BXO20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1206

1. The applicant alleges the Tribunal's process of reasoning was unreasonable and, on that basis, the Tribunal fell into error. Before examining the Tribunal's statement of reasons for the purpose of ascertaining whether the Tribunal erred in this instance, it is helpful to make some preliminary remarks about the content of adequate reasons in order to give context to an assessment of whether those reasons demonstrate the Tribunal having properly undertaken the requisite fact-finding task.
2. The Tribunal's statutory obligation to give reasons, as detailed in s 430 of the Act, mandates the provision of a written statement that, among other things, sets out the reasons for decision, sets out findings on any material questions of fact and refers to the evidence or any other material on which the findings of fact were based. Non-compliance with s 430(1) of the Act does not, of itself, establish jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 58 ALD 609; HCA 1 per McHugh J at [70]. However, non-compliance, such as non-compliance with the obligation to refer to evidence or other material on which the decision is based, may evidence jurisdictional error; for example, a constructive failure to exercise a review function: Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362; FCAFC 108 per Kenny J at [98]. In Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; FCAFC 114, the Full Court (Kenny, Griffiths and Mortimer JJ) stated (at [49] and [50]):

The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made ... Representing as it does what the Tribunal itself considered important and material, what is present - and what is absent - from the reasons may in a given case enable a Court on review to find jurisdictional error ...

1. It is uncontroversial to state that fact-finding is the province of the Tribunal, and not the Court. Facts must be found, by way of the acceptance or rejection of claims, in order for the Tribunal to then proceed towards the determination of whether a criterion, such as those within s36 of the Act, has been satisfied. It is the Tribunal's carriage of that fact-finding task which is of concern to the Court.
2. It follows that when assessing whether legal unreasonableness has been made out, regard must be had to the Tribunal's reasons but without an eye keenly attuned to the perception of error. In so doing, reasons must be read with an appreciation of their formulation taking into account the process by, and context within, which information is made available to the Tribunal and the manner in which that information is ultimately considered by the Tribunal.
3. It is inappropriate for the Court to insert itself into a quasi-fact-finding role in order to establish whether an approach taken by a Tribunal was reasonable in the circumstances. Rather, when examining a statement of reasons for the presence of legal unreasonableness - which may have manifested where the Tribunal has improperly reached an adverse credibility finding when identifying and assessing inconsistencies within an applicant's narrative or by way of making an unwarranted assumption when considering that narrative - the Tribunal's process of reasoning is to be assessed with appropriate deference towards the Tribunal's scope of decisional freedom.
4. In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 610; [2010] HCA 16 (SZMDS), Crennan and Bell JJ explained the high threshold to be met for any allegation of illogicality or irrationality in the following terms at [130]:

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.

1. Their Honours further explained at [131] that:

...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. In BUX17 v Minister for Immigration, Citizenship, and Multicultural Affairs [2023] FCA 1510, Raper J at [18] further articulated the need for an applicant to overcome a high bar when asserting a decision is illogical or irrational, and thereby legally unreasonable, in the following terms:

A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, or if the decision was simply not open on the evidence or there is no logical connection between the decision and the inferences or conclusions drawn: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [135] per Crennan and Bell JJ. Where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally or factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [92] per Wigney J.

1. It is not uncommon for an applicant to provide more than one account of the basis for a claim across different stages of a decision-making process. This may be particularly so where interpretation is required. Variations between such accounts may reasonably arise due to the passage of time, the effects of stress, or linguistic limitations. In such circumstances, differences in detail or emphasis - particularly where a claim is raised before the Tribunal for the first time or is further elaborated - may be explicable by reference to the context in which the information is provided or the procedural stage at which it is given. Moreover, discrepancies between an individual's accounts of the same event might well be attributed to differences in perception, impression, and memory. Such variations do not, without more, necessarily reflect adversely upon an applicant's credibility.
2. In Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5], Burchett J found it necessary to make the following comments:

The Tribunal should understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

1. In EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518, Stewart J collated a range of propositions relevant to a Tribunal's identification and consideration of inconsistencies in an applicant's narrative when assessing credibility:

[42] It is well established that although the Authority is entitled to rely on inconsistencies in assessing credibility, that assessment must be conducted fairly and reasonably taking into account the fact that it is well recognised that assessing asylum seekers' reliability and credibility involves particular features and considerations, and calls for a careful and thoughtful approach: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 at [23] per Kenny, Griffiths and Mortimer JJ. Some of those particular considerations were articulated in W375/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 89; 67 ALD 757 at [15] per Lee, Carr and Finkelstein JJ:

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.

[43] Thus in ASB17 v Minister for Home Affairs [2019] FCAFC 38; 368 FCR 271, the Full Court (Griffiths, Mortimer and Steward JJ) observed at [44] that:

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.

[44] Where a decision-maker such as the Authority has identified an inconsistency, the task required of it was explained in AVQ15 at [28] as follows:

[T]he 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.

[45] In ASB17 it was further explained at [44] that:

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.

1. In assessing the 'significance' of an inconsistency, Beach J in BEL16 v Minister for Home Affairs [2019] FCA 1678; (2019) 167 ALD 295; FCA 1678 (BEL16) at [53] emphasised the need for a Tribunal to contextualise that inconsistency before making an adverse credibility finding:

Further, it seems to me that if there was some discrepancy, the Tribunal was required to have regard to its significance and centrality and to explain why the discrepancy justified any rejection of the appellant's account. But it did not. It stated that it "consider[ed] the significance of these discrepancies" (at [69]), but never meaningfully elaborated on why they were significant rather than insignificant or why they were central rather than peripheral, and I mean central and significant to the appellant's truthfulness and credibility.

1. The formulation or scope of what may be understood to be 'implausible' was encapsulated by the Full Court in BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [56]:

A finding that an alleged event is implausible is ordinarily a finding that it is inherently unlikely to have occurred; adopting the language of the High Court in WET040 (No 2), the event does not accord with the probabilities of ordinary human experience. It is not necessarily a finding that that event is beyond human experience of possible occurrences in the sense that it could not have occurred: the formulation tends to overstate what is ordinarily meant by "implausible".

