Federal Court of Australia

BFD17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 887

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Circuit and Family Court on 10 February 2022 be set aside and, in their place, the following orders be made:

(a)    A writ of certiorari be issued quashing the decision of the second respondent dated 15 February 2017.

(b)    A writ of mandamus be issued requiring the second respondent, differently constituted, to determine the application for review according to law.

3.    The first respondent pay the appellants’ costs of an incidental to the appeal and the proceedings in the Federal Circuit and Family Court.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    The appellants, a mother (the first appellant) and adult son (the second appellant), are citizens of Nigeria, of Christian religion, who arrived in Australia on 1 June 2014 on tourist visas. They applied for Protection (Class XA) visas (protection visas) on 27 June 2014. On 2 March 2015, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs refused to grant the protection visas.

2    On 26 March 2015, the appellants lodged an application for review by the Administrative Appeals Tribunal of the decision of the delegate. On 15 February 2017, the Tribunal affirmed the decision of the delegate.

3    The appellants then applied for judicial review of the Tribunal decision by the Federal Circuit and Family Court of Australia (Division 2) (FCFC). On 10 February 2022, a judge of that court dismissed the application: BFD17 v Minister for Immigration, Citizenship, Migrants Services and Multicultural Affairs [2022] FedCFamC2G 70.

4    The appellants now appeal from the decision of the FCFC and seek leave to rely on an amended notice of appeal, to which the Minister consents. In their amended grounds of appeal, the appellants contend that:

Ground 1

The primary judge erred in failing to find that the Second Respondent (the Tribunal) failed to read, identify, understand and evaluate the corroborating evidence and bring its mind to bear upon the evidence of corroborating witnesses and instead relied on the adverse credibility finding against the Appellants. The primary judge erred in finding that the Tribunal’s approach accorded with the “poisoned well” class of cases and so justified the Tribunal treating the corroborating evidence in this way.

Particulars

(a)    The Appellants relied on the evidence of corroborating witnesses to support their fear of harm if returned to Nigeria, including statutory declarations and oral evidence from the following persons:

i.    the neighbour in Nigeria who took the Appellants to the hospital after the Appellants suffered a violent attack in their home by the Boko Haram group (neighbour (a));

ii.     the daughter of the First Appellant who witnessed the attack and corroborated the evidence of both the neighbour and of her brother, the Second Appellant, about the particulars of the attack (sister (b));

iii.     the E Community, who informed the Appellants that after they fled Nigeria, their house was burned down by Boko Haram (community (c)); and

iv.     a church friend who is looking after the children of the First Appellant who still remain in Nigeria (friend (d)).

(b)     The Tribunal, having made adverse findings about the Appellants’ credibility based on other evidence, determined that it did not give any weight to the evidence of the corroborating witnesses.

(c)     In the circumstances, the Tribunal was required to disclose in its reasons that it had read, identified, understood and evaluated the corroborating evidence and brought its mind to bear upon with the evidence of the corroborating witnesses, rather than merely rely upon its earlier adverse credibility findings against the Appellants.

(d)     The Tribunal’s findings were not sufficient to bring this within the “rare” category of cases where a party’s credibility has been so weakened that the Tribunal may treat what is proffered as corroborative evidence as being of no weight because “the well has been poisoned beyond redemption”.

Ground 2

The primary judge erred in failing to find that the Tribunal erred by making findings material to the Appellants’ credibility that were legally unreasonable and/or lacked any logical or rational basis and/or were unsupported by any probative evidence.

Particulars

(a)     The Tribunal found that the First Appellant’s credibility was undermined as she initially did not take seriously the approach by Boko Haram to recruit the Second Appellant. By failing to read, identify, understand and evaluate the First Appellant’s explanation, the Tribunal’s finding lacked an intelligible justification.

(b)     The Tribunal found that it had called the First Appellant’s husband by telephone in Nigeria.

However, the transcript of the hearing showed that the telephone line was often inaudible and unclear; the conversation was very short. The Tribunal failed to ask the person on the phone any other questions to verify his identity and did not ask him any questions about the critical issues that arose from the claim. Then later in the hearing, when asked to call a witness by telephone, the Tribunal irrationally declared that the problem was that it did not know who was on the end of the line.

(c)     The Tribunal found that contrary to the First Appellant’s evidence, the Second Appellant (the son of the First Appellant) gave evidence that he did not sit his exams. However, the transcript of the hearing showed that there was no such inconsistency. The First Appellant said that the Second Appellant was preparing to sit for his exams in November/December.

