaration of 10 October 2012, the appellant provided a further detailed account of what he said occurred when he was arrested and detained for three days at a police station before being transferred by vehicle to prison. He had already provided one detailed account in his initial statutory declaration of 2 May 2012. This aspect of his narrative occupied 14 paragraphs.

32    The appellant’s then migration agent also made a substantial submission in response to the first Tribunal’s request for information. One relevant portion should be extracted:

The Tribunal also questioned the motivation of the driver to intervene. In this respect we first note that [the appellant] is not in a position to know why the driver acted as he did and can only speculate as to his motivations. We also note [the appellant] was blindfolded during the transfer so his ability to speculate is further hampered. Relevantly, however, [the appellant] has noted in his attached statutory declaration at paragraph 7 that police in Ethiopia sometimes transfer individual inmates using private vehicles and that the driver of his transfer vehicle may have been a private driver. If the driver was a private driver, then [the appellant’s] emotional pleading during the car trip may have impacted on the driver, leading him to sympathise with [the appellant] and to want to assist him. We cannot know what was in the mind of that driver, but human rights abuses are very common in Ethiopia and the driver may have rightly suspected that [the appellant] was not actually guilty of any crime but was instead the victim of arbitrary abuse. The driver’s minor act of defiance, which can be viewed as a compassionate act of good will, is not so far fetched. Indeed in our office’s experience a stranger’s random act of kindness is frequently crucial to the survival of our clients and their ability to seek protection. We submit that [the appellant’s] own claims should not be dismissed simply because he cannot account for the motivation behind an act of good will. We note again that unless the Tribunal can find with confidence that a driver, quite possibly a private driver, would not make an anonymous phone call then [the appellant] should be given the benefit of the doubt.

33    In its decision (subsequently set aside) the first Tribunal disbelieved the appellant about this account.

34    After the matter was remitted to the Tribunal by the Federal Circuit Court in March 2014, the appellant’s then migration agent filed a further detailed set of written submissions, dated 23 June 2014. One of the submissions made, under the heading “Treatment of credibility”, was that the first Tribunal had focused on issues that were not material to the appellant’s claims. The extract is somewhat lengthy, but it is necessary to set it out:

Focus on immaterial facts

Most importantly, the Tribunal member focused on issues that were not material to the [appellant’s] claims. Read fairly, the decision was largely based on disbelief as to the account given of how the family learnt of his detention, when his wife came to visit and exactly how many times she visited. As discussed below, these adverse findings are readily explicable either as miscommunications or misunderstandings typical in the refugee determination context. In any event, as we submit, these minor details are hardly material to the applicant’s claims.

Recently, a legal scholar has helpfully explained the concept of ‘material claims’:

Starting with materiality, this is the process of determining which factual claims made by the applicant would, if they were proven, be key (that is, material) to their legal recognition as a refugee. If the applicant’s situation does not give rise to any facts that would be material to refugee status, then they do not have a claim for asylum.

In an asylum application this means that the decision maker will have to extract the material facts from the potentially voluminous factual claims made by the applicant. The UK’s API summarises this point well where it states that:

A material fact goes to the core of a claim and is fundamental to why an individual fears persecution, and will be central to the decision that will be made. It is the role of the decision maker to identify which facts are material and which facts are not.

The material fact in relation to [the appellant’s] account was that he was subject to arbitrary detention, and the question of exactly how [the appellant’s] family learnt of his detention was not such a material fact. This is demonstrated by the fact that such detention would still be arbitrary even if the authorities themselves had informed the family of his detention. All [the appellant] could do was suggest how he thought the fact had been communicated. Obviously, as the victim of arbitrary detention, he cannot be expected to know for sure what happened. This theory is (as we discuss further below) more plausible than the Tribunal considered it to be, but the main point is that it is simply immaterial.

This point applies with even stronger force to the question of the [appellant’s] wife testimony as to when she visited him and exactly how many times. The discrepancies were, as we discuss below, of a very minor nature and readily explained by the circumstances of the hearing. Indeed, even in Australian law where the difficulties experienced by refugees do not apply, such inconsistencies by witnesses are extremely commonplace. Perfect consistency is extremely unlikely in evidentiary matters. More importantly, however, they could not be said to be material – whether she visited the next day or the initial day, whether she went every day or missed two days, these do not undermine in any significant way the material claim of arbitrary detention.

The discrepancies or alleged implausibilities noted by the Tribunal can, in any event, be explained.

Driver’s intervention and anonymous note

The Tribunal member’s adverse credibility assessment was based in part on his disbelief that a driver of a prisoner would call his wife. As [the appellant] states in his statutory declaration dated 10 October 2012, the driver is likely to have been a private driver, rather than a government official (para 7). As well, the number is only six digits, with the first prefix (41) being similar to the (04) prefix for mobiles in Australia.

The Tribunal member too hastily rejected the theory that [the appellant’s] protests of innocence and his fear for his family may have touched a chord with a driver. Such a response may seem odd to someone brought up in an Australian culture, with its strong trust in government officials and its mistrust of those detained by government, but is plausible in a country where everybody knows that those being detained are not necessarily wrongdoers. As a judge has recently had the occasion to remark:

Africa is a continent where on occasion the far-fetched, as it seems to western eyes, is actually the norm.

Similarly, the anonymous note on the windshield can be explained in the same way. While, in Australia, government officials may simply question a person, it is not safe to assume that in the case of Ethiopia. In countries where there is no rule of law, threats may well occur in such a fashion. In any event, on [the appellant’s] account, he did not know who had left the note. The people involved may not have been government officials, but may have been political supporters or part of the wider surveillance network discussed by Human Rights Watch above.

