(a) Ground 1
21 This ground is directed to the Tribunal's findings that there were inconsistencies in the appellant's written claims and the evidence he gave before the Tribunal. Before addressing that ground in detail, it is appropriate to say something generally about the use of inconsistencies in an asylum seeker's evidence in assessing the person's credibility.
22 The UNHCR, in its report entitled "Beyond Proof: Credibility Assessment in EU Asylum Systems", 2013 at p 27, has described "credibility", in the context of asylum applications, in the following terms, which we consider to be an appropriate description:
In the English language, the ordinary meaning of 'credibility' is whether something or someone is capable of being believed, or alternatively, whether something or someone is trustworthy or reliable. 'Credible' is defined as "able to be believed or convincing."
…
The term 'credibility assessment' in this context is used to refer to the process of gathering relevant information from the applicant, examining it in the light of all the information available to the decision-maker, and determining whether the statements of the applicant relating to material elements of the claim can be accepted, for the purpose of the determination of qualification for refugee and/or subsidiary protection status.
(Footnotes omitted.)
23 A decision-maker is entitled to rely upon inconsistencies in assessing a visa applicant's credibility but it is important that the process be conducted fairly and reasonably, taking into account that the assessment of the reliability, and credibility, of accounts given by asylum seekers is well recognised as involving a number of particular features and considerations, and calls for a careful and thoughtful approach.
24 In their text, The Law of Refugee Status (2nd edition, 2014) at p 139, James Hathaway and Michelle Foster describe the assessment of credibility as often being based on one or more of four matters: plausibility, relevant knowledge of an asylum seeker, demeanour and consistency of testimony. The learned authors discuss in detail (at pp 139-149) the comparative jurisprudence on these four features of credibility assessments, including references to many decisions of this Court dating back 20 years. The necessity for care, fairness and a reasonable approach, in order to avoid what the learned authors describe at one point as "a quest to disbelieve" (at p 138), or to avoid irrationality or legal unreasonableness in an approach to credibility assessment, is evident from the comparative authorities there discussed, including as we have noted, many authorities from this Court. The learned authors conclude (at pp 148-149):
As can be seen, the tools available to assess the credibility of an applicant's testimony are each highly flawed. Reliance on plausibility is prone to inferences based on assumptions of rationality often at odds with conditions in the country of origin. The use of knowledge tests is problematic given difficulties to identify both true core knowledge and knowledge that is appropriate to a person in the applicant's particular circumstances. Demeanor assessment is of necessity benchmarked against some assumption of universal normalcy (which does not actually exist), and can prove especially ill-suited to assessing the claims of women, children, and victims of trauma. And a focus on the consistency of testimony is based on a false psychological assumption about the nature of truth-telling over time, and can be heavily skewed by an applicant's understandable reluctance to be forthcoming at early stages of the determination process and where evidence is provided (as is normally the case) through an interpreter. Real caution is thus appropriate before any adverse inference regarding credibility is drawn on one of these bases.
(Footnotes omitted.)
25 One authority to which Hathaway and Foster refer is the decision of a Full Court of this Court in W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379 (W375/01A) where the Court (Lee, Carr and Finkelstein JJ) said at [15]:
As anyone with even a passing familiarity with litigation will know, to have to give a decision-maker three or more separate versions of the basis for a claim is an invidious position to find oneself in, even in the case of an honest witness. All the more so when the accounts have been provided by a person who speaks no English and who has required the assistance of an interpreter. It is inevitable that each version will be slightly different, and may even be very different once the impact of the interpreter is taken into account.
26 Consistently with its task on review, and bearing the reality to which the Full Court in W375/01A referred steadily in mind, appropriate attention has to be given by a decision-maker (here, the Tribunal) to all relevant material in making a finding of inconsistency which then underpins an adverse credibility assessment. As will shortly emerge, this did not occur here because the Tribunal overlooked what the appellant had earlier told a Departmental officer at the appellant's interview and this material was highly relevant to the question whether the appellant had given inconsistent evidence in support of his case.
27 Secondly, 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.
28 Thirdly, 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.
29 With those general observations in mind, we will now explain why we consider ground 1 should be upheld. As the following analysis reveals, the Tribunal's finding of inconsistencies in the appellant's evidence, which findings underpinned its adverse assessment of the appellant's credibility, overlooked significant information which was before it and which potentially put a different light on those findings. This information is recorded in the first paragraph of the appellant's statutory declaration and in the written transcript of the appellant's earlier interview with the Departmental officer, a copy of which was before the Tribunal. Inexplicably, in its reasons for decision the Tribunal made no express reference to the transcript of interview. This was notwithstanding that the appellant declared in his statutory declaration that he would provide further information to the Department in support of his case.
