FEDERAL COURT OF AUSTRALIA

CBT16 v Minister for Immigration and Border Protection [2020] FCA 793

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders of the Federal Circuit Court of Australia made on 16 April 2019 are set aside.

3.    The decision of the second respondent made on 30 June 2016 is quashed.

4.    The second respondent is to decide the appellants’ application for review according to law.

5.    The first respondent pay the appellants’ costs of the appeal and the proceedings in the Federal Circuit Court of Australia.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    This is an appeal against a judgment of the Federal Circuit Court of Australia delivered on 16 April 2019 dismissing the appellants’ application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal). The Tribunal affirmed a decision of a delegate of the first respondent (the Minister) to refuse to grant protection visas to the appellants.

2    The Tribunal found that the accounts of past harm given by the first and second appellants were not credible and, on that basis, found that there was no real chance they would face persecution if they returned to Bangladesh. Accordingly, the Tribunal was not satisfied that the criteria for the grant of protection visas under ss 36(2)(a) and (aa) of the Migration Act 1994 (Cth) had been satisfied.

3    In the appeal, the appellants contend that the Federal Circuit Court erred in failing to hold that the Tribunal’s findings on credibility were irrational or illogical.

4    I will describe the decisions made by the delegate, the Tribunal and the Federal Circuit Court, before considering the grounds of appeal.

The applications for protection visas and the delegate’s decision

5    The appellants are members of the same family. The first and second appellants are husband and wife respectively, and it is convenient to refer to them as “the husband” and “the wife”. They are citizens of Bangladesh. The other four appellants are their children. The eldest child was born in Bangladesh and the three younger children were born in Australia.

6    The husband, wife and eldest child arrived in Australia in December 2012. On 20 December 2012, the husband was interviewed by a departmental officer, with the assistance of an interpreter of the Bengali language. The husband claimed that he left his country of nationality for the following reasons:

For my son. There are many political parties, BNP, Awami League etc. They forced us to join the parties. I told I won’t join the parties so they threatened me. If we join one party the other party will be our enemy. I have to make a living. They threaten me that they would kidnap my son. I said I would tell the police. Then I thought if I reported to the police they will come and finish the whole family. I didn’t tell my parents or brothers about this. I realised that once they threatened me they will do so for the rest of my life. Then I realised that there won’t be any safety and security for my family, esp my son. I decided to take this step to travel to Malaysia for my family’s sake. And then to Australia.

7    In July 2013, the husband, the wife and the eldest child made applications for protection visas. The husband’s application was accompanied by his own statutory declaration dated 3 July 2013. He said that in mid-2012, a group of 15 to 20 people had entered his house in his village in Bangladesh. One of the men put a pistol to his head and told him to join their political party. The husband believed they were connected to the Awami League. A week later they returned and told him, “if [he] did not join them, they would kidnap and kill [his] son”. Over the next few months, the men would return to his home or call him by telephone to threaten and harass him. About a month after the initial visit, he was physically assaulted, including being cut with a curved blade. About a week after the assault, he received a telephone call demanding money. He realised that even if he paid the money, they would return and ask for more money or kill him anyway. He knew that it was no longer safe for his family to remain in Bangladesh and made plans to leave. The day before he left his village, the men returned to his house and he begged them for more time to pay, knowing that “they” (by which he meant his family) would have left Bangladesh by then.

8    The applications of the wife and child for protection visas were as members of the husband’s family unit. The wife did not apply for protection on the basis that she personally feared harm in Bangladesh.

9    The husband attended an interview with the Minister’s delegate on 10 September 2014. On 3 February 2015, the Minister’s delegate made a decision refusing to grant the appellants’ protection visas. The delegate found the husband’s account to be inconsistent and lacking in detail and some of his responses evasive. The delegate found his claim that he was targeted by members of the Awami League to join that party to be lacking in credibility. The delegate was not satisfied that the husband was a person in respect of whom Australia had protection obligations. The delegate also refused to grant protection visas to the wife and the children as members of the husband’s family unit.

The Tribunal’s decision

10    On 12 March 2015, the appellants applied for review to the Tribunal. The Tribunal invited the appellants to attend a hearing on 1 March 2016. In a response to the invitation, the appellants requested that the Tribunal also take oral evidence from the wife.

11    On 29 February 2016, a migration agent acting for the appellants provided the Tribunal with a detailed statutory declaration signed by the husband and another signed by the wife. In his written submissions, the migration agent noted that the wife had raised a ground that she had been beaten and raped in Bangladesh and feared further violence if she returned. The migration agent noted that the allegation of rape had not been disclosed by the husband in his interview with the delegate, but said that because of cultural and religious teachings and family embarrassment, the husband could not bear to bring that fact to the attention of the delegate because the interpreter was a male interpreter from Bangladesh. The migration agent said that the wife would not discuss the issue with the agent, although, if that was so, it is not apparent how her statutory declaration came to be taken.

