FEDERAL COURT OF AUSTRALIA

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court of Australia made on 16 May 2016 be set aside and in lieu thereof:

(a)    the decision of the second respondent dated 17 April 2015 be set aside; and

(b)    the appellants’ application for review be remitted to the second respondent for redetermination according to law.

3.    The first respondent pay the appellants’ legal costs and disbursements of the appeal, as agreed or assessed.

4.    The first respondent pay the appellants’ filing fees and Court fees in relation to the proceedings in the Federal Circuit Court of Australia.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The appeal is from a decision of the Federal Circuit Court of Australia (FCCA), which dismissed the appellants’ application for judicial review of a decision of the then Refugee Review Tribunal (now the Administrative Appeals Tribunal (both the Tribunal)). The appellants are a woman from Pakistan and her two children. The Tribunal affirmed a decision of the Minister’s delegate not to grant the appellants Protection visas. The appellant mother’s husband was also a party in the proceedings before both the Tribunal and FCCA, but he is not a party in the appeal to this Court. For convenience, however, we will use the terminology “the appellants” as referring not only to the three appellants in the appeal but also to the husband. The husband and the couple’s two children did not make separate claims for protection but relied upon the appellant mother’s claims.

Summary of background facts and the Tribunal’s reasons summarised

2    A central issue in the appeal is whether the Tribunal’s rejection of the appellant mother’s claims that her father-in-law hated her and wanted her killed provided an independent and standalone basis for the Tribunal’s ultimate conclusion that it was not satisfied that the appellant mother had a well-founded fear of harm, with the consequence that any other errors in the Tribunal’s reasoning concerning other claims were immaterial and non-vitiating. It is necessary, therefore, to pay close attention to the structure and content of the Tribunal’s reasons for decision in order to test that aspect of the Minister’s position in the appeal.

3    At [15] of its reasons for decision, the Tribunal summarised the appellant mother’s claims to fear harm, as a member of a particular social group in Pakistan, namely women, as further relating to the following two matters:

(a)    a claim that her father-in-law had threatened to kill her for insulting him by calling the police to an altercation in Australia in 2011; and

(b)    in Pakistan, a jirga, headed by her father-in-law, had declared that she is a “black woman” (kari) and must be killed. (A jirga is a tribal assembly which makes decisions according to Islam).

4    At [16] of its reasons for decision, the Tribunal further summarised the appellants’ claims and stated that, “For reasons set out in the discussion below”, the Tribunal found that the claims and evidence lacked credibility:

16.    The applicants claim that the wife’s father-in-law is a violent and controlling man who is feared by his family and who has been responsible for two murders. They claim that the wife’s father-in-law hates the wife and opposed their marriage and that this animosity and opposition, combined with an event in Australia in 2011, has led to him seeking an order from his village jirga to kill the wife in an honour killing. For reasons set out in the discussion below, the Tribunal finds the applicants’ claims and evidence lack credibility.

5    The Tribunal considered the claims in some detail in [17] to [59] of its reasons for decision. It did so under a general heading expressed as “Harm from father-in-law and jirga” and by dividing the claims into the following eight sub-categories:

(a)    Marriage;

(b)    Student dependent visa application;

(c)    Return to Pakistan in 2011;

(d)    Father-in-law’s visit to Australia;

(e)    Incident on 25 July 2011;

(f)    Harm from jirga;

(g)    Threats to wife’s family; and

(h)    Father-in-law’s violence.

6    The Tribunal accepted only relatively few parts of the appellant mother’s claims. For example, the Tribunal accepted that the father-in-law may not have wanted his son to marry the appellant mother while his son was still a student. The Tribunal also accepted that the appellant mother had in July 2011 called the police, who attended the family home in Melbourne, and were told by her that she had been assaulted by the father-in-law.

7    On the other hand, the Tribunal made adverse credibility findings on numerous other matters. These are most conveniently summarised by reference to the eight sub-categories described in [5] above.

8    (a) Marriage – As to the claim that the father-in-law had opposed the marriage (which the Tribunal considered and made findings in [17] to [24] of its reasons for decision), the Tribunal noted that the father-in-law had not asked for the wedding to be deferred and it found that he had attended it. It noted that the appellant mother’s mother-in-law and other members of the husband’s family had presented the couple with an engagement ring and it found that this would not have occurred against the father-in-law’s wishes. The Tribunal noted the evidence of one of the husband’s brothers, “S”, that he had attended the wedding in secret, but this was not accepted because it was found to be inconsistent with the appellant mother’s evidence that 30 or 40 members of her husband’s family had attended the wedding.

9    Significantly, the Tribunal also found at [23] that the appellant mother had sought to mislead it in relation to her dowry, which was characterised as a credibility concern and used to reject other aspects of her evidence. The Tribunal stated that the appellant mother had given evidence to the effect that the dowry was deferred and that she did not get anything, whereas the Tribunal noted that the couple’s marriage certificate (the nikahnama), which was in evidence before the Tribunal, stated that she had immediately received a significant payment in gold jewellery. This is an important matter in the appeal which will be discussed further below (see [82]) ff.

10    (b) Student dependent visa application – In that part of the Tribunal’s reasons for decision relating to the appellant mother’s student dependent visa application (i.e. [25]-[28]), the Tribunal did not accept the appellant mother’s claim that her father-in-law had reacted adversely when she told him in Pakistan in 2007 that she was expecting a baby and would move to Australia to join her husband who was studying there. She claimed that her father-in-law became angry when he heard the news and looked at her with hatred on his face and that he “went to hit her but hit his wife instead”.

11    The Tribunal stated at [28] that the father-in-law’s financial support for the appellant mother’s student dependent visa application was “inconsistent with the claim that he hated the wife and wanted the applicants to divorce and indicates that he supported and assisted the wife to join her husband in Australia”.

12    (c) Return to Pakistan in 2011 – In that part of the Tribunal’s reasons relating to the return to Pakistan in 2011 of the appellant mother and her husband (which is dealt with by the Tribunal in [29] to [31] of its reasons for decision), the Tribunal noted that they had returned to Pakistan on 13 February 2011 to attend the wedding of the husband’s brother. The appellant mother claimed that she personally did not attend the wedding because her family had not been invited and also because her father-in-law would be there. She said she had no contact with her father-in-law during that visit. The Tribunal did not accept these claims (at [31]), relying on the credibility concerns it had expressed above (which necessarily includes the credibility concerns expressed previously in [23] of the Tribunal’s reasons relating to the appellant mother’s evidence concerning the dowry):

31.    Because of the credibility concerns in the evidence above the Tribunal does not accept that the applicants had no contact with the husband’s father from 2008 until 2011 or that the wife did not attend the wedding or that she had limited contact with her father-in-law because of animosity. There is no evidence of any animosity between the wife and her mother-in-law and, for the reasons set out above the Tribunal does not accept that there was animosity between the wife and her father-in-law. Further, the husband’s father applied for a tourist visa to Australia in Islamabad on 28 February 2011 which is inconsistent with the claim that he was hostile to the wife.

