Ground 1
22 Ground 1 before me, being ground 1 below in terms of the asserted jurisdictional error, has been expressed in terms that the primary judge erred by failing to find that the Tribunal had constructively failed to exercise jurisdiction by making findings of fact (at [64] particularly) without a rational, logical and probative foundation.
23 At this point I should set out the Tribunal's reasons at [63] to [66]:
The applicant claimed in her written statement that she fears her in-laws reaction to her conversion, that they have told her brothers to do whatever they want to her. At the hearing the applicant stated that her in-laws had told her brothers to kill her. The applicant claimed her brothers had contacted her in-laws and told them that they would be harmed if they did not disown the applicant and tell her husband and children to leave her. The applicant stated that her brother in law, who she lived with and who had provided her with financial support to come to Australia no longer supported her or her husband. The applicant claimed that she put the notice in the newspaper, see discussion below, because of the financial pressures arising out of the stopped support.
The Tribunal expressed its concern at this claim of the applicant. The Tribunal notes that the applicant has stated that her brother-in-law was not supportive of the applicant and her 'activities', however the applicant now claims that her in-laws are now threatening to kill her because of her conversion and her religious beliefs, a significant escalation of her claim.
As discussed above, the Tribunal does not accept that the applicant's husband's family were unaware of the applicant's religious beliefs and practices while residing with them in Karachi from September 2011 to June 2012. The Tribunal does not accept that locked doors and busy lives would mean that the family would not notice the different religious practices that the applicant practiced at this time, or not be aware of the Shia Muslims that the applicant associated with in Karachi. While the Tribunal accepts that the applicant's in-laws may not be supportive of the applicant's choice of religious expression, the Tribunal does not accept that this means that the applicant has been threatened by them, that they have washed their hands of her, would force her to convert back to Sunni Islam or supported her brothers in seeking to harm the applicant. As the Tribunal considers that the applicant's in-laws were aware of the applicant's religious practices in Pakistan, the Tribunal considers that the financial support of the applicant's brother in law was provided in full knowledge of the applicant praying as a Shia. They did not force her to convert at the time of her residence with them in Karachi. The Tribunal does not accept that the applicant's conversion or religion was the reason for any stopping of financial support.
The Tribunal does not accept that the applicant's husband's family wishes to harm the applicant because of her conversion to Shia or because she is now a Shia, or will require her to convert to Sunni Islam. The Tribunal considers that the applicant has concocted this claim to strengthen her application. Further as the Tribunal has not accepted that the applicant's brothers will harm the applicant because of her conversion, her being a Shia, or because of matters of honour, the Tribunal does not accept that the applicant's brothers would harm the applicant's husband's family for supporting the applicant in her activities.
24 It is also necessary to set out the Tribunal's reasons at [49] which the parties before me accepted were picked up by the reference in [65] ("As discussed above…"):
The applicant stated that when she married she moved to Karachi. In Karachi she met with new Shia friends, and with them she would go to the Imambargah to pray. The applicant stated she would go to the Imambargah after visiting her friend's home. The applicant claimed that she had converted to Shia Islam while in Karachi. The Tribunal noted that the applicant had previously stated that she converted in Australia. The applicant stated she had done the prayers in Pakistan, but the formal process in Australia. The Tribunal discussed the applicant's practice of Shia Islam in Pakistan. The applicant stated she locked her door in Karachi and prayed in private. The applicant claimed her in-laws, with whom she was living, did not know she had converted. The Tribunal expressed its concern with this claim, that the applicant could practice as a Shia Muslim for 9 months without being noticed. The applicant confirmed her in-laws were practicing Sunni Muslims. The Tribunal expressed its surprise that the applicant would not be identified as not practicing her religion for such a period of time. The applicant stated her in-laws were very busy. The Tribunal does not accept that the applicant's in-laws would be so busy that they would fail to notice the religious practices of the applicant over such an extended period. The Tribunal considers that the applicant's religious practices would have been identified by her in-laws at this time.
