Unreasonableness and being a ‘reformed homosexual man’ or ‘genuinely bisexual’

A particularly egregious example of unreasonableness is Abboud v Minister [2018] FCA 185  in which the Tribunal made arbitrary assumptions as to how a gay person ought to behave.  The Tribunal has now on several occasions rejected persecution claims on the basis of sexuality through means of suggesting the applicant is involved in a gay ‘conspiracy theory’.  Patently, such approach is unreasonable, irrational or demonstrative of failing to engage with the material before it. The entire Abboud decision is worth reading in order to expose the audacity of the Tribunal’s reasoning, but see especially [23]-[26].


Credibility and allegedly ‘inconsistent’ evidence

Frequently a decision-maker will leap to a conclusion that an applicant has been ‘inconsistent’ in his or her account.  Frequently also, a decision-maker will bandy this label of ‘inconsistency’ incorrectly.

Often, in truth something may not be ‘inconsistent’. For example, the omission of making a particular claim at interview 1 does not mean it is an ‘inconsistency’ if raised in interview 2: see AVQ15 v Minister [2018] FCAFC 133 at [27].

Also, just because there is an ‘inconsistency’ (assuming that word is used correctly), it does not follow that a credibility issue emerges. For example, a minor inconsistency cannot be transformed into a reason to disregard the whole of an applicant’s claims: see AVQ15 v Minister [2018] FCAFC 133 at [28]; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [78].

Further, special attention needs to be given to the circumstances in which an applicant is giving evidence, before leaping to a conclusion of ‘inconsistency’ (or for that matter, adverse credit).  Thus, if an applicant warns that he or she is only giving a ‘summary’ which is ‘not an exhaustive statement’ and will be giving more detail at a later stage, a failure to appreciate that qualification may create a jurisdictional error: see AVQ15 v Minister [2018] FCAFC 133 at [28], [30], [33], [41].

Findings of fact apparently based on credibility cannot shield what is otherwise incontrovertible

A tribunal of fact cannot insulate its fact-finding by asserting that it is all based on credibility. This obvious proposition was explained in Fox v Percy (2003) 214 CLR 118:

[28] Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.

[29] That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.

(footnotes omitted)

Credibility and omissions of claims from entry interview

In MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80, North, Bromberg and Mortimer JJ observed at [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.

Attacking findings of adverse credibility

The Minister’s common retort that making findings as to credibility is a task of the tribunal ‘par excellence’ is often abused.  That tautology does not mean that credibility findings cannot be challenged in judicial review.  Criticism of the abuse of ‘par excellence’ was made in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[38]:

Before considering the arguments in detail, there is one topic which this appeal usefully highlights. That credibility is a matter par excellence for the Tribunal is an expression often used. It stems from Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 74 ALJR 405 per McHugh J. At [67]-[68] his Honour, sitting in the High Court’s original jurisdiction as a single judge, said (footnotes omitted):

67 In addition, the prosecutor alleges that the Tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor’s claim that members of PLOTE tried to recruit him were “utterly implausible”. However, this was essentially a finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged.

68 But there is a more fundamental reason why the argument based on s 430 fails to support a claim for prerogative relief. Even if, contrary to my view, there was a breach of s 430(1) by the Tribunal, it would not amount to a jurisdictional error. In Minister for Immigration and Ethnic Affairs v Eshetu, Gummow J referred to the requirement that, before granting a protection visa, the Minister and, on review, the Tribunal be “satisfied” that the prosecutor was a refugee. That requirement arose from ss 36 and 65 of the Act. His Honour said:

“A determination that the decision-maker is not ‘satisfied’ that an applicant answers a statutory criterion which must be met before the decision-maker is empowered or obliged to confer a statutory privilege or immunity goes to the jurisdiction of the decision-maker and is reviewable under s 75(v) of the Constitution.”

The prosecutor argued at the hearing that s 430(1)(c) “feeds into the ascertainment of the Minister’s satisfaction” and that it is “an integral part of ascertaining the jurisdictional fact”.

(emphasis added)

It is important to note that McHugh J’s observations and his Honour’s use of the phrase “par excellence” were made in the specific context of a claim that the Tribunal had not complied with its statutory obligation under s 430 of the Migration Act to give reasons for its decision. Nothing said by McHugh J suggests that the Tribunal’s adverse findings on credibility are not amenable to judicial review on jurisdictional error grounds. There is a risk that a mechanical use of the phrase “par excellence” as a formula fails sufficiently to appreciate this important reality. The fact that credibility is a matter for the Tribunal to determine as a question of fact does not mean that challenges to credibility are not open. This appeal illustrates three of a number of potential bases of challenge to credibility findings on well‑established legal precedent. In the present appeal, the foundation for the challenge is on the basis of no logical or probative basis for the finding in relation to ground 1, illogicality and/or irrationality in relation to ground 2, and, in relation to ground 3, a lack of natural justice.

There are several other potential bases upon which credit findings can be challenged. Recitation of the expression that credibility is a matter par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:

(a) failure to afford procedural fairness;

(b) reaching a finding without any logical or probative basis;

(c) unreasonableness; and/or

(d) jurisdictional error as discussed by Flick J in SZVAP.