1. Where a decision-maker finds an applicant's claim to be 'implausible', that finding must have a probative basis and not be the product of speculation or conjecture: see DQM18 v Minister for Home Affairs [2020] FCAFC 110; [2020] 278 FCR 529; FCAFC 110 (DQM18) per Bromberg and Mortimer JJ at [52]-[58]; EVI19 at [73]-[81]. Put simply, there must be an evidentiary foundation for the decision-maker's finding as to implausibility, unless of course the finding can be said to be based on the probabilities of 'ordinary human experience'. For such a finding to be soundly based on the probabilities of 'ordinary human experience', the decision-maker must be equipped by probative material to assess what 'ordinary human experience' would be in the circumstances of a particular case, taking into account, for example, the cultural, geographical and other factors that bear upon the fact-finding exercise: see, for example, DQM18 at [58]; EVI19 at [81]. Otherwise, the finding will be based on an unwarranted assumption: see BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573 (BOH17) at [6]-[7] per Perram J.

1. Unwarranted assumptions made by a decision-maker and relied upon as part of the fact-finding task give rise to error. Their impact has been described as having compromised the Tribunal's reasoning process by way of giving rise to the making of an illogical or irrational finding that infects the Tribunal's ultimate conclusion. The Full Court in BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292; FCAFC 94 (BZD17) at [36] per Perram, Perry and O'Callaghan JJ described the manner in which unwarranted assumptions give rise to error in the following terms:

... Similarly, "[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": SZVAP v Minister for Immigration & Border Protection (2015) [2015] FCA 1089; 233 FCR 451 (SZVAP) at [22] (Flick J) (citing WAGO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 437; (2002) 194 ALR 676 at [54] (Lee and Nicholson JJ)); see also eg SZLGP v Minister for Immigration & Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [34] -[37] (Logan J). Unwarranted assumptions may also establish that a finding is illogical, irrational or not founded on any probative evidence: see eg DAO16 at [45] (the Court).

1. In BOH17 at [7]-[8], Perram J further exposed the jurisprudential basis upon which unwarranted assumptions give rise to error:

7. On the current state of the authorities, it seems to me that the better view is that there is no freestanding ground of unwarranted assumptions. However, the making of unwarranted assumptions as part of a credit finding may be reviewed on rationality grounds (DAO16) or because the decision maker has failed duly to consider the question raised by the material (WAGO and BZD17). For myself, the former test is easier to apply in practice in the sense that it appears less conclusory. There are various extant formulations of this ground. The Full Court in Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45] described it this way:

Illogicality, irrationality or legal unreasonableness in the reasons for an administrative decision may establish jurisdictional error, as may a failure to give proper, genuine or realistic consideration to a significant matter. An illogical or irrational administrative decision, or an illogical or irrational finding of fact or reasoning along the way to making the decision, may establish jurisdictional error if, for example, the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. Making a finding on a fact or issue in the application by drawing an inference or a conclusion which lacks a logical connection with the evidence might also be described as failing to give proper, genuine and realistic consideration to the fact or issue. However, any such decision or finding will not involve jurisdictional error if a reasonable decision-maker could reach that decision or finding on the same material: SZMDS at [130]-[132] and [135] per Crennan and Bell JJ and at [78] per Heydon J. As Allsop CJ observed in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [21] the question is "whether a decision-maker could reasonably come to the conclusion" reached. If the conclusion is one upon which reasonable minds can differ, it will not be legally illogical, irrational or unreasonable.

(See also Minister for Immigration, Citizenship and Multicultural Affairs v JSMJ [2023] FCAFC 77 at [39])

8. Thus, a party relying upon an unwarranted assumption to establish jurisdictional error will need to establish that the assumption is not one which a reasonable decision maker could make. Another way of asking this question is to ask whether the decision has an evident and intelligible basis: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [10] per Kiefel CJ, [82] per Nettle and Gordon JJ, citing Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ. In this case, therefore, this means that the question for decision is whether the Tribunal's impugned credit findings were ones which could reasonably be arrived at or whether they lacked an evident and intelligible justification.

1. By way of nine particulars raised in support of the sole ground of review, the applicant alleges the Tribunal erred in ten distinct ways such that it 'adopted a legally unreasonable process of reasoning in assessing [his] credibility and thereby committed jurisdictional error'. I now turn to address each of the ten errors alleged by the applicant.

First alleged error - failure to have regard to impact of trauma when assessing inconsistent evidence in support of the serious assault and rape claims

1. In relation to the error alleged by way of Particular 1a, the applicant submits that paragraph [52] of the Tribunal's reasons disclose error in its treatment of inconsistencies in his evidence concerning the circumstances of his arrest by police prior to his detention, assault and rape. Paragraph [52] relevantly records the Tribunal's identification of the inconsistency, the applicant's explanation for the inconsistency, and the Tribunal's reasons for rejecting that explanation (reproduced below without alteration):[32]

Firstly, the Applicant provided inconsistent evidence as to whether he was arrested by the police on his way to church or on his way back from church. In his statement, he claims that while driving to church on 11 January 2015, [S] and [H] with the police stopped the car he was travelling in with his mother and brother and ordered them to get out of the car. He claims when he came out of the car he was arrested and taken to the police station, while his brother and mother were allowed to leave. However, in contrast at the Department interview and Tribunal hearing, he stated that he was stopped by the police and arrested after church. He said and confirmed at the Tribunal hearing that after church, the Applicant together with his mother and brother got in the car and drove for a couple of minutes when they were stopped by the police and taken to the police station. When the inconsistency was raised with him at the Tribunal hearing he said it was a mistake in his statement. The Tribunal does not accept his explanation that it was a mistake in his statement as it is of the view if he was stopped and taken by police as claimed he would be consistent as to this detail due to the significance of the event. It adds to the finding he is not a credible witness.

(emphasis added)

1. The applicant takes issue with the Tribunal's reasoning process, alleging it was legally unreasonable to 'assume' he would be able to give consistent evidence when recounting 'significant' events such as serious assault and rape, and this is indicative of a failure to appreciate the likelihood of inconsistencies in the evidence of victims of sexual assault. Mr Jones argued at hearing that the fact that a particular incident, event or experience within the narrative presented by an applicant in support of their claim for protection might be regarded as significant, does not necessarily mean that its recitation must always be consistent. Mr Jones emphasised this is especially so where an individual has endured particularly traumatic experiences. In support of this submission, Mr Jones drew my attention to a range of propositions in Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369 (Lehrmann), particularly paragraphs [116]-[117]:

[116] The evidence was objected to by Mr Lehrmann on a number of grounds, which are now unnecessary to detail. Prior to ruling on the objections, I raised with the parties my preliminary view that even if the evidence was admissible, it would be, at best, of marginal utility in circumstances where: (a) this was a judge-alone trial; and (b) that subject to submissions to the contrary, I considered it would be appropriate to direct myself as to the impact of alleged counterintuitive conduct in a manner consistent with some foundational propositions referred to in the proposed evidence which, it seemed to me, simply reflected the accumulated experience of the common law (seen in standard directions) or in ordinary human experience.

