Federal Court of Australia

SZROL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 378

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and in relation to 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

(Revised from transcript)

THAWLEY J:

1    This is an appeal from orders of the Federal Circuit Court of Australia made on 9 September 2020: SZROL v Minister for Immigration [2020] FCCA 2466 (hereafter “J”).

BACKGROUND

2    The appellant is Nepalese. He arrived in Australia on 8 May 2010. The appellant lodged a valid application for a protection visa on 22 July 2011. The appellant claimed protection principally on the bases that:

(1)    as a supporter of the Nepalese Monarchy (the King and the Nepal Patriotic Organisation), he had a well-founded fear of persecution from “Maoists” (the Communist Party of Nepal) and their cadres (the Youth Wing of the Young Communist League (YCL));

(2)    as a member of a particular social group, namely a traveller who returned from overseas to Nepal, he had a well-founded fear of harm from Maoists.

3    On 10 January 2012, a delegate of the Minister for Immigration and Citizenship refused the appellant’s application for a protection visa.

4    On 17 May 2012, the Refugee Review Tribunal affirmed the delegate’s decision (the first Tribunal).

5    On 21 November 2012, the Federal Magistrate’s Court set aside the Refugee Review Tribunal’s decision of 17 May 2012 and remitted the matter to the Refugee Review Tribunal.

6    On 14 February 2014, after a second hearing held on 29 August 2013, the Refugee Review Tribunal affirmed the decision of the delegate to refuse a protection visa (the second Tribunal).

7    On 13 May 2016, the Federal Circuit Court dismissed the appellant’s application for judicial review of the decision of the second Refugee Review Tribunal of 14 February 2014: SZTZH v Minister for Immigration and Border Protection [2016] FCCA 1139.

8    On 2 February 2017, the Federal Court of Australia allowed an appeal from the Federal Circuit Court, quashed the second Tribunal’s decision of 14 February 2014 and remitted the matter to the Administrative Appeals Tribunal (AAT) to be determined according to law: SZTZH v Minister for Immigration and Border Protection [2017] FCA 55 (Bromberg J).

9    On 15 August 2017, the appellant appeared before the AAT with the assistance of a Nepalese interpreter. The appellant was not accompanied by a lawyer or migration agent at the hearing before the AAT. This was the appellant’s third hearing before a Tribunal. The appellant had also been interviewed by the delegate and given various written accounts of relevant events.

10    On 5 December 2017, the AAT affirmed the delegate’s decision. In its reasons (hereafter “T”), the AAT relied significantly on inconsistencies in the various accounts of relevant events given by the appellant. At T[43], the AAT concluded:

[43]     For all the above reasons, the Tribunal finds the applicant not to be a credible, truthful or reliable witness. The totality of his evidence shows a propensity to fabricate claims and tailor and shift his evidence in a matter which achieved his own purpose.

11    On 28 December 2017, the appellant commenced judicial review proceedings in the Federal Circuit Court challenging the AAT decision of 5 December 2017. As mentioned, on 9 September 2020, the Federal Circuit Court dismissed the appellant’s application.

12    This appeal is from the orders made by the Federal Circuit Court on 9 September 2020 dismissing the appellant’s application for judicial review. The appellant relied on three grounds of appeal, namely that the primary judge erred by:

(1)    failing to deal adequately or at all with Ground 1 of the Application in the Federal Circuit Court that the second respondent failed to have regard to delays and the number of times that the appellant had been required to provide an account of persecution, both of which had occurred through no fault of the appellant;

(2)    finding that it was not inconsistent with the review function of the AAT for it to simply accept on the face of the record challenged findings of the delegate;

(3)    failing to deal adequately or at all with Ground 4 of the Application in the Federal Circuit Court dealing with inconsistent findings of the AAT in relation to fears held by the appellant in relation to claiming protection in Australia.

FIRST APPEAL GROUND

13    Ground 1 of the judicial review application before the Federal Circuit Court was:

1.     The [AAT] made jurisdictional error in that it failed to have regard to a relevant consideration namely that the applicant had through no fault of his own been required to give evidence on numerous occasions over a lengthy period of time.

14    The primary judge set out the terms of Ground 1 at J[23]. The primary judge then summarised the principal submissions which had been advanced in relation to Ground 1 and provided his reasons for dismissing that ground. His Honour stated at J[24]-[36]:

24.    In support of this Ground Mr Young, at [15] of the Applicant’s Written Submissions filed on 2 September 2019, submitted that:

[15]    Shortly put, the AAT was required to consider the lengthy delays and the number of occasions on which the Applicant had been required to give an account. Both matters occurred because of jurisdictional errors by RRT-1 and RRT-2, not because of any fault on the part of the Applicant.

