Federal Court of Australia

BUZ20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 349

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    Subject to order 3 below, the appellant pay the first respondent’s costs of the appeal, such costs to be taxed if not agreed.

3.    The parties may apply by giving written notice to the Court by 4.00pm on 26 April 2023 to set aside or vary the order as to costs.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The appellant appeals orders of the Federal Circuit Court of Australia made 17 December 2020 by which his application for judicial review of a decision of the Immigration Assessment Authority was dismissed: BUZ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3398. The appellant did not file a notice of appeal within the 28 day period prescribed by r 36.03(a) and brought an application for an extension of time. At the commencement of the hearing of the application, and after reviewing the parties’ written submissions and hearing from counsel for the Minister, I made orders granting an extension of time, and the hearing of the appeal then proceeded.

2    The appellant advances one ground of appeal, namely that the primary judge erred in failing to find that the Authority’s decision to affirm the rejection of his application for a protection visa was affected by illogicality arising from its use of the contents of the record of the appellant’s entry interview in assessing the credibility of the appellant’s claims for protection. The appeal invites attention to the principles essayed by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [125]-[131] (SZMDS), their expression in subsequent decisions, and their application in this Court to challenges to decisions by tribunals on the ground of jurisdictional error in making findings as to credit.

3    The appeal is an appeal by way of re-hearing where, given the nature of the proceeding, the primary judge enjoyed no relevant advantage over this Court. An appeal by way of re-hearing requires a real review of the decision of the primary judge. If upon such a review this Court comes to a different view from that taken by the primary judge, then error will have been shown, and this Court must correct the error by giving effect to its conclusions.

Background

4    The appellant is from Sri Lanka. He arrived in Australia on 18 October 2012 when he was 17 years of age.

(1)    The entry interview

5    On 8 December 2012, the appellant participated in an “entry interview” conducted by an officer of the Department at Christmas Island. Information provided by the appellant at the entry interview was recorded in a form signed by each of the appellant, a Tamil interpreter, a responsible adult who was present at the interview, and the interviewer. The entry interview form records that the interview was undertaken in slightly less than one hour, and that the topics covered were wide ranging in subject-matter. The entry interview form is similar to that described by Moshinsky J in Minister for Home Affairs v AYJ17 [2019] FCA 591; 165 ALD 64 (AYJ17) at [11]-[12] including that it was divided into three parts.

6    Part A of the entry interview form set out “Important Information” which the appellant was recorded as acknowledging. That information stated that the interview would be recorded, that the interview was an opportunity to provide any reasons why the appellant should not be removed from Australia, and that if the information the appellant gave at any future interview was different from the appellant then told the interviewer, this could raise doubts about the reliability of what the appellant said. The “Important Information” concluded with the questions, “Do you understand what I have said?” and “Do you understand the interpreter?”, each of which had a tick against it in the box marked “Yes”. In the absence of other evidence, I infer from the form that the interviewer read the information to the appellant, which was then interpreted for him, and that the appellant acknowledged that he understood what was said, and that he understood the interpreter.

7    Part B of the entry interview form recorded that the appellant was asked about his address history. His most recent address was that of the family home from birth to September 2012. Consistently with this information, no previous address was recorded, with the relevant boxes being left blank. To the question “Have you lived anywhere else?”, the appellant’s response was recorded as “No”. Part B of the entry interview form also recorded that the appellant was asked about his educational history. The responses were that from age 6 (approximately 2001) to 2011 the appellant had attended a particular school, and that he achieved “O Level” at secondary school level. The appellant was asked about his employment history. The appellant was recorded as responding that from 2010 to September 2012 he was employed by his father at the family’s farm in Jaffna, assisting with his father’s vegetable garden.

8    Part C of the form records the following as the first question –

Why did you leave your country of nationality (country of residence)?

9    The appellant’s response was recorded as –

My brother is missing, my mother was worried about me, so she sent me here.

10    The next question was –

Have you or any members of your family been associated or involved with any political group or organisation?

11    The appellant’s response was recorded as “No”.

12    Further on, the following question numbered 6(b) was recorded in the form –

Did the police and security or intelligence organisations impact on your day to day life in your home Country?

13    The appellant’s response was recorded as “Yes” with the following details –

My brother who is missing had a lot of problems in his life. The CID were after my brother, people were telling the CID things about him - they were ‘dobbing him in’ to the CID.

14    I interpret the reference to CID in the above response as being to the Criminal Investigation Department, being an agency of the Sri Lankan government which was referred to in the delegate’s reasons.

15    The appellant was asked when and how he left his country of origin. His recorded response included stating that he left home, travelled 6 ½ hours to reach Colombo, stayed at a lodge for 6 to 7 days, following which he was picked up with three others and taken to a port where he embarked on a small boat before later transferring to a larger boat in which he travelled directly to Australia.

16    In response to a question concerning what he thought would happen to him if he were to return to his country of nationality, the appellant was recorded as stating, “They would put me in prison”.

(2)    The protection visa application

17    In December 2015, the appellant was notified that the Minister had exercised power under s 46A(2) of the Migration Act 1958 (Cth) to lift the bar and allow him to lodge a valid application for a protection visa, and he was invited to do so. Subsequently, by an application dated 27 April 2017 the appellant applied for a Safe Haven Enterprise visa. The application was submitted to the Department on the appellant’s behalf by a migration agent. The application stated that it was completed with the assistance of the migration agent and was read back to the appellant in his own language. The application included a personal details form. There were a number of hand-written answers that the appellant gave to written questions in the form that related to his previous addresses, his reasons for leaving Sri Lanka and to his fears of harm if he were to return.

18    At question 81, the appellant was asked to give all details of previous addresses where he had lived in the last 30 years. The appellant gave one address from birth to 2011 in Sri Lanka, and made four entries relating to addresses in Australia, including detention centres, from 2012.

19    At question 84, the appellant was asked about his employment history. He identified one job in Sri Lanka, being a worker on a farm in Jaffna. He identified another job as being one that he held in Australia from 2014 up to the time that the form was completed.

20    At question 85, the appellant was asked about his education, in response to which he stated that from 2000 to 2011 he attended primary school and high school in Sri Lanka from which he withdrew.

