FEDERAL COURT OF AUSTRALIA

CBY15 v Minister for Immigration and Border Protection [2020] FCA 878

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed on Ground 1.

2.    The orders of the Federal Circuit of Australia dated 6 August 2019 be set aside, and in lieu thereof it be ordered that:

(a)    The decision of the Administrative Appeals Tribunal dated 10 November 2016 affirming the decision not to grant the Applicants protection visas be set aside.

(b)    The matter be remitted to the Administrative Appeals Tribunal for determination according to law.

(c)    The First Respondent pay the Applicants’ costs, as agreed or assessed.

3.    The Appellants pay the First Respondent’s costs thrown away of the hearing listed for 4 February 2020, limited to the attendance of counsel and solicitor for 2 hours each.

4.    Subject to Order 3, the First Respondent pay the Appellants’ costs of the appeal as agreed or assessed.

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

REASONS FOR JUDGMENT

KERR J:

1    The Appellants, a husband and wife, are citizens of the People’s Republic of China. It is not in contest that CBY15 and CBZ15 are part of the same “family unit” for the purposes of the Migration Act 1958 (Cth) (Migration Act).

2    On 2 April 2014, the Appellants arrived in Australia by air on Visitor (Subclass 600) Visas.

3    On 23 April 2014, they applied for Protection (Class XA) Visas (Protection Visas).

4    On 23 December 2014, a delegate of the Minister (the Delegate) refused that application.

5    The Appellants applied for review of that decision in the Administrative Appeals Tribunal (Tribunal).

6    On 15 September 2015, the Tribunal affirmed the decision of the Delegate. On 2 May 2016, the Federal Circuit Court of Australia (FCCA) set aside that decision by consent.

7    After a hearing on 5 July 2016 and receipt of post-hearing submissions, in a decision dated 10 November 2016 the Tribunal again affirmed the Delegate’s decision.

8    The Appellants applied for judicial review of the Tribunal’s decision in the FCCA. On 6 August 2019, the FCCA dismissed that application. It is that decision which is the subject of the present appeal.

THE APPELLANTS’ CLAIMS

9    In a written statement dated 5 April 2014 attached to the Appellants’ Protection Visa application, CBY15 sets out their claims.

10    In brief summary, CBY15 claims that his once peaceful and “rather wealthy” life in China was:

destroyed because I helped Falun Gong practitioners. I was persecuted by the Chinese Communist Party. I had to flee to Australia with my wife, separating with my lovely young son and my mother who is aged. I am in fear of being persecuted again upon my return to China. Now I apply with the Australian government for a protection visa and wish that Australian government would protect me from being persecuted.

11    CBY15 claims that his mother fell ill in 1998. She recovered with the aid of a neighbour who practiced Falun Gong. After that time, CBY15 had faith in that practice. Further, his parents began to practice Falun Gong. However, his wife (CBZ15) did not believe in or support the practice.

12    In 1999, the government began to “crack down” on Falun Gong. CBY15’s parents practiced in secret, but in 2006 were reported. The police raided their home. CBY15 describes the events of the 2006 raid as follows:

[The police] confiscated all my parents’ Falun Gong books and videos. My father tried to stop them. They beat my farther hardly and took him to local police station. Afterwards, my father was released on bail of 4000 RMB.

13    CBY15’s wife was fired from her work. She then divorced him.

14    CBY15 subsequently remarried, but soon divorced. In 2008 he remarried his first wife, CBZ15, on condition that they would not live with their parents or assist with anything related to Falun Gong. However, when in 2011 the health of CBY15’s father deteriorated she agreed to move into his parents’ home to look after them.

15    While CBY15’s parents continued to practice Falun Gong, the authorities “overlooked” this until 26 December 2012. On that day there was a further police raid and confiscation of CBY15’s parents’ Falun Gong materials. CBY15 describes that raid in the following terms:

Some people reported my parents and the police raided my home again. They found my parents’ books and videos relevant with Falun Gong and confiscated them. My father was frightened and angry by their behaviour. His medical condition was aggravated by it and he was totally confined to bed. On 7th January 2013 my father passed away. The Chinese Communist Party’s unreasonable crackdown and brutal rule enforced by the police leaded them to my father’s death. I wanted to seek justice in relevant departments, but no of them dealt with our appeal …

[Spelling and grammar as in original].

16    Those events changed the views of both CBY15 and his wife. After that raid, they both “deeply sympathised with Falun Gong practitioners” who had similar experiences to those of CBY15’s father.

17    After that time, CBY15 began to help “those innocent and helpless Falun Gong fellow practitioners”. He says:

I often dealt business with banks because of my company business. So I often helped Falun Gong practitioners to change one RMB notes. I gave those notes to my mother’s fellow practitioners. Sometimes I also gave my mother money and let her to use this money to support Falun Gong. I gave my old printer of my company to my mother’s fellow practitioners. Sometimes I also helped my mother’s fellow practitioners to deliver print paper and printed materials. I did all of them in secret …

18    At the end of 2013, one of CBY15’s mother’s fellow practitioners was detained. CBY15 claims that on 7 January 2014 he was then arrested and detained for the crime of “making public disorder by getting involved in the illegal activities of Falun Gong”. He describes his period of detention as follows:

They took me to a local police station for questioning. They chained me in a steel chair, abused me and commanded me to confess all my problems. They put a book on my chest and used a hammer covered with rubber to hit me on the book. And I was shook so hard that my viscera was in terrible pain which was unbearable for ordinary people. I was tortured to the extent that I nearly lost my consciousness. Then they sent me to the detention centre. When I entered the prison, the head of prisoner bully and several prisoners forced me to take off all my clothes and to squat down with hands on my head. The head of prison bully asked the other prisoners to give me a shower. Then they used cold water to pour down on my head. It was very cold in Harbin city during this season. And the prison was more gloomy and cold. I suddenly felt that my bone was chilled. My whole body was in black and blue because of the cold water so that I nearly lost consciousness. They used slippers to slap my head if I had any reaction against them. Both my body and my spirit were severely harmed. And I was nearly tortured to death. The second day, those evil policemen took me for interrogation again. I was beaten hardly and commanded to confess how I helped Falun Gong. I was in silent, and then they tried by every means to torture me. Eventually I was not clear in mind and did not even remember what I said to them.

[Spelling and grammar as in original].

19    Those events came to an end when his wife CBZ15 spent 100,000 RMB to “pull strings” to secure his release “on bail of 20,000 RMB”. However, even after his release the police and a neighbourhood committee continued to harass him. As a result, he and his wife fled China. CBY15 claims that they did so in a “rush”, without having time to deal with their property such as houses and cars.

20    After they left, CBY15 says that the police went to his former house in China several times to “harass” his mother. They asked her where CBY15 and CBZ15 were, and commanded her to report any information she received regarding their whereabouts to them.

21    At the hearing before the Tribunal, CBY15 gave evidence that when he was arrested on 7 January 2014 he was taken to an underground cell; beaten violently; electrocuted with electric rods; and slapped in the face. He also gave evidence that his father had been beaten to death. Further, he gave evidence that although he and his wife were not and never had been Falun Gong practitioners they had continued to support Falun Gong while living in Australia.

22    In applying for Protection Visas in those circumstances, the Appellants submitted a number of documents together with their application. Those documents were summarised by the primary judge as follows, in terms which have not been disputed:

a.    One is a document purportedly issued by the “Public Security Bureau” at a particular District, and headed “Administration Punishment Decision Notification” (Decision Notification). This document states the applicant was arrested and transferred to the Public Security Bureau “when he was putting Falun Gong material in family’s member area”; that, after he was arrested, the applicant “honestly stated he had posted Falun Gong promotional material several times”, and that the facts were proved. The document then records that, according to Article 27-1 of the Administrative Punishment Law of the People’s Republic of China, the applicant was to be detained for ten days from 7 January 2014 to 17 January 2014. The Decision Notification states the applicant is entitled to apply for “Administrative Reconsideration in the Public Security Bureau . . . within 60 days of received this letter, or follow the legal procedure for Administrative Litigation in the People’s Court . . . within three months of received this letter”.

b.    A second document, also purportedly issued by the Public Security Bureau, is headed “Family’s Notice of Administrative Detention”. It states a decision has been made to detain the applicant on 7 January 2014 for “disrupting public order by utilizing heresy”, and that the duration of the detention is ten days starting on 7 January 2014.

c.    A third document, again issued by the Public Security Bureau, is titled “Detention Notice”, and states that a decision was made on “17/01/2014” (sic) to detain the applicant at a stated detention centre because he “is suspected of being involved in disrupting public order by utilizing heresy”. The applicant later provided a further translation of this document. The newly translated document refers to the Public Security Bureau having made a “decision to impose Criminal Detention” on the applicant “for his suspected crime of utilizing evil cult to disrupt public order”, and that the “suspect is currently detained in” a detention centre.

d.    A fourth document the applicant submitted is a letter dated 14 October 2014 from a person who described himself as a Falun Dafa [being an alternative name for Falun Gong] practitioner. The person stated that the applicant and his wife are Falun Dafa practitioners; that from the time he met them in May 2014 they participated in a number of events, including joining the “Celestial Band”; and that the applicant and his wife “are really cultivating themselves”.

e.    The other documents are photographs of the applicant. One is a photograph of the applicant with another man in front of a Falun Gong poster, another is of the applicant holding a banner written in Mandarin, and the third is of the applicant sitting with other similarly attired persons.

(Footnotes omitted).

THE ADMINISTRATIVE APPEALS TRIBUNAL Decision

23    The First Appellant gave evidence before the Tribunal at the hearing on 25 July 2016. The Tribunal noted at paragraph [13] of its reasons that:

… the second applicant [CBZ15], who is the wife of the first applicant, does not have separate claims of her own the claims as a member of the same family unit as her husband [sic].

24    The Tribunal therefore focused its attention and reasoning on the evidence that was given by the First Appellant, CBY15.

25    The Tribunal acknowledged that:

[w]hen assessing credibility, the Tribunal should recognise the difficulties often faced by asylum seekers in providing supporting evidence and should give the benefit of the doubt to an applicant who is generally credible but unable to substantiate all of his claims …

26    The Tribunal found however that, in essence, CBY15 was not a witness of credit. It therefore did not accept his claims. On that basis the Tribunal concluded that the Appellants had failed to satisfy it that they met the criteria for the grant of the Protection Visas they sought.

