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[2018] HCA 60
appellant. Appeal allowed. Orders of the Supreme Court of Nauru made on 28 September 2017 set aside and, in their place, order that the appeal to that Court be dismissed with costs. The respondent pay the...
2 cited instruments linked from this judgment.
An Iranian man claimed he would be harmed by his wife's influential family if returned to Iran because their marriage collapsed after he learned she had been married before. His story changed several times about why he did not show police a threatening text message, why the family was angry with him, and an alleged plot to force his sister to marry the brother-in-law by rape. The Tribunal said these changes and how unlikely the story sounded made his claims unbelievable. The Nauru Supreme Court thought the Tribunal had not explained its doubts clearly enough. The High Court of Australia disagreed, ruling that the Tribunal had given detailed enough reasons by pointing to the specific contradictions and how they did not match normal human behaviour. The man's protection claim therefore fails and the original rejection stands.
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The respondent, an Iranian national identified only as WET040, left Iran in June 2013 after his marriage broke down. In his initial Refugee Status Determination application he claimed that the first two years of marriage had been relatively untroubled until, five or six months before departure, he discovered that his wife had been married and divorced before their wedding. This caused him confusion and loss of face. Approximately two and a half months before he left, an unknown person poured acid over his car. The following day his sister received a text message from his wife's brother admitting responsibility for the acid attack and threatening to throw acid on the respondent's face "next time". The respondent asserted that his wife had introduced her brother to his sister in order to arrange a marriage between them as a means of preventing the respondent from divorcing her. The sister met the brother-in-law a couple of times but distanced herself upon learning he used crystal methamphetamine and drank alcohol. Nevertheless she was lured to his workplace where he attempted to rape her in order to force marriage. The respondent told his wife to leave, but she returned with a police officer and a subpoena alleging he had beaten her. He claimed she had stolen 10 million tomans and gold jewellery. Court proceedings followed in which the respondent said he was convicted of assault despite being unable to speak in his defence, and further proceedings were brought for dowry and maintenance in which judges appeared to favour the wife's family because of the father-in-law's connections to the Basij paramilitary organisation. The respondent feared extra-judicial harm or misuse of the justice system by the father-in-law (said to be a member of Sepah) and his brothers-in-law.
After transfer to Nauru in January 2014 the respondent expanded his claims. He asserted he would be perceived as holding anti-government, anti-regime and anti-Islamic opinions, that his status as a failed asylum seeker would exacerbate this, and that he would face harm on the basis of his lack of genuine religious belief and his Azeri Turkish ethnicity. He claimed his in-laws had tried daily to force him into stricter Islamic observance, that his father-in-law occupied a high position in Sepah capable of resolving legal trouble with a single phone call, and that the wife's prior marriage was a closely guarded secret whose disclosure would discredit the family.
The Secretary accepted the marriage, its acrimonious end, the acid attack on the car, and the existence of court orders for maintenance and dowry, but did not accept that the wife's family had targeted the respondent to prevent divorce or that the respondent faced harm for any of the stated reasons. The Refugee Status Review Tribunal affirmed that decision. In paragraphs 70 to 93 of its reasons the Tribunal catalogued a "shifting set of explanations" across the respondent's accounts: changing reasons for not reporting the threatening text to police, evolving emphasis from preventing divorce to religious fanaticism, vindictiveness and fear of disclosure of the father-in-law's abuses of power, irreconcilable statements about whether the first marriage was secret, and progressive changes in the alleged motive for harm. The Tribunal found the acid-attack claim unlinked to the brother-in-law, the court proceedings inconsistent with any desire to preserve the marriage, the rape plot inherently implausible, and the overall account lacking credibility. It rejected imputed political or religious opinion, risk arising from ethnicity (noting Azeris are well integrated in Iranian society), and risk as a failed asylum seeker.
Crulci J in the Supreme Court of Nauru allowed the respondent's appeal under s 43(1) of the Refugees Convention Act 2012 (Nr), holding that the Tribunal's implausibility findings were unsound because a "bare assertion" of implausibility required the event to be "inherently unlikely" or else the Tribunal had to point to "basic inconsistencies", "probative material" or "independent country information". Her Honour characterised three findings as speculative conjecture. The Republic of Nauru appealed as of right under s 5(1) of the Nauru (High Court Appeals) Act 1976 (Cth). The High Court (Gageler, Nettle and Edelman JJ) unanimously allowed the appeal, set aside the Supreme Court orders, dismissed the appeal to that Court with costs, and ordered the respondent to pay the costs of the High Court appeal. The respondent did not appear; the Refugee and Immigration Legal Centre appeared as amicus curiae.
The High Court concluded that Crulci J's reasoning was erroneous because it rested on an overturned first-instance judgment (Lee J in W64/01A v Minister for Immigration and Multicultural Affairs) and a partial reading of the Full Federal Court decision in W148/00A v Minister for Immigration and Multicultural Affairs. More fundamentally, the Tribunal had not made bare assertions of implausibility but had supplied a rational basis for its conclusions grounded in the evidence.