21    The appellant was asked a number of questions about his reasons for claiming protection. The appellant’s answers to those questions included the following –

89.    Why did you leave that country (or countries)? Provide specific details

I left my country because of the civil war in Sri Lanka, especially in my home town Jaffna, and my life was threatened. Many civilians (males) were [secretly] taken away. My brother was arrested and taken away. He was returned home. My parents were so scared that I would be the next one to be taken away.

90.    What do you think will happen to you if you return to that country (or countries)?

I have been told that the local authorities had been looking for me. They threatened to arrest and jail me if I return home.

…

95.    Do you think the authorities of that country (or countries) can and will protect you if you go back?

No     Give detail about why you think the authorities could not, or would not, protect you

Because they are the ones who threaten me and my family. My brother was arrested and taken away.

…

96.    Do you think you would be able to relocate within that country (or countries)?

No     Give details about why you are unable to relocate

No. My family was suspected of being against the authorities.

22    By letter dated 2 June 2017, the Department advised the appellant and his migration agent that when the appellant lodged his application he did not submit a detailed “Statement of Claims”. The Department stated that the appellant was required to provide all the details about why he was seeking protection and, wherever possible, to provide documentation to support the claims.

(3)    The statutory declaration

23    Subsequently, on 9 November 2017 the appellant’s migration agent submitted to the Department by email a statutory declaration of the appellant made 3 November 2017 “regarding the reasons as to why he applies for a Protection visa”. By the statutory declaration, the appellant stated (inter alia) –

…

THAT:    The reason I came to this country (Australia) because of the war and problems I was faced in my country.

THAT:    The incident happed when my second brother went to the puberty ceremony function of my aunt’s daughter in a different district of ours.

THAT:    A few days after my brother left home the war began and the roads were closed and my brother could not return home.

THAT:    All efforts were made to look for my brother but failed. The army started to investigate our family members. They suspected my brother was on the LTTE’s side that was against the army. Every one of our family was tortured including me a young boy. They questioned me about my brothers’ whereabouts. I told them I did not know – all I knew was my brother went missing. They beat me and threatened to harm me if I could not show them where my brother was hiding.

THAT:    My father was so scared of them. My father was worried that they would take [me] away like they had to many other young men in the village.

THAT:    That had been the reasons as to why my father had organized for me to get away from my country. He told me he had lost my brother and he did not want to lose another son.

…

(4)    The protection visa interview

24    On 5 September 2019, the appellant attended an interview before the delegate of the Minister responsible for considering his protection visa application. The appellant’s attendance at the interview was in response to a request in writing dated 22 August 2019. That invitation stated that “the interview is for the purpose of obtaining more information about your application”. There is no direct evidence before the Court of the complete content of the protection visa interview. The references to the interview in the respective reasons of the delegate and the Authority are the best evidence of the interview.

The delegate’s decision

25    The delegate determined to refuse the appellant’s application for a protection visa. Amongst other things, the delegate stated that it appeared that the appellant had exaggerated aspects of his claims in relation to his profile with the Sri Lankan authorities in order to strengthen his overall claims. There were two aspects of the appellant’s claims that attracted the delegate’s attention. First, the delegate referred to the appellant stating during the course of his protection visa interview that his brother was specifically involved in the transportation of weapons for the LTTE and that his mother’s four brothers were LTTE combatants. The delegate stated that she put to the appellant during the interview that he had not raised the specific nature of his brother’s involvement, or his uncles’ involvement with the LTTE during his 2012 arrival interview. Although the delegate used the term “arrival interview” throughout her reasons, it is reasonably clear that by this term the delegate was referring to the appellant’s “entry interview”. The appellant’s response was that he was warned about being truthful about involvement in the LTTE as it would cause problems with the Department of Home Affairs. The delegate stated that this explanation would appear reasonable if the appellant had later disclosed the association in his written application for a protection visa, and that the appellant had not provided a reasonable explanation for why that level of detail was omitted from his protection visa statement of claims, which I take to be a reference to the appellant’s statutory declaration dated 3 November 2017.

26    The second issue that attracted the attention of the delegate was the delegate’s view that the appellant had provided inconsistent information in relation to his address history. The delegate stated that during the protection visa interview the appellant said that he had managed to avoid questioning by the authorities when he lived away from his family home. He stated that he had spent one year in Colombo living and working for a friend of a friend in a shop. The appellant also stated that he had lived for a period in a town about 20 to 25km from his family home for approximately one year to avoid the authorities. The delegate raised with the appellant during the interview that he had not disclosed these changes of address in either his 2012 “arrival interview”, or his written application for a protection visa. The delegate stated that she took into account the fact that the appellant was a minor at the time of his arrival interview, and that this may have impeded his ability to give a detailed and accurate account of his claims. However, the delegate stated that this did not explain why the appellant did not disclose the address history in his written protection visa application or his statement of claims.

The Authority’s decision

27    The appellant’s application was referred to the Immigration Assessment Authority pursuant to s 473CA of the Migration Act. The task of the Authority was to consider the appellant’s application for a protection visa afresh and to determine for itself whether or not it was satisfied that the criteria for the grant of the visa were met: s 473CC(1); Plaintiff M174 2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [17] (Gageler, Keane and Nettle JJ). The Authority affirmed the delegate’s decision to refuse the appellant a protection visa. As with the delegate, the Authority formed an adverse view in relation to the credibility of some of the appellant’s claims. While the Authority accepted that the appellant’s brother went missing in around 2006, the Authority expressed significant credibility concerns in relation to the appellant’s claims as to the involvement of his brother and other relatives in the LTTE, and the problems that he and his family encountered.

28    At [3] of its reasons, the Authority summarised the appellant’s claims for protection as follows –

•    He is a Tamil and Hindu, born in 1995, and is from Jaffna.

•    One of his brothers went missing in about 2006. His brother later joined the Liberation Tigers of Tamil Eelam (LTTE). His mother’s siblings were also in the LTTE.

•    From about 2007, the army officers would frequently take members of his family including his father, his eldest brother and himself to the army camp and question them about the whereabouts of his brother. They were severely beaten up.