25.    At the hearing Mr Young submitted that it was incumbent on the Tribunal to record in its Decision Record words to the effect of:

Before [the Tribunal] engaged in the process of comparing the evidence given at various stages of the processing of [the Applicant’s] Protection visa application, it is noted and taken into account that it has been over a period of six years on four different occasions and those circumstances have been factored into the assessment credibility [of the Applicant].

26.    The basis of this Ground was said by Mr Young to be the decision of Weinberg J in SZIIF v Minister for Immigration & Citizenship (2008) 102 ALD 366 (SZIIF). In that case the applicant had been forced to repeat his claims and the relevant events on multiple occasions over a period of four years. The Tribunal had found some five inconsistencies in the versions given by the applicant over the relevant period of time. In reviewing the Tribunal’s decision, Weinberg J at 381 [88] – [91] said as follows:

[88]     I accept the minister’s submission that NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 is not directly in point. However, the principles underlying the majority view seem to me to be relevant, by analogy, to the particular circumstances of this case.

[89]    As previously indicated, the appellant first gave a detailed account of his past history in the Ukraine as far back as 2001. Some of the events that he described were relatively recent at that stage. However, through no fault of his own, he was obliged over the next 4 years to recall repeatedly the details of events that must have become more difficult to remember with the passage of time.

[90]    In my view, T3 was obliged to take that aspect of delay into account when considering any possible inconsistencies between the various statements that he made regarding these events.

[91]    Importantly, so far as this case is concerned, the appellant found himself in the invidious position of having to repeat his story on no fewer than seven separate occasions, spread out over a period of more than 4 years. T3 was obliged to have regard to that fact when considering what significance, if any, to attach to such differences as there may have been between these accounts.

27.    In a passage relied upon by Mr Young, Weinberg J in SZIIF at 380 [83] said as follows:

[83]    Speaking generally, therefore, NAIS stands as support for the proposition that lengthy delay, unacknowledged by the tribunal in its reasons for decision, can give rise to jurisdictional error. This may be because the tribunal has failed to take into account a matter that it was obliged to consider: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; 66 ALR 299. Alternatively, it may be that the tribunal has denied the applicant a fair hearing, and thereby denied him procedural fairness.

However, this statement by Weinberg J must be read secundum subjectam materiam in the factual context summed up by Weinberg J at 382 [97] – [98]:

[97]     Had the inconsistencies that T3 identified been both real and substantial, one might well understand how it arrived at its conclusion. Even then, it would have been highly desirable for T3 to have stated expressly that it had taken into account the dangers associated with drawing sweeping conclusions from what on any view was a mere handful of discrepancies.

[98]     However, when one adds to the mix the fact that none of the inconsistencies identified were properly analysed, several seemed to have misstated the appellant’s earlier position, and some involved summaries taken out of context, the entire process appears to have gone badly wrong. To use the language of Gummow J in NAIS, the tribunal did not give “proper, genuine and realistic” consideration to the appellant’s case. He was not afforded the hearing to which the law entitled him.

28.     I do not take anything said by Weinberg J in SZIIF as stating a requirement or principle of law that when considering an applicant’s claims or evidence as made over a period of years the Tribunal must in its decision record verify, state and acknowledge that it had factored delay and the passage of time into its consideration of possible inconsistencies and its assessment of an applicant’s credibility. No other Judge of the Federal Court or this Court has taken the decision in SZIIF as so requiring.

29.     Rather, the relevant applicable principle is that specific consideration of the facts and the relevant Tribunal decision must be given to an assessment and determination of whether credibility findings are so irrational, illogical or unreasonable as to be infected with jurisdictional error. This principle is stated by the Full Court of the Federal Court of Australia comprised of Kenny, Kerr and Perry JJ in DAO16 v Minister for Immigration and Border Protection and Another (2018) 258 FCR 175 at 183 – 184 [30] in the following terms:

[30]     (1) … 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) 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) 212 FCR 99 (SZRKT) at [77] (Robertson J)…

30.    In this case, the Tribunal in its Decision Record took into account inconsistencies in the Applicant’s claims as made:

a)    in the Applicant’s Statement forming part of his Protection visa application lodged on 22 July 2011;

b)    at the interview with the Delegate on 14 December 2011;

c)    at the second RRT hearing on 29 August 2013; and

d)    at the third Tribunal hearing on 15 August 2017.

The Tribunal published its Decision Record relatively soon after the third Tribunal hearing on 5 December 2017. In my view the Tribunal, in finding and relying on inconsistencies in this body of evidence in coming to its decision in the specific circumstances of this case, did not commit jurisdictional error: see also in this regard [38] – [51] below.

