FEDERAL COURT OF AUSTRALIA

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

THE APPELLANT

1    The appellant is a Hazara man from Afghanistan. He is of the Shi’a faith. He claims that he fled Afghanistan and has a well-founded fear of persecution by the Taliban because of his Hazara ethnicity and Shi’a faith. He relies, amongst other things, on violent attacks upon his father’s work supervisor causing his father to flee Afghanistan, a violent attack on his uncle’s house where the appellant was staying and injury to his uncle in that attack, a violent attack on his sister and the kidnapping of his sister’s husband.

THE APPEAL

2    The appellant appeals from a decision of the Federal Circuit Court of Australia in which the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal was dismissed. The Tribunal had disbelieved the appellant and affirmed the decision of the Minister’s delegate not to grant the appellant a protection visa.

3    The appellant had sought a protection visa on 23 November 2012 on the basis that the Minister could be satisfied under s 36(2)(a) of the Migration Act 1958 (Cth) that he was a refugee within the meaning of that term in Art 1A(2) of the Convention relating to the Status of Refugees, done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees, done at New York on 31 January 1967 (Refugees Convention). He also sought protection pursuant to s 36(2)(aa) of the Migration Act on the basis of his being at real risk of suffering significant harm as a necessary and foreseeable consequence of his being removed from Australia to a receiving country (complementary protection). The delegate refused his application on 3 September 2013. The application by the appellant to the Tribunal for review of the delegate’s decision was heard on 30 July 2015. He was provided with the opportunity to provide further evidence and written submissions, which he did on 4 September 2015. On 3 November 2015, the Tribunal affirmed the decision of 3 September 2013.

STATUTORY PROVISIONS

4    The two key provisions referred to above are to the following effect:

36    Protection visas—criteria provided for by this Act

…

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …

THE ISSUES

5    The issues arising on the appeal are:

(a)    whether there was a logical and probative basis for the Tribunal’s determination that the appellant was not a witness of truth and that his account of events on which his protection claims were based was false, or whether it was illogical or irrational for the Tribunal to so determine; and

(b)    whether the Tribunal denied the appellant natural justice by failing to inform him that certain matters, namely, those discussed at [41], [42] and [43] of the Tribunal’s reasons, were open to doubt and by not providing him with an opportunity to be heard with respect to such issues.

IN THE TRIBUNAL

6    In extensive reasons, the Tribunal set out various primary findings (at [7]-[48]) concerning the appellant’s credibility, which can be summarised as follows.

7    After describing the application and setting out the relevant law, the Tribunal explained the appellant’s claim of then being a 26 year old Hazara Shi’a. His father had worked for an agency involved in allocating land to people returning to Afghanistan, which brought him into contact with the local Taliban and criminals. In February 2009, the appellant’s father and two of his brothers fled Afghanistan after the Taliban killed a senior member of his father’s agency and after the Taliban went to the appellant’s home to find his father. The appellant then took over a pharmacy business operated by one of his elder brothers, but the Taliban went there a number of times looking for his father and threatening to kill the appellant if they did not find him. On some of these occasions, the Taliban assaulted the appellant and this caused him to close the business (at [8] of the Tribunal’s reasons). The appellant then worked for a local government council, which was involved with the allocation of land to Afghan returnees to the area. In mid to late 2011, in either July, August or September, members of the Taliban and associated criminals came to the uncle’s home where the appellant was staying and attacked the uncle (at [8] of the Tribunal’s reasons).

8    Soon after, the authorities arrested one of the men involved in the attack, who was sentenced to three years imprisonment. The appellant and his uncle gave evidence against him in court and for doing so this man threatened to kill both of them. His uncle then fled, but the appellant remained in his native area, staying in different places. The appellant said that a few times the brother of the convicted man came to the appellant’s home when he was not there and demanded that he return to court and say the evidence he gave was false (at [9] of the Tribunal’s reasons).

9    At [10], the Tribunal recorded that in January 2012 the Taliban took away the husband of the appellant’s sister, who also worked for the same agency as the appellant’s father. At that time the Taliban also assaulted the appellant’s sister. The appellant then fled Afghanistan in early February 2012 and came to Australia. His account was that since his arrival in Australia he had been told by family that people have gone to them asking for his whereabouts and, again, demanding that he go back to court and say that the evidence he gave was false. The appellant said he fears harm in Afghanistan from those people and the Taliban.

10    The Tribunal recorded (at [11]-[48]) its credibility concerns about the appellant, again, at considerable length. First, the Tribunal set out its credibility concerns in relation to evidence about harm from the Taliban after the appellant’s father escaped. The Tribunal noted (at [11]) that the appellant had told the Tribunal that his father was a director of the “migrations agency” responsible for the distribution of land to Afghans returning to the area to live. From approximately 2005, when this agency began to distribute land, the appellant’s father encountered difficulties from the Taliban because he was working for a government agency and also for people or criminals associated with the Taliban who had taken the land to be distributed. The appellant explained that when his father went with the agency to the land to be distributed, the Taliban and criminals would open fire and the bodyguards and soldiers with his father would fire back.

11    At [12], the Tribunal noted that the appellant had said that in February 2009 the Taliban went to a place where his father’s senior officer in the agency was staying and killed him. The Taliban took that person’s work vehicle and went to the appellant’s home and told his mother they wanted his father. On being told he was not there, the members of the Taliban said that they wanted to take a male member of the family instead. The appellant, his father and his elder brothers were at a mosque at that time. After the Taliban had gone, they returned home and found out what had happened. According to the appellant, his father and elder brothers fled Afghanistan the following day.

12    At [13], the Tribunal set out that the appellant took over a pharmacy operated by one of his brothers but a number of times the Taliban went there asking for his father’s whereabouts. They said they would kill the appellant if they did not get his father’s whereabouts. In their later visits they slapped the appellant, and on the last occasion they beat him seriously with rifle butts. The appellant was said to have sustained injuries to his right leg and right eye, the appellant saying that he has scars on those parts of his body. He needed hospital treatment for his injuries. The Tribunal recorded (at [14]) that it had put to the appellant that in his statutory declaration he mentioned the visits to the pharmacy from the Taliban, but he did not claim that they had assaulted him. In fact, the appellant had said in the statutory declaration that “they had not used force on [him].” The Tribunal recorded (at [14]) that, in response, the appellant said that it was only on the last occasion the Taliban assaulted him that he sustained injury. He said that when the statutory declaration was made he did not have documents to prove that he sought medical treatment for his injuries and then a lawyer told him that scars are proof. He had also intended to keep his account short.

13    The Tribunal rejected (at [15]) the appellant’s responses given he made other claims and declarations for which he did not have documentary proof. It recorded (at [15]) that any desire to keep his account in his statutory declaration short would not have prevented him mentioning that he was assaulted by the Taliban when they came to the pharmacy.

14    The Tribunal noted (at [16]) that the appellant had recalled that a few months after he began work with the council, while at his workplace, he was noticed by a man named “Y” who was in the Taliban and who was one of the men who went to the pharmacy and harassed the appellant. “Y” was also the nephew and son of two very powerful men in the area who were involved in drug trafficking and taking land from the government. “Y” said to the appellant that he was doing work like his father and he would kill the appellant. The Tribunal asked the appellant whether this person was taking a risk to just walk into the council office if he was in the Taliban and associated with criminals. The Tribunal recorded (at [17]) that in response the appellant said that “Y” was the nephew and son of powerful people, he was armed when he went into the council office and nobody would do anything to him. While other “land criminals” would not take guns into the council building, “Y” always had his gun with him. The appellant told his uncle about the threat from “Y”. His uncle told him nothing could be done about that. However, the appellant then went on to stay in his uncle’s house because his uncle had a gun and it was safer there. Apart from the occasion on which he was spoken to by “Y”, the appellant had no other trouble as such working for the council until mid to late 2011 when some men entered his uncle’s home and fired shots.