The Court focused on three paragraphs of the Tribunal's reasons. At paragraph 74 the Tribunal noted the respondent had changed his explanation for not reporting the threatening text message once it became apparent the Tribunal doubted the initial account (that the brother-in-law used a cheap SIM card and discarded it). The Tribunal found it "generally implausible" that police who had attended the house, taken a report and prepared a document about an acid attack by an unknown perpetrator would then ignore clear evidence of the perpetrator's identity and confession simply because a text message might not constitute legal proof in court. This was not speculation; it was a logical deduction from the respondent's own account of the police having taken the matter seriously enough to attend and document the incident. The Court observed that "popular perception and everyday experience is that police officers regularly act on significant inculpatory information regardless of whether it amounts to admissible evidence". The combined effect of the shifting evidence and this inherent improbability cast doubt on credibility. The Tribunal did not need to repeat every inconsistency or expressly call the respondent a liar; the process of reasoning was clear from the reasons as a whole.
Paragraph 75 addressed the court proceedings for domestic violence, maintenance and dowry. The Tribunal accepted that the respondent had not been divorced by the time he left Iran and that divorce under Islamic law is not instantaneous, yet found it unlikely that a family anxious to preserve the marriage would institute multiple legal actions that were foreseeable to push the respondent toward divorce. This was a rational inference from the respondent's own narrative, not conjecture.
At paragraph 76 the Tribunal described the alleged plot to have the brother-in-law rape the respondent's sister to force marriage as "inherently implausible". Additional layers of implausibility existed: the sister associating with a family that had deceived her brother, a young woman still living with her parents forming a relationship with a repeated offender who abused methamphetamine and alcohol, and the secret of the wife's first marriage necessarily being known yet the sister still associating with the family. The Tribunal was not satisfied that emotional dependence could have been manufactured to the point of threatened suicide in the circumstances described. The High Court held that these observations were not speculation but recognition that the account "so ill-accorded with the probabilities of ordinary human experience as to be implausible".
The Court adopted McHugh J's statement in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham that credibility findings are the function of the primary decision-maker par excellence and that if the decision-maker states it does not believe a witness, detailed reasons for that disbelief are not required. The reason may be apparent from the use of the word "implausible" itself where it rests on inherent unlikelihood. Because the Tribunal had given "extensive reasons" across more than four pages, there was "no question" that s 34(4) was satisfied. The Supreme Court's contrary view could not stand.
Prior to this judgment, Australian and Nauruan courts applying the statutory obligation to give reasons had encountered divergent statements about the level of detail required for credibility findings. Decisions such as the first-instance judgment of Lee J in W64/01A suggested that a bare assertion of implausibility could stand only if the event was inherently unlikely; otherwise the decision-maker was required to identify "basic inconsistencies" in the evidence, "probative material" or "independent country information". The majority in W148/00A v Minister for Immigration and Multicultural Affairs had cautioned that a reviewing body must not set aside a credibility finding simply because it thinks the probabilities are against it, yet that observation was sometimes read in isolation. The Supreme Court of Nauru relied on these lines of reasoning to conclude that the Tribunal's use of the language of implausibility without expressly repeating every inconsistency or citing external country information rendered its reasons inadequate.
The High Court clarified that such an approach misstates the statutory obligation. Section 34(4) of the Refugees Convention Act 2012 (Nr) is in identical terms to s 430(1) of the Migration Act 1958 (Cth). The obligation is to provide a written statement that sets out the decision, the reasons for the decision, findings on material questions of fact and reference to the evidence or material on which those findings are based. It is not an obligation to provide "the sub-set of reasons why it accepted or rejected individual pieces of evidence". After this decision the law is settled that where a Tribunal catalogues specific shifts in an applicant's evidence (as occurred in paragraphs 71 to 93), draws logical inferences from those shifts, and explains why particular claims do not accord with ordinary human experience or the internal logic of the applicant's own account, the statutory duty is discharged. A finding that police would not ignore inculpatory information after attending a scene, or that instituting multiple court proceedings is inconsistent with a desire to preserve a marriage, is a rational inference rather than conjecture. The decision reinforces that reviewing courts should not impose a counsel-of-perfection standard on administrative decision-makers when assessing credibility in protection claims. The overturned status of the Lee J judgment is now explicitly recognised, and the orthodox position stated by McHugh J in Durairajasingham (and recently confirmed in CQG15 v Minister for Immigration and Border Protection) is restored as the governing approach in Nauru and under the Migration Act.
The Tribunal's paragraph 74 is central. It states: "The Tribunal considers that the [respondent] changed his evidence on this issue when it appeared to him unlikely that the Tribunal would accept he would complain to the police over the attack and then fail to follow up by providing them with evidence pointing to the perpetrator. The Tribunal also finds it generally implausible that if the police had gone to the trouble of visiting the [respondent's] house to make a report of an incident involving an unknown perpetrator, they would then ignore the evidence he supplied of the perpetrator's identity and confession, on the grounds that the means by which he had discovered it did not constitute legal proof. The Tribunal finds this casts doubt over the credibility of his claims about the incident."
In plain English the Tribunal is saying the man altered his story about why he never gave the police the threatening text message once he realised the Tribunal was sceptical of the first version. It also found it unrealistic that police who bothered to come to the house and fill out a report would then completely ignore a clear admission from the person responsible just because a text might not be admissible in court. This contradiction undermined the whole story about the acid attack being linked to the family. The High Court explained that this is a rational inference, not guesswork, because ordinary experience tells us police follow up on useful leads even if the information would not be admissible evidence at trial.
