The findings of falsity - ground 1 and ground 2
39 The appellant's contention underlying ground 1 and ground 2 relates to the finding that "the account of the events on which [the appellant's] protection claims are based is false" and that the appellant is not a "witness of truth" (at [40] of the Tribunal's reasons) and focusses on the absence of logical or probative basis for the ultimate finding or, in the alternative, the illogicality and/or irrationality of such a finding. It seizes upon the words appearing in [40] that none of its expressed concerns about the appellant's credibility "would necessarily be determinative" of that issue.
40 The contention advanced for the appellant is that, at most, the identified inconsistencies and incongruities in his evidence, taken together, provided a basis to doubt or not to accept the evidence. However, it was neither logical nor rational, the appellant argues, to find that his evidence was false when there was not one finding of falsity or fabrication in relation to any of the appellant's evidence. The appellant stresses that, despite the entire orthodoxy of the remarks by McHugh J in Durairajasingham, the Tribunal is only empowered to make a determination under the Migration Act where it is based on findings or inferences of fact that are grounded upon probative material and logical grounds: WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74; 80 ALD 568 (at [22]); Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 per Gummow J (at [145]); and more recently, as discussed by Flick J in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; 233 FCR 451 (at [20]-[21]), where his Honour said:
20 Whatever may be the difficulties, however, adverse findings of fact founded upon credibility - like other findings of fact - may expose jurisdictional error. A finding of fact founded simply upon a conclusion that a witness is not to be believed is no more immune from judicial scrutiny than is any other finding of fact.
21 In an appropriate case findings of credibility by an administrative decision-maker may expose legal error.
41 Indeed, as also noted in SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 (at [31]), Flick J held that adverse findings as to credit by the Tribunal do not shield its decision-making process from scrutiny. His Honour there said:
31 In the context of judicial review being undertaken of a decision of a Refugee Review Tribunal, adverse findings as to credit by the Tribunal do not shield its decision-making processes from scrutiny. Thus, for example, in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [78], (2013) 212 FCR 99 at 121, Robertson J observed:
[78] It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal's rejection of the entirety of an applicant's evidence and the entirety of the applicant's claim.
The Tribunal in that case had found the claimant had been "untruthful", including in the account he had given as to his having studied Persian in Pakistan. The Tribunal, however, had failed to refer in the course of the hearing or in its reasons to a document from Punjab University corroborating the claimant's account. Notwithstanding the findings as to credit, the decision of the Tribunal was set aside. The Minister appealed unsuccessfully. Robertson J relevantly concluded:
[119] The key features of the present case therefore are, first, that the Tribunal did not consider the Punjab University transcript and, second, the matter to which that transcript went founded the Tribunal's rejection of the applicant's claims, on the basis that he had been untruthful. This was not a case where the Tribunal took a nuanced approach to questions of credit by considering whether its disbelief of the applicant in one respect nevertheless did not mean that it disbelieved him generally: rather, the Tribunal's approach was to disbelieve the applicant generally. In the former case it may more readily be seen that such a finding on credit goes only to a matter of fact and thus is quintessentially the province of the Tribunal.
[120] The court is not involved in traversing findings of fact about the corroborative evidence because the Tribunal did not deal with it. The unexplored possibilities include that the transcript was false, that the applicant had studied the Persian language but was a bad student or had a bad memory, and that there was an ambiguity in what studying Persian meant, whether it was language or culture and history. It is for the Tribunal to deal with the material before it and to resolve any conflicts in it.
[121] To adopt the language of Buchanan J in Minister for Immigration and Citizenship v SZCOQ [2007] FCAFC 9 at [61], relied on by the Minister, these considerations bear upon the material elements which must be satisfied, or rejected, when dealing with an applicant's claims; (2013) 212 FCR 99 at 132.