15    The Tribunal explained (at [18]-[20]) that, overall, the appellant’s evidence about his difficulties with the Taliban had caused the Tribunal concern, saying that it was somewhat incongruous that having killed a senior officer where his father worked and that same night going to the appellant’s home to get his father, as well as having threatened to kill the appellant, beyond some visits to the pharmacy, the Taliban took no further interest in him. That was so even though the appellant, after selling the pharmacy, was working for a government agency also involved in the very activity which brought his father into conflict with these people in the first place (at [21] of the Tribunal’s reasons). That concern had been put to the appellant, who said that because of his fear, he did not even go the mosque at that time. This did not allay the Tribunal’s concerns, considering that “Y” was brazen enough to go into the council premises and, according to the appellant, unlike other criminals, always carried a gun with him. It remained incongruous to the Tribunal (at [22]) that the Taliban would go to the appellant’s home to, in effect, kill his father then threaten to kill the appellant if his father was not located, but, in essence, do nothing more even when the appellant was undertaking work of a similar nature to that of his father. The Tribunal acknowledged that, at another stage of his evidence, the appellant purported to claim that he was not important to the Taliban, but he consistently maintained to fear harm from them because of their interest in his father. He also claimed that “Y” had threatened to kill him, both at the pharmacy and when he saw him at the council office.

16    In considerable detail, the Tribunal explained its concern again (at [23]), including by reference to the submission by the appellant’s representative that the appellant operated the pharmacy to support his family, but was not someone involved or working with the government and so would not be directly targeted by the Taliban. The Tribunal rejected that submission because the appellant had said that when the Taliban came to the pharmacy, they specifically said that the appellant would be killed if they did not find his father. After that, the appellant performed work similar to that done by the father, yet very little, if any, interest was shown in him by the Taliban.

17    The Tribunal then went on to express concerns about the appellant’s evidence concerning the incident at the home of the appellant’s uncle involving “Z” (at [24]-[29]) and evidence about its concern in relation to events following the incident at the home of the appellant’s uncle (at [30]-[39]). At [39] the Tribunal noted that it had asked the appellant why he had earlier said that the decision to leave Afghanistan was made after the attack on his sister when he was now saying that, in fact, the decision had been made before then. In response, the appellant said that the decision to leave the country was made before the attack on his sister, but it was only once the land was sold, which was after she was attacked, that he could leave. The Tribunal did not accept that evidence because that was not what the appellant said when first asked when he began making arrangements to leave Afghanistan and decided to leave.

18    At [40]-[43], the Tribunal said (footnotes omitted):

40.    At the beginning of the hearing, the Tribunal advised the [appellant] that although the delegate may have found credible certain aspects of his account, the Tribunal had to satisfy itself as to whether or not he was telling the truth and that was a purpose of the questions it would be asking him. Taken separately by themselves, none of the concerns about the [appellant’s] credibility which the Tribunal has discussed above would necessarily be determinative of that issue. However, considered cumulatively, these concerns lead the Tribunal to find that the [appellant] is not a witness of truth and the account of events on which his protection claims are based is false. In submissions of 4 September 2015 the representative claimed that the [appellant] gave detailed credible responses to the Tribunal's questions and did not embellish. The Tribunal has considered those submissions but finds that the [appellant’s] evidence is not credible.

41.    The Tribunal therefore disbelieves the [appellant’s] claims that the Taliban went to his home looking for his father; that they harassed and assaulted the applicant in a pharmacy; that a member of that group threatened the applicant at a local government council; that members of that group went to his uncle's home and inflicted harm on them; that a member of that group was prosecuted by the authorities and imprisoned on the basis of evidence from the applicant and his uncle; that after that, people went to the applicant's home looking for him; that the Taliban attacked the applicant's sister and her husband and that since the applicant left Afghanistan people have gone to his family looking for him.

42.    The Tribunal finds that it has no credible evidence about the [appellant’s] family and their lives in Afghanistan including his claims about an uncle being harmed and having to flee… (and his claim to the Tribunal that because of danger [in another city of Afghanistan] the uncle went to India). The Tribunal finds that it has no credible evidence as to what employment the [appellant] or any member of his family actually undertook in Afghanistan including his uncles and disbelieves claims made that he or any member of his immediate or extended family worked for the government or non-government agencies. The Tribunal also disbelieves evidence put forward in submissions from the representative dated 24 July 2015 that the [appellant] has uncles in Kabul who refused requests from the [appellant’s] mother for the family to come and stay with them. Because he is not a witness of truth, the Tribunal also disbelieves a claim he made to the delegate that classmates of his from school have joined the Taliban and were on patrol all over Afghanistan.

43.    There is no credible evidence that the [appellant] or any member of his family suffered harm in Afghanistan and there is no credible evidence as to the whereabouts of the [appellant’s] father and elder brothers beyond being in [a particular province of Afghanistan] (given the Tribunal does not believe the Taliban went looking for his father and therefore that he and the two brothers fled from the country for that reason)...

(emphasis added)

19    In relation to the assessment of whether the appellant held a well-founded fear of persecution based on a Refugees Convention ground, the Tribunal recorded country information and, in particular, the security situation in Afghanistan (from [49]-[51]), the position for Hazaras (at [52]-[59]), and the position of failed asylum seekers returning to Afghanistan after spending a time in a western country (at [60]-[61]). It set out the inferences to be drawn from the country information (at [62]-[70]), noting (at [65]) that the Tribunal inferred that those really at risk on road travel are those groups identified as targets of anti-government groups and they are people working for, supporting or associating with the Afghan government or the international community (forces). As the Tribunal concluded, the appellant, of course, was not such a person.

20    At [69] the Tribunal noted that on return to Afghanistan, including in travel from Kabul back to his native city, the appellant would not conduct himself in any way that would bring him to the attention of anti-government groups as a person associated with the Afghan government or the international community just for having spent time in Australia. It recorded the inferences open to be drawn from country information which were put to the appellant (at [71]-[82]). The Tribunal said (at [83]) that it had set out the inferences it had drawn from country information and neither the appellant nor the representative had persuaded the Tribunal to depart from them. Accordingly, the Tribunal found that those inferences were correct and there is not a real chance the appellant will suffer serious harm in Afghanistan. Therefore, the Tribunal concluded that the appellant did not hold a well-founded fear of persecution based on any Refugees Convention ground.

21    Its assessment and findings as to complementary protection appear at [84]-[85] where it said:

84.    With respect to the complementary protection criterion, the Tribunal repeats its finding that the [appellant] is not a witness of truth. The account of events on which his protection claims are based is false. There is no credible evidence that the [appellant] or his family suffered harm in Afghanistan. There is no credible evidence that anybody in Afghanistan seeks to harm them. There is no credible evidence as to why the [appellant] left Afghanistan and why he does not want to return there. For the same reasons the Tribunal finds that there is not a real chance the [appellant] will suffer serious harm in Afghanistan, it finds that there is not a real risk the [appellant] will suffer significant harm in that country.

85.    In summary, notwithstanding the continuing conflict in Afghanistan, resulting civilian casualties and the gradual withdrawal of international forces, the risk of the [appellant] suffering significant harm as a civilian is remote. The capacity and influence of Daesh is limited and the risk of the [appellant] suffering significant harm on this ground is remote. The risk of the [appellant] suffering significant harm on the ground of his ethnicity is remote. There has been no large-scale ethnic violence since the fall of the Taliban and no attacks on Hazara civilians… in recent years. While insurgents are present in that province, the violence they cause is mostly taking place in other districts away from… the [appellant’s] native city. The Afghan government has control of provincial capitals and the [appellant’s] native city is one of them. The risk of the [appellant] suffering significant harm in his native city due to insurgent violence as a civilian or a Hazara is remote.

22    In written submissions, counsel for the appellant helpfully summarised the findings of the Tribunal on inconsistency and incongruity in the appellant’s evidence in the following manner:

(a)    the appellant's evidence caused the Tribunal concern in that the Taliban did not return to his house to look for the appellant's father or otherwise show interest in the appellant, other than the visits they made to the pharmacy where the appellant worked (see the Tribunal’s reasons at [18]);

(b)    it was incongruous that after killing a senior officer where his father worked, going to the appellant's house, and after threatening to kill him, the Taliban “took no further interest in him” (see the Tribunal’s reasons at [20]);

(c)    it was incongruous that the Taliban, who went to the appellant's house to kill his father, then threatened to kill the appellant, did nothing more, even where the appellant was working in a similar position to his father (see the Tribunal’s reasons at [22]);

(d)    there was an inconsistency between the two accounts given about the attack on the uncle's house, namely the number of times that the Taliban shot at him and his position(s) in the house when the shots were fired (see the Tribunal’s reasons at [28]-[29]);

(e)    the appellant had unreasonably failed to mention in his statutory declaration the threats of Z’s brother to him and to his family before he left Afghanistan (see the Tribunal’s reasons at [32]);

(f)    The appellant's account as to whether the attack on his sister and brother-in-law by the Taliban was related to him was inconsistent (see the Tribunal’s reasons at [34] and [36]); and

(g)    The appellant gave two inconsistent accounts about when he decided to leave Afghanistan (see the Tribunal’s reasons at [39]).