•    He hid in a relative’s place in another part of Jaffna for about one year.

•    Prior to his coming to Australia, to avoid the problems, he was in Colombo for about a year, working as a shop assistant.

•    He fears harm due to his imputed LTTE profile and his illegal departure from Sri Lanka

29    This summary was evidently an amalgam of different representations made by the appellant, largely during his protection visa interview: there was no written statement by the appellant that expressed his claims for protection in this way. I say this because the appellant did not lodge a statement of claims with his protection visa application, and when this was drawn to his attention he responded by sending the statutory declaration made on 3 November 2017. The statutory declaration was treated by the delegate as constituting the appellant’s statement of claims. However, the statutory declaration did not make any reference to the matters identified in the second to fifth bullet points set out above. The delegate’s reasons referred to the appellant stating at the protection visa interview that his missing brother was involved in transporting weapons for the LTTE, and that his mother’s four brothers were combatants for the LTTE. The reasons of the Authority refer at [8] to claims by the appellant that because his brother had been in the LTTE, he and his family members had faced constant problems (including being repeatedly detained, interrogated and beaten) from the Sri Lankan authorities, in particular the army officers from a camp next to his house. At [21], the Authority referred to statements made by the appellant at the protection visa interview that there were two army camps adjacent to his house, and that a high ranking army officer would visit the family about once per month and take members of his family in for questioning.

30    At [13], the Authority referred to a claim made by the appellant at his protection visa interview that, due to the problems that he faced, he went to stay with a distant relative, also in Jaffna, about 20 kilometres away from his home for about one year when the war was getting intense around 2009. The Authority also referred to a claim by the appellant that he stayed in Colombo for about one year before he came to Australia, working in a tech shop for a friend of his mother’s friend. The Authority stated that when it was put to the appellant (by the delegate) that he did not mention that he had lived in other places in his entry interview, he replied that he was not used to formal interviews and did not know what to say because he was scared. When the delegate again put to him that he did not mention this in his visa application or in the statutory declaration, he responded that he had forgotten lots of things that had happened.

31    The Authority did not consider the appellant’s key claims for protection to be credible. The Authority stated at [8] that it considered the appellant’s claims with respect to his brother and the problems he and his family faced had “ballooned considerably” since his arrival in Australia in 2012. The Authority picked up its concerns at [16] of its reasons, stating that it had significant credibility concerns as to the appellant’s claims as to the involvement in the LTTE of his brother and other relatives, and the problems that he claimed he and his family encountered.

32    The Authority’s path of reasoning to its conclusions included [17], to which much attention was directed by counsel for the appellant during the course of submissions at hearing of the appeal –

I accept that the applicant came to Australia young at the age of 17 years old. I have taken into account that he was not used to official interviews and might have been scared or nervous. I also take into account that the entry interview is not intended to substitute for a protection visa application or interview and that he did not receive assistance from a migration agent then. On the other hand, I note that applicant was able to give considerable details about other matters, such as his family composition, his schooling and his trip to Australia. He even mentioned that the UNHCR provided books to his school. The applicant has 11 years of education. The entry interview took place one and a half months after he arrived in Australia. He also attended the entry interview under the company of a responsible adult. I am not satisfied his reasons could explain that he did not mention that he worked in Colombo immediately before he left Sri Lanka if that was his last work experience or that he last lived in Colombo, as he was specifically asked his last address and if he did any other work. In particular, in respect of his trip to Australia, he stated that he ‘left home’ and travelled for about six and a half hours before he reached Colombo and that he stayed at a lodge in Colombo for six to seven days. Even accepting that he might be scared to mention his brother or relatives’ LTTE involvement, I consider it significant that the applicant did not mention that he and his family faced any harm due to his brother’s disappearance as he later claimed. He said that ‘they would put him in prison’ in answering the question as to why he could not return to Sri Lanka. His reasons for leaving Sri Lanka was said that his mother was worried about him because his brother was missing and that his brother was the one ‘had a lot of problems in his life’ and ‘CID’ were after his brother.

33    There were four aspects of the information that the appellant provided at the protection visa interview that bore adversely on the credibility of his claims.

34    The first issue was the reference to the involvement of the appellant’s brother and of his mother’s brothers in the LTTE. The Authority stated at [18] that it was not insignificant that the appellant did not mention this at the time of his visa application in April 2017, or in his statutory declaration of November 2017, which the Authority stated was prepared with the assistance of a migration agent.

35    The second issue was the appellant’s statements in his protection visa interview before the delegate that he was in Colombo for about one year before he commenced his trip to Australia in May 2012. At [18], the Authority considered that this claim was not consistent with statements by the appellant in his visa application that he had lived at one place in Jaffna from birth until he left Sri Lanka and that he worked in his home town, which was consistent with the information that he had provided during his entry interview. The Authority also considered at [19] that the appellant’s statements at the protection visa interview that he had been in Colombo for about one year prior to leaving Sri Lanka, and that he could not continue his studies because of the problems that he faced, were not consistent with statements in both his entry interview and in his visa application that he attended school in Jaffna from 2000 to 2011, or with the appellant’s national ID card that was issued in October 2011, and which identified him as a student and that his address was in Jaffna.

36    The third issue was that the Authority considered that the appellant had provided differing evidence as to what happened to his brother before he disappeared. The Authority at [20] referred to the information provided by the appellant at his entry interview where he stated that his brother had a lot of problems and that the CID were after his brother. The Authority referred also to what the appellant stated in his visa application form where he stated that his brother was “arrested and taken away”, and compared this to later statements made in his statutory declaration and in his protection visa interview.

37    The fourth issue was that at [21] the Authority expressed reservations about the appellant’s claims made during the protection visa interview in relation to the extent to which the appellant and his family were mistreated by the authorities. The Authority questioned why, given the level of harassment and physical harm that the appellant claimed, the appellant’s family could not have moved houses, thereby avoiding living in a house that was next to, or surrounded by army camps.