Paragraph 75 reads: "The Tribunal is also not satisfied that the various court cases brought by [the respondent's wife's] family against the [respondent], for domestic violence, return of the dowry and payment of maintenance are at all consistent with the continuation of the marriage and the avoidance of divorce... the Tribunal considers that they would most likely have led him to divorce her had he remained in Iran and that this would have been an entirely foreseeable outcome for her family. The Tribunal is not satisfied that her family would have begun these actions had they been at all concerned to preserve her marriage and prevent the [respondent] divorcing her."
Plain-English translation: If the wife's family were desperately trying to stop the respondent divorcing her, why did they start multiple court cases for money and property that were almost certain to push him into divorce? Their own actions contradict the claimed motive. The High Court held this is a logical deduction from the respondent's own evidence, not speculation.
Paragraph 76 deals with the alleged rape plot to force the sister into marriage. The Tribunal called the scheme "inherently implausible", noted the sister would have known the family had deceived her brother, questioned her interest in a violent drug user, and found it unlikely the relationship could have developed while she lived with her parents. The High Court translated this as recognition that the entire story was so bizarre and internally contradictory that it did not match ordinary human behaviour.
The Court also quoted McHugh J in Durairajasingham: "this was essentially a finding as to whether the applicant 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 plain language, if the Tribunal says "we do not believe this because it does not add up", it does not have to write a mini-essay on every reason for disbelief; the overall reasons given are enough.
This precedent is triggered whenever a protection claimant presents an account that evolves over time and the decision-maker identifies specific, objectively discernible shifts in that account together with aspects that do not accord with ordinary probabilities of human behaviour. Typical triggers include changing explanations for why a claimant failed to take an obvious step (such as providing a threatening text message to police who have already attended the scene), contradictions between claimed motives (preventing divorce versus religious hatred versus fear of disclosure of secrets) and actions taken by the alleged persecutors (instituting court proceedings that would foreseeably accelerate divorce), and narratives that appear bizarre when all surrounding circumstances are considered (a young woman forming a relationship with a family she knows has deceived her brother, or a rape plot said to guarantee a marriage yet carried out in a way that makes no practical sense).
The precedent applies with particular force where the Tribunal devotes a discrete and substantial section of its reasons (here paragraphs 70-93) to cataloguing those shifts and explaining why they cumulatively undermine credibility. It is not necessary for the Tribunal to cite independent country information or probative material external to the claimant's own evidence if the implausibility arises from internal inconsistencies or logical improbability measured against everyday experience. The fact pattern also arises in any appeal that alleges "bare assertion" of implausibility or "speculation" where the reasons in fact disclose a rational chain of inference. Because s 34(4) of the Nauru Act is identical to s 430(1) of the Migration Act, the principles govern both Australian Refugee Review Tribunal and Nauru Refugee Status Review Tribunal decisions. Practitioners should note that the precedent is engaged even where the claimant is not expressly called a liar; it is sufficient that the Tribunal explains why it is not satisfied as to the credibility of "key parts" of the evidence.
The judgment itself demonstrates how the High Court treats earlier authorities on the adequacy of reasons. It expressly corrects the Supreme Court of Nauru's reliance on the overturned judgment of Lee J in W64/01A, noting that Crulci J was apparently unaware that that decision had been reversed on appeal. The Court cites but does not follow the majority observations in W148/00A v Minister for Immigration and Multicultural Affairs to the extent that they might be read as imposing a higher standard than the statute requires. Instead it follows the orthodox approach of McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham, describing that approach as "entirely orthodox" and recently confirmed by the Full Federal Court in CQG15 v Minister for Immigration and Border Protection. The High Court therefore deploys Durairajasingham to affirm that credibility findings lie at the core of the primary decision-maker's function and that the statutory obligation is satisfied when the overall reasoning process is apparent even if every sub-reason is not spelt out.
Within the judgment the Court is careful to ground every proposition in the Tribunal's actual paragraphs rather than imported doctrine. It repeatedly returns to the concrete analysis in Tribunal paragraphs 74, 75 and 76 to demonstrate that rational inference, not conjecture, was at work. The precedent therefore stands for close attention to the actual text of the administrative reasons rather than the application of glosses from earlier cases that have themselves been qualified or overturned. The judgment has been structured to leave no doubt that the Supreme Court of Nauru's error lay in elevating a requirement for "basic inconsistencies" or external "probative material" into a universal rule when the statute and the Durairajasingham principle require only that the reasons disclose why the decision-maker reached its view on credibility.
The judgment expressly leaves open the precise boundaries of the obligation in different factual settings, noting that "each case ultimately depends on its own facts and circumstances, and that what suffices in one case may not necessarily suffice in another". One open question is how much analysis is required when the number of inconsistencies is smaller or the implausibility rests on a single but powerful logical contradiction rather than the multi-page catalogue seen in paragraphs 70-93. Another concerns the extent to which a Tribunal may rely on "ordinary human experience" without articulating the experiential premise; the present case involved police behaviour and family responses to marital breakdown, but the line between permissible common-sense inference and impermissible assumption remains fact-sensitive.