13    (d) Father-in-law’s visit to Australia – The claims relating to the visit of the father-in-law to Australia were considered and rejected by the Tribunal in [32] to [36] of its reasons for decision. The claims that the father-in-law, who allegedly hated the appellant mother and opposed the marriage, applied for a visa and arranged to come to Australia for a six month visit without the knowledge of the appellant mother and her husband in order to “cause problems for them”, was rejected as “implausible”. Claims that the couple were unaware of the father-in-law’s plans to visit them in Australia were rejected by the Tribunal because the father-in-law’s tourist visa application included a letter dated 5 March 2011, apparently written by the husband, in which he invited his father to visit the family in Australia. This invitation was found by the Tribunal to be inconsistent with the claims. The Tribunal rejected the husband’s explanation that the letter was a fake and that his father must have obtained other documents relating to the couple’s lives in Australia from the husband’s brother. The Tribunal found that the appellant mother and her husband were aware of the father-in-law’s intended visit and that the husband actively supported the visit by providing a letter of invitation and other information concerning his offer to provide food and accommodation. The Tribunal concluded in the final sentence of [36] that the father-in-law’s visit to Australia for six months, when he stayed with the couple, was inconsistent with the claim that he hated the appellant mother and opposed her marriage. The Tribunal’s findings concerning the claim that the father-in-law hated the appellant mother is an important matter in the appeal and is discussed further below (see [98]-[100]).

14    (e) Incident on 25 July 2011 – In that part of the Tribunal’s reasons dealing with the incident on 25 July 2011 ([37]-[45]), the Tribunal noted the appellant mother’s claims that her father-in-law constantly criticised her during his visit to Australia, told her husband that she was “no good”, threw crockery at her and looked at her “with hate”. The Tribunal described the wife’s claim of the incident as involving her father-in-law grabbing her by the hair, pushing her and hitting her. She said that she called the police because her father-in-law was out of control and she told them that her father-in-law had been beating her for two months. She said that she could not make the police understand. The appellants provided several documents relating to the incident, including a police patrol duty sheet; a police event chronology; and an unofficial transcript of the wife’s 000 call in which she stated that she had been beaten for two months, including in front of her husband, and also that her husband was threatening to divorce her. The Tribunal noted that the police did not accept that the appellant mother had been hit. The Tribunal summarised the husband’s evidence concerning the incident, which was to the effect that he had told the police that he believed that his wife was assaulted and that he would try and sort it out and would ask his father to leave as soon as possible.

15    The Tribunal noted at [42] that the father-in-law remained in the house for a further three months without further incident. It also noted the wife’s evidence that, during this time, she remained in her room or went out and only came home when her husband was there. When asked why the father-in-law was not asked to leave the house, the Tribunal noted her statement that she was scared for her family in Pakistan as he could have had them killed and that her husband had told her that his father had killed his own brother’s wife.

16    In view of the significance in the appeal of the Tribunal’s reasoning and findings relating to the 25 July 2011 incident, and in particular to the Minister’s contention that [45] is “foundational” and provides a standalone basis for the Tribunal’s ultimate decision, it is desirable to set out in full [43] to [45] of the Tribunal’s reasons for decision (emphasis added):

43.    The Tribunal noted that it is unlikely her father-in-law would have stayed with her for three months after the incident if he was so insulted and angry by her call to the police that he is now planning to kill her. The wife stated that he stayed to psychologically torture her and that he talked to her with more hate after the incident. The husband stated that his father was still controlling the situation because the wife was considered to have a mental disorder. When asked if he took any steps to protect his wife, he stated that he told her to stay in her room and to call him if she had any problems.

44.    The Tribunal accepts that an altercation occurred on 25 July 2011, that the wife called 000 and reported being assaulted and that the police attended. The police notes indicate that the husband did not support her assault claim and that the police did not believe she had been assaulted and were concerned for her mental health. The wife made several references to divorce threats in her 000 call suggesting that an argument had occurred between her and her husband. The Tribunal places weight on the police view as they were present on the night and interviewed the parties. Even if the wife was assaulted during an argument on that occasion, the Tribunal does not accept that it was part of a pattern of hate or abuse directed towards her by her father-in-law. For the reasons above, the Tribunal does not accept that there was a history of anger or animosity towards the wife by her father-in-law.

45.    The husband claims in his written statement of 2 December 2014 that his father was angry with him after this incident because he did not support his father. The Tribunal does not accept this claim as the husband did support his father to the police. The Tribunal does not accept that the wife’s father-in-law was so angered or dishonoured by her call to the police that he now wishes to kill her given that he continued to stay with her and the husband for a further 3 months after this incident. The Tribunal does not accept that he would have remained in Australia if he had felt dishonoured as claimed. The Tribunal considers that the incident on 25 July 2011 was an isolated event and does not accept that there is a real chance that the wife will be assaulted by her father-in-law in Pakistan now or in the reasonably foreseeable future.

17    (f) Harm from jirga – The Tribunal’s consideration of, and findings concerning, the claims relating to the jirga are set out in [46] to [53] of the Tribunal’s reasons for decision.

18    The Tribunal noted the appellant mother’s claims that her father-in-law had called his local jirga to kill her because she brought shame on him by calling the police. She claimed that the father-in-law, who had held a very senior corporate position as vice president of a particular bank in Pakistan and who had two brothers who held senior positions in the Pakistan civil service, was the head of the local jirga.

19    The Tribunal noted in [48] of the husband’s evidence that honour killings were not confined to illicit relationships. It also noted some of the country information in evidence before it relating to violence against women in Pakistan. It noted that the phrase “karo kari” is a term used in the province in which the father-in-law lived and referred to an honour killing by reference to persons having dishonoured the family. It noted that the Women’s UN Report Network stated that a “karo kari” can happen independently “but often involves the judgment of a jirga, being the only judiciary and administrative forum available in rural areas especially”.

20    The Tribunal noted at [49] that another country information source, the Aurat Foundation’s Annual Report covering the calendar year 2010, described honour killings as “deeply rooted in patriarchal/tribal traditions where males are looked on as the sole protectors of females; and because of this duty conferred on the man, he has complete control over the female”.

21    The Tribunal noted that, during the interval between the Tribunal’s first and second hearings, the husband’s brother, “A”, had provided a written statement in which he said that his father hated the appellant mother, was furious that she had called the police and had promised to kill her. “A” gave evidence at the second Tribunal hearing to the effect that his father had called a meeting of the jirga soon after he had returned to Pakistan in 2011 and had alleged that the appellant mother had called the police against him, she was not of his family and she had had illicit affairs with other men such that the jirga had decided that she should be killed in the name of honour. The Tribunal noted that there had been no previous allegation that the appellant mother had had illicit affairs.

