Ground 1: Tribunal relying on speculation it invited the appellant to make
21 This ground seeks to impugn the second of the Tribunal's credibility reasons, extracted at [15] above.
22 The appellant submits:
[I]t is apparent that for the Tribunal to ask the appellant why the driver called his wife, was to invite speculation. The appellant could not know the answer to the Tribunal's question; he could only speculate and did so upon the Tribunal's invitation. The counter-factual preferred by the Tribunal was no less speculative. It presumed the driver would be motivated by fear that communication with the appellant's wife would be discovered by Ethiopian authorities, attributed to the driver, and that such authorities may retaliate in a violent manner with impunity.
Even if the appellant speculated wrongly, it does not follow that he was not to be believed on the factual elements of his claims based on lived experience. The possibility that the applicant guessed wrongly as to the motivations of the driver "cannot justify a finding that the appellant was not truthful or credible on the essential factual elements of which he had first-hand knowledge".
The central aspects relevant to the appellant's truthfulness were what had happened to the appellant. To reason that the appellant's credibility was impaired by speculation invited by the Tribunal and in respect of which the appellant had no first-hand knowledge was to reason in an illogical and irrational manner.
(Emphasis in original; footnotes omitted.)
23 The Minister's submissions emphasised the high threshold imposed by the authorities before irrational or legally unreasonable credit findings could support a finding of jurisdictional error. The Minister's submissions also emphasised the approach set out by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 13; 185 CLR 259 at 272, and endorsed many times since, concerning how a supervising Court should approach the way an administrative decision-maker has expressed her or his reasons. All of that may be accepted.
24 Referring to CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [61], the Minister submitted that the alleged illogicality or irrationality of reasoning must be of an "extreme" kind, not a matter on which reasonable minds might differ, and not a matter on which a supervising Court simply disagrees with a decision-maker, even emphatically.
25 Save for the gloss arising from the word "extreme", those propositions can also be accepted and are well established. There is nothing in High Court authorities such as Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 which suggests that the adjectival description of "extreme" is a necessary element in a finding of illogicality or irrationality. If the decision-maker's fact finding is proven to be irrational or illogical, in a way which was material to the outcome of the review, that is sufficient. The stringency of the threshold arises in the need for the decision-maker's reasoning to be capable, objectively, of being described as irrational or illogical.
26 "Irrational" or "illogical" implies that no reasonable person could reason in such a way. As Crennan and Bell JJ said in SZMDS at [135]:
A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
27 Another example is that given by Flick J in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; 233 FCR 451 at [22]:
Unwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].
(Emphasis added.)
28 Flick J's observations were approved in CQG15 at [40]-[42].
29 The Minister contends it was not the appellant's explanation that was the focus of the Tribunal's reasoning in this paragraph, but rather the claim that a police driver in those circumstances would have contacted the appellant's wife. The Minister relies on what was said by the High Court in The Republic of Nauru v WET040 (No 2) [2018] HCA 60; 93 ALJR 102 at [35]:
For the Tribunal so to observe was not "speculation" or "conjecture". It was to recognise that, when all these matters were taken together, the respondent's version of events so ill-accorded with the probabilities of ordinary human experience as to be implausible.
30 That, the Minister contends, is how the Tribunal's reasoning here can be described, emphasising that the Tribunal - in the usual way - relied at least in part on country information, and its focus was on the underlying facts of the appellant's account about what a police driver would or would not do.
31 On the evidence, in what was on any view a long and detailed narrative by the appellant of past events giving rise to his claims for protection, this particular aspect of his account was of some concern not just to the current Tribunal but also to the first Tribunal. Following the first Tribunal hearing on 17 July 2012, the first Tribunal requested further information from the appellant, including about this account. In a statutory declaration of 10 October 2012, the appellant provided a further detailed account of what he said occurred when he was arrested and detained for three days at a police station before being transferred by vehicle to prison. He had already provided one detailed account in his initial statutory declaration of 2 May 2012. This aspect of his narrative occupied 14 paragraphs.