30 The appellant's statutory declaration contained the following introductory paragraph (emphasis added):
1. The following is only a summary of my claims for protection. It is not an exhaustive statement of the reason or reasons why I cannot return to my country of origin. I will provide further information in relation to my protection claims during my interview with the DIAC officer.
31 The transcript of the appellant's interview with the Departmental officer records the appellant as saying that:
(a) he was "having problems so I went to Jaffna and did a computer course…The Army went and questioned my mother and sent all details to Jaffna, CID. This is when I realised I could not live anywhere and I came here"; and
(b) he ran away to Jaffna in March 2012, stayed there for three months, was doing a computer course and that he had gone there because he "had problems here".
32 In response to a question from the officer as to whether he had "any trouble with the army or anyone else in Jaffna", the appellant responded:
They knew I was staying there. Once they called me to ask me questions. They had my file there in front of them. They said people in [the appellant's hometown] sent it to them.
33 A fundamental difficulty with the Tribunal's findings of inconsistencies in the appellant's written and oral evidence is that the Tribunal has entirely overlooked what the appellant told the Departmental officer, notwithstanding that a copy of the transcript of his interview formed part of the record before the Tribunal. The interview was important, including because the appellant had stated in his statutory declaration that he would provide further information in relation to his claims during that interview. Any finding of inconsistency of the kind made by the Tribunal here had to take into account what the appellant said in that interview. We shall elaborate on these matters below.
34 First, at [18] of the Tribunal's reasons for decision, the Tribunal contrasted the appellant's oral evidence before the Tribunal with his written claims relating to the public meeting. The Tribunal noted at [18] that the appellant initially told the Tribunal that he was called in for questioning at the army camp 4-5 days after the public meeting, later stating that he was called in for questioning two days after the meeting and that he moved to Jaffna two days after that. The Tribunal contrasted this evidence with his written claims (presumably in his statutory declaration), that the CID harassed him and others involved in the temple building society once or twice a week, called him in to the camp and sometimes held him there for the whole day or took him at night from his house or in the street. These findings take no account of what the appellant is recorded as saying at his interview with the Departmental officer. The transcript of that interview shows that, without reference to any particular time period, the appellant told the officer that the army sometimes took him away at night and sometimes questioned him and would release him in the morning. With specific reference to the building of the temple, he told the officer that the army said that it was not able to be built and "they threatened me and questioned me and then released me". He said that the foundation was laid on 17 January 2012 and that "the problems" started the next month and that he ran away to Jaffna. He said that the CID had taken him and the president of the society away to question them. He also said that he went to Jaffna and lived there for three months from March until July 2012. When he was asked whether he had any trouble with the army or anyone else in Jaffna, he responded:
They knew I was staying there. Once they called me to ask me questions. They had my file there in front of them. They said people in [the appellant's hometown] sent it to them.
35 Secondly, at [19] the Tribunal explained why it found that there were other inconsistencies in the appellant's evidence in relation to what occurred while he was living in Jaffna. It summarised his evidence on this subject in his statutory declaration and then noted that the appellant did not suggest in his written claims that the army located him or made any other contact with him or his family while he was residing in Jaffna. The Tribunal contrasted this with the appellant's oral evidence at the Tribunal hearing that his mother had told the army that he had gone to Jaffna to study and that one day when he returned to his room after class two people who said they were CID officers told him that the army had informed them that the appellant was hiding in Jaffna and that he had to return to his hometown for questioning.
36 Again, the Tribunal has overlooked the appellant's evidence at his interview. As stated above, he told the officer that after he went to Jaffna the SLA questioned his mother and then sent all his details to the CID in Jaffna. Later, he said that the army knew that he was staying in Jaffna and that they called him once to ask him questions and that they had his file in front of them. Further he said that the people who visited him told him that they had got the file from his hometown. Later in his interview, he is recorded as saying that the SLA and CID "work together". The Tribunal's finding of inconsistency fails to take into account this information.
37 Thirdly, the Tribunal noted that the appellant said at the Tribunal hearing that as a result of this incident at Jaffna, his landlord refused to let him stay on in his rented room in Jaffna and that he returned to his hometown one month later. The Tribunal found at [20] that these matters were not mentioned in the appellant's written claims and that, instead, he stated that he could not remain in Jaffna because the army would eventually catch up with him through their registration process.