Zealous findings of untruthfulness

In NRM Corporation Pty Ltd v Australian Competition and Consumer Commission [2016] FCAFC 98, the Full Court endorsed the (long-standing) proposition that one should be cautious in making active findings of witness untruthfulness.

[147] It should nevertheless be accepted at the outset that a finding that a witness has been “untruthful” attracts a necessary exercise of judicial caution: cf. Smith v New South Wales Bar Association (1992) 176 CLR 256 at 268. Justices Brennan, Dawson, Toohey and Gaudron there observed:

It is particularly important in disciplinary cases, where the honesty and candour of legal practitioners assume special significance, that the distinction between the rejection of a person’s evidence and a positive finding that he or she deliberately lied be observed. The mere rejection of evidence can neither justify a consequence over and above that which properly attaches to the matter charged, nor deprive the person of the benefit of personal considerations which might otherwise be taken into account. The matter was put succinctly, although in a different context, by Cussen J in R v Richmond ([1920] VLR 9 at 12):

It would certainly act as a deterrent even to an innocent man giving evidence, especially where there is a strong case against him, if he knew that if the jury does not accept his evidence he may receive a sentence heavier than otherwise would be imposed.

A finding that a person deliberately lied when giving evidence is, in effect, a finding of perjury and, thus, it ought not to be made on “the single oath of another man, without any confirmatory evidence.

[150] Where there has been “significant delay” [in providing reasons], it has been said that “it is incumbent upon a trial judge to inform the parties of the reasons why the evidence of a particular witness has been rejected”: Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189 at [72] per Carr, Emmett and Gyles JJ.

In Re Zheng and Minister for Immigration and Citizenship (2011) 121 ALD 372, Deputy President Forgie of the AAT referred to the obvious proposition that a witness being untruthful in one aspect of his or her evidence does not mean that the entirety of the witness’s evidence is untruthful.  Similarly, there is an important distinction between evidence not being credible, and the witness not being credible.  There was extensive discussion of this at [64]-[76].

These are important reminders of how decision-makers must not rush to condemn witnesses and applicants as outright liars, as is far too often the case.  Whether misconceived, over-zealous findings of adverse credibility might lead to jurisdictional error is yet to be fully-explored, but questions of reasonableness appear to be relevant.  In BTF15 v Minister for Immigration and Border Protection [2016] FCA 647, Katzmann J criticised a finding that witnesses fabricated evidence as ‘unreasonable’.  At [56], her Honour said:

I am troubled by the Tribunal’s conclusion that the statements of the two witnesses were fabricated.  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.

About 11 years earlier, the Federal Court observed in Minister for Immigration & Multicultural & Indigenous Affairsv Maltsin [2005] FCAFC 118 at [54] that the damning of witnesses other than the applicant might be a jurisdictional error, in at least two distinct ways:

…  It was, however, unfair in the circumstances to condemn as dishonest a group of individuals, some of whom had and some of whom had not prepared statements for the Tribunal, in circumstances where they had no chance at all to answer such an accusation, especially as the basis for the finding of dishonesty was not self-evident.

Mahon v Air New Zealand may also provide some support for the proposition that, where the rules of procedural fairness apply, they control the hearing before the relevant administrative body generally and, at least in some circumstances, may enure for the benefit of persons other than an applicant: see, however, the discussion in Re Hurd and Hewitt [1994] 120 DLR (4th) 105, reversing Hurd v Hewitt (1991) 13 Admin LR (2d) 223. Although each of these authorities is distinguishable from the present case, each indicates that it is at least arguable that a denial of procedural fairness to a person other than an applicant before the Tribunal may in some circumstances impinge on the validity of the ultimate decision. Alternatively, this may be a case in which the Tribunal’s “web of deceit” finding so lacked any reasonable foundation that, to adopt the language of Allsop J in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 (“NADH of 2001“) at [136]:

“To assert conclusions of this kind in this way may be seen as not to engage in a reasoning process, but to assert conclusions by a process that is no more than an intuitive, arbitrary or capricious response to the task.”

In view of the errors already identified, however, it is unnecessary to determine whether a failure to act fairly as regards the respondents’ family and friends could amount to a jurisdictional error that would vitiate the decision, or an error of the kind described by Allsop J in NADH of 2001.

In Bax v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 55 the Full Federal Court observed at [16]:

The circumstances here were such as to make applicable what, in Mahon v Air New Zealand Ltd [1984] 1 AC 808, Lord Diplock identified as one of the rules of natural justice. His Lordship said at 821:

“The second rule requires that any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding even though it cannot be predicted that it would inevitably have had that result.  (Original emphasis.)”

See also Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, at 116 [par 78], (Gaudron and Gummow JJ) and 121 [par 101] (McHugh J). In Aala (supra), at par [101] McHugh J said:

“One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person’s rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. 

The Full Federal Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 concluded:

It may be accepted that cases such as SZNPG and Smith do make the point that, unless it is strictly necessary, it is preferable not to reach a conclusion that an applicant is a “liar”. But while this is indeed sound practice, the remarks do not suggest that the Tribunal will have fallen into jurisdictional error if it does reach such a finding. There was ample foundation in this instance for the Tribunal to reach the conclusion that the appellant was not a witness of truth.

However, that observation does not preclude that sometimes a finding that a person has ‘lied’ might be unreasonable, and for that reason, a jurisdictional error.