12    In the wife’s statutory declaration, she said that, on 1 November 2012, four men came to her home. The husband had left for Dhaka by then, having decided to flee the country, while she had remained behind with her son. When the men realised that the husband was absent, they decided to kidnap the wife and said that if the husband did not turn up, she would be killed. Her hands were tied and her mouth was covered. She was driven away and then locked in a warehouse. She says that a few hours later, two men came in. They appeared intoxicated and they started bashing her up and slapping her face. They both raped her and left. She says that two different men came and raped her. She fell unconscious. The wife states that she was later able to escape. She was provided with some assistance and money from a stranger. She was able to take a bus to Dhaka, where her brother picked her up and took her to his home. The husband was waiting at her brother’s home. Her father-in-law brought their son to Dhaka.

13    The husband stated in his statutory declaration that he helped in his father’s business as a merchant. He discovered that his father was being extorted by a group of men, which I will refer to as “the group”. His father had to pay them each month to be allowed to continue in business. He states that on 1 May 2012, he confronted the group. They left, but a couple of days later their boss, who was the right-hand man of a person who controlled the administration of their locality, asked him to join the group. The husband decided not to join them. The group then doubled the amount of money his father was required to pay. On 3 June 2012, a group of 10 to 20 men came to his house carrying guns and knives. A week later, the husband told one of the men that he needed more time to make a decision about joining the group. One of the men grabbed his throat and choked him. They threatened him and threatened to kill his son.

14    The husband says that over the next few months he received a lot of phone calls from various men in the group asking for his decision. He says they wanted to use him as a standover man. On 30 August 2012, a group of about 20 men returned to his home. He asked for more time to decide, but they attacked him. They started kicking him and one of them hit him with a blade, cutting his head and left leg. They said that the next time they came back, they would kill him. About a week later he was told that he was lucky to escape with his life and money was demanded from him. On 31 October 2012, about five men returned to his home asking for money. He said he needed time to pay the money and then left for Dhaka, as he had already decided to make arrangements to leave Bangladesh by then. The next day, they kidnapped his wife.

15    The husband stated that the wife’s brother telephoned him on 3 November 2012, saying that the wife had escaped. The brother-in-law said he had a close friend who worked for a women’s welfare organisation who might be able to help. That man said it was a rape case and a police matter, but when they explained that they could not go to the police safely, the man arranged a doctor he knew well to come to the house and treat the wife without creating any official records. A male doctor arrived about an hour later and treated the wife. The wife’s brother arranged some additional money to pay for the wife and son to join the husband in escaping Bangladesh. They went to Chittagong, where they boarded a boat to Thailand.

16    The husband declared that he had not previously told the Department about his wife’s rape because he wanted to protect his wife’s feelings and privacy. He also said they feared being boycotted from their community if the incident became known.

17    The appellants placed in evidence before the Tribunal a letter dated 22 February 2016 on the letterhead of an organisation describing itself as a Bangladesh human rights organisation. The author said that he had visited the wife’s brother on 3 November 2012. He had advised the family that the matter should be reported to the police, but they did not wish to do so. He decided to help the wife unofficially and arranged a doctor he knew to see the wife.

18    An affidavit of the brother confirms that he picked up his sister on 3 November 2012 and she informed him about the kidnapping. He managed to find a doctor to treat his sister at his residence as she refused to go to a hospital.

19    The appellants relied on a letter that purports to be written by a doctor in Bangladesh dated 15 February 2016. The letterhead lists the qualifications of the doctor in English. The qualifications include, “Post Graduate Training in (OBS & GYNAE) London”. The report states:

To whom it concern

This is to certify that [the second appellant], Husband – [the first appellant], Age + 20 Yrs, [address] was my patient and she was directly under my treatment. I saw this patient on 3rd November 2012 evening as an emergency home visit. She was suffering from acute uterine bleeding due to hyperactivities of uterus, according to her statement she confirmed, she was kidnapped and raped by few people. My observation she might be rapped and needed good care and support.

I advised her husband to admit [the second appellant] in to hospital or any privet medical clinic as soon as possible for proper treatment.

(Errors in original.)

20    The Tribunal published its decision on 30 June 2016. In its reasons, the Tribunal described the husband as “the first named applicant” and the wife as “the second named applicant”. The Tribunal noted that, with their consent, the Tribunal had conducted a joint hearing and effectively considered their claims together. The Tribunal stated:

26.    During the hearing, the Tribunal discussed the claims of the first and second named applicants in detail with the exception of the details regarding the rape of the second named applicant. The Tribunal formed the view it was reasonable not to discuss the rape with the first named applicant could not tell it anything regarding the rape of the second named applicant as he was not present at the time. It formed the view too it was reasonable not to discuss the details of the rape with the second named applicant as it could be unnecessarily upsetting to the second named applicant.

21    The Tribunal’s reasons are written in a somewhat confusing manner. The Tribunal seems to have commenced its consideration of the husband’s claims by assuming that they were true. The Tribunal noted that the husband had claimed that a politician and the group would harm them if they returned to Bangladesh. The Tribunal said that the evidence before the Tribunal was that the group was extorting the business of the husband’s father for money and was motivated by financial gain. The Tribunal was not satisfied that the essential and significant reason for the group harming the appellants was due to actual or imputed political opinion or membership of any particular social group.

