Australian Immigration Daily News

Is there any way to escape from the plague, pestilence and epidemic of “credibility issues” before the Administrative Appeals Tribunal? 

Doesn’t it seem that in so many cases the Tribunal is searching for the dreaded “inconsistencies” in a visa applicant’s account of events, and then seizing on the inconsistencies however small or minor to find that the applicant is not believable, or a “witness of truth” as a significant part of the reason for affirming a decision of the Department? 

Is there any way to get around these credibility issues, and to rescue an applicant’s case? 

Or does the phrase or axiom that is so often recited by the Federal Courts, that “credibility is a matter par excellence for the Tribunal create an insurmountable brick wall? 

In other words, are findings by the Tribunal on questions of credibility beyond the scope of judicial review? Is the plague of adverse credibility findings “immune” from remedy by means of an application for judicial review? 

This issue was explored in a recent decision of Judge Charlesworth of the Federal Court in the case of Maan v Minister for Immigration and Border Protection (2017) FCA 906 (9 August 2017). 

The case involved the cancellation of Mr Maan’s student visa. 

The background was that Mr Maan was originally enrolled in Diploma of Information technology and a Bachelor of Information Technology courses.  However, he claimed that he had struggled with this course because of his poor English skills, that his parents were unable to pay for English lessons and that his mother had fallen ill after he had arrived in Australia and he had suffered “extreme depression” due to his other’s illness.  Apparently, he stopped attending the information technology courses, and his enrollment was cancelled. 

However, after his enrolment in the IT courses was cancelled, he obtained offers to study both a diploma of hospitality in the “vocational education” sector, and also a bachelor of business 

The Tribunal made findings that the visa holder’s claims to have suffered depression were “contrived” because he had not been diagnosed by a medical practitioner, and found that evidence that he was able to attend a course in commercial cookery contradicted his claim that his mental health issues prevented him from continuing with his studies in IT. 

The Tribunal went onto make findings that the visa holder never intended to complete the diploma and degree courses in IT, and that his subsequent enrolments in the hospitality and business courses amounted to nothing more than a “contrivance” for the purpose of maintaining his visa status in Australia. 

So on this basis, the Tribunal proceeded to affirm the Department’s decision to cancel his student visa. 

The visa holder sought review of the Tribunal’s decision, but was unsuccessful in the Federal Circuit Court. 

At the hearing before the FCC, the presiding judge said the following to the visa holder: 

“The court can’t review the merits of the tribunal decision….It’s hard to accept sometimes but the tribunal referred to your mother’s illness and it said about that that it thought that those claims of yours were contrived and manufactured….The Tribunal just didn’t believe you and I am not able to review that because that’s what tribunals do.” 

So, was what the judge who heard the case at the FCC level said about the Tribunal’s adverse credibility findings being completely beyond the scope of judicial review really an accurate statement of the law? 

Judge Charlesworth found that it was not, and that it is not correct that “an error in the assessment of credibility cannot in any circumstance constitute a jurisdictional error”? 

Judge Charlesworth followed the holding of Justice Robertson in the case of Minister for Immigration and Citizenship v SZRKT, where it was held that a finding on credibility may indeed amount to jurisdictional error, especially where the finding relates to a minor matter of fact, and where the adverse credibility finding is the basis of the tribunal’s rejection of the entirety of an applicant’s evidence and claim. 

Judge Charlesworth also referred to the decision of Judge Flick in the case of SZSHV v Minister for Immigration and Border Protection, where it was held that where an ultimate conclusion that is based in part on adverse credibility findings may be set aside if it can be shown that the decision-maker has been guilty of bias. 

And further, Judge Charlesworth cited the recent decision of the Full Court in CQG15 v Minister for Immigration and Border Protection, where that Court concluded that jurisdictional error may be found if a finding of fact that leads to an adverse credibility finding is made irrationally or illogically. 

These cases thus all illustrate that there are indeed circumstances where the tribunal’s findings on matter of credibility are open to judicial review.  

Thus it is not entirely accurate that the tribunal’s findings on credibility issues are completely beyond challenge. 

They can be challenged, and, to the extent that a court says that they are completely immune from challenge, the court itself falls into error. 

So it all goes to show that a negative finding by the tribunal on a question of credibility is not always fatal to an applicant’s case, it is not necessarily the automatic end of the matter. 

There may, in the right case, be a vaccine to salvage a person’s case against the plague of negative credibility findings!

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