See also: MZYWL v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 895 at [24] per Bromberg J. Such findings, like all findings, must be rationally made and based upon facts having logical and probative weight. Prior to the decision in Minister for Immigration and Citizenship v SZRKT, supra, in SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470 at [37], (2009) 181 FCR 113 at 126, Logan J had also observed that "the adjectives 'ignorant', 'arbitrary' and 'perverse' aptly apply to a process of reasoning which damns a man's credibility by reference, materially, to a false factual premise concerning a critical document". Similarly, an ultimate conclusion founded in part upon adverse findings as to credit may be set aside if the decision-maker has proceeded in a manner which gives rise to a reasonable apprehension of bias: e.g., SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80.
(emphasis added)
42 The passage in SZRKT [2013] FCA 317; 212 FCR 99, cited by Flick J in SZSHV, was also followed by his Honour in SZVAP, where he also noted the following passage from WAGO v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 437; 194 ALR 676 per Lee and RD Nicholson JJ (at [54]) (Carr J agreeing (at [57])):
The unwarranted assumptions of the Tribunal as to matters relevant to formation of a view on the credibility of the corroborative witness caused the Tribunal to disbelieve and disregard that evidence and constituted a failure by the Tribunal to duly consider the question raised by the material put before it: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 per Gleeson CJ at [4]. Although the remarks of the Chief Justice in Aala were directed to entitlement to review by constitutional writ on the ground of absence of authority for the Tribunal to make a decision that exercised the decision-making power in a manner that was not procedurally fair, his Honour's comments are equally pertinent to an unauthorised exercise of decision-making power that results from the Tribunal failing to take into account relevant material. In misunderstanding the material before it, the Tribunal thereby failed to have regard to relevant material, resulting in a decision for which the Tribunal had neither authority nor jurisdiction under the Act: Yusuf per McHugh, Gummow and Hayne JJ at [82]-[85]. It follows that grounds for review of the Tribunal's decision arise under s 476(1)(b) and (c) of the Act.
43 The appellant also points to SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198, where Gordon J considered some of the United States authorities on the issue of the leap between minor or trivial inconsistencies or omissions and a general credit rejection. Her Honour said (at [25]-[26]):
25 Notwithstanding the breadth of the Tribunal's discretion to make weight and credibility determinations, the requirement described in WAIJ to make those determinations "judicially" imposes limits that credibility and weight determinations be made rationally and logically, and be articulated properly. It is worth noting in this context that such requirements are not unique to Australia. Indeed, the United States Court of Appeals for the Ninth Circuit has stated that for a migration Tribunal's adverse credibility finding to survive appellate scrutiny, there must be a "legitimate articulable basis" for the Tribunal's finding and the Tribunal "must offer a specific, cogent reason for any stated disbelief": Stoyanov v INS (9th Cir 1999) 172 F3d 731, 736 (internal citations and quotation marks omitted). The Court in Stoyanov went on to state that "minor inconsistencies cannot support an adverse credibility finding" and that "trivial errors by an asylum applicant do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible": Stoyanov at 736 (internal citations and quotation marks omitted).
26 Here, the inconsistencies (or rather, omissions) in the first appellant's evidence adverted to by the Tribunal are at most minor or trivial. Further, the Tribunal's reasons disclose no legitimate articulable basis for the finding, based on those omissions, that the first appellant fabricated fundamental aspects of his refugee claims. Instead, the Tribunal, even while acknowledging that it is not to be expected that an applicant will include every detail in the initial application, concludes without reasons that these are details that should have been provided, finds that they are details so weighty or important as to go to fundamental aspects of the claims, makes an adverse credibility finding, and infers that the claims were fabricated. Once the bases for these findings and inferences of fact are tested in the manner outlined, it is apparent that the Tribunal's determination is based on illogical or irrational findings or inferences of fact. It is a decision not supported by reason. To put the matter another way, "because it is based upon such findings … the determination is an unreasoned decision".