22    The Tribunal went on to make findings as to the credibility of the appellants’ claims, saying:

31.    For reasons set out in more detail below, the Tribunal has rejected as not credible the applicants’ claims they were harmed in the past by the group, but the Tribunal accepts the group does exist. The Tribunal has gone on to consider the chance of future harm to the applicants from the group. The Tribunal is willing to accept the applicants have an actual political opinion opposed to the group. It is reasonable to conclude anyone who fell foul of extortion by the group would be opposed to the group. However, while mindful of the country information provided by the migration agent and in the DFAT report (discussed in more detail below) regarding the prevalence of political violence in Bangladesh, given there is no credible evidence of the applicants having any dealings with the group in the past, the Tribunal considers there to be only a remote or speculative chance and therefore not a real chance the applicants would face serious harm from the group because the applicants are opposed to the group, now or in the reasonably foreseeable future if the applicants return to Bangladesh.

32.    The Tribunal is not satisfied there is any Convention nexus to the first, second or third named applicant’s race, religion, nationality or membership of a particular social group arising from their claims of harm from the group. The Tribunal consider (sic) the applicants’ claims regarding the group and the politician under complementary protection below.

23    The Tribunal considered the credibility of the husband and wife’s claims that they had each suffered harm at the hands of the group. The Tribunal noted that the husband had said that he had not raised the claims of sexual assault against the wife because of embarrassment. The wife said that she had not raised the claims earlier because she was ashamed to be a victim of sexual assault. The Tribunal found:

47.    The Tribunal accepts it may be the case a victim of rape experiences feelings of embarrassing (sic) and shame due to cultural and religious sensitivities. The Tribunal considers it reasonable though that an applicant for protection would raise all material claims at the earliest possible time and not just prior to the Tribunal hearing. The Tribunal is not persuaded by the explanation the applicants were unwilling to raise the claims before the delegate because the interview interpreter was male. The applicants could have made written statements with the assistance of a female interpreter and provided those statements to the delegate, but they did not do so, even though they had the assistance of the former migration agent. The Tribunal considers the applicants not raising the claims regarding the rape of the second named applicant until just prior to the Tribunal hearing undermines the credibility of their claims the second name applicant was abducted and raped by the group.

24    The Tribunal considered a number of issues concerning the credibility of the husband’s claims to fear harm from the group or a politician. The Tribunal considered that the husband’s evidence before the Tribunal was significantly different to his evidence before the delegate. Before the delegate, he said he did not know who attacked him or why they attacked them, but thought the attackers might be connected to the Awami League. Before the Tribunal, the applicant had named the group and the leaders of the group and claimed that the reason why he was attacked was that he stopped his father from continuing to pay extortion money. The Tribunal considered that the husband had made new claims which undermined the credibility of his claims that he had been harmed by the group in the past.

25    The Tribunal said that, at the hearing, the husband had claimed the group threatened to kidnap his son and had made the same claim in his entry interview, but made no such claim in his written statement accompanying his protection visa application. The Tribunal found:

52.    Kidnap threats: During the hearing, the first named applicant claimed the group threatened to kidnap the third named applicant. He made the same claims regarding the threatened kidnap of the third name applicant in his entry interview, but made no such claims in his written statement accompanying his protection visa application. During the hearing, the second named applicant told the Tribunal she overheard the group threatened to kill the first named applicant first and to kill the third named applicant second. She did not discuss with the Tribunal any threat to kidnap the third named applicant. The Tribunal considers this to be another instance of the applicants providing inconsistent evidence which weighs in favour of the applicants not being credible witnesses.

(Underlining added.)

26    The Tribunal said it had difficulty in accepting the husband’s evidence that he was staying for a few days in Dhaka without his family before departing for Chittagong, from where he was to leave Bangladesh. The Tribunal considered that if the threats of harm to his family were real, he would not leave them unprotected. It did not accept his explanation that he thought the threats to his family would cease if he left the village.

27    The Tribunal said that the husband and wife had provided inconsistent evidence regarding whether the members of the group had harassed her in the past. Tribunal considered that both of them had changed their evidence when the inconsistencies were put to them and that the changed evidence produced further inconsistencies. The Tribunal considered that these matters weighed in favour of finding that their claims of past harm were not credible.

28    The Tribunal considered that there were implausibilities in the evidence of the husband as to the events involving seeing a person from a human rights organisation in Dhaka. It found that there was inconsistency between the evidence of the husband and wife about whether tests were recommended by the doctor.

29    The Tribunal considered the authenticity of the doctor’s report:

61.    The Tribunal put to the applicants’ information from the DFAT report regarding the prevalence of document fraud in Bangladesh. The Tribunal noted the letter from the doctor stated the doctor had studied medicine in the UK, yet the letter presented with a large number of spelling mistakes, which appeared unlikely to be committed by a UK educated doctor. That caused the Tribunal to have doubts regarding the credibility of the letter from the doctor. The first named applicant said he was unable to comment about that.

