FEDERAL COURT OF AUSTRALIA

CRL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 917

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Orders 2 and 3 of the Federal Circuit Court made on 21 August 2019 be set aside and in lieu thereof, the Court orders that:

(a)    the decision of the Immigration Assessment Authority made on 23 April 2018 be set aside;

(b)    the matter be remitted to the Authority for decision according to law; and

(c)    the first respondent pay the applicant’s costs.

3.    The first respondent pay the appellant’s costs of the appeal.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    This is an appeal from the orders and judgment of the Federal Circuit Court given on 21 August 2019 in CRL18 v Minister for Immigration [2019] FCCA 2315. That judgment dismissed an application for judicial review of a decision by the Immigration Assessment Authority on 23 April 2018. The Authority affirmed a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the first respondent) refusing to grant the appellant a Safe Haven Enterprise visa (SHEV).

2    The Authority did not accept critical aspects of the appellant’s evidence on the basis that it had concerns with the appellant’s credibility. As a result, the Authority found that the appellant did not meet the requirements of the definition of refugee in s 5H(1) of the Migration Act 1958 (Cth). The Authority refused to grant the appellant a SHEV on the basis that he did not qualify for a protection visa under s 36(2)(a) or 36(2)(aa) of the Act.

Background

3    The appellant is a citizen of Lebanon. He identifies as Sunni Muslim. The appellant left Lebanon in May 2013 as he claimed Hezbollah attacked him, his family members and his family shop and then came to his family home looking for him. The appellant initially left Lebanon from Beirut International Airport using his own passport. After travelling through UAE, Malaysia and Indonesia the appellant entered Australian waters by boat from Indonesia. The appellant was then initially taken to Christmas Island for processing.

4    On 23 September 2016, the appellant lodged an application for a SHEV which was refused by the delegate on 6 July 2017. The appellant’s brother, “M”, also applied for a SHEV for principally the same reasons as the appellant. Both the appellant and M took part in separate SHEV interviews with Departmental officers in June 2017. Following the refusal of the appellant’s SHEV application by the delegate the matter was referred to the Authority for review on 11 July 2017. On 23 April 2018, the Authority affirmed the delegate’s decision.

Authority’s Decision

5    The appellant claimed to fear harm if returned to Lebanon on the basis of his religion and imputed political opinion. In particular, he claimed that as a Sunni he feared Hezbollah, a Shia militia group active in Lebanon, and claimed to have been the subject of adverse attention from the group.

6    The appellant claims that in 2008 he moved to Beirut and worked at two different hotels as a chef. In 2012, the appellant was expelled from the last hotel because Hezbollah had infiltrated the hotel and he is Sunni. The appellant then opened a charcoal shop in Lebanon with his brothers M and “A” in September 2012.

7    The opening of the shop brought adverse attention from Hezbollah. Hezbollah attacked the shop, shooting at it, taking goods, assaulting everyone present, wounding his father and his brother A and then finally telling them not to return to the area. The following day, the appellant went to the landlord of the shop, but the landlord (whom the appellant claimed was a member of Hezbollah) slapped the appellant in the face and accused him of opening the shop to spy on Hezbollah.

8    The appellant and his family left Beirut and returned to their home village in the Akkar District, but some people the appellant suspected were Hezbollah later came to his home looking for him.

9    The Authority found in relation to the above claims that they were internally inconsistent, differed in various ways between the accounts of the brothers, the appellant and M, were vague and unconvincing and were unsupported by country information (referred to as the “adverse credibility finding”).

10    As a result the Authority did not accept that the appellant had been pressured to join Hezbollah; that he and his family were threatened or that money was demanded from them from any group; that their shop was attacked; or that the appellant and his family members had ever come to the adverse attention of Hezbollah or any other group for any reason.

The proceeding in the Circuit Court

11    In the Circuit Court, the appellant advanced one ground, namely that the Authority’s decision was affected by jurisdictional error because it relied on certain factual premises in its reasoning which, it was said, bore materially on the adverse credibility finding made against the appellant.