38    On those aspects of the review that are relevant to this appeal, the Authority expressed its conclusions at [22], which I summarise as follows –

(a)    the Authority accepted that the appellant’s brother went missing in 2006;

(b)    the Authority was not satisfied that the appellant’s brother had actual involvement in the LTTE or was suspected of such;

(c)    the Authority was not satisfied that the Sri Lankan authorities imputed the appellant or his family members with LTTE links or that he and any of his family members faced any harm due to the disappearance of his brother;

(d)    the Authority was not satisfied that the appellant’s mother’s siblings were involved in the LTTE.

(e)    while the Authority was willing to accept that the appellant may have been subject to road check-ups or occasional harassment due to the strong army presence for being a young Tamil male while he was in Sri Lanka, it was not satisfied that he was singled out or harmed because he was considered a LTTE family member;

(f)    the Authority found that the appellant continued his schooling until he finished his “O Levels” and continued to live at his home following his brother’s disappearance for about five years until he left Sri Lanka, as did his family members, who were now still living in the same residence;

(g)    the Authority was not satisfied that the appellant or his family members had ever come to the adverse interest of the authorities or anyone else in Sri Lanka due to his brother’s disappearance; and

(h)    the Authority was not satisfied that the appellant was of any adverse interest to the authorities or anyone before he departed Sri Lanka, and did not accept that the authorities had been looking for the appellant since he left Sri Lanka.

The primary judge’s reasons

39    The appellant applied to the Federal Circuit Court of Australia (as it was then known) pursuant to s 476 of the Migration Act for judicial review of the Authority’s decision. The primary judge dismissed the application. The primary judge’s reasons for judgment (J) were detailed. As with the ground of appeal before this Court, the grounds of review before the primary judge raised for consideration whether the Authority fell into jurisdictional error by making a finding as to credibility on a basis that was illogical. In particular, the appellant claimed that the Authority irrationally and illogically placed weight on the omission of information by the appellant at the entry interview.

40    The primary judge rejected this claim. His Honour referred to the four occasions on which the appellant provided information to officers of the Department, namely: (1) at the entry interview; (2) the protection visa application; (3) the statutory declaration; and (4) the protection visa interview by the delegate. His Honour addressed the submissions made on behalf of the appellant in relation to [17] of the Authority’s reasons, which I set out above. His Honour at J[115] did not accept a submission that the Authority had made only tokenistic reference to the appropriate limits to be placed on the use of information given at the entry interview. His Honour held at J[99]-[100] that the whole of the Authority’s reasons had to be fairly read, and that the appellant’s young age, his lack of familiarity with formal interviews, and his fright and nervousness, were objectively self-evident and were recognised by the Authority. His Honour stated that the Authority’s reasons at [17] expressly recognised the caution appropriate to be adopted in relation to the use of entry interviews, and that they were not a substitute for either the content of the protection visa application or the protection visa interview.

41    The primary judge identified other aspects of the information provided by the appellant in his protection visa application and his statutory declaration upon which the Authority relied to support its conclusion that several of the appellant’s claims lacked credibility, and at J[104] identified the Authority’s reliance on the appellant’s account of his schooling in his entry interview and his protection visa application, compared to his account in his protection visa interview by the delegate. At J[106] to [108] the primary judge addressed the Authority’s consideration of the appellant’s account in the protection visa interview concerning problems that his family had encountered following his brother’s disappearance in 2006. His Honour held at J[115] that the rejection of the credibility of the appellant’s claims was not based solely on the entry interview. His Honour held that the Authority’s reasons identified in a cogent way how the appellant’s claims had evolved, and held at J[116] that the Authority’s conclusion that it was not satisfied that the appellant a well-founded fear of harm arising from any harm said to have befallen the appellant or his family following the disappearance of his brother in 2006 was not illogical or irrational in the sense necessary to establish jurisdictional error.

Entry interviews and legal unreasonableness

42    Before turning to the parties’ submissions, in order to set their context I will refer to some authorities concerning the treatment of information given in entry interviews by decision-makers involved in determining applications for protection visas.

43    In MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; 239 FCR 436 (MZZJO) the Full Court (North, Bromberg and Mortimer JJ) dismissed an appeal from a decision which had held that a conclusion that the appellant had contrived his claims was well open to the Refugee Review Tribunal. The Tribunal’s conclusion was based upon inconsistencies that it identified between the appellant’s various accounts, and upon his failure to mention certain matters at his entry interview. In relation to a failure of an applicant for a protection visa to mention matters at an entry interview, the Full Court stated at [56]-[57] –

56    … some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling”. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.

57    Had the Tribunal relied only on a failure to mention details at the entry interview, we may have been inclined to see this as involving a misunderstanding of its task on review. However, the Tribunal relied on inconsistencies arising from information presented by the appellant after the entry interview as well, including inconsistencies between the delegate interview and what he said to the Tribunal, and the somewhat inexplicable reluctance of the appellant to have his childhood friend, who arrived on the same boat, give evidence to corroborate aspects of his account. We consider its approach was open to it as a merits decision-maker, and the Federal Circuit Court was correct to so find.

44    In AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 (AVQ15) at [26]-[27], the Full Court (Kenny, Griffiths and Mortimer JJ) gave guidance to decision-makers in assessing inconsistencies between statements made by applicants for protection visas at different stages of the process –

26    … the term “inconsistency” should be used with appropriate caution and an appreciation of the danger of using labels or formulae which mask the need for deeper analysis. As we have noted above, adverse credibility findings might be based on a variety of matters, including inconsistencies between, for example, evidence or claims made at different stages of the decision-making process or differences between oral evidence and contemporaneous documents. In some circumstances a visa applicant may raise a claim for the first time at an advanced stage of the decision-making process and the failure to raise the claim previously may well be relevant to credibility, but that is not to say that this is correctly described as an inconsistency.

27    … even where it is reasonably open to find that a person has given inconsistent evidence, the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it. This requires consideration of, for example, the significance of the inconsistency having regard to the person’s case as a whole and whether the inconsistency is on a matter which is central to the person’s case or is at its periphery and involves an objectively minor matter of fact. It also requires the decision maker to remain conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given. Consideration should also be given to whether there is an acceptable explanation for the person having given inconsistent evidence such that the fact of the inconsistency should attract little, if any, weight. How all these matters are weighed and evaluated in a particular case is a matter for the decision-maker, but a failure by the decision-maker to appreciate the particular nature of the task, or to perform it reasonably and fairly, may be the subject of judicial review.