The decision does not address the situation in which a finding of implausibility is based in part on country information that is not expressly identified in the reasons, nor does it explore the interaction between s 34(4) and the obligation of procedural fairness where an applicant is not given an opportunity to comment on an implausibility finding before it is made. Although the Court endorses the use of the word "implausible" as capable of conveying the reason for disbelief, it does not define the minimum content that such a finding must contain when the applicant's account is not internally shifting but simply extraordinary. Finally, the precise standard of review to be applied by the Supreme Court of Nauru when examining Tribunal reasons under the Nauru legislation remains to be fully mapped in future cases, although the present decision makes clear that reviewing courts must not substitute their own view of the probabilities for that of the Tribunal. These open questions will require careful navigation by practitioners advising both claimants and decision-makers in Nauru and Australia.
The Republic of Nauru v WET040 [No 2] [2018] HCA 60 5 December 2018 M154/2017
G R Kennett SC with N M Wood for the appellant (instructed by Republic of Nauru)
R Merkel QC with S A Beckett and M L L Albert for the Refugee and Immigration Legal Centre, as amicus curiae (instructed by Allens)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Immigration - Refugees - Nauru - Appeal as of right from Supreme Court of Nauru - Where Secretary of Department of Justice and Border Control determined respondent not refugee and not owed complementary protection - Where Refugee Status Review Tribunal affirmed Secretary's determination - Where Supreme Court of Nauru allowed appeal because Tribunal found respondent's claims implausible without rational basis - Whether Tribunal's reasons adequate.
Words and phrases - "adequate reasons", "basic inconsistencies", "implausible", "independent country information", "probative material", "rational inference", "speculation or conjecture".
Migration Act 1958 (Cth), s 430(1). Refugees Convention Act 2012 (Nr), s 34(4).
GAGELER, NETTLE AND EDELMAN JJ. This is an appeal as of right, pursuant to s 5(1) of the Nauru (High Court Appeals) Act 1976 (Cth), from a judgment of the Supreme Court of Nauru (Crulci J). The Supreme Court allowed the respondent's appeal brought under s 43(1) of the Refugees Convention Act 2012 (Nr) ("the Refugees Act") against a decision of the Refugee Status Review Tribunal ("the Tribunal"). The Tribunal had affirmed a decision of the Secretary of the Department of Justice and Border Control ("the Secretary"), made pursuant to s 6(1) of the Refugees Act, to reject the respondent's application to be recognised as a refugee in accordance with the Refugees Act or as a person to whom the Republic of Nauru ("Nauru") owed complementary protection under that Act. The appeal concerns the Tribunal's obligation to give reasons in accordance with s 34(4) of the Refugees Act. Section 34(4), which reflects the terms of s 430(1) of the Migration Act 1958 (Cth), provides that: "The Tribunal must give the applicant for review and the Secretary a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or other material on which the findings of fact were based." The Tribunal found that material aspects of the respondent's factual allegations were implausible. On appeal to the Supreme Court of Nauru, Crulci J held that the Tribunal had failed to comply with s 34(4) of the Refugees Act by failing to identify the "basic inconsistencies" or "probative material" or "independent country information" on which the Tribunal based their conclusion of implausibility. For the reasons which follow, the Tribunal did not fail to give adequate reasons for their decision, and the appeal should be allowed. Respondent's original claim for protection The respondent is an Iranian national. He left Iran for Indonesia in June 2013 and later travelled by boat to Christmas Island. In January 2014, he was transferred to Nauru. In the respondent's Refugee Status Determination application, he claimed to have married in 2010, and that the first two years of his marriage were relatively problem free. Some five or six months before he left Iran, he found out for the first time that his wife had been married and divorced before he and she were wed, and he said that that made him confused and suffer loss of face. One night, about two and a half months before he left Iran, someone poured acid over his car. He called the police, who attended and took a report and then left. The respondent claimed that, the following day, his sister received a text message from his wife's brother, in effect admitting responsibility for the attack and threatening that "next time" he would use acid on the respondent's face. The respondent claimed that he learned through his mother that his sister and his wife's brother had been in contact after his wife had introduced them to each other. The respondent realised that his wife's aim in so effecting the introduction was to bring about a marriage between her brother and the respondent's sister as a pre-emptive measure to prevent the respondent from divorcing his wife. According to the respondent, his sister met his wife's brother on a couple of occasions but thereafter kept her distance when she found out that he used crystal methamphetamine and drank alcohol. Nevertheless, one day she went to his workplace at his request, believing that other people would be present, where he attempted to rape her in order to force her to marry him. The respondent claimed that the attack was part of the plot devised by the respondent's wife to induce the respondent not to divorce her. The respondent later told his wife to leave the house, which she did, but the next day she returned with a police officer and a subpoena requiring the respondent to attend court in a few days to answer allegations that he had beaten his wife. He claimed that he could not believe it, because he had never touched her, and later realised that she had taken 10 million tomans (approximately A$4,150 at the time of the Tribunal's decision) and gold jewellery which he had purchased as an investment. He complained about the theft and was referred to the police station. He was told to return in four days when he could take a police officer with him to his wife's parents' home to recover his property. When, however, he showed the police the subpoena, and they saw the name of his father-in-law on it, they told him that his wife's family must have friends in high places. When the respondent attended court to answer the assault charges, his wife exhibited bruising the result of falling down. He claimed that he had nothing to do with it. He also claimed that the odds were stacked against him and that he was not allowed to speak in his own