[117] Sensibly, both parties agreed, and it became unnecessary to deal with admissibility or discretionary exclusion issues, as the following became common ground as agreed facts pursuant to s 191 EA (Agreed Facts dated 18 December 2023 (agreed facts)):

(1) trauma has a severe impact on memory by splintering and fragmenting memories; such that semantic or meaning elements become separated from emotion; and interfering with the timespan memories require to consolidate and become permanent;

(2) due to the potential for cuing of emotional responses to fragmented memories, memory can change, be subject to reconsolidation effects, and even when these effects are not marked initially, memories may remain labile for some time (thus changes in what the person reports as their memory of an event can be expected);

(3) lack of clarity and confused accounts can be expected until such time as the memory has consolidated;

(4) inconsistencies in reporting following a traumatic event are often observed and explicable through underlying theories of trauma and memory function;

(5) omissions can be understood as alterations in awareness due to high arousal at the time of the event that consolidate over time;

(6) inconsistency is often observed in reliable reports of sexual assault and is not ipso facto a measure of deception;

(7) in understanding the account of an alleged "survivor", a person must consider how that account was elicited; this includes the skill and attitudes towards the person by the investigating officers; the time elapsed between the traumatic event and the formal interview; and the psychological/emotional state of the person being interviewed at the time of interview;

(8) the first forensic interview is potentially a trigger for intrusive thoughts that can lead to fragmentation of memory and dissociation; patterns of behaviour such as high confidence and clarity in the account are not helpful in determining whether the account is accurate;

(9) despite the belief that the emergence of inconsistencies across interviews is a sign of lying (people "can't keep their story straight"), the literature on memory, impacts of trauma and the dynamic between interviewee and the interviewer must be considered; and

(10) multiple interviews are typically necessary to construct a clear narrative of events; however, the consequence of these multiple interviews may be patterns of inconsistency or omissions especially early in the interview process (which need to be carefully evaluated but are not in and of themselves necessarily indicative of deception or accuracy).

1. Further, Mr Jones argued the Tribunal had failed to articulate why it considered the identified inconsistency to be significant, nor did it explain the weight attributed to that inconsistency in its overall assessment. He further argued that an absence of reasoning in that regard raises a concern of unreasonableness, especially given that the issue clearly arose from the evidence before the Tribunal.
2. In response, Ms McNeil submits the observations in Lehrmann were largely confined to the particular facts of that case and therefore offered little support to the applicant's argument. She argued that while the propositions expressed in Lehrmann at [117] were accepted in that case as agreed facts pursuant to s 191 of the Evidence Act 1995 (Cth), the applicant fails to acknowledge the totality of the principles in Lehrmann:[33]

Crucially, the propositions expressed in Lehrmann at [117], do not shield reports of sexual assault from scrutiny, including by reference to inconsistencies. Credit issues arising from a fair assessment of the evidence cannot be minimised in that way (see Lehrmann at [183]-[184]).

1. Ms McNeil continued by further stating that the propositions in Lehrmann were intended to assist the Court and did not imply that the credibility of a person alleging assault is beyond scrutiny. She argued that the Tribunal appropriately examined the applicant's evidence and reiterated that, in SZMDS, the High Court held that a decision will not be irrational merely because another reasonable decision maker might have reached a different conclusion. On that basis, she expressed disagreement with the applicant's contention that the Tribunal's reasoning, particularly at paragraph [52] of its decision, lacked the clarity and justification necessary to support a conclusion that was reasonably open on the evidence.
2. In my view, there is nothing to indicate the Tribunal erred in the making of this adverse credibility finding. As the Minister submits, the reasons disclose the Tribunal's appreciation of a broad range of circumstances that may account for discrepancies in the applicant's account of events that were raised in support of his claim for protection. While the reasons do not contain any particular recitation of considerations to be borne in mind when assessing the evidence of survivors of sexual assault, such as the propositions agreed between the parties in Lehrmann, there was no requirement for such detail. The difficulty with the applicant's argument is that it is largely based upon a bold assertion that the Tribunal approached its fact-finding without regard to the possibility for flaws in the applicant's evidence attributable to the impact of trauma upon memory. That assertion has not been made out. As the Minister submits, paragraph [74] of the reasons expressly allowed for the possibility of discrepancies arising because of genuine lapses in memory. Put simply, the Tribunal did not regard the lapses in memory to have been genuine.
3. While I acknowledge the applicant's evidence was given in different formats over some years apart, the applicant has not raised an argument that the Tribunal somehow erred in the manner of taking oral evidence from him at hearing, particularly in relation to eliciting information about claimed incidents, events and experiences in Pakistan. Instead, the applicant's complaint stems from an apparent dissatisfaction with the Tribunal's approach to its rejection of the applicant's explanation for this discrepancy. The difficulty for the applicant in this case is that when given an opportunity to explain the discrepancy, he simply told the Tribunal that he made a mistake in his written statement. There is no evidence before the Court indicating the applicant having proffered any detail as to why he had erred when preparing his own written statement. The applicant's response was not of a quality that, in my view, would have reasonably required the Tribunal to consider making allowances of the kind that the applicant now seeks. That said, the Tribunal did consider the explanation given for the discrepancy but was unpersuaded by that explanation for the reasons it gave. It formed the view that the applicant did not satisfactorily explain how the applicant was unable to give consistent evidence in relation to such a significant event.
4. Further, there was nothing illogical or irrational in the Tribunal's consideration and ultimate rejection of that explanation for the inconsistency in the applicant's evidence. That rejection was based upon a view that the applicant would have at least been able to give consistent evidence on this aspect of his narrative. A fair reading of the Tribunal's reasons as a whole reveals the Tribunal formed the view that the inconsistency was significant in the sense that it did not relate to an objectively minor matter of fact, and that it expected such matters would have been recalled consistently. In the absence of any explanation before the Tribunal as to why, at the time he wrote his statement, the applicant erred about the sequence of events which preceded his alleged arrest, detention, assault and rape, it was open to the Tribunal to reject the explanation given for the inconsistency. It follows that the consequential making of an adverse credibility finding was an outcome entirely open to the Tribunal for the reasons it gave. That reasoning was not so illogical or irrational or unreasonable such that it could be said that no decision-maker could have taken that path in the circumstances of this case. Accordingly, jurisdictional error does not arise on the basis contended by the applicant.

