Challenging Adverse Factual and Credibility findings through Judicial Review

Tribunals and primary decision makers are not immune from judicial review when adverse findings are factual and/or based on credibility.

But the task of seeking judicial review in such circumstances is not easy and the hurdles are high.

This paper was presented at the Law Council of Australia’s Immigration Law Conference in March 2016. It looks at some of the circumstances when a court will find jurisdictional error on the basis of a wrong adverse factual or credibility finding by the merit review tribunal or the primary decision maker.

It is not within the scope of this paper to undertake a full survey of all the decisions where credibility issues and/or factual findings are discussed at the judicial review stage. The purpose of this paper is to demonstrate that there are some pathways to challenging adverse credibility findings or wrong factual findings by way of judicial review. Some of those pathways are not explored like the inadequacy of the reasons for decision, that is a topic for another occasion.

Introduction

Thirty years after the establishment of the Federal Administrative Appeals Tribunal, then High Court Chief Justice, speaking extra-judicially said that universal merit review promoted the rule of law and good governance :

The establishment of the Administrative Appeals Tribunal in 1976 was described by Sir Anthony Mason, a member of the Commonwealth Administrative Review Committee which recommended that it be set up, as the most innovative and controversial element of a group of proposals designed to promote the rule of law and good governance by enabling citizens to call in question administrative decisions. It was controversial because the tribunal was to review decisions “on the merits of questions of fact and law”, because such review could extend to questions of policy, and because the judicial method was adopted as a model for the Tribunal’s decision-making. It was innovative because it was to have a wide-ranging jurisdiction extending beyond specific areas within the purview, and control, of separate Departments. I would say also that it was innovative because it conferred a function of merits review upon a body that was expected to have expertise in the process of review itself, as distinct from expertise in one particular subject of decision-making.[1]

[Emphasis added]

The setting up of a merit review process for the bulk of migration decisions, was equally important and beneficial.

But of course that merit review process miscarries if the tribunal makes an error. The effect of the privative clause contained in s 474 of the Migration Act was gutted in S157[2] with the High Court entrenching the notion of jurisdictional error being that a decision infected with ‘jurisdictional error’ is ‘no decision at all”[3].

However, it left intact the notion that a tribunal could make an error ‘within jurisdiction’.

This paper looks at the circumstances when a serious error of fact or a serious error in making a finding of credibility can amount to jurisdictional error. In this regard the observations of Flick J are apposite :

The difficulties confronting any party who seeks to upset findings founded upon an assessment of the credibility of witnesses cannot, accordingly, be under-estimated[4]

The structural difficulty that the MRT/RRT model of merit review in migration law (now embodied in the Administrative Appeals Tribunal) being inquisitorial is a temptation on the part of a tribunal member to drift into being the prosecutor.

The High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [47], (2006) 228 CLR 152 warned of this possibility when Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said :

The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor.

Grounds for finding jurisdictional error

Factual errors or errors in a credibility finding do not fit easily into a category of jurisdictional error. In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323, McHugh, Gummow & Hayne JJ (at 82) considered that “’Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified…”

Hence in attacking an adverse credibility finding or attacking incorrect factual findings, one has to find an appropriate legal peg on which to hang such an attack.

Improper exercise of power

Improper exercise of power has long been an orthodox ground of jurisdictional error. Particularised it includes exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case.

It is useful to go back to the seminal cases to determine how this works. One such case is Khan v Minister for Immigration & Ethnic Affairs G159 of 1987[5]. Khan was referred to with approval in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at (26) and more recently in the Full Federal Court decision of NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39 per Buchanan J (at 122, 123).

The original text of Khan is worth reading in full. Gummow J (then a Federal Court justice) made qualitative statements about the factual findings which led the Court to determine there had not been a “proper, genuine and realistic consideration to the merits”. Proving a point like this will involve some elements of textual analysis and these long extracts from the judgment are useful to give an indication of how it is done. Here are the extracts, the first point being that the delegate was critical of the applicant because it was alleged he had obtained work without the approval of the department whereas, in fact, he obtained employment and worked while holding a visa :

The statement in para. 12 of the Departmental document is thus somewhat wide of the mark and unfairly suggests unmeritorious conduct by the third applicant. (at page 6)

….I have already referred to this aspect of the matter. The impression created by para. 12 does, in my opinion, mean that, in a serious respect, the merits may not properly have been understood when they were evaluated in the light of policy. (at page 13)

However, what was required of the decision maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy (at page 12)

That consideration included, in respect of each application, the effect or likely effect of refusal of the application upon members of the family… The assertion by a decision maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense (at page 13)

In para. 21 the document goes on to deal one by one with claims made in the request for review of the initial refusals. Sub-paras. (i) and (j) are in the following terms:

CLAIM: That insufficient consideration was paid to the likely adverse effects that resettlement abroad, presumably in Bangladesh, the country of Mr. and Mrs. Khan’s citizenship would have on their two young children.