The attack by Boko Haram happened in August, which caused the Second Appellant to stop attending school and flee Nigeria. Accordingly, the Second Appellant left before the opportunity to sit his exams.

(d)     The Tribunal found that the Appellants gave consistent evidence, especially of the approach and attack by Boko Haram, both overtime and between each other; and such evidence could be indicative of genuine claims for protection. Notwithstanding, the Tribunal found that the Appellants were not credible witnesses, and in contrast to the delegate of the First Respondent who found they were witnesses of truth.

5    The appellants were represented by Ms T Baw and the Minister was represented by Mr G Johnson, both of counsel. Both filed and relied upon written submissions.

2.    BACKGROUND

2.1    Claims for protection and evidence

6    The appellants’ claims for protection are set out in their visa application and respective statutory declarations. The appellants also gave oral evidence at a department interview on 9 December 2014 and rely on various other material, including witness affidavits, photographs and oral evidence, which is summarised in the decisions of the delegate and Tribunal. Relevantly, the appellants rely on the corroborating evidence listed at particulars (a)(i) to (iv) in ground 1 (see [4] above).

7    The first appellant claims to fear harm if returned to Nigeria on the basis that Boko Haram had tried to recruit her son (the second appellant), and that when she confronted the leader of the local Boko Haram group about the recruitment, she and her son were later attacked in their family home which caused them to flee from Nigeria.

8    The second appellant claims to fear harm on the ground that he would be forcibly recruited by Boko Haram and that he was also attacked in the same incident as that claimed by the first appellant and fled.

9    The appellants also claim to fear harm on the basis of their Christian religion, as advocates of western education and as members of Rotary.

2.2    Decision of the Tribunal

10    In its reasons, the Tribunal notes that it had regard to the Department’s file in relation to the appellants, the delegate’s decision and various other material which it lists at [28].

11    The Tribunal summarises (at [30]–[53]) the appellants’ claims for protection by reference to the visa application and evidence given in statutory declarations, in the department interview, at the Tribunal hearing and in the appellants’ post-hearing written response and makes a number of factual findings (at [55]), including: that the appellants are Nigerian nationals and have lived in Benin City, Edo State for most of their lives; they are Christian and the first appellant was a Pastor involved with a Church in Edo State; they lived nearby to the Church; they are closely associated and involved in Rotary; and the second applicant was a student at a school in Benin City, Edo State.

12    However, the Tribunal expresses (at [56]) “significant concerns” as to the appellants’ credibility regarding the difficulties they claim to have faced and their reasons for fearing return to Nigeria. In particular, the Tribunal notes:

... they have provided evidence inconsistent with independent information as to the extent and activities of Boko Haram in Edo State, and inconsistencies in evidence as to central aspects of the difficulties they claim they faced at the hands of Boko Haram and [B] which leads the Tribunal to find they are not credible as to ever having faced the particular difficulties and incidents of harm they claim. The Tribunal is of the view that they have fabricated claims and concocted evidence to achieve an immigration outcome.

13    The Tribunal sets out a number of “cumulative credibility concerns” which it considered provided the basis for rejecting the appellants’ evidence regarding their fear of return to Nigeria. The primary concern was that the appellants provided evidence which was inconsistent with independent country information as to the extent and activities of Boko Haram in Edo State (at [56]–[94]). The Tribunal also had credibility concerns arising from the second appellant continuing to attend school despite the approaches by Boko Haram (at [100]); the first appellant’s claim that her husband had disappeared (at [101]–[109]); the first appellant’s failure to change her mobile phone number despite receiving threatening messages from Boko Haram (at [112]–[115]); and the first appellant’s “vague and inconsistent evidence” concerning her fear of her husband’s family (at [118]–[121]).

14    In making the credibility finding, the Tribunal reasoned, at [128]–[130]:

[128]    In making this finding the Tribunal accepts that information has been consistent over time between the first and second named applicant's [sic], particiculary [sic] as to the approach and attack by Boko Haram in August 2013. However the Tribunal considers that while such consistent evidence could be indicative of genuine claims for protection, in this matter it does not outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicants are not credible witnesses.