…

63.    The Tribunal has considered the letters from the doctor, the man and the brother. As noted above, the details in the letters are largely consistent with the details in the 2016 statutory declarations of the first and second named applicants. While mindful of that, the Tribunal is mindful too of the prevalence of fraudulent documents in Bangladesh. The Tribunal has great concern regarding the credibility of the letter from the doctor due to the incongruence between the standard of English in the letter and that the doctor was educated in the UK. It has great concern regarding the credibility of the letter from the human rights organisation too as the Tribunal is unable to locate any independent information verifying the existence of that organisation. Given the Tribunal has concerns about those two letters and the claims of the applicants generally, the Tribunal retains concerns too regarding the letter from the brother. The Tribunal is mindful the brother’s letter is generally consistent with the 2016 statutory declarations of the first and second applicant, however the Tribunal is mindful too the brother may be motivated to assist the second named applicant. For those reasons, the Tribunal places no weight on the letters from the brother, the man or the doctor.

30    The Tribunal noted that it had not been able to locate any information on the internet about the human rights organisation that had provided the supporting letter. The Tribunal said it had great concern about the credibility of the letter purporting to be from the human rights organisation.

31    The Tribunal noted that the fourth appellant was born close to 40 weeks gestation in September 2013, making the likely date of conception about a month after the claimed rape. The Tribunal said:

68.    The Tribunal evidence before the Tribunal is the fourth named applicant was born close to full gestation in September 2013, making the likely date of conception about a month after the claimed rape of the second named applicant. The Tribunal has doubts the first and second named applicant would resume sexual relations within a month of the claimed rape of the second named applicant, an assault which they claim too the doctor recommended the second named applicant needed hospital treatment and tests. The Tribunal considers the first and second named applicant conceiving a child about a month after the claimed rape causes the Tribunal doubt the credibility of the claims the second named applicant was raped and weighs in favour of finding the applicants have fabricated their claims regarding being harmed by the group.

(Errors in original.)

32    The Tribunal went on to make the following findings:

69.    The cumulative effect of the numerous instances of inconsistent and implausible evidence of the first and second named applicants and their non-persuasive replies weigh heavily in favour of finding the applicants have fabricated their claims regarding past harm from the group. In particular the Tribunal places much weight on the first named applicant initially not naming the group or that his father’s business was extorted. It places weight too on the implausible nature of the evidence of the first named applicant regarding why he went to Dhaka and why he would leave his family unprotected because he thought the group would cease targeting his family because he had left his home village. While mindful some of the evidence of the applicants was consistent, having regard to the entirety of the evidence, the Tribunal is not satisfied the applicants genuinely were harmed by the group in the past. The Tribunal finds the first and second named applicant have fabricated their claims of past harm by the group. It rejects that the group extorted the business of the applicant’s father and it rejects the first named applicant made any arrangement to make pay any extortion money to the group. It rejects the first named applicant met with the leader of the group. It rejects that the first named applicant or his father were ever assaulted or threatened by the group at the shop or at home. It rejects the group ever threatened to kidnap or otherwise harm the third named applicant. It rejects members of the group abducted, raped or in any other way harmed the second named applicant. It rejects members of the group have harmed the first name applicant’s father after the applicants departed Bangladesh. The Tribunal considers the applicants have fabricated the claimed past harm by members of the group in order to create a profile upon which to apply for protection.

70.    For the purpose of this decision, the Tribunal is willing to accept that the group does exist and that it is linked to the politician and that the politician is in AL. Given though that the Tribunal has rejected as not credible the applicants’ claims of past harm from the group, the Tribunal considers if the applicants returned to Bangladesh, there is only a remote risk and therefore not a real chance the group or the politician or AL or the Bangladesh authorities would target the applicants for any form harm. The Tribunal is not satisfied there are substantial grounds for for believing there is a real risk any of the applicants will suffer significant harm from the group, or the politician or AL or the Bangladesh authorities if the applicants are removed from Australia to Bangladesh.

33    The Tribunal, for these reasons, found that the appellants did not satisfy the criteria in ss 36(2)(a) and 36(2)(aa) of the Migration Act.

The judgment of the Federal Circuit Court

34    The appellants applied to the Federal Circuit Court for judicial review of the Tribunal’s decision.

35    The Federal Circuit Court noted that a challenge had been made to the Tribunal’s findings of credibility on the basis that they were irrational or illogical. The primary judge considered the problems identified by the Tribunal with the doctor’s report and held that the finding that it was not genuine was open to the Tribunal. His Honour held that the Tribunal had logically and rationally dealt with the claims made by the appellants and had addressed each of the matters raised in the statements, interviews and declarations made, as well as submissions made by their agents. His Honour held that the appellants had failed to establish any jurisdictional error and dismissed the application.

The appeal and the submissions

36    The appellants rely upon two grounds, namely:

(1)    The primary judge erred in failing to find that the Tribunal’s decision was affected by jurisdictional error on the basis that certain credibility findings were made without a logical, rational or probative basis, or as a result of failure to take into account material critical to the formation of the requisite state of satisfaction.

(2)    The primary judge erred in failing to find that the Tribunal’s decision was affected by jurisdictional error on the basis that its finding that the second appellant fabricated a claim of having been abducted and raped in Bangladesh was not supported by probative evidence or was premised on irrational or illogical reasoning.