32 The appellant's then migration agent also made a substantial submission in response to the first Tribunal's request for information. One relevant portion should be extracted:
The Tribunal also questioned the motivation of the driver to intervene. In this respect we first note that [the appellant] is not in a position to know why the driver acted as he did and can only speculate as to his motivations. We also note [the appellant] was blindfolded during the transfer so his ability to speculate is further hampered. Relevantly, however, [the appellant] has noted in his attached statutory declaration at paragraph 7 that police in Ethiopia sometimes transfer individual inmates using private vehicles and that the driver of his transfer vehicle may have been a private driver. If the driver was a private driver, then [the appellant's] emotional pleading during the car trip may have impacted on the driver, leading him to sympathise with [the appellant] and to want to assist him. We cannot know what was in the mind of that driver, but human rights abuses are very common in Ethiopia and the driver may have rightly suspected that [the appellant] was not actually guilty of any crime but was instead the victim of arbitrary abuse. The driver's minor act of defiance, which can be viewed as a compassionate act of good will, is not so far fetched. Indeed in our office's experience a stranger's random act of kindness is frequently crucial to the survival of our clients and their ability to seek protection. We submit that [the appellant's] own claims should not be dismissed simply because he cannot account for the motivation behind an act of good will. We note again that unless the Tribunal can find with confidence that a driver, quite possibly a private driver, would not make an anonymous phone call then [the appellant] should be given the benefit of the doubt.
33 In its decision (subsequently set aside) the first Tribunal disbelieved the appellant about this account.
34 After the matter was remitted to the Tribunal by the Federal Circuit Court in March 2014, the appellant's then migration agent filed a further detailed set of written submissions, dated 23 June 2014. One of the submissions made, under the heading "Treatment of credibility", was that the first Tribunal had focused on issues that were not material to the appellant's claims. The extract is somewhat lengthy, but it is necessary to set it out:
Focus on immaterial facts
Most importantly, the Tribunal member focused on issues that were not material to the [appellant's] claims. Read fairly, the decision was largely based on disbelief as to the account given of how the family learnt of his detention, when his wife came to visit and exactly how many times she visited. As discussed below, these adverse findings are readily explicable either as miscommunications or misunderstandings typical in the refugee determination context. In any event, as we submit, these minor details are hardly material to the applicant's claims.
Recently, a legal scholar has helpfully explained the concept of 'material claims':
Starting with materiality, this is the process of determining which factual claims made by the applicant would, if they were proven, be key (that is, material) to their legal recognition as a refugee. If the applicant's situation does not give rise to any facts that would be material to refugee status, then they do not have a claim for asylum.
In an asylum application this means that the decision maker will have to extract the material facts from the potentially voluminous factual claims made by the applicant. The UK's API summarises this point well where it states that:
A material fact goes to the core of a claim and is fundamental to why an individual fears persecution, and will be central to the decision that will be made. It is the role of the decision maker to identify which facts are material and which facts are not.
The material fact in relation to [the appellant's] account was that he was subject to arbitrary detention, and the question of exactly how [the appellant's] family learnt of his detention was not such a material fact. This is demonstrated by the fact that such detention would still be arbitrary even if the authorities themselves had informed the family of his detention. All [the appellant] could do was suggest how he thought the fact had been communicated. Obviously, as the victim of arbitrary detention, he cannot be expected to know for sure what happened. This theory is (as we discuss further below) more plausible than the Tribunal considered it to be, but the main point is that it is simply immaterial.
This point applies with even stronger force to the question of the [appellant's] wife testimony as to when she visited him and exactly how many times. The discrepancies were, as we discuss below, of a very minor nature and readily explained by the circumstances of the hearing. Indeed, even in Australian law where the difficulties experienced by refugees do not apply, such inconsistencies by witnesses are extremely commonplace. Perfect consistency is extremely unlikely in evidentiary matters. More importantly, however, they could not be said to be material - whether she visited the next day or the initial day, whether she went every day or missed two days, these do not undermine in any significant way the material claim of arbitrary detention.
The discrepancies or alleged implausibilities noted by the Tribunal can, in any event, be explained.
Driver's intervention and anonymous note
The Tribunal member's adverse credibility assessment was based in part on his disbelief that a driver of a prisoner would call his wife. As [the appellant] states in his statutory declaration dated 10 October 2012, the driver is likely to have been a private driver, rather than a government official (para 7). As well, the number is only six digits, with the first prefix (41) being similar to the (04) prefix for mobiles in Australia.