12    The four factual premises adopted by the Authority which the appellant challenged before the Circuit Court as having resulted in error were:

(1)    The “Timing Premise”, referring to the Authority’s reasoning at [28] of its decision record concerning an internal inconsistency in the appellant’s evidence as to when the attack on his shop occurred;

(2)    The “Subsequent Attacks Premise”, referring to the Authority’s reasoning at [26] of its decision record concerning an inconsistency between the evidence of M that agents clashed with A a further five times after the shop attack, with the evidence of the appellant who when questioned “gave a relatively vague response [and] said he had experienced many problems…”;

(3)    The “Tripoli Family Premise”, referring to the Authority’s finding at [26] of the decision record that the appellant had said in the interview that he did not have any family around Tripoli; and

(4)    The “Targeting of the Father Premise”, referring to the Authority’s reasoning at [27] of its decision record that M’s claim that the attackers were “mainly trying to attack the sons because they are younger compared to his father” was “vague and unconvincing and inconsistent” with the claim that the father was assaulted during the attack on the shop.

13    The primary judge was not convinced that any of the above findings of the Authority reached the level of being irrational or illogical. The primary judge also pointed to other adverse findings of fact by the Authority including whether the appellant had another wife, inconsistency in evidence about why he left his job as a chef and to the totality of the appellant’s claims given he left on his own passport via Beirut International Airport which was controlled by Hezbollah.

Grounds of Appeal

14    The appellant did not press ground 1 of his amended notice of appeal.

15    The remaining ground is ground 2 of the amended notice of appeal:

The Federal Circuit Court (Court) erred in failing to find that, in its decision of 23 April 2018 (Decision), the Second Respondent (Authority):

a.    materially relied upon findings of fact and/or reasoning which were irrational or illogical; and/or

b.    failed to give real, genuine and proper consideration to relevant material.

16    The particulars to ground 2 outline the same challenges to the four premises relied on before the Circuit Court, stating that together the reliance on these premises supported the adverse credibility finding which was material to the Authority’s decision. The first three premises are each stated to be irrational or illogical or are grounds for finding that the Authority failed to give real, genuine and proper consideration to the appellant’s evidence. The fourth premise, the Targeting of the Father Premise, is said to be irrational or illogical alone.

17    The four premises targeted by the grounds of appeal are all related to findings of “inconsistencies” in the evidence given by the appellant and M when assessed together and individually which gave rise to credibility concerns. The grounds of appeal and the particularisation of the grounds are targeted towards a finding of illogicality being made in regard to the factual findings made by the Authority, rather than the adverse credibility finding itself or the overall finding that the appellant did not face a real chance of persecution or a real risk of significant harm if removed to Lebanon. It is important, however, to keep in mind that the overarching question is whether the decision was affected by jurisdictional error: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 at [47] citing Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [151].

18    The fact that credibility is a matter for the Authority to determine as a question of fact does not mean that challenges to credibility are not amenable to judicial review on jurisdictional error grounds: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [37]. It does indicate, however, that considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 at [41(f)].

19    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: AVQ15 at [41(c)].

20    I will now address the challenges to the four premises and the parties’ submissions in relation to each of the premises. After having done so I will address the materiality of the errors together.

Timing Premise

21    The Authority at [28] found that the appellant’s evidence was “internally inconsistent” about when the attack on his shop occurred. The Authority further found at [28] that the appellant “claimed, in his application for protection, that he opened the shop in 2012 and during his arrival interview he claimed the attack on the shop occurred in March/April 2013 but during his SHEV interview he claimed the attack occurred several months after they opened the shop which would have been in 2012”.

22    The basis of this finding was information that the appellant had filled out as part of the SHEV application process and answers given during his SHEV interview. In a part of the SHEV application form which asked the appellant to list his employment history, he had written that he had opened his charcoal shop in “09/12” (i.e. September 2012).

23    The portion of the SHEV interview which is said to have contradicted this previous statement was as follows:

Off:     How long had you been running the shop before this happened, had you had it a few months, or was it open a couple of years? How long had it been open?