Second alleged error - illogical or impermissible rejection of the applicant's claimed mental difficulties

1. In relation to the error alleged by the applicant by way of Particular 1b, Mr Jones directed my attention to paragraph [75] of the Tribunal's decision. In that paragraph, the Tribunal expresses its contemplation of the possibility that the inconsistencies in, and concerns it has with, the applicant's evidence might be attributed to 'claimed mental difficulties which he claims arose as a result of the abuse he suffered in Pakistan'. However, the Tribunal rejected that possibility for reason of it otherwise having found the abuse did not occur. Mr Jones argues this was not a logical, reasonable or permissible approach and that any claimed mental difficulties which might explain deficiencies in his evidence 'should have been considered at the a priori stage of assessing credibility, not rejected because the Tribunal had already reached an adverse conclusion on credibility'.
2. By way of response, the Minister submits the finding at paragraph [75] is not a stand-alone finding and that the Tribunal's rejection of the claims relating to the abuse he suffered in Pakistan rested upon numerous concerns about the applicant's evidence, including those which could not be attributed to claimed mental difficulties. For example, Ms McNeil noted the applicant's claim that he was arrested by police and held by the Mullah on 11 January 2015. However, as discussed at paragraph [56] of the decision, the applicant's Facebook page indicates that on 11 January 2015 he celebrated his birthday and there are two pictures of him posted on 11 January 2015, one of him with balloons and another of him celebrating with friends. When the Tribunal raised its concern that these photographs gave rise to doubts about the veracity of him having been detained on that day, he responded that he left his phone at home that day and his sister had his password so she used his phone to post the pictures. He stated that that she posted the photos after he was taken by the police. The Tribunal did not accept as plausible that the applicant's sister would post the birthday pictures in the applicant's name of the applicant on his Facebook page when he had been arrested by police.
3. The difficulty with the applicant's criticism of the Tribunal in this regard is that it is made in isolation from any consideration of the Tribunal's extensive reasons and the sequence in which those reasons were stated. As I have detailed at [16] above, the Tribunal thoroughly addressed the credibility of the applicant's account by way of its chronological assessment of each of the claims raised regarding the events that occurred in Pakistan. After making a series of findings of fact in relation to those claims, the Tribunal then gave four further reasons in support of an overall credibility assessment which I have detailed at [17] above. Only one of those four reasons relates to the Tribunal's rejection of the applicant's claimed mental difficulties.
4. In my view, the applicant has misconstrued the Tribunal's reasons by reading them in a manner to otherwise suggest that its findings of fact were illogical or irrational because it had somehow peremptorily rejected or otherwise failed to properly take into account the applicant's claimed mental difficulties. Each of the findings of fact made by the Tribunal in relation to the various claims raised had an evident or intelligible justification and there is nothing in the Tribunal's reasons which indicate it had closed its mind to the possibility that deficiencies in the applicant's evidence could be attributed to mental difficulties arising out of the applicant's experience of claimed events in Pakistan.
5. The Tribunal gave extensive reasons for rejecting the applicant's narrative of events in Pakistan which might arguably have caused him to face mental difficulties that might impair his ability to recall or recount such events. Those reasons clearly identified what the Tribunal found were inexplicable inconsistencies and implausibilities in the applicant's account. Such findings were entirely open on the evidence before the Tribunal and were not reached in a manner indicative of the Tribunal having not been alive to the prospect of claimed mental difficulties compromising his ability to recount such events.
6. Furthermore, in the absence of any medical evidence before the Tribunal detailing the applicant's mental difficulties and the degree to which that might impact upon his ability to give evidence in support of his claims (either in writing or within the context of a Departmental interview or Tribunal hearing), the Tribunal's consideration of any possible impact of applicant's claimed mental difficulties upon his ability to give evidence was appropriate. In circumstances where the Tribunal had otherwise found the claimed adverse experiences in Pakistan did not occur, there was clearly an evident and intelligible justification for the Tribunal reason not to attribute deficiencies in the applicant's own evidence to 'claimed mental difficulties which he claims arose as a result of the abuse he suffered in Pakistan'. Accordingly, jurisdictional error does not arise on this basis.

Third alleged error - assessment of inconsistent accounts of how the applicant met and came to know S and H

1. The error alleged by way of Particular 1c concerns the applicant's account of how and where he met S and H.
2. The applicant submits that at paragraph [41] of its decision the Tribunal adopted a legally unreasonable approach in assessing an alleged inconsistency in his evidence. The applicant contends the Tribunal erred by relying on an inconsistency as to where he had met S and H, namely whether his scripture teacher had introduced them to him at her home or at their College. Two arguments are raised:

(a) First, the applicant argues that his evidence on this issue was not inconsistent. He did not say in his statement that he had met S and H at his scripture teacher's home. Rather, he stated that he had met members of the football club through his scripture teacher, S and H; and that he had studied alongside S and H at his scripture teacher's home. The Tribunal fundamentally misunderstood the evidence in the applicant's statement, which led it into error.

(b) Secondly, in the event the first argument is not accepted, the applicant argues in the alternative that the Tribunal erred by failing to assess the significance of the inconsistency in terms of demonstrating the applicant's evidence was not credible. In advancing the alternative argument, Mr Jones relied on ASB17, emphasising that the Tribunal's expectation for precise details, such as an exact date or location of the meeting with S and H, was unreasonable in light of the applicant's circumstances.