37    In respect of the first ground, the appellants point out that the Tribunal made an error at para [52] of its reasons in saying that the husband had made no claim that the group had threatened to kidnap his son in his written statement accompanying his protection visa application. In fact, the husband had made that claim in his statutory declaration accompanying his application. The appellants submit that the Tribunal’s credibility finding was made without a logical, rational or probative basis, because its reasoning was based upon a false premise. The appellants submit that, alternatively, the Tribunal’s credibility finding failed to take into account material critical to the formation of the relevant state of satisfaction. The appellants submit that the Tribunal’s errors were material to the outcome of its review because the Tribunal only rejected the appellants’ claims and credibility as a result of the “cumulative effect” of the inconsistencies it had identified.

38    In addition, under the first ground, the appellants submit that the Tribunal erred in giving no weight to the doctor’s letter. They submit that the Tribunal’s findings that the “doctor had studied medicine in the UK” and was a “UK educated doctor”, with the consequence that such a person was unlikely to write a letter with a large number of spelling mistakes, was made without a logical, rational or probative basis. They submit that the reference to the UK on the letterhead could not support a finding that the doctor was UK educated or that he was unlikely to make spelling mistakes in the English language.

39    In support of the second ground, the appellants observe that, although the Tribunal told the appellants that credibility was an issue, the Tribunal did not question the wife about the claimed abduction and rape. The appellants submit that the Tribunal’s finding that the wife fabricated the rape claim is irrational or illogical because there was no rational or logical link between the resumption of marital relations about a month after the claimed rape and the credibility or plausibility of the rape. The appellants submit that it was irrational or illogical for the Tribunal to find that the delay in raising the rape claim undermined its credibility without addressing the actual explanation for the delay proffered by the wife. The appellants also submit that it was irrational or illogical for the Tribunal to find that the wife fabricated her claim without questioning her about the details of that claim at the hearing. They submit that by failing to question the wife about her claim, the Tribunal excluded from its consideration the possibility that her evidence would support her credibility.

40    The Minister accepts that the Tribunal “misdescribed” the claim made by the husband in his statutory declaration accompanying the protection visa application about the threat to kill his son. The Minister submits that the “underlying reasoning” of the Tribunal was based upon the inconsistent nature of the claims made in relation to the kidnap threats. It is unclear what the Minister means by this, but the submission seems to be that the error was not material.

41    The Minister submits that the Tribunal’s findings that the doctor’s letter represented that he had studied medicine in the UK and was a UK educated doctor were open on the material. The Minister submits that it was open to the Tribunal to place no weight on the doctor’s letter, particularly when the Tribunal referred to inconsistencies between the husband and wife’s evidence regarding whether the doctor recommended that tests be conducted. The Minister also submits that any error was not material to the outcome of the decision.

42    The Minister submits that it was not illogical or irrational for the Tribunal to doubt the claimed rape on the basis of the resumption of a sexual relationship between the husband and wife approximately a month later. The Minister submits that such reasoning was open to the Tribunal given that the wife had alleged that she was violently attacked and raped by four men, where the doctor’s report said there was acute uterine bleeding and where the doctor had recommended hospitalisation for proper treatment.

Consideration

Ground One

43    The Tribunal, at para [52] of its decision, stated:

During the hearing, the first named applicant claimed the group threatened to kidnap the third named applicant. He made the same claims regarding the threatened kidnap of the third named applicant in his entry interview, but made no such claims in his written statement accompanying his protection visa application…The Tribunal considers this to be another instance of the applicants providing inconsistent evidence which weighs in favour of the applicants not being credible witnesses.

(Underlining added.)

44    The Tribunal’s reference to the “written statement accompanying his protection visa application” was to the husband’s statutory declaration dated 3 July 2013. In that statutory declaration, the husband said:

I begged them not to kill me as I had a son. They told me that if I did not join them, they would kidnap and kill my son.

45    It is apparent that the Tribunal was in error when it found that the husband had not claimed that the group threatened to kidnap his son in his written statement accompanying his protection visa application. It does not appear possible that the Tribunal could have misunderstood the clear statement in the statutory declaration that the group threatened to kill the son, so that the Tribunal must have overlooked that statement.

46    In AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83, the Full Court considered a case where the Tribunal found there were inconsistencies within the appellants’ evidence, but had overlooked information given in an interview that may have affected the Tribunal’s finding. The Full Court summarised the principles guiding judicial review of adverse credibility findings and whether failure to take into account relevant material in making such findings gives rise to jurisdictional error at [41]:

(a)    The issue whether or not an administrative decision is affected by jurisdictional error requires a careful examination of the relevant statutory framework, with a particular emphasis on provisions which determine the decision-maker’s powers, procedures, functions and obligations.

(b)    While findings as to credit are generally matters for the administrative decision-maker, they may be amenable to judicial review on several grounds including legal unreasonableness, reaching a finding without a logical, rational or probative basis, failure to perform the required statutory task of review, and failure to take into account material critical to the formation of the requisite state of satisfaction.

(c)    Whether or not a credibility finding is affected by jurisdictional error is a case specific inquiry, and should not be assessed by reference to fixed categories or formulae. Merely because a decision-maker has ignored “relevant material” does not always give rise to jurisdictional error in the present context. The importance or cogency of the material, its place in an assessment of the appellant’s claim and in the performance of the statutory task are matters of fundamental importance in a protection visa case. Those matters inform an assessment of the seriousness or gravity of the error.

(d)    Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result (such as, for example, where it is but one of several findings that independently may have led to the ultimate decision).