[129]    In making this finding the Tribunal has considered the oral evidence of each of the applicants supporting the other's claims. It accepts their evidence was generally consistent. It has also considered the oral evidence of [friend (d)] who indicated the applicant's children in Nigeria were not in a safe place. She said the applicants were not safe and Boko Haram is looking for them. She said it is because Boko Haram wanted the second named applicant to join them but the applicants refused. She said they should not return and it is not safe for them to live in Nigeria. However, the Tribunal has found on these set of claims that the applicants are completely lacking in credibility. The Tribunal considers that the evidence of [friend (d)] and that of the applicant in support of each other's case does not lead the Tribunal to change its view, for the reasons outlined above, that the applicants are not credible witnesses as to these claims.

[130]    In making this finding, the Tribunal has considered the statutory declarations made by [daughter (b) and Community (c)] as to the burning of the church/house in August 2014, affidavit of [neighbour (a)] and letter from the President of Rotary Club in Nigeria date 18 November 2014. However, given the fundamental lack of credibility of the applicants’ evidence, the Tribunal does not give any weight to these statutory declarations and their contents.

15    Relevantly for present purposes, in light of its concerns about the credibility of the fundamental claim, the Tribunal did not give any weight to the oral evidence of friend (d), the statutory declarations of daughter (b) and neighbour (a), or the statement of the Community (c) (together, the corroborating evidence) (at [129]–[130]).

2.3    Decision of the primary judge

16    Before the primary judge, the appellants asserted that the Tribunal fell into jurisdictional error in that its decision was legally unreasonable because it failed to give proper, genuine and realistic consideration to the corroborative evidence (primary ground one). The appellants also argued that the Tribunal erred in making credibility findings without any logical or rational basis (primary ground two).

17    The primary judge rejected both grounds and concluded that the Tribunal’s decision was not affected by jurisdictional error (at [35]).

2.3.1    Primary ground one

18    At [17], the primary judge noted the Tribunal’s findings (at [56]–[94]) as to the fabrication of evidence relating to Boko Haram activity in Edo State and found at [19] that “having made the findings that it did, the Tribunal was entitled to look at the evidence of the applicants, and that of the corroborating witnesses, in such light”.

19    At [23], the primary judge said:

It is in the entirety of the evidentiary context that the Tribunal’s treatment of the applicants’ claims, and the purported substantiation of such claims by corroborating witnesses, ought to be viewed. At [129] – [130] in particular of its reasons, the Tribunal was seen to have actively intellectually engaged in a consideration of the corroborating evidence. The Tribunal specifically referred to the evidence of [witness name withheld] and other corroborating witnesses but said “…given the fundamental lack of credibility of the applicants’ evidence, the Tribunal does not give any weight to these statutory declarations and their contents”. In making that finding, the Tribunal made it clear that to the extent that such corroborating evidence was aligned with the evidence of the applicants, it would not be accepted. Such was not an unorthodox or unacceptable way for the Tribunal to undertake a deliberative process”.

20    After referring to Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) [2003] HCA 30; 73 ALD 1 at [49] per McHugh and Gummow JJ, and Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50, at [37], per North and Lander JJ (with whom Katzmann J agreed) (see [54]–[57] below), the primary judge concluded at [26]:

The facts of the present matter are not at one with those in BXK15 v Minister for Immigration and Border Protection [2019] FCAFC 76, where the majority there held that there had been no consideration by the Tribunal of the evidentiary value of the witness statements. That case is distinguishable from the facts of the present case which is aligned with the factual scenario in S20/2002. Each case will necessarily differ in terms of the factual matrix within which the Tribunal will be called upon to consider whether it should assess corroborative evidence in the light of other evidence before it, or whether no weight should be given to it. An administrative decision maker ought not to be required to always have regard to corroborative evidence, particularly in circumstances where the veracity of such evidence was incapable of acceptance because it aligned so closely with other claims of the applicants which were incredible. Such was the case here.

2.3.2    Primary ground two

21    In primary ground two, the appellants contended that the Tribunal made four material findings as to credit which were not based on or supported by probative evidence and lacked a rational or logical basis.

22    The primary judge noted the high bar that must be met for there to be a finding of illogicality or irrationality, particularly in relation to findings as to credit (at [31]), citing the summary of relevant principles in DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30] (Kenny, Kerr and Perry JJ).

23    The primary judge concluded:

(a)    The Tribunal’s reasoning process was not flawed and the fact that it found some of the appellants’ evidence to be consistent did not prevent it from finding that the substantive claims were incredible. The first appellant’s “deceptive conduct” during the hearing was one basis for the credibility finding; at [32].