1. By way of written submissions, the Minister contends the Tribunal's reasons are coherent and clearly identify the inconsistencies in the applicant's account of the circumstances in which he met S and H. Specifically, the Tribunal identified at paragraph [41] that the applicant stated at one point during the hearing that he first met S and H at College after lessons and at the Azam football ground, whereas in a prior written statement he claimed to have met them at his scripture teacher's home where they studied together and became close. This inconsistency was put to the applicant during the proceedings, and the Tribunal's finding that the applicant was not credible was properly made on the basis of the material before it.
2. In relation to the first contention, I disagree with the applicant's characterisation of the inconsistency. The Tribunal's reasons speak for themselves as to the identification of the inconsistencies in the applicant's evidence and the applicant's asserted explanation for those inconsistences when challenged at hearing - an explanation which raised further inconsistencies. That inconsistency must be understood in terms of its identification by the Tribunal. The Tribunal clearly described the inconsistency pertained to how the applicant 'met and came to know' S and H. Specifically, the applicant's statement at the hearing that 'he only met [S] and [H] at College once after lessons and after that he met them at Azam football ground'[34] is arguably inconsistent with his prior written statement that 'I visited the teacher's home and studied along with [S] and [H] and we became very close'.[35] When the alleged discrepancy was put to him at hearing, the applicant insisted that he first met S and H at College. I agree with the Minister that it was entirely open to the Tribunal on the material before it to regard the applicant's evidence as inconsistent for the reasons it gave.
3. A review of the Tribunal hearing transcript reveals a series of interrogatories and responses between the Tribunal and applicant in relation to this matter.[36] Those responses were the basis upon which the Tribunal formed a view that an inconsistency may have arisen. A further review of the Tribunal hearing transcript reveals a series of interrogatories and responses between the Tribunal and applicant in relation to the explanation given for that alleged inconsistency.[37] There is nothing in the Tribunal hearing transcript which reveals the Tribunal having misunderstood the applicant's evidence on this issue or otherwise having erred when identifying an inconsistency in the applicant's evidence.
4. I am unpersuaded by the applicant's second contention that the Tribunal failed to assess the precise nature and significance of the inconsistency or whether it was on a matter central or peripheral to the applicant's claims. It is clear from the Tribunal's reasons that it regarded this discrepancy as one among a number of 'significant credibility aspects'[38] in the applicant's evidence which led to making of its adverse credibility finding. A fair reading of the Tribunal's reasons as a whole reveals that the applicant's relationship with S and H was central to his claim for protection. This particular inconsistency identified by the Tribunal related to a 'central and static' element of the applicant's story, rather than a discrepancy concerning a matter upon which the applicant was asked to speculate and could therefore understandably provide varied responses over time due to changes in perception or knowledge: BEL16. In my view, it is entirely within the scope of decisional freedom for the Tribunal to have formed the view that such a discrepancy was significant in terms of assessing the applicant's truthfulness and credibility.
5. Therefore, the findings set out in the first bullet point of paragraph [41] of the Tribunal's decision do not disclose any jurisdictional error.

Fourth alleged error - assessment of inconsistent accounts of where the applicant met the Mullah and what happened at that meeting

1. A further error alleged by way of Particular 1c concerns the applicant's account of where he met the Mullah and when the Mullah first spoke with him about converting to Islam. At the second bullet point at paragraph [41], the Tribunal identified that in relation to this circumstance the applicant gave the following inconsistent evidence:

(a) In his written statement, the applicant wrote he first met the Mullah at his scripture teacher's home around July 2012 where the Mullah told him that if he converted to Islam he could become a member of the Azam football club.[39]

(b) However, at hearing the applicant said he first met the Mullah at the football club in March/April 2012 when the Mullah asked him whether he wanted to be a member and told him that his scripture teacher made him aware of his interest in Islam and further told him that he had to convert to Islam in order to become a club player.

1. Given the nature of the extensive follow-up and confirmation sought by the Tribunal at hearing in relation to when and where these events occurred and exactly what transpired when he first met the Mullah, I disagree with the applicant's submission. The Tribunal hearing transcript reveals the applicant being approximate as to these dates. A fair reading of the reasons at the second bullet point of paragraph [41] reveals the Tribunal's concern relates to where the applicant met the Mullah and what happened at that meeting, rather than exactly when that meeting occurred. On that basis, the applicant's allegation fails. In any case, I further agree with the Minister that it was open to the Tribunal to make the findings set out in the second bullet point of paragraph [41] of its decision. Those findings do not disclose any jurisdictional error.

Fifth alleged error - reliance upon an unwarranted assumption about radical Muslim students not attending the applicant's Catholic school

1. In advancing the argument raised by way of Particular 1d, Mr Jones directed the Court's attention to paragraph [42] of the Tribunal's decision:

Further, in his statement he claims that at his school when he was captain of the football team, radical Muslim students felt so jealous that they harassed and humiliated him daily as he is a Christian. At hearing he said he was targeted by the Muslims and there were many fist fights. When asked what the school response was he said, they said these things happen and asked them to shake hands. However, as raised with the applicant, the evidence indicates that his school, St Patrick's College is a private Catholic school run by the Archdiocese of Karachi and the Catholic Education Office. The applicant indicated at hearing that about 30% of the students are Catholics. He said the principal of the College at the time was Brother John, a religious man. When the Tribunal raised that it found it difficult to believe that radical Muslims would attend a Christian School, he responded that the College was run by the government and they had to have a quota of Muslims and Hindus. The Tribunal questioned this as the information indicates the College is not run by the Government and in 2005 was handed back to the Archdiocese of Karachi and Catholic Education Office. He said as the exam papers are marked by the government, they have to demonstrate the quota. The Tribunal does not accept the applicant's response as explaining why radical Muslims, even if there were quotas, which the Tribunal questions, would attend a Catholic school.