(Footnotes omitted.)

35    It appears from the appellant’s evidence that at the third hearing before the current Tribunal, the current Tribunal informed the appellant it had similar concerns to the first Tribunal about this aspect of the appellant’s narrative. In response, the appellant provided yet another statutory declaration, dated 23 December 2015, in which he stated:

In response to the member’s concern that the driver of the van would not remember my wife’s number or call my wife, I explained in the hearing, as I have many times before that it is a common practice that police use private transport. I have always said that the driver was not a police. Who knows what kind of person he was? Religious, kind, or family man. We have heard so many stories where people put them self at risk just for the sake of helping others. Corrie Ten Boom is one of the greatest example to me personally, she risked her own life just to help. and I don’t have any doubts this person is kind. I was in the van for around 6 hours. I remember it was a long drive. I was so scared at this time and was begging someone to call my wife. I thank God that this person was brave enough to call my wife to let her know where I was. If not, I might have been kept in prison and punished for a lot longer.

36    The appellant’s then migration agent also provided post-hearing submissions, once again addressing this issue, and referring the Tribunal to by this time voluminous evidence on this small factual step in a large narrative:

The Tribunal should have regard to the following submissions and written evidence:

•    Submission dated 23 June 2014 at 3.1.2

•    Submission dated 10 October 2012 at 3(a)

•    Statutory declaration of [the appellant] dated 10 October 2012 at [9] – [10]

•    Statutory declaration of [the appellant] dated 23 Dec 2015

It is our submission that this issue has comprehensively been addressed. The [appellant] has consistently claimed over 4 different Tribunal hearings and in his written evidence that:

•    It is common for police to use private cars for transport

•    He was in the car for 6 hours

•    In this 6-hour journey he was blindfolded and pleaded multiple times for someone to call his wife. He also reiterated his innocence and the fact he was only doing the work he was doing for the ministry. He was crying at the time.

•    The number he reiterated was a 6-digit number. It is common for mobile numbers to start with the numbers “41”. There was only four additional numbers to then remember.

In our submission, it would be unreasonable to make a finding that it is implausible that the driver would remember four numbers and call the applicants wife.

•    It is perfectly plausible that a human being would remember 4 numbers.

•    One can only speculate as to what motivated the driver to call the [appellant’s] wife. It could be that he has experienced similar treatment, had a grievance with the authorities himself, believed the [appellant], was particularly religious and shared the same faith as the [appellant] or believed in the work he was doing.

•    In our submission it is at the very least possible that the driver would be motivated to call the [appellant’s] wife to advise her as to his location. In this case without any other contrary evidence the Tribunal should afford the [appellant] the benefit of the doubt.

37    Proportionally, when compared to the factual detail contained in the appellant’s accounts of when and how he was arrested in April 2011, let alone the factual details which led up to that claimed event, the references to how the appellant’s wife discovered he was detained formed a miniscule part of the appellant’s narrative. To make that observation is not to suggest such disproportionality will make out jurisdictional error. Nevertheless, it may be indicative of an irrational focus by the Tribunal on the minutiae of an account, while ignoring and failing to consider the core facts related by the appellant and which were objectively more central to his claim about detention – such as where he was detained, what the cell was like, whether he was detained alone or with others, how often he was questioned, by whom and what about, who detained him, what else occurred during his detention, and so forth.

38    Further, it should also be recalled that the first-hand account of how the appellant’s wife found out he was detained was given by the appellant’s wife and not by the appellant. She gave that evidence in two statutory declarations. Her initial evidence was in her statutory declaration dated 2 May 2012:

I got a call from someone in [redacted] to tell me my husband is in [redacted] prison. My husband had asked the driver of the car to the prison to call me.

39    In her second statutory declaration, dated 10 October 2012, the appellant’s wife gave this further evidence:

I was at home alone when I received the telephone call on my mobile telephone. The telephone number was from an unknown number. When I picked up the phone I said hello and a person told me that my husband was in [redacted] Prison. I then asked if my husband was alive but the person had hung up the telephone. I then called my husband’s brother, [redacted], and told him that my husband was in [redacted] Prison. I was very scared, but at the same time I was relieved to hear news about my husband.

40    None of this evidence was referred to by the Tribunal in its reasons. It was certainly not expressly rejected. At [30], where the Tribunal states that the appellant’s “wife did not comment on these matters at hearing”, there is no reference to her two statutory declarations dealing with this matter expressly, one being in response to the Tribunal’s expressed concerns.

41    The appellant contends that it was irrational for the Tribunal to rely on a matter the appellant was asked to speculate about (why a driver would contact his wife) as a basis to make adverse credibility findings against the appellant, and his wife.

42    Counsel relies on the decision in BEL16 v Minister for Home Affairs [2019] FCA 1678, contending similar issues arose in that case.

43    At [31] of that case, Beach J said:

It should be apparent that the appellant had no personal knowledge of why the CID was so acting. At most the appellant’s belief could only have been informed by compounded hearsay. Of course the perception of risk of harm and the reasonableness of that risk is central to the Tribunal’s consideration. But in terms of assessing the credibility and truthfulness of the appellant himself, discrepancies concerning his speculation as to the motivations for conduct of a third party are far less significant and meaningful than discrepancies concerning the appellant’s version of his own conduct, his own motivations and what he could reasonably be expected to have first-hand knowledge of. I will return to this topic later, but for the moment let me address the so-called discrepancies.

