Consideration
57 This Court has said many times that adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis: see, for example, CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [38] (McKerracher, Griffiths and Rangiah JJ); ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 at [83(d)] (Griffiths, Perry and Bromwich JJ); DAO16 at [30]; DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33; 260 FCR 260 at [20] (Tracey, Murphy and Kerr JJ); BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 263 FCR 292 at [33]-[34] (Perram, Perry and O'Callaghan JJ); BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54 at [34] (Murphy and O'Bryan JJ).
58 The relevant principles in relation to legal unreasonableness were usefully summarised in DAO16 (at [30]). The Full Court explained:
(1) While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at 83). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at 83). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:
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.
(Emphasis added)
(3) By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant's evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), "[u]nwarranted 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 676 at [54]." Equally jurisdictional error may be established by "a process of reasoning which damns a man's credibility by reference, materially, to a false factual premise concerning a critical document": SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].
(4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:
56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal's decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal's decision-making processes from scrutiny…
(citations omitted)
(5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, "extreme" illogicality must be demonstrated "measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions" (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, "[e]ven emphatic disagreement with the Tribunal's reasoning would not be sufficient to make out illogicality": CQG15 at [61].
59 In the present case, the inconsistencies the Authority found and relied upon for its conclusion that BTA18 had fabricated his central claims were reached by a process in which the Authority purported to compare the accounts BTA18 gave in his arrival interview, in his 2013 statement, in his 2015 statement and in his protection interview with the delegate in 2015.
60 In remarks which are equally true today, more than 20 years ago, in W375/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 89; 67 ALD 757 at [15] Lee, Carr and Finkelstein JJ explained as follows:
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.
61 Similarly to this case, AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 (Kenny, Griffiths and Mortimer JJ) was concerned with inconsistencies that were found to exist between a visa applicant's written and oral claims. The Full Court said the following (at [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.
62 Their Honours explained (at [27]) that "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." Their Honours then went on to say (at [28]):
…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.
63 AVQ15 was endorsed in ASB17 at [42]-[45] (Griffiths, Mortimer, as her Honour then was, and Steward JJ). Their Honours said:
[42] Differing accounts of the same event may not be "inconsistent" at all. One may be more detailed than another. One may have different emphasis. One may include a particular incident that another does not. Differences in accounts may arise from the kinds of factors to which the Full Court referred in AVQ15 at [24] and [25].
[43] On the other hand, differences in accounts may be rationally and reasonably capable of giving rise to concerns about a person's credibility, or (perhaps more likely) reliability. Or they may not. Simply (and incorrectly) attaching the label "inconsistent" to differing accounts of an event, or differing narratives, does not make them so. Where an adverse finding is made on the basis of differences in accounts, it will usually be necessary to properly discharge the fact-finding task for a decision-maker to explain why she or he has found those differences of such a nature as to justify rejection of the narrative or account given by a person.
The effect of inconsistencies
[44] Some true "inconsistencies" may be objectively irrelevant to the fact-finding of a decision-maker. Some may be explicable, or excusable. Some may be critical to fact-finding. Some may reflect on the credibility or reliability of an applicant, and some may not. As the Full Court said in AVQ15 at [28], the decision-maker's task requires her or him to "assess the significance of that inconsistency and the weight to be given to it". Again, simply attaching the label "inconsistency" and moving immediately from the label to an adverse finding of credibility or reliability, may not be a rational or legally reasonable approach.
[45] It is also worth recalling that complete consistency in a narrative or an account of events, especially traumatic events, or events occurring some time ago, may in some circumstances be probative of a lack of credibility. There may come a point at which a person's narrative of past events is too complete, making no allowance for the imperfections of human observation and memory, and that may in itself demonstrate lack of reliability or credibility. This is a further illustration of why, as the Full Court said in AVQ15, where a person has been required to give more than one account or narrative of events, often separated by considerable periods of time and circumstances, care needs to be taken in weighing and assessing the probative value of various accounts.
64 In the present case the Authority identified what it described (at [28]) as "a number of inconsistencies" in BTA18's account of the claimed 2008 abduction. It accepted (at [37]) that some of the inconsistencies were minor, and that the discrepancies might have arisen because the claimed events occurred some time ago. But in deciding that it was appropriate to rely on the inconsistencies it found, the Authority said that "there were a number of inconsistencies and it was the applicant's central claim and incident". Centrally on the basis of the inconsistencies it found, the Authority then went on to conclude (at [52]) that it did not accept that BTA18 was abducted in 2018, that anyone was looking for him, or that he was in hiding from 2008.
65 I consider that the Authority's reasoning to its conclusion (at [52]) that it did not accept BTA18's central claim to have been abducted in 2008, and that as a result he went into hiding, reveals extreme irrationality and illogicality. To explain my view in that regard it is necessary to go to the impugned findings of "inconsistency".