(b)    The Tribunal’s findings about the implausibility of the second appellant remaining at his school despite attempted recruitment by Boko Haram was open to it. Another reasonable, rational and logical Tribunal member could have made the same decision; at [33], citing Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130], [131] and [135] (Crennan and Bell JJ).

(c)    No extreme illogicality or irrationality had been demonstrated; at [34].

3.    THE APPEAL

3.1    Ground 1 – consideration of corroborating evidence

3.1.1    The submissions

24    Ground 1 was amended by the appellants for the purpose of aligning it with the reasoning in Plaintiff M1/2021 [2022] HCA 17; 96 ALJR 497 (Kiefel CJ, Keane, Gordon and Steward JJ) in which the High Court determined at [26] that labels such as “proper, genuine and realistic consideration” (as used in primary ground 1) invited impermissible merits review in which the court substitutes its decision for that of the administrative decision maker. The appellants submit that the Tribunal failed to “read, identify, understand and evaluate” the corroborating evidence.

25    The appellants submit that a finding that an applicant has fabricated evidence is a very serious matter and ought not to be made lightly; citing S20/2002 at [49], WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74; (2004) 80 ALD 568 at [26]–[27], SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638; (2008) 105 ALD 25 at [23] and BTF15 v Minister for Immigration and Border Protection [2016] FCA 647 at [56] (Katzmann J). The appellants rely on Finkelstein J’s observations in SZDGC at [23] which they contend highlight the “rarity and circumstances giving rise to poisoned well cases”.

26    The appellants submit that the Tribunal’s findings were not sufficiently cogent to negate the corroborating evidence and there was not a probative basis for the findings of dishonesty and fabrication; citing WAIJ at [27]. In particular, they say that the inconsistent country information which showed that Boko Haram was active in a different part of the country was not sufficient to “so severely discredit the appellants” and the Tribunal’s findings were not sufficient to bring this case within the “rare” category of poisoned well cases; citing SZDGC at [27] and SZNSP at [36]–[38].

27    The appellants submit that the Tribunal should have had regard to the corroborating evidence when assessing the appellants’ credibility and that any decision to give it little weight should have been based on independent reasons, not because of the appellants’ credibility.

28    In relation to the Tribunal’s findings regarding the corroborating evidence, the appellants submit that:

(a)    to the extent the Tribunal gave any consideration to friend (d)’s evidence, it must be inferred that the Tribunal found that it was fabricated. The Tribunal did not attempt to explain why she must have lied nor why she would have done so; citing BZD17 at [46]–[49]; and

(b)    the Tribunal’s findings at [130] regarding the remaining corroborating evidence was contrary to WAIJ at [27] and SZNSP at [37], which require it to give proper consideration to corroborative evidence. It was not entitled to give it no weight solely because of “the fundamental lack of credibility of the applicants’ evidence”.

29    Finally, the appellants submit that the Tribunal’s “mere references” to the corroborative evidence in its reasons does not necessarily amount to consideration of it. It makes no assessment of the evidence and does not say how it bears on its credibility findings; citing BHM15 v Minister for Immigration and Border Protection [2018] FCA 917 at [50] (Markovic J). They contend that the Tribunal’s rejection of the corroborative evidence because it was consistent with the appellants’ evidence, indicates that it was not considered in assessing the appellants’ credibility.

30    The Minister submits that it was a matter for the Tribunal to come to a view as to the appellants’ credibility; citing Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67]. He further submits that the Tribunal made no error in first forming a view of the appellants’ credit before taking into account the corroborative evidence, and that it is not irrational for a decision maker to reject evidence adduced to corroborate lies; citing S20/2002 at [49].

31    The Minister acknowledges that S20/2002 does not absolve a decision maker from assessing the material before it, but submits that there is no suggestion in the present case that the Tribunal overlooked or ignored relevant corroborative evidence.

32    In relation to the Tribunal’s credibility finding, the Minister submits that the Tribunal did not improperly reject the corroborating evidence on the basis that the Tribunal gave detailed reasons and cited extensive country information that was inconsistent with the truth of the appellants’ claims to be at risk of harm from Boko Haram (Tribunal [56]–[82]). The Minister contends that the country information readily permitted a conclusion that Boko Haram did not, and had not, operated in Edo State, which resulted logically in the further conclusion that the appellants had fabricated that part of their claims; citing DAO16.