(Emphasis in original.)

44    Then at [55] Beach J said:

Moreover, if the appellant speculated wrongly, it does not follow that he was not to be believed on the objective factual elements of his version of events where he did have first-hand knowledge. Any number of other explanations could be plausible as to his wrong speculation. For example, wrong speculation might more readily be explained by the innocent possibility of the appellant simply guessing wrongly, misunderstanding what he had been told, being given only a partial explanation, or being misinformed. But none of such possibilities could justify a finding that the appellant was not truthful or credible on the essential factual elements of which he had first-hand knowledge.

(Emphasis in original.)

45    There is certainly a danger in a decision-maker asking a protection visa applicant to speculate about the motivations, reasons or circumstances of a third party in the visa applicant’s country of nationality. It is unlikely to be productive of probative material on which the decision-maker can rely in her or his reasoning, for the reasons explained by the High Court in WET040. The method is unlikely to give rise to a jurisdictional error. Reliance on the evidentiary product of such a method may be another matter.

46    I do not accept the Minister’s submissions that all the Tribunal was doing in this one of its six credibility findings was rejecting the underlying plausibility of the appellant’s account. The Tribunal was expressly measuring the speculation it had invited the appellant to engage in against its own speculation. Having regard to the introductory part of [29], it did so expressly to find that the appellant and his wife were not giving true and accurate evidence to the Tribunal. The appellant’s speculation about the driver’s motivations was not rationally or logically capable of supporting the Tribunal’s disbelief of his detailed, fact-intensive first-hand account of his arrest and detention – being a large body of facts with which the Tribunal simply did not engage in its decision making. Nor was the Tribunal’s own speculation on the same matter.

47    The Tribunal’s reference to country information was at such a high level of generality as to be incapable of being used in the way the Tribunal sought to use it. Country information indicating “that the Ethiopian authorities often act in an arbitrary and violent manner with impunity” was capable of supporting the core elements of the appellant’s narrative about his arrest and detention. In contrast, linking this general statement to the (unknown and unknowable) state of mind of an (unidentified) individual driving a prison vehicle was nothing more than conjecture on the part of the Tribunal.

48    Ground 1 succeeds.

Ground 2: the “inconsistency” of one day relied on by the Tribunal to impugn the appellant’s credibility

49    This ground impugns the third of the Tribunal’s credibility reasons, extracted at [15] above.

50    The appellant contends:

If a difference as slight as one day reflects an inconsistency that was material to the credibility of the appellant’s wife, it was necessary for the Tribunal to consider the significance of the inconsistency. The Tribunal was required to consider whether the inconsistency was central to the appellant’s case or at its periphery involving an objectively minor matter of fact. Moreover, the Tribunal was required to have regard to, and to explain, the significance to the appellant’s truthfulness and credibility of his wife’s evidence. It did not. This failure manifested illogical and irrational reasoning.

(Emphasis in original; footnotes omitted.)

51    In response, the Minister submits that this account was an “important detail” of an important event that was central to the appellant’s claims. The Minister submits:

In circumstances where the appellant and his wife had both given evidence directed at the appellant’s detention, including in relation to the contact made by the driver, and where the appellant’s wife had chosen not to comment about matters which included the discrepancy of this account, it was neither irrational nor illogical for the Tribunal to reason that this discrepancy (that in the Tribunal’s view was not sufficiently explained) was capable of detracting from the credibility of both the appellant and his wife.

52    The Minister did not submit that the Tribunal’s reasons should be read as this being a finding only about the appellant’s wife’s credibility. Such an approach would not sit easily with the last sentence of this finding in particular. I consider the Minister properly accepted that the Tribunal’s reasoning needed to be understood as applying to the credibility of both the appellant and his wife.

53    Therein lies the irrationality. Without further fact finding (for example about some kind of collusion, or location of this “inconsistent” aspect of the narrative in the appellant’s evidence as well his wife’s) there is no logical or rational connection between the appellant’s credibility and his wife identifying (apparently) two consecutive days on which she said she first visited her husband. I note the appellant’s evidence was clear his wife (and her father) had visited the day after he was taken to the prison. The Tribunal’s reasoning here is an illustration of the dangers of elevating every discrepancy or difference to a credibility issue, as the Full Court in AVQ15 pointed out. Be that as it may, there was no probative basis disclosed by the Tribunal’s reasons which would allow it to use a discrepancy in the wife’s evidence as a matter which contributed to establishing her husband was not telling the truth. That is properly described as irrational and illogical.

54    Contrary to the Minister’s submissions, the appellant’s wife did seek, at length, to explain the difference in her two accounts. However, in its reasons the Tribunal didn’t consider those explanations at all – instead, it only considered the appellant’s explanation. This compounds the irrationality. A rational decision-maker would look first to the explanation given by the witness whose account contains the discrepancy.

55    On 3 October 2012 the appellant’s wife swore a statutory declaration which expressly addressed this very issue of the timing of the trip to the prison. This is what she said:

My husband’s brother and father, [redacted], came to my house at around 6pm on the same day. We had a discussion to drive straight away or the next morning and decided to drive the next morning. My husband’s brother put together some of my husband’s items and clothes to take to him. My husband’s brother and father stayed the night and we got up the next morning and drove 4 hours to [redacted]. We then visited the prison my husband was in, but were not allowed to see him personally, and afterwards went to stay with my husband’s other brother, [redacted], who live in [redacted], which is 1 hour from the prison.