23    The findings the appellant identifies in relation to the Tribunal’s reasons appear at [40], which is set out in full at [18] above. Critically, the Tribunal said at [40]:

Taken separately by themselves, none of the concerns about the [appellant’s] credibility which the Tribunal has discussed above would necessarily be determinative of that issue. However, considered cumulatively, these concerns lead the Tribunal to find that the [appellant] is not a witness of truth and the account of events on which his protection claims are based is false.

(emphasis added)

24    As noted, the Tribunal (at [41]) specifically set out those claims which it disbelieved, those being (in summary form) that:

(a)    the Taliban went to his home looking for his father;

(b)    the Taliban harassed and assaulted the appellant at the pharmacy;

(c)    a member of the Taliban threatened the appellant at a local government council;

(d)    members of the Taliban went to the appellant’s uncle’s home and inflicted harm on them;

(e)    a member of the Taliban was prosecuted by the authorities and imprisoned based on the evidence of the appellant and his uncle;

(f)    people went to the appellant’s house looking for him;

(g)    the Taliban attacked the appellant’s sister’s house; and

(h)    after leaving Afghanistan, people went to the appellant’s family looking for him.

25    The Tribunal concluded (at [41]-[42]) there was “no credible evidence” about the following matters:

(a)    the appellant’s family and their lives in Afghanistan, including claims about his uncle being harmed and fleeing to Kabul;

(b)    employment of the appellant, his family and his uncles;

(c)    employment of the appellant, his immediate and extended family by government or non-government agencies;

(d)    that the uncles in Kabul have refused to accommodate the appellant’s mother and her family;

(e)    that some of the appellant’s classmates have joined the Taliban and are on patrol;

(f)    that the appellant and his family suffered harm in Afghanistan; and

(g)    the whereabouts of his father and uncles.

26    The Tribunal did examine the additional evidence and submissions relied upon by the appellant. At the conclusion of the oral hearing on 30 July 2015 it provided the appellant with an opportunity to provide additional evidence. He availed himself of this opportunity by providing a statutory declaration dated 3 September 2015 by his aunt, x-rays of his uncle’s injuries and supporting submissions from his migration agent dated 4 September 2015.

IN THE FEDERAL CIRCUIT COURT

27    The primary judge considered the appellant’s assertion that there was no logical and probative basis for the Tribunal’s findings that his evidence was false, and the assertion that the Tribunal fell into jurisdictional error in determining that the appellant’s evidence was false where such a finding was illogical and/or irrational. His Honour recorded (at [15]) that the appellant had argued that it was not open to the Tribunal to find that the appellant was not a witness of truth because it found that none of the concerns held about the appellant’s credibility would necessarily be determinative of that issue.

28    His Honour then went on to consider each of the specific matters of evidence the Tribunal had described as inconsistent or incongruous (at [20]-[24]). His Honour had regard to the structure of the Tribunal’s reasons in the context of making findings and observed that the Tribunal identified that it had concerns about the appellant’s credibility and then proceeded to address those in detail. The primary judge noted at [20] that, in summary, the incident concerning the appellant’s father and brothers is one in which he had given inconsistent accounts about whether the Taliban had assaulted him at his pharmacy, and that the Tribunal had raised that issue with the appellant and rejected his explanation of the inconsistency.

29    His Honour also looked at the concerns of the Tribunal about the appellant’s evidence regarding his difficulties with the Taliban after the February 2009 incident. The primary judge noted that the Tribunal considered it was incongruous that, despite the Taliban having killed a senior officer working with his father and that same night the Taliban had gone on to the appellant’s home to get his father and threatened to kill the appellant and yet, beyond some visits to the pharmacy, the Taliban took no further interest in the appellant.

30    After examining in detail (at [22]-[26]) the remainder of the incidents which had caused the Tribunal to reject the appellant’s credibility, the primary judge held (at [27]) that he did not “accept that the statement by the Tribunal in relation to taking the incidents separately by themselves meant that this was a case where those inconsistencies were of a minor significance”, and the reference to “taking the incidents separately by themselves” went to the overall question of whether the appellant was telling the truth.

31    His Honour then went on to say (at [28]) that credibility was a matter par excellence for the Tribunal and that the finding that the appellant was not telling the truth and his claims were false “cannot be said to be illogical”, “had a probative basis on the evidence before the Tribunal” and was not “irrational or illogical”.

32    The primary judge also considered the ground of the application to the effect that the Tribunal had not squarely raised those matters in which findings were made against the appellant in [41], [42] and [43] of the Tribunal’s reasons. His Honour found (at [30]) that the findings of the Tribunal in [41], [42] and [43] are consequential findings based on the adverse findings of credibility made by the Tribunal which was open to the Tribunal, and it is not a case that falls within SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 where there is an issue upon which the delegate had made a positive finding and which the appellant was not appraised as to it being a live issue before the Tribunal. It was open to the Tribunal because the adverse findings were similarly based on the credibility of the appellant. Accordingly, it was sufficient for the Tribunal to have warned the appellant that there would be questions asked to assess his credibility. His Honour addressed that issue, which is also raised on this appeal, as follows (at [30]-[31]):

30.    The findings made by the Tribunal in paras.41, 42 and 43 are consequential findings based on the adverse finding of credibility made by the Tribunal which I have identified were open to the Tribunal. This is not a case of a claim within SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 where there is an issue upon which the delegate had made a positive finding and which the [appellant] was not appraised as to it being a live issue before the Tribunal. Before the delegate, the adverse findings made by the delegate were based on the credibility of the [appellant].

31.    At the commencement of the hearing before the Tribunal, the Tribunal member identified that there would be questions asked in order to assess the [appellant’s] credibility and noted that because the department had believed some or all of the [appellant’s] evidence it was still for the Tribunal member to decide whether or not the [appellant] was telling the truth. It is clear from the transcript that the [appellant’s] credibility in relation to his claims was a live issue.

33    His Honour also addressed the ground that, as a matter of natural justice, the Tribunal was required to raise with the appellant that aspects of his supplementary evidence (that the Tribunal found to be false) were open to doubt, but failed to do so. The primary judge held (at [36]-[40]) there was no requirement to provide any further opportunity to the appellant to address concerns about the three pieces of supplementary evidence, nor was the Tribunal required to “specifically question the appellant about the three pieces of evidence”.

34    The application to the Federal Circuit Court was dismissed with costs.

GROUNDS OF APPEAL

35    The following amended grounds of appeal were raised in this Court:

(1)    The Federal Circuit Court failed to find that the Tribunal fell into jurisdictional error in determining without a logical and probative basis that all of the appellant’s evidence upon which his claim was based was false.

(2)    The Federal Circuit Court failed to find that the Tribunal fell into jurisdictional error in determining that all of the appellant's evidence upon which his claim was based was false, when such a finding was illogical and/or irrational.

(3)    The Federal Circuit Court failed to find that the Tribunal fell into jurisdictional error by not informing the appellant that the issues in [41], [42] and [43] of the Tribunal's reasons particularised below were open to doubt and failing to provide the appellant with an opportunity to provide evidence or submissions with respect to those issues.

Particulars

(a)    That members of the Taliban went to the appellant's uncle's home and inflicted harm on them;

(b)    That a member of the Taliban was prosecuted by the authorities and imprisoned based on the appellant and his uncle's evidence;

(c)    That the Taliban attacked the appellant's sister's house;

(d)    The appellant's family and their lives in Afghanistan including claims about his uncle being harmed and fleeing to Kabul;

(e)    The employment of the appellant, his family and his uncles;

(f)    The employment of the appellant, his immediate and extended family by government or non-government agencies;

(g)    That the appellant's uncles in Kabul have refused to accommodate the appellant's mother and her family;

(h)    The appellant's classmates joining the Taliban and being on patrol; and

(i)    The whereabouts of the appellant's father and uncles.