[App]:     Just a few months, like--

Off:     Just a few months.

[App]:     Yeah.

24    The appellant submits that this is an illogical or irrational conclusion. There was no contradiction between the appellant’s claim that the shop was opened in September 2012 and his claim that the shop was attacked “several” or “a few” months later in March/April 2013.

25    The appellant also draws attention to the context in which the answer was provided in the SHEV interview. The question to the appellant posed two alternatives, “a few months” and “a couple of years”. It was not an open question. The appellant’s answer, “Just a few months”, was the most accurate of the two alternatives he was given.

26    The Minister submits that the primary judge was correct in finding that it was open to the Authority to have found that the appellant’s evidence in the interview placed the attack as having occurred in 2012, and not in March/April 2013 as stated in the protection visa application. A decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision-maker: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [135].

27    In SZRKT, Robertson J (at [143]) warned against situations where the Court is impermissibly invited on an appeal in judicial review proceedings to involve itself in choosing between contestable facts. Illogicality is taken to refer to “extreme illogicality or irrationality, 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 and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal”: SZRKT at [148] (approved in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 at [30(5)]).

28    I do not find that the Timing Premise on its own reaches the level of extreme illogicality or irrationality required. A reasonable decision-maker in the position of the Authority could reason, however tenuously, from the statement that the attack happened “a few months” after the store opened in September 2012 to a finding that the appellant’s evidence from the SHEV interview was that the attack occurred in 2012. It is not irrational to say, as the Authority and primary judge did, that “a few months” is less than six months. However, consideration must be given to how that finding was used by the Authority in its reasoning.

29    This issue is dealt with in AVQ15 at [23]-[28]. Especially relevant here is [28]:

…, 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.

30    Taking into account the information which was before the Authority, the inconsistency which was said to arise regarding the date of the attack on the shop was of such a minor nature that it could not rationally form the basis, even with other material, to affect the assessment of the appellant’s credibility.

31    In making this finding I take into account these relevant factors.

32    Firstly as discussed above at [25], the question posited by the Departmental officer provided two examples of periods of time, one measured in months and the other in years. The appellant chose the one that was most accurate without qualifying it or giving his own third alternative. The relevance of this factor in an interview where the appellant was unrepresented and which required an interpreter, many years after the events which are described, cannot be understated.

33    Further, the appellant’s statement that it had been “Just a few months, like –” with the interjection by the Departmental Officer of “Just a few months” further limited the possible range of answers that could be expected to be provided by him.

34    It was entirely natural for the appellant in these circumstances to reply “a few months” rather than specifying six months later, several months later or many months later. It is not part of the visa application process to criticise an applicant’s choice of words with a lexicographer’s zeal for precision in the use of a phrase which even native English speakers struggle with, i.e. just how many months is “a few” months or “some” months? These circumstances are an acceptable explanation for the appellant having given what the Authority characterised as inconsistent evidence. They do not form a basis to reasonably, fairly or rationally reject the appellant’s version as false.

35    On the above bases, it was irrational of the Authority to take the finding of inconsistency as one of the bases for rejecting the appellant’s claims. Further, what the Authority did in assessing the Timing Premise was to set out the variation in the appellant’s accounts, and then set out its conclusion about his credibility on the basis of the inconsistency, without explaining why it came to that conclusion. That is an inadequate basis to reject the appellant’s account: Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53 at [180].

36    The materiality of this error will be discussed at the end of these reasons.

37    Given the above findings, it is not necessary to consider whether the Timing Premise reasoning process is indicative of a failure to give real, genuine and proper consideration to the material before the Authority.

Subsequent Attacks Premise

38    At [26] of its decision, the Authority sets out what it finds to be a number of inconsistencies between the evidence of the appellant and M which it did not consider to be minor and caused it to doubt the credibility of their claims.