(e)    Merely because there is no reference in the decision-maker’s reasons for decision to particular material does not necessarily give rise to an inference that the material was not considered. Nonetheless, in the case of the Tribunal, which is required by s 430 of the Act to make a written statement setting out its reason for decision and its findings on material questions of fact, and to refer to the evidence on which such findings were based, a failure to refer to evidence that on its face bears on a finding may indicate that that evidence has not in fact been considered and, in some cases at least, disclose jurisdictional error in the decision-making.

(f)    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.

(Citation omitted.)

47    In Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, the High Court held at [31] that ordinarily a breach of a condition will not be material unless compliance with the condition could have resulted in the making of a different decision.

48    In the present case, the Tribunal’s finding at para [52] that the husband had not claimed that the group threatened to kidnap his son in his written statement accompanying his protection visa application was plainly wrong. So too was the Tribunal’s consequential conclusion that the husband had provided inconsistent evidence regarding threats to kidnap the son. The errors arose because the Tribunal overlooked the relevant passage in the statutory declaration. I consider that the error is best described as failure to take into account material that was critical to the formation of the requisite state of satisfaction, or failure to perform the required statutory task of review, rather than making a critical finding that was illogical or irrational.

49    The Minister submits that because the Tribunal found that a number of other aspects of the husband’s evidence were not credible, the errors were immaterial to the ultimate decision that the appellants did not satisfy the criteria for a protection visa. It is true that the Tribunal found that there were a number of inconsistencies and implausible aspects of the husband’s evidence. However, this was not a case where the Tribunal concluded that any one of these matters could have independently led to the ultimate decision. Instead, the Tribunal expressly found at para [69] that it was the “cumulative effect” of the instances of inconsistent and implausible evidence which “weigh heavily in favour of finding the applicants have fabricated their claims”. There is no way of knowing the extent to which the erroneous finding contributed to the Tribunal’s conclusion that the appellants had fabricated their claims. It can only be concluded that if the error had not been made, the outcome may have been different. In my opinion, the error was jurisdictional.

50    It may be noted that the Minister made no submission that the error was immaterial on the basis that the Tribunal also concluded that any harm was not perpetrated for reason of the husband’s political opinion or membership of a particular social group.

51    The appellants’ next submission in respect of the first ground of appeal is that the Tribunal committed jurisdictional error in respect of its treatment of the letter asserted to have been written by the doctor who examined the wife in Dhaka after the alleged rape. The appellants submit that the Tribunal’s findings at para [61] of its reasons that the doctor claimed to have “studied medicine in the UK” and was a “UK educated doctor”, were made without a logical or rational basis. The appellants also submit that there was no logical or rational basis for the Tribunal’s finding that if the doctor had studied medicine in the UK and was UK educated, the letter was unlikely to have, “presented with a large number of spelling mistakes”. The Tribunal gave no weight to the letter.

52    In MZZGE v Minister for Immigration and Border Protection [2019] FCAFC 72, the Full Court observed at [22]:

A decision might be shown to be affected by jurisdictional error if:

(1)    no rational or logical decision-maker could have arrived at the decision on the same evidence; this cannot be made out if different minds might reach different conclusions: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] (Crennan and Bell JJ);

(2)    there is no logical connection between the evidence and the inferences drawn: Fattah v Minister for Home Affairs [2019] FCAFC 31 at [45] (Perram, Farrell and Thawley JJ);

(3)    there is an irrational or illogical step in reasoning, at least where that faulty step can be shown to have affected a material conclusion: SZMDS at [132].

53    The Tribunal considered the authenticity of the doctor’s letter in the context of its observation that the country information indicated that document fraud is prevalent in Bangladesh. In that context, the Tribunal found that if the doctor had studied medicine in the UK and was UK educated, the letter was unlikely to have, “presented with a large number of spelling mistakes”. The Tribunal placed no weight on that letter, inferentially because it was fraudulent.

54    The letterhead indicated that the doctor had undertaken post-graduate training in obstetrics and gynaecology in London. It was plainly open to the Tribunal to conclude that the doctor claimed to have studied medicine in the UK and was UK educated. The appellants’ argument that there was no logical or rational basis for those findings must be rejected.

55    The appellants also submit that there was no logical or rational basis for the Tribunal’s finding that, if the letter had been written by a doctor who had studied medicine in the UK and was UK educated, the letter was unlikely to have, “presented with a large number of spelling mistakes”. The Tribunal did not identify the spelling mistakes. The Minister points to the spelling of the wife’s first name (a Bengali name) which appears twice in the report and contains an extra “a” in the second spelling. However, that seems to be either a typographical error or a misspelling of a Bengali name — the doctor’s standard of English was irrelevant to that error. The respondent also points to the words “hyperactivities”, “rapped” and “privet” in the letter. The word “hyperactivity” is a noun, but the dictionaries do not identify any plural of that word. The reference to “hyperactivities” is a grammatical error, using a word that does not exist, rather than a spelling mistake. The word “rapped” appears to be a mere typographical error, since the work “raped” was correctly spelt in the preceding sentence. The word “privet” appears to be a misspelling. There only appears to be one “spelling mistake”, whereas the Tribunal concluded that, “the letter presented with a large number of spelling mistakes”.

