Ground 2 (CLK17 and CLJ17) and Ground 3 (CLJ17): credibility findings
67 It is well established that the reasoning of an administrative decision-maker which leads to a finding that a visa applicant's evidence is not credible, or reliable, is not immune from scrutiny on judicial review. The basis may be "no evidence", or illogicality or irrationality, or legal unreasonableness. There may be a critical misunderstanding of the evidence which, in substance, removes any probative basis for the adverse finding. The error might be described in a number of ways, depending on the circumstances. Provided it is sufficiently material to the decision-maker's conclusions, it may be described as an error of a jurisdictional kind. None of these propositions are controversial. However, in their application to the reasons of the Tribunal, the appellants' challenge must fail.
68 CLK17 contends that, contrary to the Tribunal's findings at [67]-[68] of its reasons, CLK17 did mention in his application for protection, and in the delegate interview, his receipt of telephone threats. On the evidence, that is correct.
69 At [81] of its reasons, the Federal Circuit Court found the Tribunal's reference to CLK17 failing to mention the telephone threats in his "application" should be understood as his failure to mention the threats in his entry interview. The basis for that conclusion is tenuous at best, and involves a reconstruction and re-writing of the Tribunal's reasons. What is more relevant is that the finding about the threats was but one of several bases articulated in [67] of the Tribunal's reasons for the Tribunal's doubts about the reliability of what CLK17 had said. Paragraph 67 should be extracted in full:
A number of circumstances in this case lead the Tribunal to make an unfavourable finding on the credibility of the applicant's claims and evidence. This assessment has been made in light of the credibility assessment guidance and principles outlined in the relevant cases summarised under Credibility assessment under Relevant Law above. For example, the applicant was able to depart Vietnam and travel to Bangladesh, and then return to Vietnam, using a passport issued in his own name and without being questioned or detained. The Tribunal finds this raises serious doubts about his claim to be a person of adverse interest to the Vietnamese authorities. The Tribunal also found the evidence before it of the delay between returning to Vietnam after travelling to Bangladesh and travelling to Australia, and his evidence of returning to employment during this time, does not suggest he was in hiding or in fear of his wellbeing. The Tribunal also found the applicant's evidence that he continued his church activities over this period further undermines his claims that he faced a real chance of serious harm in Vietnam. Further evidence in this case which the Tribunal finds weakens his claims and cast doubt on his credibility include his failure in his application to mention the receipt of telephone threats. For these reasons, and considering all the applicant's claims in light of relevant country information, the Tribunal finds the applicant is not a credible witness.
70 On any view, this finding did not deprive CLK17 of the possibility of a successful outcome: see Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [56], referring to Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 147.
71 In relation to CLJ17, the challenge is to [93]-[95] of the Tribunal's reasons, which are as follows:
The Tribunal carefully considered all of the applicant's evidence and claims in the light of the relevant country information and in light of the credibility assessment principles summarised above (under the Credibility subheading under Relevant Law). Having done so, it formed the view that important parts of his evidence [are] not credible and that the applicant is not a reliable witness. For example, it found, as did the delegate, the applicant provided inconsistent evidence on the use of a fake passport as between his entry interview and in subsequent claims. The Tribunal also found he has not satisfactorily explained a significant delay between the time the applicant claimed his problems began in Vietnam, in April 2011, and his departure for Australia in March 2013, and that this undermines his claims to hold a genuine fear of serious harm. The Tribunal also formed the view that the applicant's claim that he had been attacked by 10 men was exaggerated and is not truthful. Furthermore, the Tribunal found the applicant's claims lacked consistency and coherency, for example where he claimed he feared harm for his religious activities but then said the government had no reason to arrest him and that it had no evidence against him. The Tribunal finds this claim undermines his claims that he is perceived as an activist for reasons of his demonstration at the family planning demonstration, or that he is perceived to be an activist or a person who is to be targeted for harm. Further, the Tribunal finds that important aspects of his claims are not supported by the weight of relevant country information. The applicant's claims and the Tribunal's detailed assessment of them are discussed further below.
In relation to the oral evidence from the applicant's brother, [CLK17], the Tribunal considered this evidence, however, it does not place significant weight on it as the Tribunal found it lacked detail. It also found the witness appeared to exaggerate the risk of harm to the applicant in claiming he would face serious harm for reasons of teaching religion. When it was put to him that country information indicates that teaching religion is not a crime in Vietnam, and that the country information indicated that a person would not be targeted for serious harm for teaching religion there, the witness agreed this was the case.
The Tribunal also considers, and as discussed with the applicant at the hearing, the evidence of the applicant where he claims he remained in Korea illegally and that he did not go there for protection, raises further doubt as to the applicant's credibility and character. When asked about this at the hearing, he said he did not like the things the government was doing. While that may be so, the Tribunal finds on the evidence before it that he was not at risk of serious harm in Vietnam and his action to disregard his visa obligations in the circumstances reflects negatively on his credibility and on his claims for protection.
72 The contentions put about these paragraphs invite this Court to reassess the evidence of CLJ17, in part by making findings about how country information should have been interpreted. That is no part of this Court's function on appeal, nor any part of the Federal Circuit Court's function on judicial review.
73 Further, CLJ17's submissions contend the Tribunal took an "idiosyncratic" approach during the review hearing, and further contend:
The lasting impression of the Tribunal hearing is that it was more of an opportunity to cut back the Appellant's case than it was to consider his request to reverse the Delegate's decision. This was not "proper, genuine and realistic consideration".
(Footnote omitted.)
74 There is no allegation of actual or apprehended bias, but this is in substance the gist of this submission. The Tribunal's approach was at times forceful and sceptical. Provided those attitudes are not so pervasive as to give rise to allegations of actual or apprehended bias, and provided the review hearing is otherwise conducted in a way that is procedurally fair, there is nothing unlawful in a Tribunal member taking a robust approach to the questioning of a visa applicant. Some Tribunal members will do this, some will not. While moderation is always desirable, some of this is a matter of the individual style of decision-makers and will not affect the lawfulness of the review, unless it crosses the lines to which I have referred.