25 The appellants assert that the Tribunal erred in its path of reasoning at [63] to [66] concerning the first appellant's fear of harm from her in-laws upon her having converted to become a Shia, and that such an error materially affected the overall conclusion as to her credibility on this specific claim. At [64], the Tribunal characterised her claim that her in-laws threatened to kill her because of her conversion and her religious beliefs as a "significant escalation" of the claims she had previously made. By this characterisation, the appellants say that the Tribunal meant that the first appellant had, by the time of the review before the Tribunal, made her claim more intense, or more serious, in order to enhance the chance of establishing that she had a legitimate fear of harm for the purposes of s 36(2) of the Migration Act 1958 (Cth). The appellants submit that the temporal effect of the Tribunal's conclusion is established by its deliberate use of the word "escalation" (and probably, too, reiterated by its use of the word "now") in [64], and by its observation at [63] between the distinction in the claims made by her in writing (limited to the in-laws informing the brothers to do what they wanted with the first appellant) with those made at the hearing (the in-laws had told her brothers to kill her).
26 The appellants contend that the characterisation of a "significant escalation" was erroneous. They say that the first appellant had clearly made the claim to fear harm from her in-laws in the first statement and repeated it in the second statement. Further, both documents preceded her evidence at the hearing before the Tribunal. Indeed, according to the appellants, rather than the claim having been "significantly escalated", it was actually grounded in the material that the first appellant had put on much earlier before the hearing. I must say that there is considerable force in this submission, particularly having read the first statement and the second statement for myself that make it plain that the Tribunal's characterisation of "significant escalation" was wrong. Indeed, the Tribunal had much earlier in its reasons set out the relevant extracts from the first statement and the second statement, which on their face undermined the legitimacy of its characterisation of "significant escalation". Indeed this caused me to wonder how carefully the Tribunal had reviewed what was before it and what it had recited by way of background.
27 The appellants say that the error materially impacted upon the Tribunal's conclusions so as to undermine the total foundation of the adverse credibility findings about her fear of harm from her in-laws. Further, the appellants say that the findings at [63] to [66] do not have an independent logical and probative foundation even with the Tribunal's error. Accordingly they contend that the Tribunal has constructively failed to perform its task on the review.
28 Moreover, they contend that the error was material because the Tribunal's view on the timing of the claim may have in effect impacted upon its approach, overall, to disposing of the claim concerning the risk of harm from the first appellant's in-laws, including what might be identified as another basis for the ultimate conclusion at [66]. The appellants contend that an attempt to compartmentalise those parts of the reasons of the Tribunal that are, and are not, impacted by an erroneous understanding of the evidence fails to take into account that credibility findings are often based on matters of impression. The appellants contend that the wrong characterisation of a "significant escalation" may subconsciously have informed the Tribunal's approach to the weighing of the first appellant's other evidence in respect of her claim to fear harm from her in-laws.
29 I would say at this point that during the hearing I raised with the appellants' counsel that his focus of complaint may indeed be too narrow. Given that the Tribunal's reasons were replete with criticisms of the first appellant's claims and fears as being exaggerated or similar verbiage, an incorrect criticism of exaggeration concerning the claim concerning the in-laws might not just infect the Tribunal's rejection of the first appellant's claim to fear harm from her in-laws, but other claims which were rejected based upon the first appellant's so-called exaggerations. For example, the Tribunal said on other topics concerning the first appellant's evidence that "this was a significant development of the evidence" (at [39]), "the applicant was exaggerating the influence" (at [40]), "the applicant has exaggerated" (at [41]), "the applicant has added new information to strengthen her claims" (at [41]) and "the applicant has exaggerated the role" (at [46]). After some discussion, the appellants' counsel put his case on both the narrower basis and the broader basis, which I consider to be within the ambit of the now formulated ground 1 upon which I granted leave to amend. Mr Nick Wood, counsel for the Minister, responsibly accepted that the case could be so put and ably dealt with both aspects. Let me return for the moment to the appellants' contentions.