27    It is convenient to reproduce in full the dispositive paragraphs of the Tribunal’s reasons, as follows:

Does the applicant have a well-founded fear of being persecuted in China for one or more of the five reasons set out in the Refugees’ Convention?

34.    Various decisions of the Federal Court of Australia have held that when determining whether a particular applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims made. Usually this involves an assessment of the credibility of the applicant. When assessing credibility, the Tribunal should recognise the difficulties often faced by asylum seekers in providing supporting evidence and should give the benefit of the doubt to an applicant who is generally credible but unable to substantiate all of his claims.

35.    However, for the following reasons, the Tribunal does not find the first applicant to be a witness of credit. Of particular concern to the Tribunal was that the first applicant made claims at the hearing that he had never made before; and he gave evidence inconsistent with evidence previously given.

36.    For instance, the applicant mentioned during the hearing that he had been taken to an underground cell beaten and electrocuted. He was detained in custody until his release on 20 January, his wife having paid a bribe. The Tribunal asked him why he had not mentioned electrocution either in his statement or to the delegate noting that his statement was very detailed and described a lot of other forms of torture. The first applicant said because of the time limit he could not elaborate on all the tortures he experienced. The Tribunal indicated that surely his agent would want as much detail as possible in an application to assist the first applicant’s case. He said that his first agent was very irresponsible. The first applicant said the agent delayed for a long time. The Tribunal rejects this explanation as the application was filed within three weeks of the applicants coming to Australia. The Tribunal does not accept the first applicant’s explanations as being persuasive or reasonable to believe as true.

37.    The Tribunal notes that in submissions received 13 August 2016, the first applicant addresses this matter. He says that he was about to start to give the Tribunal a detailed account, and was prepared to answer questions the Tribunal had in this respect. He states that the Tribunal did not give him much time before it quickly turned to other questions. He submits that he wrote down whatever crossed his mind when he was preparing his personal statement. He says it was not realistic for him to be able to write each and every example in detail of how he got treated.

38.    The Tribunal rejects those submissions. First, the Tribunal does not agree that he was not provided with time to respond. A discussion of this issue lasted for a number of minutes. Secondly, does not consider that it is either plausible or realistic that either the first applicant or his agent would not complete an application with that much detail as possible to substantiate his fears of harm upon return.

39.    Secondly, the first applicant told the Tribunal very clearly during the hearing that his father was beaten to death by the police. The Tribunal enquired whether the first applicant meant his father had died following a beating by the police. The first applicant confirmed that this was the case. The first applicant’s statement does not say that at all. The statement says the police raided the home, found and confiscated his parents’ Falun Gong books and videos. He states that his father was frightened and angry by that behaviour, that his medical condition was aggravated by it and that he was totally confined to bed. The statement then says that he passed away on 7 January 2013. At the hearing, the Tribunal observed that [the statement] did not say anything about taking his father to hospital. The first applicant said that his relationship with his father was very close, and when he wrote this he did not want to relive what happened, and further that his time was limited. The Tribunal does not find this to be a persuasive explanation of the difference in [his] evidence between his statement and the hearing.

40.    Thirdly, at the hearing, the applicant said that the police came to his parents’ house twice, the first time in 2006, the second time was in December 2012. On the first occasion, the applicant said his father was taken to the police station the family had to pay a fine of 4,000 RMB. However, in his statement, the first applicant said his father was released on bail of 4,000 RMB. When asked to explain, the first applicant said that there was no difference between bail and a fine in China. The Tribunal, while noting that there is inconsistency, will give the first applicant the benefit of the doubt on this issue.

41.    Fourthly, as noted above, the Tribunal discussed with the applicant the document titled Administrative Punishment Decision Notification, which states that he was entitled to apply for administrative reconsideration of the detention decision. The Tribunal asked him whether he understood that he was able to appeal. He said that he had never read the document. The document also states that the applicant was entitled to apply for “Administrative Reconsideration” within 60 days. The Tribunal explained to the applicant that the document, which apparently was an official document from the Public Security Bureau was stating that it had made a decision to detain him for 10 days, which would be enforced by civil police by transfer to a detention centre. The Notification stated that he was entitled to apply for administrative reconsideration in the Public Security Bureau within 60 days, or apply to the People’s Court within three months. The first applicant said that he did not read the document. The first applicant said that he never read the document and therefore did not know he could appeal. The first applicant also said that he was beaten severely, and that his only thought was to escape. The Tribunal does not accept any of these explanations as reasonable to believe as true.

42.    Fifthly, the Tribunal does not accept the first applicant’s explanations of why he was not detained when he left China, at a time when he was on bail. He said was travelling on a valid passport, and left legally through the normal channels at the airport. The Tribunal suggested to the first applicant that if he left China legally, through official channels, on valid passport, without problems, and without attracting interest from the authorities, it suggested that the authorities did not have any interest in him. The first applicant disagreed. The Tribunal asked him why he would be identified on return, if he was not identified n departure. The first applicant said that this was because “he was not on the system”, and because he escaped while on probation. He said that while he was on probation he could have been arrested at any time. The Tribunal commented that that was the point it was trying to make, namely he would be under the scrutiny of the authorities while on bail, thus making departure at a controlled and guarded airport difficult. The Tribunal finds all of the first applicant’s explanations and evidence on this issue to be unpersuasive and not reasonable to believe as true.

43.    Sixthly, as the Tribunal explained at the conclusion of the hearing, it had concerns about the authenticity of the four Chinese language documents provided to it. The Tribunal noted that the Tribunal often saw false documents from China. The Tribunal indicated that the first applicant could address this issue in further submissions. The first applicant addressed the issue at the hearing. He said that given his living standards, and his abundant income in China, with his high earnings, he had no need to obtain false documents. The Tribunal finds this answer to be unresponsive to its concern to be unpersuasive [sic].

    [In a footnote to [43], the Tribunal noted that “DFAT is aware of fraudulent documents being used in support of visa applications, and assesses these documents as being relatively easy to produce and commonly used: see par [5.26] of the DFAT Country Report of the People’s Republic of China dated 3 March 2015.”]

44.    In the circumstances, The Tribunal does not find [CBY15] to be a witness of credit. The Tribunal accepts that the first applicant was born in China as claimed. However, the Tribunal does not accept that the first applicant’s parents were Falun Gong practitioners, that his parents’ apartment was raided twice, or that the first applicant was detained, placed in detention, tortured, bailed and then departed from China for that reason. The Tribunal finds that while the applicant may have attended some Falun Gong activities in Australia, he does not have a profile which is sufficient to attract the attention of the Chinese authorities were he to return.

(Emphasis added).

28    The Tribunal thus comprehensively rejected CBY15’s claims for want of credit. It therefore rejected the Appellants’ applications for Protection Visas.

THE FEDERAL CIRCUIT COURT OF AUSTRALIA DECISION

29    Before the FCCA, CBY15 advanced the following grounds:

Ground 1

The finding by the second respondent that the applicant was not a witness of credit was not made on a logical and probative basis.

Particulars

(a)    The finding, at [36]-[38] of the decision, that the applicant’s reference at the hearing to having been electrocuted while tortured by the police in January 2014 was inconsistent with his failure to previously refer to electrocution, was based on an unwarranted assumption that an applicant for a protection visa who has experienced prolonged detention and torture ought to be expected to recall every means by which he was tortured.

(b)    The finding, at [39], that the applicant’s reference at the hearing to his father having been beaten to death by the police was inconsistent with his failure to previously refer to his father having been beaten to death by the police, was based on an unfair interpretation of the applicant’s evidence on this issue. In context, the applicant’s evidence on this issue at different times during the visa application process was not materially inconsistent and – as indicated to the applicant by the second respondent at the hearing – the reference his father being beaten to death was an understandable and acceptable case of exaggeration.

(c)    The suggestion by the second respondent that the applicant had “inconsistently” referred to his father being subjected to a “fine” of 4,000 RMB and “bail” of 4,000 RMB was illogical, given that the second respondent had accepted at the hearing that the words were used interchangeably.

(d)    There was no basis for the apparent finding by the second respondent, at [41], that the applicant’s failure to apply for an administrative reconsideration of his detention in 2014 was relevant to his credibility. There is no logical connection between a failure to pursue a right to seek administrative reconsideration of detention, in an authoritarian dictatorship such as China, and the likelihood that such detention actually occurred.

Ground 2

The second respondent failed to carry out its task carry out its task of reviewing the decision of the first respondent, as required by s.414 of the Act.

Particulars

(a)    The second respondent rejected the applicant’s explanations regarding concerns that it had with the applicant’s evidence without any proper consideration or reasoning: see decision at [39], [41], [42] and [43].

(b)    The second respondent failed to make findings in relation to the corroborating documents provided by the applicant: see decision at [43].

CBY15’s credit

30    It is convenient to address the FCCA’s findings with respect to the credit of CBY15 under the following five headings:

Electrocution

31    CBY15 submitted that:

(a)    The finding, at [36]-[38] of the decision, that the applicant’s reference at the hearing to having been electrocuted while tortured by the police in January 2014 was inconsistent with his failure to previously refer to electrocution, was based on an unwarranted assumption that an applicant for a protection visa who has experienced prolonged detention and torture ought to be expected to recall every means by which he was tortured.

32    The FCCA noted that in submissions advanced on the Appellants’ behalf with respect to this ground their counsel referred to WAGO of 2002 v Minister for Immigration and Multicultural & Indigenous Affairs [2002] FCAFC 437; 194 ALR 676 [54] to establish that unwarranted assumptions with respect to matters concerning credibility may give rise to jurisdictional error, having regard to the following passage:

[t]he unwarranted assumptions of the Tribunal as to matters relevant to formation of a view on the credibility of the corroborative witness caused the Tribunal to disbelieve and disregard that evidence and constituted a failure by the Tribunal to duly consider the question raised by the material put before it.