ARGUMENT ON APPEAL

Credibility – a matter par excellence

36    Before considering the arguments in detail, there is one topic which this appeal usefully highlights. That credibility is a matter par excellence for the Tribunal is an expression often used. It stems from Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 74 ALJR 405 per McHugh J. At [67]-[68] his Honour, sitting in the High Court’s original jurisdiction as a single judge, said (footnotes omitted):

67    In addition, the prosecutor alleges that the Tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor’s claim that members of PLOTE tried to recruit him were "utterly implausible". However, this was essentially a finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word "implausible". The disbelief arose from the Tribunal's view that it was inherently unlikely that the events had occurred as alleged.

68    But there is a more fundamental reason why the argument based on s 430 fails to support a claim for prerogative relief. Even if, contrary to my view, there was a breach of s 430(1) by the Tribunal, it would not amount to a jurisdictional error. In Minister for Immigration and Ethnic Affairs v Eshetu, Gummow J referred to the requirement that, before granting a protection visa, the Minister and, on review, the Tribunal be "satisfied" that the prosecutor was a refugee. That requirement arose from ss 36 and 65 of the Act. His Honour said:

"A determination that the decision-maker is not 'satisfied' that an applicant answers a statutory criterion which must be met before the decision-maker is empowered or obliged to confer a statutory privilege or immunity goes to the jurisdiction of the decision-maker and is reviewable under s 75(v) of the Constitution."

The prosecutor argued at the hearing that s 430(1)(c) "feeds into the ascertainment of the Minister's satisfaction" and that it is "an integral part of ascertaining the jurisdictional fact".

(emphasis added)

37    It is important to note that McHugh J’s observations and his Honour’s use of the phrase “par excellence” were made in the specific context of a claim that the Tribunal had not complied with its statutory obligation under s 430 of the Migration Act to give reasons for its decision. Nothing said by McHugh J suggests that the Tribunal’s adverse findings on credibility are not amenable to judicial review on jurisdictional error grounds. There is a risk that a mechanical use of the phrase “par excellence” as a formula fails sufficiently to appreciate this important reality. The fact that credibility is a matter for the Tribunal to determine as a question of fact does not mean that challenges to credibility are not open. This appeal illustrates three of a number of potential bases of challenge to credibility findings on well-established legal precedent. In the present appeal, the foundation for the challenge is on the basis of no logical or probative basis for the finding in relation to ground 1, illogicality and/or irrationality in relation to ground 2, and, in relation to ground 3, a lack of natural justice.

38    There are several other potential bases upon which credit findings can be challenged. Recitation of the expression that credibility is a matter par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:

(a)    failure to afford procedural fairness;

(b)    reaching a finding without any logical or probative basis;

(c)    unreasonableness; and/or

(d)    jurisdictional error as discussed by Flick J in SZVAP.

The findings of falsity - ground 1 and ground 2

39    The appellant’s contention underlying ground 1 and ground 2 relates to the finding that “the account of the events on which [the appellant’s] protection claims are based is false” and that the appellant is not a “witness of truth” (at [40] of the Tribunal’s reasons) and focusses on the absence of logical or probative basis for the ultimate finding or, in the alternative, the illogicality and/or irrationality of such a finding. It seizes upon the words appearing in [40] that none of its expressed concerns about the appellant’s credibility “would necessarily be determinative” of that issue.

40    The contention advanced for the appellant is that, at most, the identified inconsistencies and incongruities in his evidence, taken together, provided a basis to doubt or not to accept the evidence. However, it was neither logical nor rational, the appellant argues, to find that his evidence was false when there was not one finding of falsity or fabrication in relation to any of the appellant’s evidence. The appellant stresses that, despite the entire orthodoxy of the remarks by McHugh J in Durairajasingham, the Tribunal is only empowered to make a determination under the Migration Act where it is based on findings or inferences of fact that are grounded upon probative material and logical grounds: WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74; 80 ALD 568 (at [22]); Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 per Gummow J (at [145]); and more recently, as discussed by Flick J in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; 233 FCR 451 (at [20]-[21]), where his Honour said:

20    Whatever may be the difficulties, however, adverse findings of fact founded upon credibility - like other findings of fact - may expose jurisdictional error. A finding of fact founded simply upon a conclusion that a witness is not to be believed is no more immune from judicial scrutiny than is any other finding of fact.

21    In an appropriate case findings of credibility by an administrative decision-maker may expose legal error.

41    Indeed, as also noted in SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 (at [31]), Flick J held that adverse findings as to credit by the Tribunal do not shield its decision-making process from scrutiny. His Honour there said:

31    In the context of judicial review being undertaken of a decision of a Refugee Review Tribunal, adverse findings as to credit by the Tribunal do not shield its decision-making processes from scrutiny. Thus, for example, in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [78], (2013) 212 FCR 99 at 121, Robertson J observed:

[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.

The Tribunal in that case had found the claimant had been “untruthful”, including in the account he had given as to his having studied Persian in Pakistan. The Tribunal, however, had failed to refer in the course of the hearing or in its reasons to a document from Punjab University corroborating the claimant’s account. Notwithstanding the findings as to credit, the decision of the Tribunal was set aside. The Minister appealed unsuccessfully. Robertson J relevantly concluded:

[119]    The key features of the present case therefore are, first, that the Tribunal did not consider the Punjab University transcript and, second, the matter to which that transcript went founded the Tribunal’s rejection of the applicant’s claims, on the basis that he had been untruthful. This was not a case where the Tribunal took a nuanced approach to questions of credit by considering whether its disbelief of the applicant in one respect nevertheless did not mean that it disbelieved him generally: rather, the Tribunal’s approach was to disbelieve the applicant generally. In the former case it may more readily be seen that such a finding on credit goes only to a matter of fact and thus is quintessentially the province of the Tribunal.

[120]    The court is not involved in traversing findings of fact about the corroborative evidence because the Tribunal did not deal with it. The unexplored possibilities include that the transcript was false, that the applicant had studied the Persian language but was a bad student or had a bad memory, and that there was an ambiguity in what studying Persian meant, whether it was language or culture and history. It is for the Tribunal to deal with the material before it and to resolve any conflicts in it.

[121]    To adopt the language of Buchanan J in Minister for Immigration and Citizenship v SZCOQ [2007] FCAFC 9 at [61], relied on by the Minister, these considerations bear upon the material elements which must be satisfied, or rejected, when dealing with an applicant’s claims; (2013) 212 FCR 99 at 132.

See also: MZYWL v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 895 at [24] per Bromberg J. Such findings, like all findings, must be rationally made and based upon facts having logical and probative weight. Prior to the decision in Minister for Immigration and Citizenship v SZRKT, supra, in SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470 at [37], (2009) 181 FCR 113 at 126, Logan J had also observed that “the adjectives ‘ignorant’, ‘arbitrary’ and ‘perverse’ aptly apply to a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”. Similarly, an ultimate conclusion founded in part upon adverse findings as to credit may be set aside if the decision-maker has proceeded in a manner which gives rise to a reasonable apprehension of bias: e.g., SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80.

(emphasis added)

42    The passage in SZRKT [2013] FCA 317; 212 FCR 99, cited by Flick J in SZSHV, was also followed by his Honour in SZVAP, where he also noted the following passage from WAGO v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 437; 194 ALR 676 per Lee and RD Nicholson JJ (at [54]) (Carr J agreeing (at [57])):

The unwarranted assumptions of the Tribunal as to matters relevant to formation of a view on the credibility of the corroborative witness caused the Tribunal to disbelieve and disregard that evidence and constituted a failure by the Tribunal to duly consider the question raised by the material put before it: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 per Gleeson CJ at [4]. Although the remarks of the Chief Justice in Aala were directed to entitlement to review by constitutional writ on the ground of absence of authority for the Tribunal to make a decision that exercised the decision-making power in a manner that was not procedurally fair, his Honour's comments are equally pertinent to an unauthorised exercise of decision-making power that results from the Tribunal failing to take into account relevant material. In misunderstanding the material before it, the Tribunal thereby failed to have regard to relevant material, resulting in a decision for which the Tribunal had neither authority nor jurisdiction under the Act: Yusuf per McHugh, Gummow and Hayne JJ at [82]-[85]. It follows that grounds for review of the Tribunal's decision arise under s 476(1)(b) and (c) of the Act.