56    However, the Tribunal’s reasons must be read fairly and not with an eye keenly attuned to the detection of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. The Tribunal did not only rely upon the “spelling mistakes” in the doctor’s report. It also expressed, at para [63], “great concern regarding the credibility of the letter from the doctor due to the incongruence between the standard of English in the letter and that the doctor was educated in the UK”. Taking a broad view, I understand the Tribunal to have been criticising the grammar and punctuation of the letter, as well as spelling errors. The use of English was far from fluent in the sentence, “She was suffering from acute uterine bleeding due to hyperactivities of uterus, according to her statement she confirmed, she was kidnapped and raped by few people”. On the basis of the overall standard of English, the Tribunal’s conclusion that the doctor’s letter reflected a poor standard for someone who claimed to be UK educated was not irrational or illogical. It is not enough that a different member of the Tribunal may well have reached a different conclusion about the standard of English to be expected of a Bangladeshi doctor who claimed merely to have done some training for an unknown period of time in the UK.

Ground Two

57    The second ground of appeal asserts that the Tribunal’s decision was affected by jurisdictional error on the basis that its finding that the wife fabricated her claim of having been abducted and raped in Bangladesh was not supported by probative evidence, or was premised on irrational or illogical reasoning.

58    The appellants’ argument focuses upon the Tribunal’s opinion expressed at paras [68]–[69] of its reasons that it was not credible that the wife would have resumed sexual relations with the husband within a month if she had been raped as she alleged. The appellants submit that there was no rational or logical link between the resumption of sexual relations within a month and the plausibility of the rape happening. They also submit that, if the Tribunal was to make such a finding, the Tribunal should have questioned the wife about the alleged rape.

59    In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Crennan and Bell JJ emphasised at [133] that, “the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it”. In this case, the Tribunal ultimately concluded at para [69] that the wife had fabricated her allegation of rape. It is necessary to examine the role the Tribunal’s reasoning concerning the resumption of sexual relations played in arriving at that conclusion.

60    The Tribunal commenced its consideration of the credibility of the wife’s evidence by finding at para [47] that her failure to raise her claim of rape until just prior to the Tribunal hearing undermined the credibility of her claim. The Tribunal at para [59] pointed to an inconsistency between her initial evidence that some young people had used foul language towards her but she did not know who they were and her later evidence that the young people were members of the group. The Tribunal also concluded at para [63] that it would give no weight to the doctor’s letter and the letter from the human rights organisation, inferentially because they had been fabricated.

61    The Tribunal then considered the timing of the resumption of sexual relations between the husband and wife. The Tribunal found at para [68] that their second child must have been conceived within a month of the alleged rape. The Tribunal continued:

…The Tribunal has doubts the first and second named applicant would resume sexual relations within a month of the claimed rape of the second named applicant, an assault which they claim too the doctor recommended the second named applicant needed hospital treatment and tests. The Tribunal considers the first and second named applicant conceiving a child about a month after the claimed rape causes the Tribunal doubt the credibility of the claims the second named applicant was raped and weighs in favour of finding the applicants have fabricated their claims regarding being harmed by the group.

62    It appears that the Tribunal’s doubts arose, not only from the fact that the wife claimed to have been raped, but from the extent of her claimed injuries, revealed by their claim that the doctor had recommended hospital treatment and tests. The Minister submits that the Court should proceed on the basis that the Tribunal also had in mind several other relevant matters going to the severity of the wife’s claimed injuries which the Tribunal did not specifically mention, including that the wife claimed that the rapes were perpetrated by four men; that two of them had started bashing her up and that she had become unconscious; and that the doctor’s letter said she had acute uterine bleeding. There may be a degree of illogicality in the argument that the Tribunal took into account a diagnosis contained in a letter which the Tribunal expressly declined to give any weight to. Ignoring that issue for the moment, I will proceed on the assumption that the Minister’s submission is correct, since it is apparent that the Tribunal took into account the wife’s statutory declaration and at least read the doctor’s report.

63    The Tribunal said at para [68] that the resumption of sexual intercourse within a month of the alleged rapes caused it to, “doubt the credibility of the claims the second named applicant was raped”, and that the timing “weighs in favour of finding the applicants have fabricated their claims”. The language used by the Tribunal does not indicate that it found that the timing meant that the rapes probably did not occur, but only that the timing suggested the rapes might not have occurred. That is unsurprising because the Tribunal had not excluded other possible reasons for the resumption of sexual relations within a month which seem no less likely than fabrication of the rape claim. In particular, the extent of the wife’s physical injuries and the length of time it took to recover from them were matters clearly relevant to why the wife would resume sexual relations within a month. Another relevant factor to consider was whether she had any real choice in the resumption of sexual relations.

64    It is far from apparent that the Tribunal asked the wife about such matters. The Tribunal said at para [26] that it had decided not to, “discuss the details of the rape with the second named applicant as it could be unnecessarily upsetting to the second named applicant”. The Tribunal said later at para [65]:

The focus of the Tribunal’s questioning was the apparent closeness between the likely date of conception of the [fourth] named applicant (who was born in September 2013) and the date of the rape of the second named applicant in November 2012. The Tribunal questioned the first and the second named applicant about the date the resumed sexual relations after the rape and put to them as the gap appeared to be only one month.

