FEDERAL COURT OF AUSTRALIA

DBP16 v Minister for Home Affairs [2020] FCA 781

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent's costs to be assessed on a lump sum basis if not agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    This appeal concerns inconsistencies in evidence given by the appellant over the course of two written statements and an interview in support of his protection visa applications. The inconsistencies formed the basis for adverse credibility findings against the appellant by the Immigration Assessment Authority.

2    The appellant is a Sri Lankan national who arrived in Australia by boat in 2012. He claims to fear harm upon a return to Sri Lanka on the basis of a perceived association with the Liberation Tigers of Tamil Eelam (LTTE), because of his Tamil ethnicity and because he left Sri Lanka illegally.

The visa application and delegate's decision

3    In July 2013 the appellant purported to apply for a protection visa, and provided a statutory declaration in support of that application (2013 statement). The statutory declaration was prepared with the assistance of an interpreter and comprised two pages. In it the appellant describes why he left Sri Lanka and the basis of his feared persecution upon return.

4    In September 2015 the Department of Immigration and Border Protection invited the appellant to apply for one of two classes of visa. In October 2015 the appellant applied for a safe haven entry visa and made a written statement in support of that application (2015 statement). That statement runs to some seven pages and was prepared with the assistance of The Humanitarian Group and an interpreter.

5    The appellant was invited by a delegate of the Department to attend an interview for the purpose of his visa application in February 2016, and did so (only a one-page extract of a transcript of the interview was before the Court).

6    In July 2016 the delegate informed the appellant that his visa application was refused, and provided written reasons, including a detailed summary of relevant country information. The delegate said, relevantly:

[37]    I am satisfied that the applicant provided credible information in regards to the detention, assault (verbal and physical) and harassment suffered by him and members of his family at the hands of the Sri Lanka authorities. I also accept the account he gave of the various incidents involving the abduction and harm suffered by him and members of his family. The applicant was able to provide detailed accounts of those incidences and therefore l accept them as credible. However, based on country information which will be discussed later in this decision, I am not satisfied that he or members of his family are of ongoing concern to the Sri Lankan authorities due to their profile …

…

[41]    The applicant has claimed to fear returning to Sri Lanka as in the past he and his family had been arrested, detained, verbally and physically assaulted by the CID. I am satisfied that the applicant provided spontaneous and detailed information at the interview in regards to those incidents and I am satisfied that they did occur.

7    The delegate accepted that the appellant fears harm on the basis of his race (Tamil), imputed political opinion as a member of the LTTE and imputed political opinion due to his unauthorised departure from Sri Lanka and seeking of asylum. However, the delegate, having considered country information, considered the appellant was not of a profile that would cause there to be a reasonable possibility of him being harmed if he were to return to Sri Lanka, found that the appellant is not a refugee as defined in s 5H of the Migration Act 1958 (Cth) and was not satisfied that he was a person to whom Australia owes protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act. Accordingly, the delegate refused the application for a protection visa.

8    The fast track review process under Part 7AA of the Act then proceeded. The task of the Authority is to review a fast track reviewable decision that has been referred to it under s 473CA: s 473CC(1). That regime provides for review on the papers. It can then either affirm the decision or remit it for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation: s 473CC(2). In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217, Gageler, Keane and Nettle JJ summarised the nature of the Authority's task as follows:

[17]    Notwithstanding the inability of the Authority to set aside a fast track reviewable decision and to substitute its own decision, the Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority under s 473CC(1) is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met.

9    The appellant was advised by the Authority that the Department had provided the Authority with all documents which the Department considered to be relevant to his case. According to the Department's checklist, materials provided to the Authority under s 473CB of the Act for the review process included the interview audio file. It is not in issue that the Authority also had before it the 2013 statement and the 2015 statement.

10    The Authority affirmed the delegate's decision.

The Authority's decision

11    In its reasons for decision the Authority summarised the appellant's claimed fear of adverse attention from the authorities. It referred to the claims that his sister was taken away by the LTTE in 2007 or 2008; that the family decided the appellant should tell the CID that he was a member of the LTTE, and he signed a form confessing to that involvement; that the family surrendered to the Sri Lankan Army in 2009; that family members were fired upon by the SLA; the family were displaced to Menik Farm for internally-displaced persons until released in 2010; that in 2012 the CID came to the appellant's house and arrested him and held him for six days; that he reported to the CID office after that and was not physically harmed but was threatened; that he was later arrested when driving a tractor and taken to the police station and beaten; that he then, with his father's assistance, arranged for smugglers to help him leave Sri Lanka; and that his father was arrested and detained after the appellant left Sri Lanka.

12    The Authority also cited country information from both the UK Home Office and the Department of Foreign Affairs and Trade.

13    However, the Authority had serious concerns about the appellant's credibility and the truthfulness of his evidence. There are four paragraphs of the reasons that are central and it is appropriate to reproduce them in full:

[14]    Having considered his two written statements, from 2013 and 2015, his evidence from his SHEV interview, and the available country information, I have serious concerns about the credibility of the applicant and truthfulness of his evidence.

[15]    He maintained that because his family did not want to jeopardise his eldest sister's university studies, they agreed he would say he was in the LTTE instead of his sister and both he and his sister told the authorities he was the one in the LTTE. He was not consistent in his evidence as to when he and his sister told the authorities - it was either when his sister was arrested by the CID after the family's return to Paranthan (2013 statement) or at Menik Farm but with no further mention of his sister being arrested (2015 statement and SHEV interview). Having revealed to the CID at Menik Farm that he was in the LTTE, the applicant was made to sign a confession and then effectively ignored until March 2012 when the CID decided to question the applicant further about his LTTE involvement. I consider it implausible, given the country information, that the authorities would not have arrested and detained the applicant if he confessed when he was at Menik Farm that he was involved with the LTTE.

[16]    He consistently claimed his sister was in the LTTE but was not consistent about when she was in the LTTE - alternatively, it was not specified (2013 statement); it was in around 2008 (2015 statement); and it was 2007 (SHEV interview). He did not mention any confrontation with the LTTE and the LTTE ordering his family to be shot in his 2013 statement. He says the shoot to kill order from the LTTE occurred when his sister was recruited, which was in around 2007 or 2008, but he and his family did not leave Kandivali for the SLA controlled area to escape the LTTE until January 2009. In the SHEV interview he mentioned for the first time that his oldest sister escaped from the LTTE after being with them for a week and also that his second eldest sister was taken by the LTTE, in the other sister's place, but also escaped after one day.

[17]    The applicant stated in his 2013 statement that when arrested by the CID in 2015 he was not beaten or harmed but in his 2015 statement says he was punched in the head and had his ears twisted. At the SHEV interview he said he had his ears twisted and, when asked about his statement about being punched in the head, said it was all the same. In his written statements he said after he left Sri Lanka his father was arrested twice, once for five days then, a couple of weeks after that, for two days and questioned about the applicant. At the SHEV interview he said variously that the first time the CID questioned his father they just came to the house and he was only arrested the second time he was questioned; that his father was detained two days; and the first occasion they captured him and questioned him for one day and the second occasion he was arrested and held for five days. He also confirmed that his written statements were read back to him before he signed them.

14    The Authority concluded:

[18]    When I consider overall the differences in his evidence, including a number of more than minor inconsistencies and changes in his evidence, together with some implausible evidence, on key facts, I do not find the applicant to be a credible witness. I reject as fabrication his claims that he was subject to the adverse interest of the Sri Lankan authorities, including that his sister(s) were forcibly recruited into the LTTE; that he confessed to the authorities that he was involved in the LTTE; that he was arrested and detained by the CID in March 2012; that he was required to report to the CID on a fortnightly basis; that he was arrested by the police in June 2012; and his father was arrested or questioned by the CID on his whereabouts after he left Sri Lanka. I accept that the applicant lived most of his life in Paranthan, moved to Kandivall in 2007, was displaced into Menik Farm in January 2009, was released from Menik Farm in June 2010 and moved to Jaffna and, after a year in Jaffna, returned to Paranthan.