30 The appellants contend that the Tribunal most likely came to the view that the first appellant had concocted her claim (at [66]), because she had "significantly escalated" its factual basis with a view to "strengthen[ing] her application" as the Tribunal noted.
31 Further, the appellants contend that to the extent that it might be suggested that the matters referred to at [65] (the reference to "locked doors and busy lives") (see also at [49]) might independently ground the conclusions made by the Tribunal, the rejection of the first appellant's other evidence could also have been adversely influenced by the Tribunal's erroneous conclusion as to the claim being "significantly escalated". Counsel for the appellants contends that it cannot be said confidently that the rejection of the first appellant's evidence (see also at [49] and [65]) about when her in-laws actually came to learn of her interest in the Shia faith was not at all adversely influenced by the erroneous view that the Tribunal took as to the timing of the claim.
32 Further, the appellants contend that the first appellant had linked her claim to fear harm from her in-laws after they had learnt of her conversion in local Pakistani media circa September 2013. But whilst the Tribunal had adverted to the "notice in the newspaper" at [63], which the Tribunal appears to have accepted factually occurred, albeit without any consequences for the first appellant, the Tribunal did not observe the stated link concerning when the in-laws came to adversely react to the first appellant because of her conversion. Her claim to fear harm from her in-laws did not ostensibly arise from events in the period September 2011 to June 2012 whilst she was living in their home in Karachi, upon which [65] appears to be predicated. The appellants say that had the Tribunal not made the error in [64] concerning "significant escalation", it might have approached the first appellant's evidence as to this claim more openly and less decisively. It is said that the first appellant's evidence on her experience whilst living at her in-laws' home may not have been as readily rejected. In my view there is some force in this contention.
33 Further, the appellants contend that the primary judge erred by failing to conclude that there was jurisdictional error in this respect. More specifically, they say that the primary judge took into account material not referred to by the Tribunal in its conclusions at [63] to [66] to justify why it might be said that the Tribunal's conclusion as to a "significant escalation" of the first appellant's claims were open to be made (see the primary judge's reasons at [61] to [65], and [74]). But the appellants say that although the primary judge's approach at [61] to [65] might have been one that was open to be taken by the Tribunal, the primary judge had no licence to descend into the arena of the merits to draw inferences from material not relied upon by the Tribunal in justifying the primary judge's own view that there had been a "significant escalation" of the claim. The appellants say that whatever the scope of "materiality" as a tool for evaluating whether there has, or has not been, a jurisdictional error, the primary judge should not have intruded into the Tribunal's fact-finding function. I must say that there is some force in the appellants' submissions on this aspect. But so to accept that the primary judge has taken an approach which I would not prefer, that does not entail that the Tribunal has made a jurisdictional error. I independently need to ascertain that for myself. Further, the appellants take issue with the extent to which the primary judge otherwise considered that the Tribunal's rejection of the first appellant's claims concerning the past harm she had experienced at the hand of her brothers somehow independently informed the foundation of the Tribunal's conclusions at [63] to [66]. They say that the two claims and bases are quite discrete. On this aspect I am more with the primary judge but with a negative sign so to speak. The primary judge identified what he saw as cross-collateralisation to positively bolster the Tribunal's reasoning. Contrastingly, I have identified cross-contamination which negatively impacts on the cogency of the Tribunal's reasoning given the apparently common foundation of an adverse credibility type criticism of the first appellant's evidence; I will elaborate on what I mean by this later.
34 Let me now turn to the Minister's submissions.
35 The Minister accepts that credibility findings may be non-linear in operation, such that for example an unfavourable view taken upon an otherwise minor issue may be decisive. But where as here the Tribunal has published a statement of reasons, the Minister says that there is little room for speculation as to what were the Tribunal's reasons for decision. And there is no room for speculation as to whether the Tribunal considered that a particular finding was decisive or critical to its decision. Whether it was so is to be gleaned from the reasons, including by the drawing of any permissible inferences, noting that the appellants bear the onus of proving that the Tribunal made a material error. Accordingly, the Minister puts the point that the way in which the Tribunal frames its reasons is significant in assessing whether a particular finding was or was not material to its ultimate conclusion.