31.    First, the Tribunal was not bound to accept the Applicant’s claims uncritically, nor was it as a matter of law precluded from considering inconsistencies in those claims as made over the period from July 2011 to August 2017. As Flick J said in SZUHJ v Minister for Immigration & Border Protection [2018] FCA 331 at [24]:

[24]    …To confine the Tribunal to only being permitted to make a finding consistent with the factual account being given by a claimant in the absence of rebutting evidence and not by reference to inconsistencies in that factual account would be inconsistent with the task entrusted to the Tribunal by the legislature to make findings of fact by reference to the evidence before it and would be inconsistent with authority: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 70 AAR 413. Although the difficulties of proof which may be encountered by a claimant seeking protection may readily be accepted, the Tribunal is not obliged to accept uncritically a factual account given by, or submissions advanced by, a claimant: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 451 to 452 per Beaumont J.

32.    Second, it is entirely conventional for the purposes of criminal and civil litigation for there to be consideration and comparison of any prior inconsistent statements or evidence of a party (or witness) in the course of the assessment of the trustworthiness and veracity of that party (e.g. see s 43 of the Evidence Act 1995 (Cth)). If the party has earlier said one thing and then subsequently says another thing about the same subject matter, this may, if not minor or trivial, throw suspicion on the accuracy or credibility of the party’s evidence. Likewise if that party makes a claim later which they had not made earlier but which might have been expected to have been made at that earlier point of time.

33.    In this context in AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205 the Tribunal in its decision had pointed to a number of inconsistencies in important aspects of the applicant’s claims as made at various times, and between her accounts and those given by her husband at an earlier Tribunal hearing. The Tribunal also considered that the applicant’s answers were evasive and vague when those inconsistencies were put to it. In that context, Perry J said at [24]:

[24]    The existence of such inconsistencies in important aspects of the appellant’s claims, and the failure to explain those inconsistencies in a way that the Tribunal considered was satisfactory, provide a logical and rational basis for the Tribunal’s adverse credibility findings. In this regard, it is well established that the Tribunal is not required to accept, uncritically, any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451–452 (Beaumont J); Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596 (Kirby J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion is not established: see eg Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at [7] (Heerey J).

34.    In … SZUSH v Minister for Immigration and Border Protection [2016] HCATrans 112 at [10] Nettle J said as follows:

[10]    …. it is not the law that the credit and reliability of an applicant’s evidence is irrelevant in the determination of a review of an application for protection visa. Where the establishment of facts is dependent on oral evidence, the evidence must be assessed and weighed in light of its apparent credibility and reliability and findings must be made according to that assessment (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 [(SGLB)] at 21-22 [42] – [44] per Gummow and Hayne JJ.)

No doubt, as SZUSH contends, refugee cases involve special considerations where credibility is in issue (SGLB (2004) 207 ALR 12 at 33 [73(7)] per Kirby J, in dissent.) As Kirby J observed in SGLB, “There is no necessary correlation between inconsistency and credibility in such cases”. It is necessary to keep in mind that there may be a host of ethnic, cultural, lingual, physical, behavioural and psychological considerations peculiar to refugees which, depending upon the circumstances of a given case, may explain inconsistencies that would otherwise be thought to reveal dishonesty. But, that said, it remains a process of evaluation for the tribunal of fact to determine what, if any, weight is to be placed on an applicant’s version of events; and where, as here, there were many reasons to disbelieve an applicant’s version of events it is not in error to reject it.

35.    In DQA16 v Minister for Immigration and Border Protection [2018] FCA 2086 from [87] – [89] Wigney J stated, with reference to Kirby J’s statement in SGLB recorded by Nettle J at [34] above, as follows:

[87]     First, Kirby J was in dissent in SGLB. There is no indication that the majority judges agreed with that part of Kirby J’s judgment which the applicant sought to rely on. It is “not proper to seek to extract a binding authority from an opinion expressed in a dissenting judgment”: Federation Insurance Ltd v Wasson (1987) 163 CLR 303 at 314.

[88]     Second, the opinion which was expressed by Kirby J in any event did not support the broad propositions which appeared to underlie the applicant’s arguments concerning review grounds one, three, four, six and seven. Kirby J was simply observing that inconsistencies in a review applicant’s evidence do not always undermine the applicant’s credit. In that context, his Honour emphasised that the Tribunal should exercise considerable caution in arriving at adverse assessments of a review applicant’s credit in certain circumstances. That is not to say that the Tribunal can never have regard to inconsistencies in a review applicant’s evidence, even inconsistencies in relation to matters that do not directly relate to the applicant’s claims to fear persecution, in assessing the applicant’s credibility. Kirby J’s observations also plainly do not support the even broader propositions which appeared to be advanced by the applicant; that, in conducting its review and making its decision, the Tribunal cannot assess the credibility of the applicant based on his or her evidence and any inconsistencies in it, and that the credibility of a review applicant is an irrelevant consideration.