defence, as a result of which he was convicted of assaulting his wife. He was released on bail pending sentence. Several days after the respondent's court appearance, his wife arrived with a police officer to claim her dowry. According to the respondent, it should have consisted of only 57 items but his wife had in her possession a court document which had been changed to entitle her to anything the respondent had purchased in the time that they were together. The respondent said that he challenged the document in court but, when the judge saw the name of the respondent's father-in-law, the judge yelled at the respondent that he must pay. Four other judges were said to have reacted in the same way. A friend of one of the respondent's relatives, who was a court janitor, enquired as to how the case was going and was told to keep his nose out of it or he would lose his job. The respondent said that, on one occasion when he went to court, his father-in-law stated in court that his son had thrown acid on the respondent's car and threatened that he would throw it in the respondent's face, but the judge had dismissed that as a joke. The respondent claimed that he perceived that his father-in-law was using his connections to the Basij, a state paramilitary organisation, to have the respondent followed, and he feared that it was only a matter of time before his father-in-law would use his connections to have the respondent imprisoned or that his brothers-in-law would use their connections to have the respondent killed or attacked with acid. Accordingly, the respondent said, he fled to Christmas Island. After leaving Iran, he was sentenced in his absence to a fine for the assault of his wife and his father paid the fine on his behalf. He claimed to fear that, if he returned to Iran, he would be detained, imprisoned, tortured, attacked with acid or killed, either through the justice system at his father-in-law's behest or extra‑judicially through his brothers-in-law, and that there was no place in Iran where he would be safe. Secretary's determination The Secretary accepted that the respondent was married but had separated in acrimonious circumstances on learning that his wife had previously been married and divorced. The Secretary also accepted that the respondent's wife had claimed that the respondent assaulted her and failed to pay her maintenance and that she had obtained court orders against the respondent for outstanding maintenance and the return of her dowry. The Secretary further accepted that the respondent's car had been damaged in an acid attack. But the Secretary did not accept that the respondent's wife's family had sought to harm the respondent to prevent him divorcing his wife, or that the respondent had not obtained a divorce from his wife. Application for review In a further statement which the respondent filed in support of his application for review of the Secretary's decision, he claimed, for the first time, that the main reason that he fled Iran and feared returning there was that he would be perceived as having a political and religious opinion that was anti-government, anti-regime and anti-Islamic; that his status as a failed asylum seeker would further be seen as reflecting his imputed anti-regime and anti-government sentiments; and that he would be prejudiced because of his lack of religious beliefs and his ethnicity as an Azeri Turk. He also stated that, even before he discovered that his wife was previously married and divorced, there were problems in their relationship because his in-laws were Islamic fundamentalists and his father-in-law was a member of Sepah, a fundamentalist state security organisation, who adhered to particularly strict practices incorporating fundamentalist laws and doctrines into all aspects of life. The respondent claimed that his in-laws had lived very close by and had come to his house on a daily basis attempting to force him to be more observant in his Islamic faith and practice; in effect to force him into Islamic fundamentalism. He said that that was mental torture for him, because he was only a nominal Muslim, and that because he was not a genuine follower, his father-in-law had developed an enmity towards him. The respondent further claimed, for the first time, that his wife's previous divorce was not public knowledge, because she was married as a child and in name only and so had never lived with the groom, but the fact that the respondent had discovered the secret and could discredit her family by disclosing it gave her family new reason to hate him. The respondent stated, however, that he had not divorced his wife or initiated proceedings for divorce before leaving Iran and that the dowry that his wife had come and collected did not suggest that a divorce had been initiated or finalised. Finally, the respondent claimed that his father-in-law had worked for Sepah for ten years and held such a high position in that organisation that, on one occasion, he was able with just one phone call to resolve the trouble which the respondent's brother-in-law was then experiencing with the law. He also claimed that, because Sepah controls the Iranian government, the respondent's problem with Sepah was a problem with the Basij and thus the entire regime of the government of Iran. Tribunal's reasons After setting out the respondent's claims and evidence, the Tribunal stated at paragraph 70 of their reasons that: "Having considered the information provided by the [respondent], the Tribunal believes there are good reasons to doubt the truth of his claims concerning the enmity of his wife's family toward him. The Tribunal notes that he has provided a shifting set of explanations for these alleged attitudes, as follows." (emphasis added) Thereafter in paragraphs 71 to 93 of their reasons, which take up over four closely typed A4 pages, the Tribunal recorded and analysed the "shifting set of explanations". The shifts included several changes in the respondent's reason for not having reported to the police the text message which he said his sister had received, in which his brother-in-law allegedly claimed responsibility for the acid attack and threatened "next time" to tip acid on the respondent's face; a notable developing change in emphasis from the respondent's initial claims to his claims before the Tribunal as to why the respondent's wife's family displayed enmity towards the respondent - originally, the claim was that the enmity was the result of the family's wish to prevent the respondent divorcing his wife, but later the prevention of the divorce became but a minor part of the story and the respondent placed major emphasis on a claim that his father-in-law was an irrational, vindictive and proud person, part of a violent and vengeful family and a man who wielded power over the Iranian authorities and the courts; a progressive change in the respondent's evidence as