In my previous statutory declaration I explained that I received a phone call from someone telling me that [the appellant] was being held in [redacted] Prison. I explained that the day after receiving the call I went to [redacted] Prison to see my husband. This is the correct version of events. However, during the hearing I stated that I went to [redacted] Prison the same day that I received the call. I would like to explain this confusion.

I was confused at the hearing by the timing of my first visit to my husband in prison. On the day of the interview I was under a lot of stress. When I am faced with a big challenge I sometimes can’t recall things clearly and occasionally forget things. When the officer asked when I went to [redacted] he asked early on in his questioning when I was particularly scared about the interview.

A lot of my confusion at the hearing was related to my mental situation. As a result of my circumstances, I have been suffering from depression, stress and anxiety. I have been attending counselling for these issues. I think this contributed to my fear during the hearing and why I could not remember things clearly. I was going through a particularly challenging time. At the time, I had a young baby and in addition to caring for my first child, I also did not know what will happen to us. I found the situation very difficult to handle.

I have had many sleepless nights, especially in September, when I heard that the Police visited my husband’s family in Ethiopia. My child also wakes 3-4 times in the night, so at the time I do not think I was able to think very clearly about my answers. I was also going through a lot of mental instability.

I am thankful for the help for my baby from the Australian Government, but at the same time I am worried about what will happen to my family. I was very scared at the time I was going through the hearing. Nobody could tell me what was going to happen the next day. I was worried about returning to Ethiopia and raising my child without a father if something were to happen to my husband. I was raised without a father and do not want my son to go through the same thing.

During the hearing I explained that I visited my husband in prison every day once I learned he was in prison. The Tribunal said that when I answered this question I first hesitated, then I said I could not recall, before I said that I visited him every day. I would like to explain this response. When I was in the interview, I feel pressure and my mind goes blank, I can’t think and I get stressed. I have had this problem whenever I am faced with stressful situations. After some time, the officer asked the question very specifically which gave me time to think about my answer without feeling stressed and that is why I was able to remember the events more clearly and give the correct answer.

I paused during the hearing to answer this question because I was trying to remember the first day I ‘saw’ my husband and not just visited the prison. I was confused whether I was being asked about the times I ‘visited’ the prison or ‘saw’ my husband. The first time I went to the prison was the day after the telephone call, however I was not actually allowed to see my husband on that first visit or the next visit on the day after. I stayed in the car on the first day because I was feeling very emotional and we thought that my husband’s father would be better able to negotiate visits to my husband. On the second day after the telephone call I went to give some food to my husband and a man took this from me to deliver to my husband. I was very disappointed not to be able to see my husband on the first two days. However, at about 3-4pm on the third day after the telephone call I was allowed to see my husband.

The first time I saw my husband I cried. I could hardly talk I was just so happy to see him. I was not allowed to touch him, but because of the emotions I could not talk and my husband’s father did most of the talking. Except for the first 2 days where I visited, but could not see my husband. I went to the prison every day.

I have never experienced this type of interview before so I was very nervous and scared. I did not have anyone to look after my baby, so it was hard to fully focus on the hearing whilst also looking after him at the same time, and given my mental situation at the time of the hearing.

56    This is a detailed account and explanation. While the Tribunal may have been entitled, as the fact finder, to reject the explanation given, it did not consider the explanation at all, and instead considered only her husband’s explanation. It did so without, for example, also looking at her husband’s account in his statutory declaration or turning its mind to whether she had simply made a mistake when repeating her account on different occasions: see W375/01A at [15], cited with approval in AVQ15 at [25]; and see also BEL16 at [16]. This failure to even consider the wife’s own detailed explanation reinforces the irrationality of the reasoning the Tribunal adopted.

57    Also compounding the irrationality of this reasoning is that it focuses, as does the matter with which ground 1 is concerned, on a matter peripheral to the appellant’s factual account of his arrest and detention. While a decision-maker may be able to scrutinise proportionally small factual discrepancies as part of determining whether a person’s evidence should be accepted as truthful and reliable, reasoning and fact finding which does not engage at all with direct, first-hand evidence relating to the factual core of a person’s account of past treatment, but rather engages only with the peripheral, may be more easily described as irrational or illogical. That is the case here: the plethora of direct, detailed factual evidence from the appellant about his arrest and detention was simply ignored by the Tribunal. Not disbelieved, but ignored. Engaging with that detail would have taken a considerable level of commitment by the Tribunal, but the size of the task and the volume of material was not of the appellant’s making: it was because the process of the review in the Tribunal had required him to give his account again and again, to three different decision-makers.

58    While it is a matter for the finder of fact to determine what evidence it accepts or what it does not, the purpose of the rationality grounds of review is to supervise lines of reasoning, or paths of fact-finding, which stray clearly beyond the area of decisional freedom that is given to the fact finder. A repository of a statutory merits review function of the kind in issue here is not authorised by the review provisions in the Migration Act 1958 (Cth) to base her or his decision, even in fact finding, on lines of reasoning which are devoid of logic, or which are no more than conjecture or speculation. Parliament has conferred these merits review functions and powers on the basis that they will be exercised reasonably, rationally and in a logical manner, relying on probative material and drawing inferences which are explained by reference, and have a rational connection, to the material before the decision-maker.

59    Ground 2 succeeds.

Ground 3: the notification from the Department to the Tribunal

60    Again properly, the Minister accepted – as he had in the Federal Circuit Court – that an existing s 438 notification had not been disclosed to the appellant, and further that the notification in the certificate was invalid, in accordance with the High Court’s decision in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [18], [39]-[40].

