ABC18 v Minister for Immigration and Citizenship [2026] FCA 274

The Court erred by not holding that the Administrative Appeals Tribunal (Tribunal) engaged in jurisdictional error in affirming the decision of a delegate of the First Respondent not to grant the Appellant a Protection (Subclass 866 Visa) (Visa). The Court should have held that the Tribunal engaged in jurisdictional error by making findings of fact regarding the Applicant's credibility that were illogical, irrational, or lacking a probative basis.

1. The particulars refer to the claims made by the Appellant in his application for the Visa, his oral evidence that those claims were incorrect, the different basis for protection that he advanced by his oral evidence, and his evidence that the written application was filled out by a friend, not in accordance with the Appellant's instructions. The key particulars are that:

The Tribunal accepted, or at least did not doubt, the Appellant's explanation for the differences between the Oral Claim and the Written Claim (Reasons [20]-[23]). Consequently, there was no probative value in the "inconsistency" that the Tribunal identified and relied upon in finding that the Appellant's Oral Claim was not "creditable or plausible".

The Tribunal's error was 'material'. Absent the error, there is a realistic possibility that the Tribunal could have taken a different view of the Appellant's protection claim.

1. As recorded by the Tribunal, the Appellant arrived in Australia on 2 September 2013 on a tourist visa and remained in Australia after his visa expired. He applied for a protection visa on 18 May 2016 (T 19]).
2. The Tribunal recorded that the Appellant's written application for the Visa claimed that he faced harm from loan sharks in the event of returning to Malaysia (T [12]). The written claims asserted that:

(a) he came to Australia on a tourist visa and could not return to Malaysia as his family was assaulted by money lenders who pledged to kill him too;

(b) his parents were not strong enough financially or physically to protect or shield him from the threats and dangers and advised him not to return to Malaysia; and

(c) he had no option but to remain in Australia without a visa as he heard the "assaulters were everywhere".