15    Although the balance of the reasons were not in issue in the appeal, they may be summarised briefly. With respect to the appellant's claims to fear harm on the basis of his Tamil ethnicity and imputed LTTE connections, the Authority reviewed country information which found that conditions for Tamils had improved substantially under the new Sirisena government and that the trend of monitoring and harassment of Tamils in day-to-day life has generally eased since the war ended. It considered that there is not a real chance the appellant would, as a Tamil male from the north, face serious harm upon his return to Sri Lanka, now or in the foreseeable future.

16    The Authority noted that real or perceived links with the LTTE may give rise to a need for international refugee protection (at [30]). It then said that based on its findings (which in context must be a reference to the findings at [18]), the appellant has no actual or perceived links to the LTTE and would not be of any adverse interest to the Sri Lankan authorities.

17    The Authority accepted that the appellant would face repercussions under the Sri Lankan Immigrants and Emigrants Act 1949 as a failed asylum seeker but considered that the likely consequence for the appellant would be a very short period of detainment or imprisonment before bail is granted by a Magistrate, and the later imposition of a fine. It considered that the appellant would not be at risk of adverse attention from the Sri Lankan authorities on arrival in Sri Lanka. It was not satisfied that there is a real chance that the appellant would face serious harm on his return as a failed Tamil asylum seeker.

18    The authority considered that any investigation and punishment of the appellant would be the result of a law of general application and would not amount to persecution for the purpose of s 5H(1) or s 5J(1) of the Act.

19    Having considered the appellant's circumstances individually and cumulatively, the Authority concluded that the appellant did not meet the requirements of a refugee under s 5H(1) of the Act and was not eligible for protection under s 36(2)(a). For similar reasons, it concluded that he did not meet the requirements of the complementary protection assessment under s 36(2)(aa).

The five impugned findings of inconsistency or implausibility

20    Before the Federal Circuit Court and in this appeal the appellant challenges the Authority's findings that the appellant gave inconsistent evidence as to the following matters:

(1)    when he or his sister told the authorities that the appellant was in the LTTE ([15] of the Authority's reasons);

(2)    when his sister was in the LTTE ([16] of the reasons);

(3)    whether he was hurt by the CID ([17] of the reasons); and

(4)    how often his father was detained after the appellant left for Australia ([17] of the reasons).

21    The appellant also challenges the finding by the Authority that it was implausible that the authorities in Sri Lanka would not have arrested and detained the appellant if he had confessed to being involved in the LTTE ([15] of the reasons).

Before the Federal Circuit Court

22    The appellant relied on one review ground before the Federal Circuit Court, as follows:

The [Authority] engaged in irrational or illogical reasoning, or constructively failed to exercise its jurisdiction, in rejecting the Applicant as a credible witness by relying on inconsistencies that were either objectively minor or not inconsistencies at all, and making a finding of implausibility that was not open on the evidence.

23    The primary judge found that [15] to [18] of the Authority's reasons clearly identify a combination of inconsistencies that arose on the material before it, and so the submission that there was no inconsistency had no substance. Further, the primary judge considered that on no view could it be said that these inconsistencies could be trivial or inconsistent. The adverse finding in relation to the appellant's claims in respect of his sister's involvement in the LTTE was at the core of his claim for protection, and the direct inconsistencies in respect of the assertions concerning his father's arrest likewise could not be said to be trivial or insignificant.

24    The primary judge also considered that the Authority's findings of implausibility were logical, rational and open to it on the evidence and country information before it. The primary judge said that it was not disproportionate for the Authority in the present case to reject as a fabrication the appellant's claims. The primary judge found that the Authority's credibility findings could not be said to lack an evident or intelligible justification, and dismissed the ground raised by the appellant.

Grounds of appeal

25    The appellant now relies on two grounds of appeal. They are as follows:

1.    The trial judge erred in failing to find that the Second Respondent engaged in irrational or illogical reasoning, or constructively failed to exercise its jurisdiction, in rejecting the Applicant as a credible witness by relying on inconsistencies that were either objectively minor or not inconsistencies at all.

Particulars

a.    The trial judge erred in finding that the matters relied upon by the Second Respondent for its adverse credibility finding were the subject of evidence that revealed inconsistencies.

b.    The trial judge erred in finding that the matters relied upon by the Second Respondent for its adverse credibility finding were not trivial or insignificant.

c.    The trial judge did not consider the Applicant's argument that the Second Respondent constructively failed to exercise its jurisdiction because its credibility finding was unreasonable on a proportionality analysis.

2.    The trial judge erred in failing to find that the Second Respondent's finding that it was 'implausible' that the Applicant was not immediately arrested and detained was a finding that was not open on the evidence

26    During the hearing, counsel for the appellant said that the variety of illogicality or irrationality referred to by ground 1 upon which the appellant relied was that described by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [135] as where the decision to which the decision-maker came was simply not open on the evidence.

Principles

27    Credit findings have a particular and important place in decision-making, and so a court exercising the power of judicial review must be cautious in deciding whether a decision-maker, in dealing with factual material, has failed to exercise its statutory task by an approach that can be criticised as seriously irrational, illogical or lacking material foundation such that the credit finding is compromised: SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589 at [40] (Allsop CJ).

28    Guidance in this area is provided by a number of decisions. The use of inconsistencies in an asylum seeker's evidence in assessing credibility was addressed by the Full Court in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83 in the following passages:

[22]    The UNHCR, in its report entitled 'Beyond Proof: Credibility Assessment in EU Asylum Systems', 2013 at p 27, has described 'credibility', in the context of asylum applications, in the following terms, which we consider to be an appropriate description:

In the English language, the ordinary meaning of 'credibility' is whether something or someone is capable of being believed, or alternatively, whether something or someone is trustworthy or reliable. 'Credible' is defined as 'able to be believed or convincing.'

…

The term 'credibility assessment' in this context is used to refer to the process of gathering relevant information from the applicant, examining it in the light of all the information available to the decision-maker, and determining whether the statements of the applicant relating to material elements of the claim can be accepted, for the purpose of the determination of qualification for refugee and/or subsidiary protection status.

(Footnotes omitted.)

[23]    A decision-maker is entitled to rely upon inconsistencies in assessing a visa applicant's credibility but it is important that the process be conducted fairly and reasonably, taking into account that the assessment of the reliability, and credibility, of accounts given by asylum seekers is well recognised as involving a number of particular features and considerations, and calls for a careful and thoughtful approach.

[24]    In their text, The Law of Refugee Status (2nd edition, 2014) at p 139, James Hathaway and Michelle Foster describe the assessment of credibility as often being based on one or more of four matters: plausibility, relevant knowledge of an asylum seeker, demeanour and consistency of testimony. The learned authors discuss in detail (at pp 139-149) the comparative jurisprudence on these four features of credibility assessments, including references to many decisions of this Court dating back 20 years. The necessity for care, fairness and a reasonable approach, in order to avoid what the learned authors describe at one point as 'a quest to disbelieve' (at p 138), or to avoid irrationality or legal unreasonableness in an approach to credibility assessment, is evident from the comparative authorities there discussed, including as we have noted, many authorities from this Court. The learned authors conclude (at pp 148-149):

As can be seen, the tools available to assess the credibility of an applicant's testimony are each highly flawed. Reliance on plausibility is prone to inferences based on assumptions of rationality often at odds with conditions in the country of origin. The use of knowledge tests is problematic given difficulties to identify both true core knowledge and knowledge that is appropriate to a person in the applicant's particular circumstances. Demeanor assessment is of necessity benchmarked against some assumption of universal normalcy (which does not actually exist), and can prove especially ill-suited to assessing the claims of women, children, and victims of trauma. And a focus on the consistency of testimony is based on a false psychological assumption about the nature of truth-telling over time, and can be heavily skewed by an applicant's understandable reluctance to be forthcoming at early stages of the determination process and where evidence is provided (as is normally the case) through an interpreter. Real caution is thus appropriate before any adverse inference regarding credibility is drawn on one of these bases.