38 In his interview with the Departmental officer, the appellant said that he was renting a room in Jaffna. He was not asked any questions by the Departmental officer regarding his room rental. Instead, he was asked whether he had finished his computing course, to which he responded by saying that he had not because half way through the course he came to Australia. Accordingly, it is perhaps unsurprising that he did not mention in his interview that, after he was visited by officials in Jaffna, his landlord asked him to leave. If the Tribunal had turned its mind to this part of the interview and to the fact that the Departmental officer shifted the questioning away from the appellant's accommodation in Jaffna to his study there, the Tribunal may have taken a different view of the significance of the fact that it was only at the Tribunal hearing that the appellant mentioned that he had been asked by his landlord to leave that accommodation after he was visited by the authorities.
39 As the Tribunal made clear in [21] of its reasons for decision, these so-called inconsistencies caused the Tribunal not to accept that the appellant was questioned, harassed or otherwise harmed or mistreated by the SLA following the public meeting in March 2012, nor that any such harm or harassment caused him to relocate to Jaffna. Instead, the Tribunal found that he went to Jaffna in order to study. The Tribunal also relied upon these inconsistencies in not accepting the appellant's evidence that:
(a) he was approached by CID officers while studying in Jaffna;
(b) they ordered him to return to his hometown; and
(c) the SLA had inquired of his mother as to his whereabouts either before or after he left Sri Lanka in July 2012.
40 Relevant legal principles guiding judicial review of adverse credibility findings and whether or not the failure to take into account relevant material in making such findings give rise to jurisdictional error have been discussed in several cases, including WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 437; 194 ALR 676 (WAGO) at [51]-[54] per Lee and R D Nicholson JJ, whose reasoning in these paragraphs was agreed to by Carr J at [57]; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [77]-[115] per Robertson J; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [37]-[38]; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 at [62]-[66]; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30]; DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33 at [19]; BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 at [32]-[38]; Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 at [28] and CWR16 v Minister for Immigration and Border Protection [2018] FCA 859 at [60]-[65] per Allsop CJ.
41 For convenience, the principles which have relevance to the particular facts and circumstances here may be summarised as follows.
(a) The issue whether or not an administrative decision is affected by jurisdictional error requires a careful examination of the relevant statutory framework, with a particular emphasis on provisions which determine the decision-maker's powers, procedures, functions and obligations.
(b) While findings as to credit are generally matters for the administrative decision-maker, they may be amenable to judicial review on several grounds including legal unreasonableness, reaching a finding without a logical, rational or probative basis, failure to perform the required statutory task of review, and failure to take into account material critical to the formation of the requisite state of satisfaction.
(c) Whether or not a credibility finding is affected by jurisdictional error is a case specific inquiry, and should not be assessed by reference to fixed categories or formulae. Merely because a decision-maker has ignored "relevant material" does not always give rise to jurisdictional error in the present context. The importance or cogency of the material, its place in an assessment of the appellant's claim and in the performance of the statutory task are matters of fundamental importance in a protection visa case. Those matters inform an assessment of the seriousness or gravity of the error.
(d) Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result (such as, for example, where it is but one of several findings that independently may have led to the ultimate decision).
(e) Merely because there is no reference in the decision-maker's reasons for decision to particular material does not necessarily give rise to an inference that the material was not considered. Nonetheless, in the case of the Tribunal, which is required by s 430 of the Act to make a written statement setting out its reason for decision and its findings on material questions of fact, and to refer to the evidence on which such findings were based, a failure to refer to evidence that on its face bears on a finding may indicate that that evidence has not in fact been considered and, in some cases at least, disclose jurisdictional error in the decision-making (see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [10] per Gleeson CJ).
(f) Considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review.
42 With those general legal principles in mind, we make the following observations. First, the Tribunal's powers and functions are set out in Pt 7 of the Act. The Tribunal was obliged under s 414 to conduct a review of an RRT-reviewable decision where a valid application for review is made under s 412. By s 415, the Tribunal may, for the purposes of such a review, exercise all the powers and discretions conferred by the Act on the person who made the decision. Division 4 of Pt 7 is, by s 422B, taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with and, in applying that Division, the Tribunal must act in a way that is fair and just. As already stated, s 430 describes the Tribunal's obligation to provide a written statement of reasons concerning its decision.
43 Secondly, ss 5AAA and 423A, which were introduced by the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) (the 2015 Amendment Act), are potentially relevant to the Tribunal's task of assessing and determining credibility, particularly the latter provision which requires the Tribunal to draw an unfavourable inference on credibility in the specified circumstances. The former provision makes clear that it is the protection visa applicant who has the responsibility of specifying all particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The latter provision, which applies to Pt 7 proceedings, provides as follows:
423A How Tribunal is to deal with new claims or evidence
(1) This section applies if, in relation to an application for review of an RRT reviewable decision (the primary decision) in relation to a protection visa, the applicant:
(a) raises a claim that was not raised in the application before the primary decision was made; or
(b) presents evidence in the application that was not presented in the application before the primary decision was made.