36 Further, the Minister accepts that in some circumstances it can be legitimate for the Tribunal to have regard to the timing of the making of a claim in assessing whether it is satisfied of the veracity of the claim. But the Minister says that such an analysis is confined by principles of reasonableness, which may include being "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" (AVQ15 v Minister for Immigration and Border Protection (2018) 361 ALR 227 at [28]).
37 But the Minister says that it is not apparent from the Tribunal's reasons that this was a case where the Tribunal placed any significant let alone critical weight on the timing of a particular claim or evidence. The Minister properly concedes that the Tribunal's belief (at [64]) that the first appellant made a particular claim or gave particular evidence for the first time at the hearing was erroneous, but contends that it does not follow that the Tribunal gave that fact any particular weight in its decision.
38 The Minister contends that [64] of the Tribunal's reasons is introduced in the first sentence form of recording the Tribunal's reaction at the time of the hearing to the claim or evidence there made. The balance of [64] reflects the Tribunal's erroneous belief that the claim or evidence was new. However, the Minister says that it is [65], which links back to the Tribunal's analysis in earlier paragraphs, where the Tribunal expresses its reasons for not being satisfied of the claim. The Minister says that this is clear enough from the introduction to [65], where the Tribunal states: "As discussed above, the Tribunal does not accept …". In the discussion earlier in the reasons, the Tribunal sets out its concerns about the first appellant's credibility, in the context of feared harm from her brothers, at [37] to [50]. After weighing its concerns against the other evidence provided by the first appellant, some of which it accepted ([53], [56]), and the relevant country information, the Tribunal concluded (at [57] and [58]) that:
… The Tribunal considers that the applicant's claims that her brothers would seek to harm her away from her family home is not supported by evidence, and is conjecture on the part of the applicant. …
39 Further, the Minister points out that the Tribunal also considered the first appellant's claim to fear harm from her in-laws. This claim was also considered under the heading of "Credibility". The Tribunal (at [65]), building on its earlier findings at [49], stated that it did not accept that the first appellant's "husband's family were unaware of the applicant's religious beliefs and practices while residing with them in Karachi from September 2011 to June 2012". Further, the Tribunal did not "accept that locked doors and busy lives would mean that the family would not notice the different religious practices that the applicant practiced at this time, or not be aware of the Shia Muslims that the applicant associated with in Karachi".
40 Further, it found that, on this basis, although her "in-laws may not be supportive of the applicant's choice of religious expression, the Tribunal does not accept that this means the applicant has been threatened by them, that they have washed their hands of her, would force her to convert back to Sunni Islam or supported her brothers in seeking to harm the applicant".
41 Further, the Tribunal stated that as it considered "that the applicant's in-laws were aware of the applicant's religious practices in Pakistan, the Tribunal considers that the financial support of the applicant's brother in law was provided in full knowledge of the applicant praying as a Shia". It also noted that the appellant's family-in-law "did not force her to convert at the time of her residence with them in Karachi". Further, the Tribunal stated that it did not "accept that the applicant's conversion or religion was the reason for any stopping of financial support".
42 According to the Minister, all such reasoning demonstrates that the Tribunal rejected the first appellant's claim with respect to feared harm from her in-laws based on its analysis of the evidence itself, rather than the timing of the proffering of the claim or evidence. And it was against this background that the Tribunal stated at [66]:
The Tribunal does not accept that the applicant's husband's family wishes to harm the applicant because of her conversion to Shia or because she is now a Shia, or will require her to convert to Sunni Islam. The Tribunal considers that the applicant has concocted this claim to strengthen her application. …
43 The Minister says that read as a whole, and without an eye keenly attuned to the perception of error, the Tribunal did not base its ultimate conclusion on any concerns as to the timing of the appellant's claim or evidence. Rather, the Tribunal based its ultimate conclusion on its analysis of the evidence itself. Accordingly, it is said that I should not find that the error reflected in [64] could realistically have led the Tribunal to make a different decision.
