It is impermissible in judicial review for courts to embark on an assessment of the merits of the decision under review. The focus is on the legality of the decision. A finding about credibility (or lack of it) is “the function of the primary decision-maker “par excellence”’ and is only judicially reviewable in very limited circumstances.
In AVQ 15 v Minister for Immigration and Border Protection [2018] FCAFC 133 the Full Court found that the tribunal had fallen into jurisdictional error in finding the applicant lacked credibility because of inconsistencies in his story. The problem was that the Tribunal has overlooked what the appellant told the Departmental officer, notwithstanding that a copy of the transcript of his interview formed part of the record before the Tribunal (ie it failed to take relevant information into account). The case is also generally interesting for what it says about how inconsistency should be treated:
- A decision-maker is entitled to rely upon inconsistencies in assessing a visa applicant’s credibility; but
- it is important that the process be conducted fairly and reasonably, taking into account that the assessment of the reliability, and credibility, of accounts given by asylum seekers is well recognised as involving a number of particular features and considerations, and calls for a careful and thoughtful approach;
- the term “inconsistency” should be used with appropriate caution and an appreciation of the danger of using labels or formulae which mask the need for deeper analysis; and
- even where it is reasonably open to find that a person has given inconsistent evidence, the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it. This requires consideration of, for example, the significance of the inconsistency having regard to the person’s case as a whole and whether the inconsistency is on a matter which is central to the person’s case or is at its periphery and involves an objectively minor matter of fact.
In other words, not all inconsistencies inexorably lead to the conclusion that the applicant lacks credibility to the point where their story should not be accepted.
Creative commons acknowledgment for the photograph.