1. The Appellant gave evidence before the Tribunal. His oral evidence was contrary to his written application as his written application referred to his parents not being strong enough financially or physically to protect him from the said threats and dangers and advising him not to return to Malaysia, but the Appellant's oral evidence was that that his mother and father had both passed away, his mother when he was very young, and his father about five years before the proceedings before the Tribunal (T [15]).
2. The Appellant's oral evidence was further contrary to his written application as the written application stated that the Appellant had lived in Alto Star, Kedah, from 1984 until 2004, whereas, in his oral evidence, the Appellant said that after his mother died, he was raised by his stepmother in Thailand until the age of 12 and then went to live with relatives in Gerik in the State of Kelantan (T [17]). The Tribunal recorded that it accepted the Appellant's oral evidence about where he lived prior to 2004 (T [17]).
3. The Tribunal then turned to the Appellant's written claims founding his protection claims, and the Appellant's repudiation, in his oral evidence, of the loan shark claims made in his written application.
4. As recorded by the Tribunal, the Appellant's oral evidence was as follows:
   1. At the hearing, the applicant referred to and expressly rejected the written claims in his protection visa application.
   2. His evidence was that he had paid a friend to complete the application form on his behalf. However, he said that despite having explained to his friend the true reason for him wanting a protection visa, his friend had not completed the protection visa application form in accordance with his instructions. Although he admits that he did sign the form, his evidence was that at the time it was filed with the department, he did not read the document nor did he have it explained to him.
   3. As a result he said that the claims in the application form were not correct and that he did not hold any genuine personal fear of persecution and that there was no real risk of him being significantly harmed by loan sharks in the event he return to Malaysia as detailed in his written claim.
   4. The Tribunal accepts the oral evidence of the applicant that his written claim were incorrect and finds that he was not in any fear of harm in respect of the applicants written claim. As a result the Tribunal finds that there is no a real chance of persecution or any real risk of significant harm to the applicant, now or into the reasonably foreseeable future, by reason of the applicant's written claim.
5. The Tribunal recorded its conclusions regarding the Appellant's oral evidence, and the protection claims advanced by his written application, as follows:
   1. Therefore, based on the applicants oral evidence, the Tribunal finds that the applicant does not have a real chance of serious harm arising out of his written claims on return to anywhere within the Federation of Malaysia and in the foreseeable future. The Tribunal therefore finds that the applicant does not have a well-founded fear of persecution arising out of his written claims that would satisfy s.36(2)(a).
   2. In addition, based on the applicants oral evidence, the Tribunal finds that there are no substantial grounds for believing that there is a real risk the applicant, as a necessary and foreseeable consequence of being removed from Australia to his country of reference, Malaysia, will suffer significant harm of any kind arising out of his written claims pursuant to s.36(2)(aa).
6. The Tribunal then turned to the Appellant's oral claims concerning his protection claims, and summarised the oral claims as follows:
   1. The applicant's evidence was that in or about 2013 he was conducting a business in Malaysia with a friend delivering drugs for one of the gangs. He said that he travelled to Australia to escape his friend and members of the gang as he no longer wanted to conduct the business of delivering the drugs. He says that despite his protests his friend refused to stop the business. As a result he decided to leave Malaysia.
   2. The applicant's evidence was that at the time he left Malaysia he was not a person of interest to the Royal Malaysian Police ('RMP'). There was no warrant for his arrest and he had not been detained or questioned by the RMP.
   3. However, the applicant says that he has been informed by his friend's uncle that, approximately 2 years ago, his friend had been detained by the RMP. As a result, he fears that his friend has informed the RMP about him and therefore fears he will be detained by the RMP upon his return to Malaysia. The applicant has not made any enquires or sought any advice as to whether his friend has in fact informed the RMP about him and if he is now a person of interest to the RMP.
   4. The applicant had not made any enquires as to the nature of any charges brought against his friend and whether his friend had been convicted of any crime. Accordingly, the applicant was not able to advise the Tribunal if his friend had been convicted or even charged with an offence. In addition he was not able to inform the Tribunal as to the nature of the charges against his friend or as to the status of any proceedings against his friend.
7. The next section in the Tribunal's reasons was headed "Assessment of Claims and Findings". The Tribunal set out its findings regarding the country of reference in respect of the Appellant - Malaysia - and then addressed the Appellant's credibility. The Tribunal set out its approach to assessing the credibility of an applicant, including recording the need to give applicants the benefit of the doubt where the applicant is generally credible but unable to substantiate all of his or her claims (T [32], see also T [35]). The Tribunal then set out its approach in respect of what the Tribunal has to be satisfied of, and explained why it is not the Tribunal's task to make out an applicant's claims, and that the Tribunal is not required to "accept uncritically any and all the allegations made by an applicant" (T [33]).
8. The Tribunal's reasons in respect of the credibility of the Appellant and the significance, in the Tribunal's assessment of credibility, of the inconsistency between the Appellant's written and oral claims lies at the heart of this appeal, and is set out in full:
   1. The Tribunal is aware that vulnerable asylum seekers will have difficulties in providing documents or expressing their fears. However, in this case the Tribunal has concerns about the veracity of the applicant's evidence. The applicants delay in making his application for a protection visa, the inconsistency in the applicant's evidence between his written claim and oral claim and the general lack of detail together with the absence of any supporting documentation to corroborate his claims means that the Tribunal does not accept the applicants claim as creditable or plausible.
   2. The applicants written claim refers to the fact that his family were assaulted by 'money debtors' and that his parents were not strong enough financially or physically to shield him from the threats and dangers and had advised him not to return to Malaysia. Yet in his oral claim he states that his parents had both passed away and that he has no contact with his brother and sister. While the basis of one's claim may change over time, the basic facts relating to an applicant's background and personal circumstances, in the absence of a plausible explanation, remain constant. In this case, the applicant's oral evidence that his parents had passed away is contrary to his personal details as revealed in his written claim. Accordingly, in the absence of any independent evidence, the Tribunal does not accept the applicant's evidence that his mother and father had died and that he had no contact with his brother and sister.
   3. In addition the applicant claims that his friend had been detained approximately two years ago. The Tribunal notes that his protection application is dated 2 December 2015. Therefore, the applicant had knowledge of his friend being been detained by the RMP at or around the time he lodged his application for a protection visa. In such circumstances, it is reasonable to expect that any fears the applicant has concerning his friend, gang members or being detained by the RMP would have been included in his application at that time.
   4. In addition, despite claiming that his friend had been detained approximately two years ago he was not in a position to inform the Tribunal as to the status of his friend's case. Despite having been in contact with his friend's uncle he was not able to say if a trial had been conducted or if his friend had been convicted of any offence. In addition, he was not able to say if he specifically was a person of interest to the RMP. The applicant was not in a position to provide the Tribunal of any documentary evidence to show that his friend had been detained, charged or even convicted of an offence or that he was a person of interest to the RMP. The applicant's evidence was generally not creditable as vague, inconsistent and lacking in any detail. Accordingly, the Tribunal does not accept that he was involved in the business of delivering drugs for a gang as claimed.
9. The Tribunal concluded, accordingly, that it was not satisfied that the Appellant was a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act, and was not satisfied that the Appellant met the complementary protection criteria under s 36(2)(aa) (T [42]-[43]). Accordingly, the Tribunal affirmed the decision not to grant the Appellant a protection visa (T [47]).
10. The conclusion that an administrative decision-maker has engaged in jurisdictional error on the basis of illogical or irrational reasoning will not lightly be drawn. In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130]-[131], relied on by the Appellant, Crennan and Bell JJ said (emphasis added):

In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

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

1. On the appeal, the Appellant recognises that the Tribunal gave four reasons for not accepting his oral claims as creditable or plausible: his delay in applying for a protection visa; the consistency between his written and oral claims; the general lack of detail in his claims; and the absence of any corroborative documentation (referring to T [37] and [41]). The Appellant submits that:

In the circumstances of this case, where the earlier written claims had been disclaimed as never having been true, it was irrational or illogical for the Tribunal to have found that the mere fact of inconsistency between the appellant's written and oral claims was a matter probative of whether or not the oral claims were plausible.