[89]     In all the circumstances, it was open to the Tribunal to ask the applicant questions about matters which did not directly relate to his claims of persecution, including questions about his siblings. It was also open to the Tribunal to have regard to any inconsistencies in the applicant’s evidence in assessing his credibility as a witness and the credibility or reliability of his evidence generally. It was equally open to the Tribunal to have regard to the applicant’s refusal to answer certain questions in assessing his credibility. The applicant’s submissions to the contrary had and have no merit.

36.    In my view Ground 1 is not made out and fails to establish jurisdictional error.

15    It cannot be said that the primary judge did not deal with Ground 1 of the judicial review application “at all”. This aspect of Ground 1 of the appeal is not made out. As the extract above demonstrates, Ground 1 of the judicial review application was expressly addressed.

16    The appellant’s contention that the primary judge did not adequately deal with Ground 1 of his judicial review application must also be rejected. The primary judge at J[29] correctly recognised that the question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry; is not assessed by reference to fixed categories; and requires a detailed analysis of what the decision-maker has decided, referring to DAO16 v Minister for Immigration and Border Protection and Another [2018] FCAFC 2; (2018) 258 FCR 175 at [30].

17    The primary judge acknowledged that refugee cases involve special considerations where credibility is in issue, referring at J[34] to the observations of Nettle J in SZUSH v Minister for Immigration and Border Protection [2016] HCATrans 112 at [10]:

It is necessary to keep in mind that there may be a host of ethnic, cultural, lingual, physical, behavioural and psychological considerations peculiar to refugees which, depending upon the circumstances of a given case, may explain inconsistencies that would otherwise be thought to reveal dishonesty. But, that said, it remains a process of evaluation for the tribunal of fact to determine what, if any, weight is to be placed on an applicant’s version of events; and where, as here, there were many reasons to disbelieve an applicant’s version of events it is not in error to reject it.

18    The primary judge referred at [30] to the occasions on which the appellant had given evidence. His Honour stated that “in finding and relying on inconsistencies in this body of evidence in coming to its decision in the specific circumstances of this case, [the AAT] did not commit jurisdictional error”. The primary judge explained why that was so from J[31] to [35]. His Honour explained that: first, the Tribunal was not bound to accept the appellant’s claims uncritically and nor was it, as a matter of law, precluded from considering inconsistencies: at J[31]; secondly, it is entirely conventional (even in other decision-making contexts) to take into account inconsistencies in respect of matters which are not minor or trivial: at J[32] to [35]. As mentioned already, his Honour was careful to acknowledge the special considerations which apply to the assessment of evidence in refugee cases: at J[34].

19    The primary judge’s reasons demonstrate that he engaged with the substance of the appellant’s written and oral submission, quoting from both, and examining authorities on which the appellant relied.

20    Ground 1 of the judicial review application raised a contention that the AAT failed to take into account a relevant consideration being that the appellant had, through no fault of his own, been required to give evidence on numerous occasions over a lengthy period of time.

21    It seems that Ground 1 may have been argued before the primary judge on a different basis, namely that the AAT was required to state in its reasons that it had taken into account in its assessment of credibility the period of time over which and the number of times that the appellant had to give an account of relevant events – see: J[25]. This contention was correctly rejected by the primary judge at J[28]. There is no principle to the effect that a statement must be made in the reasons for decision that a decision-maker has taken into account the fact, if it be the fact, that an applicant has through no fault of his own, been required to give evidence on numerous occasions over a lengthy period of time.

22    As to Ground 1 as expressed in the judicial review application there is no principle that a Tribunal must take into account, as a mandatory relevant consideration in the sense described in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, the fact that a visa applicant has “through no fault of his own been required to give evidence on numerous occasions over a lengthy period of time”.

23    The appellant referred what Weinberg J said in SZIIF v Minister for Immigration & Citizenship [2008] FCA 913; 102 ALD 366 at [83] (emphasis added) after having considered the High Court’s decision in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470:

[83]    Speaking generally, therefore, [NAIS] stands as support for the proposition that lengthy delay, unacknowledged by the tribunal in its reasons for decision, can give rise to jurisdictional error. This may be because the tribunal has failed to take into account a matter that it was obliged to consider: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; 66 ALR 299. Alternatively, it may be that the tribunal has denied the applicant a fair hearing, and thereby denied him procedural fairness.