33    The Minister submits that the Tribunal thoroughly considered country information as well as submissions and independent reports adduced by the appellants in support of their claim that Boko Haram was operative in Edo State, which it rejected at [83]–[94]. The Minister submits that the Tribunal’s credibility findings were based on more than just the inconsistent country information, citing the cumulative credibility concerns listed above at [13].

34    The Minister contends that it was open to the Tribunal to make the credibility findings without factoring in the corroborative evidence. The Tribunal did not dismiss the corroborative evidence “out of hand” as the appellant submitted in reliance on SZNSP, but in light of the extensive country information which did not place Boko Haram in Edo State, and the Tribunal’s “serious concerns” about credibility, it was open to it to give the corroborative evidence little weight. The Minister says the reasoning was logical and in accordance with the authorities.

35    The Minister further submits that the appellants’ reliance on BZD17 (see above at [28(a)]) is misguided and the real question is not why did the witnesses lie, but whether the Tribunal has properly and intellectually addressed the corroborative material. The Minister notes the primary judge’s finding (at [23]) that the Tribunal had actively engaged with the corroborative material but found that it did not overcome its credibility concerns.

3.1.2    Consideration

36    In ground 1, the appellants contend that the primary judge failed to find error in the decision of the Tribunal because it failed to read, identify, understand and evaluate the corroborating evidence. The Tribunal is said to have failed to bring its mind to bear on this evidence.

37    In my view this ground is made out.

38    The Tribunal found that the appellants were not reliable witnesses as to their claims and expressed no confidence in accepting that key aspects of them were based on their personal or actual experiences. It considered that the claims had been fabricated to create a claim to be owed protection. As a consequence it rejected the claims: that the second appellant (son) had been approached by B (a person who acted for Boko Haram) and other members of Boko Haram at his school in 2013; that the first appellant (mother) had confronted that person regarding his recruitment by Boko Haram; and that they had been attacked in their home in August 2013 by members of Boko Haram. It also rejected as fabricated other aspects of the claims.

39    The Tribunal gave two broad reasons for its views as to the credit of the appellants.

40    In one, it identified particular areas of concern about the way that they had given their evidence. For instance, it considered it to be incredible that the son had continued to attend his school in circumstances where the appellants claimed that other boys at the school had already been forcibly recruited by Boko Haram and other schools in the area.

41    It also determined that the way that the first appellant had behaved at the hearing before the Tribunal in relation to her claim that the church where she and her husband had been pastors had burnt down and she had been unable to track her husband down in Nigeria was adverse to her credit. It recited that during the hearing it located a website for that church, which included a telephone number for it. The Tribunal then called the number during the hearing. At that point, the first appellant texted her son, who was then outside the hearing room. Furthermore, a person identifying himself with the husband’s name answered the call.

42    The Tribunal reports confronting the appellant about her text message and she explained that she was alerting the second appellant of the attempt to contact the husband. The Tribunal rejected the first appellant’s explanation for trying to warn the second appellant of the call and also rejected her evidence that it had not previously been possible for her to contact her husband in circumstances where she had previously given evidence that he had disappeared and she had been trying to contact him.

43    The Tribunal identified other bases for its credit findings, including that it found her explanation for not changing her mobile number when she left Nigeria incredible and finding that her claims to fear her husband’s family were vague and inconsistent.

44    In the second, the Tribunal conducted an extensive survey of the country information available and concluded that this indicated that Boko Haram was not active in the part of Nigeria where the claimed misconduct took place. The Tribunal gave detailed reasons and cited extensive country information that was inconsistent with the truth of the appellants’ claims to be at risk of harm from that organisation.

45    There can be little doubt that these two reasons provided some basis for the Tribunal to conclude that the appellants’ claims lacked credibility. The making of such credit findings is squarely within the realm of the decision-makers function; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67] (McHugh J).

46    It is against this background that ground 1 of the appeal must be considered. The allegation is that, notwithstanding it’s views of the appellants’ credit, the Tribunal fell into jurisdictional error by failing separately to read, identify, understand and evaluate the corroborating evidence.