33    The FCCA examined the relevant parts of the transcript of the 5 July 2016 hearing and submissions advanced by the First Appellant explaining his failure to refer to electrocution in his written statement, as well as the reasons of the Tribunal extracted above at [27]. The FCCA referred in particular to the following exchange during the hearing:

[TRIBUNAL MEMBER]: … But you don’t talk about electrocutions. So is there any reason for that?

THE INTERPRETER: They torture – because of the time limit, I could not elaborate all the tortures they did to me, because I could not write it one by one.

[TRIBUNAL MEMBER]: Well, I would have thought your agent would want to get as much detail as possible if it’s going to help your case.

THE INTERPRETER: The first agent was very irresponsible. He delay for a long time before lodging the application.

34    The FCCA also referred to the following exchange in the Tribunal:

THE INTERPRETER: Because I was beaten for five hours. I could not list one after another what those things happening to me.

[TRIBUNAL MEMBER]: Look, I understand that, but . . . as I said, your statement is detailed. Your statement does not say, “I can’t remember, because I was beaten.” Your statement says, “I was tied to the chair. I was beaten with a rubber thing. They poured water over me. They took my clothes off” and so on and so forth. It’s a very detailed statement.

35    The FCCA finally highlighted the First Appellant’s post-hearing submission before the Tribunal that:

When I wrote my personal statement in 2014, I just put down what came to my mind then. All these horrible things happened during my detention. Understandably it was just not realistic for me to be able to write each and every example and detail of how I got treated on a few pages of statement.

36    Having considered that material, the FCCA found that the Tribunal had not proceeded on the assumption that the First Appellant should be expected to disclose all details of the torture he claimed to have suffered. Rather, it had proceeded on the basis that he was expected to provide a “substantially consistent account of the torture he claimed to have suffered”: absent a reasonable explanation for him doing otherwise.

37    Against that background, the FCCA held that it had been reasonably open to the Tribunal to find that the First Appellant had not given a substantially consistent account of the torture he claimed to have suffered in light of the disparity between his written statement and evidence before the Tribunal. The FCCA further held that it had been reasonably open to find that there was no reasonable explanation for that disparity. It had therefore been open to the Tribunal to make an adverse credit finding with respect to the First Appellant’s claim that he had been tortured by electrocution.

Death of CBY15’s father

38    CBY15 submitted that:

(b)    The finding, at [39], that the applicant’s reference at the hearing to his father having been beaten to death by the police was inconsistent with his failure to previously refer to his father having been beaten to death by the police, was based on an unfair interpretation of the applicant’s evidence on this issue. In context, the applicant’s evidence on this issue at different times during the visa application process was not materially inconsistent and – as indicated to the applicant by the second respondent at the hearing – the reference to his father being beaten to death was an understandable and acceptable case of exaggeration.

39    CBY15 further submitted that with respect to this issue, the Tribunal rejected his explanations regarding its concern with respect to the apparent inconsistency “without any proper consideration or reasoning”.

40    Again, the FCCA referred to relevant extracts of the transcript of the Tribunal hearing; post-hearing submissions filed by the First Appellant before the Tribunal; and the reasons of the Tribunal.

41    The FCCA noted the following exchange:

[TRIBUNAL MEMBER]: Okay. So you got an ambulance and you got him taken to the hospital and that’s where he stayed.

THE INTERPRETER: Yes.

[TRIBUNAL MEMBER]: Okay. And that’s why you said to me earlier you said your father was beaten to death; that’s what you’re referring to. He died as a result of the police attacking him on 26 December.

THE INTERPRETER: Yes. Because – yes, since he’s quite old and all the pushing or grabbing of the materials, I – yes. He couldn’t stand their pushing.

42    The FCCA also noted the following exchange:

[TRIBUNAL MEMBER]: . . . . Another concern is, as I explained, was about your father. Your statement just simply does not say what you told me today and I don’t understand the explanation for that. It may simply be that you were exaggerating slightly. A lot of people do. That’s not necessarily, you know, the end of the application though.

THE INTERPRETER: No, I don’t – I’m not exaggerating.

[TRIBUNAL MEMBER]: Well, we allow people to exaggerate a little bit, but that’s okay.

43    The FCCA further noted the following explanation for the apparent inconsistency provided by the First Appellant to the Tribunal in post-hearing submissions:

I guess whatever culture we are in if you put yourself in my shoes to think just for a few minutes: if somebody out of the blue, police suddenly came to your home brutally pushed, beaten and abused your aged parent, just imagine what kind of physical and mental harm and fear it would caused [sic] to them and what sort of feeling you would have!

44    In those circumstances, the FCCA found that it had been reasonably open to the Tribunal to have found that the First Appellant’s oral account of the 26 December 2012 raid was inconsistent with his written statement in two respects: namely as to whether his father had been beaten, and as to whether his father had been taken to hospital. The First Appellant’s explanations for that inconsistency – being firstly that he did not wish to relive what had happened, and secondly that his time for recording his claims was limited – was not rejected without proper consideration:

36.    The explanations the applicant gave were not explanations that a reasonable person in the position of the Tribunal was bound to accept; and there are matters on the basis of which it would have been reasonably open to the Tribunal not to accept them. As to the explanation that he did not want to relive what occurred to his father, the applicant had already set out in his statement the circumstances surrounding the death of his father, and it was open to the Tribunal to find that unwillingness to relive those events was not a reason for the applicant’s not also having disclosed in his written statement the claim that he had taken his father to the hospital. As to the applicant’s explanation that he did not have time to include that claim, it was reasonably open to the Tribunal not to find that persuasive, given the detail the applicant included in his written statement, and given also there was no apparent reason why the applicant had completed his written statement in circumstances where he had limited time to include all the claims he wished to include in his application for protection.

45    Having made that finding, the FCCA held that there could be no jurisdictional error in the Tribunal:

… not considering whether, or not finding that, the evidence the applicant gave before the Tribunal about what occurred to his father during the 26 December 2012 raid was only an exaggeration of what the applicant said in his written statement.

Fine and/or bail of CBY15’s father

46    CBY15 submitted that:

(c)    The suggestion by the second respondent that the applicant had “inconsistently” referred to his father being subjected to a “fine” of 4,000 RMB and “bail” of 4,000 RMB was illogical, given that the second respondent had accepted at the hearing that the words were used interchangeably.

47    The FCCA found that the Tribunal had in fact expressed doubt as to whether those expressions were used interchangeably. However, the FCCA found that the Tribunal did ultimately accept the First Appellant’s evidence notwithstanding those concerns: giving the First Appellant “the benefit of the doubt”.

Failure to appeal detention

48    CBY15 submitted that:

(d)    There was no basis for the apparent finding by the second respondent, at [41], that the applicant’s failure to apply for an administrative reconsideration of his detention in 2014 was relevant to his credibility. There is no logical connection between a failure to pursue a right to seek administrative reconsideration of detention, in an authoritarian dictatorship such as China, and the likelihood that such detention actually occurred.

49    With respect to paragraph [41] of the Tribunal’s reasons, the FCCA found as follows:

30.    I begin with the first word that appears in paragraph 41, “Fourth”. That indicates it is the fourth of a number of matters relating to a particular subject. The relevant subject is the Tribunal’s finding recorded in paragraph 35 of its reasons, where, in the first sentence, the Tribunal says: “However, for the following reasons, the tribunal does not find the first applicant to be a witness of credit”. Paragraph 41, therefore, is the fourth of the six reasons the Tribunal identifies for concluding the Tribunal did not find the applicant to be a witness of credit.

31.    The next step is to identify what in paragraph 41 of its reasons the Tribunal considered was relevant to its not finding the applicant to be a witness of truth. Although the Tribunal refers to having asked the applicant whether he understood that he was entitled to apply for administrative reconsideration of the detention decision, and the applicant’s responses to that question, the Tribunal did not say or suggest that the applicant ought to have exercised such rights. Nor did the Tribunal say the applicant was not a witness of credit because he did not exercise his rights. Rather, paragraph 41 is directed to the credibility of the evidence the applicant gave in response to the Tribunal’s question about his understanding whether the applicant had review rights, and the Tribunal’s explaining to the applicant what those review rights were as described in the Decision Notification. The applicant’s evidence was to the effect that he did not read the Decision Notification, and, therefore, he did not know he could appeal, and that he was beaten severely, with his only thought being to escape. The Tribunal did not accept “any of these explanations as reasonable to believe as true”. Thus, the matter in paragraph 41 of its reasons on which the Tribunal relied in support of its not finding the applicant to be a witness of truth was not the fact the applicant did not avail himself of the review rights stated in the Decision Notification; the Tribunal relied on its not accepting as true the applicant’s evidence about whether he had read the Decision Notification, and the explanations he had given for not having read that document.

32.    I do not accept, therefore, that the Tribunal relied on the applicant’s not exercising the rights of review stated in the Decision Notification as a reason for finding it did not accept the applicant to be a credible witness. In those circumstances, whether or not there is a logical connection between the credibility of the applicant’s account of his arrest, torture, and detention, and his not having exercised or attempted to exercise a review right is not a question that arises.

50    The FCCA thus found that to the extent that the Tribunal had taken into account the First Appellant’s claimed failure to have read the Administrative Decision Notification, it had done so only because the implausibility of that claim undermined his credit. It had not taken into account any failure by CBY15 to appeal his detention as a relevant consideration.

CBY15’s ability to leave China

51    CBY15 further submitted that with respect to its reasoning at paragraph [42] regarding his ability to leave China freely, the Tribunal had rejected his explanations regarding concerns that it had with his evidence “without any proper consideration or reasoning”. The FCCA addressed that submission as follows:

37.    The explanations the Tribunal in paragraph 42 of its reasons did not accept related to why the applicant had not been detained when he left China. The applicant’s explanations were that he was on bail; he was travelling on a valid passport; the applicant was “not on the system”, and the applicant escaped “while on probation”. The applicant submits the Tribunal “completely failed to engage with the applicant’s explanation”. The applicant, however, does not say in what way the Tribunal failed to engage with these explanations. Presumably, the applicant relies on the Tribunal providing no reasons why it found the explanation unpersuasive. As I have already observed, however, the absence of reasons does not mean the Tribunal did not properly consider the explanations by relying on reasons it chose not to articulate. The explanations the applicant gave were not explanations that a reasonable person in the position of the Tribunal was bound to accept; and there are matters on the basis of which it was reasonably open to the Tribunal not to accept the applicant’s explanation. These include the lack of details concerning “the system” on which the applicant’s details were not recorded, the circumstances in which a person’s name comes to be recorded or removed from such system; and the inherent improbability of the applicant’s being on bail not being recorded on some system to minimise the risk of flight.