44 I disagree with the Minister's submissions. Let me explain why.
45 In the present case there is no doubt that an incorrect factual finding was made. But how material was this to the ultimate determination?
46 If a Tribunal purports to make its decision on the combination of facts A, B and C, and fact C is shown to be incorrect, prima facie, materiality of the error on the face of the reasons would seem to be clear. By prima facie I mean that although that may be the starting position for a consideration of materiality, it may not be the end point for such a determination.
47 Contrastingly, if a Tribunal purports to make its decision on the disjunction of facts A, B or C, and fact C is shown to be incorrect, prima facie there may be no materiality of the error on the face of the reasons.
48 These are the easy examples.
49 But what about the case where fact C is not only shown to be incorrect, but the error made concerning fact C has dual dimensions. So take the case where fact C was not only wrong, but was also wrongly used to make an adverse credibility finding.
50 Take the disjunctive case again where the Tribunal purported to make its decision on the disjunction of facts A, B or C, and it is shown that fact C has the dual dimension of being both wrong but also having been wrongly used to make an adverse credibility finding. Now assume that facts A or B were also based upon an adverse credibility finding. It may be said that the adverse credibility finding on fact C, posited to be wrong on my hypothesis, has also contaminated the foundation upon which facts A or B were also based. But it all depends upon the context and circumstances. If the type of adverse credibility finding, for example, exaggeration, is common to the foundation of each of facts A, B or C, the adverse credibility error concerning fact C may undermine the foundation upon which facts A or B were based. Contrastingly, if the type of adverse credibility finding is not common, this may not be able to be said. Moreover, even if it is a common type of adverse credibility finding that underpins each of facts A, B or C, and the adverse credibility finding concerning fact C is wrong, that may not be definitive to undermine facts A or B. For example, exaggeration on one aspect of a story does not necessarily entail exaggeration on another aspect.
51 I have sought to simplify the discussion for illustrative purposes only. But more generally there is force in the observations of Lee J in SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [44] and [45] that:
It is not realistic to put the various aspects of the appellant's evidence into hermetically sealed boxes or to approach the reasoning of the Tribunal member on the basis that this is how the evidence was approached. The assessment of credibility is necessarily an impressionistic one, which, if properly formed, takes into account all of the evidence. As the Full Court (Hill, Sundberg and Stone JJ) observed in VAAD v Minister for Immigration & Multicultural Affairs [2005] FCAFC 117 at [79] "an assessment of credibility is not necessarily linear". Put another way, although it is not accurate to say that the Hospital Evidence was minor, as Gleeson CJ commented in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 89, "[d]ecisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive." …
To be too confident that emphatic disbelief on one issue would not inform, even subconsciously, the approach taken to weighing other evidence of the person disbelieved is, to my mind, to underplay the complexity of the anatomy of decision-making. As Kirby J observed in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at 23 [81]:
…decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker's disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person's credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person's entire evidence in a new light.
52 Moreover, and on a related aspect, one must be cautious in taking the carefully expressed linear reasoning of the Tribunal and arguing that a later credibility finding in the sequence of the written reasons cannot have affected a credit finding earlier in the sequence. The logic, structure and flow of reasons does not necessarily dictate how in reality credibility findings on one aspect may or may not have consciously or subconsciously informed another aspect.
53 Let me now address my principal concerns with the Tribunal's reasoning at [64].
54 First, the Tribunal's reasons at [64] and in particular the statement "a significant escalation of her claim" have the dual dimension of being both wrong factually but also wrongly and adversely reflecting on the first appellant's credibility. Now Mr Wood sought to persuade me that it only had the first dimension but not the second dimension. But my reading is more consistent with this duality, which in some respects is confirmed by analogous phraseology used by the Tribunal in earlier parts of its reasoning (as I have exemplified earlier at [29]) on other claim(s) or at least integers thereof.
