Federal Court of Australia

CSU16 v Minister for Immigration and Border Protection [2022] FCA 1509

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed in part.

2.    The orders of the Federal Circuit and Family Court of Australia made on 19 February 2021 be set aside and in lieu thereof:

(a)    the second respondent’s decision of 29 August 2016 be quashed;

(b)    the second respondent, differently constituted, review the decision of the delegate of the Minister made on 22 October 2012 according to law; and

(c)    the Minister pay the appellant’s costs of and incidental to the appeal as well as the costs of the application before the Federal Circuit and Family Court of Australia.

3.    The appellant’s application for leave to raise a new ground is refused.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    The appellant is a national of the Democratic Socialist Republic of Sri Lanka who arrived in Australia in February 2012 and subsequently applied for a protection visa. The application was rejected by a delegate of the first respondent (Minister). On review, the second respondent (Tribunal) affirmed the decision of the delegate. The appellant now appeals the judgment of the Federal Circuit Court and Family Court of Australia (previously known as the Federal Circuit of Australia) (FCFCOA) made in CSU16 v Minister for Immigration and Border Protection [2021] FCCA 73 in which the primary judge found that the decision of the Tribunal was not vitiated by jurisdictional error.

BACKGROUND

2    In February 2012, the appellant arrived in Australia by boat. On the day after his arrival, he attended an interview with an officer of the Department of Immigration and Citizenship, which was followed by second interview in May 2012 (collectively, the entry interview).

3    In June 2012, the Minister exercised the power under s 46A(2) of the Migration Act 1958 (Cth) (as the Act then was) to lift the bar which precluded the appellant from applying for a protection visa. The appellant made an application for a protection visa which was refused by a delegate of the Minister in October 2012.

4    The appellant applied to the then Refugee Review Tribunal (RRT) for merits review of the decision of the delegate. In May 2014, the RRT affirmed the decision of the delegate.

5    In September 2015, the FCFCOA found that the decision of the RRT was affected by jurisdictional error. The Court found that the RRT had failed to consider the appellant’s claimed fear of harm on the basis of him being a Muslim and ordered that the matter be reconsidered according to law.

6    In April 2016, the appellant attended a hearing before the Tribunal where he was assisted by an interpreter. On 29 August 2016, the Tribunal affirmed the decision of the delegate for a second time.

7    On 19 February 2021, the primary judge dismissed the appellant’s application for judicial review of the decision of the Tribunal.

8    On 15 March 2021, the appellant filed a notice of appeal to this Court which contained three grounds of appeal. By his written submissions the appellant abandoned the second ground.

GROUND 1 – THE ERRONEOUS CREDIT FINDING

9    Ground 1 is concerned with the extent to which an erroneous finding made by the Tribunal as to the credibility of the appellant contaminated other findings made by the Tribunal which led to the rejection by the Tribunal of the appellant’s primary claims that he would face persecution if he were returned to Sri Lanka. In essence, the error attributed to the primary judge is her Honour’s finding that the erroneous credit finding made by the Tribunal had an isolated and limited impact, did not infect and thus was not critical to the Tribunal’s assessment of the appellant’s claims generally or of the appellant’s credit generally. Before considering whether the primary judge correctly reasoned to that conclusion, it is convenient to set out some background which will help to explain the way in which the central issue raised by this ground falls to be considered.

10    The principal claim advanced before the Tribunal was that the appellant was at risk of being persecuted if he were returned to Sri Lanka on the basis that he would likely be of interest to the Sri Lankan authorities because of an imputed political opinion that he was anti-government or a supporter of the Liberation Tigers of Tamil Eelam (LTTE). The imputed opinion was said to arise out of events in which a business owned by the appellant’s family, and with which the appellant and his brother were involved, was suspected by Sri Lankan authorities of having been used to smuggle weapons into the north of Sri Lanka to assist the LTTE. In support of that claim, the appellant said that following agents of the government attending the store and finding ammunition, his brother had been abducted by government agents and he himself was sought by those agents.

11    The Tribunal rejected the abduction claim and fear of imputed political opinion which underpinned the appellant’s primary claim for a protection visa.