to the circumstances in which his marriage occurred; irreconcilable changes in the respondent's evidence as to whether his wife's first marriage was in fact a secret; and a large progressive shift in the respondent's evidence as to why his wife's family wished to harm or kill him: from a wish to prevent the respondent divorcing his wife, to preventing him from divulging the secret of his wife's previous marriage, to religious fanaticism and intolerance of the respondent's lack of piety and commitment to Islam, to the respondent having knowledge of his father-in-law's abuses of power and fear that the respondent would reveal them. The Tribunal stated that they doubted that the acid attack came from the respondent's wife's family or that such persons had claimed credit for the attack, and the Tribunal stated that they were fortified in that view by the changes in the respondent's evidence as to why he had not reported the text message to the police. When the respondent was first asked why he had not reported the text message, he said that it was because his brother-in-law had used a cheap SIM card and thrown it away after the text. Later, in his evidence, he said that it was because the police had told him that a text message would not be regarded by the court as evidence and that, if he pursued the matter, he risked attracting defamation proceedings at the suit of his brother-in-law. The Tribunal observed that the respondent appeared to change his story when he realised that the Tribunal doubted what he said, and that the shifting basis of the respondent's claims threw doubt on his credibility. The Tribunal did not accept that there was credible evidence to link the acid attack to the respondent's brother-in-law or a threat designed to prevent the respondent divorcing his wife. The Tribunal also considered that the bringing of the various court cases by the respondent's wife's family was inconsistent with the respondent's claim that his wife's family wished to prevent the respondent divorcing his wife. The Tribunal accepted that the respondent had not been divorced by the time he left Iran but found that it was unlikely that the respondent's wife's family would have instituted the several proceedings referred to if they had been at all concerned to preserve the marriage. The Tribunal rejected the respondent's claim that his wife had plotted to have her brother rape the respondent's sister and thereby force the respondent's sister to marry his wife's brother. The Tribunal noted that they had directly put to the respondent that they found that claim to be inherently implausible and that it was additionally implausible that his sister would associate with a family who had deceived her brother into marrying a divorced woman, as they were alleged to have done. The Tribunal set out in detail why they did not accept the respondent's claim that he feared that his wife's family would harm him. Based on the shifts in the respondent's claims from time to time, and the inherent improbabilities which the Tribunal identified in the respondent's various versions of events, the Tribunal concluded that they were not satisfied as to the credibility of key parts of the respondent's evidence concerning the attitude of his wife's family towards him, or that his wife's family were motivated by religious fanaticism to harm him, or moved by an aim of preventing him divorcing his wife, or concerned to prevent news of the respondent's wife's previous marriage being disclosed. In the result, the Tribunal did not accept that there was any credible basis for the claim that the respondent would be harmed by his wife's family, or Sepah or the Basij. The Tribunal further did not accept that the respondent might be imputed with an adverse political opinion by reason of his religious disposition. As the Tribunal observed, there was nothing apart from the respondent's evidence to suggest that he had undergone any significant change of religious disposition since he left Iran, at which time, according to his original statement, he had been a nominal albeit not particularly devout Muslim and, therefore, the Tribunal did not accept that there was any real possibility that he would be harmed for religious reasons. Nor did the Tribunal accept that the respondent would suffer any significant risk of harm by reason of his Azeri ethnicity. For as the Tribunal noted, despite there being some degree of Iranian societal discrimination against the Azeri community, overall the Azeri community were well integrated into Iranian society and were prominent in the Islamic clergy, business and government. The respondent was from a well-off family, had received a good education and had been working in a skilled occupation for some years before he left Iran. Finally, the Tribunal rejected the claim that the respondent faced a serious risk of harm as a failed asylum seeker. There was no credible evidence to indicate that any checks which might be carried out on him would uncover information that would cause the authorities to suspect him of being a dissident or holding an opinion against the regime. Supreme Court of Nauru's reasons Crulci J held that the Tribunal's findings as to the incredibility of the respondent's claims regarding the enmity of his wife's family towards him were unsound because, "when making a credibility finding, a bare assertion that a claimed event is 'implausible' will only stand if the event is 'inherently unlikely'". Otherwise, her Honour said, for the Tribunal to conclude that an allegation is implausible, the Tribunal "must point to 'basic inconsistencies' in the evidence, or 'probative material' or 'independent country information'". Crulci J accepted the respondent's argument that the Tribunal used the language of "implausibility" in respect of three key findings without any rational basis and that certain of the Tribunal's findings were "speculative" and "matters of conjecture". They were: that the acid attack on the respondent's car could not "plausibly" have been intended to prevent the respondent from divorcing his wife; that it was "generally implausible" that the police would have ignored the evidence of the text message allegedly sent by the respondent's brother-in-law to the respondent's sister; and that the respondent's wife's plot to have her brother marry the respondent's sister to prevent the respondent divorcing her was "inherently implausible". No error in the Tribunal's reasons Crulci J's reasoning is erroneous. Evidently, her Honour based it on the judgment of Lee J in W64/01A v Minister for Immigration and Multicultural Affairs, unaware that the judgment was later overturned on appeal. Crulci J also relied on certain of the observations of the majority of the Full Court of the Federal Court of Australia (Tamberlin and R D Nicholson JJ) in W148/00A v Minister for Immigration and Multicultural Affairs although