61    The effect of this concession is that the Minister accepted the consequences identified at [44] of SZMTA would follow, both as to the breach of procedural fairness and as to the invalid notification.

62    The s 438 notification referred to a number of folios from the department’s file, which dealt with fingerprinting records. In written submissions at [14], the appellant contended, and the Minister did not dispute, that:

The substance of the information that was the subject of the certificate in relation to the appellant was that:

14.1    for the purposes of making an application for UK visas the appellant was finger-printed on 24 August 2010 and 11 May 2011 in “ADAB” and “NAIR”; and

14.2    the appellant was issued a visa in Addis Ababa on 25 August 2010, was refused a visa in Nairobi on 19 May 2011 and had no current visa status in the UK.

(Footnote omitted.)

63    The folios disclosed on their face that the appellant and his wife had been fingerprinted on 24 August 2010, and that the appellant had been fingerprinted again on 11 May 2011, in locations identified in the fingerprinting documents by abbreviations. For the August 2010 fingerprinting of the wife, the abbreviation was “ADAB”. For the August 2010 and the May 2011 fingerprinting of the appellant, the abbreviations entered were “ADAB, NAIR”. One available inference from the face of the appellant’s fingerprinting document is that he was fingerprinted in Nairobi on 11 May 2011.

64    The appellant accepted that the May 2011 fingerprinting event was raised with him by the delegate, and indeed formed part of the basis for the delegate disbelieving the appellant, because the delegate found that 11 May 2011 was a time which coincided with the time the appellant claimed he was detained in prison. The delegate recorded the appellant’s claims about his detention in prison as spanning the period “24 April – 15 May 2011, or possibly longer”. The delegate did not accept the appellant’s explanation, in a subsequent statutory declaration, that “sympathetic family friends had been able to bail him out of the detention centre so that he could attend his visa interview on the 11 May 2011”.

65    The Federal Circuit Court accepted the Minister’s submissions that the non-disclosure of the fingerprinting information did not meet the materiality test in SZMTA. At [33], the Federal Circuit Court found:

[T]he substance of the information covered by the s.438 certificate, namely, that the [appellant] was fingerprinted on 11 May 2011, was disclosed to him, and he was given an opportunity to respond to it, well before the Tribunal’s decision. Although the facts that the [appellant] and his wife were also fingerprinted on 24 August 2010 were not disclosed to the [appellant], those facts were not material. In the circumstances, there was no practical injustice arising from the failure to disclose the s.438 certificate, and either no jurisdictional error in relation to it, or, on discretionary grounds, no proper basis to remit the matter.

66    The Minister accepted (at [35] of his written submissions) that the question for the supervising Court was whether there was a “realistic possibility” that disclosure of the withheld information could have made a difference to the outcome of the review. In addition to the contention accepted by the Federal Circuit Court about the May 2011 fingerprinting, the Minister submitted the withholding of the August 2010 information did not meet that threshold.

67    At [37], the Minister submitted:

The Tribunal made no reference to the notification or the underlying documentary material in its reasons; the extensive materials it did have regard to are listed at [22]. While the fingerprinting of the appellant on 11 May 2011 was a matter that assumed some significance in the delegate’s determination of the appellant’s claim about his detention in 2011, it was not a matter adverted to, at all, by the Tribunal in its adverse credibility findings that were directed at the same claim (see, [29], second bullet point).

68    The appellant’s argument on ground 3 focused on the information in the folios about the August 2010 fingerprinting, not the May 2011 fingerprinting. The appellant appeared to accept he had been put on notice that the May 2011 fingerprinting information cast doubt on the reliability of his account of his detention in prison, because the documents implied he had been fingerprinted, possibly in Nairobi, on a date he claimed to have been in detention. In other words, the appellant’s submissions appeared to accept there was no denial of procedural fairness in respect of that aspect of the fingerprinting information.

69    However, the appellant contends the situation was different in relation to the August 2010 fingerprinting information. This was, it was common ground, not raised by the delegate with the appellant. There is no evidence the current Tribunal (or the first Tribunal) raised either the August 2010 fingerprinting or the May 2011 fingerprinting with the appellant. There is no reference to the fingerprinting information in the Tribunal’s reasons. What remains, however, is the delegate’s (adverse) finding, of which the Tribunal can be taken to have been aware. That finding was:

I have serious doubts about these claims of torture, detention and the timing of the visa applications as the applicant was evasive and unconvincing in his responses. From the hesitancy in his explanations, he did not appear to be relating details from his actual experience.

70    Although the delegate did not refer here, or elsewhere, to the location of the May 2011 fingerprinting, the appellant appears to submit that the apparent location – Nairobi – did in fact play a part in the delegate’s reasoning.

71    In his written submissions, the appellant refers to his statutory declaration dated 2 May 2012, in which he said:

The delegate questioned my account that the fingerprints for my British Visa were done in Ethiopia. She said that she was going to follow this up because she thought that the fingerprints had been done in Nairobi. My fingerprints were taken in Addis Ababa. However, my understanding is that the system in Ethiopia requires the passport to be sent to an office Nairobi to decide whether to grant the visa.

72    The appellant submits:

During the interview of the appellant by the delegate on 21 or 22 November, the delegate questioned the appellant in relation to “folio 49”. In particular, he was questioned as to “how he could be fingerprinted in connection with a UK visa application on 11 May 2011 (folio 49) if he was in prison on this date”. At the end of the interview, the delegate also questioned the appellant’s account that the fingerprints for his UK visa were taken in Ethiopia, because she thought that the fingerprints had been taken in Nairobi. This inference was available from the fact of the 11 May 2011 date on the information that was the subject of the notification.