(Footnotes omitted.)

[25]    One authority to which Hathaway and Foster refer is the decision of a Full Court of this Court in W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379 (W375/01A) where the Court (Lee, Carr and Finkelstein JJ) said at [15]:

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.

[26]    Consistently with its task on review, and bearing the reality to which the Full Court in W375/01A referred steadily in mind, appropriate attention has to be given by a decision-maker (here, the Tribunal) to all relevant material in making a finding of inconsistency which then underpins an adverse credibility assessment. As will shortly emerge, this did not occur here because the Tribunal overlooked what the appellant had earlier told a Departmental officer at the appellant's interview and this material was highly relevant to the question whether the appellant had given inconsistent evidence in support of his case.

[27]    Secondly, the term 'inconsistency' should be used with appropriate caution and an appreciation of the danger of using labels or formulae which mask the need for deeper analysis. As we have noted above, adverse credibility findings might be based on a variety of matters, including inconsistencies between, for example, evidence or claims made at different stages of the decision-making process or differences between oral evidence and contemporaneous documents. In some circumstances a visa applicant may raise a claim for the first time at an advanced stage of the decision-making process and the failure to raise the claim previously may well be relevant to credibility, but that is not to say that this is correctly described as an inconsistency.

[28]    Thirdly, even where it is reasonably open to find that a person has given inconsistent evidence, the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it. This requires consideration of, for example, the significance of the inconsistency having regard to the person's case as a whole and whether the inconsistency is on a matter which is central to the person's case or is at its periphery and involves an objectively minor matter of fact. It also requires the decision maker to remain conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given. Consideration should also be given to whether there is an acceptable explanation for the person having given inconsistent evidence such that the fact of the inconsistency should attract little, if any, weight. How all these matters are weighed and evaluated in a particular case is a matter for the decision-maker, but a failure by the decision-maker to appreciate the particular nature of the task, or to perform it reasonably and fairly, may be the subject of judicial review.

29    The approach to be applied in considering whether there has been jurisdictional error where there has been a finding on credit was addressed more broadly in AVQ15 at [41], and by the Full Court in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175. In DAO16 the Full Court said at [30]:

(1)    While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).

(2)    Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:

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.

(Emphasis added)

(3)    By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant's evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), '[u]nwarranted 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].' Equally jurisdictional error may be established by 'a process of reasoning which damns a man's credibility by reference, materially, to a false factual premise concerning a critical document': SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].

(4)    Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:

56    An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal's decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal's decision-making processes from scrutiny …

(citations omitted)

(5)    A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, 'extreme' illogicality must be demonstrated 'measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions' (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, '[e]ven emphatic disagreement with the Tribunal's reasoning would not be sufficient to make out illogicality': at [61].

(original emphasis)

30    The Full Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496, cited in DAO16, also observed that the decision-maker does not need to possess rebutting evidence before holding that a particular factual assertion is not made out, citing Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 (Heerey J).

31    The Minister made an overarching submission that the grounds sought to be agitated by the appellant in this case amount to an attempted merits review. The Full Court in AVQ15 observed that considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review (at [41(f)]).

32    It is also appropriate to record that in this case, the delegate, having interviewed the appellant, accepted some of the claims made by the appellant. Although the reasons do not describe in detail the particular claimed events that were accepted, the delegate records, as noted above, that he was satisfied that the appellant provided credible information in regards to the detention, assault and harassment suffered by the appellant and members of his family at the hands of the Sri Lankan authorities. The Authority, in accordance with the Part 7AA regime, did not interview the appellant, and came to a different view as to the appellant's credibility.

33    As noted, the Authority conducts a review de novo and is not bound by findings of the delegate. Leaving aside the exercise of the discretion under s 473DC of the Act, which was not said to be relevant in this case, the Authority does not interview an applicant. Having regard to the statutory framework, any generalised submission to the effect that the interview process accords the delegate an advantage in assessing the credibility of the visa applicant (and witnesses), and that such advantage must be taken into account so as to minimise or otherwise affect the Authority's findings as to credibility, must be rejected: see generally (although in the context of s 473DC) BLU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 706 at [49]-[50].

34    There may be a number of reasons why a decision-maker in the position of the Authority comes to a different view on credibility to that of a delegate. For example, it might be that the Authority has discerned inconsistencies or discrepancies in the person's evidence that were not detected or questioned by the delegate.

35    With those general observations and principles in mind, it is now necessary to consider the inconsistencies relied upon by the Authority.

Were the Authority's adverse credibility findings illogical or irrational?

36    It is appropriate to note at this point that the appellant in the 2015 statement said that he aimed in that statement to provide more details and clarify some aspects of the 2013 statement. He said that, due to the time that had elapsed since some of the events, he could not remember with absolute detail all of the minute details, such as exact dates and time periods. Whilst such a statement could not properly be regarded as curing discrepancies or inconsistencies of itself, the appellant's acknowledgment that he cannot accurately remember all minute details should not be ignored and is consistent with some of the features of asylum seeker evidence discussed in AVQ15 that call for an assessment of the reliability and credibility of accounts given by asylum seekers to be conducted carefully.

37    Further, the inconsistencies upon which the appellant relies should not be viewed in isolation. The Authority found that the appellant's evidence lacked credibility, having considered all of the evidence and the country information (at [14]) and having considered 'the overall differences in his evidence' together with 'some implausible evidence' (at [18]). At [16] of the reasons the Authority refers to a number of other inconsistencies in the appellant's evidence, inconsistencies that are not addressed by the appellant in this appeal. It is clear from [14] and [18] of the reasons that the Authority relied upon the cumulative effect of the perceived inconsistencies. However, reliance upon the cumulative effect of a number of trivial or peripheral discrepancies to discredit a protection visa applicant may still be illogical or irrational. As Murphy J described the position in BAO18 v Minister for Home Affairs [2019] FCA 965:

[55]    It may be accepted that the individual components of a cumulative finding should not be weighed as if each one must be capable of supporting the final conclusion, but a cumulative finding is only as good as the individual findings lying beneath it.

38    It is therefore necessary to consider the five matters relied upon by the appellant.

First inconsistency: when the appellant or his sister told the authorities that he was in the LTTE

39    The appellant claims that he and his family agreed that they would inform the CID that he, and not his sister, was a member of the LTTE, so as not to jeopardise her University studies. The inconsistency is said to arise as to when that information was given to the CID. In the 2013 statement, the appellant said:

After the war, my family and I were released from Menik Farm IDP camp and we returned to our home village in approximately June 2010. Members of the village reported to the CID that our family had links to the LTTE, and that one of us had been a member. Often when the CID were targeting one family, that family would point to other families who had been involved to shift the focus from themselves. My sister [redacted] had been a member of the LTTE. [My sister] had been injured by aerial bombardment and had returned to study at university. We did not want her to admit to the CID she had been in the LTTE, so I agreed to say I had been in the LTTE in her place.

The CID arrested my sister as she was the eldest. She told them that she was a student and had not been a member of the LTTE. She gave them my name instead.

I was then arrested by the CID and held for five days in March 2012 …

40    In the 2015 statement, the appellant said:

[24]    At the Menik Farm IDP Camp, the CID came to investigate each family to ask them whether they had been involved with the LTTE. As my sister [redacted] had started studying in university, my family did not want to admit to the CID that she had been in the LTTE, as her studies would be affected. So I agreed to say to the CID that I had been involved with the LTTE.