12    Beyond the appellant’s primary claim, the appellant also claimed that he would be harmed upon his return to Sri Lanka because of an imputed connection with the LTTE or anti-government views arising from his presence on a boat known as the “Merak boat” (the Merak claim). The Merak boat had attracted international attention whilst in Indonesian waters. The appellant claimed that his identity was published widely as a result of being on the Merak boat, including in Sri Lankan media clippings and on Sri Lankan TV news. The appellant claimed that passengers on the Merak boat were imputed to be supporters of the LTTE and that a number of such passengers were tortured on having returned to Sri Lanka.

13    The appellant also made other claims to fear persecution based on his religion, ethnicity and the wealth of his family. It is not necessary to detail those claims.

14    At [51] of the Tribunal’s reasons for decision, the Tribunal rejected the appellant’s Merak claim stating that it had serious doubts about the appellant’s claimed presence on the Merak boat. However, more critically to the issues I need to determine, in dealing with that claim the Tribunal made an erroneous finding, accepted by the Minister to have been erroneous, to the effect that the appellant had falsely claimed that whilst on the Merak boat he had registered with the International Organisation for Migration (IOM). The Tribunal erred in this respect because in the appellant’s entry interview, the appellant specifically said that he had contact with the IOM and that he had provided to the IOM his name and address. The Tribunal regarded the claim as a matter of recent invention and stated that it raised “serious doubts” about the appellant’s credibility.

15    The Tribunal’s erroneous finding (erroneous credit finding) was made at [51] of its reasons as follows:

The Tribunal also notes the applicant claimed for the first time during the hearing that he registered himself with IOM and they have all the details that he was on the boat. Despite the applicant's insistence that he had mentioned this before this hearing, the Tribunal finds that the applicant had not previously raised registering with IOM but had instead spoke [sic] about approaching UNHCR in Indonesia for assistance and that his delay in mentioning this raises serious doubts about his credibility.

16    The basis for the Tribunal’s error has not been identified but the context as well as the definitive way in which the Tribunal expressed its finding suggests that the Tribunal (wrongly) believed that its finding was supported by the documentary record before it.

17    On the appeal, the appellant did not take issue with the Tribunal’s rejection of the Merak claim or the primary judge’s conclusion that the Tribunal’s erroneous credit finding could not have altered the Tribunal’s ultimate conclusions in relation to that claim, which included a conclusion that even if the appellant would be identified by Sri Lankan authorities as a passenger on the Merak boat, the chances of the appellant being consequently seriously harmed were remote. The appellant’s reliance on the erroneous credit finding was solely based in his contention that the primary judge erred in rejecting the proposition that the erroneous credit finding tainted or contaminated other findings made by the Tribunal which led to the rejection of other claims of feared persecution made by the appellant.

18    The appellant contended that the erroneous credit finding was important or critical to the Tribunal’s decision, not because whether or not the appellant had registered with the IOM was of itself important, but because that issue caused the Tribunal to have what the Tribunal referred to as “serious doubts about [the appellant’s] credibility”. The appellant contended that these “serious doubts” must have contributed to the assessment and rejection of the credibility of the appellant and, because of that rejection, they ultimately contributed to the Tribunal’s rejection of core parts of the appellant’s case.

19    The appellant contended that the damage caused to the appellant’s credibility by the erroneous credit finding was irrevocable and permeated the Tribunal’s decision. He contended that, in essence, the primary judge was wrong to have treated the Tribunal’s erroneous fact finding and its consequent “serious doubts about his credibility” as confined to the Merak claim and “hermetically sealed” from the Tribunal’s findings on other grave questions.

20    In response, the Minister essentially supported the approach taken by the primary judge. The Minister correctly noted that the present issue concerned the impact, if any, of the erroneous factual finding. The Minister contended that the erroneous factual finding did not impact on any other credibility finding made by the Tribunal beyond that made in relation to the Merak claim. It was submitted that the Tribunal assessed and accepted or rejected each of the claims made by the appellant discreetly and individually and that each claim was accepted or rejected based on the material specific to that claim. The Minister also submitted that it is “instructive to consider where the Merak boat claim was dealt with in the Tribunal’s reasons” and noted that the Tribunal had only considered the Merak claim almost at the very end of its consideration of all of the claims made by the appellant. That order of consideration was said by the Minister to be instructive because it demonstrated that the Tribunal’s consideration of the critical claims – and in particular personal claims that would be more likely to turn on credibility – came before the Tribunal even mentioned, let alone relied upon, the issue about the registration with the IOM on the Merak boat.