47    The evidence of the neighbour (a) takes the form of a sworn one-page statement. He says that on 6 August 2013 he saw masked men at the appellants’ house, tried but failed to call the police but was too scared to approach the house. He later heard the children shouting and went over, observing that the first appellant was on the floor, nearly dead from a beating that she had received. He noticed that there were injuries to other members of the family. He rushed them to the hospital. He was informed by the first appellant a few days later that she had been attacked by members of Boko Haram who had tried to involve the second son in its activities, and that they promised to come back again until the son is recruited.

48    The evidence of daughter (b) also takes the form of a one page sworn statement. It records that she was in the family home on 6 August 2013 when masked men came looking for her brother. Her mother hid her brother in the ceiling and she and other family members were locked in a room. She heard her mother crying for help. A neighbour came to their rescue and she found her mother on the ground. She and her brother had been given a serious beating and they were rushed to hospital. She gives evidence that her mother had been complaining of threats from Boko Haram.

49    The evidence of Community (c) is in the form of a letter dated 29 October 2014 to say that in August 2014 the family home had been set alight. The unidentified authors say that they saw strange men and tried to apprehend them, but they were heavily armed. They claim to have conducted investigations and found that those men are members of Boko Haram and that “they will continue to come around until you and your son is found”.

50    The evidence of friend (d) was given from Nigeria via telephone. The Tribunal records her evidence as being to the effect that the appellants were not safe and Boko Haram continues to look for them, for the reasons given in the appellants’ claims (at [129]).

51    The appellants contend that the Tribunal failed to bring its mind to bear on the corroborating evidence. I repeat for convenience the critical passages of the Tribunal’s reasons, which contain its analysis of that evidence:

[129]    In making this finding the Tribunal has considered the oral evidence of each of the applicants supporting the other's claims. It accepts their evidence was generally consistent. It has also considered the oral evidence of [friend (d)] who indicated the applicant's children in Nigeria were not in a safe place. She said the applicants were not safe and Boko Haram is looking for them. She said it is because Boko Haram wanted the second named applicant to join them but the applicants refused. She said they should not return and it is not safe for them to live in Nigeria. However, the Tribunal has found on these set of claims that the applicants are completely lacking in credibility. The Tribunal considers that the evidence of [friend (d)] and that of the applicant in support of each other's case does not lead the Tribunal to change its view, for the reasons outlined above, that the applicants are not credible witnesses as to these claims.

[130]    In making this finding, the Tribunal has considered the statutory declarations made by [daughter (b) and Community (c)] as to the burning of the church/house in August 2014, affidavit of [neighbour (a)] and letter from the President of Rotary Club in Nigeria date 18 November 2014. However, given the fundamental lack of credibility of the applicants’ evidence, the Tribunal does not give any weight to these statutory declarations and their contents.

52    It will be noted that the Tribunal in [129] makes specific reference to the content of the evidence of friend (d) and the basis upon which it is rejected. In [130] it names each of friend (a), daughter (b) and Community (c), refers to the burning of the church, but makes no reference to the evidence of the home invasion given by daughter (b) or neighbour (a). The appellants draw particular attention to these passages in support of their argument that the Tribunal failed to bring its mind to bear on the evidence of these corroborating witnesses. The Tribunal makes no suggestion that the evidence of daughter (b) or neighbour (a) is inconsistent with the testimony separately given by each of the appellants. Having regard to their evidence, it appears to be consistent with the appellants’ version of the events of that incident.

53    As noted, the primary judge considered that the present was a case where the approach of the Tribunal was justified having regard to the reasoning of McHugh and Gummow JJ in S20/2002. The Minister supports that reasoning.

54    In S20/2002, at [49], McHugh and Gummow JJ recognised that there were circumstances in which an administrative decision maker might give no weight to corroborative evidence because the applicant had otherwise been discredited:

In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross‑examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.

55    However, as the Minister accepts, nothing said by the High Court in S20/2002 absolves a decision-maker from engaging in an assessment of the material before it. Indeed, several subsequent decisions of the Full Court have served to emphasise this point.