Corroborative documents

52    Before the FCCA, CBY15 also challenged the manner in which the Tribunal had taken into account four corroborative documents which the Appellants had provided to the Delegate. The whole of the Tribunal’s reasoning with respect to those documents appears at paragraph [43] of its reasons (extracted at [27] above).

53    Before the FCCA, CBY15 submitted that the Tribunal was required to consider and make findings with respect to the four documents and that it had failed to do so. His counsel in that regard referred the primary judge to the judgment of Markovic J in BHM15 v Minister for Immigration and Border Protection [2018] FCA 917 (BHM15). By contrast, the Minister submitted that the Tribunal had considered the documents and had found that they did not suggest that a different view should be taken of CBY15’s credibility.

Authenticity

54    The FCCA held that this part of the Appellants’ claim:

… assumes that the “the four Chinese language documents provided to it” were authentic and, for that reason, were capable of corroborating the applicant’s claims. More particularly, the applicant assumes that the Tribunal did not make any finding to the effect that the purported corroborating documents were not authentic or did not otherwise make “any finding on probative grounds that the” purported corroborating documents “were worthless so as to exclude them from consideration of the credibility of the” applicant’s claims. Whether these assumptions are correct depends on the proper construction of paragraph 43 of the Tribunal’s reasons considered in the relevant context.

(Footnotes omitted).

55    The FCCA held that on a fair reading of paragraph [43], the Tribunal did not accept that the corroborative documents were authentic:

The Tribunal recorded that it raised with the applicant the question whether those documents were authentic, it provided the applicant an opportunity to make submissions about that concern, and that the applicant made a submission the Tribunal found to be unresponsive and unpersuasive.

56    That meant that BHM15 was not dispositive, as in that case:

the Tribunal gave no weight to documents that corroborated one of the appellant’s claims. Markovic J found that when deciding to give the documents no weight the Tribunal did not in truth consider them. Her Honour also found that the Tribunal did not make a comprehensive adverse credibility finding against the relevant appellant sufficient to relieve the Tribunal of the necessity of having to consider whether the documents could overcome such adverse credibility finding.

57    By contrast, in the present case the Tribunal had not purported to give the documents no weight because it had made a comprehensive adverse credibility finding against the First Appellant. Nor had it given the documents weight. Rather:

It made a comprehensive credibility finding adverse to the applicant on the basis that it did not accept the authenticity of “the four Chinese language documents provided to it”.

58    That finding was supported by the structure of the Tribunal’s reasons:

The first word in paragraph 43 of the Tribunal’s reasons is “Sixthly”. That represents the last of the six matters on which the Tribunal relied for not finding the applicant to be a credible witness. The matter the Tribunal identifies in paragraph 43 of its reasons is its concerns about the authenticity of “the four Chinese language documents provided to it”. The authenticity or lack of authenticity of those documents was relevant to the Tribunal’s assessment of the credibility of the applicant’s claims. If the Tribunal were satisfied the documents were authentic, they would have been capable of corroborating the applicant’s claims, and the Tribunal would have had to weigh those documents with all other relevant evidence when assessing the credibility of the applicant’s claims. If, on the other hand, the Tribunal were not satisfied the documents were authentic, they would not be available as evidence to be weighed with all other evidence when assessing the credibility of the applicant’s claims. As I have found, the Tribunal was not satisfied “the four Chinese language documents provided to it” were authentic, and, for that reason, the Tribunal was not required to weigh those documents with other evidence when it assessed the credibility of the applicant’s claims.

(Emphasis added).

59    The primary judge held that it was reasonably open to the Tribunal not to be satisfied of the authenticity of the documents, notwithstanding the First Appellant’s explanation:

It was reasonably open to the Tribunal to find the applicant’s response to the Tribunal’s concerns about the authenticity the “the four Chinese language documents provided to it” to be unresponsive and unpersuasive. A responsive answer would have been directed to the provenance of the documents. The applicant, however, did not direct his answers to that subject. He did not, for example, state how and when he obtained the documents, or the circumstances in which he obtained them. Instead, the applicant made self-serving statements that, given his situation, he would have had no reason to obtain or rely on any fraudulent documents.

60    It should be noted that the FCCA found that while the Tribunal did not accept the authenticity of the corroborative documents, neither did it affirmatively find that those documents were false. The FCCA held that the latter circumstance:

45.    … does not logically imply the Tribunal found the documents were authentic, or that [the Tribunal] was bound to find they were authentic … [t]hat is a matter of common sense; but if any authority is required, it may be found in the analogous circumstances of a Tribunal of fact not accepting a person’s evidence, where the following has been said (citing Smith v New South Wales Bar Association [1992] HCA 36; 176 CLR 256):

There is a difference between the rejection of a person’s evidence and a finding that he or she deliberately lied. . . . [A]s a matter of logic and common sense, something more than mere rejection of a person’s evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence.

46.    The logical corollary of what is said in this passage is that testimony may not be accepted for reasons that do not include a finding that it is the product of the lie. The same principle applies to documents whose authenticity is in question. A fact finder may not accept the authenticity of a document without making a finding that the document is fraudulent.

61    The FCCA further noted that, at paragraph [41] of its reasons, the Tribunal did not accept CBY15’s evidence that he had not read the Administrative Decision Notification or his explanations for not doing so. The FCCA found however that it would not be a “fair reading” to find that this amounted to an implicit acceptance that the document was authentic, when that paragraph was read in the context of the Tribunal’s reasons as a whole.

GROUNDS OF APPEAL

62    The Appellant filed a notice of appeal from the decision of the FCCA in this Court on 26 August 2019. The grounds of appeal are as follows:

1.    The Federal Circuit Court erred by failing to find that the second respondent (the Tribunal) made findings regarding particular items of evidence provided by the appellant which were not based on probative evidence or were otherwise affected by legal unreasonableness.

2.    The Federal Circuit Court erred by failing to find that the Tribunal did not adequately consider the authenticity of documents corroborating the appellant’s claims, and that the Tribunal was not required to consider the authenticity of those documents.

63    The hearing was initially listed for February 2020. The Appellants were at that time self-represented. The hearing was adjourned to afford the Appellants an opportunity to obtain legal representation, and was to be relisted during the May 2020 appellate sitting period of the Court. In view of COVID-19, the listing of the appeal was however delayed. The appeal was ultimately relisted for hearing on 17 June 2020. At the adjourned hearing, the Appellants were represented by Mr Poynder as direct access counsel. On 3 June 2020, Mr Poynder filed written submissions on the Appellants’ behalf.

Ground 1

Appellants’ Submissions

64    Mr Poynder submits that recent authority has moved “decisively” away from the earlier understanding that credibility is a matter “par excellence” for the primary decision-maker, and one which is not readily amenable to judicial review. He submits (citing by way of example the decision of Flick J in SZVAP v Minister for Immigration [2015] FCA 1089; 233 FCR 451 at [14]-[23]) that there can be no doubt that credibility findings are amenable to judicial review, whether on the basis that they lack a logical or probative basis; are procedurally unfair; are illogical or irrational; or are unreasonable. In that regard, quoting Allsop CJ in SZHYH v Minister for Immigration (No 3) [2019] FCA 589 at [40] (SZHYH), Mr Poynder submits “there is no formula involved”.

65    Mr Poynder’s written submissions include extracts from two cases that touch on what he submits to be the relevant principles. He first relies upon the following passages of the decision Mortimer J in AWU16 v Minister for Immigration [2020] FCA 513:

Some relevant matters of legal principle

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

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

66    The second decision upon which Mr Poynder places particular reliance is a decision of the Full Court (comprised of Griffiths, Mortimer and Steward JJ), ASB17 v Minister for Home Affairs [2019] FACFC 38; 268 FCR 271. He cites the following passages from that judgment:

39.    On this appeal, and despite what the Full Court in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 said at [22]-[28], the Minister’s submissions at some points continued to use the term “inconsistent” and “inconsistency” as something of a global label. The Authority’s reasons also tend to do this. The difficulty with this approach, as the Full Court observed in AVQ15 at [27], is that such labels can mask the need for deeper analysis.

...

41.    The Oxford English Dictionary defines the adjective in the following way:

[of related things] Not consisting; not agreeing in substance, spirit, or form; not in keeping; not consonant or in accordance; at variance, discordant, incompatible, incongruous;

[of a single thing] Wanting in harmony between its different parts or elements; self-contradictory; involving inconsistency.

42.    Differing accounts of the same event may not be “inconsistent” at all. One may be more detailed than another. One may have different emphasis. One may include a particular incident that another does not. Differences in accounts may arise from the kinds of factors to which the Full Court referred in AVQ15 at [24] and [25].

43,    On the other hand, differences in accounts may be rationally and reasonably capable of giving rise to concerns about a person’s credibility, or (perhaps more likely) reliability. Or they may not. Simply (and incorrectly) attaching the label “inconsistent” to differing accounts of an event, or differing narratives, does not make them so. Where an adverse finding is made on the basis of differences in accounts, it will usually be necessary to properly discharge the fact-finding task for a decision-maker to explain why she or he has found those differences of such a nature as to justify rejection of the narrative or account given by a person.

The effect of inconsistencies

44.    Some true “inconsistencies” may be objectively irrelevant to the fact-finding of a decision-maker. Some may be explicable, or excusable. Some may be critical to fact-finding. Some may reflect on the credibility or reliability of an applicant, and some may not. As the Full Court said in AVQ15 at [28], the decision-maker’s task requires her or him to “assess the significance of that inconsistency and the weight to be given to it”. Again, simply attaching the label “inconsistency” and moving immediately from the label to an adverse finding of credibility or reliability, may not be a rational or legally reasonable approach.