21    Both before the primary judge and on the appeal, the appellant contended that the erroneous credit finding constituted a jurisdictional error because, in the making of that finding, the Tribunal had ignored material before it namely, the entry interviews dealing with the appellant’s interaction with the IOM. The appellant relied upon the observations made by Robertson J in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 and in particular the observation at [111] that the assessment of whether a failure to consider error is jurisdictional turns on “the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error”.

22    It is now well-accepted that the Tribunal may fail to discharge its statutory task in circumstances where it does not take into account cogent evidence that provides substantial support for an applicant’s case: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [13] (Bell, Gageler and Keane JJ); Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417 at [22]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ). That is especially so where the failure to consider the relevant material leads to a general finding as to a person’s credit: SZRKT at [119]-[120]; Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 at [55]-[56] (Katzmann, Griffiths and Wigney JJ).

23    These principles were not in contest either before the primary judge or on the appeal. What was in contest was whether the erroneous credit finding which involved ignoring the material in question was of sufficient importance to the exercise by the Tribunal of its function of determining the appellant’s application.

24    Critical, it seems to me, to the primary judge’s rejection of any jurisdictional error on the part of the Tribunal, was the primary judge’s conclusion at [36] that (i) at no point did the Tribunal “make a general statement about the appellant’s credibility generally” and that (ii) the Tribunal assessed the appellant’s “credit in respect of each claim, one by one”. To that end the primary judge also said that it was necessary to address the significance of “the Tribunal’s reasoning in relation to credit and where the relevant adverse credit finding fits into that reasoning”. On this basis, the primary judge seems to have accepted the Minister’s submission that due to the structure of the Tribunal’s reasons for decision, the Tribunal’s determination of other claims made by the appellant was demonstrated to have been immunised from contamination by the erroneous credit finding.

25    Having carefully considered the primary judge’s reasons and with respect to her Honour, it seems to me that the primary judge did err. The primary judge was wrong to proceed on the basis that the Tribunal had not formed a view about the appellant’s credibility generally. Further, the primary judge unduly relied upon the linear or compartmentalised structure of the Tribunal’s reasons as establishing the somewhat unrealistic proposition that the Tribunal had reasoned in a linear way on the issue of the appellant’s credibility. As the following authorities observe, despite the compartmentalised, issue by issue structure of a decision-maker’s reasons for decision, it is generally not realistic to assume that a decision-maker’s assessment of the credibility of a person formed by reference to one issue will be confined to that issue without any impact upon the decision-maker’s determination of other issues in relation to which the person’s credibility is relevant.

26    In SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [44]-[45], Lee J referred to the relevant authorities and made several important observations on findings of credit in the context of decision-making:

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.” The finding that the appellant had been deceitful about the hospital was plainly not an issue the Tribunal member had considered to be peripheral to assessing his creditworthiness.

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.

27    Those observations were endorsed by Beach J in DTN16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1525 at [51]. His Honour proceeded to observe at [52]:

… one must be cautious in taking the carefully expressed linear reasoning of the Tribunal and arguing that a later credibility finding in the sequence of the written reasons cannot have affected a credit finding earlier in the sequence. The logic, structure and flow of reasons does not necessarily dictate how in reality credibility findings on one aspect may or may not have consciously or subconsciously informed another aspect.

28    Similarly, Gleeson CJ made the following observations in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [14]:

Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. I do not think that the Tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him.

29    I respectfully agree with these observations as I did in BAU18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1169 at [23]-[24]. Although the primary judge was taken to some of them and stated (at [44]) that she accepted that “assessment of credibility is not necessarily linear”, with respect to the primary judge, I do not accept that the caution which the observations call for was here applied.