1. The central contention was that the Tribunal made an unwarranted assumption, namely that radical Muslim students would not attend the applicant's school, without any logical or evidentiary foundation. Mr Jones argued this assumption was particularly problematic given the Tribunal failed to challenge the applicant's evidence that the school offered Islamic studies or scripture taught by Islamist teachers, the applicant wore a Muslim cap at times at school and students recited an Islamic verse prior to examinations.[40]
2. In response, Ms McNeil drew my attention to the reasoning in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398; HCA 41, particularly at paragraph [18], arguing that this was relevant to the question of whether the Tribunal had made an unwarranted assumption. Reference was also made to the recent Full Court decision XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 131; (2024) 305 FCR 349; FCAFC 131, in which it had been noted that it is open to the Tribunal to make findings based on matters of common knowledge. On that basis, Ms McNeil argued that the inference drawn by the Tribunal was within its discretion and, in drawing such an inference, it was not required to expressly identify any specialised knowledge underpinning its reasoning.
3. The ultimate finding at paragraph [42] is best characterised as one where the Tribunal rejected the applicant's claim that he was harassed and humiliated on a daily basis by 'radical Muslim students' at his Catholic school in Karachi because it did not accept 'radical Muslim students' would attend that school. The Tribunal tested its assumption - that there were no radical Muslim students at the school - with the applicant at hearing. It considered his response before reaching a finding upon which it understood its assumption to be warranted. The reasons reveal the Tribunal was aware of the applicant's evidence in relation to the school's quota of Muslim students, Islamic teaching and Islamic prayer. Nevertheless, it found the evidentiary material before it did not disturb its assumption that radical Muslim students would not attend such a school.
4. In my view, taking into account the evidence before the Tribunal, the Tribunal's invocation of the term 'radical Muslim' in this context was that it found it difficult to believe that a student who held an extreme interpretation of Islam and would humiliate and harass a fellow Christian student, would attend or be permitted to remain in attendance at a Catholic school run by the Archdiocese of Karachi. In that sense, the Tribunal's particular assumption is one which a reasonable decision maker could make in the circumstances of this case. The assumption made by the Tribunal was based upon common knowledge that such students would either not be interested in attending a school in Pakistan that was not solely dedicated to their faith practice or otherwise be expelled from such a school if they continued to harass and humiliate Christian students. In that sense, the assumption had an evident and intelligible basis. Importantly, the Tribunal tested the assumption with the applicant at hearing and considered the available probative material before relying upon it as part of its fact-finding endeavour. Accordingly, jurisdictional error does not arise on this basis.

Sixth alleged error - assessment of inconsistent accounts of the applicant's whereabouts between September 2012 and March 2013

1. Next, Mr Jones directed me to what was described as the Islamabad to Karachi travel issue raised by way of Particular 1e. At paragraph [44] of its decision, the Tribunal recorded the applicant's oral evidence at hearing that he lived continuously with his father in Islamabad from September 2012 to March 2013. However, when pressed by the Tribunal to explain the veracity of that evidence when information from his student visa application form indicated he undertook an English language proficiency test in Karachi on 20 December 2012, the applicant changed his evidence stating that he had travelled to Karachi for one day to do the test and then returned to Islamabad. The Tribunal did not accept the applicant's explanation for this inconsistency as he had previously stated that he remained in Islamabad continuously through this period to avoid the Mullah.
2. The applicant contends the Tribunal adopted a legally unreasonable approach in assessing this inconsistency. The applicant specifically complains that the Tribunal failed to articulate the significance of the alleged inconsistency, or the weight it attributed to the inconsistency, as it was required to do, relying on ASB17.
3. In response, Ms McNeil submitted the Tribunal had expressly raised its concerns with the applicant regarding this aspect of his evidence, and argued that its treatment of the issue did not give rise to jurisdictional error. Reference was made to the Tribunal hearing transcript where the Tribunal utilised the procedure in s 424AA of the Act in putting its concerns to the applicant about the inconsistency in his evidence on this issue and the applicant's brief response.[41] Ms McNeil submitted that, given the nature of the earlier questioning, the applicant's response lacked credibility, especially considering that the applicant's return to Karachi (a place where he claimed to at greater risk of harm) simply because he had to undertake an English language proficiency test would presumably be a significant event warranting a clearer and more coherent explanation. On that basis, Ms McNeil concluded the Tribunal was entitled to reach the conclusion it did, and that no error arose in its assessment.
4. I am persuaded by the Minister's submissions on this point. It is clear from the Tribunal's reasons that it regarded this discrepancy as one among a number of 'significant credibility aspects'[42] in the applicant's evidence which led it to making an adverse credibility finding. A fair reading of the Tribunal's reasons as a whole reveals that the applicant's fear of harm of the Mullah was central to his claim for protection and therefore significant. It was entirely open for the Tribunal to interrogate any action taken by the applicant to avoid such harm in order to assess whether the applicant's fear of the Mullah was genuine or deeply held. Again, the particular inconsistency identified by the Tribunal related to a 'central and static' element of the applicant's story, rather than a discrepancy concerning a matter upon which the applicant was asked to speculate and could therefore understandably provide varied responses over time due to changes in perception or knowledge: BEL16 at [30]. It is entirely within the scope of decisional freedom for the Tribunal to have formed the view that such a discrepancy was significant in terms of assessing the applicant's truthfulness and credibility. Therefore, the findings set out in paragraph [44] of the Tribunal's decision do not disclose any jurisdictional error.

Seventh alleged error - assessment of inconsistent accounts of the applicant's activity when apprehended by police on 11 January 2015

1. The seventh alleged error, raised by way of Particular 1f, focused on the inconsistency in the applicant's evidence on whether he had been apprehended by police while travelling to or from church on 11 January 2015. Again, Mr Jones argued the Tribunal failed to articulate why this inconsistency was significant or how much weight it carried in the overall credibility assessment, relying on ASB17.
2. In reply, Ms McNeil submitted that whilst the Tribunal is required to consider credibility issues, it is not obliged to provide a granular analysis assigning specific weight to each individual inconsistency. What is required, it was argued, is that the Tribunal demonstrate it has undertaken a proper evaluative process and provided sufficient reasoning in support of its overall credibility findings. The Minister contended the absence of a detailed explanation regarding the weight of a particular inconsistency, such as that in paragraph [52], does not, in and of itself, amount to jurisdictional error, particularly where the Tribunal's broader reasoning addresses multiple credibility concerns in a coherent and structured manner.
3. I am persuaded by the Minister's submissions on this point. The applicant's allegation overlaps to a large degree with the more general complaints raised by way of Particular 1a. For the aforementioned reasons, I rejected those complaints. Nevertheless, I take this further opportunity to reiterate there was nothing illogical or irrational in the Tribunal's consideration and ultimate rejection of the applicant's explanation for the inconsistency in his evidence on whether he had been apprehended by police while travelling to or from church on 11 January 2015. That rejection was based upon an expectation that the applicant would have at least been able to give consistent evidence on this aspect of his narrative.
4. I accept the Tribunal must assess the significance of, and weight to be given to, inconsistencies as part of an evaluative process when reaching an overall credibility finding. However, the Tribunal is not required to provide a paragraph by paragraph exposition of the precise weight to be afforded to each deficiency in the applicant's evidence. Such a formulaic approach towards the evaluative process is not mandated by the authorities. Furthermore, and perhaps more importantly in this case, the Tribunal did not find that the applicant was not a credible witness solely because of this particular inconsistency. The Tribunal merely recorded this inconsistency was among many deficiencies in the applicant's evidence which 'adds to the finding he is not a credible witness'.[43]
5. Again, a fair reading of the Tribunal's reasons as a whole reveals that the inconsistency was significant, as it did not concern a minor factual detail. It can be readily inferred that the Tribunal expected the applicant to recall such matters with a greater degree of consistency. In the absence of any explanation before the Tribunal as to why, at the time of writing his statement, the applicant erred in recounting the sequence of events preceding his alleged arrest, detention, assault, and rape, the Tribunal's decision to reject his explanation for the inconsistency and to make an adverse credibility finding that gave some weight to this inconsistency among others was a course that was entirely open to it. The Tribunal's reasoning was not so illogical, irrational, or unreasonable that no decision maker could have adopted it in the circumstances of this case. Accordingly, jurisdictional error does not arise on this basis.