[25]    The CID made me fill out a form, confessing that I was a member of the LTTE. The CID also interrogated [my sister], and she told them she was a student and had not been a member of the LTTE. She gave them my name instead.

[26]    In approximately June 2010, my family and I were released from the Menik Farm IDP Camp, and we moved to Jaffna and stayed there for one year. In 2011 we returned to Paranthan, Kilinochchi.

[27]    After we returned to Paranthan, Kilinochchi, other members of the village reported to the CID that our family had links with the LTTE, and one of us had been a member. Often when the CID targeted one family, that family would point to other families who had been involved to shift the focus from themselves.

[28]    After we returned to Paranthan, Kilinochchi, the CID also visited our home with a copy of my confession and recorded that I was back in Paranthan.

[29]    In March 2012, the CID came to our home and arrested me around midnight …

41    Based on the Authority's reasons, it is apparent that the interview evidence was to the same effect as the 2015 statement, so the inconsistency only relates to the 2013 statement.

42    The appellant submits that at most the 2013 evidence is ambiguous as to when the appellant revealed to the CID that he had been involved in the LTTE. The appellant submits that the relevant extract from the 2013 statement should not be read in a strictly chronological sense.

43    Even allowing for the fact that the 2013 version does not state expressly when the alleged disclosure to the CID occurred, there is a difficulty in reconciling the versions. The 2013 version of the timing of disclosure when read as a whole can reasonably be regarded as depicting the disclosure occurring after the family's return to the village. In contrast to the 2015 statement, there is no mention of a CID interrogation at the camp and no mention of the appellant's confession at the camp. In contrast to the 2015 statement, the 2013 version does not record two occasions of questioning by the CID, but only one. The 2013 statement refers to the sister providing the appellant's name to the CID in the context of her arrest which is not linked in time to any arrest at the camp.

44    It is possible for a general statement to be read consistently with a specific statement. I accept that specific matters may be omitted from a general statement without any inconsistency. However, in this case I do not consider the differences in the descriptions of the circumstances of disclosure can be explained away as ambiguity, as the appellant suggests. Nor do I consider the different descriptions can fairly be read together as consistent. Rather, the evidence can properly be described as inconsistent, and the inconsistency was not explained by the 2015 statement or interview.

Second inconsistency: when the appellant's sister was in the LTTE

45    In the 2013 statement (see at [39] above) the appellant said that his sister had been a member of the LTTE but the evidence is not clear as to when she was a member.

46    In the 2015 statement, the appellant said:

[19]    I have lived in Paranthan, Kilinochchi since I was born. In around 2007, my family moved to Kandivali, due to the war.

[20]    In around 2008, the LTTE came to our house in Kandivali and took my eldest sister [redacted], and forced her to become a member of the LTTE. My family tried to stop [my sister] from being taken, and fought with the LTTE officers in the process, but they did not succeed. But because my family fought with the LTTE officers, the chief of the LTTE gave permission for the LTTE officers to shoot my family.

47    The Authority records that in the interview the appellant said this occurred in 2007.

48    I am not persuaded that this is materially inconsistent evidence. Bearing in mind that the evidence is given at least eight years after the event, and that the 2015 statement refers to the relevant time being 'around 2008', the reference to 2007 is within that range. The consistent evidence is that the event occurred in Kandavali and the family had moved there in 2007, so the timeline is not otherwise impugned.

49    The 2013 statement was silent on this aspect but that of itself does not necessarily support a finding of inconsistency: AVQ15 at [27].

50    In my view the difference in the language used in the statements should not be described as an inconsistency, but rather reflects imprecision as to a particular date. The boundaries of 'around 2008', in the context of events that took place many years before, should be taken to include '2007', rather than conflict with it. But such imprecision is still a matter to which the Authority was entitled to have regard in weighing the evidence as a whole.

51    I note that in this regard my view differs from that of the primary judge, who considered that 'around 2008' and '2007' are not the same and '[t]hey are inconsistent and illogical' (at [28] of the primary judge's reasons). However, the primary judge did not refer to AVQ15 and the observations of the Full Court at [23] and [28] as to the care that should be taken in assessing an asylum seeker's evidence. In this regard it is to be recalled that the appellant was recalling events that he claimed occurred some eight years earlier and at a time when he was aged 15 or 16 years old.

52    However, as will be seen, this difference does not affect the outcome of the appeal.

Third inconsistency: whether the appellant was hurt by the CID

53    In the 2013 statement the appellant refers to being arrested by the CID and held for five days in March 2012. He states:

I was then arrested by the CID and held for five days in March 2012. I was not beaten or harmed by the CID, but they did threaten me. I told them that I had not received any training from the LTTE, but had just been in the movement. They did not believe me and said if I didn't admit I'd been trained and give them all the details I'd be kidnapped in a white van.

After around 5-6 days they released me. After this time I had to report to them every two weeks. They would also come and arrest me at night and while I was working and take me to the camp.

Although I was not physically harmed, I was scared of the CID …

54    In his 2015 statement the appellant states that:

[29]    In March 2012, the CID came to our home and arrested me around midnight. The CID drove me in a van for around one hour, to a CID office. I was held in a dark room for three days, after which a CID officer came and started interrogated me. They asked me what section of the LTTE I was in, and what types of training I undertook. I said that I was very young and as such, did not receive any training from the LTTE, but just assisted with chores such as cleaning. The CID officers did not believe me. They punched my head and twisted my ears several times, but they did not seriously beat me.

…

[35]    I continued reporting to the CID office every fortnight. Although I was not seriously physically harmed by the CID, I was very scared of the CID. I was afraid that they would do to me what they had done to [redacted]. So I started thinking about leaving Sri Lanka.

55    The part of the transcript of the interview included in the appeal book relates to this incident. It reads (paragraph numbering deleted):

DELEGATE    When you were detained by the CID, did they do anything else to you apart from twisting your ears?

INTERPRETER    No.

DELEGATE    Because in your statement you said they punched your head?

INTERPRETER    They just punch like that and they twisted me.

DELEGATE    So why did you say they didn't do anything else?

INTERPRETER    It's all the same.

DELEGATE    Ok. So they didn't do any serious injury to you?

INTERPRETER    No.

56    I reject the appellant's submission that viewed properly there is no inconsistency in the evidence as to whether the appellant was hurt. I do not consider there is any inconsistency between what was said in the 2015 statement and the interview. That evidence was variously that although he was punched in the head and had his ears twisted in some manner, he was not seriously beaten, he was not seriously physically harmed and there was no serious injury done to him. Any inconsistency was clarified in the interview. However, there is a rational basis for finding there is an inconsistency when the 2013 statement is taken into account, where the appellant said that he was not beaten or harmed, but was threatened, and that he was not physically harmed. Although the appellant argues the evidence should be read consistently, with it being assumed that the appellant as at 2013 did not consider any contact that occurred to be 'serious physical harm', it does not strain the language to recognise that there is an inconsistency. No hitting or assaulting, even of a minor nature, is mentioned as at 2013.

Fourth inconsistency: how often his father was detained after the appellant left for Australia

57    In the 2013 statement the appellant said that:

After I left Sri Lanka, the CID arrested my father. He was held for five to six days. My father told them I was in Australia and repeated to them that I had been in the movement, but hadn't received any training. They didn't believe him as they said there would be no reason for me to come to Australia if I hadn't been trained. They hit and kicked my father to try to get him to 'tell the truth'. They also said 'if no one from your family took training from the LTTE, did you take training.' So now they suspect my father.

He was then arrested again around two weeks ago and held for two days. They made him do forced labour for them while he was detained.