30    The primary judge should have appreciated from the Tribunal’s statement at [51] that it had “serious doubts about [the appellant’s] credibility”, was a statement about the appellant’s credibility generally. Properly understood, what the Tribunal there revealed was not its view about the reliability of the appellant in relation to one relatively insignificant event, but rather its view about the appellant’s honesty generally, given his preparedness to deliberately reconstruct an event and insist upon it as the truth. The Tribunal’s characterisation of what had occurred before it as raising “serious doubts” about the appellant’s credibility, seems redolent of the Tribunal’s view, expressed politely, that it had been deliberately lied to by the appellant.

31    It is unrealistic to think that the Tribunal first formed the view that it had been lied to in relation to the Merak claim when, towards the end of recording its reasons for decision, the Tribunal expressed its conclusions on that claim. It is more likely that, in a case where the credibility of the appellant was of general relevance, the Tribunal assessed all of the evidence probative of the appellant’s credibility and reached an overall impression before recording any of the findings it made where the appellant’s credit was relevant. It is unlikely that that impression would not have been significantly influenced by the Tribunal’s view that, on the Merak claim, the appellant had been prepared to deliberately reconstruct events. It was wrong, therefore, for the primary judge to have proceeded on the basis that the Tribunal had not formed a general view (as distinct from an issue-specific view) about the appellant’s credibility and that it had assessed the appellant’s credit in respect of each claim isolated from its assessment of the appellant’s credit in relation to another of his claims. That the Tribunal carried out its task in that manner is unlikely as a matter of common experience and is not demonstrated to be likely by the compartmentalised issue by issue ordering of the Tribunal’s reasons for decision.

32    For those reasons I find that the primary judge erred in assessing the importance of the erroneous credit finding to the Tribunal’s exercise of its function. However, the erroneous approach taken by the primary judge does not of itself demonstrate that the erroneous credit finding was important and that therefore the Tribunal made a jurisdictional error. It is necessary for me to reassess the Tribunal’s reasons in order to determine the extent to which the erroneous credit finding was important to the disposition by the Tribunal of the appellant’s claims. Such an assessment raises essentially a similar question raised by a materiality inquiry. At the least it may be said that the importance or seriousness of any error is a criterion which inherently includes an assessment of materiality, being an assessment as to whether there was a realistic possibility that the decision in fact made could have been different had the error not been made: see Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398 at [30]-[33].

33    Whilst the infectious nature of a credit finding must be firmly kept in mind, it is also necessary to acknowledge that an erroneous credit finding will not always determinatively contribute to and thus contaminate the exercise of a decision-maker’s function so as to deny the possibility of a different result.

34    First, it may be possible to say that the adverse overall impression formed by the decision-maker about a person’s credit would have been formed irrespective of the contribution made by the erroneous credit finding. To take a clear example, if a person has been legitimately caught out as a liar four times and illegitimately caught out on a fifth occasion, it may be possible to say that although all five instances were taken into account by the decision-maker, the four legitimate findings suffice to support the adverse impression formed and the fifth instance can therefore be regarded as superfluous, unnecessary and unimportant. Second, the finding said to be contaminated (the impugned finding) may be sufficiently strong and cogent to enable the inference that, although an erroneous credit finding may have infected the decision-maker’s general impression as to the person’s credit, the contribution made by the general impression was superfluous to the making of the impugned finding. This, I think, is the nature of the assessment made by Beach J in DTN16. Third, the adverse impression as to a person’s credit to which the erroneous credit finding has contributed may itself be unnecessary to the disposition of a claim because there is an independent basis for the decision-maker to have rejected the claim. By “independent” I mean a basis not reliant upon the person’s credibility. In this respect, as is here the case, it will be necessary to bear in mind that although an independent basis may be available to render an erroneous credit finding unimportant in relation to one claim, the erroneous credit finding may nevertheless have importance because of its impact on other claims in relation to which an independent basis for the resolution of that claim is not available.

35    The submissions of the parties on this issue were brief. The appellant contended that the erroneous credit finding was material to the Tribunal’s decision because the appellant’s creditability was essentially relevant to all of the findings made rejecting his claims. The Minister made the unparticularised submission that the Tribunal independently found cogent reasons for rejecting the claims made by the appellant.