67    Mr Poynder’s submissions then seek to apply those principles to the reasons of the Tribunal. He does so on the basis that the Tribunal at paragraphs [35] to [43] had identified six examples or reasons in support of its finding the First Appellant was not a witness of credit. He submits that those reasons were considered cumulatively. He further submits that the Tribunal’s finding thus cannot “survive” if only one or two of those reasons are found to have been valid.

68    Observing that the Tribunal itself had placed no weight on one of those considerations (see paragraph [40] of its reasons), Mr Poynder submits that the reasoning underpinning the five remaining examples on which the Tribunal stated that it was relying was unsound. In oral argument, Mr Poynder submitted that where a decision maker has taken into account cumulatively a number of factors in coming to an adverse credit finding a reviewing court should recognise that, analogously to a table that is supported by several legs, if several of the reasons on which the decision maker relies as support for a particular finding are removed then that finding cannot be supported. In that regard he cited the observations of Beach J in DTN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1525 (DTN16) at [56] that an unfounded adverse finding can cross-contaminate a decision maker’s further reasoning.

69    By way of explanation of what follows, I interpolate that the asserted unsoundness of the Tribunal’s finding about the authenticity of the documents on which the Appellants sought to rely is distinctly put in issue as Ground 2. However, in oral argument Mr Poynder accepted that that matter was also something that the Tribunal had cited as one of the examples or reasons forming the basis for its finding of the First Appellant’s want of credit.

70    As to the other four examples or reasons relied upon by the Tribunal which Mr Poynder puts in issue, he submits as follows:

Electrocution

71    Mr Poynder submits that it was legally unreasonable for the Tribunal to expect a person tortured over four to five hours to identify in his statement every means of torture applied to him.

Death of CBY15’s father

72    Mr Poynder submits that the Tribunal unreasonably “leapt on” to the following evidence that CBY15 had given at the hearing to find inconsistency:

[Member]: … Or had you been involved with Falun Gong?

[CBY15]: Because my parents were Falun Gong practitioners.

[Member]: I see. Right. Your parents were.

[CBY15]: My father was beaten to death violently without any reason.

73    In Mr Poynder’s submission, focusing on the comment that the First Appellant’s father was “beaten to death” as it appeared in that particular context was not a fair reading of his evidence as a whole. The First Appellant’s “considered” evidence on the issue was as follows:

[Member]: … So then what happened about – in 2012 … on 26 December?

[CBY15]: The police came to my house.

[Member]: So were you there on this occasion?

[CBY15]: No, I was not there.

[Member]: Okay. That’s all right. Keep going.

[CBY15]: They pushed my father away and took away all the materials.

[Member]: Yes.

[CBY15]: When I went home, my father had fallen on the ground. I rang ambulance to send my father to the hospital. Then, on the 17th, because my father give to his fear and he’s scared, he passed away.

[Member]: Did he die in hospital or did he die at home?

[CBY15]: In the hospital.

[Member]: Okay. So you got the ambulance and you got him taken to the hospital and that’s where stayed.

[CBY15]: Yes.

[Member]: Okay. And that’s why you said to me earlier you said your father was beaten to death; that’s what you’re referring to. He died as a result of the police attacking him on 26 December.

[CBY15]: Yes. Because – yes, since he’s quite old and all the pushing or grabbing of the materials, I – yes. He couldn’t stand the – their pushing.

74    Finally, Mr Poynder highlights the following aspect of the transcript of the Tribunal hearing (to which I have earlier referred):

[Member]: … Another concern is, as I explained, was about your father. Your statement just simply does not say what you told me today and I don’t understand the explanation for that. It may simply be that you were exaggerating slightly. A lot of people do. That’s not necessarily, you know, the end of the application though.

[CBY15]: No, I don’t – I’m not exaggerating.

[Member]: Okay. Well, we allow people to exaggerate a little bit, but that’s – okay …

75    My Poynder submits that the Tribunal’s ultimate reliance on this inconsistency was legally unreasonable in view of this passage, in which he asserts the Tribunal “itself accepted as reasonable that the First Appellant may have exaggerating when he used the words ‘beaten to death’”.

Failure to appeal detention

76    As to the First Appellant’s failure to appeal his detention, Mr Poynder submits that he explained that at the hearing when he said “I didn’t have the opportunity to utter any words” and “I was beaten severely and I – my only thought was escaping from there, so how could I consider that?”. Mr Poynder submits that the Tribunal unreasonably ignored the situation in which the First Appellant found himself at the relevant time, in what he describes as “one of the world’s most oppressive authoritarian states”.

CBY15’s ability to leave China

77    Mr Poynder submits that there was no evidentiary basis (such as country information) on which the Tribunal could have found that it was not possible to leave China while on bail without being apprehended. He cites in that regard the following passage from the judgment of Allsop CJ in SZHYH:

Related to these matters concerned with his leaving China was the assumption that if the appellant had been on bail the authorities would have required him to surrender his passport. There was no basis in the country information or any other material from that assumption. The Tribunal was bringing (without any apparent basis in expressed expertise, country information on material before it) an apparent personal assumption forward as a critical factor in a finding of disbelief.

Minister’s Submissions

78    The Minister’s written submissions contend that what is asserted by Ground 1 is difficult to understand. The Minister however proceeds on the premise, correctly, that the ground is intended to impugn the primary judge’s rejection of ground one as advanced before the FCCA: that is, it asserts that the Tribunal’s finding that the First Appellant was not a witness of credit was not made on a logical and probative basis.

79    On that understanding, the Minister’s submissions address in detail the relevant reasoning of the Tribunal and the primary judge with respect to each of the four particulars of that ground.

80    I note that in oral argument in this Court, as noted above, Mr Poynder accepted that there was a fifth factor relevant to the adverse credit finding: the Tribunal’s reference to the First Appellant’s non-responsive answers to its questions about four Chinese language documents upon which the Appellants had sought to rely. Counsel for the Minister, Mr Swan, did not contest that proposition. He accepted the Appellants’ underlying contention that the Tribunal’s adverse credit finding was based on five factors that were cumulatively taken into account. However, he submitted that in each case the impugned factor was relevant to that conclusion and so was properly relied upon.

81    Mr Swan submitted that in respect of each factor, a court could not be satisfied that a logical or rational decision-maker could not have held the same concerns as had the Tribunal: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 per Crennan and Bell JJ at [131] and [135]; Heydon J at [78]; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [21] per Allsop CJ.

82    Accordingly, the Tribunal had been entitled to reach the conclusion it did and the primary judge had not fallen into jurisdictional error in rejecting the ground that had been pressed at first instance to the contrary.

83    Mr Swan summarised the Minister’s position in this appeal as follows:

20.    … The fact that the Appellant might disagree with the Tribunal’s reasoning, or if a different finding could also have been reached, or even if the Court might itself have reached another finding, does not mean that the Tribunal’s finding was not legally rational and logical. Also, the probative value of the evidence advanced by the Appellant, including the various explanations he gave, was essentially a matter for the Tribunal and the Tribunal does not need positive evidence to the contrary merely to not be satisfied by what a review applicant puts forward.

84    Where Mr Swan’s oral submissions took the Court to matters that were not identified in the Minister’s broad defence of the Tribunal’s reasoning and the primary judge’s reasons as set out in detail above, those submissions are identified and addressed in the discussion below.

Consideration

85    The principles applicable to determining whether there has been jurisdictional error in respect of an impugned finding on credit were summarised by the Full Court (Kenny, Kerr and Perry JJ) in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 (DAO16) 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].

86    The relevance of inconsistencies in an asylum seeker's evidence to an assessment of credibility was later more specifically addressed by the Full Court (Kenny, Griffiths and Mortimer JJ) in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 (AVQ15) as follows:

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. Demeanour 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.

87    Their Honours summarised the general principles guiding judicial review of adverse credibility findings at paragraph [41], in the following terms:

(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.

(Footnote omitted).

88    Nothing in that short and practical summary conflicts with or calls into doubt what the Full Court earlier stated at slightly greater length in DAO16. In my view, each case may equally be relied upon as correctly stating the applicable principles.

89    The Court accepts Mr Poynder’s submission that it was an aggregation of circumstances that led the Tribunal to make its adverse credit finding. I find that to be so having regard to the Tribunal referring at paragraph [35] to its “particular concern” that the First Appellant had made claims he had never made before at the hearing, and had given evidence inconsistent with evidence he had previously given. It then provides the six “examples” or reasons, which are the focus of this ground of appeal. On behalf of the Minister Mr Swan accepted that the Tribunal made its adverse finding on the basis of the cumulative impact of those examples.

90    Mr Swan also accepted that where a decision maker has cumulatively taken into account a number of factors in coming to an adverse credit finding then a reviewing court is entitled to conclude, analogously to a table that is supported by several legs, that if one or more of the propositions on which the decision maker has relied as support for its conclusion are held to be legally flawed then the finding the decision maker has made may be bereft of lawful support.

91    However, the Minister must be correct in his submission that simply establishing that one or more of those factors is not available to be relied upon as a foundation for the conclusion reached is an insufficient basis for setting aside a tribunal’s adverse credibility finding. That is because, as AVQ15 establishes, even if one or more elements of a tribunal’s reasoning, or a finding of fact upon which that reasoning is based, is shown to be irrational or illogical, jurisdictional error will not be established if:

(a)    that reasoning, or the finding of fact, is not critical to the ultimate conclusion or end result; and

(b)    the remainder of the decision maker’s reasoning as is unaffected by those flaws remains available to be relied upon as a sufficient foundation for the adverse credit finding.

92    Nothing in those regards can be established in the abstract. The conclusion to be reached is context specific.

93    The rationale for the Tribunal’s adverse credit finding was that the First Appellant had made claims at the hearing that he had not made before and had given evidence inconsistent with evidence previously given. The Tribunal referred to five examples in that regard.

94    There was a sixth example relating to the fine and/or bail of CBY15’s father, in relation to which the Tribunal at paragraph [40] said that it afforded the Appellants the “benefit of the doubt”. No further consideration of that example is therefore required.