24    NAIS addressed a different situation to the present and to SZIIF. In NAIS, the Tribunal had held oral hearings on 6 May 1998 and 19 December 2001. The Tribunal’s decision was handed down on 14 January 2003. Gleeson CJ held that the delay created a real and substantial risk that the Tribunal’s capacity to assess the evidence and evaluate the claims was impaired: at [10], [11]. Kirby J agreed with the Chief Justice in this respect: at [106]. Callinan and Heydon JJ considered that it was to be inferred from the delay that the Tribunal had disabled itself of the capacity properly to assess the evidence with the result that there was a denial of procedural fairness: at [172]. Gummow and Hayne JJ dissented in separate judgments.

25    The observation made by Weinberg J at [83], emphasised above, concerned NAIS. None of the judgments in NAIS analysed the issues present in that case by reference to mandatory relevant considerations. NAIS was argued on the basis of procedural fairness. Peko-Wallsend was not mentioned. The main point which was made in NAIS was that an opportunity to be heard involves more than just providing an opportunity to give evidence or put submissions, it contemplates consideration in fact being given by the decision-maker to that which was put in answer to the opportunity afforded and that such consideration could be impaired by delay in considering the evidence given – see: at [10] (Gleeson CJ); at [37] (Gummow J); at [104] (Kirby J); at [172] (Callinan and Heydon JJ). Weinberg J cannot be understood as holding that a delay between hearing and judgment (or more generally) is a mandatory relevant consideration in the Peko-Wallsend sense.

26    In any event, NAIS involved a quite different question to that which was considered in SZIIF. A delay in providing reasons after hearing a person’s evidence is not obviously analogous to the question of whether changes in a person’s evidence are explicable by the natural evolution of recollections over time in circumstances where the recollections are repeated in often stressful circumstances. None of this is to suggest SZIIF is wrongly decided. If it were decided today, it would have likely been decided on the grounds of unreasonableness in the sense described in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 given the developments in administrative law since Weinberg J’s decision.

27    It is true, as the appellant submitted, that in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [45], the High Court referred to SZIIF at [83]. In SZJSS, the applicant and his wife sought review under Pt 7 of the Migration Act 1958 (Cth) in the Refugee Review Tribunal of a decision to refuse applications for protection visas. The husband relied upon letters which he contended demonstrated that his position in his country of origin had become unsafe. He also gave evidence that, if he had remained where he had last resided, he would have been forced to make donations to Maoist revolutionaries or face persecution. The Tribunal dismissed the application, stating that it gave “no weight” to the letters because it considered that they had been solicited by the applicant and that the oral evidence was a “baseless tactic” to help the husband address the potentially adverse impression that the Tribunal had disclosed.

28    After concluding (contrary to the decision of the Federal Court) that jurisdictional error had not been established, the High Court stated at [45] – [47] (footnotes omitted):

[45]    Finally, it should be mentioned that in upholding the appeal before it, the Federal Court referred to the Tribunal's failure to refer to the effects of delay and the requirement for the first respondent to repeat evidence, and in doing so referred to both NAIS and SZIIF v Minister for Immigration and Citizenship [(2008) 102 ALD 366 at 380 [83] per Weinberg J].

[46]    This was part of the reasoning [of the Federal Court] that the conduct of the Tribunal in giving “no weight” to the letters, and its use of the expression “baseless tactic”, constituted jurisdictional errors characterised as a constructive failure to exercise jurisdiction.

[47]    The evidence which the first respondent gave before the three different Tribunals was not affected by significant delay which might have been expected to affect the Tribunal's capacity to assess the credibility of the first respondent. Rather it was affected by the fact that relevant and significant social and political changes had occurred in Nepal since 2006 and those changes were addressed by the first respondent in a particular way in the third Tribunal. The relevant date for deciding the existence of a well-founded fear of persecution was in 2008 at the time of the third Tribunal's decision. As already explained, no jurisdictional error was shown by the Tribunal’s treatment of the letters produced in evidence or by the Tribunal’s use of the expression “baseless tactic” to describe the giving of certain evidence. Nor was jurisdictional error shown otherwise in the Tribunal's handling of the fact that the first respondent gave evidence over time before three differently constituted Tribunals.

29    The High Court was not citing SZIIF at [83] as authority for the proposition that delay of the kind in NAIS or of the kind in SZIIF is a mandatory relevant consideration. The High Court in SZJSS at [45] was simply stating that the Federal Court had referred to SZIIF.

30    The fact that a visa applicant has “through no fault of his own been required to give evidence on numerous occasions over a lengthy period of time” is not a consideration which is made expressly mandatory by any statutory provision and neither does the statute implicitly make such a consideration mandatory in the Peko-Wallsend sense. That is not to say that the consideration might not be one which the Tribunal should or must take into account for other reasons, for example in order for the Tribunal to discharge its function of review: (a) by in fact conducting the review, including by giving adequate consideration to the issues on review; or (b) in a procedurally fair way; or (c) in a way which does not breach the implied condition that the decision-making power be exercised reasonably having regard to the particular statutory context in the sense described in Li. Whether such an obligation arises, and precisely what is required to meet any such obligation, depends on the particular circumstances.