COMMENT: It is accepted that the children have spent what amounts to virtually all their formative years in Australia. They could be expected to encounter difficulties in readjusting to a new environment, particularly in two such culturally different countries as Australia and Bangladesh. However, it is noteworthy that Mrs. Khan saw fit to take them to Bangladesh for a visit of approximately five months duration in 1985 . . .

Insofar as the words “saw fit” carry some pejorative connotation adverse to the merits of the applicants, it is to be noted that in truth the… applicant stayed in Bangladesh as long as she could so as to be with her father who was old and sick……[T]his does, in my view, reveal another significant factor which goes into the equation when assessing whether there was an exercise of a discretionary power adverse to the applicants in accordance with a rule or policy without regard, in the sense I have earlier described, to the merits of the particular cases. (at page 14)

I have set out, earlier in these reasons, significant passages from the report of Dr. Hurt. To say of the report merely that “the information presented” in it has been “noted” but that “it is not considered that it amounts to a persuasive reason for granting change of status” indicates consideration so limited as to be indicative of a perfunctory and cursory consideration rather than a proper genuine and realistic consideration of what was a substantial element in the merits of the particular cases. (at page 15)[6]

[All citations and case references omitted, emphasis added]

Pivotal to the reasoning by Gummow J was the clear error by the delegate about the applicant having worked without authority. The Court also considered that merely noting that a medical report was read without comment or analysis was indicative of a ‘perfunctory and cursory consideration’. Furthermore the delegate’s criticism of the applicant for taking her children to Bangladesh to see their aging and sick grandfather was part of the matrix for determining that the delegate made a decision without regard…to the merits of the particular case[s].

As can be seen, it is a building block approach where no one factor may be the deciding factor. But if there is a significant factual error then how can it be said that “the merits have been given consideration in any real sense”? Indeed Gummow J concluded that the factual error about permission to work meant that “the merits may not properly have been understood”.

Something needs to be said about how to weave in the issue of the adherence to “a rule or policy” into the argument. An example would be a slavish adherence to the PAM or the articulation of de facto ‘rule’ which a tribunal may adopt. For example, one sees this comment regularly in both tribunal and delegate decisions :

It is not uncommon for a husband and wife to have to spend time apart during their marriage, and there is nothing compelling or compassionate in terms of the circumstances presented in this case.

This, of course, is almost nonsensical. The writer knows of no one who formed and nurtured his or her spousal relationship in Australia and in the early stages of that relationship for the parties to spend significant time apart. Hence an assertion of that kind by a tribunal without any sociological basis combined with a significant factual error may meet the test as to “… whether the merits have been given consideration in any real sense”.

Adverse findings of credit and denial of procedural fairness

In a recent unusual case of SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089, a tribunal found that the applicants who were in a cross religious spousal relationship were not credible on the issue of the nature of their relationship (he being a Sunni Muslim and she being a Sikh).

Flick J described how the tribunal came to its conclusions as follows :

The only relevant conclusion reached by the Tribunal was that the evidence of the Appellants and the other witnesses was not to be “believed”. No other touchstone of credibility – such as inconsistencies between that oral evidence or inconsistencies in the accounts being propounded by different witnesses – was relied upon by the Tribunal. …

…On the facts of the present case it was common ground that the Tribunal had not disclosed, during the hearing or during its questioning of any witness, that there was any concern on its part as to the “representations” said to have been made by the Appellants to any of the other witnesses being “false”. At no stage did the Tribunal by its questions inquire into the possibility that any of the witnesses may have been deceived by the Appellants as to the nature of their relationship.