43    The appellant also points to SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198, where Gordon J considered some of the United States authorities on the issue of the leap between minor or trivial inconsistencies or omissions and a general credit rejection. Her Honour said (at [25]-[26]):

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”.

(emphasis added)

44    Again, in WAIJ, Lee and Moore JJ (at [27]) said:

Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material. (See: S20/2002 per McHugh, Gummow JJ at [49]). Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the Tribunal in assessing the credibility of an applicant’s claims. However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error. (See: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ at [82]-[85]).

45    The appellant says that in the findings made by the Tribunal (summarised above at [22]), there is no express finding that the appellant was deliberately lying or that he relied upon and/or provided any specific piece of evidence which was false.

46    The appellant says that an examination of each finding of incongruity or inconsistency and its importance is warranted in light of SZRKT and says that in this regard:

(a)    the factual findings (at [18], [20] and [22] of the Tribunal’s reasons) concerns speculation by the Tribunal about the actions of third parties. They were:

18.    Overall, the [appellant’s] evidence about his difficulties with the Taliban caused the Tribunal concern in the sense that in early 2009 the Taliban had gone to his home looking for his father and demanding that another member of the family be handed over in his absence. No further claim has been made by the [appellant] about further interest from the Taliban beyond the visits they made to his pharmacy again looking for his father and threatening to kill him if his father's whereabouts were not disclosed. Although the Taliban had initially gone to the family home to find the father, they went to the pharmacy and not back to the [appellant’s] home.

…

20.    After that incident, interest shown in the applicant related to him giving evidence against one of the men responsible for that (and not his association with his father or due to the work he had been doing). Even allowing for the unpredictable manner in which the Taliban and like criminals could act in Afghanistan, it still struck the Tribunal as somewhat incongruous that having killed a senior officer where his father worked and that same night gone to the applicant's home to get his father, and, as well, having threatened to kill the [appellant], beyond some visits to the pharmacy, the Taliban took no further interest in him.

…

22.    It remained incongruous to the Tribunal that the Taliban would go to the [appellant’s] home to, in effect, kill his father, then threaten to kill the [appellant] if his father was not located but, in essence, do nothing more, even when the [appellant] was undertaking work of a similar nature to that of his father. The Tribunal acknowledges that at another stage of his evidence, as discussed below, the [appellant] purported to claim that he was not important to the Taliban, but, he consistently maintained to fear harm from them because of their interest in his father. He had also claimed that Y had threatened to kill him both at the pharmacy and when he saw him at the council office.

(b)    the inconsistency in the two accounts of the attack on the uncle’s house did not concern whether the events occurred, but rather, two slightly differing descriptions of constituent events affecting the appellant: see [29] of the Tribunal’s reasons (footnotes omitted):

29.    The Tribunal disagrees with the [appellant’s] assertion and, as explained, there is inconsistency in his accounts. The Tribunal does not accept that it has been caused by how the [appellant] may have felt at the time he made the declaration and was interviewed by the delegate.

(c)    the fact that the appellant had mentioned that “Z” threatened his family after he left Afghanistan, but then said (during the hearing) that “Z” made threats before the appellant left Afghanistan was a minor matter: see [32] of the Tribunal’s reasons:

32.    In response to this discrepancy, the [appellant] said that there were a lot of details in his 'full story' and he may have missed them when the declaration was prepared. The Tribunal does not expect the [appellant] to relate in his declaration or at any stage every detail of the grounds on which his protection claims are based. The Tribunal does expect that, if the [appellant] is telling the truth, he would relate those aspects of his evidence which are important and form the basis of his protection claims. Given he mentioned Z's brother going to his family after he left Afghanistan, he could reasonably be expected to say in the declaration that Z's brother went there a number of times before he left.

(d)    the inconsistency concerning the attack on the sister by the Taliban concerned what the Taliban had said about the appellant during the attack and not the existence of the attack itself: see the discussion at [34]-[36] of the Tribunal’s reasons:

34    The Tribunal put to the [appellant] that in his statutory declaration, with respect to this incident, he gave the following evidence (verbatim):

"One day, the Taliban attacked my sister's [her name] place. Her husband was my father's colleague. They asked her my whereabouts. She did not know where I was. They attacked my sister with gun butts. As a result she lost her left eye. They also kidnapped her husband who now has disappeared."

The Tribunal put to the [appellant] that this evidence indicated that the Taliban visit to his sister's home was related, at least in part, to an interest in him, given his claim that they asked his sister for his whereabouts. The Tribunal put to the [appellant] this was inconsistent with his evidence to the Tribunal that this visit was not related to him and evidence he also gave the Tribunal that the Taliban did not mention him when they went there.

35.    In response, the [appellant] said that when he made his declaration he was in a poor mental state after his long journey to Australia. He said the account he gave the Tribunal was correct and the people who attacked his sister did not ask about him. He said that was because he was not important to them. In addition he learned from his sister that at the home they questioned her husband about his other colleagues and again did not mention the applicant because he was not important to them.

36.    That is a curious claim for the [appellant] to make when he said that Y had previously threatened him including because he was doing work similar to that his father performed. Even allowing for any disorientation the [appellant] felt after arriving in Australia and when he made his declaration, the Tribunal could reasonably expect him to give a consistent account as to why the Taliban had gone to his sister and whether or not they showed interest in him.

(e)    the Tribunal found inconsistency in the appellant’s account of the timing of his decision to leave when there was no factual inconsistency and the expression “decision to leave” was entirely ambiguous: see the Tribunal’s reasons (at [39]):

39.    The Tribunal asked the [appellant] why he had earlier said that his decision to leave Afghanistan was made after the attack on his sister when he was now saying that, in fact, the decision had been made before then. In response, the [appellant] said that the decision to leave the country was made before the attack on his sister but it was only once the land was sold, which was after she was attacked, that he could leave. The Tribunal does not accept that evidence because that was not what the [appellant] said when first asked when he began making arrangements to leave Afghanistan and decided to leave.

47    It is argued for the appellant that each of those identified inconsistencies could fairly be described as being “minor” in the manner referred to by Robertson J above in SZRKT. Indeed, the appellant argues further that the Tribunal’s reliance on speculation in order to make findings of incongruity or inconsistency further weakened its conclusion.

48    The appellant argues that it was not open to the Tribunal to aggregate the cumulative effect of those incongruities and inconsistencies, which are of a minor nature, so as to reach a global conclusion that the appellant was not “a witness of truth” and that his accounts of events was false. There were, in fact, no findings of falsity at all, the appellant stresses, and secondly, the incongruities and/or inconsistencies were minor.

49    At the heart of the appellant’s submissions is that this is not a case where the inconsistencies revealed a pattern of deception by the asylum seeker. Rather, the appellant argues that the present case is comparable to Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; 115 ALD 303. The Tribunal there found the asylum seeker’s claim to be not credible, but did not find that he had lied or fabricated his evidence. The question was whether the Tribunal had properly taken into account a baptismal certificate from Hyderabad, India. The Tribunal had given the certificate limited weight because of the finding it reached on credibility on the rest of the evidence before it. The Full Court (North and Lander JJ (at [24]) and Katzmann J (at [35])) were not critical of that approach. The appellant emphasises, however, that the Tribunal in that instance had not made a finding that the certificate had been forged. It was open in the present instance, the appellant argues, for the Tribunal to make a finding that the appellant’s evidence was not credible, but without specific evidence of falsity, it was not open for it to find that the appellant was not a witness of truth or that his account was false.