39    The Subsequent Attacks Premise is one of the inconsistencies referred in to in that paragraph:

[M] claimed that these agents clashed with [A] a further five times after the attack on the shop and described a number of these incidents during his protection visa interview. However when the delegate asked the applicant if [A] had experienced any problems since the attack on their shop, he gave a relatively vague response [and] said he had experienced many problems and cannot go to Beirut and is very careful but is okay and did not refer to the specific incidents raised by [M].

40    The vague response referred to occurred in the appellant’s SHEV interview. In response to questioning about A following the attack on the shop, the following passage of questioning took place:

Off:     And has he had any problems since? Like, it’s been a few years now, is he having any problems now?

[App]:     [A]?

Off:     Yeah.

[App]:     He had – not all the time, but yes, he did.

Off:     Okay, what problems? What’s – what problems is he facing?

[App]:     Too many, like, in – he cannot go to Beirut.

Off:     Okay.

[App]:     Yeah, that’s the first thing. And he’s very careful at the place he’s living. Yeah, he’s very – going – very careful with everywhere, like, I mean, he’s living, and he’s okay in there, but he’s not really free, you know what I mean? Yeah.

41    In M’s interview, on the other hand, he provided specific details of multiple attacks on A:

Off:     … And when you say your brother is still being harassed, what do you mean, what sort of harassment is he facing?

[M]:     Yeah, they are still always trying to follow him up, but not too far, but just 21 kilometres from our area.

…

Off:     Tell me everything you know about the problems your brother is having in Lebanon today.

Int:     Can you say it again, please?

Off:     Yeah, tell me everything you know about the problems your brother is having in Lebanon, continues to have in Lebanon.

[M]:     You mean again to him, what happened again to him personally?

Off:     Yes.

[M]:     They start to clash with him for about five times. Once when he was shot in the shop, and the other time they shoot at him in the village, and also [inaudible] problems with him.

42    The primary judge (at [43]) found that it was open to the Authority to find that A had been attacked in the manner described by M from the appellant’s interview statement above. However, the primary judge pointed out that one might have expected the appellant to go into further detail on the problems in the interview. On the basis of the answers provided, the adverse credibility finding did not rise to the extreme illogicality or irrationality necessary.

43    The primary judge also raised that even if this was a mistake of fact, it was not sufficiently material to be dispositive of the applicant’s claim.

44    The appellant submits that the reasoning process in making the credibility finding on the basis of this inconsistency was illogical or irrational. The basis for this submission is that the appellant’s answer did not foreclose the possibility that A had been attacked in the manner related by M in his interviews. The difference in the answers given can be explained by the differing levels of specificity required by the questions.

45    The appellant submits that on this basis there was no contradiction between the accounts which could support an adverse inference as to his credibility; the appellant’s account merely did not provide the examples that M did. So much was accepted by the primary judge at [43]. However, the appellant submits that the vagueness of the response cannot support a finding that there was an inconsistency.

46    The Minister submits that although there may be no contradiction between the accounts, that does not mean that the ultimate finding that the appellant’s credibility was damaged by his account is illogical. Although the questions asked of the brothers were different in their specificity, the evidence of M was not just more specific. The subsequent attacks were significant matters which it would be expected that the appellant would have addressed in answer to the questions. The Minister points to the primary judge’s finding that a more detailed account of the attacks would have been expected, as a logical basis for the adverse credibility finding made by the Authority.

47    Another difficulty comes from the phrasing of the questions which were asked of the appellant. From the above passages, the appellant in each phase of questioning was actually asked two different questions in quick succession:

    1. Has he had any problems since? 2. Is he having any problems now?

Answer: “He had – not all the time, but yes, he did.”

    3. What problems [did he have]? 4. What problems is he facing?

Answer: “Too many, like, in – he cannot go to Beirut. … Yeah, that’s the first thing. And he’s very careful at the place he’s living. Yeah, he’s very – going – very careful with everywhere, like, I mean, he’s living, and he’s okay in there, but he’s not really free, you know what I mean? Yeah.”

48    From the first answer, it seems that the appellant answered the first question posed as he is clearly speaking in the past tense. However, from the second answer it seems that the appellant was in fact answering the fourth question asked, i.e. what problems is his brother facing at the present moment – the answer is in the present tense. M, in contrast, spoke in the past tense with regard to the attacks that A had been subject to, going back to the original attack on the shop.