95    I turn to the five examples in issue.

First example – torture, including electrocution

96    The first example the Tribunal gives is that the First Appellant had mentioned for the first time during the hearing that he had been taken to an underground cell, beaten and electrocuted. His earlier statement had included only the following:

They took me to a local police station for questioning. They chained me in a steel chair, abused me and commanded me to confess all my problems. They put a book on my chest and used a hammer covered with rubber to hit me on the book. And I was shook so hard that my viscera was in terrible pain which was unbearable for ordinary people. I was tortured to the extent that I nearly lost my consciousness. Then they sent me to the detention centre. When I entered the prison, the head of prisoner bully and several prisoners forced me to take off all my clothes and to squat down with hands on my head. The head of prison bully asked the other prisoners to give me a shower. Then they used cold water to pour down on my head. It was very cold in Harbin city during this season. And the prison was more gloomy and cold. I suddenly felt that my bone was chilled. My whole body was in black and blue because of the cold water so that I nearly lost consciousness. They used slippers to slap my head if I had any reaction against them. Both my body and my spirit were severely harmed. And I was nearly tortured to death. The second day, those evil policemen took me for interrogation again. I was beaten hardly and commanded to confess how I helped Falun Gong. I was in silent, and then they tried by every means to torture me. Eventually I was not clear in mind and did not even remember what I said to them.

97    The Tribunal asked the First Appellant why he had not mentioned electrocution either in that statement or to the delegate, noting that his statement was very detailed and described many of other forms of torture. The Tribunal drew an adverse inference from his having advanced that claim in those circumstances.

98    Mr Poynder submits that it was legally unreasonable for the Tribunal to have expected a person tortured over four to five hours to have identified in his first statement every means of torture that had been applied to him. It was thus legally unreasonable for the Tribunal to have drawn an adverse inference as to his credit on that basis.

99    That submission must be sound insofar as it applies to a supposed general want of consistency. In that regard I commence by noting that in W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379 (W375/01A) the Full Court (Lee, Carr and Finkelstein JJ) observed 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.

100    Indeed, it might be thought that a person who can recite in identical terms on multiple occasions the same account of harrowing events of torture occurring over the course of five hours is not remembering an actual event but delivering a memorised script.

101    I turn then to the specific inconsistency referred to by the Tribunal, being the supposed later recall of an event not earlier asserted by the First Appellant in his first statement as might be thought to suggest want of credit by reason of recent invention. To the extent that a conclusion of inconsistency in that regard might be understood to be the basis of the Tribunal’s reasoning, the foundation for any such conclusion is altogether too flimsy.

102    I accept Mr Swan’s oral submission that where the First Appellant stated at the hearing before that Tribunal that “I was beaten for five hours. I could not list one after another what those things happening to me”, those “five hours” referred to the first period of his detention at the police station before he asserts that he was sent to a detention centre. The instances of torture occurring in that location mentioned in his statement were being chained to a steel chair, abused and being hit with a hammer covered with rubber through a book on his chest.

103    However, Mr Swan accepts that in making its adverse credit finding the Tribunal appears not to have differentiated between that occasion and the period after which the First Appellant claims that he was sent from the police station to the detention centre during which he asserts he was again subjected to torture. Mr Swan concedes that that appears to follow if regard is had to the footnote to paragraph [36] of the Tribunal’s reasons. The footnote is to the sentence, “The Tribunal asked him why he had not mentioned electrocution either in his statement or to the delegate noting that his statement was very detailed and described a lot of other forms of torture”. The footnote reads “including being beaten with slippers being stripped naked and given cold showers”. That footnote thus refers to methods of torture that the First Appellant had in his written statement claimed were used after he was transferred to the detention centre: rather than during his initial questioning at the police station.

104    His statement (see above at [96]) in respect of the period following his transfer to the detention centre concluded with the following:

…. The second day, those evil policemen took me for interrogation again. I was beaten hardly and commanded to confess how I helped Falun Gong. I was in silent, and then they tried by every means to torture me.

(Emphasis added).

105    Mr Swan did not contest that this was an assertion on the First Appellant’s part that in addition to the instances of torture he had already described, he had been subjected to other kinds of torture.

106    Against that circumstance, I accept the First Appellant’s submission that it was not open to the Tribunal to have identified his evidence at the hearing that he had been tortured by electrocution as an omission or inconsistency upon which a conclusion of want of credit might be based.

107    That observation would ordinarily be a sufficient basis on which the Court could accept Mr Poynder’s submission that the Tribunal’s reasoning - that the First Appellant’s credit might be put in doubt by reason of the first example - was unavailable to it.

108    In BMV16 v Minister for Home Affairs [2018] FCAFC 90; 261 FCR 476 (BMV16) at [80], the Full Court (constituted by Mortimer, Moshinsky and Thawley JJ) explained that in determining whether an administrative decision has been legally unreasonable it is necessary, inter-alia, to evaluate the decision made to see “whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense”.

109    I accept that that observation was made with respect to an ultimate conclusion. However, insofar as the Tribunal relied upon the First Appellant’s failure to have referred to having been tortured by electrocution in his written statement as material to the ultimate conclusion it reached with respect to his credit, its reasoning equally lacked a rational foundation, or an evident or intelligible justification. It was not open to the Tribunal to rely on that example for the purpose it did.

110    I pause however to consider whether, read fairly, the Tribunal’s reasoning with respect to the first example might be better understood as reflecting a conclusion that it had doubts as to the First Appellant’s credit because it thought that his explanation for that mode of torture not being explicitly identified in the earlier statement was implausible. That appears to have been the reasoning of the primary judge in the court below: see above at [33]-[37], being reasoning upon which I also take Mr Swan to rely.

111    The relevant extract from the transcript in the Tribunal is as follows:

TRIBUNAL MEMBER: … But you don’t talk about electrocutions. So is there any reason for that?

THE INTERPRETER: They torture – because of the time limit, I could not elaborate all the tortures they did to me, because I could not write it one by one.

[TRIBUNAL MEMBER]: Well, I would have thought your agent would want to get as much detail as possible if it’s going to help your case.

THE INTERPRETER: The first agent was very irresponsible. He delay for a long time before lodging the application.

112    I accept that the Tribunal may not have been satisfied with the First Appellant’s response.

113    It was however, at best, unhelpful for the Tribunal to have ventured the observation to which the First Appellant responded. That proposition was loaded with the assumption that had the First Appellant been truthful, his then migration agent would have continued to probe him for additional details of his torture until they had ascertained that the First Appellant had also been tortured with electricity. His agent would then have included a reference to that event in his already detailed statement identifying the torture to which he had been subjected.

114    Not only was what his former agent might have thought irrelevant: the underlying assumption was wholly unsound, on one of two bases.

115    First, assuming the statement was made with the assistance of the First Appellant’s migration agent then given what his agent had already elicited from him as instances of the torture he had suffered as were included in his statement I do not discount that even the most competent of agents might reasonably have thought that pressing CBY15 for further details of his trauma over that long period was unnecessary.

116    However, from the observation that was put to him by the Tribunal the First Appellant would have (I infer correctly) understood that the decision maker thought otherwise. The Tribunal’s observation invited the response that if insufficient detail had been included in his first statement as prepared by his agent, then his agent must have let him down. That is exactly how the First Appellant responded to it. To the extent that his response in that regard was implausible it was offered defensively, in rejection of an unfounded and unjustified hypothesis.

117    Secondly, the assumption that the First Appellant’s migration agent assisted him in writing the statement may have been unwarranted. The Tribunal itself refers to the document at paragraph [37] as the First Appellant’s “personal statement”. That is because in the First Appellant’s post-hearing submissions, he refers to it in those terms. The very premise that it was the product of advice can therefore be doubted. On that alternative assumption, the First Appellant was equally led into a defensive retort to an improbable proposition. Whilst no doubt a particularly astute person might have been able to explain the difficulty, the First Appellant was a Chinese speaker requiring an interpreter presented with a proposition advanced by a person upon whose decision his fate rested. In those circumstances, the analysis that I have set out above is equally applicable.

118    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; 181 FCR 113 per Logan J at [37].

119    Such error can equally be established by a process of reasoning which damns his credit by reference to an unsound assumption as to his agent’s conduct. In the present case, that is not itself determinative of the existence of jurisdictional error. However, I am satisfied that a failure to have mentioned one of many forms of torture cannot serve as a sound premise, even as only as one of five factors, for a finding as to the First Appellant’s want of credit.

Second example - father beaten to death

120    The parts of transcript as Mr Poynder submits to be relevant to the second example are set out at [72]-[74] above. I need not repeat them.

121    I reject Mr Poynder’s criticisms of this particular aspect of the Tribunal’s reasoning. I am satisfied that the First Appellant’s evidence that his father was “beaten to death violently without any reason” was neither consistent with nor plausibly foreshadowed in his earlier statement, which was as follows:

Some people reported my parents and the police raided my home again. They found my parents’ books and videos relevant with Falun Gong and confiscated them. My father was frightened and angry by their behaviour. His medical condition was aggravated by it and he was totally confined to bed. On 7th January 2013 my father passed away. The Chinese Communist Party’s unreasonable crackdown and brutal rule enforced by the police leaded them to my father’s death. I wanted to seek justice in relevant departments, but no of them dealt with our appeal.

122    The Tribunal was entitled to be sceptical of the First Appellant’s more concerning account of those events at the July 2016 hearing in such circumstances.

123    Having heard the First Appellant’s oral evidence – which added to, rather than reduced, the scope for confusion – the Tribunal recognised that it was possible the First Appellant was simply exaggerating. It informed him that a lot of people did so, and that that would not necessarily be the end of his application. However, the First Appellant denied any exaggeration. Nor did he advance a plausible alternative explanation. Against that circumstance, I am satisfied that the Tribunal was entitled to regard the First Appellant’s claim advanced at the hearing as one that (without explanation) had not previously been made. It was also entitled to reason that his giving inconsistent evidence in that regard suggested a want of credit on his part.