50    The appellant relies upon Smith v NSW Bar Association (1992) 176 CLR 256 where Deane J said (at 271) that “[u]nless it be truly necessary for the purpose of disposing of the particular case… a specific finding that a party or witness has deliberately given false evidence should ordinarily not be made.” This was the passage referred to in SZNPG where North and Lander JJ said (at [24]):

The weight to be given to the baptismal certificate was a matter for the RRT. The RRT was not precluded from giving the baptismal certificate little weight because it had not first decided that the first respondent was a liar. Indeed, in our opinion, the RRT should not be encouraged to make findings of that kind: c.f. Smith v New South Wales Bar Association (1992) 176 CLR 256 at 271. It is enough if the RRT is not persuaded that the claims which have been made out for the RRT to say so. It is not a precondition to the consideration of the weight to be given to any particular evidence that the RRT find that the particular applicant is a liar.

51    In Smith, Deane J observed (at 271) that the circumstances in which such a finding is necessary includes where “there is a direct conflict of evidence and it is apparent that there is no real possibility of honest mistake.” The appellant argues that the present case cannot fall into that category. There is no direct conflict of evidence or any other reasons for the Tribunal to make its finding of falsity. To reach a conclusion of falsity it needed to discount other reasons for incongruity and inconsistency in the appellant’s evidence, such as the possibility that the Tribunal’s speculation was incorrect, the appellant had provided his evidence through interpreters, the hearing was conducted by telephone, or, more importantly, the appellant had made a genuine mistake or was poorly educated. None of those possibilities was apparently considered.

52    Similarly, in BTF15 v Minister for Immigration and Border Protection [2016] FCA 647, Katzmann J said (at [56]-[58]):

[56]    Nevertheless, I am troubled by the Tribunal’s conclusion that the statements of the two witnesses were fabricated. It is one thing to find that evidence should not be given any weight. It is quite another to conclude that evidence is a fabrication. The High Court has said in a different context that “as a matter of logic and common sense, something more than mere rejection of a person’s evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence”: Smith v New South Wales Bar Assn (1992) 176 CLR 256 at 268 (Brennan, Dawson, Toohey and Gaudron JJ). The Tribunal was entitled to find that the evidence of the two witnesses could not overcome the inconsistencies in the appellant’s account. It was unnecessary and inappropriate, however, for the Tribunal to go further and find that their evidence was a fabrication: Smith at 271–2 (Deane J). In the circumstances, that finding was unreasonable. It should not have been made.

[57]    Having said that, for the reasons I have already given, it was open to the Tribunal to find that what the witnesses had said could not rehabilitate the appellant’s evidence. That is what the Tribunal plainly did, in [78] and the first half of [79] of its reasons (extracted above at [26]). Having reached that view, it was not unreasonable for the Tribunal not to call oral evidence from them.

[58]    Thus, while it might well have been preferable for the Tribunal to have interrogated the two individuals before coming to a concluded view about the appellant’s credibility, I am not persuaded that its decision not to do so lacked an evident and intelligible justification. It follows that ground 1 is not made out. As the foundation for the challenge to the primary judge’s reasons in ground 2 is that the decision did lack that justification, ground 2 also fails.

53    It was quite unnecessary, the appellant stresses, to reach a conclusion of untruthfulness or false evidence. Nor, the appellant says, was it open to the Tribunal to reach the findings of falsity because there had been no findings of falsity with respect to any aspect of the appellant’s evidence, apart from the ultimate conclusion on credibility which is challenged. Added to this, the incongruities and inconsistencies were minor in the SZRKT sense and the Tribunal had concluded that none of its own findings were of sufficient strength to be determinative on the issue of the appellant’s credibility. Rather, those findings were only sufficient to find that the evidence should not be accepted. The finding of falsity was unnecessary in the Smith sense.

54    All that being so, the appellant contends there was no logical or probative basis at law to find that the appellant was not a witness of truth and that “the account of events on which his protection claims are based is false”.

55    Similarly, for the purpose of ground 2 and by applying the same process of reasoning, the appellant contends that the rational basis of the conclusion of falsity can be challenged in the manner identified in Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 per Gummow and Hayne JJ (at [38]). This ground asserts that the primary judge failed to find that the Tribunal exhibited jurisdictional error when it progressed from an adverse finding of incongruity and inconsistency to a finding that the appellant was not a witness of truth and his account of the events on which the protection claim was made were false when such a finding was illogical and/or irrational.

Consideration of ground 1 and ground 2

56    It might first be said in relation to ground 1 and ground 2 that the appellant has read too much into the statement (at [40] of the Tribunal’s reasons) “[t]aken separately by themselves, none of the concerns about the [appellant’s] credibility which the Tribunal has discussed above would necessarily be determinative of that issue.”

57    The appellant has presented his argument on the basis that the Tribunal expressly concluded that none of those concerns would warrant a general conclusion as to false evidence being given, but that is not what the sentence says. The word “necessarily” is an essential part of the sentence. On a reasonable reading of the sentence taken in context, the Tribunal is essentially saying “I do not have to determine whether any one of those several inconsistencies or incongruities would be sufficient because I am satisfied, taking into account that there are a significant number of them, that the appellant cannot be believed.” It may well be possible on complete analysis that the significant inconsistency about whether or not the appellant had been attacked by the Taliban would be determinative.

58    The appellant’s statements of principle can be fully accepted. It is largely a question of ascertaining whether the application of principle, by reference to the findings made in this particular case, demonstrates error of the kind to which the appellant points.

59    One of the difficulties in the appellant’s argument is the conclusion reached by the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, particularly (at [131]), where Crennan and Bell JJ stated that if reasonable minds could differ as to the conclusions to be drawn from the evidence, illogicality or irrationality or unreasonableness could not arise simply because one conclusion had been preferred to another possible conclusion.

60    In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, Wigney J collected the following relevant principles (at [52] and [54]-[56]):

52    As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

…

54    … The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].

55    Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].

56    An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.

61    For present purposes, there is a difficulty for the appellant in demonstrating “extreme” illogicality. Even emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality, according to SZMDS (at [124]). Although the appellant contends that the implausibility and inconsistencies were only “minor”, his Honour disagreed (at [26]-[27]).

62    It was certainly open to the primary judge to find that the implausibility and inconsistencies identified by the Tribunal should not be described as “minor”. This is evident from closer analysis. At [14], the Tribunal noted that the appellant did not claim in the statutory declaration accompanying his protection visa application that he was assaulted by the Taliban in their last visit to his pharmacy. Rather, he had asserted that the Taliban “had not used force on me”. This was a central issue in relation to the appellant’s asserted fear. He changed from expressly saying “there has been no force used by the Taliban”, to saying that he had been assaulted by them. On his account, the serious assault occasioned the need for hospitalisation. It could not be said that a failure to make any mention of it, indeed, expressly denying that any force had been used on him in his protection visa application, was a minor matter. It was absolutely central to the claim.

63    By the same token, the failure of the Taliban to take any further action against the appellant after February 2009, apart from the visits to his pharmacy, was not unreasonably regarded by the Tribunal as being “incongruous” having regard to the fact that threats to kill the appellant had, according to his claims, been made. Again, that incongruity going to the heart of his fear of persecution claim could not be regarded as being “minor”. To the contrary, both this and the assault point were essential features of the appellant’s claims to fear harm from the Taliban.

64    The same observation should be made about the claim by the appellant in his statutory declaration that the Taliban had asked his sister for his whereabouts when they allegedly attacked her. The appellant denied this claim in his statutory declaration when giving oral evidence before the Tribunal. Again, on a central matter pertaining to his fear, that inconsistency was not a minor matter, but went to the heart of his claims. Those matters alone may warrant reaching the conclusion at which the Tribunal arrived or, at the very most, reasonable minds could differ about the conclusion based on the matters the Tribunal identified. But that is not sufficient to establish illogicality or irrationality in the legal (or any other) sense. The findings were plainly open on the evidence.

65    Next, the contention that the Tribunal had to find “specific evidence of falsity” before concluding that the appellant was not a witness of truth and that only “a direct conflict of evidence” could achieve this, cannot be accepted. To the contrary, it is clear on authority that the Tribunal does not need to possess rebutting evidence before holding that a particular factual assertion is not made out: see, for example, Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 301; 34 ALD 347 per Heerey J (at 348). This is not a case like WAIJ where the majority, Lee and Moore JJ, held (at [52]) “[t]he Tribunal appears to have considered that it could disregard documents that it was otherwise bound to consider if it surmised that it was possible that the documents could have been fabricated”. In that case, it was held that the Tribunal had erred, but not for the reasons advanced by the appellant in his argument.