31    Assuming that, in the particular circumstances of this case, an obligation arose to take into account that the appellant had been required to give multiple accounts of the relevant events over a period of years, I would not infer, either from the absence of any express reference in the AAT’s reasons to the matter having been considered or otherwise, that the AAT failed to take that matter into account. Apart from the absence of a reference in the reasons to a consideration of these circumstances faced by the appellant, nothing was specifically relied upon as giving rise to an inference that the Tribunal failed to take the matter into account.

32    The AAT hearing was held on 15 August 2017. This was the appellant’s third Tribunal hearing. He was represented by a registered migration agent but that representative did not attend the hearing. The AAT reasons were dated 5 December 2017. The Tribunal considered whether the appellant’s evidence at hearing was consistent with evidence from the second hearing, and with the delegate’s account of what the appellant had stated to the delegate, and the Tribunal put various perceived inconsistencies to him – see, for example at T[34], [37] and [40]. The Tribunal was aware of the fact that the appellant had given evidence on multiple occasions over a number of years, having referred to the occasions on which the appellant had given evidence and contrasted them. It is necessarily at least a partly impressionistic exercise of inference from the reasons and other available material, but I would not infer that the Tribunal failed to take into account the difficulties faced by the appellant which arose out of those circumstances. This is not a case like SZIIF where the appellant has shown that the Tribunal relied on inconsistencies which were not “both real and substantial” or where “none of the inconsistencies identified were properly analysed, several seemed to have misstated the appellant’s earlier position, and some involved summaries taken out of context” such that it should be concluded that “the entire process appears to have gone badly wrong” – see: SZIIF at [97] and [98]. The Tribunal gave genuine consideration to the appellant’s case, focussing on inconsistencies which it regarded as important. The hearing afforded by the Tribunal was procedurally fair.

33    The appellant has failed to show that the decision exceeded the limits of the decision-making authority or failed to comply with an express or implied condition of conferral of statutory decision-making authority by Ground 1.

34    The first appeal ground is therefore not made out.

SECOND APPEAL GROUND

35    The appellant contended that the primary judge should have found that the AAT erred in accepting the delegate’s findings.

36    The appellant noted that one of the AAT’s findings of inconsistency was between the delegate’s decision record that, when the appellant was abducted from Kathmandu by Maoist cadres, he was not “significantly harmed” and evidence which he gave to the second Tribunal and the AAT that he was beaten during this period of abduction.

37    The AAT stated at T[14] and [40] (emphasis added):

[14]     The applicant attended an interview (the interview) with the Department on 14 December 2011. Where relevant, the applicant’s oral evidence at that interview is referred to below.

    …

[40]    Furthermore, at the AAT hearing, the applicant stated that he was beaten by Maoists when he was abducted in 2010. Similarly, at the second RRT hearing, the applicant stated that he was beaten by Maoists in 2010. According to the delegate’s decision record, however, the applicant had stated at the interview that he was not significantly harmed during the period he was abducted by Maoists in 2010. The applicant also made no mention of being physically harmed in 2010 in the statement submitted in support of his application for a protection visa. The inconsistencies in the applicant’s evidence were discussed with him at the AAT hearing. …. The shifts and changes in the applicant’s evidence raise serious doubts in relation to the veracity of his claims.

38    The primary judge stated:

44.    Turning to the specific paragraphs of the Decision Record of the Tribunal referred to by Mr Young, at [39] – [40] the Tribunal points to the inconsistency between the Applicant’s evidence at the interview with the Delegate as recorded in the Delegate’s decision to the effect that when he was abducted from Kathmandu he was not “significantly harmed”: see [9(e)] above, with his evidence at the second RRT hearing and the third Tribunal hearing that he had been beaten. At [40] the Tribunal also pointed out that the Applicant had made no mention of being physically harmed in 2010 in his Applicant’s Statement. The ordinary and first meaning of the verb “beat” in this context is “to strike repeatedly and usually violently”: Macquarie Dictionary Online, 2020.

45.    It is clear from the terms of [39] – [40] of the Decision Record of the Tribunal that it was relying on the Decision Record of the Delegate as to what was said by the Applicant at the interview with the Delegate. In my view no jurisdictional error is established by the Tribunal’s use of the Delegate’s Decision Record in this regard. The Tribunal was entitled to take the Decision Record of the Delegate on its face.