36    The appellant’s primary claim was based on his assertion that he would be of interest to the Sri Lankan authorities because they suspect him of having connections with or having assisted the LTTE. The claim was based on the events which had occurred at the appellant family’s shop. Those events are broadly described in the Tribunal’s reasons at [26]. The appellant claimed that the family had a shop and a related store and that he was in charge of the store whilst his brother was in charge of the shop. He claimed that one day when he was out making a delivery, some men arrived in a white van and searched the store and discovered ammunition. He claimed that his brother was arrested by the men and taken away in the white van and is still missing. When asked what he thinks would happen to him if he returned to Sri Lanka, the appellant claimed that as he was in charge of the store and his brother was taken away he will be targeted next by the people who came in the white van.

37    The Tribunal assessed the appellant’s evidence about these events including:

(i)    the identity of the persons who came to the family’s shop (at [28]);

(ii)    whether those persons had a “dossier” on the appellant (at [29]);

(iii)    whether such persons had previously visited the family shop prior to the occasion when the appellant’s brother was abducted and what had occurred on those occasions (at [30]);

(iv)    what specifically had occurred on the day of the abduction namely, whether the appellant’s brother had told the men that the appellant was in charge of the store and what the appellant had told police when he visited the Pettah police station in search of his brother (at [31]);

(v)    what transpired when the appellant visited his local police station (at [32]-[33]);

(vi)    what inquiries were made about him by the authorities after he went into hiding (at [34]);

(vii)    the extent of the appellant’s involvement in the family shop and store (at [35]); and

(viii)    the circumstances in which the appellant was assisted in departing Sri Lanka (at [36]).

38    At [27] and again at [37] the Tribunal concluded that the appellant’s claims in relation to events at the family business and in particular that armed men took the appellant’s brother having found ammunition in a box at the store, were not “credible”. Read in context, it is clear enough that the Tribunal did not accept those claims because it did not believe that the appellant was truthful as to the underlying events in question. The Tribunal’s disbelief was based, as the Tribunal itself summarised its position at [27] and again at [37], on the evidence given in relation to the topics set out above being “vague, inconsistent and implausible”.

39    None of the findings of inconsistency relied upon by the Tribunal are particularly strong. They are each based on differences which the Tribunal perceived between the evidence or information given about an event by the appellant on one occasion as compared to the evidence given on another occasion. But none of the differences in question are stark and it was open to the Tribunal to have regarded each as explicable and not demonstrative of the appellant giving untruthful evidence. Further, the characterisation of some of the differences relied upon by the Tribunal as being inconsistencies is questionable.

40    For instance at [31], the Tribunal dealt with what occurred on the day the appellant’s brother was abducted. The first asserted inconsistency relied upon by the Tribunal was that in his statutory declaration the appellant claimed to have been told by an employee that his brother had been questioned during the abduction and had mentioned that the appellant was in charge of the store. The appellant said that he was not at the shop at the time of the abduction but the abductors had left a message that the appellant must report to the police when he returned. The Tribunal said that the appellant did not raise these matters at the hearing before it. For the reasons stated below in relation to ground 3, for the Tribunal to have regarded this omission as raising a discrepancy is questionable. The finding is weak. It is a finding which may not have been made if the Tribunal did not have an overall adverse impression as to the appellant’s credit.

41    In the same paragraph, the Tribunal made a further finding of inconsistency. It referred to the appellant’s claim at the hearing that after returning to the shop he went to a police station in Pettah to speak to the police. He told the police that he wanted to inquire into the abduction. In response, the police advised him that they were not aware of the incident and asked him to wait. The appellant said that he became worried that he would be taken in for questioning and left. However, in his statutory declaration the appellant claimed that when he made an enquiry as to his brother’s whereabouts the police advised him that no one had dropped off his brother at the station, that they had received no report of the incident and would contact him if they heard anything further. The appellant claimed that he continued to press the police for details about his brother’s abduction but the conversation became heated so he decided to leave.