Flick J concluded :

The Appellants were entitled to, but did not receive, a “sufficient opportunity” to advance their claims and to have those claims resolved in a procedurally fair way: cf. SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [44], (2006) 228 CLR 152 at 165.

Flick J also considered that the tribunal had not complied with s 425 of the Migration Act (the invitation to a hearing provision). In Minister for Immigration and Citizenship v Li [2013] HCA 18, the High Court found that this provision was not meant just by issuing a notice :

61.Section 360(1) [comparable to s 425] requires that the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case.

[Emphasis added]

In Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, (2013) 212 FCR 99 at 121, Robertson J pointed out that credibility findings are open to judicial review :

[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.

[Emphasis added]

Robertson J went on to the conclude that a finding on the intrinsic lack of credibility of the applicant’s evidence was flawed when the Tribunal did not consider corroborative written evidence.

Robertson J also concluded that the failure to consider a central issue in this case, being a university results transcript, meant that the considerations necessary to found or disprove a protection claim were not taken into account.

Fabrication

In SZLGP v Minister for Immigration & Citizenship [2008] FCA 1198, Gordon J (then as a Federal Court Justice) concluded that if a tribunal is to find that an applicant’s evidence has been fabricated, the tribunal must make specific findings in that regard. Furthermore findings on the evidence have to be based on probative material and be logically based. Gordon J concluded :

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….

23…… 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.

[Emphasis added]

In this case the tribunal had placed particular emphasis on the applicant having failed to mention a particular town in his initial visa application.

Gordon J paid particular reliance on the obligation of a tribunal to act judicially and referred to what Lee and Moore JJ said in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568, described as the role of the Tribunal in the following terms:

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”.

Relevant or irrelevant considerations

Kayikci v MIAC [2009] FCA 92 (13.2.09) concerned a second marriage where even though there were strong factors indicating a genuine relationship the MRT found the relationship was contrived.

Tamberlin J concluded there was no basis for this:

A further indicator that the decision-maker has erred, in a jurisdictional sense, is the Tribunal’s finding that the entire relationship was contrived over many years for migration purposes. The consequence of such a finding is that it involves finding that the parties’ financial integration of their affairs, the joint ownership of the home, the joint liability for accounts, the period of co-habitation, the social recognition of the relationship, the conduct of the parties, the observations of their friends and the onerous and expensive IVF program, were all deliberately undertaken with intent to give a false impression as to the nature of their relationship for migration purposes. There is no evidence or material which could possibly sustain this conclusion.
For the above reasons, I therefore consider that in reaching the decision in the present case the Tribunal member has taken into account a number of irrelevant considerations, and that this constitutes jurisdictional error.
Alternatively, whilst I appreciate the reluctance of courts to reach a conclusion that a decision is so unreasonable that no reasonable Tribunal could reach it, I consider the evidence in the present case so sufficiently strong as to justify this conclusion.

In the reasons for decision Tamberlin J went through the evidence in detail and it is worth setting this out to show that a methodical attack on the facts can yield results in judicial review in the Federal Court:

The appellant says that the Tribunal erred in finding that, notwithstanding the strong evidence that each of the mandatory considerations had been satisfied and that these matters favoured the appellant’s case, the relationship was not genuine but was rather “contrived,” and this was an inference said to be available because of the countervailing factors referred to in the reasons. In reaching its conclusion as to these countervailing matters, the Tribunal referred to ‘matters of concern in the evidence’ which were regarded by it as going to ‘the heart of whether the marriage is exclusive and genuine’.
One important consideration, by way of example, which very strongly supported the appellant’s case was the fact that the sponsor and the appellant had participated in an expensive, difficult and time-consuming IVF program and incurred very substantial debts arising to over $10,000… They had gone to considerable lengths to implement the program, and embryo transplants had taken place on 2 occasions, one in 2006 & one in 2007. The commitment which this evidences, when reinforced by the other mandatory considerations, calls for powerful, cogent evidence to the contrary before rejecting the appellant’s case as to the genuineness of the relationship.
The first of the matters ‘of concern’ referred to by the Tribunal was that after the Turkish divorce on 3.2.03, (but well before the appellant married the sponsor on 28.1.05), the appellant had made two visa applications in which he said he was “married.” These applications were made in 2003 & 2004 in relation to trips to Australia said to be for business purposes.
The Tribunal was not satisfied with the appellant’s explanations for referring to himself as “married” in these business visa applications after he had been divorced in Turkey. However, these statements occurred many months before the applicant married the sponsor in February 2005. The Tribunal reasoned that these references to “marriage” either directly undermined the genuineness of his marriage to the relationship with the sponsor or at least reflected doubt on the genuineness of his marriage in 2005. The reasons do not explain how this conclusion is open or was reached.
Two further observations can be made about this matter. Firstly, there is no definite finding on this matter. Although there is a suggestion of lying, the matter is left hanging and a statement is made to the effect that at least the appellant’s credibility may be in doubt as a result of these matters of concern. It is not indicated how the appellant’s lack of credibility in this matter assists in forming the conclusion that all the “favourable” features of the relationship were “contrived.”
The fact of the reference to marriage in the earlier visa applications does not in my view provide any basis for an inference that the later marriage was not genuine. There is no explanation given as to why or in what way these statements bore on the marriage many months later, in circumstances where the appellant and the sponsor had been living together for over 33 months in the relevant period. The evidence indicates they lived together on a continuing basis and there is nothing to suggest that they are not living together at the present time in February 2009, which is a period considerably longer of course than the 6 months referred to in sub-reg(5) of the Regulations.
In relying on these statements in the visa applications therefore, the Tribunal has taken into account matters irrelevant to the question of the genuineness of the marriage. The facts were too insignificant and remote from the central question to be relevant. Accordingly, the Tribunal has taken into account an irrelevant matter when striking a balance between the considerations bearing on the question of the genuineness of the relationship which began February 2004, after the appellant had ceased his relationship with his former Turkish wife on the evidence.
The second matter relied on by the Tribunal was that in relation to the “business trips” of the appellant, the first wife accompanied the appellant on one occasion, and applied to come but did not accompany the appellant on the second occasion after the Turkish divorce. However this was well before the appellant had met the sponsor. The Tribunal drew the inference from this circumstance that because the ex-wife came with the appellant to Australia in 2003, the first marriage relationship was still on foot, despite the parties technically being divorced.
Whilst this circumstance might partially cast some shadow on the general credibility of the appellant, it could not be inferred affirmatively from this circumstance that the later marriage in 2005 to the sponsor was contrived or that the relationship was not genuine and continuing, having regard to the powerful contrary evidence. Again, no attempt was made in the reasons for decision to specify the reasoning on which the inference was based that the marriage was not genuine.
The inference drawn by the Tribunal was that ‘without a business case the inference can be drawn that they (first wife and appellant) were still in a spousal relationship even although technically divorced.’ This simply does not follow. The lack of a ‘business case’ does not reasonably cast doubt on the relationship which began later.
This inference is only open in relation to a period substantially before the meeting and marriage with the second wife. The issue to be resolved is the relationship with the sponsor after relations with his former wife had ceased in December 2003. The evidence is clear that there is no suggestion of any on-going relationship between the appellant and his ex-wife after the appellant met, courted and married the sponsor. The accepted fact was that the first wife finally moved out in December 2003 or January 2004. The observations in relation to the business trips after the Turkish divorce on the part of the Tribunal are so remote in time and relevance from the commencement of the marriage and the later on-going relationship between the appellant and the spouse during the relevant period that they cannot be said in any probative sense to support and inference as to the non-genuine nature of the second marriage. It is a further irrelevant factor which was taken into account.
A third matter relied on by the Tribunal to outweigh the strong evidence in the appellant’s favour was the belief expressed by the sponsor wife that the children of the applicant’s first marriage were not his biological children. This was said to have been ‘inadequately explained’ and an observation is made by the Tribunal that the prior wife had ‘an unnatural degree of disinterest in the personal details of the appellant’s former wife and her children’. There is no evidence on which to base the assertion that this perceived lack of interest was ‘of an unnatural degree,’ whatever that may mean, nor does it on its face call for any explanation.
The statement is pure speculation and it cannot support an inference of the non-genuineness of the marriage. On its face it is not improbable that a second wife may wish to disassociate herself from a former wife’s relationship with her husband, by not expressing interest in the former wife or her off-spring. There is simply no evidence to support the view that this is ‘unnatural’ and is therefore a ground for discounting the force of the favourable mandatory considerations. This is a further irrelevant consideration wrongly taken into account by the Tribunal.
Again, there is no attempt to explain the ways in which these factors, either taken alone or considered cumulatively, cut down the extremely strong, objective evidence on the mandatory factors that the marriage is not genuine.
It is not insignificant that the Tribunal also seeks to diminish the weight of the IVF evidence by asserting that ‘it is not rare for two people to deliberately have a child without an intention to be spouses.’ There is no indication of any evidence to support this conclusion. It is an irrelevant observation because it is a generalised comment and it fails to take into account all the other particular favourable elements in support of the appellant’s case. The fact of the IVF program and the effort and expense involved is not diminished simply by an assertion that some people want to have children together outside of marriage. [Emphasis added]