55 Second, the Tribunal's reasoning is replete with references accepting the kernel of many of the factual propositions put by the first appellant, but then referring to evolutions and exaggerations of her story. But if the Tribunal was in error on this as to [64] there is a material risk that there was contamination of other factual findings on other matters. Further, this is all in the context where if I might say so some of the Tribunal's reasoning was "soft" concerning so-called implausibilities that it was said justified the Tribunal's findings of exaggeration, evolution in, or simply dismissal of the first appellant's version of events.
56 Third, it was put by Mr Wood that at [65] there was an independent basis for rejecting the asserted fears concerning the in-laws by reference to what the Tribunal said at [49]. But the reasoning of the Tribunal at [49] that it was implausible that the first appellant "could practice as a Shia Muslim for 9 months without being noticed" by her Sunni Muslim in-laws was underwhelming to say the least; I will refrain from discussing the centuries old example of the capacity of English Catholics to successfully conceal their practices from the might of English Protestantism, even within conflicting family groupings. In my view, there was little rational basis for the Tribunal's dismissive approach, although this was not the subject of a separate appeal ground by the appellants. Why couldn't the first appellant have practised her faith when the in-laws were out? And what was it about her faith that needed to be performed in their presence? And why wouldn't she have respected her in-laws by not drawing her conflicting faith to their attention in their own home, and indeed if she sought to avoid any adverse reaction? None of these types of questions seem to have greatly troubled the Tribunal. Its conclusion of implausibility is flimsy. Of course these are merits questions that I am not permitted to and will not trespass on. But in any event, even if theoretically the reasoning at [49] provided an independent basis concerning the rejection of the fears concerning the in-laws, the Minister's contention does not answer the broader cross-contamination question.
57 Fourth, in any event, looking at the structure of [66] as to the ultimate conclusion concerning the risks from the in-laws, I cannot separate out [64] from [65] in terms of then concluding that overwhelmingly [65] clearly independently supported [66] without more. Further, when you strip back the verbiage of [65] it is all based on the Tribunal's speculation that the Sunni in-laws knew of the first appellant's Shia faith when she lived with them in Karachi between September 2011 and June 2012, which speculation is not without its difficulties.
58 Fifth, I accept that where there are multiple reasons justifying why the Tribunal has made an adverse credibility finding and one of them has been shown to be flawed, there may be occasions where the finding can still stand with no jurisdictional error if other reasons singularly and cumulatively can in any event be independently drawn upon and were drawn upon to justify the adverse credibility finding. But here, the only substantial reason was essentially exaggeration or recent invention; the other so called implausibility finding derived from [49] was tissue-thin. And in any event, the wrong credit finding at [64] may have influenced earlier aspects of the reasoning such as [49] itself.
59 Sixth, the Minister seemed to suggest that in deciding materiality of the error made by the Tribunal I was necessarily and strictly confined to the face of the Tribunal's reasons and no more. I do not think so. The reasons on their face contain the error in [64]. I am trying to determine or discern a hypothetical or counterfactual chain of reasoning to work out whether if the error had not been made the determination would have been the same. Now for many errors one might easily discern or inferentially establish this hypothetical or counterfactual from other parts of the express reasoning. But not always. It depends upon the type of error made and both the level of detail and how other parts of the reasoning have been expressed.
60 Seventh, the Minister suggested that before I dealt with the question of materiality I had to determine the error to be of a particular type. If that be so, in my view the error at [64] so infected the Tribunal's reasoning such that the relevant findings were illogical, irrational or unreasonable. And as a result and overall given their materiality, the Tribunal's decision was affected by jurisdictional error.
61 Now I accept that the use of expressions such as illogicality, irrationality or unreasonableness may be no more than to strongly emphasise disagreement with someone else's process of reasoning on an issue of fact. And I also accept that differences of degree, impression and empirical judgment between the approach and reasoning of the Tribunal as compared with the opinion of a court undertaking judicial review, do not establish illogicality, irrationality or unreasonableness. There is a high threshold. And of course legal unreasonableness is invariably fact dependent. Whether a particular exercise of power descends into legal unreasonableness requires careful evaluation of the evidence. But I am satisfied that the high threshold has been met in the present case.
62 In my view ground 1 should be upheld.