(emphasis added)
44 Again, in WAIJ, Lee and Moore JJ (at [27]) said:
Such a circumstance may arise where an applicant's claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material. (See: S20/2002 per McHugh, Gummow JJ at [49]). Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the Tribunal in assessing the credibility of an applicant's claims. However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant's claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant's credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error. (See: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ at [82]-[85]).
45 The appellant says that in the findings made by the Tribunal (summarised above at [22]), there is no express finding that the appellant was deliberately lying or that he relied upon and/or provided any specific piece of evidence which was false.
46 The appellant says that an examination of each finding of incongruity or inconsistency and its importance is warranted in light of SZRKT and says that in this regard:
(a) the factual findings (at [18], [20] and [22] of the Tribunal's reasons) concerns speculation by the Tribunal about the actions of third parties. They were:
18. Overall, the [appellant's] evidence about his difficulties with the Taliban caused the Tribunal concern in the sense that in early 2009 the Taliban had gone to his home looking for his father and demanding that another member of the family be handed over in his absence. No further claim has been made by the [appellant] about further interest from the Taliban beyond the visits they made to his pharmacy again looking for his father and threatening to kill him if his father's whereabouts were not disclosed. Although the Taliban had initially gone to the family home to find the father, they went to the pharmacy and not back to the [appellant's] home.
…
20. After that incident, interest shown in the applicant related to him giving evidence against one of the men responsible for that (and not his association with his father or due to the work he had been doing). Even allowing for the unpredictable manner in which the Taliban and like criminals could act in Afghanistan, it still struck the Tribunal as somewhat incongruous that having killed a senior officer where his father worked and that same night gone to the applicant's home to get his father, and, as well, having threatened to kill the [appellant], beyond some visits to the pharmacy, the Taliban took no further interest in him.
…
22. It remained incongruous to the Tribunal that the Taliban would go to the [appellant's] home to, in effect, kill his father, then threaten to kill the [appellant] if his father was not located but, in essence, do nothing more, even when the [appellant] was undertaking work of a similar nature to that of his father. The Tribunal acknowledges that at another stage of his evidence, as discussed below, the [appellant] purported to claim that he was not important to the Taliban, but, he consistently maintained to fear harm from them because of their interest in his father. He had also claimed that Y had threatened to kill him both at the pharmacy and when he saw him at the council office.
(b) the inconsistency in the two accounts of the attack on the uncle's house did not concern whether the events occurred, but rather, two slightly differing descriptions of constituent events affecting the appellant: see [29] of the Tribunal's reasons (footnotes omitted):
29. The Tribunal disagrees with the [appellant's] assertion and, as explained, there is inconsistency in his accounts. The Tribunal does not accept that it has been caused by how the [appellant] may have felt at the time he made the declaration and was interviewed by the delegate.
(c) the fact that the appellant had mentioned that "Z" threatened his family after he left Afghanistan, but then said (during the hearing) that "Z" made threats before the appellant left Afghanistan was a minor matter: see [32] of the Tribunal's reasons:
32. In response to this discrepancy, the [appellant] said that there were a lot of details in his 'full story' and he may have missed them when the declaration was prepared. The Tribunal does not expect the [appellant] to relate in his declaration or at any stage every detail of the grounds on which his protection claims are based. The Tribunal does expect that, if the [appellant] is telling the truth, he would relate those aspects of his evidence which are important and form the basis of his protection claims. Given he mentioned Z's brother going to his family after he left Afghanistan, he could reasonably be expected to say in the declaration that Z's brother went there a number of times before he left.
(d) the inconsistency concerning the attack on the sister by the Taliban concerned what the Taliban had said about the appellant during the attack and not the existence of the attack itself: see the discussion at [34]-[36] of the Tribunal's reasons:
34 The Tribunal put to the [appellant] that in his statutory declaration, with respect to this incident, he gave the following evidence (verbatim):
"One day, the Taliban attacked my sister's [her name] place. Her husband was my father's colleague. They asked her my whereabouts. She did not know where I was. They attacked my sister with gun butts. As a result she lost her left eye. They also kidnapped her husband who now has disappeared."