This analysis by Tamberlin J demonstrates that there were a number of irrelevant considerations which the tribunal wrongly took into account in reaching its decision.

Unreasonableness & Bias

In NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328, Allsop J (as he then was) considered that the factual task undertaken by the tribunal including credibility was either irrational or bias or both. Here is his reasoning :

114 On the basis of what appears to be a very questionable, and I think startling, treatment of the oral evidence as to religion and the largely unreasoned and generalised rejection of the utility of the ten documents the Tribunal drew the following conclusion:

For these reasons the Tribunal finds that the applicant husband and wife are not Catholics and Christians, as claimed, which lies at the very heart of their claims, and their fear of persecution.

115 By and large fact-finding is a task within jurisdiction, though factual error is not necessarily mutually exclusive of jurisdictional error: Re Minister for Immigration and Multicultural Affairs: Ex parte Applicant S 20/2002[2003] HCA 30; (2003) 198 ALR 59. Where fact-finding has been conducted in a manner which can be described, as here, as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way, these considerations may found a conclusion that the posited fair-minded observer might, or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly. How else, the fair-minded observer might ask, can one explain the largely unreasoned rejection of documents as vague, when they plainly were not, and as not saying the appellants were Catholics, when expressly or impliedly they did?; and how does one explain not dealing with answers which revealed an apparently detailed knowledge of the Christian religion and the Catholic faith, when a conclusion is drawn that persons are not Christian based on weighing some answers to questions of less than central importance? The answer to these questions might be that the Tribunal lacked an appreciation of the need to weigh all the material. If that were the case it would itself support a conclusion of jurisdictional error. The answer might also be the lack of an ability or willingness to deal with the material before it with a mind open to persuasion fairly evaluating all the material.

116 In my view, at least these possibilities (real and not remote) would come to mind to such a fair-minded and informed observer. The second possibility is the apprehension of possible bias.

[Emphasis added]

Allsop J here was also willing to look at the issue as even capricious or arbitrary :

136.Here, the Tribunal did not rely on seeing the witnesses to disbelieve them. That process of assessment of witnesses can at times necessarily include assessment based on impression and, to that extent, be intuitive, at least in part. That did not happen here. A supposed process of reasoning was used to conclude that both these people were not Christians or Catholics. It was a process, in significant part, that was bereft of supporting material and rational or reasoned foundation, and was inexplicably selective of the oral evidence. There is much to be said for the proposition that it betrayed so inadequate a dealing with objective material as to amount to an arbitrary or capricious conclusion. This is not a matter of illogicality or harsh fact finding. Illogicality of some kind can be seen in the reasoning processes of many decision-makers, administrative and judicial. Perfect accord with the requirements of logical reasoning is a standard few can achieve in the daily life of decision-making. Sometimes identification of illogicality is merely no more than understanding how an error was made within the jurisdictional task provided. Here, it could be said that the flaw was more fundamental. The foundation of the rejection of the claims was by a supposed process of reasoning which, in significant and central respects, was no process of reasoning at all. The documents were rejected by assertion largely bereft of any reasoned foundation, as can be seen from a reading of them and the application of a very modest amount of common sense. The selective, unexplained and unreasoned concentration on the so-called unsatisfactory answers on religion and the unreasoned assertion of what flowed from them, ignoring in this process the balance of the answers was not so much illogical, as unreasoned assertion lacking any intellectual foundation. To assert conclusions of this kind in this way may be seen as not to engage in a reasoning process, but to assert conclusions by a process that is no more than an intuitive, arbitrary or capricious response to the task.