the majority also observed that "a reviewing body must not set aside [a] finding [of credibility] simply because it thinks that the probabilities of the case are against, or even strongly against, the finding". More fundamentally, the Tribunal's implausibility findings were not speculative or matters of conjecture or unsupported by basic inconsistencies. In paragraph 74 of their reasons, the Tribunal stated that: "The Tribunal considers that the [respondent] changed his evidence on this issue when it appeared to him unlikely that the Tribunal would accept he would complain to the police over the attack and then fail to follow up by providing them with evidence pointing to the perpetrator. The Tribunal also finds it generally implausible that if the police had gone to the trouble of visiting the [respondent's] house to make a report of an incident involving an unknown perpetrator, they would then ignore the evidence he supplied of the perpetrator's identity and confession, on the grounds that the means by which he had discovered it did not constitute legal proof. The Tribunal finds this casts doubt over the credibility of his claims about the incident. The Tribunal notes that he has produced a document said to be a police report indicating an unknown person damaged his car with acid, and it is prepared to accept that such an incident did occur. It does not accept there is any credible evidence to link it with his brother-in-law ... or a threat designed to prevent him divorcing his wife." The first sentence of that paragraph refers back to the analysis earlier mentioned of how the respondent had progressively given different reasons for not reporting to the police the text message which he alleged his brother-in-law had sent to his sister, and in which, according to the respondent, his brother-in-law had admitted responsibility for the acid attack on the respondent's car and threatened "next time" to tip acid on the respondent's face. Thus, contrary to Crulci J's criticisms of the Tribunal's reasons, the Tribunal's conclusion that the respondent had changed his evidence when it appeared that the Tribunal would not accept the evidence which he first gave on the subject was not speculation or conjecture. As is apparent, it was a rational inference drawn from the fact that the respondent had changed his evidence when pressed as to why he had not reported the text message to the police. The second sentence of paragraph 74 of the Tribunal's reasons refers to the final reason which the respondent gave for not providing the text message to the police: that the police told him that it would not constitute legal proof. As can be seen, the Tribunal stated that they found that to be implausible because, given that the police were said to have gone to the respondent's home when he first complained of the acid attack and to the effort of preparing a police report about the incident, it would be surprising if the police would then decline to act on text message evidence of the identity of the culprit simply because it was not regarded as admissible evidence. So to conclude was not speculative or conjecture. It was a logical deduction grounded in the seeming improbability of the respondent's version of events. Popular perception and everyday experience is that police officers regularly act on significant inculpatory information regardless of whether it amounts to admissible evidence. The third sentence of paragraph 74 of the Tribunal's reasons is an expression of the Tribunal's conclusion that the combined effect of the way in which the respondent changed his evidence, the inherent implausibility of his evidence as to why he had not reported the text message to the police, and his later inconsistent evidence that the police did nothing about the text message because it did not amount to legal proof, was to cast doubt over the credibility of the respondent's claims about the incident. That conclusion was not speculative or conjecture or unsupported by basic inconsistencies. It was a rational inference that the respondent was dissembling. Granted, the Tribunal did not state expressly that the respondent was a liar, and the Tribunal did not there repeat the basic inconsistencies. But the process of reasoning is clear: either the events surrounding the acid attack were as presented in one or other of the several versions of events to which the respondent variously deposed, or they were not; and, as the Tribunal concluded, for the reasons they gave, it was probable that they were not. In paragraph 75 of their reasons, the Tribunal stated: "The Tribunal is also not satisfied that the various court cases brought by [the respondent's wife's] family against the [respondent], for domestic violence, return of the dowry and payment of maintenance are at all consistent with the continuation of the marriage and the avoidance of divorce. The Tribunal accepts that, as he claims, the [respondent] was not divorced from his wife by the time he left Iran and it also accepts the representative's contention that divorce under Islamic law cannot be achieved as simply or quickly as the Secretary may have believed. It accepts that these various legal actions do not in themselves demonstrate that the [respondent] was divorced from his wife or that he had even begun divorce proceedings. Nevertheless, the Tribunal considers that they would most likely have led him to divorce her had he remained in Iran and that this would have been an entirely foreseeable outcome for her family. The Tribunal is not satisfied that her family would have begun these actions had they been at all concerned to preserve her marriage and prevent the [respondent] divorcing her." That is not a bare assertion that the respondent's account was "implausible". The reason there given for rejecting the respondent's claim that his wife's family had attacked and threatened him to induce him not to divorce his wife is that, on the respondent's own account, following the revelation of his wife's previous marriage and the breakdown of his marriage to her, his wife's family instituted various court proceedings to compel the respondent to pay maintenance and enable his wife to obtain the return of her dowry. The Tribunal's statement that they were not satisfied that the respondent's wife's family would have instituted those proceedings if they had been at all concerned to preserve the marriage was a rational deduction. So, too, was the Tribunal's statement that the fact of all the proceedings would most likely have encouraged the respondent to divorce his wife. In paragraph 76 of their reasons, the Tribunal stated: "In this context, the Tribunal has also considered the claim that [the respondent's wife] plotted to have her brother ... marry the [respondent's] sister ... as a guarantee against the [respondent] divorcing her. The scheme is said to have been partly successful in that [the respondent's brother-in-law] established some form [of] relationship with the [respondent's] sister, giving her a mobile phone so they could communicate and, apparently meeting her at various times. He intended to advance things by luring her to his place of work and to rape her, thereby forcing her into a marriage but she was able to escape these unwelcome attentions. As put to the [respondent] at the hearing, this claim appears to the Tribunal inherently implausible. It also seems implausible that [the respondent's sister] could have had any interest in such a person, who is described by the [respondent] as a violent long-term abuser of methamphetamines and alcohol who had been jailed many times. Moreover, if the purpose was to prevent a divorce, the secret of [the respondent's wife's] first marriage must already have been known and the Tribunal finds it additionally implausible that [the respondent's sister] would associate herself with a family which had deceived her brother and her family in this way. Further, the Tribunal finds it implausible that such a relationship could have commenced and continued while [the respondent's sister], a girl only eighteen or nineteen, was still living with her parents. The Tribunal notes the [respondent's] explanation that [the respondent's wife] threatened, or possibly was able, to make [the respondent's sister] so emotionally dependent on [the respondent's brother-in-law] that she would commit suicide if she could not marry him but is not satisfied this could have occurred in the circumstances he describes." That, too, is not a bare assertion that a claimed event was implausible. The respondent's claim that his wife plotted to have her brother rape and marry the respondent's sister as a guarantee against the respondent divorcing his wife is bizarre. And as the Tribunal observed, if the purpose of the alleged attempted rape and forced marriage of the respondent's sister were to dissuade the respondent from divorcing his wife, the secret of the respondent's wife's first marriage must already have been known; making it additionally implausible that the respondent's sister would associate herself with a family who she would have known had deceived her brother and her family by concealing the fact of the respondent's wife's first marriage. For the Tribunal so to observe was not "speculation" or "conjecture". It was to recognise that, when all these matters were taken together, the respondent's version of events so ill-accorded with the probabilities of ordinary human experience as to be implausible. It was upon that basis that the Tribunal concluded: "[T]he Tribunal accepts that the [respondent's] marriage broke down in 2013 after he discovered his wife had been married previously. The Tribunal also accepts that after the marriage failed, his relationship with her family became acrimonious, with allegations of deception and theft of property on his side and of domestic violence and failure to pay maintenance on hers. Both parties resorted to the courts and the Tribunal accepts that his wife's family were successful in a number of legal actions designed to recover goods and money from him. The Tribunal accepts that in his absence from Iran his wife's family have been unable to obtain settlement of further moneys awarded to them by the courts and that it is possible that he has been, or will be, found liable for the sum of 300 gold coins specified in the marriage contract. The Tribunal is, however, not satisfied as to the credibility of key parts of the [respondent's] evidence concerning the attitude of his wife's family toward him. It does not accept that his father-in-law or other members of the family have been motivated to harm him by religious fanaticism, a desire to prevent a divorce, a desire to keep secret his wife's first marriage or a fear that he would divulge information about his father-in-law's wrong-doing. The Tribunal does not accept there is any credible evidence that his wife's family ever took action to physically harm him or that they sought to go outside the sphere of the courts to seek restitution from him. For the same reason, the Tribunal does not accept that after he left Iran threats were made to his sister or other members of his family that he would be killed or that they themselves would be killed or harmed if he could not be found. Nor does the Tribunal accept there is any credible basis for his claim that he would be killed or otherwise harmed by his wife's family, or those acting for them including members of Sepah and the Basij, if he were to be returned to Iran." Crulci J's criticisms of the Tribunal's reasons are unfounded. Scope of the obligation to give reasons What has been said thus far is sufficient to dispose of the appeal. Counsel for Nauru contended in the alternative, however, that, even if the Tribunal had not given full reasons for regarding the respondent's claims as implausible, the Tribunal's reasons would have satisfied the requirements of s 34(4) of the Refugees Act. Counsel referred in support of that contention to the judgment of McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham regarding the extent of the obligation to give reasons under s 430(1) of the Migration Act. In Durairajasingham, the applicant, who was a Sri Lankan citizen of Tamil ethnicity, challenged the findings of the Refugee Review Tribunal on the basis that inter alia the tribunal breached s 430(1) by failing to set out reasons for their finding that the applicant's claim that members of a Tamil party known as PLOTE tried to recruit him was "utterly implausible". McHugh J rejected the challenge as follows: "[T]his was essentially a finding as to whether the [applicant] 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." McHugh J's approach in Durairajasingham was recently referred to by the Full Court of the Federal Court, in CQG15 v Minister for Immigration and Border Protection, as entirely orthodox. Even so, it is necessary to bear in mind that each case ultimately depends on its own facts and circumstances, and that what suffices in one case may not necessarily suffice in another. In this case, as has been seen, the Tribunal gave extensive reasons for regarding the respondent's claims as implausible. There can be no question that the Tribunal's reasons met the requisite standard. Conclusion It follows that the appeal should be allowed. The orders of the Supreme Court of Nauru should be set aside and in their place it should be ordered that the appeal to the Supreme Court be dismissed with costs. The respondent should pay the appellant's costs of the appeal to this Court.
The Republic of Nauru
WET040
Appeal allowed. Orders of the Supreme Court of Nauru made on 28 September 2017 set aside and, in their place, order that the appeal to that Court be dismissed with costs. The respondent pay the appellant's costs of this appeal.