A credible witness
25 The third and final Ground of Appeal is also to be rejected. This Ground (to some extent) overlaps the second Ground of Appeal.
26 No particular finding was identified by the legal representative appearing for the now-Appellant in support of his contention that the Tribunal had erred in not accepting his client as a "credible witness". Nor was any attempt made to identify in the reasons for decision of the Tribunal any particular passage which may have provided some persuasive or more specific support for a contention that the Tribunal was committed to a course of not accepting any evidence that he may have given upon the basis that he was not to be believed on anything, or, on anything that was relevant to his claim. Although specific passages in the transcript of the hearing before the Tribunal were referred to, each passage taken by itself was not persuasive as to one conclusion being reached rather than another. The submission was more understood to be that the transcript of the hearing together with the findings and reasons of the Tribunal, when construed as a whole, were inexplicable except by reference to either the imposition of an onerous standard of proof or by reference to bias or prejudgment. The adverse credibility findings, on this approach, were but a manifestation of a decision-maker committed to a course of sustaining a pre-determined result.
27 It may be accepted that the Tribunal, when assessing credit, needs to be careful as to the manner in which it proceeds: cf. Kneebone S, "The Refugee Review Tribunal and the Assessment of Credibility: an Inquisitorial Role?" (1985) 5 A J Admin L 78.
28 A Court conducting judicial review of a decision of the Tribunal should itself also exercise particular care. The task of making those findings has been entrusted by the Legislature to the Tribunal, and not the Federal Circuit Court or to this Court on appeal: Nguyen v Migration Review Tribunal [2008] FCA 524 at [15] per Logan J. Findings of credibility are findings "par excellence" entrusted to the Tribunal: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67], (2000) 168 ALR 407 at 423 per McHugh J; SZKQQ v Minister for Immigration and Citizenship [2008] FCA 242 at [21] per Middleton J; SZEOQ v Minister for Immigration and Citizenship [2008] FCA 257 at [27] per Lander J.
29 But credibility findings are susceptible to challenge on appeal in both civil and criminal proceedings. Credibility findings made by an administrative decision-maker are also susceptible to challenge upon an application for judicial review.
30 Credibility findings can undoubtedly be founded upon inconsistencies in evidence. But such findings are not so confined. Adverse findings as to credit may also be founded in part upon an assessment as to a witness' demeanour. But appellate courts when reviewing findings of fact made by a primary judge "have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses": Fox v Percy [2003] HCA 22 at [30], (2003) 214 CLR 118 at 129 per Gleeson CJ, Gummow and Kirby JJ. There has been a shift in more recent years "to some degree from the more extreme judicial statements commanding deference to the findings of primary judges said to be based on credibility assessments": CSR Ltd v Della Maddalena [2006] HCA 1 at [19], (2006) 80 ALJR 458 at 465 per Kirby J (Gleeson CJ agreeing). "Great care", it has also been said, "must be exercised in making demeanour findings … where a witness is from a different cultural and ethnic background to that which the judge is familiar": Goodrich Aerospace Pty Ltd v ARSIC [2006] NSWCA 187 at [21], (2006) 66 NSWLR 186 at 190 per Ipp JA (Mason P and Tobias JA agreeing). "The assessment of cross-examination on credit through an interpreter is often especially difficult": Ren v Jiang [2014] NSWCA 1 at [13] per Leeming JA. Adverse findings as to credit may also be founded upon matters which may not appear on a transcript of evidence. A witness who only answers a question after consultation with another may be viewed as a witness lacking a frankness to give his own account of events and to leave it to others to provide their own independent account.
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.
32 In the present appeal the Tribunal made a number of adverse findings as to credit. But none attract any particular reason to question the findings made or the factual basis upon which each proceeded. In its reasons for decision the Tribunal separately addressed its assessment as to the credibility of the now-Appellant: at [173] to [185]. And, when separately addressing "credibility", the Tribunal's reasons disclose that it focussed upon two matters. In very summary form, the Tribunal:
formed an adverse view as to the now-Appellant's credibility by reason of the fact that he failed to mention any fear of persecution as a reason for not returning to China when he ran out of money in Australia. The failure to mention any such fear assumed, in the mind of the Tribunal, importance because of the now-Appellant's claims in respect to the persecution suffered by his father and by himself;
And, when considering the photographs relied upon by the now-Appellant, the Tribunal:
said that it did not recognise the now-Appellant from the photograph. This assessment by the Tribunal led it to also not be satisfied that other photographs showing a person assisting a priest and taking communion were photographs of the now-Appellant.
Each of these adverse findings as to credit, however, was open to the Tribunal.
33 But these adverse findings were not the only adverse findings that were made. The Tribunal, for example, also went on to find that the now-Appellant's evidence:
as to the transfer of monies to his sister was not "credible";
as to providing financial support to his brother was not supported by "documentary evidence" and was not to be accepted; and
as to providing "information and funds to a member of the URCC in China in 2011 and the consequences he claimed flowed from that" were claims "not supported by reliable corroborative evidence…"
These adverse findings unquestionably contributed to the Tribunal further finding that the now-Appellant's "delay in applying for a protection visa reinforces its finding that it is not satisfied that his claimed fear of persecution is genuine".
34 Again these findings were also open to the Tribunal.
35 Perhaps more open to question were the following observations of the Tribunal, namely:
190. The Tribunal gives little weight to the certificate of baptism for the following reasons. Country information available to the Tribunal indicates that fraudulent documents are easy to obtain in China. The Tribunal does not accept that the applicant's evidence is credible. It therefore does not accept his evidence about being baptised or that the photograph he claims to be of his baptism is of him, or his evidence about his request to his sister and her sending it to him. As the Tribunal said at the hearing, it does not recognise him in the photograph. In making that finding it has taken into account his claim that he is now 23 years old and the Tribunal accepts that has changed since he was 11.
Where there is nothing on the face of a particular document to suggest its lack of authenticity, it may be a questionable course of reasoning to suggest that the particular document is "fraudulent" because "fraudulent documents are easy to obtain…". Whether this particular finding is open to question, however, does not detract from the other findings which were made and which were open to be made.
36 The third and final Ground of Appeal is, accordingly, also considered to be without merit.