42    In my view, the extent of the inconsistency found by the Tribunal is not substantial. The appellant’s accounts of what the police told him differ slightly, but in substance his evidence on both occasions was that the police told him that they did not know what happened to his brother. The reason given for his departure from the police station does differ slightly. However, the difference between the appellant saying that he was motivated by his fear of being taken in for questioning or that the motivation was because the conversation became heated is not substantial. It is not a strong basis for a finding that the evidence was discrepant and, again, the Tribunal may not have made that finding if it had a different overall impression as to the appellant’s credit.

43    At [32], the Tribunal dealt with the appellant’s claims about a conversation at his local police station after he enquired about his brother. The Tribunal found that at the hearing the appellant had omitted a fact stated in his statutory declaration that the police at the local police station had suggested that he was involved in terrorist activities and assisting the LTTE and threatened to arrest him. At the hearing the appellant said that when he explained “the situation” the police did not believe him and asked him to wait while they made enquiries. The appellant said whilst the police were inside he sensed that he might be taken into custody and ran away. When the difference was put to the appellant at the hearing, he said that he had already mentioned everything, that he was giving his evidence in a quick or brief fashion and that his mind was confused.

44    The Tribunal did not accept the appellant’s explanation. It found that he had altered his evidence deliberately in order to overcome the adverse finding previously made by the RRT in relation to the evidence he had previously given, that it was implausible that he would be allowed to leave the police station in circumstances where he was suspected of being involved in terrorist activities and supporting the LTTE.

45    The Tribunal relied upon this discrepancy arising from the omission in the evidence given at the hearing. For the reasons given in relation to ground 3, that, in the circumstances later explained, is not a strong basis for such a finding. Furthermore, the supposed discrepancy was explained by the appellant. The Tribunal disbelieved the explanation and instead arrived at a positive finding that the appellant’s omission was deliberate. It did so because, first, it found that the appellant appreciated the importance of providing a full response to the Tribunal’s questions and, second, it found that the appellant had a motive not to mention the material in light of the previous findings of the RRT that it was implausible.

46    The only basis given for the fact the appellant would appreciate the importance of giving full responses was that he had previously appeared before the RRT and that the Tribunal itself asked him “detailed questions”. Neither is a particularly compelling basis for the inference as I later explain in relation to ground 3. The Tribunal’s second claim that the appellant had a motive not to disclose those details was undermined by the fact that the Tribunal already possessed the information in the form of the reasons of the RRT. The appellant may have not mentioned those details simply because he was told by the Tribunal at the outset of the hearing and was aware that the Tribunal had that information and did not consider that he needed to repeat it, which was essentially the explanation that he gave when it was put to him. Another possible explanation is that the appellant did not want to provide that detail or draw attention to it, but that explanation for the omission is not particularly strong because the appellant knew that the Tribunal already had the information. It might be the case that the appellant knew that the Tribunal had the information but did not want to draw attention to it.

47    In any case, it was not a definitive instance of the appellant failing to tell the truth. The appellant was not caught in a lie before the Tribunal. The supposed discrepancy was explicable as I explain in relation to ground 3. The rejection of his explanation did not have an especially strong foundation.

48    Some of the other differences found by the Tribunal to be inconsistencies may be regarded as more cogent, but none of the differences relied on were stark and it was open to the Tribunal to have regarded each of the differences as explicable and not demonstrative of untruthful evidence particularly if the Tribunal had not had an overall adverse impression as to the appellant’s credibility.

49    Similar observations may be made in relation to the findings of implausibility made by the Tribunal. None of the evidence of the events in question was obviously or inherently implausible and each may have been accepted as plausible if the Tribunal had regarded the evidence as given by a person who was reliable and truthful.