Third example, failure to appeal detention

124    In its analysis, the Tribunal reasoned as follows:

Fourthly, as noted above, the Tribunal discussed with the applicant the document titled Administrative Punishment Decision Notification, which states that he was entitled to apply for administrative reconsideration of the detention decision. The Tribunal asked him whether he understood that he was able to appeal. He said that he had never read the document. The document also states that the applicant was entitled to apply for “Administrative Reconsideration” within 60 days. The Tribunal explained to the applicant that the document, which apparently was an official document from the Public Security Bureau was stating that it had made a decision to detain him for 10 days, which would be enforced by civil police by transfer to a detention centre. The Notification stated that he was entitled to apply for administrative reconsideration in the Public Security Bureau within 60 days, or apply to the People’s Court within three months .The first applicant said that he did not read the document. The first applicant said that he never read the document and therefore did not know he could appeal. The first applicant also said that he was beaten severely, and that his only thought was to escape. The Tribunal does not accept any of these explanations as reasonable to believe as true.

125    The Appellants submit that a person who has been tortured over two days is hardly likely to put any store in any supposed right to apply for administrative reconsideration. The self-evident commonsense of that proposition does not appear to be in dispute. The primary judge however, in rejecting a ground of appeal premised on that assumption, construed the Tribunal’s reasoning to a different effect:

31.    …The next step is to identify what in paragraph 41 of its reasons the Tribunal considered was relevant to its not finding the applicant to be a witness of truth. Although the Tribunal refers to having asked the applicant whether he understood that he was entitled to apply for administrative reconsideration of the detention decision, and the applicant’s responses to that question, the Tribunal did not say or suggest that the applicant ought to have exercised such rights. Nor did the Tribunal say the applicant was not a witness of credit because he did not exercise his rights. Rather, paragraph 41 is directed to the credibility of the evidence the applicant gave in response to the Tribunal’s question about his understanding whether the applicant had review rights, and the Tribunal’s explaining to the applicant what those review rights were as described in the Decision Notification. The applicant’s evidence was to the effect that he did not read the Decision Notification, and, therefore, he did not know he could appeal, and that he was beaten severely, with his only thought being to escape. The Tribunal did not accept “any of these explanations as reasonable to believe as true”. Thus, the matter in paragraph 41 of its reasons on which the Tribunal relied in support of its not finding the applicant to be a witness of truth was not the fact the applicant did not avail himself of the review rights stated in the Decision Notification; the Tribunal relied on its not accepting as true the applicant’s evidence about whether he had read the Decision Notification, and the explanations he had given for not having read that document.

32.    I do not accept, therefore, that the Tribunal relied on the applicant’s not exercising the rights of review stated in the Decision Notification as a reason for finding it did not accept the applicant to be a credible witness. In those circumstances, whether or not there is a logical connection between the credibility of the applicant’s account of his arrest, torture, and detention, and his not having exercised or attempted to exercise a review right is not a question that arises.

126    While the reasons of an administrative decision maker are not to be analysed with an eye attuned to the identification of error, I do not accept that that was a plausible reading of the Tribunal’s decision.

127    The Tribunal identified the explanations proffered by the First Appellant, which it did not accept, as follows:

The first applicant said that he did not read the document. The first applicant said that he never read the document and therefore did not know he could appeal. The first applicant also said that he was beaten severely, and that his only thought was to escape. The Tribunal does not accept any of these explanations as reasonable to believe as true.

128    Yet even accepting that the reading given to those words by the primary might be open (which I reject) the fundamental problem of legal incoherence in the Tribunal’s analysis does not go away: it merely is buried in a subsidiary premise. On the premise applied in the FCCA, when the Tribunal stated that it had not accepted “any of those explanations as reasonable to believe as true” it must be understood to have rejected as reasonable to believe as true the explanation offered by the First Appellant that he had not read the document because, having been brutally tortured, his only thought had been of escape.

129    How the Tribunal could have reached that conclusion, and put in doubt the First Appellant’s credit on that premise, is not articulated by the primary judge. That is unsurprising because, on a moment’s refection, it cannot be explained.

130    An adverse credibility finding founded on the premise that a person (assuming their account is accepted) who has undergone prolonged torture cannot be believed if they ignore a notice about their (notional) appeal rights and instead think only of escape, is prima facie legally unreasonable. Such a finding depends on an implicit assumption, namely that a reasonable person who has been tortured by a state’s civil authorities would want to take up, or at least to consider taking up, the opportunity for administrative review if that is offered. In Australia that assumption might, barely, be plausible and such reasoning immune from judicial review. However, in the context of what the First Appellant was contending as to the conduct of the state authorities from which he claimed to be in need of protection it was “plainly unjust, arbitrary, capricious, or lacking common sense” (see BMV16 at [80]) for the Tribunal to have proceeded on such an assumption for the purpose of making an adverse credit finding.

Fourth example: CBY15’s ability to leave China

131    The relevant reasoning of the Tribunal with respect to this example was as follows:

Fifthly, the Tribunal does not accept the first applicant’s explanations of why he was not detained when he left China, at a time when he was on bail. He said was travelling on a valid passport, and left legally through the normal channels at the airport. The Tribunal suggested to the first applicant that if he left China legally, through official channels, on valid passport, without problems, and without attracting interest from the authorities, it suggested that the authorities did not have any interest in him. The first applicant disagreed. The Tribunal asked him why he would be identified on return, if he was not identified n departure. The first applicant said that this was because “he was not on the system”, and because he escaped while on probation. He said that while he was on probation he could have been arrested at any time. The Tribunal commended that that was the point it was trying to make, namely he would be under the scrutiny of the authorities while on bail, thus making departure at a controlled and guarded airport difficult. The Tribunal finds all of the first applicant’s explanations and evidence on this issue to be unpersuasive and not reasonable to believe as true.

132    I accept Mr Poynder’s submission that there was no evidentiary basis (such as country information) before it on which the Tribunal could have found that it was impossible to leave China while on bail without being apprehended. In my opinion the circumstance is indistinguishable from that referred to by Allsop CJ in SZHYH:

Related to these matters concerned with his leaving China was the assumption that if the appellant had been on bail the authorities would have required him to surrender his passport. There was no basis in the country information or any other material from that assumption. The Tribunal was bringing (without any apparent basis in expressed expertise, country information on material before it) an apparent personal assumption forward as a critical factor in a finding of disbelief.

133    As Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; 233 FCR 451 (SZVAP) at [22] an unwarranted assumption by a tribunal as to a matter relevant to the formation of a view on the credibility of a corroborative witness may cause the tribunal to disbelieve and disregard that evidence. That in turn may be evidence of a failure duly to consider according to law the question raised by the material put before it.

134    There is nothing in the materials before the Court which entitled the Tribunal to proceed on the basis that a Chinese citizen who has been dealt with administratively for their association with Falun Gong and is on probation will be denied exit from that country.

135    In his evidence in the Tribunal, the First Appellant stated that he had been anxious as to whether or not he would be permitted to leave. I infer that he thought it possible that such a system as the Tribunal assumed existed would be in place. However, I also infer that he was prepared to take that risk, being on his account focused entirely on “escape”. It cannot be the case that a tribunal can lawfully base an adverse finding as to credit on the premise that a person fleeing persecution would not take a risk in doing so.

136    That is not to suggest that the Tribunal was not entitled to bring any special knowledge it had acquired in that regard to bear on its reasoning. However, in order lawfully to do so the Tribunal would have been required to have identified the basis of that knowledge and given the First Appellant an opportunity to contradict it. It did not do so in this instance. In the absence of any such express reasoning, an inference of the First Appellant’s want of credit for that reason was mere speculation on the Tribunal’s part.

Fifth example: the documents that the Appellants submitted

137    The suggestion that the documents the Appellants tendered in the Tribunal might have been fraudulent is also the subject of a standalone ground of appeal. However, the Tribunal took into account the First Appellant’s response to that which was put to him in that regard as a further example of why it ultimately made a finding of his want of credit. It would be unfair to the Tribunal to ignore its reasoning as follows:

Sixthly, as the Tribunal explained at the conclusion of the hearing, it had concerns about the authenticity of the four Chinese language documents provided to it. The Tribunal noted that the Tribunal often saw false documents from China. The Tribunal indicated that the first applicant could address this issue in further submissions. The first applicant addressed the issue at the hearing. He said that given his living standards, and his abundant income in China, with his high earnings, he had no need to obtain false documents. The Tribunal finds this answer to be unresponsive to its concern to be unpersuasive [sic].

138    In a footnote to that paragraph the Tribunal noted that “DFAT is aware of fraudulent documents being used in support of visa applications, and assesses these documents as being relatively easy to produce and commonly used: see par [5.26] of the DFAT Country Report of the People’s Republic of China dated 3 March 2015.”

139    The Tribunal was entitled to be sceptical of the authenticity of documents advanced in such circumstances. I accept the Minister’s submission that the First Appellant’s response was unresponsive to the concerns about their providence the Tribunal expressed.

140    It was not seriously irrational, illogical or lacking a material foundation for the Tribunal then to have had regard to the First Appellant’s unresponsive answers as a relevant consideration in evaluating his credit.

Is jurisdictional error on established on Ground One?

141    The Tribunal, after the discussion to which the Court has referred above, reached the following conclusion:

The Tribunal does not find [CBY15] to be a witness of credit. The Tribunal accepts that the first applicant was born in China as claimed. However, the Tribunal does not accept that the first applicant’s parents were Falun Gong practitioners, that his parents’ apartment was raided twice, or that the first applicant was detained, placed in detention, tortured, bailed and then departed from China for that reason. The Tribunal finds that while the applicant may have attended some Falun Gong activities in Australia, he does not have a profile which is sufficient to attract the attention of the Chinese authorities were he to return.

142    The Court has noted above at [91] that while it is necessary that one or more of the examples on which the Tribunal relied in coming to that conclusion was legally unreasonable, that in itself is not a sufficient basis on which to set aside the Tribunal’s adverse credibility finding. The finding is not to be set aside if the relevant reasoning or findings of fact are not critical to the ultimate conclusion, and those aspects which remain available to be relied upon collectively provide a sufficient foundation for the adverse credit finding.

143    In AVQ15, the Full Court cited Hathaway and Foster in The Law of Refugee Status as observing that “the tools available to assess the credibility of an applicant's testimony are each highly flawed”. However, courts exercising judicial review with respect to such cases are repeatedly enjoined to be cautious in finding that adverse credit findings must be set aside: DAO16 at [30]; AVQ15 at [41]; SZHYH at [40]. That is because credit findings sometimes unavoidably are critical to decisions in protection cases.