The Tribunal put to the [appellant] that this evidence indicated that the Taliban visit to his sister's home was related, at least in part, to an interest in him, given his claim that they asked his sister for his whereabouts. The Tribunal put to the [appellant] this was inconsistent with his evidence to the Tribunal that this visit was not related to him and evidence he also gave the Tribunal that the Taliban did not mention him when they went there.
35. In response, the [appellant] said that when he made his declaration he was in a poor mental state after his long journey to Australia. He said the account he gave the Tribunal was correct and the people who attacked his sister did not ask about him. He said that was because he was not important to them. In addition he learned from his sister that at the home they questioned her husband about his other colleagues and again did not mention the applicant because he was not important to them.
36. That is a curious claim for the [appellant] to make when he said that Y had previously threatened him including because he was doing work similar to that his father performed. Even allowing for any disorientation the [appellant] felt after arriving in Australia and when he made his declaration, the Tribunal could reasonably expect him to give a consistent account as to why the Taliban had gone to his sister and whether or not they showed interest in him.
(e) the Tribunal found inconsistency in the appellant's account of the timing of his decision to leave when there was no factual inconsistency and the expression "decision to leave" was entirely ambiguous: see the Tribunal's reasons (at [39]):
39. The Tribunal asked the [appellant] why he had earlier said that his decision to leave Afghanistan was made after the attack on his sister when he was now saying that, in fact, the decision had been made before then. In response, the [appellant] said that the decision to leave the country was made before the attack on his sister but it was only once the land was sold, which was after she was attacked, that he could leave. The Tribunal does not accept that evidence because that was not what the [appellant] said when first asked when he began making arrangements to leave Afghanistan and decided to leave.
47 It is argued for the appellant that each of those identified inconsistencies could fairly be described as being "minor" in the manner referred to by Robertson J above in SZRKT. Indeed, the appellant argues further that the Tribunal's reliance on speculation in order to make findings of incongruity or inconsistency further weakened its conclusion.
48 The appellant argues that it was not open to the Tribunal to aggregate the cumulative effect of those incongruities and inconsistencies, which are of a minor nature, so as to reach a global conclusion that the appellant was not "a witness of truth" and that his accounts of events was false. There were, in fact, no findings of falsity at all, the appellant stresses, and secondly, the incongruities and/or inconsistencies were minor.
49 At the heart of the appellant's submissions is that this is not a case where the inconsistencies revealed a pattern of deception by the asylum seeker. Rather, the appellant argues that the present case is comparable to Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; 115 ALD 303. The Tribunal there found the asylum seeker's claim to be not credible, but did not find that he had lied or fabricated his evidence. The question was whether the Tribunal had properly taken into account a baptismal certificate from Hyderabad, India. The Tribunal had given the certificate limited weight because of the finding it reached on credibility on the rest of the evidence before it. The Full Court (North and Lander JJ (at [24]) and Katzmann J (at [35])) were not critical of that approach. The appellant emphasises, however, that the Tribunal in that instance had not made a finding that the certificate had been forged. It was open in the present instance, the appellant argues, for the Tribunal to make a finding that the appellant's evidence was not credible, but without specific evidence of falsity, it was not open for it to find that the appellant was not a witness of truth or that his account was false.
50 The appellant relies upon Smith v NSW Bar Association (1992) 176 CLR 256 where Deane J said (at 271) that "[u]nless it be truly necessary for the purpose of disposing of the particular case… a specific finding that a party or witness has deliberately given false evidence should ordinarily not be made." This was the passage referred to in SZNPG where North and Lander JJ said (at [24]):
The weight to be given to the baptismal certificate was a matter for the RRT. The RRT was not precluded from giving the baptismal certificate little weight because it had not first decided that the first respondent was a liar. Indeed, in our opinion, the RRT should not be encouraged to make findings of that kind: c.f. Smith v New South Wales Bar Association (1992) 176 CLR 256 at 271. It is enough if the RRT is not persuaded that the claims which have been made out for the RRT to say so. It is not a precondition to the consideration of the weight to be given to any particular evidence that the RRT find that the particular applicant is a liar.
