4.4.3 Ground 4 must be dismissed
62 Notwithstanding the caution which must be exercised before making so serious a finding, the appellant has not established that the AAT fell into reviewable error in finding that the appellant's evidence was so unsatisfactory that it had no real doubt that his claims were fabricated and, as such, gave no weight to the documents on which the appellant relied to corroborate those claims. Ground 4 must therefore be dismissed.
63 Taking each of the matters relied upon by the appellant in turn, first, the appellant submitted that he had in fact claimed at the first opportunity that he had been physically assaulted in detention, contrary to the AAT's finding at [95] and [114] that the allegation was new. Specifically, in his statutory declaration provided on 31 July 2013 shortly after lodging his application for a protection visa, the appellant said that he had been "physically and psychologically abused" during his period of detention (AB34). However, while his statutory declaration arguably referred to a claim to have been physically assaulted, no claim specifically in those terms was made or elaborated upon, and the general reference to physical and psychological abuse could equally have referred to the conditions of his detention of which he also complained. As such, the proposition can be put no higher than that the AAT interpreted the evidence in a particular way with which the appellant disagrees. At its highest, therefore, the Tribunal made an error of fact. However, there is no jurisdictional error in the AAT simply making a wrong finding of fact: Chen at [42] (the Court) and the authorities there cited. In short, the evidence in the statutory declaration having been ambiguous on the point, it was open to the AAT to find that the claim to have been subjected to physical assault was new.
64 Secondly, the appellant submitted that the AAT wrongly found at [16] that neither the translation of the appellant's military identity card, nor the document evidencing his security clearance, was "a certified translation" (AB41-42). In this regard, the AAT acknowledged that a translation was provided. However, while a stamp appears on the face of those documents stating "General Services Office Sworn Translator Jordan Translators Association Member No. (249)" and an address and telephone numbers are given, it is apparent that the translations were not by a NAATI certified translator. As such, it appears that the AAT meant no more than that the translation was not "certified" by a NAATI certified translator. We also note that no evidence was given to the AAT (or the Court) as to the qualifications, if any, required of a member of the Jordan Translators Association, any professional and ethical standards by which they are bound, or of the qualifications of this particular translator to translate the documents in question.
65 Thirdly, the appellant submitted that the AAT failed to take into account that his solicitor was no longer registered as a migration agent, as advised in the letter from the RRT to the appellant dated 24 November 2014 (AB80). In the appellant's submission, this matter lent weight to his explanation for failing to raise certain claims earlier, namely, that he "did not trust" his solicitor. In this regard, the appellant relied in particular upon his statutory declaration dated 8 March 2016 following the first hearing before the AAT on 1 March 2016. At that hearing the appellant sought to explain differences between his written statements and what he had said at the RRT hearing on the basis that he had been afraid to mention some matters to his solicitor particularly with respect to his trip to Gaza (AAT reasons at [56] and [60]) and that other matters had been mentioned to his solicitor even though they did not appear in his statement (AAT reasons at [62]). In his statutory declaration, the appellant also said that:
4. I had been initially represented by my Migration Agent, Sam Issa, who I understand has now lost his registration and been struck off the roll by the law society. Mr Sam Issa did not properly represent my claims. I did not have a trustworthy relationship with Mr Sam Issa and did not tell him the truth regarding my visit to Gaza. At the interview, I, through my own initiative, made the effort to clarify with the officer that the dates I had provided were incorrect in relation to my Gaza visit and subsequent detention upon return to Jordan.
(AB278; emphasis in the original)
66 However, the Tribunal's reasons at [69] refer expressly to the appellant's "affidavit" sworn 8 March 2016, observe that it "raises a number of matters", and record the appellant's submission that the solicitor did not properly represent his claims and had since been struck off the roll, as well as quoting his further evidence about the Gaza incident. At the second hearing on 29 June 2016, the AAT questioned the appellant again about his contention that he had not mentioned the first Gaza incident to his solicitor because he did not trust him but found his explanation to be "unconvincing and unpersuasive" (AAT reasons at [102]). Subsequently in its reasons at [113] for rejecting the appellant as a credible witness, the AAT referred to not being persuaded that he was speaking the truth because, among other things, "of the generalised nature of some of his evidence" including that he did not trust his solicitor because the matter involved Israel.
67 In these circumstances, while the Tribunal did not expressly refer to the fact that the solicitor had also been deregistered as a migration agent, the appellant has not established on the balance of probabilities that this was overlooked by the Tribunal. To the contrary, the more compelling inference is that the Tribunal did not consider that matter to be material. That is understandable given the more serious sanction imposed upon the solicitor of being struck off as a legal practitioner, to which the Tribunal expressly referred.
68 Fourthly, the appellant submitted that the AAT should have considered his evidence in light of the diagnosis made of his depressive disorder by a consultant psychologist in a report dated 6 November 2014 (AB129). In that report, the psychologist diagnosed the appellant as suffering from a Major Depressive Disorder and as having experienced symptoms of Post-Traumatic Stress Disorder (AB133). The psychologist also expressed the opinion that the appellant was "suffering from a great deal of psychological problems and has experienced marked distress with impairment in his interpersonal, social and cognitive functioning" (ibid).