58    In the 2015 statement the appellant said:

[40]    After I left Sri Lanka, I heard from my father that the CID came and arrested him, because I stopped reporting to the CID office. My father was held for five or six days, and was interrogated by the CID. My father told the CID I was in Australia and repeated to them that I had been in the LTTE movement, but had not received any training. The CID did not believe him as they said there would be no reason for me to come to Australia if I had not been trained, they said I must have escaped to Australia as I had been trained by the LTTE. They hit and kicked my father to try and get him to 'tell the truth'.

[41]    My father also told me that he was arrested again around two weeks later, and held for two days. They made him do forced labour for them while he was detained.

59    As to the interview, the Authority records (at [17] of its reasons included above) that:

At the SHEV interview he said variously that the first time the CID questioned his father they just came to the house and he was only arrested the second time he was questioned; that his father was detained two days; and the first occasion they captured him and questioned him for one day and the second occasion he was arrested and held for five days.

60    There is no question that although there is general consistency between the evidence in the two written statements, the evidence given at the interview (based on what is recorded in the Authority's reasons) is inconsistent. The Authority was not engaging with discrepancies concerning the central elements of the appellant's own story but rather discrepancies as to events that involved his father, and as to which the appellant had no direct knowledge. The appellant knew only what he had been told. Discrepancies in describing such matters might properly be regarded as less significant and meaningful than discrepancies concerning the appellant's version of his own conduct, or his description of matters of which he could reasonably be expected to have first-hand knowledge and memory. This is relevant to the weight that might be accorded to the inconsistencies in the appellant's evidence, but it does not remove the inconsistency.

Fifth matter: implausible that the authorities in Sri Lanka would not have arrested and detained the appellant

61    The appellant contends, first, that no country information was cited by the Authority to support its finding at [15] of the decision record. I do not accept that submission. The reasons are to be read as a whole and not minutely: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272, referring to Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287. It is readily apparent that the country information to which the Authority refers at [15] is, or includes, that referred to in the decision record at [13], which reads:

[13]    Country information indicates large numbers of IDPs were sent to Menik farm in the final stages, and immediate aftermath, of the war, and there were often delays before IDPs [internally-displaced persons] could return to their actual homes because of the conditions existing at that time. The IDPs, particularly those at Menik Farm, were subject to screening by the SLA, CID and Terrorist Investigation Department and between 11,000 and 12,000 people were arrested and detained for even a minor alleged association with the LTTE and were then subject to rehabilitation or criminal prosecution in the more serious cases. Country information also confirms that under the former Rajapaksa government the security forces in the north and east were known to monitor any possible LTTE activity and other forms of civil resistance or anti-government activity. Many Tamils, in the north and east in particular, reported being monitored, harassed, arrested and/or detained by security forces under the Rajapaksa government.

(footnotes describing DFAT and UK Home Office source country information omitted)

62    The appellant contends, second, that even if the country information relied upon by the Authority at [15] of the decision record is that referred to at [13], it does no more than refer to 11,000 to 12,000 people being arrested on the basis of association with the LTTE and does not support any broader proposition that every person who confessed to LTTE involvement was arrested and detained. The appellant contends that the necessary implication in the Authority's ‘implausibility' finding is that 100% of people who confessed to LTTE involvement were arrested and detained and contends that there is no evidence to support that implication.

63    The '100%' argument involves an element of hyperbole, because an event may properly be regarded as implausible even if it is not impossible. As was explained by the Full Court recently in BQQ15 v Minister for Home Affairs [2019] FCAFC 218, and referring to the High Court's discussion of implausibility in The Republic of Nauru v WET040 (No 2) [2018] HCA 60 at [25]-[26]:

[56]    A finding that an alleged event is implausible is ordinarily a finding that it is inherently unlikely to have occurred; adopting the language of the High Court in WET040 (No 2), the event does not accord with the probabilities of ordinary human experience. It is not necessarily a finding that that event is beyond human experience of possible occurrences in the sense that it could not have occurred: that formulation tends to overstate what is ordinarily meant by 'implausible'.

64    But more to the point, the appellant's submission ignores the context of the Authority's finding and the inferences that were available on the materials. It is true that the Authority had regard to the country information, but as is apparent from [15] of its record, it also had regard to the appellant's claim that he was arrested by the CID in 2012. The Authority had already recorded (at [8] of the record) that the appellant claimed that the CID had come to his house with the signed confession. Having regard to the country information that refers specifically to the screening processes carried out at Menik Farm by, relevantly, the CID, and the very large number of persons arrested for minor associations with the LTTE, and also having regard to the fact that (on his case) the appellant was of interest to the CID as indicated by his subsequent arrest, there is a rational basis for the Authority's finding that it was implausible, in the sense that it was inherently unlikely, that the appellant would have provided a confession to the CID at Menik Farm but then been released from the camp (rather than arrested and detained), only to be tracked down some years later by the CID which had retained a copy of his confession. Different minds might have come to a different conclusion as to whether that evidence is implausible, but the Authority's conclusion is not based on mere supposition or a personal assumption, but has been made with regard to country information and the appellant's other evidence. It was a logical deduction grounded in the seeming improbability of the appellant's version of events, having regard to the evidence before it.

Was there error in the credibility finding?

65    It is not for this Court to determine whether the factual findings of the Tribunal are correct. However, it is necessary to address the reasoning process by which the Authority has reached its conclusion as to the identified inconsistencies or discrepancies. For the reasons I have given with respect to each of the impugned findings, I do not consider the Authority erred in concluding that there were inconsistencies in the appellant's account of events. Although I would describe the second discrepancy as one of imprecision rather than inconsistency, that is in my view a minor difference when the evidence is viewed collectively for the purpose of the credibility finding. Such imprecision remained a matter to which the Authority was entitled to have regard in undertaking its task.

66    I consider the Authority's consideration of whether there were discrepancies was undertaken in a rational and coherent manner. It approached its task by comparing evidence, considering whether inferences could properly be drawn and having regard to relevant materials before it. This stage of its reasoning process does not disclose error, but the question remains as to whether there was error in relying on the identified matters as undermining credibility. Again, it is not for this court to make findings as to credibility, but it must consider whether that process was undertaken lawfully.

67    Some of the identified discrepancies related to matters that were within the appellant's own knowledge and were central to his protection claims. Further, the Authority's findings over the course of some four paragraphs reveal extended reasoning with an emphasis on matters that were central to the appellant's protection claim.

68    Accordingly, in my view this is not a case where the decision-maker has relied on trivial or objectively minor matters of fact, but rather has relied on matters that rationally can be seen as being of some weight and significance with respect to the appellant's claims.

69    It is to be recalled that the Authority also referred to inconsistencies or discrepancies that are not impugned or referred to by the appellant. For example, in addition to those matters discussed above, the Authority noted in its reasons that the appellant did not mention any confrontation with the LTTE and the LTTE ordering his family to be shot in his 2013 statement. It noted that the appellant said that the shoot to kill order from the LTTE occurred when his sister was recruited (2007 or 2008), but he and his family did not leave Kandivali for the SLA controlled area to escape the LTTE until January 2009 (in this regard the Authority is apparently highlighting the unexplained time gap between the threat and the departure). The Authority recorded that the appellant mentioned in the interview for the first time that his oldest sister escaped from the LTTE after being with them for a week and also that his second eldest sister was taken by the LTTE, in the other sister's place, but also escaped after one day (all at [16] of the reasons).

70    Any consideration of the significance of the five matters referred to by the appellant must also have regard to the fact that they were not the only matters referred to by the Authority that led to its adverse credibility finding. The Authority made it clear that it was considering the 'overall' differences in the appellant's evidence, including inconsistencies and some implausible evidence. The Authority's reference to some 'more than minor' inconsistencies demonstrates that it understood that its task was to weigh the significance of the variations and inconsistencies that it found to exist.