49    I therefore accept the appellant’s submission that there was no basis in the interview answers provided on which to find a contradiction between the accounts of the appellant and his brother M; they were addressing different time periods.

50    Moreover, because of the different questions that the brothers were asked, and the different time periods that they addressed, the different level of detail that they gave cannot rationally give rise to a basis to reject the appellant’s account. As with the Timing Premise, the materiality of this error will be considered later in these reasons.

51    Given the above findings, it is not necessary to consider whether the Subsequent Attacks Premise is indicative of a failure to give real, genuine and proper consideration to the material before the Authority.

Tripoli Family Premise

52    In the same paragraph [26] of the Authority’s reasons, another inconsistency between the evidence of the appellant and M was said to be to whether the brothers had family around Tripoli:

[M] claimed that, after the attack, his family moved to an area between Tripoli and Akkar to stay with family, however, the applicant claimed they did not have any family around Tripoli when asked by the delegate.

53    In the SHEV interview the appellant gave the following answers:

Off:     Do you have family near Tripoli?

App:     Do I have family in?

Off:     Or around Tripoli?

App:     In Tripoli? No, no. No, no.

54    In his SHEV interview, M stated that he had family “around Tripoli”:

Off:     Yeah. So, after this incident happened, what happened? Did your family leave the area? Did they go back to Akkar?

[M]:     No, we left an area before Akkar to – with relatives, stay with relatives.

Off:     Okay, in Beirut.

[M]:     No, in close – close Tripoli.

Off:     After Tripoli?

[M]:     After Tripoli.

Off:     Okay, all right, and so the Sunni area--

[M]:     Before Akkar.

Off:     Okay, okay. So you have family around Tripoli?

[M]:     Yeah, yeah.

55    The primary judge agreed that the appellant’s response did not firmly negate the proposition that he had family around Tripoli. Despite this, the primary judge did not see reason to overturn the decision on the basis of it being illogical or irrational.

56    The appellant submits that the answer provided in the SHEV interview was not capable of supporting the Authority’s conclusion that he had denied having any family “around” Tripoli, or “between Tripoli and Akkar”.

57    The Minister submits that in the context of the interview it was reasonable for the Authority to interpret the appellant’s answer “In Tripoli? No, no. No, no” as being a negative response to the question asked “[Do you have family] around Tripoli?” Whilst a different decision-maker might have interpreted the exchange during the interview in a different way this does not rise to the required level of illogicality.

58    In the hearing I raised with the parties the possibility of taking judicial notice of the geography of Lebanon and the relative distance between Beirut, Tripoli and the Akkar District under s 144 of the Evidence Act 1995 (Cth). I gave the parties an opportunity to make submissions as required under s 144(4) of the Evidence Act 1995 (Cth) and both parties agreed that they would not be unfairly prejudiced by my taking judicial notice of the facts in the following paragraph.

59    Beirut is located approximately halfway along the coast of Lebanon from north to south. Tripoli is also located on the coastline, approximately 80kms to the north of Beirut. Akkar District is the northern-most district of Lebanon, sharing its northern and north-eastern borders with Syria. The Akkar District begins approximately 25kms to the north-east of Tripoli.

60    As was submitted by the appellant, there is a difficulty of objectively defining whether a location between Akkar and Tripoli is “around” Tripoli or not. Although the distance between the places is only 25kms, there are a multitude of different locations in the area between Tripoli and the boundary of the Akkar District which may or may not be considered to be “around” Tripoli depending on one’s perspective.

61    Setting this difficulty aside, it is clear from the answer provided by the appellant, “In Tripoli? No, no. No, no.” that he was saying that he had no family in Tripoli. That is a quite different thing to saying he had no family around Tripoli – having family somewhere between Tripoli and Akkar, as identified by M, is different to having family in Tripoli. Therefore, for the appellant to say that he has no family “in Tripoli” is no contradiction to M saying that they have family “after Tripoli”, “before Akkar” and “around Tripoli”. M also did not say that they had family in Tripoli. To find the two accounts inconsistent is illogical and irrational.

