Consideration
37 In MZZJO 239 FCR at 449 [56], North, Bromberg and Mortimer JJ said, of an entry interview in an appeal concerning a decision of the Refugee Review Tribunal:
On the latter issue, some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called "people smuggling". They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.
(emphasis added)
38 In DWA17 v Minister for Immigration and Border Protection (2019) 272 FCR 152 at 160 [32], McKerracher, Banks-Smith and Jackson JJ said that:
decision-makers would do well to apply the caution expressed by the Full Court in MZZJO [v Minister for Immigration and Border Protection (2014) 239 FCR 436] at [56]. But it is just that - a caution. It is something which often, but not always, should be borne in mind in order to reach the correct decision.
(emphasis added)
39 DWA17 272 FCR 152 dealt with a decision of the Authority for which the Parliament designed a significantly different review scheme than applies to the Administrative Appeals Tribunal, and its predecessor tribunals. Unlike the Authority, Pt 7 of the Migration Act 1958 (Cth) creates a scheme of administrative review that requires the Tribunal to invite an applicant for review of a decision of a delegate refusing to grant a protection visa to a hearing before it. In contrast, the Authority, under Pt 7AA of the Act, is significantly confined in its ability to receive new evidence and information and is not, in the ordinary course, expected to invite the applicant to a hearing to give evidence before it.
40 In DWA17 272 FCR at 161 [37], the Full Court referred to the reasoning of Gageler, Keane and Nettle JJ in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 226 [17] that described the task of the Authority. McKerracher, Banks-Smith and Jackson JJ went on to say that there was nothing inherent in the Authority's task that limited the extent to which it was able to make use of the materials before it. They observed that the Act limits what those materials necessarily comprise but they include the material before the delegate, such as the entry interview in the present case. Their Honours said (272 FCR at 161 [39]):
It was therefore open to the Authority and, in our view, required of it, to give the Interview Record the weight that, in the Authority's view, it deserved in the context of the rest of the necessarily limited information on which it was required to base its decision. We agree with Perry J in Paerau v Minister for Immigration and Border Protection (2014) 219 FCR 504 at [105] that:
Provided, therefore, that such judgments as to relevance are made by the decision-maker within lawful boundaries, the question as to whether particular evidence can be given any, and, if so what, weight falls within the exclusive province of the administrative decision-maker. Weight may be affected by such matters as provenance … credibility, completeness, context or lack thereof, and the capacity of the interested party to respond to the material particularly if it is adverse.
(emphasis added)
41 Their Honours concluded (at 164 [52]) that there was no jurisdictional error in the reasoning of the Authority in that appeal. They said that:
As we have said, nothing inherent in the statutory task prohibits the Authority from relying, even relying heavily, on the absence of a claim from the record of an initial interview in order to reject a particular claim. Any formulation to that effect would go further than the dicta in MZZJO allow, and such formulations are to be avoided. The Authority's task was to review the materials provided to it and (with limited exceptions) no more than those materials, and to come to its own decision as to the appellant's protection claims.
(emphasis added)
42 In my opinion, the appellant's argument must be rejected. There is nothing illogical in the way in which the Authority reasoned or that suggested that it had ignored or failed to assess the appellant's claims of sexual assault. While other decision-makers may have come to different views and reasoned differently on the material before the Authority, the issue here was whether the Authority acted in a way that was legally unreasonable. In deciding to reject his claims in par 33, it was open to the Authority to do so, because the appellant had not mentioned, in the entry interview, anything more than one occasion on which he claimed to have suffered internal pain, but no physical injury, from a beating in the incident that he described. It was entitled to reason as it did, namely, that, if the multiple instances of physical abuse and torture, including sexual torture, which the appellant described in claims made well after the entry interview, had, in fact, occurred, he would have mentioned, at the entry interview, at least the claims of beatings and physical torture, leaving aside sexual torture, given their alleged severity.
43 In Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67], McHugh J said:
this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word "implausible". The disbelief arose from the tribunal's view that it was inherently unlikely that the events had occurred as alleged.
(emphasis added)
44 So too in this case. The reasoning of the Authority appears, on its face, to be that, by failing to mention those other incidents of physical beatings and torture, the whole of the appellant's account was not credible and that included, as a consequence, his assertions that he had been sexually tortured. I am unable to see how that was not a finding open to the Authority on the material before it or was not a reasonable and logical assessment of the evidence.