50    The appellant is correct to contend that each of the adverse findings made by the Tribunal in relation to his primary claim were findings that relied upon the Tribunal’s assessment of his credit as a witness. There is, for the reasons given already, a firm basis for thinking that it is likely that the Tribunal’s view that it had been lied to in relation to the Merak claim, fed into and very substantially contributed to the Tribunal’s assessment of the appellant’s overall credit. The adverse findings made by the Tribunal in relation to the appellant’s primary claim are not sufficiently strong and cogent to enable the inference that, although the erroneous credit finding may have infected the Tribunal’s general impression as to the appellant’s credit, the contribution made by that general impression was superfluous to the making of the impugned finding. It is not possible to say that although the erroneous factual finding was taken into account, it was superfluous or unnecessary to support the adverse view of the appellant’s credit, which was utilised by the Tribunal in dismissing the appellant’s primary claim. For those reasons and because there was no alternative basis for the Tribunal’s rejection of the appellant’s primary claim, the erroneous factual finding was a serious error and of sufficient importance to the exercise of the Tribunal’s function to constitute jurisdictional error. That error was material to the rejection of the primary claim.

51    For those reasons the Tribunal’s decision must be set aside and the appellant’s application for a protection visa be reconsidered.

GROUND 3 – LEGAL UNREASONABLENESS/ILLOGICALITY

52    The essence of the appellant’s third ground was that the primary judge had erred by not identifying legal unreasonableness or illogicality because of the flawed reasoning of the Tribunal in relation to findings made at [28], [30], [31] and [32] of its reasons. In each case the impugned adverse finding was said to be based upon an inconsistency founded upon an omission. In other words, it was contended that each impugned finding was based upon the appellant omitting some of the detail in recounting at the hearing an event that had previously been recounted by the appellant on an earlier occasion. The illogicality or unreasonableness was said by the appellant to arise out of the Tribunal’s expectation that a full account of all of the detail would be provided by the appellant at the hearing in circumstances where, at the outset of the hearing, the appellant was told by the Tribunal that the Tribunal had his earlier accounts of events and would look at them.

53    In relation to the finding impugned at [28] the appellant has misconstrued the finding of inconsistency as reliant upon an omission. It is not. The inconsistency there identified by the Tribunal is not based on what was not said at the hearing but, instead, it is based on the difference between what was said at the hearing and what the appellant had previously said.

54    The same can be said in relation to the impugned finding at [30]. The appellant’s counsel ultimately accepted that this was not an instance of an inconsistency based upon an omission.

55    I turn then to [31]. That paragraph deals with two events which are recounted at [40]-[41] above. The second event addressed in relation to what happened at the Pettah police station is also not an inconsistency based upon an omission of detail given at the hearing. In relation to the first event dealt with at [31] (see [40] above), I accept that the inconsistency found by the Tribunal is based upon an omission.

56    Paragraph [32] deals with an event dealt with above at [43]. The Minister contended that the inconsistency or discrepancy found by the Tribunal was not based upon an omission. It was contended that the finding of inconsistency was based upon the appellant telling a different story at the hearing. Namely, that rather than the accusations made by the police motivating the appellant’s departure he departed because he himself started to have some doubts and fears as he sat outside the police station.

57    That contention involves some gloss on the Tribunal’s description at [32] as to what the appellant had stated at the hearing. In any event, it seems to me that read as a whole and properly construed the “discrepancy” relied upon by the Tribunal at [32] was what the Tribunal itself identified as an omission namely, that at the hearing the appellant did not say that the police “started abusing him that he had been involved in terrorist activities and was assisting the LTTE and that they threatened to arrest him”.

58    I accept, therefore, that on two occasions the Tribunal found an inconsistency or discrepancy in the evidence given by the appellant founded upon what the appellant did not say in giving his account of an event at the hearing. However, I do not accept that the appellant has established legal unreasonableness or irrationality.

59    It is not irrational to reason that two accounts of the same event are inconsistent because the later account omits some of the material detail of the event which had been recounted on the earlier occasion.

60    It may, however, be at least unfair to characterise the latter account as involving an omission, in circumstances where the witness is told by the decision-maker at the outset of a hearing that the decision-maker has all of the detail given on the prior occasion about the event and the decision-maker’s expectation that the witness recount the event in all of its detail, is not made clear to the witness.

61    The transcript of the hearing before the Tribunal shows that at the outset of the hearing the appellant was not told that he should provide a comprehensive account of the events he relied upon. Instead, the following exchange occurred (emphasis added):

Member (M): The tribunal will have regard to the evidence that you provide today in addition to the evidence that you have provided to the Department and to the first Tribunal.