46.    The Applicant, through his solicitor, had given a copy of the Decision Record of the Delegate to the Tribunal for the purposes of s 424A(3)(b) of the Act. He knew from that Decision Record that the Delegate had found significant inconsistencies in the timing relevant to his claims to protection: see [12] above. He did not lead any evidence in this Court to suggest that the Decision Record of the Delegate was wrong in recording that he had told the Delegate at interview that he had not been “significantly harmed” in May 2010, nor did he tender any transcript of the interview with the Delegate to establish that the Delegate was wrong in recording that the Applicant had said that he had not been significantly harmed in May 2010.

39    The appellant submitted that the primary judge’s approach, reflected in what his Honour stated at [45] and [46], was “inconsistent with the jurisdictional duty of the AAT under s 414 of the Migration Act 1958 (Cth) to review the decision” of the Minister’s delegate. The appellant accepted that the AAT could have regard to the findings of previous Tribunals, but rejected the proposition that it could have regard to the findings of the delegate.

40    This ground of appeal must fail. The AAT was entitled to have regard to the evidence that the appellant had given to the Minister’s delegate. The AAT, in discharge of its obligation to find facts, had regard to the evidence given to the delegate by reference to the summary of that evidence in the delegate’s decision. The delegate had summarised the appellant’s evidence in the following way:

PV Interview 14 December 2011:

…

At interview the applicant reiterated and expanded upon his claims. The following additional information was provided;

•    …

•    His abduction from Kathmandu by the YCL cadres was in 2067 (approximately May 2010) and he was held for 4 days. He was not significantly harmed during this period. They wanted him to provide money. He states that his captors wanted him to join their party and were aware of his previous movements in Myagdi and Baglung and the incidents that had occurred as Maoists from his village were present at the Balaju camp; …

41    There was no challenge made in the AAT, or in the application for judicial review, to that summary of the evidence, in the sense of that summary not correctly reflecting what the appellant had said at the PV Interview. I observe in this regard that the appellant had been given a digital recording of his PV Interview. The AAT compared the delegate’s summary of the evidence which the appellant had given with the appellant’s later evidence. This was orthodox and appropriate. I should also observe that it may well be that the AAT in fact examined or listened to the evidence the appellant had given to the delegate. It is not clear whether or not the AAT listened to the digital recording – see: T[14].

THIRD APPEAL GROUND

42    By the third appeal ground, the appellant contended that the primary judge failed to deal “adequately or at all with Ground 4 [of his judicial review application] dealing with inconsistent findings of the [AAT] in relation to fears held by the [a]ppellant in relation to claiming protection in Australia”. Ground 4 of the application for judicial review was as follows:

4.     The [AAT] made jurisdictional error at [42] by accepting that applicant was credible that the applicant was fearful of claiming protection in Australia because he had used a false passport but inconsistently finding that delay in applying for protection cast doubts on his credibility.

43    At T[42], the AAT stated the following:

[42]    Thirdly, the applicant arrived in Australia on 8 May 2010. However, he did not apply for a protection visa until 22 July 2011. In his evidence to the Department, the applicant stated that he had not applied for a protection visa earlier because he did not know about protection visas, his English was poor and he was fearful approaching Australian authorities because he had arrived on a false passport. At the second RRT hearing, he stated that he came to know about protection visas nine months after he came to Australia. He talked to his friends and some suggested this as an option. He also stated that he did not know where to go to apply for a protection visa, he did not know how to apply for a visa and he was fearful of being sent back because he had arrived on a false passport. At the AAT hearing, he also stated that he did not know about protection visas when he first arrived here. The Tribunal has considered the applicant’s explanations and appreciates that he might have been worried about approaching the Australian authorities due to having entered Australia on a false passport. However, in view of the seriousness of his claims, the Tribunal does not accept that the reasons provided by the applicant satisfactorily explain a delay of 14 months in applying for a protection visa. The applicant’s significant delay in lodging his protection visa application, casts doubt on the credibility of his claims and the genuineness of his fear of persecution.

44    At J[53]-[57], the primary judge stated:

[53]    The Applicant arrived in Australia on 8 May 2010 but did not apply for a Protection visa until 22 July 2011. There is a clear body of law that an Applicant’s delay in applying for a Protection visa is not an irrelevant consideration in the determination of the genuineness of claims and credibility: see the decision of BAX15 v Minister for Immigration & Border Protection [2016] FCA 491 in which Perry J in the Federal Court of Australia reviewed the principles concerning the relevance of a delay in lodging an application for a Protection visa.

[54]    The Delegate in his Decision Record and the RRT in the second RRT decision considered and found that the Applicant’s delay in lodging his Protection visa application, given his very serious claims to protection and why he said he could not return to Nepal, weighed against the genuineness of his claims.

[55]    The Tribunal at [42] of its Decision Record also considered the issue of delay. In my view, nothing in that paragraph is legally unreasonable or irrational. In the third sentence of [42] the Tribunal summarises the Applicant’s explanation for the delay given to the Department as being:

a)    the Applicant did not know about Protection visas;

b)    the Applicant’s English was poor; and

c)    the Applicant was fearful of approaching Australian authorities because he had arrived on a false passport.