[Emphasis added]

Bias is difficult to establish but it was established in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80. Flick J observed:

One of the ways in which the present Appellant sought to challenge the decision of the Tribunal was to allege that the exchanges during the hearing evidenced a predetermination by the Tribunal member as to the fate of his claim…..

29 Where such a challenge is made, more must be shown than a mere predisposition to a particular view; it is necessary to show a decision-maker’s mind being not open to persuasion

In the circumstances of the present case it is concluded that the Appellant has established that a reasonable bystander might conclude that the Tribunal member might not be open to persuasion. A reasonable apprehension of bias, it is thus concluded, has been made out. This conclusion has been reached because:

 the exchanges that occurred went well beyond a mere expression of reservation as to whether what the Tribunal member was being told should be accepted – the exchanges exposed the Tribunal member expressing a concluded view before the entirety of the hearing had even concluded that she “[did not] believe any of that” and that she “[did not] believe what you’ve told me about this Muslim girl” and that she “[did not] believe … that you’ve been pursued by the YCL”;

 the fact that those exchanges expressing a concluded view as to what the Tribunal member was saying should not be “believed” were not confined to an isolated instance but were repeated throughout the hearing;

 the manner in which some of the questioning proceeded conveyed or was capable of conveying an overall assessment as to the evidence being given by the Appellant – the Appellant being told on at least two occasions not to be “silly”; and

 the Appellant when asking “[w]hat else can I say” was told by the Tribunal member that she did not “know what you can say because I don’t believe … what you’ve told me…”.

Another bias case which turned on credibility is SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80. Flick J observed:

29 Where such a challenge is made, more must be shown than a mere predisposition to a particular view; it is necessary to show a decision-maker’s mind being not open to persuasion

 the Appellant when asking “[w]hat else can I say” was told by the Tribunal member that she did not “know what you can say because I don’t believe … what you’ve told me…”.

The above cases demonstrate that in an appropriate case bias can be the peg on which to hang an argument about adverse credibility findings. Note in passing it is rare for actual bias to be proved (although it does exist)

The Civil Courts

The civil courts at the appeal stage have not been squeamish about overturning obvious factual errors or even errors on credibility findings by a trial judge.

Appeal courts warn against using demeanour and the like as a mechanism for making a decision on the credibility of a witness.

Aptly Deane & Dawson JJ in Devries v ANRC (1992-3) 177 CLR 472, warned that liars can give a good performance in court and an honest witness may be hesitant and unsecure in a court room setting. Hence the look and feel of a witness may not be decisive. They observed (at 480) :

If the challenged finding is affected by identified error of principle or demonstrated mistake or misapprehension about relevant facts, the advantage may, depending on the circumstances, be of little significance or even irrelevant. If the finding is unaffected by such error or mistake, it will be necessary for the appellate court to assess the extent to which it was based on the trial judge’s conclusions about the credibility of witnesses and the extent to which those conclusions were themselves based on observation of the witnesses as they gave their evidence as distinct from a consideration of the content of their evidence. Judges are increasingly aware of their own limitations and of the fact that, in a courtroom, the habitual liar may be confident and plausible, and the conscientious truthful witness may be hesitant and uncertain…, it is relevant to note that the cases in which findings of fact and assessments of credibility are, to a significant extent, based on observation of demeanour have possibly become, if they have not always been, the exception rather than the rule. Indeed, as Kirby ACJ pointed out in Galea v Galea, in many cases today, judges… expressly “disclaim the resolution of factual disputes by reference to witness demeanour”. However, this does not deny that in many cases a trial judge’s observation of the demeanour of witnesses as they give their evidence legitimately plays a significant and even decisive part in assessing credibility and in making factual findings.

[Emphasis added, footnotes omitted]

In what is now the seminal case on overturning findings of fact at the appeal court level, Fox v Percy (2002-3) 214 CLR 118, Gleeson CJ, Gummow & Kirby JJ concluded that appeal courts can and should overcome factual errors when the evidence justifies overturning what the trial judge found. Furthermore they warn against relying on the demeanour of witnesses as the basis for a finding on credibility. Here are their conclusions ::

24 Nevertheless, mistakes, including serious mistakes, can occur at trial in the comprehension, recollection and evaluation of evidence. In part, it was to prevent and cure the miscarriages of justice that can arise from such mistakes that, in the nineteenth century, the general facility of appeal was introduced….Some time after this development came the gradual reduction in the number, and even the elimination, of civil trials by jury and the increase in trials by judge alone at the end of which the judge, who is subject to appeal, is obliged to give reasons for the decision. Such reasons are, at once, necessitated by the right of appeal and enhance its utility….