The Tribunal member too hastily rejected the theory that [the appellant's] protests of innocence and his fear for his family may have touched a chord with a driver. Such a response may seem odd to someone brought up in an Australian culture, with its strong trust in government officials and its mistrust of those detained by government, but is plausible in a country where everybody knows that those being detained are not necessarily wrongdoers. As a judge has recently had the occasion to remark:
Africa is a continent where on occasion the far-fetched, as it seems to western eyes, is actually the norm.
Similarly, the anonymous note on the windshield can be explained in the same way. While, in Australia, government officials may simply question a person, it is not safe to assume that in the case of Ethiopia. In countries where there is no rule of law, threats may well occur in such a fashion. In any event, on [the appellant's] account, he did not know who had left the note. The people involved may not have been government officials, but may have been political supporters or part of the wider surveillance network discussed by Human Rights Watch above.
(Footnotes omitted.)
35 It appears from the appellant's evidence that at the third hearing before the current Tribunal, the current Tribunal informed the appellant it had similar concerns to the first Tribunal about this aspect of the appellant's narrative. In response, the appellant provided yet another statutory declaration, dated 23 December 2015, in which he stated:
In response to the member's concern that the driver of the van would not remember my wife's number or call my wife, I explained in the hearing, as I have many times before that it is a common practice that police use private transport. I have always said that the driver was not a police. Who knows what kind of person he was? Religious, kind, or family man. We have heard so many stories where people put them self at risk just for the sake of helping others. Corrie Ten Boom is one of the greatest example to me personally, she risked her own life just to help. and I don't have any doubts this person is kind. I was in the van for around 6 hours. I remember it was a long drive. I was so scared at this time and was begging someone to call my wife. I thank God that this person was brave enough to call my wife to let her know where I was. If not, I might have been kept in prison and punished for a lot longer.
36 The appellant's then migration agent also provided post-hearing submissions, once again addressing this issue, and referring the Tribunal to by this time voluminous evidence on this small factual step in a large narrative:
The Tribunal should have regard to the following submissions and written evidence:
• Submission dated 23 June 2014 at 3.1.2
• Submission dated 10 October 2012 at 3(a)
• Statutory declaration of [the appellant] dated 10 October 2012 at [9] - [10]
• Statutory declaration of [the appellant] dated 23 Dec 2015
It is our submission that this issue has comprehensively been addressed. The [appellant] has consistently claimed over 4 different Tribunal hearings and in his written evidence that:
• It is common for police to use private cars for transport
• He was in the car for 6 hours
• In this 6-hour journey he was blindfolded and pleaded multiple times for someone to call his wife. He also reiterated his innocence and the fact he was only doing the work he was doing for the ministry. He was crying at the time.
• The number he reiterated was a 6-digit number. It is common for mobile numbers to start with the numbers "41". There was only four additional numbers to then remember.
In our submission, it would be unreasonable to make a finding that it is implausible that the driver would remember four numbers and call the applicants wife.
• It is perfectly plausible that a human being would remember 4 numbers.
• One can only speculate as to what motivated the driver to call the [appellant's] wife. It could be that he has experienced similar treatment, had a grievance with the authorities himself, believed the [appellant], was particularly religious and shared the same faith as the [appellant] or believed in the work he was doing.
• In our submission it is at the very least possible that the driver would be motivated to call the [appellant's] wife to advise her as to his location. In this case without any other contrary evidence the Tribunal should afford the [appellant] the benefit of the doubt.
37 Proportionally, when compared to the factual detail contained in the appellant's accounts of when and how he was arrested in April 2011, let alone the factual details which led up to that claimed event, the references to how the appellant's wife discovered he was detained formed a miniscule part of the appellant's narrative. To make that observation is not to suggest such disproportionality will make out jurisdictional error. Nevertheless, it may be indicative of an irrational focus by the Tribunal on the minutiae of an account, while ignoring and failing to consider the core facts related by the appellant and which were objectively more central to his claim about detention - such as where he was detained, what the cell was like, whether he was detained alone or with others, how often he was questioned, by whom and what about, who detained him, what else occurred during his detention, and so forth.
