I have previously blogged about how inconsistency is dealt with in judicial review applications. Inconsistency can lead to adverse credibility findings, which are usually seen by the courts as encroaching into the realm of merits review (which is impermissible). That is not to say that there can never be a jurisdictional error arising from a credibility finding.

The recent Full Court case of Atkins v Minister for Home Affairs [2019] FCAFC 159 demonstrates some of those difficulties.

Mr Atkins had his protection visa cancelled after the Department found that a number of his claims for protection were false. The problem started when he returned from an overseas trip in 2012 (using Australian issued travel documents) but lied on this incoming passenger card that he had been in Thailand. He had actually returned to Iran (to see his sick mother) and was found to have a genuine Iranian passport in his possession. The problem was that an Iranian male citizen couldn’t obtain a passport unless his national military service had been completed (which it hadn’t).

His challenges to the cancellation in the Tribunal and in the Federal Circuit Court were unsuccessful. One of his grounds for review in the Full Court was that the adverse credibility assessments made by the Tribunal regarding his explanation of his legitimate use of an Iranian passport were “perfunctory, emphatic and unsustainable.” He argued that the Tribunal’s explanation was “implausible in all aspects” and defied “logic.” It was also submitted that the Tribunal overlooked key evidence that supported his use of the Iranian passport.

The Full court found (at [61]): “the Tribunal understood the claim the appellant had made about the need to have a passport that showed he had left Iran lawfully.  Ultimately, it did not believe that claim to be true.  In rejecting it, in essence the Tribunal found that it was improbable that a person who contended that they had been an army deserter, had rescued a political prisoner, and had been critical of the Iranian regime, would procure a passport that was false in almost all respects, save that it used that person’s actual name.  In our view, and with respect, it was open to the Tribunal to be sceptical of the claim made.  The Tribunal’s incredulity was not illogical or irrational; it did not lack common sense.  When then considered with the state of the material before it, in our view, the Tribunal was entitled to reach its conclusion.  That included evidence that the 2012 passport was found to be free of “fraud tampering”; the appellant’s responses, which were “convoluted and vague”; the lack of evidence concerning his mother’s illness;….”

As a result, Mr Atkins was found to have left Iran lawfully and wasn’t entitled to his protection visa.

Apart from the legal issues in this case, it also highlights the difficulty in processing protection visas applications. Often the media attention is directed to genuine refugees who are not granted visas and are forced to return to an unknown fate in their home countries. Mr Atkins did apparently “scam” the system and probably wouldn’t have been detected had he decided to not to travel (or at least not to travel back to Iran).

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