66    It may be accepted that cases such as SZNPG and Smith do make the point that, unless it is strictly necessary, it is preferable not to reach a conclusion that an applicant is a “liar”. But while this is indeed sound practice, the remarks do not suggest that the Tribunal will have fallen into jurisdictional error if it does reach such a finding. There was ample foundation in this instance for the Tribunal to reach the conclusion that the appellant was not a witness of truth.

67    For all those reasons, ground 1 and ground 2 cannot succeed.

Obligation to afford natural justice – ground 3

68    In relation to this ground, the appellant’s complaint pertains to the failure on the part of the Tribunal to alert him to the fact that certain parts of his evidence were in issue. The appellant accepts that he received a general warning at the commencement of the hearing that the Tribunal would be assessing his credibility. However, it then proceeded to put specific questions to the appellant questioning certain parts of his evidence. This caused the appellant, he says, to address those questions in the hearing before the Tribunal and later in supplementary evidence and submissions.

69    His Honour dealt with this aspect of the appeal at first instance in the following manner (at [29]-[33]) repeated for convenience:

29.    In relation to ground 4, counsel for the [appellant] submitted that the particular findings made in paras.41, 42 and 43 of the Tribunal’s reasons following the conclusion on credibility gave rise to issues that fell within SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 and should have, as a matter of procedural fairness, been squarely raised by the Tribunal with the [appellant].

30.    The findings made by the Tribunal in paras.41, 42 and 43 are consequential findings based on the adverse finding of credibility made by the Tribunal which I have identified were open to the Tribunal. This is not a case of a claim within SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 where there is an issue upon which the delegate had made a positive finding and which the [appellant] was not appraised as to it being a live issue before the Tribunal. Before the delegate, the adverse findings made by the delegate were based on the credibility of the [appellant].

31.    At the commencement of the hearing before the Tribunal, the Tribunal member identified that there would be questions asked in order to assess the [appellant’s] credibility and noted that because the department had believed some or all of the [appellant’s] evidence it was still for the Tribunal member to decide whether or not the [appellant] was telling the truth. It is clear from the transcript that the [appellant’s] credibility in relation to his claims was a live issue.

32.    Following the hearing before the Tribunal, the [appellant’s] representative was given an opportunity to put on further submissions. The first topic addressed in those further submissions was the credibility of the [appellant]. It is clear from the events following the hearing that the representative of the [appellant] had clearly understood that the [appellant’s] credibility was of concern and a live issue in relation to the [appellant’s] claims.

33.    This is not a case where there has been any breach of s.425(1) of the Migration Act 1958. There was no denial of procedural fairness or denial of natural justice in relation to the adverse credibility findings or the consequential findings that arose in relation to paras.41, 42 and 43 as alleged in ground 4 of the amended application. Ground 4 fails to make out any jurisdictional error.

70    The Tribunal reached conclusions as to incongruity and inconsistency in relation to his evidence, as noted in relation to ground 1 and ground 2. In the Tribunal reaching the conclusion that the appellant was not a witness of truth, it reached comprehensive findings (at [41]-[43]) summarised above (at [22]).

71    This, the appellant contends, amounted to some 16 categories of “not credible” evidence. The appellant says that ten of the 16 categories were not satisfactorily or sufficiently raised with him. With respect to three of those, while a specific matter about an event was raised with him, he was not put on notice that the evidence of the whole event was doubted.

72    The appellant relies on SZBEL, where the High Court examined the obligations placed upon the Tribunal by operation of s 425 of the Migration Act and by common law. Section 425 provides as follows:

425    Tribunal must invite applicant to appear

(1)    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2)    Subsection (1) does not apply if:

(a)    the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

(b)    the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c)    subsection 424C(1) or (2) applies to the applicant.

(3)    If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

73    In SZBEL the High Court held (at [44]) that the Tribunal had failed to afford the appellant a sufficient opportunity to give evidence or make submissions about two of the three determinative issues arising in relation to the decision under review. In this regard, the High Court noted (at [47]) that where there are concerns about the credibility of an appellant:

First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

(emphasis added)

74    The appellant argues that there are two obligations for a Tribunal, as identified in SZBEL, where there is a concern that everything an applicant says in support of an application is in issue. First, that concern should be communicated by a Tribunal. Second, the Tribunal must raise any specific aspect of an applicant’s account that the Tribunal considers may be important to the decision and open to doubt.

75    The Tribunal failed to do this, according to the appellant, by making the following general comment about credibility at the commencement of the hearing:

… I am going to ask you questions about why you are afraid to go back to Afghanistan. I also do this to assess your credibility. If the Department believes some or all of your evidence it still might ask to decide whether or not you’re telling the truth.

76    It follows that, while the appellant was broadly on notice that his credibility was in issue, it was clear from the statement that it would be judged in the context of questions put and answered and that some of his evidence might be believed and other parts of his evidence not.

77    The appellant relies on the following passages where the Tribunal said it alerted the appellant to doubts it had about his evidence:

(a)    The failure to mention in his statutory declaration that he was assaulted by the Taliban at the pharmacy at which he worked;

(b)    Whether the person from the Taliban was taking a risk by walking into the Council office;

(c)    That the appellant would work in a government agency even though the Taliban had attacked his father for working for a government agency;

(d)    That in his statutory declaration he said that when his uncle’s house was attacked, the appellant was fired at once, whereas as at the oral hearing, the appellant said he was fired at more than once;

(e)    That in his statutory declaration the appellant had not mentioned that before he left Afghanistan, Z’s brother visited his family and demanded that the appellant go back to Court and say the evidence he had given was false;

(f)    That is was inconsistent that the attack by the Taliban on his sister and kidnapping of her husband was said to be related to an interest in him and then said to have nothing to do with him; and

(g)    That the appellant said, first, that his decision to leave Afghanistan was made after the attack on his sister’s place and then at the hearing said that it was before the attack.

78    The appellant further identifies passages in the transcript of the oral hearing, which reveal the following occasions where doubt was expressed by the Tribunal member and the appellant was given an opportunity to respond:

(a)    “[O]nce you sold the pharmacy [the Taliban] don’t seem have shown any further interest in you. … You know they had gone to your family home to get your father, they then beat you up at the pharmacy saying they’ll kill you if they can’t get your father but nothing else really happened after that. Yes, please comment”;

(b)    “I’m wondering why your decision to then leave Afghanistan would not be made around [the time of the court case] and why you decided only after they attacked your sister which you said had nothing to do with you”;

(c)    In relation to the pharmacy incident, “you’ve told me today that [the Taliban and “Y”] did beat you up so why didn’t you say that in your original written statement?”;

(d)    “Now, in your written statement you talk about how the men came to your uncle’s home and fired shots. In your statement and also to the Immigration Department, you say that the men fired shots and you ran upstairs to see what happened. You saw three people leaving the house, one of them saw you and he fired shots at you. And one of these men was “Z”. And then you sent into your uncle’s room. Now I think that’s different from what you’ve told me today. Today you’ve said how you heard shots, you went upstairs to see what was going on and some men fired shots at you so you dived down the stairs back to the basement. And then, when it was quiet, you went back upstairs again and you said the men were leaving and one of them fired a shot at you and then you went to see your uncle. Why is what you told me today different from what you said in your written statement and interview with Immigration?”;

(e)    Concerning the attack on the appellant’s sister’s place, in the statutory declaration the appellant said “they asked her for your whereabouts and she did not know where you were”, but at the oral hearing “you said they didn’t say anything about you to your sister. Do you wish to comment on that?”; and

(f)    “[I]n your written statement, you don’t mention [“Z’s] brother going to look for you before you left Afghanistan, is there any reason for that?”.

79    The Tribunal did not sufficiently, the appellant says, indicate to him that “everything he or she says in support of the application is in issue”. Rather, the appellant complains that the Tribunal indicated through specific questioning that the subject matter of those questions was what was in issue. As a result, when the appellant’s representative completed supplementary submissions following the hearing, she said:

The Tribunal put a number of questions to [the appellant] regarding his account of the incidences [sic] that occurred to him in… Afghanistan …

[and]

[The appellant] provided detailed and credible responses to the Tribunal’s questions regarding the incidences [sic] that occurred in [a particular province in Afghanistan]. He did not embellish and fully responded to all of the questions and information put to him.