56    In SZNSP [2010] FCAFC 50, North and Lander JJ (Katzmann J agreeing) said:

[36]    When a decision maker has conducted a hearing of the kind which is conducted by the RRT and has heard the applicant, and has reached the tentative conclusion that the applicant’s claims have been fabricated, the decision maker is entitled in our opinion to reject evidence which would, if accepted, have corroborated the applicant’s account. That does not mean that any evidence of corroboration could be rejected. It would depend upon the nature, content and quality of the corroborative evidence before a decision maker could determine to reject it out of hand. In this case, as we have said, the document which is said to be the corroborative evidence is a document written in the Chinese language which has been interpreted, no doubt faithfully, into the English language and purports to be a statement of Lu. The applicant, whom the RRT believed was not a credible witness, proffered it as Lu’s statement, but there was no other evidence other than the applicant’s say so that it was. There is nothing irrational about the RRT in those circumstances rejecting the document by giving it no weight. In circumstances where the provenance of the document is unproved, but it is proffered by a witness whose credibility has been destroyed, the document has no more credit than the person proffering it. Consequently, the alternative argument relied upon by the appellants, outlined at [22] above, cannot be sustained.

[37]    Several further observations should be made concerning the type of situation addressed in Applicant S20/2002 198 ALR 59. The case does not relieve the RRT from giving consideration to corroborative evidence. It concerns only the timing of that consideration. The case establishes that the RRT does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the applicant’s credit and then giving attention to the corroborative evidence.

57    These points were amplified in BZD17, where in response to a submission advanced by the Minister to the effect that the Tribunal had found that that case was one of those “rare” poisoned well cases within S20/2002, the Full Court found at [45]:

…these passages reveal a failure by the Tribunal to give a proper, genuine, and realistic consideration to the evidence of Mr C. In this respect, it is true that the High Court held in S20/2002 that it is not irrational (albeit not necessarily preferable) for the finder of fact to focus “first upon the case as it was put by the appellant”, before considering the alleged corroboration. However, this does not mean that the finder of fact can ignore the allegedly corroborative material and fail to consider it in an intellectually active way (WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 at [27] (Lee and Moore JJ); semble SZDGC at [23] (Finkelstein J)). For example, as in DAO16, a finding that a visa applicant’s evidence is not credible may not of itself provide a logical or rational basis on which to dismiss all of the corroborative evidence and, once the corroborative evidence is considered, it may at least raise a doubt about whether the whole of an applicant’s claims should in fact be rejected, thereby enlivening the obligation to consider the alternative scenario that the applicant’s claims might be correct.”

See also BXK15 v Minister for Immigration and Border Protection [2018] FCAFC 76 at [8].

58    It is apparent that the particular circumstances of each case must be examined. It is not sufficient for a Tribunal to make emphatic findings adverse to the credibility of a party and then to eschew consideration of purportedly corroborating evidence.

59    In the present case, particular focus may be placed on the evidence of neighbour (a) and daughter (b). Both gave declarations that they were present at the time of the alleged home invasion and subsequent beating and injury suffered by the appellants. Both gave versions of events that were consistent with each other and consistent with the versions about which the appellants had given. The claims to having been attacked were central to the claims advanced by the appellants. Yet the only reference to these witnesses in the Tribunal’s determinative findings is at [130] where the Tribunal says that it has considered these declarations (as well as other evidence). The only reasoning given for rejecting the evidence is that “given the fundamental lack of credibility of the applicants’ evidence”, the Tribunal does not given any weight to them.

60    In my view this conclusory statement does not reflect any process of reasoning or analysis on the part of the Tribunal. No basis is provided for rejecting the evidence.

61    It is difficult to see how it can be said that a mere reference to this evidence, without more, can demonstrate that the Tribunal did in fact consider them in making its credibility findings. It provides no description of the content of that evidence and does not say how the evidence bears on its findings. Indeed, in circumstances where two witnesses purport to give direct evidence of observing events that support the appellants’ claims, one might expect the Tribunal to provide an explanation as to why that evidence is to be rejected, particularly where such a finding is tantamount to a conclusion that the evidence of both witnesses is a fabrication; see also BHM15 at [50].

62    Furthermore, the reasoning at [130] is tantamount to a conclusion that the evidence of each of neighbour (a) and daughter (b) is pure fabrication. In BTF15 at [56] Katzmann J drew a distinction between giving evidence no weight and making a finding of fabrication:

It is one thing to find that evidence should not be given any weight. It is quite another to conclude that evidence is a fabrication. The High Court has said in a different context that “as a matter of logic and common sense, something more than mere rejection of a person’s evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence”: Smith v New South Wales Bar Association (1992) 176 CLR 256 at 268 (Brennan, Dawson, Toohey and Gaudron JJ). The Tribunal was entitled to find that the evidence of the two witnesses could not overcome the inconsistencies in the appellant’s account. It was unnecessary and inappropriate, however, for the Tribunal to go further and find that their evidence was a fabrication: Smith at 271–2 (Deane J). In the circumstances, that finding was unreasonable. It should not have been made.