45    The decision in AQV15 was referred to by the Full Court (Griffiths, Mortimer and Steward JJ) in ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271, which provided further guidance in relation to the assessment of differences in accounts by applicants for protection visas –

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

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

The effect of inconsistencies

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

45    It is also worth recalling that complete consistency in a narrative or an account of events, especially traumatic events, or events occurring some time ago, may in some circumstances be probative of a lack of credibility. There may come a point at which a person’s narrative of past events is too complete, making no allowance for the imperfections of human observation and memory, and that may in itself demonstrate lack of reliability or credibility. This is a further illustration of why, as the Full Court said in AVQ15, where a person has been required to give more than one account or narrative of events, often separated by considerable periods of time and circumstances, care needs to be taken in weighing and assessing the probative value of various accounts.

46    Counsel for the appellant placed particular reliance on the decision of Moshinsky J in AYJ17. As I mentioned at [5] above, the entry interview form in evidence in the present case is similar to that described in AYJ17 at [11]-[12]. In AYJ17, there was both an arrival interview, and later an entry interview which occurred on different dates. Moshinsky J upheld the decision of the primary judge that for the Authority to make an adverse finding against the respondent to the appeal because he did not identify all his protection visa claims at an arrival interview, which was not designed or intended to elicit information about his protection visa claims, was legally unreasonable. Moshinsky J held at [41] that it was illogical or irrational in the sense described by Crennan and Bell JJ in SZMDS for the Authority to reject an aspect of the visa applicant’s claim regarding his brother’s death on the basis that he did not mention it at the arrival interview. His Honour held that the purpose of the arrival interview in that case was primarily to obtain details about biodata and travel to Australia, and that its purpose was not to obtain a detailed description of the respondent’s claims for protection. His Honour held that this was indicated by the introduction to the form which related to the arrival interview, which his Honour contrasted with the “Important Information” set out in the later entry interview form. His Honour further held that the response which the appellant had made to one of the questions in the arrival interview form was a high-level summary of the appellant’s claims and was capable of encompassing that aspect of the appellant’s claim regarding his brother’s death.

47    On the other hand, in BRZ17 v Minister for Immigration and Border Protection [2019] FCA 677 at [53], Moshinsky J by way of obiter held that it had been open to the Authority to rely on a negative response by the appellant in that case to a direct question at an entry interview, stating that the case was factually quite different from AYJ17 for several reasons, including that the Authority relied on a specific response given during the interview rather than an omission.

48    The Full Court’s decision in DWA17 v Minister for Immigration and Border Protection [2019] FCAFC 160; 272 FCR 152 (DWA17) (McKerracher, Banks-Smith and Jackson JJ) also concerned the reliance by the Authority on an answer given by the appellant during the course of an entry interview. At [25]-[32], the Full Court referred to the need for caution that was identified in MZZJO and to the decision of Moshinsky J in AYJ17. Importantly, at [33] the Full Court stated –

33    We also accept that in some circumstances, a decision-maker may rely on an interview record in such a way as to indicate a misunderstanding of the statutory task, or illogicality or irrationality, and thereby to fall into jurisdictional error. But jurisdictional error is notoriously dependent on the facts of the particular case and the proper construction of the statute. MZZJO does not stand for any proposition that, regardless of the circumstances, relying solely or primarily on the absence of claims from an entry interview is a jurisdictional error.

(Emphasis added.)

49    The Full Court at [36]-[38] identified the statutory task of the Authority under Part 7AA of the Migration Act. Acknowledging that the Authority would fall into jurisdictional error if its decision was illogical or irrational in the sense explained in SZDMS, the Full Court stated that there was nothing in the Authority’s statutory task that set limits on the extent to which the Authority might rely on a record of entry interview, and that it was open to the Authority to do so –

39    It was therefore open to the Authority and, in our view, required of it, to give the Interview Record the weight that, in the Authority’s view, it deserved in the context of the rest of the necessarily limited information on which it was required to base its decision. We agree with Perry J in Paerau v Minister for Immigration and Border Protection (2014) 219 FCR 504 at [105] that:

Provided, therefore, that such judgments as to relevance are made by the decision-maker within lawful boundaries, the question as to whether particular evidence can be given any, and, if so what, weight falls within the exclusive province of the administrative decision-maker. Weight may be affected by such matters as provenance … credibility, completeness, context or lack thereof, and the capacity of the interested party to respond to the material particularly if it is adverse.

The appellant’s submissions

50    Counsel for the appellant submitted that the Authority’s use of the entry interview, particularly its treatment of the entry interview at [17] of its reasons, was illogical in the sense that no reasonable decision-maker could have logically reasoned in the way the Authority did. This was because, having regard to the purpose and context of the entry interview, it was illogical to regard the evidence as having some material probative value as to the appellant’s credit. Counsel for the appellant referred the Court to MZZJO and to the Full Court’s observations at [56] about the caution that should be exercised by decision-makers in relation to omissions by applicants of matters at entry interviews. Counsel relied on the reasoning of Moshinsky J in AYJ17 as having similar application to the present case, submitting that in every relevant respect AYJ17 was indistinguishable.

51    Counsel referred the Court to the four occasions on which the appellant provided information to an officer of the Department, being: (1) the entry interview; (2) the application for a protection visa; (3) the statutory declaration; and (4) the protection visa interview.

52    Commencing with the entry interview to which I referred at [5] to [16] above, counsel submitted that the answer that was recorded to the first question of Part C, which I set out at [9] above, was so perfunctory that it was not logical to infer that what was said could have been the totality of everything on which the appellant was relying to seek protection. Nor could it be said that the further information provided in response to question 6(b) was intended to be comprehensive.