144    In DTN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1525 (DTN16) Beach J noted at [35] that credit findings in multifactorial instances are not linear. His Honour observed at [51], in my view aptly, that there was force in the observations of Lee J in SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 (SZTFQ) at [44] and [45] that:

44.    It is not realistic to put the various aspects of the appellant’s evidence into hermetically sealed boxes or to approach the reasoning of the Tribunal member on the basis that this is how the evidence was approached. The assessment of credibility is necessarily an impressionistic one, which, if properly formed, takes into account all of the evidence. As the Full Court (Hill, Sundberg and Stone JJ) observed in VAAD v Minister for Immigration & Multicultural Affairs [2005] FCAFC 117 at [79] “an assessment of credibility is not necessarily linear”. Put another way, although it is not accurate to say that the Hospital Evidence was minor, as Gleeson CJ commented in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 89, “[d]ecisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive.” …

45.    To be too confident that emphatic disbelief on one issue would not inform, even subconsciously, the approach taken to weighing other evidence of the person disbelieved is, to my mind, to underplay the complexity of the anatomy of decision-making. As Kirby J observed in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at 23 [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.

145    Where a tribunal has not premised its findings on each of several circumstances being individually a reason for an adverse credibility finding, then as identified by Lee J in SZTFQ it would be incorrect to ask whether, assuming the tribunal had made only such findings as did not depend on legally erroneous foundations, its decision might have been set aside for legal unreasonableness. That is because to proceed in such a manner would be to act on an entirely different premise as had the tribunal.

146    Whether a reviewing court ought to be satisfied that a decision dependent in part on legally unsound factors should be set aside and remitted for reconsideration turns on whether the applicant establishes, on the balance of probabilities, that the Tribunal may not have come to the same decision had it taken into account only those factors as were open for it lawfully to consider. Mr Swan accepts that the task is context specific and must be to a degree evaluative. As is implicit in the reasoning in DTN16 and SZTFQ, there is an inherent interconnectedness that cannot be ignored.

147    In this review, I am satisfied that three of the five examples cited by the Tribunal in support of its conclusion that the First Appellant’s evidence should be discounted for want of credit were not available to it. Those were: the First Appellant’s failure to have mentioned his having been tortured by electricity; his thinking only of fleeing and not taking advantage of the possibility of administrative review; and his having been able to leave China while on probation.

148    I reject that any of those factors could be thought not to be significant in the Tribunal’s cumulative evaluation of the evidence given by the First Appellant as was material to its finding of his want of credit.

149    All that remained as factors open to the Tribunal to rely upon were: the First Appellant’s inconsistent account as to the circumstances of his father’s death; and his unresponsive answers to the Tribunal’s expressed scepticism as to the authenticity of the four documents he had tendered.

150    Any inconsistencies in the First Appellant’s account of his father’s death do not alter his having consistently identified the visit of police to his father’s home as having led to his father’s demise. The claim he advanced at all times was that the police raid and his father’s death that had followed in consequence had changed the opinions held by both the First Appellant and his wife about the religious practices for which the First Appellant’s father had suffered. After that raid, they had both “deeply sympathized with Falun Gong practitioners”.

151    The Tribunal itself put to the First Appellant the proposition that his statement that his father had been beaten to death could be understood to be merely exaggeration, as would not necessarily adversely affect his review. He denied any exaggeration.

152    I accept that, as Mr Swan submits, the Tribunal regarded the First Appellant’s denial of having so exaggerated as implausible. Self-evidently however his exaggerated claim (assuming it was so) was not, standing alone, understood by the Tribunal to be fatal to it accepting that claim.

153    As to the Chinese language documents that the Appellants tendered I reject, as the primary judge did, that the finding of the Tribunal was that the documents the Appellants had proffered were fraudulent. On a plain reading of its decision, the Tribunal simply declined to put any weight on those documents given its awareness of the widespread use of fraudulent Chinese documents in visa applications and the First Appellant’s failure to provide a sound explanation as to their provenance.

154    That was not a finding of fraud on his part, and was at best a weak premise for a finding of want of credit.

155    To the extent that the “legs of a table” analogy is apt (an analogy Mr Swan did not dispute as helpful), I conclude that three of the five legs have been kicked out and the remaining two are insufficiently robust to prevent the conclusion the Tribunal built on those foundations from collapsing.

156    I am satisfied that the Appellants have established on the balance of probabilities that without the cumulative corroborating weight of the three examples that the Court has found were not lawfully available to be taken into account in assessing the First Appellant’s credit, the Tribunal may have made a different decision. The impugned findings the Tribunal made were material in that respect. Its reasoning with respect to its credit findings was thus affected by jurisdictional error.

157    I am satisfied that the Appellants make good Ground 1 of this appeal.

Ground 2

158    It will be recalled that Ground 2 is stated as follows:

The Federal Circuit Court erred by failing to find that the Tribunal did not adequately consider the authenticity of documents corroborating the appellant’s claims, and that the Tribunal was not required to consider the authenticity of those documents.

Appellants’ Submissions

159    Mr Poynder highlights paragraph [43] of the Tribunal’s decision:

43.    Sixthly, as the Tribunal explained at the conclusion of the hearing, it had concerns about the authenticity of the four Chinese language documents provided to it. The Tribunal noted that the Tribunal often saw false documents from China. The Tribunal indicated that the first applicant could address this issue in further submissions. The first applicant addressed the issue at the hearing. He said that given his living standards, and his abundant income in China, with his high earnings, he had no need to obtain false documents. The Tribunal finds this answer to be unresponsive to its concern to be unpersuasive [sic].

[In a footnote to [43], the Tribunal noted that “DFAT is aware of fraudulent documents being used in support of visa applications, and assesses these documents as being relatively easy to produce and commonly used: see par [5.26] of the DFAT Country Report of the People’s Republic of China dated 3 March 2015.”]

160    Mr Poynder submits that the primary judge was not correct to conclude that this rose to an affirmative finding by the Tribunal that the relevant documents were not authentic. The Tribunal merely expressed “concern” as to that issue.

161    Mr Poynder submits, rather, that the Court should infer that the Tribunal discounted the documents “on no more than the basis of the separately reached findings with respect to the [First] Appellant’s credibility”. He submits that the primary judge erred in finding otherwise.

162    He further submits that the Appellants’ case is:

… not one of those “rare” cases where a party’s credibility has been so weakened that the Tribunal may treat what is proffered as corroborative evidence as being of no weight because “the well has been poisoned beyond redemption”: SZDGC v Minister for Immigration [2008] FCA 1638 at [23]-[24] and [27] (Finkelstein J); see also Minister for Immigration v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485 at [36]-[38] (Norther and Lander JJ) and [50] (Katzman J).

Minister’s Submissions

163    With respect to Ground 2, the Minister again submits that this Ground is difficult to understand given the generality with which it is expressed. The Minister accepts however that it may be intended to impugn the primary judge’s findings with respect to the corroborative documents provided by the Appellants. If so, the Minister submits that:

28.    The Tribunal did not fail to consider those documents. It identified them and discussed their content at [17] of its reasons. The Tribunal also considered the Appellant’s documents in the course of its assessment of the Appellant’s credibility. In particular, it raised concerns, at [41], about the Appellant’s credibility on the basis of one document (the Administrative Punishment Decision Notification). At [43], the Tribunal referred to concerns it held about the authenticity of the Appellant’s documents on the basis of DFAT country information available to it. It raised its concerns about authenticity with the Appellant at the hearing, and the Appellant responded to the Tribunal: see [41] of the primary Judge’s reasons and the transcript there cited, and [43] of the Tribunal’s reasons. The Tribunal stated, at [43], that it found the Appellant’s response to be “unresponsive to its concern” and to be “unpersuasive”, such that its concerns remained. As the primary Judge held, at [43]-[46], the Tribunal was not satisfied that the four Chinese language documents provided by the Appellant were authentic, and its credibility finding was made on that basis. No error by the primary Judge is shown.

Consideration

164    I have sufficiently dealt with the facts relevant to Ground 2 above, in relation to Ground 1. For the reasons the primary judge gave at paragraphs [45]-[46] as set out below, I am satisfied that the FCCA did not err when it concluded that the Tribunal’s decision to place no weight on those documents did not imply that the Tribunal found that the four Chinese language documents which the First Appellant tendered were fraudulent:

45.    … does not logically imply the Tribunal found the documents were authentic, or that [the Tribunal] was bound to find they were authentic … [t]hat is a matter of common sense; but if any authority is required, it may be found in the analogous circumstances of a Tribunal of fact not accepting a person’s evidence, where the following has been said (citing Smith v New South Wales Bar Association [1992] HCA 36; 176 CLR 256):

There is a difference between the rejection of a person’s evidence and a finding that he or she deliberately lied. . . . [A]s a matter of logic and common sense, something more than mere rejection of a person’s evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence.

46.    The logical corollary of what is said in this passage is that testimony may not be accepted for reasons that do not include a finding that it is the product of the lie. The same principle applies to documents whose authenticity is in question. A fact finder may not accept the authenticity of a document without making a finding that the document is fraudulent.

165    I reject the premise of Ground 2. The Tribunal had a proper basis for scepticism that the documents were genuine. It put its concern to the First Appellant. It was for the First Appellant to make good his case and to satisfy the Tribunal of the provenance of those documents.

166    His having failed to do so, the Tribunal was entitled to have concluded that the First Appellant’s explanation was unresponsive to its concerns and for that reason not to have placed weight on them.

167    In my view, Ground 2 has no substance and must be dismissed.

DISPOSITION AND ORDERS

168    I will order that the appeal be upheld on Ground 1.

169    At the conclusion of the hearing, I heard the parties as to costs. The parties were content that costs should follow the event, with one exception. Mr Swan sought the Minister’s costs thrown away of the adjourned February hearing. Mr Poynder submitted that his instructions were that his client had not received notice of that hearing. However, he accepted that an order for costs limited to those incurred for the attendance of counsel and instructing solicitor for two hours was not inappropriate to be made. Mr Swan agreed that the order should be so limited. I will therefore order that costs should follow the event, subject to the exception for which Mr Swan contended but limited in those terms.

Associate:

Dated:    23 June 2020