The adverse inference as to the location of the appellant’s fingerprinting on 11 May 2018 was also available (and was bolstered) by reference to the information concerning the August 2010 fingerprinting as a comparator. In relation to the August 2010 UK visa application, “ADAB” is the “Location fingerprinted” on the Search Results document.

73    In other words, the appellant submits the inclusion of “ADAB” in the August 2010 entry bolstered the proposition that, when the May 2011 entry stated “NAIR”, it should in fact be understood as meaning the appellant was fingerprinted in Nairobi, not in Addis Ababa, as he claimed. Since the appellant contends he was unaware of the fingerprinting information, aside from the questions asked of him by the delegate about the May 2011 fingerprinting, he was denied an opportunity to deal with the August 2010 information and this was, the appellant contends, within the concept of a practical injustice as the identification of the location “NAIR” bolstered the adverse inference against him.

74    The appellant sought to couch this argument in the context of the High Court’s decision in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88, rather than SZMTA, suggesting there is some tension between this decision and SZMTA, at least in terms of the materiality requirement articulated in SZMTA.

75    At least at the level of the operation of the general principles of procedural fairness (where they are applicable), I do not accept there is any tension between the decision in VEAL and the decision in SZMTA. In SZMTA at [29] and [38], the plurality invoked well-established authorities about the circumstances in which there will be a denial of procedural fairness. The specific references to VEAL at [62] were in a different context and do not suggest the Court saw any difficulty with the underlying principles as explained by the High Court in VEAL.

76    In a different context, I have previously made some observations about earlier High Court authorities on how a denial of procedural fairness is to be assessed as sufficient to grant relief, when compared to SZMTA: see DPI17 v Minister for Home Affairs [2019] FCAFC 43 at [96]-[107]. However, on the argument as put in this appeal, whether there is any tension between the High Court’s articulation of the materiality approach in SZMTA and the observations in particular at [19] of VEAL is not a matter that need be explored.

77    Finally, I do not accept the argument put on behalf of the appellant that SZMTA is only authority for, and only deals with, a denial of procedural fairness about the fact – or existence – of a s 438 notification, rather than dealing also with the documents or information which are the subject of the notification. Although that is one reading of [38] of SZMTA, I consider that is too narrow a reading, in the context of other passages in the plurality’s reasons. For example, at [47] the plurality said (in the context of explaining the burden of proof about materiality):

Treating the section [s 438(1)] as applicable to a document or information, the Tribunal can then be expected in the ordinary course to leave that document or information out of account in reaching its decision in the absence of the Tribunal giving active consideration to an exercise of discretion under s 438(3). Absent some contrary indication in the statement of the Tribunal’s reasons for decision or elsewhere in the evidence, a court on judicial review of a decision of the Tribunal can therefore be justified in inferring that the Tribunal paid no regard to the notified document or information in reaching its decision.

78    Paragraph [72] of SZMTA also provides a clear indication that the plurality was not limiting itself to consideration of denial of procedural fairness by non-disclosure of the fact of the s 438 notification:

Accepting that the breach denied the first respondent an opportunity to make submissions on the validity of the notification and to present his evidence and make submissions in the knowledge that the documents and information which were the subject of the notification might not be taken into account by the Tribunal, the critical fact remains that the documents and information were of such marginal significance that the denial could not realistically have made any difference to the result.

79    It is not necessary to say anything further about the suggested tension between VEAL and SZMTA, because I do not accept the first step of the appellant’s argument: namely, that the August 2010 fingerprinting information played any role at all in the Tribunal’s decision-making, nor that the appellant was deprived of a realistic possibility of a different outcome, whether one takes that formulation from SZMTA or uses the formulation in Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 145: that the non-disclosure “could have had no bearing on the outcome” of the Tribunal’s decision.

80    The link posited between the August 2010 fingerprinting information and the May 2011 fingerprinting information is at best a weak one. While it can be accepted that a reader might contrast “ADAB” and “NAIR” and infer that (a) the latter meant Nairobi and the former meant Addis Ababa; and (b) the terms indicated where the fingerprints were taken, the inference that “NAIR” meant Nairobi would have been open whether or not it appeared next to “ADAB”; objectively, the inclusion of “ADAB” does little if anything to “bolster” the inference.

81    Further, and fatally for the argument, there is no evidence at all that the Tribunal had even looked at the fingerprinting information: cf VEAL where the Tribunal’s reasons referred to the dob-in letter, but then said the Tribunal had put that information out of its mind. There needs to be some probative basis for a supervising court to infer that a decision-maker has looked at, or was aware of, adverse information contended to be “credible, relevant and significant”. In the present case, it is true that there is a record of the s 438 notification being sent to the first Tribunal. There is nothing beyond that fact. In contrast, the objectively more problematic aspects of the s 438 information (the timing of it during the period the appellant had claimed to be detained) were not only specifically addressed in the delegate’s decision, but also in the appellant’s statutory declaration, which the Tribunal expressly said it had considered. I do not consider it is possible to describe these circumstances as giving rise to the appellant experiencing any “practical injustice” by not being given a chance to say anything (it is unclear what could have been said) about the August 2010 fingerprinting entry when he had been given an opportunity, and taken it, to say something about the objectively more adverse May 2011 fingerprinting information.