53    Counsel for the appellant next took the Court to the protection visa application to which I referred at [17] to [22] above. Counsel submitted that the information in the application form was scant, and in particular that the answer to question 89 could not have been intended to be comprehensive. It was submitted that this was so having regard to the limited space available in the form within which to answer questions, and because the delegate and by extension the Authority must be taken to have known that a purpose of the protection visa interview was to provide further information, which was evident from the terms of the invitation to attend the interview to which I referred at [24] above. Counsel submitted that not much could be inferred from any claimed incompleteness of the appellant’s answers to questions in the application form, and certainly not that the appellant was a person lacking credit.

54    In relation to the appellant’s statutory declaration, counsel submitted that this was a brief document which preceded the interview. Counsel also made the point that the statutory declaration was in English, with no indication in the document that it had been translated for the benefit of the appellant. However, counsel also made clear that it was not submitted that the statutory declaration, which had been prepared by a migration agent, was inaccurate or was not based upon instructions from the appellant. Counsel relied on a finding by the primary judge at J[82] that the statutory declaration was the first occasion on which the appellant had presented the totality of his claims for protection. Counsel submitted that this feature of the statutory declaration bore on what could be drawn from the entry interview and the protection visa application.

55    In relation to the protection visa interview, counsel for the appellant submitted that it was not reasonable for the Authority to have concluded that the appellant’s claims lacked credibility because more information had been provided by the appellant during the protection visa interview, as compared to the three earlier occasions referred to at [51] above. As to the Authority’s reference to the appellant’s claims having “ballooned considerably”, counsel submitted that the Authority was not comparing like with like, and that the fact that there was minimal information in the entry interview and more expansive information given at the protection visa interview, did not have the consequence that the claim had ballooned because it is in the nature of the process that more detail would be provided later. Counsel submitted that one could not logically conclude that there was some recent invention or fabrication on the part of the appellant to support a conclusion that the appellant was not a witness of truth.

56    Counsel for the appellant put the following two strands of argument in the alternative. The first was that the primary judge had been in error in failing to find that the Authority’s treatment of the factors referred to by the Full Court in MZZJO was nothing more than tokenistic. Counsel submitted that it was not possible to understand [17] of the Authority’s reasons as anything other than a tokenistic acknowledgement of the problems associated with entry interviews that were identified by the Full Court in MZZJO. Counsel made the following submissions in relation to features that were identified by the Authority at [17] –

a.    The [Authority] said that the Applicant was ‘able to give considerable details about other matters’. But that circumstance could not have any logical bearing on whether the omission of detail about the brother meant that he was lying. The matters on which the [Authority] considered the Applicant was able to give ‘considerable detail’ were pedestrian, uncontroversial and to be expected of a 17-year old (family composition, schooling, etc).

b.    The [Authority] regarded that the Applicant having attended the entry interview ‘one and a half months after he arrived in Australia’ as somehow bearing on his honesty, when that could not rationally be so. Rather, the Applicant had been required to be detained, and had remained in immigration detention, ever since his arrival. The notion that the effluxion of time could mean that a minor in detention somehow would, by some unspoken process, without advice, come to appreciate the need to identify every minute detail then, lest that omission might be used against him in some unknown process years later, is politely and correctly described as irrational and illogical.

c.    The attendance of the Applicant at the entry interview ‘under the company of a responsible adult’ wrongly elevates the significance of that adult as if to suggest that the mere presence of her or him is a reason for the minor to suddenly realise that the minor ought to volunteer every detail that might possibly be relevant for a protection visa application process that did not commence until five years later, without knowing what could be relevant. There was no evidence from which to infer that any kind of rapport had been established between the ‘responsible adult’ and the Applicant, much less so that the adult assisted the Applicant with anything substantive.

57    In the alternative, counsel for the appellant submitted that even if the Authority’s reasoning at [17] was not tokenistic, it was clear that the Authority rejected the appellant’s central claim concerning his brother on the basis that there was an inconsistency between what was said at the protection visa interview and on the earlier occasions. Counsel relied on the Full Court’s reasoning in AVQ15 at [25]-[27] and submitted that the omission of detail in earlier versions of the appellant’s narrative did not amount to an inconsistency with the subsequent version. Counsel for the appellant submitted that the Court has previously accepted that the Authority might engage in illogicality if it draws a conclusion of inconsistency or otherwise rejects a claim just because it had not been mentioned by the visa applicant in an entry interview, citing AYJ17.

58    Counsel for the appellant submitted that the errors that were identified were jurisdictional, because they were material in the sense that but for the errors there was a realistic possibility that a different decision could have been made: see, Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398 at [32] (Kiefel CJ, Keane and Gleeson JJ).

The Minister’s submissions

59    Counsel for the Minister submitted that the appellant’s ground of appeal should be rejected. In support of that submission, counsel for the Minister advanced the following arguments.

60    First, on a holistic and fair reading of the Authority’s decision, the primary judge correctly found that the Authority’s findings of fact based on its assessment of the appellant’s credibility were open, and his Honour was correct in rejecting the claim that the Authority’s reasons in addressing the need for caution in use of information derived from entry interviews was “tokenistic”.

61    Second, there is no strict prohibition on the use of information derived from entry interviews as part of the process of reasoning of the Authority, as the Full Court in DWA17 held.

62    Third, counsel for the Minister submitted that none of the matters at (a) to (c) of the appellant’s submissions to which I referred at [56] above involved any material error. Counsel submitted that the matters raised by the submissions were simply contextual and partly speculative factors that the appellant sought to elevate as potential criticism of the merits of the Tribunal’s process of reasoning.

63    Fourth, counsel for the Minister submitted that there was an insufficient factual similarity between the present case and AYJ17 to justify it as being indistinguishable from the circumstances of this case. For one thing, it appears that in the material part of Moshinsky J’s reasons in AYJ17 his Honour was dealing with a different form, namely one relating to an arrival interview, which in that case occurred before the entry interview. Counsel submitted that in any event it was not useful to compare this case to AYJ17.

64    In the event that the Court concluded that the Authority impermissibly used the entry interview, the Minister did not submit that such an error was not jurisdictional.

Consideration

65    There is an implied condition on the discharge of the Authority’s duty under s 473CC of the Migration Act to review a delegate’s decision that the review must be undertaken reasonably: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 269 CLR 439 at [19]-[20]. The condition of reasonableness is concerned with both the outcome and the process of decision-making, including findings of fact on the way to a conclusion as to whether the jurisdictional facts in s 65 of the Migration Act for the grant of a protection visa are engaged: SZMDS at [132] (Crennan and Bell JJ).