[56]    In the fourth, fifth and sixth sentences sentence of [42] the Tribunal summarised the Applicant’s explanation for delay given at the second RRT hearing, including that “he was fearful of being sent back because he had arrived on a false passport”. In the seventh sentence the Tribunal recorded his evidence at the third Tribunal hearing. Then in the eighth sentence of [42] the Tribunal noted that it had considered the Applicant’s explanations for delay and appreciated that he might have been “worried” about approaching the Australian authorities due to having entered Australia on a false passport. Nevertheless, the balance of the paragraph recorded that the Tribunal did not accept the Applicant’s explanations for delay.

[57]    In other words the Tribunal considered, understood and appreciated that the Applicant might have had a reluctance and worry about disclosing that he had entered Australia on a false passport, but rejected such reluctance and the other explanations as being sufficient to satisfactorily explain and constitute a satisfactory reason for the delay of some fourteen months in applying for a Protection visa, and that the delay cast doubts on the credibility of his claims and the genuineness of his fear of persecution. In reasoning in this way I can discern no legal error or any inconsistency as asserted by the Ground.

45    The appellant submitted that the primary judge’s reading of the AAT’s conclusions was not reasonable and was illogical and therefore erroneous. The appellant submitted that:

(1)    the Tribunal had accepted that the appellant might have been worried about approaching the Australian authorities but did not accept that this satisfactorily explained a delay of 14 months in applying for a protection visa;

(2)    the only reasoning which explained the reluctance to approach the Australian authorities due to having entered Australia on a false passport and the delay of 14 months was “the seriousness of his claims”;

(3)    if the appellant was, as the Tribunal accepted, reluctant to approach the Australian authorities because he feared he would be sent back because he arrived on a false passport, the seriousness of his claims underscored his reluctance to take action which was likely to lead to him being sent back to Nepal.

46    As to illogicality, in MZZGE v Minister for Home Affairs [2019] FCAFC 72 at [22] (Besanko, Farrell and Thawley JJ) the Full Court stated :

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

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

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

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

47    An error in logic is only established by identifying a conclusion which could not logically have been reached. An error in logic is not established by showing that an alternative path of reasoning could have led a reasonable mind to a different conclusion. In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [78], Heydon J stated:

The issue was one on which minds might differ. The Federal Court evidently operated on one assumption or conclusion about that issue. The Tribunal operated on another. The difference was one of degree, impression and empirical judgment. It did not stem from an error in logic by the Tribunal member. The difference could not be said to reveal an absence of any basis whatsoever for her conclusion.

48    Crennan and Bell JJ at [131] stated:

What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

49    The identification of illogical or irrational reasoning or fact finding is in aid of determining whether the decision was affected by jurisdictional error. It is not sufficient simply to identify a particular step in reasoning, or a conclusion of fact, that is not logical. The lapse in logic must be of such a nature that it can be seen to take the ultimate decision outside of the jurisdiction conferred by the particular statute. This will require that the lapse in logic be material in the sense described in MZAPC v Minister for Immigration and Border Protection (2021) [2021] HCA 17; (2021) 95 ALJR 441.

50    The primary judge’s construction of the AAT’s conclusion is the preferable reading of the AAT’s reasons. It is true that a decision-maker might have concluded, in the circumstances of this case, that the delay of 14 months was explained by a reluctance to take action which might lead to the appellant being sent back to Nepal. However, the fact that such a conclusion was open and logical does not mean that it was the only conclusion available. It was not the AAT’s assessment. The AAT was prepared to accept that the appellant was worried about approaching Australian authorities because he used a false passport. Before the delegate and the second Tribunal, this fear was linked to a fear of being returned to Nepal as a result of having a false passport. However, in light of the seriousness of the appellant’s claims, the AAT was not prepared to accept that this worry or fear would have been a reason not to seek protection. In substance, the AAT concluded that the appellant had to balance the risk of being deported because he had entered Australia on a false passport against the benefit of obtaining a protection visa. If his claims were true, the benefit of obtaining a protection visa outweighed the risk of him being returned because of having a false passport. Ultimately, the AAT evidently took the view that, if the claims were true, the appellant would have come forward faster than 14 months notwithstanding the risk of being deported because he had entered Australia on a false passport. The fact that he did not, led the AAT to doubt the veracity of the appellant’s claims. This reasoning was open even if others would disagree. It was not irrational or illogical, and nor was it shown to be legally unreasonable.

CONCLUSION

51    The appeal must be dismissed with costs.

Associate:

Dated:    8 April 2022