71    The Authority did not reject all of the appellant's evidence. However, that which was rejected can be seen as rationally related to key claims, particularly when viewed cumulatively: it was relevant to the claim that the appellant was subject to the adverse interest of the Sri Lankan authorities; that his sister was forcefully recruited and that the appellant confessed his own involvement; that he was arrested and detained in March 2012; and that his father was visited and arrested after his departure from Sri Lanka. The evidence did not relate to peripheral matters. It involved his personal conduct, at least insofar as it concerned the circumstances of his alleged confession of his own rather than his sister's or sisters' involvement in the LTTE, and the circumstances of his alleged questioning, reporting and arrest. It was viewed taking into account other discrepancies noted at [16] that were also relevant to those key claims, such as the involvement of the sisters in the LTTE.

72    Some of the evidence might be considered less significant to a credibility finding. For example, imprecision or the inadequacy of explanation as to the date when the sister was forcibly recruited into the LTTE may in itself seem minor, but it can rationally be seen as relevant to the overarching credibility finding when the sequence of the family's departure from Kandivali to escape the LTTE is considered. That sequence was something on which the Authority put some weight, as is apparent from [16] of its reasons and its reference to the 2009 departure. It is to be recalled that it is not for this Court to assess the nature and weight of such evidence itself. But this consideration reveals that it was not irrational for the Authority to have regard to the discrepancy in what was said.

73    One part of the claim was rejected by the Authority at [18], even though the five matters identified by the appellant did not relate directly to the relevant event, being that part of the claim that referred to the appellant being arrested in June 2012. It is to be inferred that the Authority, having regard to the cumulative effect of the inconsistences that it identified and having rejected the other claims as listed at [18] of its reasons, did not believe the appellant's evidence about the June 2012 arrest. Such reasoning is in accordance with principle. In Applicant NAAF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1, Kirby J stated:

[81]    … decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker's disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person's credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person's entire evidence in a new light.

See also W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679 at [68]-[69] (Tamberlin and Nicholas JJ).

74    It may be accepted that considered in isolation, each matter to which the Authority had regard may not provide a rational basis for dismissing the appellant's claims. It may also be accepted that even considered cumulatively, a different decision-maker may have come to another view. Further, it must be acknowledged that a decision-maker must be cautious in making serious findings as to an appellant's credibility in circumstances where such a finding comprises in effect a finding that the appellant has lied. However, even strong disagreement with the view taken by the Authority does not suffice to establish that the Authority's reasons were illogical or irrational or that its decision can otherwise be described as legally unreasonable.

75    I consider it was open to the Authority, assessing the evidence in the manner that it did (and taking into account that the description of the second 'inconsistency' would more properly be imprecision) and having regard to the cumulative deficiencies that it identified, to make the adverse findings about the appellant's credibility and so reject the appellant's claims. No error is disclosed in the manner in which it carried out its task. It follows that error on the part of the primary judge is not established in dismissing the appeal ground that was before the Federal Circuit Court.

The alternative proportionality argument

76    Particular (c) of the first appeal ground relies upon proportionality. At the hearing of this appeal the appellant requested that determination of this matter be deferred until the High Court delivered its reasons in Comcare v Banerji [2019] HCA 23. The appellant's counsel anticipated that the High Court might develop the concept of proportionality in a manner that might assist the appellant. After the High Court's reasons were delivered, the appellant accepted that the High Court referred to proportionality only in the limited context of the assessment of the constitutional validity of the relevant statutory provision, and so the reasons did not assist his argument.

77    The appellant propounds by particular (c) an alternative basis of his appeal, being that the Authority's conclusion that the appellant was not a witness of truth was disproportionate to the nature of the particular inconsistencies found, and contends that such an alternative basis might be made out even if a rejection of credibility is otherwise rational.

78    Whilst it is true to say that the Authority said that it did not find the appellant to be a credible witness and rejected the claims as identified above, I note that it did accept certain parts of his evidence, as is apparent from part of [18] of the reasons:

I accept that the applicant lived most of his life in Paranthan, moved to Kandivall in 2007, was displaced into Menik Farm in January 2009, was released from Menik Farm in June 2010 and moved to Jaffna and, after a year in Jaffna, returned to Paranthan.

79    The Authority also accepted the circumstances of his departure from Sri Lanka without a passport, as is implicit in findings made elsewhere in the reasons that on his return to Sri Lanka the appellant would be considered by the authorities to be a failed asylum seeker who departed Sri Lanka illegally.

80    However, to return to the appellant's submissions.

81    The appellant's argument proceeds on the basis that proportionality is not a recognised independent ground of jurisdictional error in Australian law: Bruce v Cole (1998) 45 NSWLR 163 at 185. Rather, the appellant seeks to rely upon proportionality as 'an alternative to orthodox principles of illogicality or irrationality'.

82    The appellant asserts that in this case disproportionality arises by the Authority's reasoning because:

(1)    it used particular inconsistencies to influence the assessment of evidence of other events;

(2)    it gave significance to inconsistencies as to matters such as dates rather than the underlying events;

(3)    the context of the evidence (the use of interpreters and the lapse of time, for example) was such that there was no reasonable justification for relying on the inconsistencies to reject evidence more broadly; and

(4)    the Authority overreached in finding that the appellant was not a credible witness when there should at most have been a narrower rejection of the events affected by the inconsistencies.

83    Proportionality has long been recognised by the courts as a tool in the context of testing the validity of subordinate legislation. See, for example, Dixon J's judgment in Williams v Melbourne Corporation [1933] HCA 56; (1933) 49 CLR 142 and Weinberg J's discussion in Vanstone v Clark [2005] FCAFC 189; (2005) 147 FCR 299; and more recently Brett Cattle Company Pty Ltd v Minister for Agriculture [2020] FCA 732 (Rares J).

84    Proportionality has also been used in the constitutional law context. McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178, a case on which the appellant relies, is such an example.

85    However, the appellant seeks to rely on proportionality in the context of judicial review of administrative action and, relevantly, in the context of a credibility finding. The appellant relies on references to proportionality and administrative decisions in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 and McCloy in support of his contention.

86    In Li, French CJ stated:

[30]    The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, 'may have no particular legal consequence.' As Professor Galligan wrote:

'The general point is that the canons of rational action constitute constraints on discretionary decisions, but they are in the nature of threshold constraints above which there remains room for official judgment and choice both as to substantive and procedural matters. In other words, within the bounds of such constraints, different modes of decision-making may be employed.'

A distinction may arguably be drawn between rationality and reasonableness on the basis that not every rational decision is reasonable. It is not necessary for present purposes to undertake a general consideration of that distinction which might be thought to invite a kind of proportionality analysis to bridge a propounded gap between the two concepts. Be that as it may, a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves. That approach is an application of the principles discussed above and within the limitations they would impose on curial review of administrative discretions.

(footnotes deleted, emphasis added)

87    In McCloy the High Court considered whether New South Wales legislation imposing restrictions on private funding of political candidates was invalid on the basis that it impermissibly infringed the implied freedom of political communication. The appellant relies in particular upon the following passage of French CJ, Kiefel, Bell and Keane JJ:

[3]    As noted, the last of the three questions involves a proportionality analysis. The term 'proportionality' in Australian law describes a class of criteria which have been developed by this Court over many years to determine whether legislative or administrative acts are within the constitutional or legislative grant of power under which they purport to be done. Some such criteria have been applied to purposive powers; to constitutional legislative powers authorising the making of laws to serve a specified purpose; to incidental powers, which must serve the purposes of the substantive powers to which they are incidental; and to powers exercised for a purpose authorised by the Constitution or a statute, which may limit or restrict the enjoyment of a constitutional guarantee, immunity or freedom, including the implied freedom of political communication. Analogous criteria have been developed in other jurisdictions, particularly in Europe, and are referred to in these reasons as a source of analytical tools which, according to the nature of the case, may be applied in the Australian context.