22    It is convenient to set out the entirety of [52] and [53] (omitting footnotes) because they contain the essence of the Tribunal’s reasons for not accepting the appellant mother’s claims relating to the apprehended honour killing (emphasis added and note also that the paragraphs have been edited to remove any information which might reveal the appellants’ identities):

52.    The Tribunal noted that [X] is not a remote tribal village but is a small city of 1 million people about 4 hour’s drive from Karachi with government representation and administration at the national, provincial and local levels indicating that it is unlikely that a jirga would have any role. The Tribunal also noted that the husband’s father is educated and urban, has held a very senior corporate position (vice president of [a Pakistani bank]) and has brothers who hold senior government positions and is therefore unlikely to have sought a Karo Kari from a jirga given that honour killings are a crime in Pakistan and jirgas are considered illegal by superior courts.

53.    The Tribunal does not accept that the wife’s father-in-law called a jirga meeting when he returned to Pakistan in October 2011 and demanded that she be killed. For all of the reasons above, the Tribunal does not accept that the wife’s father-in-law hates the wife or felt so dishonoured by her action in calling the police that he sought to have her killed when he returned to Pakistan. Further, the Tribunal does not accept that the wife’s father-in-law, an educated man who held a senior corporate position and whose brothers hold senior government positions, would publicly instigate an unlawful killing. Further, the Tribunal does not accept that a tribal jirga (which exercises a judicial and executive function in relation to tribal disputes) would operate or have any role or influence in a small city of 1 million people with functioning government and administrative agencies. Further, the Tribunal considers it implausible that the husband’s father allegedly called the jirga meeting in late 2011 but [S] did not tell the applicants about it until early 2013; and, the Tribunal finds [A’s] evidence that his father told the jirga that the wife had illicit relationships to have been concocted to justify the karo kari claim after the Tribunal noted that karo kari honour killings usually arise from illicit sexual or romantic relationships and places no weight on his evidence. Neither the applicants or [S] or [A] in his written statement made this claim prior to [A’s] evidence at the second hearing. For all of the reasons above, the Tribunal does not accept that the wife’s father-in-law or a jirga has labelled the wife kari and ordered that she be killed or that anybody from the jirga is authorised to kill her.

23    As noted above, the Tribunal did refer to some country information in support of its rejections of the claims relating to the appellant mother’s fears that she would be the victim of an honour killing. The appellants complain that parts of the country information, which was not specifically referred to by the Tribunal, were inconsistent with its findings of fact.

24    (g) Threats to wife’s family – The Tribunal’s consideration of, and findings in respect of, the claims relating to threats to the appellant mother’s family are set out at [54] to [56] of the Tribunal’s reasons for decision. Reference was made to a written statement dated 18 August 2014 in which the appellant mother’s mother said that she had been receiving messages from callers asking when her daughter would return to Pakistan “so we can take our revenge because she is kari”. The mother also claimed that she had nothing to do with her daughter now because the father-in-law had called her to appear at the jirga last year and made her swear on the Koran to disown her daughter otherwise she and her husband would be killed. The Tribunal summarised the oral evidence given by the appellant mother’s mother at the hearing. The Tribunal stated at [56] that, because it did not accept that the father-in-law went to the jirga to have her declared kari and have her killed “for the reasons set out above”, it did not accept that her family had received threats in the way alleged by her mother.

25    (h) Father-in-law’s violence – In the section of the Tribunal’s reasons relating to the father-in-law’s alleged violence ([57]-[59]), the Tribunal referred to the claim that he was a “violent and controlling man and that everyone is scared of him”. It also made reference to a written statement provided by “S” which claimed that his father (i.e. the appellant mother’s father-in-law) beat him and his mother mercilessly and that no one had the courage to protect his mother. “S” stated that his father “has high level contacts and is powerful and influential and can act with impunity because his brother is a police superintendent”.

26    The Tribunal found at [57] that it did not accept that the father-in-law is violent and controlling and no one can act against him. The Tribunal said that this claim was inconsistent with earlier claims that the husband’s mother had met with the appellant mother and her family and given her a ring without his consent and that the husband insisted on them marrying despite his father’s objections. The Tribunal also stated that the husband and his brothers were “grown men” and there was no apparent reason why they could not intervene to protect their mother or themselves or the appellant mother if the father-in-law was violent as claimed.

27    The Tribunal then made findings in respect of the claims that the father-in-law had killed two people. These claims were not accepted because the Tribunal described them as being “extreme in nature” and it considered that it was “unlikely that an educated, professional man holding a senior corporate position would kill 2 women as claimed or that any such killings, had they occurred, would not have been reported or investigated”. The Tribunal rejected the claims that the father-in-law’s brothers had been involved in covering up these alleged murders. The Tribunal stated at [58] that, because it had found that the appellant mother and her husband were not credible witnesses in relation to their other evidence, this undermined the claims relating to the father-in-law’s violence. The Tribunal said that the claims had been fabricated to strengthen the claimed risk of harm to the appellant mother.

28    On the question of the appellant mother’s mental health, which the Tribunal considered as a separate topic at [60] to [66] of its reasons, the Tribunal accepted that she was suffering from post-partum depression and it said that it took this into account in assessing her evidence. The Tribunal stated that it did not rely on minor inconsistencies in her evidence which might be attributable to her condition or medication, but the Tribunal found that it did not consider that the appellant mother’s condition corroborated her claim to fear harm from her father-in-law.

29    Tribunal’s conclusion on future harm – At [67] and [68] of its reasons for decision, the Tribunal stated its conclusions (emphasis added and noting the references in both paragraphs to “For all the reasons [set out] above”):

67.    For all of the reasons set out above, the Tribunal does not accept that the wife faces a real chance of serious harm from her father-in-law or members of a tribal jirga because she has insulted or dishonoured her father-in-law. The Tribunal therefore does not accept that the wife has a well-founded fear of persecution now or in the reasonably foreseeable future because of her membership of a particular social group of women in Pakistan or for any other Convention reason.

68.    For all of the reasons above, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, she will suffer significant harm from her father-in-law or members of a jirga because she insulted or dishonoured her father-in-law or because he hates her or because he opposes her marriage or because of her mental health condition.

Summary of primary judge’s reasons

30    The primary judge's reasons for dismissing the appellants’ judicial review application are reported as ARG15 v Minister for Immigration and Border Protection [2016] FCCA 1086. As mentioned above, the husband was also a party in that judicial review proceeding, but did not appeal the primary judge's decision. The appellants did not have legal representation in the FCCA. They were represented by the appellant mother, who was assisted by an interpreter.

31    It was alleged in the judicial review application that the Tribunal's decision was “affected by an error of law” and that the appellants were denied procedural fairness. It is evident from the primary judge's reasons for judgment that the primary complaints raised below related to numerous typographical and other factual errors made by the Tribunal, as well as a failure by it to make a recording of “S’s” oral evidence. The primary judge described the number of typographical and other errors, including the failure to record “S's” oral evidence, as “most unfortunate”, but she concluded that the errors did not rise to the height of jurisdictional error. Her Honour also held that the errors "could not have affected the outcome of the decision".