69 However, the AAT did not overlook that evidence. To the contrary, at the hearing on 1 March 2016 the AAT noted the psychologist's report and asked the appellant for an update about his current health circumstances (AAT reasons at [63]). The appellant said that he was "okay", taking a tranquilliser every three to four days, that the doctor had said that it was "no use" the appellant coming back to him, and that it had been a "long time" since he had seen a psychologist (ibid). In those circumstances, where there was no further evidence provided about the appellant's mental health, no error has been established in the AAT's apparent failure expressly to factor the November 2014 diagnosis into its assessment of the appellant's credibility. Rather, it can be inferred that the AAT considered that the views of the psychologist in that respect were out of date and therefore not material.
70 In the fifth place, the appellant pointed to his post-hearing submission at AB238-239 addressing the inconsistencies between his evidence to the RRT as to the duration of his detention in Gaza, and explaining that the appellant had problems with articulating his sentences due to the pressure of the hearing environment which seemed to create confusion. However, as we have earlier held, the AAT did not ultimately hold this apparent inconsistency in the appellant's evidence against him, finding that it was unnecessary to resolve this issue and, in so doing, did not fall into error.
71 Sixthly, the appellant submitted that at [100] of its reasons, the AAT took into account different names given to the military conscription legislation in the material relied upon by him in finding that the legislation was fabricated but failed to take into account the possibility that those differences might have been due to differences in translation, or other possible explanations such as that the legislation had been amended. Thus, the article quoted in the appellant's post-hearing submission at AB298 referred to the relevant legislation as the Compulsory Military Service Act 1986, while the translations at AB302 and AB318 identified the legislation as the "Compulsory and Reserve Law for 1986" and the "Conscription (Military Service) and Reserve Duty Law" respectively.
72 At [100] of its reasons, the AAT explained that in response to questioning at the second AAT hearing as to the different names for the legislation, the appellant responded that "it's the same … it means the same" (ibid). The AAT returned to this evidence at [116] where it rejected the appellant's explanation as to why the legislation produced by him had a different name and title from that referred to by his agent on the ground that it was "simply not believable". In turn, this finding was one of the matters which cumulatively led the Tribunal to reject the central aspects of the appellant's claims at [117]. Significantly, neither the appellant nor his agent sought to explain these differences in the title of the legislation to the AAT by reference to differences in translation or the other grounds now suggested: see the AAT's reasons at [88]-[89] and [100]. The AAT simply considered and rejected the appellant's explanation for the apparent inconsistency as implausible, and took that finding into account in assessing his credibility. As such, it cannot be said that the AAT fell into error in failing to consider other possible explanations.
73 In the seventh place, the appellant submitted that there was no "hard evidence" showing that his claims as set out in the AAT's reasons at [116] were "not believable". However, it is for the appellant to establish his claims. Importantly in this regard, each of the matters referred to at [116] had been the subject of submission or testimony from the appellant only, despite the fact that they were not matters personal to him. For example, it was said that the legislation produced was "classified", that soldiers could not wear uniforms outside barracks, and that there were certain differences between military and non-military passports. In this regard, we accept that a different decision-maker may well have reached a different view on the plausibility of the matters referred to in the AAT's reasons at [116]. However, that does not of itself establish that the finding was legally unreasonable or that the AAT otherwise fell into jurisdictional error: see above at [34]. In this regard, it is well established that a finding as to credibility is a question of fact and is not to be set aside simply because the Court considers that "the probabilities of the case are against, or even strongly against, the finding": W148/00A at [64] (Tamberlin and R D Nicholson JJ).
74 The appellant also submitted the strength of the consistency in his evidence given over four hearings and multiple statutory declarations was a matter which the AAT ought to have taken into account. The appellant submitted that it was "almost extraordinary" that over all of the interviews and the statutory declarations, only two inconsistencies in his evidence were identified by the AAT (i.e. the date when he went to Gaza and the length of his detention) (T7.32). However, it is clear that in assessing credibility, a decision-maker may weigh many different factors of which consistency in an applicant's claims may comprise only one factor. Thus as Tamberlin and R D Nicholson JJ explained in W148/00A at [64], "[o]ften a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information coupled with ordinary experience as to likely patterns of response." As such, the appellant's complaint is ultimately as to the weight to be given to the extent of consistency in the appellant's evidence which is a matter falling squarely within the jurisdiction of the AAT to determine: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 (Mason J); Federal Commissioner of Taxation v Primary Health Care Ltd [2017] FCAFC 131; (2017) 252 FCR 496 at [21] (the Court).
75 It follows for these reasons that the appellant has not established that the findings as to his credibility made at [112]-[116] of the AAT's reasons were erroneous and could not cumulatively provide an adequate or rational basis for the rejection of the documentary material upon which he relied to corroborate his claims.