80    The appellant stresses that the focus of the hearing was on answering the questions put to him and the Tribunal did not sufficiently indicate that everything he said was in issue. What was clear was that the subject matter of the questions raised “was in issue”.

81    Next, having regard to the second test in SZBEL, the appellant argues there was an obligation on the Tribunal to raise with him those specific aspects of his account that the Tribunal considered may be important to the decision and may be open to doubt. The Tribunal did so with respect to limited parts of his evidence only. It did not, however, raise with the appellant that there were further matters which it doubted, yet it went on to ultimately make adverse findings against him about those matters (at [41]-[43]), set out above. Indeed, in a number of cases, the appellant says, the Tribunal went from a finding of inconsistency or incongruity in relation to a specific aspect of the evidence to make an adverse finding with respect to a whole event or category of evidence. He focusses on the following three particular findings that he says were not put to him:

(a)    That members of the Taliban went to the appellant’s uncle’s home and inflicted harm on him;

(b)    That the Taliban attacked the appellant’s sister’s house; and

(c)    That a member of the Taliban was prosecuted by the authorities and imprisoned based on the appellant and his uncle’s evidence.

82    In relation to those matters, the appellant’s complaints are, first, that the Tribunal, having found that there was an inconsistency in the appellant’s account of how many shots were fired at him when the uncle’s house was attacked, actually went on to find (at [41]) that it did not believe that “members of that group went to the appellant’s uncle’s house and inflicted harm on them”. The appellant complains that the finding as to the actual visit having occurred at all was not put to him.

83    Secondly, in relation to [81(b)] above, while the Tribunal put to the appellant that there was an inconsistency between whether the attack on his sister and kidnapping of his brother-in-law was related to him or not, it actually went on to find that it disbelieved the appellant’s account that the Taliban attacked the appellant’s sister’s house at all, an issue that was never put to the appellant.

84    Thirdly, and finally, the Tribunal did not ask the appellant anything about the prosecution of a member of the Taliban based on the appellant and his uncle’s evidence. It was never put to the appellant that there was doubt that a member of the Taliban was prosecuted by the authorities and imprisoned based on the appellant and his uncle’s evidence.

85    The “no credible evidence” finding was reached with respect to a further six to eight categories of the appellant’s evidence and he says none of the following matters were raised with him:

(a)    The appellant’s family and their lives in Afghanistan, including claims about his uncle being harmed and fleeing to Kabul;

(b)    Employment of the appellant, his family and his uncle;

(c)    Employment of the appellant, his immediate and extended family by a government or non-government agency;

(d)    That the appellant’s uncles in Kabul had refused to accommodate the appellant’s mother and her family;

(e)    The appellant’s classmates joining the Taliban and being on patrol; and

(f)    The whereabouts of his father and uncles.

86    The appellant contends that in terms of the requirements of SZBEL (at [47]) the Tribunal was bound to identify matters as important issues and challenge what the appellant said. It needed to reveal to the appellant that these were live issues, but failed to do so.

Consideration of ground 3

87    Counsel for the Minister concedes that, notwithstanding s 422B of the Migration Act confirming that the obligations on the Tribunal set out in the Migration Act are an exhaustive statement of the requirements of natural justice, SZBEL has derived the obligations there set out from the terms of s 425(1) itself. The Minister does not contend that SZBEL has been displaced by s 422B. Section 425 is part of Pt 7, Div 4. So, while it can be said that the Division contains an exhaustive statement of the requirements of the natural justice hearing rule, one still has to apply what s 425 requires and to apply what is said in SZBEL by the High Court.

88    It should be noted that one of the specific findings relied upon was raised sufficiently with the appellant. The Tribunal found that the appellant had not worked for a government office despite his claiming that he worked for the Council, but it used that finding in several parts of its reasons, for example, [62]. It was not satisfied that the appellant was a person who might be associated with the government and it was government people who were exposed to risk in travelling from Kabul to his home. It was put to the appellant and recorded in the transcript that only government workers were at risk, not him, and he failed to correct or did not insist that he was in fact a government worker at that point. The Tribunal made it clear to him that he was not at risk because he was not a government worker in the Tribunal’s assessment. The following exchange took place:

My impression is that this violence mainly takes place in the north of [the province] and that it’s not really taking place in… the capital of the province where you come from. Now my understanding is that in [the particular province] and in Afghanistan generally, people are not being targeted just because of the ethnic group they come from like in Pashto or Hazara or Tajik. The real targets in Afghanistan are people who work for the government or wealthy people who criminals can kidnap. And so that would suggest to me then that just being an Hazara civilian in [the capital of the particular province], the risk of you suffering serious harm is remote. Do you wish to comment on that?

The finding that he did not work for the government was put to the appellant and was open to the Tribunal.

89    In our view the approach taken by his Honour in relation to other matters was correct. The delegate was not satisfied that the appellant was targeted by the Taliban as he claimed, noting the inconsistency of the appellant being able to own and operate a business at the same time as being allegedly targeted by the Taliban. Nothing said by the Tribunal at the hearing on which the appellant relies indicated that any part of the appellant’s claims concerning his alleged past harm from the Taliban had in fact been accepted by it.

90    As the appellant acknowledges, the Tribunal did raise a number of concerns about his evidence at the hearing and gave a clear explanation as to his credibility being under examination at the commencement of the hearing. In this case, it was obvious that everything the appellant said about his alleged past experiences with the Taliban was in issue. That situation is expressly catered for in the highlighted portion of what the High Court said in SZBEL (at [47]) (at [73] above).

91    The appellant had the opportunity to put to the Tribunal whatever he wished to say concerning his claims to have been harmed by the Taliban. From the transcript it is clear that he had every opportunity to do so.

92    Importantly in relation to this argument, the Tribunal is not obliged to put to the appellant every matter of concern to it regarding his claims to fear harm from the Taliban that ultimately appears in its reasons as the appellant would suggest. The Tribunal did not have to identify the significance of its questions or give a running commentary on his evidence: Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162; 163 FCR 285 per Emmett, Weinberg and Lander JJ who said the following (at [88]-[89]):

88    The short answer to the applicant's submission based upon SZBEL 228 CLR 152 is that s 425 does not require the RRT to identify the significance of the questions that it puts to a claimant or the ultimate matter or issue to which those questions go. That is not what is required by SZBEL 228 CLR 152, and is an attempt to import the requirements of s 424A(1) into s 425.

89    In any event, we consider that the RRT did bring to the applicant's attention its concern about his claim to have remained at his school, in the face of Maoist threats, right up until the time he left Nepal. It did so by repeatedly asking him to explain where he had lived just prior to coming to Australia. That led to his giving apparently contradictory evidence. However, it also clearly put him on notice that the timing of his having left the school was a matter of concern and therefore adequately informed him of the way in which his answers might be used. In this case the relevant issue identified by the RRT was the apparent disparity between the applicant's claims of having been subjected to persecution by the Maoists, and remaining living at home, and running his school, until he left for Australia. As SZBEL 228 CLR 152 makes clear (at [48]) the RRT is not obliged to provide “a running commentary upon what it thinks about the evidence that is given”. Accordingly, the first additional ground is not made out.

93    SZBEL makes clear (at [48]) that the Tribunal is not obliged to set out at the hearing its thought processes or preliminary reasons for the appellant’s comment. Indeed, it may be necessary to subsequently carefully assess all the evidence of the hearing before reaching a view in relation to credibility. There can be no plausible suggestion against the background of the extensive range of matters which were put to the appellant and the advice he was given at the outset as to the nature of the hearing that he should have been brought back to answer further questions on the topics about which the Tribunal was not satisfied.

94    For these reasons, ground 3 is not made out.

CONCLUSION

95    The Court would like to express its gratitude for the helpful and detailed submissions of the pro bono solicitors and pro bono counsel, Mr Beckett, however, on this occasion the Minister’s arguments have prevailed.

96    The appeal must be dismissed with costs.

Associate:

Dated:    24 October 2016