82    The list of material set out in the Tribunal’s reasons at [22] does not even include the delegate’s decision. It does not refer to the s 438 notification or the documents to which the notification referred. It does refer to the appellant’s statutory declaration that contained his explanation about the May 2011 fingerprinting, but there is no evidence the Tribunal was conscious, in particular, about that aspect of the statutory declaration. As I explain elsewhere in these reasons, despite the volume of factual evidence before it, the Tribunal’s reasoning, and its adverse findings against the appellant in terms of his credibility, turned on the six reasons set out at [29]. The Federal Circuit Court was correct in its conclusions at [30] and [33] of its reasons.

83    Ground 3 fails.

The proposed fourth ground

84    The characterisation of the error in this ground is somewhat challenging to follow. In the proposed further amended notice of appeal, it is expressed as an irrationality or illogicality ground. As I understand the argument, it is that, whether taken singly or cumulatively, the six findings made in [29] of the Tribunal’s reasons, and extracted at [15] above, did not provide a rational basis to reject the appellant’s core narrative about what had happened to him in the past as, in effect, fabricated.

85    The appellant contends that:

(a)    at [31], where the Tribunal disbelieved the appellant’s narrative about various interrogations, abuse and harassment in Ethiopia, it relied on the six matters in [29], but only the first, fifth and sixth were capable of being probative of that conclusion; and

(b)    at [32], where the Tribunal disbelieved the appellant’s narrative about being imprisoned, the Tribunal again relied on the six matters in [29], but the first, fifth and six matters had “minimal probative value” towards that conclusion; the fourth matter had none; and the second and third matters, which were most relevant, were irrational for the reasons advanced in respect of grounds 1 and 2 or, alternatively, were of such minor relevance that they could not provide a logical foundation for the rejection of the appellant’s central claim of past harm.

86    The Minister opposes leave being granted to the appellant to raise the fourth ground. He does so on the basis that while the appellant was not represented before the Federal Circuit Court, he has been represented in this appeal and “experienced counsel [have] exercised (on the appellant’s behalf) forensic choices which should now bind him”. It appears the Minister contends it is not in the interests of the administration of justice to allow any further development by counsel of arguments on the appellant’s behalf.

87    The Minister also contends the proposed ground has no merit. He contends the new ground is in substance repetitive of grounds 1 and 2. He contends the six reasons identified in [29] of the Tribunal’s decision were not general findings but rather

each reflected an unfavourable view formed by the Tribunal about a particular issue that emerged from the protection claims (and underlying narrative) advanced by the appellant.

(Emphasis in original.)

88    The Minister submitted that

[t]he reasons, each of which was directed at an important detail of the appellant’s claims, were also capable of operating in a combined manner so as to cast doubt more generally on the credibility of the appellant and his account of events.

89    I do not accept the Minister’s submission that proposed ground 4 is repetitive of grounds 1 and 2. It is wider, and seeks to impugn all of the six matters in [29] as lacking a rational foundation for the Tribunal to reject the narrative given by the appellant about what had happened to him in the past. Had the ground sufficient merit, then I would also have not been persuaded by the Minister’s argument that counsel had put a considered position on the appeal and should not be allowed to depart from it. The subject matter of the fourth ground, at least in general terms, arose during oral argument. It is not uncommon that when the Court and counsel engage with each other, points emerge, or are refined or developed. That is part of the oral tradition of advocacy. I would have been inclined to consider that if it had merit, the circumstances in which the argument arose (in particular, responsiveness to an engagement between the Court and counsel) rendered it in the interests of the administration of justice to grant leave.

90    That said, I agree with the Minister that the proposed ground 4, as expressed, has insufficient merit to warrant the grant of leave at this stage of the proceeding.

91    Putting to one side the findings I have made on grounds 1 and 2 (which concern how the Tribunal deployed the factual matters in the second and third matters), the six matters set out in [29] of the Tribunal’s reasons cannot in my opinion be said to be irrelevant to the Tribunal’s determination of whether it accepted the appellant’s narrative of what had happened to him in the past. Most of them can be described as “peripheral”, especially in circumstances where – as I have noted above – the Tribunal simply failed to engage in any fact finding about the direct, first-hand and detailed factual account given by the appellant of central aspects of his past claimed mistreatment. Nevertheless, matters such as whether the organisations the appellant claimed to be a member of, and to work for, were mentioned in country information were capable of being weighed by a Tribunal in deciding whether to accept a visa applicant’s narrative to the effect that he experienced past ill-treatment or past threats stemming from a connection with those organisations. Some decision-makers might place little weight on whether an organisation was or was not mentioned in country information, but it cannot be said it is irrational for the Tribunal to have looked at this issue. It cannot be said no reasonable decision-maker would have relied on any of the matters in [29] for an adverse credibility finding.

92    It is true that the collection of six matters in [29] is somewhat random, and each has a relatively small factual focus. In contrast, the appellant’s narrative about what had happened to him in Ethiopia was, on the material, well filled out with a great deal of evidence and information. It is fair to say that the six matters identified by the Tribunal do not engage with much of the substantive material put forward by the appellant, and the very detailed first-hand factual account the appellant gave of what had happened to him when he was detained in 2011, a step-by-step, day-by-day account. The effect of the Tribunal’s approach is that all that detail must have been an elaborate fabrication, in circumstances where the Tribunal did not find any other material discrepancies or improbabilities in the appellant’s own detailed account. For the Tribunal to describe, as it does repeatedly in its reasons (see [30], [35], [36], [37]), the six matters in [29] as causing it to have “highly significant and fundamental concerns” about the appellant’s credibility, and that of his wife, appears to be something of an exaggerated use of terms such as “highly significant”. Many decision-makers would consider the matters in [29] to be of marginal weight, and the absence of any engagement with the real details of the appellant’s first-hand account of his detention is not repaired by the Tribunal’s repetition of this phrase. There was, however, no ground of appeal about this lack of engagement.