32    On the specific issue of whether the Tribunal had understood the evidence about honour killings and had misapplied it as alleged by the appellants, the primary judge stated at [27] that the Tribunal had considered the country information in the Court Book. Her Honour noted the Tribunal's finding that the father-in-law and his family lived in a city of one million people, which was not a remote village, and that this, together with his high level of education and position, informed the Tribunal's refusal to accept that there would have been a jirga. The primary judge observed at [30] that it was clear from the country information in the Court Book that the information was "broader" than that described by the Tribunal, but the primary judge found that, on a fair reading of the Tribunal's decision:

…

it is quite clear that the Tribunal considered the country information before it and that the decision of the Tribunal did not rest on the country information alone.

33    The primary judge reasoned that the issue of the weight and reliance the Tribunal put on country information was part of the Tribunal’s fact-finding function and not the Court’s.

34    There are several other statements in the primary judge’s reasons for judgment along similar lines. For example, in [21], with reference to the Tribunal’s adverse credibility finding against the appellant mother regarding her evidence concerning the dowry, this was described as “an issue about credibility which is an issue for the Tribunal not this Court”.

35    With reference to the incident on 25 July 2011, the primary judge found at [35] that it was open to the Tribunal member to use the police records of the incident in the way that he did and that it “was exclusively for the Tribunal member and not this Court to assess the applicant’s credibility” (citing McHugh J’s judgment in Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 74 ALJR 405 (Ex parte Durairajasingham), where his Honour observed (at [67]) that a finding of credibility “is the function of the primary decision-maker par excellence”). These statements are addressed below (see [82] to [83]).

The appeal to this Court

36    The appellants were represented by pro bono counsel (Ms Costello together with Ms Batten). The proposed amended notice of appeal raised the following five grounds of appeal.

1.    The Tribunal erred by making findings that were not based on probative evidence; and which were legally unreasonable.

Particulars of findings made unreasonably/based on no probative evidence

a)    Jirgas did not operate in and had no role in the Pakistani city of [X].

b)    Jirgas did not operate in and had no role in Pakistani cities of 1 million people.

c)    Jirgas did not operate in and had no role in Pakistani cities that had government representation and administration at the national, provincial and local levels.

d)    Educated, high status men in Pakistan with powerful relatives would not instigate honour killings.

e)    Educated, high status men in Pakistan with powerful relatives would not instigate killings by jirgas.

f)    Educated, high status men in Pakistan with powerful relatives would not kill women.

g)    If an educated, high status man in Pakistan with powerful relatives killed a women it would be reported to police and investigated.

h)    Honour killings in Pakistan usually arose from illicit sexual or romantic relationships.

2.    The Tribunal erred by failing to consider country information provided by the Appellants’ solicitor.

3.    In breach of s.424(1) of the Migration Act, the Tribunal ignored evidence that the Tribunal itself obtained. Namely, a statutory declaration from [AM] (the [M] Declaration) which was in the father-in-law’s visit visa application file obtained by the Tribunal. Further and alternatively, the Tribunal erred by failing to have regard to the [M] Declaration.

4.    The Tribunal erred by failing to have regard to the corroborating psychiatric assessment of the Appellant mother as suffering from post-traumatic stress disorder.

5.    The Tribunal erred by misapprehending the evidence and then use its erroneous findings about the evidence to make negative credibility findings.

Particulars

a)    The Tribunal misapprehended evidence of the Appellant mother in relation to her dowry, and then used its erroneous findings about the dowry to make negative credibility findings against her.

b)    The Tribunal erred by misapprehending evidence of the Appellant mother and her husband regarding the father-in-law’s knowledge of the wedding and then used those findings to make negative credibility findings against them.

c)    The Tribunal erred by misapprehending the evidence of [S] regarding attendance at the wedding, and using those findings to make negative credibility findings against him to the extent it placed no weight on his evidence.

37    Grounds 1 to 4 were not advanced below, thus the appellants required leave to raise them on the appeal. The Minister consented to such leave being granted. At the commencement of the hearing, the Court granted leave for the appellants to rely upon the amended notice of appeal, it being expedient in the interests of justice to do so (see VUAX v Minister for Immigration and Multicultural Affairs [2004] FCAFC 158; 238 FCR 588 at [46] per Kiefel, Weinberg and Stone JJ).

38    During the course of the hearing, Ms Costello also sought leave to further amend the amended notice of appeal to raise the question whether the Tribunal had erred by not applying the real chance test to the appellants’ claims, as was said to be reflected in the Tribunal’s use of terms such as “unlikely” and “would” in [52], [53] and [58] of its reasons for decision. Ms Costello contended that this suggested that the Tribunal applied the wrong test, which was based on the balance of probabilities, rather than a test based on the proper notion of a real chance. Leave was refused because this ground was not run below and the Court considered that it had insufficient prospects to attract a grant of leave.

39    It is convenient to address each of the grounds of appeal in the amended notice of appeal in turn and to note, where relevant, the parties’ respective submissions.

Ground 1 – findings of fact legally unreasonable and without probative evidence

40    As stated above, the appellants claim that the Tribunal erred by making eight particularised findings of fact which they claim were not based on probative evidence or were unreasonable, in the sense that they were not open on the evidence before the Tribunal (citing Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 (SZMDS) at [135] per Crennan and Bell JJ).

41    The Minister submitted that there were three reasons why this ground of appeal should be rejected. First, in circumstances where the Tribunal was required by s 65(1)(b) of the Migration Act 1958 (Cth) (the Migration Act) to refuse to grant protection visas if it was not affirmatively satisfied that the criteria for the grant of that visa were met, the Tribunal did not necessarily have to make positive findings of fact in order not to be affirmatively satisfied that the criteria were met. Moreover, the Minister submitted that the Tribunal did not make the various positive findings alleged by the appellants; rather it simply concluded that it did “not accept” various claims made by the appellant mother, including the claims relating to the father-in law’s instigation of an honour killing and the alleged role of the jirga.

42    Secondly, the Minister submitted that the “no evidence” ground of review for jurisdictional error cannot be made out unless there was absolutely no evidence capable of supporting a finding of fact, and this had not been demonstrated by the appellants.

43    Thirdly, even if these obstacles were overcome, any error in fact finding by the Tribunal was not material or vitiating because, so submitted the Minister, there were other grounds relied upon by the Tribunal in concluding that it was not satisfied of the appellant mother’s claim to have a well-founded fear of harm. Thus, for example, the Minister submitted that, even if the Tribunal found that jirgas did not operate in the father-in-law’s city and there was no evidence to support that finding, the Tribunal gave other reasons for rejecting the appellant mother’s claim.