25 Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons.

27…If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.

28…In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.

29…..In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the

appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to

the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion….But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden…by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.

30 It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana”):

“. . . I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.”

31 Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.

[Emphasis added]

Of course, in the civil law context, appeals nowadays are almost all by way of rehearing, albeit on the material before the trial judge. Appeal courts in this context are not shackled by notions of jurisdictional error.

However all of the above reasoning is analogous and helpful in looking at the quality of the work done by a tribunal in its reasons for decision.

In judicial review, if a court finds in relation to a tribunal that “incontrovertible facts or uncontested testimony… demonstrate that the [tribunal’s] conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings” it is difficult to see how it could be that that tribunal has conducted a proper review.

A very robust example of an appeal court overturning credibility findings is the unanimous WA Court of Appeal decision of Absolute Analogue Inc v Sundance Resources Ltd [2015] WASCA 168. There McLure P, went through the evidence in detail and simply found that the trial just misconstrued the evidence in coming to an adverse credibility finding. The trial for example thought that the witnesses approach to tax minimisation reflected poorly on the character of the witness and was therefore one basis for finding he was lying. But McLure J said this :

If a transaction or arrangement is lawful and unimpeachable under the taxation laws of a sovereign State, then there is no scope for superimposing a moral obligation. The lawful and otherwise unimpeachable minimisation of taxation is both a widespread and widely accepted practice in Australia, reflecting a tolerated libertarian attitude. That is so notwithstanding that the opportunities for and the size of the benefits of such conduct favour the wealthy and exacerbate the ever widening inequality that is a feature of our times. Globalisation has increased the opportunities for tax minimisation, a matter known by governments but which has yet to be fully addressed by the legislature. I accept that conduct may be of such a nature or degree that it reduces the esteem or respect in which a person is held by right thinking members of the community. However, it does not necessarily follow that it justifies an adverse finding as to the taxpayer’s general credibility as a witness under oath. In any event, the evidence relating to Porter’s taxation arrangements falls well short of supporting an adverse general credibility finding against him. There is no arguable breach of any moral obligation to pay tax in Australia. There is insufficient information to make a moral judgment in relation to the foreign jurisdictions in question.

Paragraphs 90 to 150 is a text book analysis of how to attack credibility findings by a trial judge and the forensic logic outlined in those paragraphs in the writer’s view are applicable to judicial review notwithstanding that the test is one of ‘jurisdictional error’. If a tribunal made the errors the trial judge did in this case then the tribunal would not have conducted a proper review.

But denial of an oral hearing may deprive a person of the ability to impress

With the civil courts in appeal at least, moving away from demeanour and the like being decisive, the High Court nevertheless found that in some circumstances, there is a denial of procedural fairness if a person is denied an oral hearing before the decision maker because then the applicant lost an opportunity to impress the decision maker.

This occurred in Minister for Immigration v WZARH [2015] HCA 40; 90 ALJR 25; 326 ALR 1 where there was a change in the person conducting the Independent Merits Review (“IMR”) without the applicant being aware of the change. The first person conducting the IMR conducted a hearing but for unexplained reasons passed on the IMR to another person who reads transcripts and listened to the recordings and then found there were inconsistencies in the applicant’s evidence sufficient to conclude his claims of persecution were unfounded.

The applicant however said had he had a formal oral hearing before this second person conducting the IMR he could have answered some of these inconsistencies, in particular he could have shown the person scarring on his body to corroborate his allegations of torture.

The situation was described by Kiefel, Bell & Keane JJ in this way (at (8) :

8.The Second Reviewer formed an adverse view of the credibility of the respondent. In particular, the Second Reviewer rejected what he described as “a central plank of [the respondent’s] fear of persecution”, namely his association with the particular politician, on the basis of inconsistencies in his account of his activities in various election campaigns in Sri Lanka. Importantly, the Second Reviewer did not accept “that this kind of error was due to memory lapse or confusion, nor indeed to the effects of detention”. Having formed this strong adverse view of the respondent’s credibility, the Second Reviewer proceeded to find that:

“there is not a real chance that [the respondent] would be persecuted, now or in the reasonably foreseeable future for reasons of political opinion … ethnicity or membership of a particular social group … [and] that his fear of persecution for a Convention reason is not well‑founded.”