62    Once again, this is an inadequate basis to reject the appellant’s account, particularly if one also takes into account that the interviews were conducted through interpreters. There is no logical, rational or probative basis to reject the appellant’s account on the basis of the Tripoli Family Premise. As with the previous premises, the materiality of this error will be considered later in these reasons.

63    Given the above findings, it is not necessary to consider whether the Tripoli Family Premise is indicative of a failure to give real, genuine and proper consideration to the material before the Authority.

Targeting of the Father Premise

64    At [27] of its reasons the Authority stated:

I also found the evidence in respect of what has happened to the family members since the applicant left Lebanon to be difficult to believe. When the delegate asked [M] if his father had experienced any issues after the attack on their shop, he claimed they are mainly trying to attack the sons because they are younger compared to his father and his father does not show up and appear in front of these groups most of the time. I found this explanation to be vague and unconvincing and inconsistent with their claim that his father was assaulted during the attack on the shop.

65    The primary judge accepted that M’s evidence did not exclude the possibility that the father was attacked in the initial attack on the shop. His Honour found that it was capable of being interpreted that, in fact, the father was attacked on one occasion when he stood in front of the group and protected his sons and the shop.

66    Although the primary judge found that the statement of the Authority was not factually correct, his Honour found that it did not reach the level of being irrational or illogical.

67    The appellant submits that the Authority’s statement is illogical or irrational on the basis that there is no inconsistency demonstrated by the brother M stating that after the attack on the shop their father did not appear in front of the groups when they returned and him having been assaulted during the attack on the shop. The appellant submitted that there was no logical connection between the evidence before the Authority and its conclusion that the appellant had provided an inconsistent account of why he and his brothers, not his father, were at risk.

68    The Minister submits that the primary judge was correct in finding that the Authority’s finding that the claims are inconsistent was a factual error, but that error did not result in irrationality or illogicality undermining the Authority’s decision. It was submitted that the Authority’s findings were merely supportive of, rather than critical to, its rejection of the claim.

69    The Minister also submits that to properly understand the Authority’s statement at [27] it must be understood that it was directed to the question of the evidence given in respect of what happened to the family members since the appellant had left Lebanon. The intent of the paragraph is to draw attention to M’s account that after they had left Lebanon their father was not a main target of the ongoing attacks, which the Authority found to be inconsistent with the claim that the father was assaulted in the main attack on the shop.

70    For the reasons submitted by the appellant, it was not open to the Authority to find that there was an inconsistency between the account of M, that the father was not targeted in later attacks, and the account from both brothers that the father was attacked in the initial attack on the shop. This was a finding without an intelligible basis in the material which was before the Authority; it is illogical and irrational and it cannot reasonably form a basis for rejecting the appellant’s account.

Sufficiency of evidence to support adverse credibility finding

71    A mere finding of error is not sufficient to substantiate a finding of jurisdictional error which can be subject to review, it is also necessary that the errors identified are material: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [44]. An error will only be material where there is a realistic possibility that, had that error not occurred, it could have changed the result of the exercise of power: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [29]-[31] and [72]; SZMTA at [2], [45], [48]-[49].

72    Following its outline of findings the Authority rejected the appellant’s claim that he and his family members had come to the adverse attention of Hezbollah. The Authority found that the appellant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and so did not meet the criteria for a protection visa outlined in s 36(2)(a). The Authority also did not find that the appellant would face a real risk of significant harm if returned to Lebanon and so the appellant did not meet the criteria for a protection visa outlined in s 36(2)(aa).

73    It is clear from the reasons that the overall adverse credibility finding formed a major underpinning for the rejection of the appellant’s claims.

74    The support for the credibility finding included the four premises identified in the appellant’s notice of appeal. They are all variously described as being inconsistent, either between the evidence of the brothers (Subsequent Attacks Premise, Tripoli Family Premise and Targeting of the Father Premise) or internally (Timing Premise).