63    The primary judge concluded at [26] that the present case was not one that fell within BXK15 and that it was not necessary in the present case for the Tribunal to consider the corroborative evidence. For the reasons set out above, I respectfully disagree. In the present case the facts of the case demonstrate that the Tribunal fundamentally erred by failing to provide any cogent explanation for its rejection of the evidence of neighbour (a) and daughter (b). On that basis, ground 1 of the appeal must be allowed.

64    In my view, the criticism of the reasoning of the Tribunal insofar as it concerns the evidence of friend (d) and community (c) is not in the same category. The evidence of friend (d) was general in nature and identified a broad threat from Boko Haram in the most general terms. Similarly, the evidence of Community (c), which is a letter from an unidentified individual giving indirect evidence of some vague “investigations” attributing an act of arson to Boko Haram required no further mention.

3.2    Ground 2 – legal unreasonableness, illogicality or irrationality

65    In the second ground, the appellants contend that the Tribunal made four material findings (particulars 2(a)–(d)) that were adverse to the appellants’ credit, but were not based on or supported by probative evidence and lacked a rational or logical basis. This ground can be addressed in short form.

66    It is trite to say that where intra-mural fact finding by a decision maker is challenged on this basis, particular care must be taken to avoid falling into a merits review; SZMDS at [38], [96]. It is not enough that the appellate court have a preference for a different result. In the present case in my view the criticised findings do not approach the level required to establish jurisdictional error on this basis.

67    In the first particular the appellants allege that the Tribunal’s finding to the effect that the First Appellant’s credibility was undermined because she initially did not take seriously the approach by Boko Haram to recruit the Second Appellant lacked an intelligible justification. That challenge cannot be sustained. The Tribunal took the view at [100] that it was inherently implausible that the second appellant would be permitted to remain at school in circumstances where other boys from that school were known by the first appellant to have been forcibly recruited by Boko Haram. Whilst the first appellant offered an explanation for her position, it was open to the Tribunal to reject that explanation and to reach the conclusion that it did.

68    The appellants’ submissions in relation to the second particular diverge from the pleading. They submit that the Tribunal erred in finding that it was “troubling” that the Tribunal failed to engage with critical issues when it conversed with the person who answered the telephone number listed in the Church’s website as being the first appellant’s husband. They also submit that it was irrational for the Tribunal to conclude that he necessarily was located at the church at the time of the call, given that it was a mobile number that was called. These submissions do not rise higher than criticisms of the factual findings of the Tribunal by way of impermissible merits review.

69    The third particular points to what is said to amount to an error of fact finding by the Tribunal. In my view it cannot be said to give rise to a conclusion that the Tribunal fell into jurisdictional error by reason of engaging in legally unreasonable reasoning.

70    In the fourth particular the appellants contend that, having found that the appellants gave consistent evidence, especially of the approach and attack by Boko Haram, both over time and between each other, it failed to conclude that such evidence could be indicative of genuine claims for protection. They submit that it is irrational and illogical or legally unreasonable for the Tribunal to find that the evidence of both appellants was consistent with each other and over time and yet find that they were not to be believed. However, the gravamen of the Tribunal’s reasoning in this respect is that despite these consistencies, for the reasons that it gave earlier, the appellants were not credible witnesses. It was not legally unreasonable to reach that conclusion. In this regard, I note that it is not in this ground contended that it was legally unreasonable for the Tribunal to reach its view on credit in the face of the corroborating evidence.

71    Accordingly, the primary judge did not err in rejecting ground 2 in the proceedings below.

4.    DISPOSITION

72    I have found that ground 1 is established but ground 2 is not. I will make the following orders:

(1)    The appeal be allowed.

(2)    The orders made by the Federal Circuit and Family Court on 10 February 2022 be set aside and, in their place, the following orders be made:

(a)    A writ of certiorari be issued quashing the decision of the second respondent dated 15 February 2017.

(b)    A writ of mandamus be issued requiring the second respondent, differently constituted, to determine the application for review according to law.

(3)    The first respondent pay the appellants’ costs of and incidental to the appeal and the proceedings in the Federal Circuit and Family Court.

Associate:

Dated:    2 August 2023