(emphasis added)

88    Further, the appellant refers to the concept of 'proportionality testing' described in McCloy and submits that such testing can be transposed to the present issue, being the Authority's credibility assessment in the course of its review under s 473CC(1) of the Act. The plurality in McCloy held that, in determining whether the impugned law was reasonably appropriate and adapted to advance a legitimate purpose, it was appropriate to apply a stepped approach by 'proportionality testing' such that the extent of the burden imposed by the relevant measure could be described as suitable, necessary and adequate, explaining those stages as follows (at [2], [79]-[92]):

(1)    suitability: whether there is a rational connection between the measure and the purpose of the provision;

(2)    necessity: whether there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive or intrusive effect on the freedom; and

(3)    adequate balance: a criterion requiring a value judgement, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.

89    As is apparent, the proportionality testing in McCloy was undertaken in a context where the relevant power had a purposive limit.

90    In summary:

(a)    the appellant relies upon the references to 'administrative acts' and 'administrative discretion' in the excerpts from Li and McCloy as reflecting acceptance of proportionality as a criterion relevant to judicial review and extends that acceptance to the application of the tools of proportionality testing; and

(b)    the Minister notes in his submissions the obiter nature of what was said in both Li and McCloy as to proportionality and administrative decisions, and underlines the context in which proportionality testing was described in McCloy, with its emphasis on statutory purpose. Whilst the Minister denied that proportionality or proportionality testing has any role in the circumstances of this case, the Minister appeared to accept that proportionality may be relevant in the context of judicial review of administrative decisions in the context of legal unreasonableness.

91    In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1, Allsop CJ referred to both Li and McCloy when discussing the concept of legal unreasonableness. Stretton concerned judicial review of the Minister's decision to cancel the respondent's visa on character grounds. Allsop CJ said the following of legal unreasonableness:

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

(emphasis added)

92    In Stretton, Griffiths J also referred to the passage from McCloy concerning the place of proportionality in judicial review:

[57]    The concept of 'unreasonableness' can accommodate individual heads of judicial review, including a 'proportionality analysis by reference to the scope of the power' (at [73]). Thus, although the argument was not presented in this way in Li itself, the plurality stated that, if the Migration Review Tribunal gave 'excessive weight' to the question whether the visa applicant had had an opportunity to present her case, 'an obviously disproportionate response is one path by which a conclusion of unreasonableness may be reached (at [74]). It may be interpolated at this point that, in the recent decision in McCloy v New South Wales [2015] HCA 34 at [3], French CJ, Kiefel, Bell and Keane JJ described the term 'proportionality' in Australian law as describing a class of criteria:

…to determine whether legislative or administrative acts are within the constitutional or legislative grant of power under which they purport to be done.

(Emphasis added.)

This may indicate that the concept of proportionality is an aspect of judicial review of administrative action.

…

93    However, care must be taken in assuming that the concept of proportionality may be applied outside the recognised contexts of subordinate and delegated legislation and constitutional review, and outside the context of legal unreasonableness. In Lobban v Minister for Justice [2015] FCA 1361, McKerracher J said the following:

[96]    While disproportionality may be a factor to take into account in considering a legal unreasonableness submission, it does not, under Australian law as it presently stands, taken in isolation, offer a stand-alone basis for concluding there has been jurisdictional error in the exercise of the decision. (Nothing said in McCloy v New South Wales [2015] HCA 34 (delivered since argument in this application) concerning proportionality as a tool in construing legislative power, rather than administrative action, affects the position.)

[97]    The fourth ground is, in truth, only an element of the third ground. It would be necessary, as the Chief Justice has said in Li (at [30]), to conclude that the disproportionate exercise of the administrative discretion was in itself irrational or unreasonable as it exceeds, on any view, what is necessary for the purpose it serves. The Minister's decision to surrender cannot be so characterised. It is but one final step in the administrative process, which is governed by other legislative safeguards.

94    Those reasons were published prior to the delivery of Stretton, but later in Renzullo v Assistant Minister for Immigration and Border Protection [2016] FCA 412, McKerracher J said the following:

[40]    Mr Renzullo also relies on [McCloy] (at [3]) in relation to the argument that the Decision was disproportionate, as a case in which the role of ‘proportionality' in determining whether an administrative act is within power was recently affirmed. In my view, McCloy is not particularly helpful in this instance because McCloy did not involve the judicial review of ministerial administrative action. Rather, McCloy concerned the examination of State legislation in which issues of constitutionality arose.

95    In AMZ15 v Minister for Immigration and Border Protection [2016] FCA 1195 Katzmann J rejected an argument based on the primary judge's 'failure to undertake a proportionality analysis by reference to the scope of power', an argument said to be based on Li. The Tribunal in that case had rejected evidence on credibility grounds. Katzmann J considered there were several difficulties with the appellant's argument. For example, in contrast to Li, the appellant's case was not a case about the exercise of discretion. Her Honour concluded:

[77]    It will be a rare case indeed in which a disproportionate response will lead to a finding of jurisdictional error. As Stretton well illustrates, even where a decision under review is a discretionary one, there are real dangers in applying a proportionality analysis to an administrative decision without sliding into merits review.

96    Subsequent to Stretton, Griffiths J also commented on the need for judicial restraint in assessing proportionality as an aspect of unreasonableness: Malek Fahd Islamic School Limited v Minister for Education and Training (No 2) [2017] FCA 1377 at [68].

97    Against the backdrop of those cases and some uncertainty as to the role of proportionality in judicial review, the context in which the appellant seeks to call in aid proportionality must be recalled. This case does not concern constitutional or legislative grants of power or delegated legislation. This is not to ignore the fact that reference has been made in the authorities to proportionality in the context of judicial review and legal unreasonableness. However, that is not the context of this case. This case is about the decision-maker's credibility assessment.

98    In DJS16 v Minister for Immigration and Border Protection [2019] FCA 254 Mortimer J considered a ground of appeal that asserted illogicality, irrationality and legal unreasonableness in the context of credibility findings. Her Honour said as follows:

[14]    More recently, in considering these kinds of arguments, especially in relation to credibility findings, in Republic of Nauru v WET040 [No 2] [2018] HCA 60; 362 ALR 235 the High Court identified the following kinds of benchmarks:

(a)    whether a conclusion of 'implausibility' was a 'bare assertion' (at [33]);

(b)    whether factual considerations identified by a decision-maker as reasons to reject a narrative or an account were nothing more than speculation or conjecture (at [29]);

(c)    whether an inference drawn by a decision-maker was a 'rational inference' (at [28]); and

(d)    whether a conclusion was 'unsupported by basic inconsistencies' (at [31]).

[15]    In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [57], Griffiths J also observed that the concept of proportionality may have a role to play in irrationality or legal unreasonableness. His Honour said, by reference to the plurality's judgment in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332:

The concept of 'unreasonableness' can accommodate individual heads of judicial review, including a 'proportionality analysis by reference to the scope of the power' (at [73]). Thus, although the argument was not presented in this way in Li itself, the plurality stated that, if the Migration Review Tribunal gave 'excessive weight' to the question whether the visa applicant had had an opportunity to present her case, 'an obviously disproportionate response is one path by which a conclusion of unreasonableness may be reached (at [74]). It may be interpolated at this point that, in the recent decision in McCloy v New South Wales [2015] HCA 34 at [3], French CJ, Kiefel, Bell and Keane JJ described the term 'proportionality' in Australian law as describing a class of criteria:

… to determine whether legislative or administrative acts are within the constitutional or legislative grant of power under which they purport to be done.

(Emphasis added.)

This may indicate that the concept of proportionality is an aspect of judicial review of administrative action.

(Original emphasis.)