51 In Smith, Deane J observed (at 271) that the circumstances in which such a finding is necessary includes where "there is a direct conflict of evidence and it is apparent that there is no real possibility of honest mistake." The appellant argues that the present case cannot fall into that category. There is no direct conflict of evidence or any other reasons for the Tribunal to make its finding of falsity. To reach a conclusion of falsity it needed to discount other reasons for incongruity and inconsistency in the appellant's evidence, such as the possibility that the Tribunal's speculation was incorrect, the appellant had provided his evidence through interpreters, the hearing was conducted by telephone, or, more importantly, the appellant had made a genuine mistake or was poorly educated. None of those possibilities was apparently considered.
52 Similarly, in BTF15 v Minister for Immigration and Border Protection [2016] FCA 647, Katzmann J said (at [56]-[58]):
[56] Nevertheless, I am troubled by the Tribunal's conclusion that the statements of the two witnesses were fabricated. It is one thing to find that evidence should not be given any weight. It is quite another to conclude that evidence is a fabrication. The High Court has said in a different context that "as a matter of logic and common sense, something more than mere rejection of a person's evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence": Smith v New South Wales Bar Assn (1992) 176 CLR 256 at 268 (Brennan, Dawson, Toohey and Gaudron JJ). The Tribunal was entitled to find that the evidence of the two witnesses could not overcome the inconsistencies in the appellant's account. It was unnecessary and inappropriate, however, for the Tribunal to go further and find that their evidence was a fabrication: Smith at 271-2 (Deane J). In the circumstances, that finding was unreasonable. It should not have been made.
[57] Having said that, for the reasons I have already given, it was open to the Tribunal to find that what the witnesses had said could not rehabilitate the appellant's evidence. That is what the Tribunal plainly did, in [78] and the first half of [79] of its reasons (extracted above at [26]). Having reached that view, it was not unreasonable for the Tribunal not to call oral evidence from them.
[58] Thus, while it might well have been preferable for the Tribunal to have interrogated the two individuals before coming to a concluded view about the appellant's credibility, I am not persuaded that its decision not to do so lacked an evident and intelligible justification. It follows that ground 1 is not made out. As the foundation for the challenge to the primary judge's reasons in ground 2 is that the decision did lack that justification, ground 2 also fails.
53 It was quite unnecessary, the appellant stresses, to reach a conclusion of untruthfulness or false evidence. Nor, the appellant says, was it open to the Tribunal to reach the findings of falsity because there had been no findings of falsity with respect to any aspect of the appellant's evidence, apart from the ultimate conclusion on credibility which is challenged. Added to this, the incongruities and inconsistencies were minor in the SZRKT sense and the Tribunal had concluded that none of its own findings were of sufficient strength to be determinative on the issue of the appellant's credibility. Rather, those findings were only sufficient to find that the evidence should not be accepted. The finding of falsity was unnecessary in the Smith sense.
54 All that being so, the appellant contends there was no logical or probative basis at law to find that the appellant was not a witness of truth and that "the account of events on which his protection claims are based is false".
55 Similarly, for the purpose of ground 2 and by applying the same process of reasoning, the appellant contends that the rational basis of the conclusion of falsity can be challenged in the manner identified in Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 per Gummow and Hayne JJ (at [38]). This ground asserts that the primary judge failed to find that the Tribunal exhibited jurisdictional error when it progressed from an adverse finding of incongruity and inconsistency to a finding that the appellant was not a witness of truth and his account of the events on which the protection claim was made were false when such a finding was illogical and/or irrational.