93    Nevertheless, although the fact that the Tribunal’s approach is not what one might hope to see from a careful and thorough decision-maker, it is not an approach that – at the wholesale level at which proposed ground 4 is pitched – can fairly be described as involving irrational or illogical reasoning, devoid of any probative basis at all, of the kind alleged in the proposed fourth ground of appeal.

94    In contrast, as I have found under grounds 1 and 2, two of the six aspects of the Tribunal’s credibility reasoning are properly characterised as irrational and illogical.

Grounds 1 and 2: materiality

95    In Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66, in considering submissions put on that appeal about materiality, Bromwich J and I held at [66]:

We are not required to be satisfied it is more likely than not [the Minister] would have exercised the power he did not appreciate he had, only that there is a realistic possibility he might have. In our opinion, the adjective “realistic” in the statements of principle by the majority in the High Court in Hossain and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 364 CLR 421 is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable, no more than that.

96    We also observed at [69]-[70]:

Where questions of discretion and weight are involved, it may be difficult for a reviewing court to conclude the outcome could not realistically have been different without straying into performing the task of considering, first, whether the power to seek further information should be exercised, or second, how any information provided should be weighed in the cancellation decision. Those are not matters for a reviewing court and it is important that any assessment of materiality on judicial review not stray into those areas.

On judicial review, where there is an identification of legal error and an assessment of whether it was an error which should be characterised as jurisdictional, there is a significant element of reconstruction involved. The reviewing court is asking: what if the repository of the power had (relevantly here) properly understood the nature of his power? That reconstructive exercise cannot simply be done by taking the reasons and findings as they stand, because those reasons are a product which incorporates the misunderstanding. The approach must be more objective, and nuanced, than that. Otherwise, there is a risk that the decision-maker’s reasons are used in a way which amounts to prejudgment. Such prejudgment would itself normally give rise to error. It cannot be used as proof of immateriality.

97    See also the Full Court decision in Nguyen v Minister for Home Affairs [2019] FCAFC 128 at [45]-[51]. It is necessary here also to recall the passage from Lee J’s decision in SZTFQ, to which I refer at [20] above.

98    My reasoning on this appeal seeks to conform to those approaches. Accordingly, I refrain from speculating about matters such as whether the remaining four reasons given by the Tribunal at [29] could support or justify its decision to affirm the review. Either that would involve the Court itself entering into a fact-finding exercise or it would involve the Court assuming some prejudgment on the Tribunal’s part, if the erroneous aspects of its reasons were simply severed. Instead I consider the correct approach is as follows.

99    The Tribunal gave six reasons for its wholesale rejection of the appellant’s accounts of past mistreatment, and its rejection of his account of a basis in his own experiences for his fears. No other reasons were given, despite the fact-intensive nature of the evidence before the Tribunal. The Tribunal declined to engage with most of that evidence.

100    In those circumstances, each of the six reasons can be described as fundamental, and material, to the outcome of the review. That is the result of the Tribunal’s approach, even if (as I have found earlier) most of those six matters might objectively be described as peripheral to the core aspects of the appellant’s account. Nevertheless, those are the six matters the Tribunal elected to have its reasoning turn upon.

101    None of the six reasons is identified by the Tribunal as having greater weight than any other. They are, collectively, described by the Tribunal in its reasons as giving rise to “highly significant and fundamental concerns about [the appellant’s and his wife’s] credibility”, a phrase which as I have found is repeated several times in the Tribunal’s reasons.

102    In those circumstances, I am satisfied that the Tribunal’s exercise of power, in affirming the decision under review, was affected by its irrational reasoning in two of the six bases it chose as, collectively, justifying wholesale adverse credibility findings against the appellant and his wife. As the structure of the Tribunal’s reasons reveal, it was those six reasons upon which the Tribunal rested its entire rejection of the appellant’s claims on review. That is sufficient to find that the appellant was deprived of the realistic possibility of a different outcome, especially when coupled with the fact that the Tribunal failed to engage in any fact finding about most of the central narrative given by the appellant. The Tribunal’s irrational reasoning caused it to exceed its authority and power on the review, and to fail to discharge its statutory task according to law.

Conclusion

103    As I explained at the start of these reasons, the grounds advanced on appeal were not advanced before the Federal Circuit Court. In that sense, the details of the Federal Circuit Court’s reasoning have not been impugned. The appellable error is appropriately described as its failure to identify jurisdictional error in the Tribunal’s reasons.

104    The appeal will be allowed, and the orders of the Federal Circuit Court will be set aside. The matter will be remitted to the Tribunal for determination according to law. It is regrettable that the appellant, and his wife, must endure yet another round of hearings, evidence and submissions, and that they are likely to spend close to 10 years in tribunal and court processes, with all the uncertainties and difficulties that brings to them and their young son. Absent executive intervention, however, that is the only consequence which can flow from the success of his appeal.

105    The Court expresses its gratitude to counsel who accepted the referral under r 4.12 of the Court’s Rules to represent the appellant. A costs order should be made in favour of the appellant, such costs payable directly to counsel for the appellant in accordance with r 4.19(3) of the Rules.

Associate:

Dated:    21 April 2020