66    There is a corresponding implication that the required threshold of unreasonableness is usually high: Minister for Home Affairs v DUA16 [2020] HCA 46; 95 ALJR 54 at [26] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ), citing Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [11] (Kiefel CJ), [52] (Gageler J), [89] (Nettle and Gordon JJ), and [135] (Edelman J). In relation to outcome, the high threshold has been described by reference to a decision which is “so unreasonable that no reasonable repository of the power could have taken the decision or the action”: Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 36 (Brennan J). In relation to the process of decision-making, the high threshold has been referred to by asking whether it was open to the decision-maker to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it: SZMDS at [133].

67    There are a number of dimensions to the obligation of the Authority to discharge its duty reasonably. One dimension, which is relied on by the appellant in this appeal, is that the Authority’s decision must not be the product of a process of reasoning that is illogical or irrational such as to give rise to jurisdictional error. A decision of this character has been explained as being “one at which no rational or logical decision-maker could arrive on the same evidence”. However, “[n]ot every lapse of logic will give rise to jurisdictional error”, and “a court should be slow, although not unwilling, to interfere in an appropriate case”: SZMDS at [130].

68    Decisions of this Court have referred to a threshold of “extreme” illogicality or irrationality: see, for example, Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [148] (Robertson J), cited by Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; 69 AAR 210 at [52], which in turn was cited by the Full Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [60] (McKerracher, Griffiths and Rangiah JJ). The adjective “extreme” was explained by Robertson J in SZRKT at [148] as meaning “extreme illogicality or irrationality measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal”. Robertson J made the same point in the next paragraph, citing Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 (SZJSS) at [23] and its approval in the context of the review of administrative error of the observation of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 48 concerning appellate review of discretionary judgments that “mere preference for a different result, when the question is one on which reasonable minds may come to different conclusions” is not a sufficient reason for overturning a judicial decision upon appellate review. The Court in SZJSS also cited in the same paragraph the observation of Brennan J in Attorney-General v Quin at 36 that “[t]he merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone”. It is by reference to these well-known considerations that “extreme” is to be understood. As Mortimer J explained in AWU16 v Minister for Immigration and Border Protection [2020] FCA 513 at [25]-[26], while there is nothing in High Court authorities such as SZMDS which suggests that the adjectival description of “extreme” is a necessary element in a finding of illogicality or irrationality, “irrational” or “illogical” implies that no reasonable person could reason in such a way. In support, Mortimer J cited the following passage from the joint judgment of Crennan and Bell JJ in SZMDS at [135] –

A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

69    The above passage in SZMDS is to be read in the context of those that precede it, and in particular [132] which shows that Crennan and Bell JJ were not concerned solely with an ultimate conclusion of jurisdictional fact, but also with findings on the way to such a conclusion: see also, Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15; 399 ALR 644 at [31] (Gordon J), and SZRKT at [151]-[153] (Robertson J).

70    The application of these principles is illustrated by the authorities concerning the consideration of information given by a visa applicant at an arrival or entry interview. In AYJ17, Moshinsky J at [41]-[43] applied SZMDS in finding that it was illogical or irrational for the Authority to reject the respondent’s claim concerning the death of his brother on the basis that he did not mention it at the arrival interview. AYJ17 and its citation of SZMDS were referred to by the Full Court in DWA17 at [30]. The Full Court at [33] accepted that, in some circumstances, a decision-maker may rely on an interview record in such a way as to indicate a misunderstanding of the statutory task, or illogicality or irrationality, and thereby fall into jurisdictional error. However, as I have mentioned, the Full Court in DWA17 also stated that jurisdictional error is notoriously dependent on the facts of the particular case and the proper construction of the statute, and that MZZJO does not stand for any proposition that, regardless of the circumstances, relying solely or primarily on the absence of claims from an entry interview is a jurisdictional error. To that I add my own observation that the caution that decision-makers might bear in mind that is expressed in MZZJO is not a formula or a checklist for the identification of jurisdictional error.

71    I do not accept that it was irrational or illogical for the Authority to reason in the way it did in its rejection of several of the appellant’s claims. The starting point is [16] of the Authority’s reasons where the Authority stated that it had significant credibility concerns as to: (1) the appellant’s claims as to the involvement in the LTTE of his brother and other relatives; and (2) the problems that the appellant claimed he and his family had encountered.

72    Paragraph [17] of the Authority’s reasons, on which there was much focus by counsel for the appellant at the hearing, is not to be read in isolation: it is to be read together with the other paragraphs that expose the Authority’s path of reasoning. There is no doubt that the Authority placed some weight on what the appellant was recorded as having said at the entry interview. The first point that the Authority made in [17] was that the appellant had not mentioned that he worked in Colombo immediately before he left for Australia, or that he had last lived in Colombo. This was in connection with specific questions concerning the appellant’s employment history and places of residence in response to which there was detail in the appellant’s recorded answers to which the Authority referred. The second point that the Authority made in [17] was that even accepting that the appellant might have been too scared to mention the involvement of his brother or his relatives in the LTTE, it was significant to the Authority that the appellant had not mentioned that he or his family had faced any harm due to his brother’s disappearance.

73    What was recorded in the entry interview was not considered in isolation. The significance that the Authority placed upon the entry interview was built upon with reference by the Authority to the appellant’s visa application and statutory declaration, both of which were prepared with the assistance of a migration agent. At [18], the Authority considered it not insignificant that the appellant had not mentioned the involvement of his brother or his relatives in the LTTE in either of these documents. Also at [18], the Authority stated that the appellant had again stated in his visa application that he had lived in one place in Jaffna from birth until he left Sri Lanka, and that he had worked in his home town. The Authority stated that this was consistent with the information that the appellant had provided at the entry interview. At [19], the Authority referred to the appellant’s account of his schooling, stating that the appellant had stated in both his entry interview and his visa application that he had attended school in Jaffna up until 2011. The Authority considered that this, together with the fact that the appellant’s national ID card that was issued in October 2011 identified his address as being in Jaffna, further undermined the appellant’s claim that he was in Colombo for about one year before he commenced his trip to Australia in May 2012, which was the time nominated in the entry interview record for when the appellant started arrangements for travel to Australia. These factors were taken into account together with other factors that did not depend upon the entry interview record, such as the differing accounts as to what had happened to his brother, and the Authority’s scepticism that the members of the army attended upon the appellant’s family home and harassed and harmed his family as claimed.