1. The Appellant's argument, then, is that the "typical", or "traditional", basis upon which inconsistency in a narrative is relevant to credibility - the person gives different accounts of the same narrative - is not logically available where a wholly different narrative is offered. The Appellant accepts that the proffering of the earlier, false, narrative in the Appellant's written claims was not necessarily irrelevant, but could only have been relevant if the Tribunal had reasoned that the Appellant was a person who was prepared to put a false narrative before the Department, but says that that is not the way the Tribunal proceeded.
2. I do not accept the Appellant's argument.
3. The Tribunal's reasons distinguish between its account of the oral evidence given by the Appellant, and the elements of that evidence that the Tribunal accepted, and on the basis of which the Tribunal made findings. For example, the Tribunal expressly recorded that it accepted the Appellant's oral evidence regarding where he lived prior to 2004 (T [17]), and that the protection claims set out in his written claims were not true (T [23]). The Tribunal did not state that it accepted the Appellant's evidence as to how the written claims came to record the false claims, or that he had no knowledge of the contents of the written claims recorded.
4. At T [40], the Tribunal stated that "[t]he [Appellant's] evidence was generally not creditable as vague, inconsistent and lacking in any detail". I do not accept that inconsistency can only be logically relevant in the two narrow ways the Appellant identifies in his submissions: different accounts of the same set of events, or on the basis that a change in a person's story shows the person to be one who is prepared to put false information before the Department.
5. The Appellant cited two authorities in support of the contention that an inconsistency must be relevant or of significance if it is to form part of the Tribunal's reasoning in rejecting a protection claim: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83 at [28] (Kenny, Griffiths and Mortimer JJ); ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271 at [43]-[44] (Griffiths, Mortimer and Steward JJ). However, neither of those authorities, confines the concept of inconsistency in the way for which the Appellant contends (nor did the Appellant cite any other authority on the concept of inconsistency). It may be accepted that any particular inconsistency may, or may not, be significant, depending on the circumstances of the case.
6. A complete change in the basis upon which a person claims protection is obviously within the bounds of what a decision-maker may consider to undermine the person's credibility. The Tribunal's simple point about inconsistency was that the Appellant had advanced two different narratives as the basis for his protection claims. He first said he was fearful of returning to Malaysia because of loan sharks, but then advanced a totally different basis orally before the Tribunal, namely the drug dealing narrative. Unless the Tribunal were to have accepted that the Appellant had no knowledge of the first set of claims being made in his written claims, it was not illogical for the Tribunal to regard the Appellant's accounts as inconsistent and take that into account in assessing the Appellant's oral protection claims. However, and as noted above, the Tribunal stated the elements of the Appellant's oral evidence that it accepted, and it did not state that it accepted his account of how the loan shark claims came to be included in his written claims.
7. The particulars to the Appellant's ground of appeal contend that "[t]he Tribunal accepted, or at least did not doubt, the Appellant's explanation for the differences between the Oral Claim and the Written Claim", referring to T [20]-[23]. It is this feature of the Tribunal's reasoning that is said to render the inconsistency one that had no probative value. However, the paragraphs of the Tribunal's reasons to which the Appellant refers are plainly concerned with the Appellant's oral evidence about the loan shark claims made in the written claims being incorrect; those paragraphs were not concerned with the Appellant's evidence about how those claims came to be advanced. Further, I do not accept that the fact that the Tribunal did not expressly "doubt" the Appellant's account of how the different accounts came to be, exposes the Tribunal's reasoning to be infected by illogicality. The absence, in the reasons of an administrative decision-maker in a busy Tribunal, of a specific rejection of the Appellant's oral evidence about how the inconsistency came about, does not give rise to an inference that that evidence was in fact accepted so as to found the charge of illogicality.
8. In oral submissions, the Appellant contended that it was enough for his case that the Tribunal did not decide, one way or the other, whether the Appellant's explanation of the circumstances by which his written claim was made was true. I do not accept that submission. It is only if the Tribunal accepted the Appellant's explanation of the circumstances by which the written claims were made that any potential for the inconsistency to lack probative force emerges. But there is nothing in the Tribunal's reasons to suggest that it did accept the explanation, and the Appellant has not, in this appeal, advanced any jurisdictional error contention on the basis that the Tribunal failed to give genuine and proper consideration to that matter.
9. Accordingly, the Appellant has not made out his case that the Court below erred in failing to find that the Tribunal engaged in jurisdictional error by making findings of fact regarding the Appellant's credibility that were illogical, irrational or lacking a probative basis. Had I been persuaded that the Tribunal had erred in the manner for which the Appellant contended, I would have considered the error to be jurisdictional. While the Tribunal identified four bases on which it considered the Appellant's oral claims not to be creditable or plausible, the inconsistency between the Appellant's written and oral claims cannot be regarded as so insignificant a factor that there is no realistic prospect that the Tribunal could have reached a different conclusion absent the error infecting the conclusion on inconsistency: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [7] and [16] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).
10. The appeal will be dismissed, with costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Button.