38 Further, it should also be recalled that the first-hand account of how the appellant's wife found out he was detained was given by the appellant's wife and not by the appellant. She gave that evidence in two statutory declarations. Her initial evidence was in her statutory declaration dated 2 May 2012:
I got a call from someone in [redacted] to tell me my husband is in [redacted] prison. My husband had asked the driver of the car to the prison to call me.
39 In her second statutory declaration, dated 10 October 2012, the appellant's wife gave this further evidence:
I was at home alone when I received the telephone call on my mobile telephone. The telephone number was from an unknown number. When I picked up the phone I said hello and a person told me that my husband was in [redacted] Prison. I then asked if my husband was alive but the person had hung up the telephone. I then called my husband's brother, [redacted], and told him that my husband was in [redacted] Prison. I was very scared, but at the same time I was relieved to hear news about my husband.
40 None of this evidence was referred to by the Tribunal in its reasons. It was certainly not expressly rejected. At [30], where the Tribunal states that the appellant's "wife did not comment on these matters at hearing", there is no reference to her two statutory declarations dealing with this matter expressly, one being in response to the Tribunal's expressed concerns.
41 The appellant contends that it was irrational for the Tribunal to rely on a matter the appellant was asked to speculate about (why a driver would contact his wife) as a basis to make adverse credibility findings against the appellant, and his wife.
42 Counsel relies on the decision in BEL16 v Minister for Home Affairs [2019] FCA 1678, contending similar issues arose in that case.
43 At [31] of that case, Beach J said:
It should be apparent that the appellant had no personal knowledge of why the CID was so acting. At most the appellant's belief could only have been informed by compounded hearsay. Of course the perception of risk of harm and the reasonableness of that risk is central to the Tribunal's consideration. But in terms of assessing the credibility and truthfulness of the appellant himself, discrepancies concerning his speculation as to the motivations for conduct of a third party are far less significant and meaningful than discrepancies concerning the appellant's version of his own conduct, his own motivations and what he could reasonably be expected to have first-hand knowledge of. I will return to this topic later, but for the moment let me address the so-called discrepancies.
(Emphasis in original.)
44 Then at [55] Beach J said:
Moreover, if the appellant speculated wrongly, it does not follow that he was not to be believed on the objective factual elements of his version of events where he did have first-hand knowledge. Any number of other explanations could be plausible as to his wrong speculation. For example, wrong speculation might more readily be explained by the innocent possibility of the appellant simply guessing wrongly, misunderstanding what he had been told, being given only a partial explanation, or being misinformed. But none of such possibilities could justify a finding that the appellant was not truthful or credible on the essential factual elements of which he had first-hand knowledge.
(Emphasis in original.)
45 There is certainly a danger in a decision-maker asking a protection visa applicant to speculate about the motivations, reasons or circumstances of a third party in the visa applicant's country of nationality. It is unlikely to be productive of probative material on which the decision-maker can rely in her or his reasoning, for the reasons explained by the High Court in WET040. The method is unlikely to give rise to a jurisdictional error. Reliance on the evidentiary product of such a method may be another matter.
46 I do not accept the Minister's submissions that all the Tribunal was doing in this one of its six credibility findings was rejecting the underlying plausibility of the appellant's account. The Tribunal was expressly measuring the speculation it had invited the appellant to engage in against its own speculation. Having regard to the introductory part of [29], it did so expressly to find that the appellant and his wife were not giving true and accurate evidence to the Tribunal. The appellant's speculation about the driver's motivations was not rationally or logically capable of supporting the Tribunal's disbelief of his detailed, fact-intensive first-hand account of his arrest and detention - being a large body of facts with which the Tribunal simply did not engage in its decision making. Nor was the Tribunal's own speculation on the same matter.
47 The Tribunal's reference to country information was at such a high level of generality as to be incapable of being used in the way the Tribunal sought to use it. Country information indicating "that the Ethiopian authorities often act in an arbitrary and violent manner with impunity" was capable of supporting the core elements of the appellant's narrative about his arrest and detention. In contrast, linking this general statement to the (unknown and unknowable) state of mind of an (unidentified) individual driving a prison vehicle was nothing more than conjecture on the part of the Tribunal.
48 Ground 1 succeeds.