Merit Review Tribunals can Make Judicially Reviewable Mistakes on Credibility and Fabrication Findings

The Federal Court has given a timely reminder that even when tribunals find that an applicant has lied it still has to have a reasoned basis for that finding.

In SZLGP v MIAC [2008] FCA 1198 (2.9.08) the Refugee Review Tribunal found that the failure to mention the actual name of a  village in the protection visa applicant’s initial statement to DIAC was a basis for finding his evidence fabricated.

Here is what Gordon J said:

21 The fundamental problem is that neither a fair reading of the identified passages nor the reasons of decision of the Tribunal as a whole address or identify what the Tribunal regarded as “the fundamental aspects of [the first appellant’s] claims” or which of those claims the Tribunal was satisfied had been “fabricated”. That of itself is sufficient reason to conclude that the Tribunal has failed in its primary jurisdictional task.

22 That is not an end of the problems with the Tribunal’s reasons for decision. Even if a reader of the reasons for decision was asked to assume that the extracted passages were the passages being referred to by the Tribunal when it stated that “the [first appellant] [had] fabricated the fundamental aspects of his claims in order to support his refugee claims”, it would not resolve the problems I have identified because it would be unreasonable, and even irrational, to find that those fabrications (if such they were) went to “fundamental aspects” of the first appellant’s refugee claims.

23 If, by way of example, one takes paragraph [1] of the reasons for decision which have been extracted, that paragraph does not disclose whether the Tribunal is “not convinced” about one or more of the first appellant’s explanations for his initial failure to disclose the name of the village to which he took his cousin and his cousin’s brother, that the first appellant did not go to his father’s funeral or that he ran away from China in a hurry. Of course, other parts of the reasons for decision might provide the answer to that question. But they do not. In addition, the reference to “fabrication” is in the context of the first appellant having “denied any implication of fabrication”. Whether that is a matter being referred to by the Tribunal as a finding of fabrication is not clear. As will be apparent, I reject the first respondent’s submissions that it was open to the Tribunal to make a “finding of fabrication without even referring to which aspect the Tribunal [found had been] fabricated”.

24 And finally, even if the reasons for decision are to be read as making a finding or inferring that the failure to name a village in a statement provided in support of the application for a protection visa is a fabrication of a “fundamental aspect” of the first appellant’s claims or supports a finding or inference of fact that some other unidentified “fundamental aspect” of the first appellant’s claims has been fabricated, then I am of the view that those findings or inferences of fact are not grounded upon probative material and logical grounds. As the Federal Magistrate said at [22], “minds might differ on the significance of some of the points made by the Tribunal as indicators of unreliable evidence” and the weight that a decision maker attaches to material before it and what it makes of it is a matter for the decision-maker and not the subject of review: Re MIMA; Ex p Applicant S20/2002 (2003) 198 ALR 59 and MIMA v Eshetu (1997) 197 CLR 611. The difficulty here is the Tribunal has not otherwise provided fully and carefully expressed reasons for decision. How is the first appellant’s initial failure to disclose the name of Mushan village so important as to go to fundamental aspects of his refugee claims and undermine his overall credibility? The Tribunal does not tell us. Similar criticisms can be made in regard to the other passages that have been extracted. For example, why does the initial failure to disclose that the fisherman Mr Lu was also from Mushan support the inference that the first appellant fabricated fundamental aspects of his claims? No reason is given, and I am unable to discern any rational one.

25 Notwithstanding the breadth of the Tribunal’s discretion to make weight and credibility determinations, the requirement described in WAIJ to make those determinations “judicially” imposes limits that credibility and weight determinations be made rationally and logically, and be articulated properly. It is worth noting in this context that such requirements are not unique to Australia. Indeed, the United States Court of Appeals for the Ninth Circuit has stated that for a migration Tribunal’s adverse credibility finding to survive appellate scrutiny, there must be a “legitimate articulable basis” for the Tribunal’s finding and the Tribunal “must offer a specific, cogent reason for any stated disbelief”: Stoyanov v INS (9th Cir 1999) 172 F3d 731, 736 (internal citations and quotation marks omitted). The Court in Stoyanov went on to state that “minor inconsistencies cannot support an adverse credibility finding” and that “trivial errors by an asylum applicant do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible”: Stoyanov at 736 (internal citations and quotation marks omitted).

26 Here, the inconsistencies (or rather, omissions) in the first appellant’s evidence adverted to by the Tribunal are at most minor or trivial. Further, the Tribunal’s reasons disclose no legitimate articulable basis for the finding, based on those omissions, that the first appellant fabricated fundamental aspects of his refugee claims. Instead, the Tribunal, even while acknowledging that it is not to be expected that an applicant will include every detail in the initial application, concludes without reasons that these are details that should have been provided, finds that they are details so weighty or important as to go to fundamental aspects of the claims, makes an adverse credibility finding, and infers that the claims were fabricated. Once the bases for these findings and inferences of fact are tested in the manner outlined, it is apparent that the Tribunal’s determination is based on illogical or irrational findings or inferences of fact. It is a decision not supported by reason. To put the matter another way, “because it is based upon such findings … the determination is an unreasoned decision”.

Gordon J also referred to and followed the Full Federal Court decision of In WAIJ v MIMIA (2004) 80 ALD 568, where Lee & Moore JJ described the role of the Tribunal in the following terms:

16. … [T]he Tribunal, subject to a qualification provided in s 416 that is not relevant in this case, is required to consider all relevant material and after having regard to that material make the necessary findings of fact required to support the determination made by the Tribunal.

17 The principal criterion for the grant of a protection visa under the Act is that the applicant have a well-founded fear of persecution for reason of race, religion, nationality, membership of a particular social group or political opinion. A fear of persecution is a well-founded fear if it is shown by the nature of past events, and/or the prospect that such events may occur in future, that there is a risk that the applicant may suffer persecution if returned to the country of nationality. The risk so described is one that is real and not fanciful. It is not a requirement that the risk be measurable as to degree of likelihood or probability. (See: Chan Yee Kin v MIEA [1989] HCA 62; (1989) 169 CLR 379 per McHugh J at 417).

18 The role of the Tribunal in conducting a review under the Act is to assess whether the material presented indicates that there is a real possibility that if the applicant were returned to the country of nationality events involving the applicant may occur which would constitute persecution of the applicant. If so, the Tribunal will be satisfied that the applicant qualifies for the grant of a visa and, pursuant to s 65(1) of the Act, must grant the visa applied for … If the material does not show that such a risk exists the visa must be refused.

19 In carrying out that assessment, involving as it does a determination of great importance to an applicant, the Tribunal must act “judicially” and according to law. …

…

21 Failure of the Tribunal to act “judicially” will necessarily stamp the review procedure as one which did not accord an applicant practical fairness or justice. To act “judicially” and according to law the Tribunal must carry out its decision-making function rationally and reasonably and not arbitrarily. (See: Bond per Deane J at CLR 366-367). That is to say, the Tribunal cannot determine the matter by a “tossing a coin” or by making a “snap decision” or by acting on instinct, a “hunch” or a “gut-feeling”.

So SZLGP and WAIJ are a reminder that a tribunal can not get away with an adverse finding by simply saying that it does not believe an applicant. The Tribunal still has to articulate why it reached that conclusion in a way that is rational.