44    It is convenient to commence the consideration of ground 1 by reference to the reasons of the majority in SZMDS. Significantly, that case related to a judicial review challenge to a decision of the Tribunal which dismissed a review application in respect of an unsuccessful application for a protection visa (which is also the case here). The state of satisfaction as expressed in ss 36 and 65 of the Migration Act was held to involve a jurisdictional fact. Justices Crennan and Bell held at [130] that illogicality or irrationality may constitute a basis for judicial review in respect of the Tribunal’s decision concerning the state of satisfaction required under s 65, but their Honours emphasised that not every lapse in logic would give rise to jurisdictional error and the Court should be slow, although not unwilling, to interfere in an appropriate case. They added at [131] that it was insufficient that different minds might reach different conclusions on the jurisdictional fact and that the test for illogicality or irrationality:

… must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

45    After a detailed consideration of the Tribunal’s process of reasoning in the light of all the evidence before the Tribunal, Crennan and Bell JJ concluded at [135] that a logical or rational decision maker could have come to the same conclusion as the Tribunal:

On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims. There was. The Tribunal did not believe the first respondent's claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.

46    The other member of the majority in SZMDS, Heydon J, came to the same conclusion that the Tribunal’s reasoning was not illogical.

47    Subsequent authorities have established that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “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 against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal” (see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 (SZRKT) at [148] per Robertson J; SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; 202 FCR 1 (SZOOR) at [84] per McKerracher J (with whom Reeves J agreed); and Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52] per Wigney J). Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error (see also the observations of Beech-Jones J in BKE v Office of Children’s Guardian [2015] NSWSC 523 at [113] and the cases referred to therein).

48    Against that background, we will now consider in turn each of the eight particulars in ground 1, noting that the findings of fact which are the subject of those particulars appear to be based on what the Tribunal said in [52] and [53] of its reasons for decision (which are set out in [22] above). The findings relate principally to the Tribunal’s non-acceptance of the appellant mother’s claims concerning the jirga. The appellants contend that the findings are unsupported by probative evidence or are unreasonable because they were not open to be made on the basis of the evidence before the Tribunal.

49    (a) Jirga did not operate in and had no role in the father-in-law’s home town – The Tribunal found that the father-in-law’s home town was not a remote tribal village but a small city of one million people. The Tribunal referred to Wikipedia in support of that finding. And in [48] and [49] of its reasons for decision the Tribunal made express reference to country information which was to the effect that an honour killing often involved the judgment of a jirga, “being the only judiciary and administrative forum available in rural areas especially”. It also referred to country information which suggested that honour killings were “deeply rooted in patriarchal/tribal traditions”. Accordingly, there was at least some evidence to support the finding. We reject the appellant’s claim that it was not reasonably open to the Tribunal to make that finding in the light of that material or that the finding lacked probative evidence. For completeness, we should also add that the appellants have not satisfied me that the finding was illogical or unreasonable in the sense described in SZMDS.

50    (b) Jirgas did not operate in and had no role in Pakistani cities of one million people;

(c) Jirgas did not operate in and had no role in Pakistani cities but had government representation and administration at the national, provincial and local levels – It is convenient to deal with these two matters together because they both relate to the Tribunal’s findings in [52] and [53] in which the Tribunal found that the father-in-law’s home town was a small city of one million people which had government representation and administration at the national, provincial and local levels. Again, the Tribunal referred to Wikipedia in making these findings and, as noted above, earlier in its reasons for decision the Tribunal made reference in [48] and [49] to country information which provided some support for these findings. Accordingly, there was at least some evidence to support the Tribunal’s findings and the appellants’ claim that there was no probative evidence must be rejected. We also reject the appellants’ contention that the findings were not reasonably open on the evidence, nor were the findings irrational or illogical in the relevant sense.

51    For completeness, it might also be noted that the appellants’ particulars relating to these claims misstate the Tribunal’s findings. Those findings were not expressed in the absolute terms suggested by the relevant particulars. Rather, the findings were expressed in terms which made clear that the Tribunal considered that it was unlikely that a jirga would have any role as alleged by the appellants.

52    (d) Educated, high status men in Pakistan with powerful relatives will not instigate honour killings;

(e) Educated, high status men in Pakistan with powerful relatives would not instigate killings by jirgas;

(f) Educated, high status men in Pakistan with powerful relatives would not kill women; and

(g) If an educated, high status man in Pakistan with powerful relatives killed a woman it would be reported to the police and investigated – It is convenient to deal with these four matters together. The first thing to note is that one of the particulars is expressed in terms which misstate the Tribunal’s relevant findings in [52]. The Tribunal’s finding which is the subject of particular (d) is not expressed in the absolute and unqualified terms claimed by the appellants. Rather, it is expressed at a lower level, as is reflected in the Tribunal’s use of the word “unlikely” in [52]. Moreover, the finding as there expressed was not entirely lacking in supporting material because the Tribunal referred in footnotes 5 and 6 in [52] of its reasons for decision to the Pakistan Penal Code and US sourced country information.

53    The other particulars (i.e. (e), (f) and (g)) relate to the Tribunal’s findings in [53]. They are expressed in terms which are not qualified by any reference to “unlikely”, nor does the Tribunal make explicit or direct reference to any material which supports these findings. The findings the subject of particulars (d) to (f) might be viewed as borderline in terms of their legal validity, but we are not prepared to hold that it was not reasonably open to the Tribunal to make those findings in those terms or that the findings are illogical or irrational in the sense described by Crennan and Bell JJ in SZMDS. In effect, the Tribunal was explaining why it considered it to be implausible that a person in the particular circumstances of the father-in-law would be involved in arranging for the appellant mother to be killed in such a public process as that involved with the jirga, which would expose the father-in-law to investigation and a possible criminal prosecution. The findings may not be factually correct but that is not the test in a judicial review challenge. The findings may not also be consistent with other material which was before the Tribunal, including country information provided by the appellants, but again that is insufficient to make good the particular legal grounds relied upon by the appellants in respect of these findings. As will emerge, different issues arise under ground 2.

54    (h) Honour killings in Pakistan usually arise from illicit sexual or romantic relationships – This particular relates to [53] of the Tribunal’s reasons. As is made clear there, however, the finding was made in the context of the Tribunal’s consideration of the evidence of the husband’s brother “A” (the Tribunal’s reference in [48] to this being the evidence of the appellant mother’s husband may be in error, but nothing turns on this). This evidence of “A”, which was to the effect that the father-in-law told the jirga that the appellant mother had had illicit relationships was described by the Tribunal as “concocted” in circumstances where the evidence was adduced only after the Tribunal had commented at the first hearing that karo kari honour killings usually arose from illicit sexual or romantic relationships (see [48] of the Tribunal’s reasons for decision). Moreover, there was some probative evidence to support the Tribunal’s reasoning in the form of country information such as the Aurat Foundation Annual Report, to which the Tribunal made express reference in [49] of its reasons for decision. We reject the appellants’ contention that this finding was unreasonable, illogical or irrational in the relevant legal sense.