74    Having regard to the above analysis, there are five reasons why I am not persuaded that it was irrational or illogical in the sense required by SZMDS for the Authority to rely on the information in the record of the entry interview in the way that it did.

75    The first is that I do not accept that the Authority’s consideration of the caution that might be exercised in the appellant’s circumstances in relation to the use of what was recorded in the entry interview form was tokenistic, as counsel for the appellant submitted. At [17] of its reasons, the Authority did take account of the possibility that the appellant might, at the time of the entry interview, have been too scared to mention the involvement of his brother or his relatives in the LTTE. However, there is and can be no blanket prohibition on recourse to information in records of entry interview. As the Full Court explained in DWA17 at [32], jurisdictional error is notoriously dependent upon the facts.

76    This leads into the second reason, which is that the features of the record of the entry interview on which the Authority placed significance were not confined to the entry interview. As I have recounted, in the Authority’s estimation the same features applied to the visa application and to the statutory declaration which in the Authority’s view supported its concerns about the credibility of the appellant’s claims. Now it is not always helpful to compare the facts of one case with the facts of another, as Windeyer J so clearly explained in Teubner v Humble [1963] HCA 11; 108 CLR 491 at 503. But I should deal with the submission on behalf of the appellant that the present case is indistinguishable from the decision of Moshinsky J in AYJ17. If it were relevant to do so, AYJ17 is readily to be distinguished. The point of distinction is that the Authority in AYJ17 considered that the absence of information about the appellant’s brother’s death in an arrival interview was difficult to reconcile with later claims in the entry interview, the visa application and the visa interview: see the extracts at [18] of the reasons of Moshinsky J. The Authority’s decision in AYJ17 was illogical or irrational because the rejection of the respondent’s claims rested principally on the suggested omission of information in the arrival interview, in circumstances where, as Moshinsky J held at [41], the purpose of the arrival interview was not to obtain a detailed description of the respondent’s claims. In the present case, the Authority did not rely solely upon information in the record of the entry interview, but relied on that information together with corresponding information in the protection visa application and the statutory declaration as undermining claims that were later made by the appellant in the protection visa interview.

77    The third reason is that in consequence of the above, I do not accept the other submissions on behalf of the appellant to which I referred at [56] above that were directed to [17] of the Authority’s reasons. As to the submission that the Authority erred by identifying that the appellant had been “able to give considerable detail about other matters”, on a fair reading this was directed to the detail about the appellant’s family, and his places of residence, work, and schooling, which the Authority took into account in the way that I have explained. The point that counsel for the appellant raised might be arguable on a merits review, but it does not indicate irrational or illogical reasoning by the Authority. The same can be said of the Authority’s reference in [17] to the passage of one and a half months between the appellant’s arrival in Australia and the entry interview. It might be said that the Authority was distinguishing the appellant’s circumstances from those referred to in MZZJO at [56], where the Full Court referred to a situation where an entry interview occurs shortly after a person has arrived in Australia, after a long journey on the ocean and in cramped and difficult conditions. The Authority’s reasoning in this regard was not irrational or illogical. The same can also be said of the Authority’s reference to the presence of a responsible adult at the entry interview. The relevance of the presence of a responsible adult might be debateable, but this goes to the merits of the Authority’s analysis, and does not amount to illogical or irrational reasoning.

78    The fourth reason is that I do not accept that the Authority’s reference at [8] of its reasons to the appellant’s claims with respect to his brother and his family as having “ballooned considerably” as rendering its reasoning illogical or irrational. The descriptor “ballooned considerably” is in a paragraph which is a precursor to the Authority’s analysis, and is a label that foreshadows that analysis. The label is not a substitute for the more detailed reasons of the Authority, in respect of which I have found no relevant illogical or irrational reasoning.

79    Finally, I do not accept that the Authority’s reasoning was illogical or irrational on the ground that it had found an inconsistency between what the appellant said at the protection visa interview and on the earlier occasions. In AVQ15, to which I referred at [44] above, the Full Court at [27] postulated hypothetical circumstances where a visa applicant may raise a claim for the first time at an advanced stage of the decision-making process and the failure to raise the claim previously may well be relevant to credibility, but that was not to say that this was to be correctly described as an inconsistency. That is because, as the Full Court explained at [26], appropriate attention must be given by a decision-maker to all relevant material, which did not occur in AVQ15. The appeal in AVQ15 was allowed because the Refugee Review Tribunal overlooked significant information that was before it which potentially put a different light on its finding of inconsistencies in the appellant’s evidence. In this case, it was not put that there was any significant body of information which the Authority had overlooked: that was not the basis on which the appeal was framed or argued. And for the reasons I have given, I am not persuaded that the Authority’s reasoning was illogical or irrational. As the Full Court stated in ASB17, to which I referred at [45] above, differences in accounts may be rationally and reasonably capable of giving rise to concerns about a person’s credibility. In the present case, the Authority set out a path of reasoning explaining why it thought that the information provided by the appellant at the four stages was material to its assessment of the credibility of the appellant’s claims.

Conclusions

80    For the foregoing reasons, the Authority’s decision was not affected by illogical or irrational reasoning arising from its use of the appellant’s entry interview. The appeal should be dismissed.

Pro bono counsel

81    Mr Min Guo accepted a pro bono referral to appear for the appellant on this appeal. The work that he undertook was comprehensive and to a very high standard. Mr Guo prepared an amended draft notice of appeal, written submissions, and appeared at the hearing of the appeal and prosecuted the appellant’s case clearly and forcefully. Mr Guo is to be commended for the assistance that he provided to the appellant and to the Court in the finest tradition of the Australian Bars.

Associate:

Dated:    18 April 2023