[16]    One of the issues not yet well-developed in current Australian administrative law is how the concept of legal unreasonableness operates when the attack is not on an exercise of power. In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at [53], Gageler J said:

Whatever room might remain for argument about the most appropriate expression of the standard of legal reasonableness, however, the nature of legal unreasonableness should be taken to be settled by the explanation of it in Quin. The requirement that a statutory power be exercised within the bounds of reasonableness is an implied condition of the statutory conferral of the power. The implication arises through operation of a common law presumption of statutory interpretation that a statutory power is conferred on condition that the power can be exercised only within those bounds. The presumption prevails to condition the exercise of the power on the repository complying with the standard of legal reasonableness absent statutory indication that the repository must meet some higher standard (an example of which is where the repository is restricted to exercising the power only on reasonable grounds) or will sufficiently comply with the statute by meeting some lower standard (an example of which is where the statute requires no more than that the repository exercise the power in good faith and for a purpose permitted by the statute). Where the presumption prevails so as to condition the exercise of the power on the repository complying with the standard of legal reasonableness, a decision made or action taken in purported exercise of a statutory power in breach of the standard of legal reasonableness is a decision or action which lies beyond the scope of the authority conferred by the power.

(Footnotes omitted.)

[17]    This description of the operation of legal unreasonableness, with which I respectfully agree, focuses on an exercise of statutory power. Thus, the concept sits comfortably with the circumstances in Li and in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437, both of which concerned the statutory power of a Tribunal to adjourn a review from time to time. So too, the concept sits comfortably with an 'outcome-focussed' analysis of an exercise of power such as the decision to cancel a visa: see Stretton at [21]-[22] (Allsop CJ), [62] (Griffiths J) and [92] (Wigney J).

[18]    So far as I am aware, at least at the level of the High Court or the Full Court of this Court, since Li the concept of legal unreasonableness has not been applied to individual aspects of the fact-finding of a decision-maker or a Tribunal in the way it is put in this appeal. Counsel for the Minister agreed this was the case. Of course, insofar as the two principal judgments in SZMDS refer to legal unreasonableness as well as irrationality or illogicality, it might be said to have occurred in that context, but since that judgment, the two kinds of jurisdictional error appear to have gone their separate ways somewhat. In this appeal, counsel for the Minister accepted there did not appear to be any decisions invoking legal unreasonableness in this kind of context, and referred to what was said by two members of the Full Court in Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172; 255 FCR 486 at [36].

[19]    That being the state of the law as far as I can ascertain it, I have focussed more on the irrationality arguments, which sit comfortably within existing authorities.

99    In my view, her Honour's reasoning is equally applicable in this case and there is no authority that presently expands the application of proportionality as a criterion, or proportionality testing, to the fact-finding exercise of the Authority that has been criticised in the Federal Circuit Court review application and this appeal. I do not consider it necessary or appropriate to undertake such an analysis in order to assess whether the Authority's credit finding was properly reasoned and carried out. That is to be assessed having regard to the authorities that specifically address jurisdictional error and credibility findings that are referred to above.

100    To return to the four matters raised by the appellant and summarised at [82] above, each of those matters fall to be considered applying the orthodox principles of assessment of credibility, such as the weighing of evidence, the cumulative effect of error, allowances to be made for difficulties faced by asylum seekers and the assessment of the manner in which the decision-maker has carried out their statutory task: see AVQ15; DAO16; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [78] (in particular as to reliance on minor inconsistencies); and Applicant NAAF of 2002. Each of the five matters upon which the appellant has sought to rely with respect to ground 1 of the appeal has been addressed having regard to those established principles and can be assessed without regard to proportionality.

101    In Murphy v Electoral Commissioner [2016] HCA 36; (2016) CLR 28 French CJ and Bell J noted at [37] that the structured testing described in McCloy was not necessarily a mode of analysis applicable generally to the concept of proportionality. Even so, the appellant contends that it can be transposed in the context of this case in the following manner: the measure undertaken being the manner in which credibility was assessed; the purpose being to form a view as to whether the delegate's decision was to be affirmed or remitted; the necessity comparator being whether there was another path of reasoning available on credibility other than a finding that the appellant was not a credible witness; the adequate balance requiring the consideration of the deleterious effect of the finding that the appellant was not a credible witness and so the rejection of his claims.

102    There is to my mind an artificiality in purporting to dissect the process and outcome of fact-finding and credit assessment in that manner. The McCloy tools were developed with a focus on statutory purpose. The search for statutory purpose is quite removed from the task of credibility assessment by an individual decision-maker. To suggest the tools can be simply transposed fails to allow properly for the process of decision-making that involves the synthesis and weighing of numerous factors: hence Kirby J's description of it in Applicant NAAF of 2002 as a complex mental process. An attempt to transpose such structured testing in the present context is not helpful. As already stated, the issue of the cumulative effect of inconsistencies and implausible evidence and whether they may bleed into and effect an assessment of other evidence is well recognised, as is the limited extent to which such matters can be reviewed without a court sliding into impermissible merits review.

103    However, it is also important to acknowledge that the decision-maker's task of comparing factual details and their significance for the purpose of carrying out its review, and in particular for the purpose of credibility assessment, may involve considering the proportionality of evidence: for example, whether particular inconsistences should be viewed as minor in the overall scheme of things or whether they are more significant. To consider proportionality in that sense is simply part of the synthesis and weighing of evidence involved in decision-making. An example is seen in AWU16 v Minister for Immigration and Border Protection [2020] FCA 513 (Mortimer J):

[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.

(emphasis added)

104    Considering proportionality in that sense forms part of the assessment of whether a credibility finding has been made in accordance with established principles (AVQ15) as to illogicality or irrationality.

105    It remains to address an alternative submission made by the appellant. The appellant submits that even if a McCloy-style analysis is not applicable in a non-constitutional context, then Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 stands as authority for a 'gross proportionality analysis' and that such proportionality is revealed in this matter. The Full Court in Singh established a number of principles concerning judicial review of the exercise of a discretionary power for legal unreasonableness, as were also developed and explained in Stretton. In my view, Mortimer J accurately summarised the position as to the absence of present authority to justify reliance on the concept of legal unreasonableness in the context of fact-finding and credibility (and having regard to Singh): DJS16 at [16]-[18]. The present case fell to be determined applying recognised principles relating to the assessment of inconsistent and implausible evidence.

106    Finally, I note the recent decision in Brett Cattle Company Pty Ltd v Minister for Agriculture. Justice Rares referred in his reasons to the fact that in recent years the courts have used the test of proportionality in arriving at an assessment of whether the making of delegated legislation is a valid exercise of power: at [290]. His Honour cited in that context Li at [30] (at [290]). His Honour also found that the explanation in McCloy of how proportionality operates as a tool of analysis in the constitutional context is apposite to the analysis of proportionality in determining the validity of delegated legislation: at [300]. His Honour addressed these issues in the context of delegated legislation. However, as already noted, the present case is different and the application of proportionality criteria in the context discussed by Rares J does not assist the appellant's argument.

Conclusion on ground 1

107    The manner in which the Authority carried out its review is therefore not impugned and no constructive failure on the part of the Authority to carry out its statutory review task is disclosed.

108    It follows that I would dismiss ground 1 of the appeal. It does not disclose jurisdictional error on the part of the Authority or relevant error by the primary judge.

Ground 2

109    The submissions relating to ground 2 were absorbed by the appellant's submissions relating to ground 1 and have been dealt with already. The appellant relied on the 'implausibility' finding as one of the five factors relevant to ground 1. The Authority did not purport to rely only on that finding for the purpose of its credibility findings. For the reasons given with respect to ground 1 it follows that ground 2 does not disclose jurisdictional error on the part of the Authority or relevant error on the part of the primary judge.

Disposition

110    The appeal should be dismissed with costs.

Associate:

Dated:    9 June 2020