55    For all these reasons, ground 1 is rejected.

Ground 2 – failure to consider country information

56    This ground concerns the Tribunal’s failure to consider country information provided to it by the appellants’ solicitor and, in particular, a document entitled Home Office Country Information and Guidance on Pakistan: Women (updated on 14 July 2014) (the Home Office Report). This material, together with the written submissions prepared by the appellants’ solicitor, was provided to the Tribunal in advance of the Tribunal hearing which was scheduled to take place on 9 December 2014. The written submissions expressly referred to the parts of the Home Office Report concerning women in Pakistan who feared becoming the victim of an “honour crime”. The written submissions also included a claim that the appellant mother’s fear of harm if she were returned to Pakistan was supported by country information which “confirms the unwillingness and inability of police throughout Pakistan to assist in matters considered to be ‘family disputes’”. Under the heading “Conclusion”, it was submitted that the appellant mother faced not merely a real chance, but a likelihood of harm, if she were returned to her home region and that the “agent of harm” was her father-in-law. It was submitted that she would face harm in the form of physical acts of violence as had occurred in other reported “honour crime” cases in Pakistan. It was submitted that she feared that she would be killed by her father-in-law and that honour killings were widespread in Pakistan and, in particular, in her province. It was submitted that it is “well documented that the State does not adequately deal with protecting people at risk of ‘honour killing’ nor punish wrongdoers”. Towards the conclusion of the written submissions, attention was drawn to various attached documents, including the Home Office Report.

57    There was new and updated material in the Home Office Report about honour killings. The Home Office Report included cross-references to the Aurat Foundation report which was referred to by the Tribunal in its reasons for decision, as well as several other sources. Significantly, the Home Office Report included the following statements:

    while previously the risk of an honour killing was “likely to be confined to tribal areas… and is unlikely to impact on married women” … “more recent country of origin information indicates that the risk of honour killing in Pakistan is not restricted geographically or otherwise” ([1.3.7] of the Home Office Report) (Original emphasis);

    the “authorities may be unable or unwilling to provide protection for women fearing honour crimes” and amending legislation dated 2004 recognised that “offences committed in the name of honour is reported to be flawed and inadequately enforced” ([1.3.8]); and

    “jirgas have invoked death sentences against women for honour related crimes” and the “police have been reported to be ‘complicit’ with perpetrators of honour crimes to avoid filing cases or destroy evidence” ([1.3.8]).

Those statements were inconsistent with the material which was relied upon by the Tribunal in reaching its findings.

58    Other relevant parts of the Home Office Report, which were plainly relevant to an assessment of the appellant mother’s claims, were:

    the acknowledgment in [2.1.1] that the status of women in Pakistan may differ in accordance with their social position, however, patriarchal attitudes and deep-heightened rooted stereotypes concerning women’s roles and responsibilities discriminate against them and maintain their subordination within the family and society;

    the statement in [2.2.4] that injustice disproportionality arises for women who complain, particularly at local police stations in both rural and urban areas, and that complaints are brushed aside as private matters if they involve a family member;

    the statement in [2.2.9] that domestic violence was widespread and was typically committed by inter alia in-laws, sometimes resulting in death;

    the statements in [2.2.25] that jirgas are particularly influential in rural areas and were known to have invoked punishments against women, including death, for honour-related crimes and that, despite being considered illegal by superior courts, jirgas continue to operate and were considered legal by their communities; and

    the statement in [2.5.5] that while women are legally free to marry without family consent, they often faced ostracism or honour crimes and that there was no guarantee that the police would effectively intervene if a couple were threatened by family members. A US Department of State report for 2013 was cited which stated that “Although the government generally did not interfere with the right to marry, local officials on occasion assisted influential families in preventing marriages the families opposed”.

59    The Home Office Report stated that effective state protection was in general unlikely to be available for women fearing gender-based violence and detailed statistics were provided that 217 women were killed for “honour” in 2013 in the largest province, Punjab. There were 860 “honour killings” (mostly women) in the approximate 12 month period commencing 1 January 2012.

60    The significance of this new information in the Home Office Report was highlighted by what was said in the appellants’ solicitor’s written submission dated 2 December 2014, the relevant parts of which have been highlighted in [56] above.

61    We will now outline the relevant legal principles relating to the issue of the alleged failure of the Tribunal to consider the Home Office Report.

62    As Robertson J stated in SZRKT at [122] it is not always a jurisdictional error for the Tribunal in reviewing the rejection of a protection visa claim to ignore relevant material, including corroborative evidence. Rather, as his Honour observed at [112] by reference to the Full Court’s decision in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [77], whether the Tribunal is obliged to consider a document will depend on the circumstances of the case and the nature of the document. With specific reference to the situation where corroborative evidence is ignored, his Honour added that other relevant factors include:

(a)    the cogency of the evidentiary material; and

(b)    the place of that material in the assessment of the review applicant’s claims.

63    It is appropriate to apply these principles to the question whether the Tribunal’s evident failure to consider the relevant contents of the Home Office Report gave rise to jurisdictional error.

64    The Minister accepted that there is no specific reference in the Tribunal’s reasons for decision to the submission dated 2 December 2014 which was provided to the Tribunal or to the Home Office Report which accompanied it. The Minister submitted, however, that the mere failure by the Tribunal to refer to material did not mean that it was not considered, having regard to the fact that the Tribunal’s obligation under s 430 of the Migration Act to prepare a statement of reasons did not require it to identify or discuss each item of evidence to which it had regard. Relying upon Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 (Yusuf) at [346] per McHugh, Gummow and Hayne JJ, the Minister emphasised that the Tribunal’s obligation was to set out its findings of fact which it considered to be material to the decision and to the reasons it had for reaching that decision.

65    It may be accepted that, merely because there is no express reference to the solicitor’s submission or the Home Office Report information in the Tribunal’s reasons, does not necessarily mean that the matter was not considered by the Tribunal at all (see Minister for Immigration and Citizenship v SZGUR [2011] HCA 1, 241 CLR 594 (SZGUR) at [31] and Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 (SZSRS) at [34]). But as the Full Court further observed in SZSRS at [34]:

… where a particular matter, or particular evidence, is not referred to in the Tribunal's reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant's claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52].

66    The reference to MZYTS is a reference to the Full Court’s earlier decision in Minister for Immigration and Border Protection v MZYTS (2013) FCAFC 114; 230 FCR 431 (MZYTS). In that case, the Full Court found that the Tribunal had fallen into jurisdictional error by not considering the most recent country information which had been provided to it. The Tribunal’s reasons for decision contained no explicit reference to country information which had been provided to it by the visa applicant in a post-hearing submission. The Full Court stated at [52]:

In the present case, the issue is squarely whether the Tribunal's reasons do identify the material questions of fact necessary for it to address the claims made by the visa applicant, and how the evidence and material it has set out may be used to infer it has, or has not, addressed those claims. It is not, as in SZGUR, a procedural issue. Further, the omission cannot be sensibly understood as a matter considered, but not mentioned, as contemplated by French CJ and Kiefel J at [31] of SZGUR. The issue here was, as we have explained above, an essential integer of the visa applicant's claim; evidence of which was led to consolidate his claim and contradict information raised by the Tribunal at the hearing. In the particular circumstances of this claim, if the material had been considered, one could expect that it would be referred to, even if it were then rejected.