Eighth alleged error - assessment of inconsistent accounts of those present when the applicant was apprehended by police on 11 January 2025

1. By way of Particular 1g, the applicant takes issue with paragraph [53] of the Tribunal's decision (reproduced below save for necessary deidentification):[44]

Further, the applicant has provided inconsistent evidence as to whether [S and H] were with the police when he was stopped and arrested by the police on 11 January when travelling with his mother and brother. In his statement attached to his protection visa application he states [S and H], along with the police officers stopped their car. However, in contrast, at the Tribunal hearing he stated there were six police officers who stopped and arrested him and later [S and H] came with the Mullah to the [X] Road Police station. At the Department interview, he also said he was only stopped by police officers and did not refer to [S and H] being there. At the Department interview he said he was taken to [X] Road police station and then [S and H] came with the Mullah to take him to another area. When the inconsistency was raised with the applicant at hearing, he responded that [S and H] were there when he was stopped by police and he saw them standing there. The Tribunal does not accept this explanation as explaining the inconsistency as he did not refer to them being with the police when explaining who stopped him at the Tribunal hearing. In particular, he stated that two police officers were in the front seat of the car and four in the back. At the Tribunal hearing he did not refer to [S and H] being there, only coming later to the police station with the Mullah. The inconsistency in his evidence adds to the finding he is not a credible witness.

1. The applicant contends the Tribunal misunderstood his evidence in respect of the circumstances of his alleged arrest by the police on 11 January 2015. Mr Jones drew my attention to the Tribunal hearing transcript and essentially argued that as there was no specific question which would have elicited a response in relation to whether S and H were present when he was stopped by the police, the applicant's omission of that fact in his oral evidence cannot be construed as an inconsistency.
2. The Minister submits that in the written statement attached to the applicant's protection visa application, the applicant specified that S and H were present when the applicant's car was stopped.[45] However, during the hearing, as reflected in the Tribunal hearing transcript, the first mention of S and H occurred only in the context of events at the police station. The Minister submits that the Tribunal's identification of this inconsistency, which was put to the applicant, was reasonably open on the evidence and did not give rise to jurisdictional error.
3. Having reviewed the Tribunal hearing transcript as a whole, particularly the interrogatories and answers in relation to this particular matter,[46] it is my view the applicant was provided at hearing with a reasonable opportunity to give evidence in relation to the circumstances of his arrest including who was present when he was arrested. It is not the Tribunal's obligation to prompt an applicant throughout a hearing, including by way of asking close-ended questions, so as to ensure there are no stark omissions in the provision of their oral testimony. That said, I observe that in a series of four consecutive open-ended questions,[47] the applicant was asked on three occasions to describe what happened at the time of his arrest on 11 January 2015. He volunteered that a group of six police officers were involved in stopping the car in which he and two family members were travelling but made no reference to S and H being present at the time of that arrest. Instead, the applicant first mentions S and H when recounting events at the police station. In those circumstances, and in light of the significant part S and H played in the applicant's narrative, it was open to the Tribunal to find the applicant had provided inconsistent evidence on this issue. Accordingly, jurisdictional error does not arise on this basis.

Ninth alleged error - assessment of inconsistent accounts in relation to the duration of the applicant's detention by police and the Mullah

1. By way of Particular 1h, the applicant takes issue with paragraph [54] of the Tribunal's decision:[48]

The applicant has also provided inconsistent evidence as to how long he was detained for in total by the police and the Mullah. In his statement attached to his protection visa application, the applicant stated that two days after being raped by the Mullah he was taken to the mosque where he escaped. Whereas at the Department interview and Tribunal hearing he said and confirmed that he was detained for one day, that he was picked up by police after Mass at around 12.15pm on the Sunday and by the time he escaped it was approximately 4.10pm on Monday. When the inconsistency was raised with the applicant, he indicated that maybe he had forgotten. At the Department interview when the concern was raised, he said when he explained it to his lawyer, he said it was one and a half days. The Tribunal does not accept this explanation and is of the view if he was picked up and arrested by police, then detained by the Mullah he would be consistent between his statement at the interview and hearing as to how long that was for. It does not accept the mistake arose from his agent writing two days. This adds to the finding he is not a credible witness as to these claims. It adds to the finding he is not a credible witness.

1. The issue raised by the applicant relates to the duration of the applicant's detention by the police and the Mullah. Two conflicting accounts were provided in relation to the period during which the applicant was detained by the police and the Mullah:

(a) In a written statement, the applicant claimed he was apprehended by the police on 11 January 2015 and detained at a police station for a period. From there, he was taken to and detained in a room in Hazara Chowk where he was tortured and raped by the Mullah and Taliban men. Two days later he was taken to a mosque where he finally escaped.[49]

(b) At hearing, the applicant explained he was detained by the police and the Mullah at midday on 11 January 2015 and he escaped at 4.10pm on the following day.

1. Mr Jones submits the Tribunal's treatment of this inconsistency was legally unreasonable. It was submitted the Tribunal failed to properly consider the applicant's explanation for the alleged discrepancy given at hearing:[50]

Q367 Okay. So the length of your detention, you said at department interview and today it was one day but in the statement it was two.