75    However, these were not the only premises which influenced the Authority’s credibility finding. There were also three other discrepancies between the evidence of M and the appellant that the Authority referred to in rejecting the appellant’s evidence.

76    The first was regarding the differing reasons given for the attack on the shop by the brothers. The second was on account of conflicting accounts provided as to whether M was present when the attack on the shop began. The third was whether A was shot during the attack on the shop and the brothers’ different evidence on this point.

77    The final finding which informed the overall adverse credibility finding was that the appellant’s and M’s claims were not supported by the country information.

78    The primary judge also referred to multiple examples of adverse fact finding by the Authority (at [47]):

There were other adverse findings of fact. The Authority expressed considerable doubt as to the applicant’s evidence he had a wife in Lebanon and a woman he married in Singapore in 2016 as per paragraph 32 of the Authority’s decision. The Authority noted the inconsistency in evidence regarding the reasons why he left his job as a chef. The applicant said in his protection interview it was for sectarian reasons. In the applicant’s arrival interview, he said he was retrenched due to another company taking over the hotel as per paragraph 23 of the Authority’s decision. The Authority had issues in relation to, and I emphasise, the totality of the applicant’s claims given he confirmed he left legally on his passport via the Beirut International Airport which was confirmed in country information, was controlled by Hezbollah. Again, given the fact that the applicant had said that he was of adverse interest to Hezbollah, I again find that it was open to the Authority to draw an adverse credit finding in relation to that unchallenged statement.

79    The appellant submits that none of the premises or subsidiary findings was dispositive and none was said by the Authority to be individually capable of supporting the adverse credibility finding. The various findings of the Authority listed above cumulatively generated the adverse credibility finding which was made.

80    Where findings of credibility are based on intermingled findings and there is no proper basis for one of the findings, jurisdictional error may result: ARG15 at [74]; CGA15 v Minister for Home Affairs [2019] FCAFC 46 at [61]; DTN16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1525 at [47]. In those circumstances, flawed reasoning in respect of some but not all of “intermingled” findings may nonetheless result in jurisdictional error: see e.g. ARG15 at [72]-[74]; DTN16 at [46].

81    The appellant suggests that the manner in which the Authority arrived at the adverse credibility finding was analogous to that in ARG15: a set of findings ‘further’ to one another in which no single finding could be characterised as ‘foundational’ and the others as immaterial (see ARG15 at [16], [22], [29] and [72]-[75]). This is evident from the Authority never identifying any one or any subset of the premises as capable of supporting its conclusion that the appellant and M were not telling the truth.

82    In response to the above materiality points raised by the appellant the Minister submits that one does not simply ask whether an error was made and contributed to the reasoning alone. The reasoning process and the conclusions drawn as a whole must be scrutinised in order to engage in the analysis of materiality which the authorities require.

83    The threshold of materiality is not high. It requires a “realistic possibility” that the decision-maker could have exercised power differently but for the error. It need only be established that, had the error not been made, it “could have” resulted in a different decision. In my assessment, there is a realistic possibility that, if not for its errors of reasoning, the Authority would not have reached its adverse credibility finding and hence it would not have affirmed the Delegate’s decision. I make this finding cognisant of the requirement of caution to be taken in these matters as expressed at [18] above to ensure that the appeal does not transgress into a merits review.

84    In that regard, the premises successfully attacked in the appeal were cumulatively material to the exercise of power by the Authority. The premises were not open to the Authority by the reasoning it adopted in reaching them, or through appropriate consideration of the evidence before it. The decision of the Authority is hence affected by jurisdictional error.

Conclusion

85    In the circumstances, the appeal must succeed. The orders of the Circuit Court should be set aside and replaced with orders quashing the decision of the Authority and the matter should be remitted to it, differently constituted, for reconsideration.

86    The parties accepted that the costs should follow the event in the appeal. The Minister should therefore pay the appellant’s costs, as taxed or agreed.

Associate:

Dated:    30 June 2020