(2) In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.
Having regard to the transitional provisions in item 15 of Pt 3 of Sch 1 to the 2015 Amendment Act, s 5AAA was relevant to the Tribunal's decision here, but s 423A was not, because the appellant's protection visa application was made before the relevant date.
44 Thirdly, it is notable that there is no reference in the Tribunal's reasons for decision to the important express qualifications set out in paragraph 1 of the appellant's statutory declaration, nor to the transcript of his interview. Having regard to the seriousness of the Tribunal's adverse credibility findings and to how they were arrived at, we conclude that the Tribunal simply overlooked this material. This is not a case where an inference could reasonably be drawn to the effect that the Tribunal did turn its mind to this material but concluded that it was not relevant and therefore made no reference to it in its reasons for decision. No such inference could reasonably be drawn here given the significance of the material to the critical issue being addressed by the Tribunal, namely whether or not there were inconsistencies in the appellant's written and oral evidence.
45 Fourthly, the overlooked material is potentially significant in the particular facts and circumstances here. The appellant made plain in his statutory declaration that he would provide further information to the Department in support of his application for a protection visa, which he did. That information elaborated upon some important aspects of what was set out in his statutory declaration. In determining that there were inconsistencies in the appellant's evidence, the Tribunal focused exclusively on the contents of the statutory declaration (while ignoring the introductory paragraph) and what the appellant told the Tribunal at the hearing. Most importantly, the Tribunal paid no regard to what the appellant is recorded as having told the Departmental officer. That material had to be considered before the Tribunal could determine whether or not there were inconsistencies in the appellant's evidence in support of his claims.
46 Fifthly, if the material had been taken into account, the Tribunal may well have not made the serious adverse credibility finding which it did. That adverse credibility finding was critical to the Tribunal's rejection of the appellant's case.
47 Sixthly, these errors are not avoided on the basis that the Tribunal's analysis of inconsistencies in the appellant's evidence was directed only to the appellant's written claims and his oral evidence before the Tribunal. In conducting the review, the Tribunal was obliged to consider all relevant material before it. An assessment of the appellant's credibility had also to take into account what he had said at his Departmental interview on the topics in relation to which the Tribunal made findings of inconsistency.
48 We are satisfied that the Tribunal's decision is affected by jurisdictional error and the primary judge erred in not upholding ground 1 of the amended application for judicial review. The Tribunal's apparent overlooking of material in the form of the transcript of the appellant's interview with the Departmental officer could also be characterised as a constructive failure to exercise jurisdiction (see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 at [80] ff per Gaudron J; VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [68]-[77] per Hill, Sundberg and Stone JJ and COZ16 v Minister for Immigration and Border Protection [2018] FCA 46 at [38]-[46] per Griffiths J). That is because, in assessing whether or not there were inconsistencies between the appellant's written and oral claims, it was incumbent upon the Tribunal to consider relevant parts of that transcript, which it failed to do. The appellant had, after all, made clear in his original statutory declaration that he would expand upon his claims in that interview. Further, in any situation where an applicant is given an opportunity to attend an interview or engage in a review process, it is reasonable for that applicant to expect that she or he will be able to expand on, or explain, aspects of the narrative she or he has given prior to that point. This expectation and the other matters to which we previously referred (see [24]-[26] above) must be properly considered by a decision-maker in making any assessment of the applicant's claims and evidence.
49 As Lee and R D Nicholson JJ said in WAGO at [54]:
54. The unwarranted assumptions of the Tribunal as to matters relevant to formation of a view on the credibility of the corroborative witness caused the Tribunal to disbelieve and disregard that evidence and constituted a failure by the Tribunal to duly consider the question raised by the material put before it: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 per Gleeson CJ at [4]. Although the remarks of the Chief Justice in Aala were directed to entitlement to review by constitutional writ on the ground of absence of authority for the Tribunal to make a decision that exercised the decision-making power in a manner that was not procedurally fair, his Honour's comments are equally pertinent to an unauthorised exercise of decision-making power that results from the Tribunal failing to take into account relevant material. In misunderstanding the material before it, the Tribunal thereby failed to have regard to relevant material, resulting in a decision for which the Tribunal had neither authority nor jurisdiction under the Act: Yusuf per McHugh, Gummow and Hayne JJ at [82]-[85]. It follows that grounds for review of the Tribunal's decision arise under s 476(1)(b) and (c) of the Act.