1. (INT) Because I saw from one noon to other days noon. That's two days, like if you see two days that how I looked at it.

1. It was further submitted that even if there was an inconsistency to some degree, it was not reasonable for the Tribunal to treat it as being an inconsistency of importance. These events occurred more than five years prior to the Tribunal hearing, in relation to the applicant's alleged serious assault and rape. Again, Mr Jones argued the Tribunal did not make any assessment of the significance of, or weight to be given to, such an inconsistency by reference to these matters thereby giving rise to an approach that was illogical and unreasonable.
2. By way of response, Ms McNeil submitted the difference between the applicant's written and oral accounts was significant and not attributable to a minor oversight. Relevantly, Ms McNeil argued the Tribunal properly addressed this inconsistency in paragraph [54] of its decision and that its reasoning did not amount to jurisdictional error.
3. Having considered the parties' submissions and reviewed the applicant's written statement and the Tribunal hearing transcript, I am of the view that the applicant has mischaracterised the Tribunal's reasons in suggesting that it had misunderstood the applicant's evidence. It is clear from the written statement that the duration of the applicant's detention by the police and the Mullah was no less than two entire days. By contrast, the applicant gave clear oral evidence at hearing that the period of detention by the police and the Mullah spanned some 26 consecutive hours across two calendar days. That was the inconsistency expressed in the Tribunal's reasons and, in my view, it was open to the Tribunal to regard this as an inconsistency. Again, a fair reading of the Tribunal's reasons as a whole reveals the Tribunal formed the view that the inconsistency was significant in the sense that it did not relate to an objectively minor matter of fact. It can be readily inferred from the reasons that the Tribunal expected the applicant to consistently recall how long he had been deprived of his liberty. The Tribunal's rejection of the applicant's explanation was neither illogical nor irrational and I regard the applicant's argument to be no more than an invitation to engage in impermissible merits review.
4. Again, in the absence of a persuasive explanation before the Tribunal as to why his evidence was inconsistent, the consequential making of an adverse credibility finding which afforded some weight to this inconsistency among a number of others, was an approach that was entirely open to the Tribunal for the reasons it gave. That reasoning was not so illogical or irrational or unreasonable such that it could be said that no decision-maker could have taken that path in the circumstances of this case. Accordingly, jurisdictional error does not arise on this basis.

Tenth alleged error - failure to have due regard to the fallibility of human memory when rejecting the applicant's explanation for his inconsistent evidence in relation to his escape

1. By way of Particular 1i, the applicant takes issue with an aspect of paragraph [55] of the Tribunal's decision. At hearing before me, Mr Jones clarified that the alleged error appeared in paragraph [55], rather than [56], of the Tribunal's decision. Paragraph [55] reads (reproduced below save for necessary deidentification):

Further he has provided inconsistent evidence as to whether he escaped from the same place he was taken to by [the Mullah] and the Taliban. In his statement attached to his protection visa application he claims two days after being raped and beaten by the Mullah and [Taliban] men [S and H] in Hazara Chowk, he was then moved by [S and H] to the mosque, whereupon he was left with a Muslim man who showed him the toilet at the back of the mosque which he then escaped from. At the hearing he gave similar evidence. However, at the Department interview, he stated that after being held at the police station and being transferred by [the Mullah] with [S and H] to Hazara Chowk, he stayed there for about 24 hours and escaped from there. He said he stayed at the same place the entire time and when he was left with a Muslim man he asked to go to the washroom and then escaped. When the inconsistency was raised with the applicant at the Tribunal hearing, he said that maybe he had forgotten. The Tribunal does not accept this explanation and is of the view if he was detained and escaped, he would recall consistently where he escaped from and whether he was moved . It does not accept due to the significance of the event he would have forgotten. This adds to the finding he is not a credible witness as to these claims. It adds to the finding he is not a credible witness.

1. Mr Jones submits the Tribunal rejected the applicant's explanation that during the Departmental interview he may have forgotten certain details about what occurred in 2015 on the basis that, if the applicant's account were truthful, these details would not have been left out. He then argued the Tribunal's approach:

ignores the fact (consistently emphasised in the authorities) that, as a matter of ordinary human experience, it is to be expected that a person will forget details of events that have occurred many years previously, even where those events are significant. Again, there was no basis for the Tribunal's implicit assumption that a person cannot plausibly forget details of a significant event after a period of five years.

1. By way of response, Ms McNeil submits the Tribunal did not adopt the position that the applicant would not forget any details. Rather, the Tribunal was concerned about inconsistencies in the applicant's evidence about particularly significant elements - namely where he escaped from and whether he was moved.
2. I am persuaded by the Minister's submission on this point. Again, there was nothing illogical or irrational in the Tribunal's consideration and ultimate rejection of the applicant's explanation for the inconsistency in his evidence on this issue. That rejection was based upon an expectation that the applicant would have at least been able to give consistent evidence on these aspects of his narrative both at interview and hearing. Given the static nature of these matters and their centrality to the applicant's narrative, it was not unreasonable for the Tribunal to have proceeded upon the expectation that the applicant would not have forgotten the sequence of these key events in his narrative and be able to give consistent evidence in that regard. Again, the Tribunal's reasons reveal that it was alive to the fallibility of human memory when recalling past events but ultimately found that this could not explain the numerous inconsistencies in the applicant's evidence in relation to various key aspects of the narrative he presented to support his claim for protection. Accordingly, jurisdictional error does not arise on this basis.

1. For the above reasons, the application before this Court is dismissed.
2. Finally, as a consequence of:

(a) changes to Ministerial portfolio arrangements, the name of the first respondent is to be amended to 'Minister for Immigration and Citizenship'; and

(b) the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to 'Administrative Review Tribunal'.

I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos.

[33] Minister's Written Submissions filed 6 May 2025, [22].

[36] Transcript p13, q122 - p16, answer to q153.

[37] Transcript p37, q344 - p38, answer to q347.

[41] Transcript p35, q334 - p36, answer to q336.

[43] CB 282, [41]; CB 283, [41]; CB 284, [43]; CB 284, [44]; CB 285, [47]; CB 286 , [48], [50], [51]; CB 287 [52], [53], [54]; CB 288 [55], [56], [60]; and CB 289 [65].

[46] Transcript p24, q236 - p38, answer to q251.

[47] Transcript p24, q236 - p38, answer to q251.