Interpreter (I): You had a first review before, after that, in today’s hearing you can affirm your argument by giving more documents if you have. Understand? She is telling you can say more today. Understand?

…

M: For this reason, I do have before me all the information you did provide to the department of immigration as well as to the first Tribunal and to this Tribunal.

I: The first review ah ah the one gave to the Federal Minister. Previously you gave to the Department of immigration. In this review you have provided all that information and she is going to give the decision looking all these.

M: What I will be doing today is asking you a number of questions, trying to get as clearer picture of your circumstances as I possibly can.

I: What I am going to do today is, I am going to ask some questions. By asking the question I need to prepare a good picture of you. You need to tell who you are and what had happened. Question answer. Question answer.

62    There are concerning discrepancies between what the Tribunal said and the apparently flawed way in which that was interpreted by the interpreter. Nevertheless, I accept that it is likely that the appellant understood that the Tribunal had all of the information he had previously provided in relation to his application and would take that into account and that at the hearing he could say more. He was also told he needed to tell the Tribunal “what had happened”.

63    The Minister relies upon the following statement made by the Tribunal as demonstrating that it was made clear to the appellant that it was important to tell the Tribunal all of his story and not leave anything out:

M: I’m a bit unclear as to why you think that you need to say it in a quick fashion, I’ve asked a lot of very detailed questions and I’ve kept asking questions and really I’ve explained to you at the beginning of the hearing how imp…and you are aware of this seeing that you’ve been through a hearing already, how important it is that you provide detailed information and answer the Tribunal’s questions. So, I have difficulty with your explanation that this is as a result of you providing quick answers.

64    However, that statement was made by the Tribunal after the appellant had given his answers and as part of the Tribunal’s rejection of the appellant’s explanation for why his answers had not been fulsome. It is notable also that in rejecting the appellant’s explanation, the Tribunal seems to have begun to suggest that the appellant had been told at the beginning of the hearing how important it was for him to give a fulsome account but then withdraws mid-sentence and instead says that the appellant should have been aware of how important it was to provide detailed information “seeing that you’ve been through a hearing already”.

65    It does not necessarily follow that because the appellant had had the experience of a previous hearing he was aware that he was required to give a fulsome account of each of the events he relied upon. That all depends upon how the previous hearing was conducted including what the appellant had been told.

66    It seems clear enough that rather than relying upon questionable assumptions as to what may have occurred at the RRT hearing, the Tribunal should have made it clear to the appellant at the outset that although the Tribunal already had his previous accounts, it was nevertheless important that he provide all of that information again in a fulsome manner. The failure of the Tribunal to do that serves to undermine the strength and cogency of the findings of inconsistency made by the Tribunal which relied upon an omission at the hearing. That is because the omissions are explicable in the circumstances in which they here occurred.

67    Although those findings are weak, the making of them does not constitute jurisdictional error because of irrationality. The flawed fact finding process by which they were made is better characterised as jurisdictional error of the kind made good under the first ground of appeal.

68    Under ground 3, the appellant also sought to raise a new argument not raised before the primary judge for which this Court’s leave is required.

69    The essence of the new ground as put in the submissions of the appellant, is that the Tribunal’s rejection of the appellant’s claim that his brother was abducted was based on “concerns” not logically probative to found the rejection of the claim. The “concerns” referred to were the findings of inconsistency made by the Tribunal.

70    I reject the contention that inconsistent evidence as to the events relating to the claimed abduction are not logically probative of whether or not that claim should be accepted. I think that the appellant is here really trying (at a high level and without providing full particulars), to contest the findings themselves rather than the deployment of them by the Tribunal as probative on the claim that the appellant’s brother was abducted. I refuse leave to raise this new ground.

CONCLUSION

71    The appellant’s success on ground 1 requires that the orders made by the primary judge be set aside, the Tribunal’s decision be set aside and that the appellant’s application for a protection visa be reconsidered by the Tribunal differently constituted. It further follows that the Minister should pay the appellant’s costs of the appeal. I will make orders to that effect.

Associate:

Dated:    15 December 2022