67    We consider that the same reasoning applies to the particular circumstances here. The solicitor’s submissions dated 2 December 2014 drew specific attention to various parts of the Home Office Report in support of the appellant mother’s claims concerning her fear of harm relating to the risk of an honour killing at the behest of her father-in-law, including the state’s inadequate protection of prospective victims and its failure to punish wrongdoers. The Tribunal’s findings of fact relating to the honour killings and jirgas reveal that the Tribunal regarded those facts as material and it set out various sources which it relied upon in making those findings of fact, while completely ignoring other more recent relevant material in the Home Office Report which cast a different light on the position. In these circumstances, we would not infer that the Tribunal did consider the country information provided by the solicitor but dismissed it as not being relevant or material – see SZSRS at [34] and MZYTS at [48]-[54]. It should be concluded that the country information was not considered (and not merely not mentioned) by the Tribunal.

68    There remain two further issues as to whether the failure of the Tribunal to consider the Home Office Report amounts to jurisdictional error.

69    First, was the information relevant and material? Secondly, was any error a jurisdictional error?

70    First, the relevant information in the Home Office Report was clearly relevant and cogent. On its face, the information was corroborative of the appellant mother’s claims. The report was prepared by the UK Home Office for the purpose of providing guidance to Home Office decision-makers on handling claims made by nationals/residents of Pakistan. The Report was prepared having regard to what was described as “a wide range of external information sources (usually) published in English” and that consideration had been given to “the relevance, reliability, accuracy, objectivity, currency, transparency and traceability of the information and wherever possible attempts have made to corroborate the information used across independent sources, to ensure accuracy”. There can be no question that the document was authoritative and current.

71    Secondly, for the following reasons, we consider that the Tribunal’s failure to consider the Home Office Report involved jurisdictional error. The task of evaluating the legal significance of the Tribunal’s failure to consider relevant material, such as the Home Office Report, is not one which is helpfully advanced by simply asking whether the facts here fit within previous fact situations in cases such as SZRKT, SZSRS or MZYTS. In my view, this case not only has strong similarities with SZRKT, but, more importantly, it also fits within the relevant legal principles identified there by Robertson J. The relevant material in the Home Office Report was cogent and more current as at the date of the Tribunal’s decision than the other country information which was relied upon by the Tribunal. The material was also centrally relevant to the appellant mother’s claims that she feared harm at the hands of her father-in-law having regard to his animosity towards her, the role of the jirga and the history of honour killings in Pakistan generally and in her region specifically. The failure to consider the country information also amounts to a jurisdictional error because the Tribunal failed to carry out the task of determining whether or not it had the requisite state of satisfaction under s 65 of the Migration Act, by reference to all the material before it, as was the case in MZYTS and SZSRS.

72    Mr Wood, who appeared for the Minister, described [45] of the Tribunal’s reasons for decision as “foundational”. As mentioned above, he submitted that this paragraph (which is set out in [16] above) provided an independent and standalone basis for the Tribunal’s decision to affirm the decision under review with the consequence that, even if jurisdictional error was demonstrated in relation to other parts of the Tribunal’s reasons, including its failure to consider the Home Office Report, those errors would be immaterial.

73    In my opinion, the Minister has overstated the meaning and effect of [45] in the context of the Tribunal’s reasons for decision as a whole. As McKerracher J emphasised in SZOOR at [102], the significance of how the Tribunal “framed its reasons” is significant in assessing whether or not a particular finding is material to the Tribunal’s ultimate conclusion.

74    It is evident from the terms of [53] of the Tribunal’s reasons for decision (which are set out in [22] above), that the Tribunal’s reasons for rejecting the appellants’ application for review were cumulative. It is significant that the reasoning in [45] is effectively repeated in [53], but it is accompanied in that latter paragraph by a series of additional findings, all of which are preceded by the word “Further”. In other words, the Tribunal relied upon a series of adverse findings in coming to its ultimate conclusion. No single finding was relied upon by the Tribunal in coming to that conclusion. That is made clear by the fact that in the final sentence of [53], the Tribunal refers to “all of the reasons given above”, which necessarily draws together all the various strands which are identified in that paragraph.

75    It should be added that the Minister’s position is weakened even further when regard is had to the way in which the Tribunal used the “credibility concern” it formed in relation to the appellant mother’s evidence concerning her dowry to reject several other aspects of her claims, including those relating to the alleged hatred of her by her father-in-law (see ground 5 below).

76    For these reasons, we do not accept the Minister’s submission that the Tribunal’s reasons in [45] provide an independent and sufficient basis for the Tribunal’s ultimate decision to dismiss the appellants’ application for review.

Ground 3 – breach of s 424(1)

77    This ground relates to the claim that the Tribunal failed to have regard to a particular document in the father-in-law’s tourist visa application file, which file the Tribunal “got” under s 424(1) of the Migration Act.

78    Section 424(1) provided:

424    Tribunal may seek information

(1)    In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

(2)    Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

(3)    A written invitation under subsection (2) must be given to the person:

(a)    except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)    if the person is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

79    The Tribunal obtained the father-in-law’s tourist visa application file before it made its decision on the review, thereby triggering the relevant obligation in s 424(1). As the Minister pointed out, however, the evidence that ultimately caused the Tribunal to conclude that it was not satisfied that the father-in-law had in fact arrived in Australia unannounced, as claimed by the appellant mother, included the husband’s letter dated 5 March 2011 which contained an invitation for his father to visit the family in Melbourne. The Tribunal did not accept the husband’s claim that this letter was a fake. That was a sufficient basis for rejecting the appellant mother’s claim that the father-in-law had arrived unannounced and s 424(1) did not oblige the Tribunal to refer to every other piece of evidence before it that might have led to a different conclusion (see NABD v Minister for Immigration and Multicultural Affairs [2002] FCA 384 at [33] per Emmett J, which decision was affirmed on appeal by the Full Court ([2002] FCAFC 249) and then by the High Court ([2005] HCA 29; 79 ALJR 1142). Moreover, as the Minister also pointed out, the statutory declaration by “AM” which was on the father-in-law’s tourist visa application file and which contained an invitation by “AM” for the father-in-law to visit him, was not inconsistent with the Tribunal’s finding that the husband made the invitation. The father-in-law’s tourist visa application stated that he wanted to visit his son and also that he had a friend named “AM” in Australia.

Ground 4 – the failure to have regard to corroborative evidence concerning PTSD

80    At the heart of this ground is the claim that the Tribunal did not consider a psychiatric report by Dr Katherine Sevar, which was provided to the Tribunal by the appellants’ representative.