(Errors in original.)

Later, at para [67], the Tribunal said:

During the hearing the Tribunal also put to both the first and second applicant the likely date of conceiving the fourth named applicant was only about a month after the claimed rape of the second named applicant.

65    Nothing in the Tribunal’s description of its questioning indicates that it put to the wife that if the alleged rapes had occurred, she would not, by reason of the facts and circumstances of the alleged rapes and her consequent injuries, have resumed sexual relations with her husband within a month. Neither was she asked how long it took for her physical injuries to heal, nor whether it was entirely her choice as to whether to resume sexual relations. There remained at least two possible explanations consistent both with the rapes having occurred and the wife resuming sexual relations with her husband within a month.

66    Accordingly, the Tribunal seems to have recognised that it was not open to conclude that the resumption of sexual relations within a month probably meant that the alleged rapes had not occurred. For that reason, the Tribunal merely said at para [68] that the resumption of sexual intercourse caused it to, “doubt the credibility of the claims the second named applicant was raped”, and that the timing, “weighs in favour of finding the applicants have fabricated their claims”. That was the language of possibility, not probability.

67    The Tribunal went on to say at para [69] that:

The cumulative effect of the numerous instances of inconsistent and implausible evidence of the first and second named applicants and their non-persuasive replies weigh heavily in favour of finding the applicants have fabricated their claims regarding past harm from the group.

68    To the extent that this passage related to the claim of rape, the “cumulative effect” apparently referred to, firstly, the Tribunal’s view that the wife’s credibility was undermined by her failure to raise the claim until just prior to the hearing; secondly, the inconsistency about the identity of the young people who had used foul language towards her; thirdly, the findings that the doctor’s letter and the letter from the human rights organisation had been fabricated; and, fourthly, the Tribunal’s doubts about whether the husband and wife would have resumed sexual relations within a month if she had been raped. The fourth matter went directly to the question of whether she had been raped as she had alleged.

69    The Tribunal then concluded at para [69]:

While mindful some of the evidence of the applicants was consistent, having regard to the entirety of the evidence, the Tribunal is not satisfied the applicants genuinely were harmed by the group in the past. The Tribunal finds the first and second named applicant have fabricated their claims of past harm by the group... It rejects members of the group abducted, raped or in any other way harmed the second named applicant…The Tribunal considers the applicants have fabricated the claimed past harm by members of the group in order to create a profile upon which to apply for protection.

70    The Tribunal apparently concluded that the wife’s claim that she was raped was false because of the cumulative effect of its doubts about the rapes occurring due to the resumption of sexual relations with her husband within a month and the other factors it had mentioned affecting the wife’s credibility. In other words, it gave weight to its doubts stemming from the timing of the resumption of sexual relations.

71    It was illogical for the Tribunal to add its doubts about whether the rapes had occurred stemming from resumption of sexual relations to its findings about other aspects of the credibility of the wife’s evidence in order to conclude that the rapes had not occurred. That was because, as the Tribunal had implicitly acknowledged, there was only a possibility that the explanation for sexual relations having resumed within a month was that the rapes had not taken place. It remained a mere possibility because the Tribunal had not excluded the possibilities that the wife’s injuries had healed, or that it was not entirely her choice as to when to resume sexual relations, in circumstances where it had not given the wife a fair opportunity to explain why sexual relations resumed when they did. It follows that it was improbable that the explanation for sexual relations having resumed within a month was that the rapes had not taken place. The Tribunal took an improbable explanation and combined it with its other findings about the credibility of the wife’s evidence to conclude that the rapes had not occurred. In my opinion, it was illogical for the Tribunal to give weight to an explanation for the resumption of sexual relations within a month which it implicitly acknowledged was probably incorrect and use that explanation to assist it to conclude that the allegations of rape were fabricated.

72    The Tribunal expressly based its conclusion that the wife had fabricated her claim of rape upon the accumulation of inconsistent and implausible aspects of the evidence of the wife. Those aspects included the Tribunal’s view about the timing of the resumption of sexual relations. It is not possible to separate out the weight given by the Tribunal to that factor compared to other factors. It can only be said that the timing issue had some effect on the Tribunal’s decision. This is a case where there was an illogical step in reasoning and where that faulty step affected a material conclusion: cf SZMDS at [132]. In my opinion, jurisdictional error has been established.

73    It may be noted that the grounds of appeal do not allege that this is a case of the type described in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [25] where the Tribunal’s failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, might supply a sufficient link to the outcome to constitute a failure to review. Accordingly, there has been no occasion to consider whether the Tribunal’s decision might have been affected in that way by its failure to specifically ask the wife to comment upon the proposition that she would not have resumed sexual relations with her husband within a month if the rapes had occurred.

Summary

74    For the reasons I have given, the first and second grounds of appeal are established. I will order that the appeal be allowed, that the orders of the Federal Circuit Court be set aside, that the Tribunal’s decision be quashed and that the Tribunal consider the appellants’ application for review according to law. I will order that the Minister pay the appellants’ costs of the appeal and the proceedings in the Federal Circuit Court.

Associate:    

Dated:    9 June 2020

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