Without an oral hearing before the person who was making the decision, the applicant lost an opportunity to present his case. Here is the reasoning of the plurality including an oral hearing but then was taken over by a second person who did not conduct an oral hearing.

The fact that the First Reviewer interviewed the respondent affords, at the very least, some practical indication of what procedural fairness required in the circumstances of this case. An interview in the course of the IMR process provides the reviewer with opportunities for direct questioning of the applicant; for clarification of areas of confusion or poor understanding on both sides; and for the observation of the demeanour of the applicant. Impressions formed by a decision-maker from the demeanour of an interviewee may be an important aspect of the information available to the decision-maker. That this is so has long been recognised.
The opportunity for a decision-maker to clarify areas of confusion or misunderstanding, and to form an impression based on personal observation as to whether an applicant is genuinely confused or seeking deliberately to mislead, may be especially important to a fair assessment of a claim to refugee status when English is not the applicant’s mother tongue and he or she is obliged to seek to communicate through an interpreter. As Nicholas J rightly said :

“The one situation in which oral hearings are most often thought to be desirable is where questions arise as to a witness’s credibility. An oral hearing will often assist in the resolution of credibility issues by allowing the decision-maker to interact directly with the witness by asking the witness questions, considering his or her answers, and having regard to the witness’s demeanour.”

The Full Court was right to conclude that it cannot be said in the present case that the respondent lost no opportunity to advance his case. As was said inSZBEL v Minister for Immigration and Multicultural and Indigenous Affairs :

“It is … not to the point to ask whether the [decision-maker’s] factual conclusions were right. The relevant question is about the [decision-maker’s] processes, not its actual decision.”

An interview by the Second Reviewermight have made a difference to the outcome of the IMR process. This may be seen from what was involved in any assessment of the respondent’s application to be undertaken by the Second Reviewer. The acceptance or rejection of his case was likely to turn, not only upon apparent inconsistencies or uncertainties in his account, but also upon impressions formed about how he had responded to questions about his recollection of events in the recorded interview with the First Reviewer.
The benefit to a decision-maker of seeing a witness advance his or her case should not be exaggerated, but for the reasons already mentioned, it cannot be dismissed as illusory. The respondent could not have been in a worse position if the Second Reviewer had not been disposed, after seeing him responding to questions, to take a more favourable view of his credibility. But he may have been in a better position if the Second Reviewer had formed the impression that he was genuinely doing his best to give truthful evidence in difficult circumstances.

[Emphasis added, footnotes omitted]

The Court identified an error in the process. Often this may seem to downgrade the remedy sought as if it is merely a question of form. But if the ‘process’ is not correct then it can have a direct impact on substantive rights as this case illustrates. The substantive right here was a proper factual consideration of the applicant’s case in the context of informal, non-statutory merit review. The High Court makes the very important point that through a failure of process the applicant may have lost an opportunity to be successful, which is a fundamental issue for that applicant!

Conclusion

In this context it is useful to return to what Gleeson CJ concluded about what judicial review was all about. He said in Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476; 195 ALR 24; 77 ALJR 454 (4 February 2003) :

31.Thirdly, the Australian Constitution is framed upon the assumption of the rule of law. Brennan J said :

“Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly.”

In some circumstances, a tribunal will have exceeded its powers by making a jurisdictional error about an adverse credibility finding or an incorrect factual conclusion. In other words a tribunal or primary decision maker does not have jurisdiction to make a decision based on incorrect factual conclusions or based on a flawed assessment of credibility.

[1] Administrative Appeals Tribunal 30th Anniversary, Outcome, Process and the Rule of Law, Canberra 2 August 2006

[2] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476

[3] Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476; 195 ALR 24; 77 ALJR 454 (4 February 2003) at 76.

[4] SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089 at (17)

[5] Note that the original Federal Court reference is provided. Only a summary of Khan is reported and in the writer’s view, is inaccurate. The original text is available only from the Federal Court website, although difficult to find. If you email the writer on bb@boccabellalaw.com it can be sent to you.

[6] This passage was picked up by Buchanan J in NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39 at (124)

Barbara DavidsonApril 5, 2016