81    This ground is rejected. Dr Sevar expressed no opinion to the effect that the appellant mother had PTSD, but she did opine that the appellant mother “has a moderate to severe major depressive illness in the post-partum period”. It is notable that the Tribunal’s reasons for decision contain a detailed discussion of Dr Sevar’s report at [60]-[66] and also that the Tribunal accepted that the appellant mother was suffering from post-partum depression and was receiving medication.

Ground 5 – misapprehension of evidence in making adverse credibility findings

82    The appellants contended that the Tribunal misunderstood the evidence regarding the appellant mother’s dowry in making critical adverse credibility findings. In particular, they submitted that the Tribunal had misapprehended evidence relating to the contents of the nikahnama which provided the basis for the Tribunal’s conclusion that the appellant mother had sought to mislead the Tribunal about the dowry.

83    Many of the relevant legal principles which guide the review or a judicial review of findings concerning credibility were recently discussed by the Full Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [36]-[44] per McKerracher, Griffiths and Rangiah JJ. They may be summarised as follows:

(a)    McHugh J’s oft quoted comments in Ex parte Dumairajasingham (which were cited by the primary judge in the proceedings here) to the effect that a finding on credibility is the function of the primary decision-maker (or Tribunal) par excellence, does not mean that such findings are not susceptible to review for jurisdictional error on several potential grounds;

(b)    the issue whether or not a credibility finding is tainted by jurisdictional error is “a case specific inquiry” and it is not one which should be analysed by reference to fixed categories or formulas (SZRKT at [77] per Robertson J);

(c)    in each case, what the decision-maker has decided must be analysed in detail in order to determine whether or not a jurisdictional error has occurred (SZRKT at [77] per Robertson J); and

(d)    without derogating from what is said above regarding the danger of relying too heavily on “fixed categories or formulas” (which includes the danger of blindly repeating McHugh J’s comments in Ex parte Dumairajasingham), adverse credibility findings might involve jurisdictional error on recognised grounds such as:

(i)    failure to afford procedural fairness;

(ii)    reaching a finding without a logical or probative basis;

(iii)    unreasonableness; and/or

(iv)    other grounds as discussed by Flick J in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; 233 FCR 451 at [20]-[21] and in SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31], as referred to approvingly by the Full Court in CQG15 at [40]-[42].

84    The application of these principles requires that close attention be given to [20] and [23] of the Tribunal’s reasons for decision, the revised transcript of the relevant exchanges between the Tribunal and the appellant mother relating to the dowry and to the translated terms of the nikahnama.

85    Paragraph 20 of the Tribunal’s reasons for decision is in the following terms (emphasis added):

20.    The applicants provided a nikahnama (marriage certificate). When asked who paid the dower of 1,000,000 rupees listed on the nikahnama, the wife stated that the dower was deferred and she did not get anything. The Tribunal noted that the nikahnama states that she was paid 1,000,000 rupees in gold jewellery and that 500,000 rupees was deferred. The wife stated that her husband sent money to her mother to buy a bracelet and his aunt gave her a bangle.

86    Paragraph 23 of the Tribunal’s reasons for decision contains the Tribunal’s serious finding that the appellant mother had sought to mislead the Tribunal about the dowry. The reference to the “wife sought to mislead the Tribunal” in this paragraph is a clear reference back to the Tribunal’s findings in [20]. Paragraph [23] is in the following terms (emphasis added):

23.    The Tribunal does not accept that the wedding was planned without the consent or knowledge of the husband’s father. The evidence above indicates that the husband’s father consented to the marriage and that his family participated in its arrangement. The Tribunal considers that the wife sought to mislead the Tribunal about the dowry, stating that it was not paid when the nikahnama states that she received a significant payment in gold jewellery. Given this credibility concern, the Tribunal does not accept that her mother paid for the wedding or that her father-in-law only attended briefly in casual clothes.

87    It is desirable to look more closely at the Tribunal’s reasoning and the available evidence relating to this “credibility concern”.

88    The Minister tendered in evidence on the appeal, without objection, a revised transcript of that part of the Tribunal hearing which related to this topic. It is desirable to set it out in full (noting that the symbol [•] signifies that the audio tape is unintelligible and could not be transcribed, and the tracked material indicates changes to the previous transcript of the hearing):

PAGE 147

MEMBER: And what did the wedding cost?

APPLICANT: 20,000 rupee or 35,000 rupee. 25,000 rupee?

MEMBER: 25,000 rupees?

APPLICANT: Not 20,000.

MEMBER: And how many people attended?

APPLICANT: 30-40 from his side and 100 from us, my brother's friends and my other good [ ] friends.

MEMBER: And is it usual for the wife's, the woman's family to pay for the wedding?

APPLICANT: In the Cindi tribe, The the tradition is that in-laws pay for everything. Given that Even the wedding dress is provided by the in laws, then [•]-my father is-in-law understood that, he was goinq to marry against his wishes, so he refused to finance anything.

MEMBER:·So, so.

APPLICANT: any finances. no and

assumed that he was going to made it in his [•] so he gives the money anyway, any finances.

MEMBER: So-who paid the dower? You received a dower of 1 million rupees. Who paid that? One million. Dower.

APPLICANT: Only written in the Nikah [•] [Note: approximation of what is being said] and dower [•] He never knewgive. [Note: Applicant and interpreter talking over each other].

MEMBER: According to the Nikah you've got a million paid and 500,000 deferred.

APPLICANT: [•] Translator speaking to applicant.

MEMBER: You've got a million paid in gold jewellery.

APPLICANT: [•] The Nikah Nama says that hHe has given me some as the jewellery and the rest he will give me later on

MEMBER: Yeah, so a million, the Nikah says, the Nikah [•]Nama says that you received 1 million rupees in gold jewellery .

APPLICANT: [•] Translator speaking to applicant.

MEMBER: One million. Are you saying eight or one?

APPLICANTTRANSLATOR: No. Oone.

MEMBER: One, sorry I thought--

APPLICANTTRANSLATOR: Ek is one in Urdu.

MEMBER: Oh I'm sorry.

APPLICANTTRANSLATOR: Ek is one.

MEMBER: Got it.

PAGE 148

APPLICANT: 1,100 dollars One, like it's 1,000 dollars.

MEMBER: Okay.

APPLICANT: Because my husband promised part-time job[•] to send some money to his mum to get some jewellery for me. But they only got me one necklace and my bangles got given by my husband's aunty which is not in-laws[•]. Sso they took it all back in the Nikah Nama that we are giving all this as a custom [•]the jewellery. Because they didn't have any property to give to me so even in the Nikah Nama something was saved[•]. My husband didn't have any other property. The last of mythe money has gone we never saw it.

MEMBER: Okay then the next thing you say is that, after the marriage, you've got after the marriage you just tell me that you never stayed in the wedding room, is that right?

89    While acknowledging that parts of the revised transcript remained unintelligible, it was submitted in this Court on behalf of the Minister that the appellant mother could not demonstrate on the balance of probabilities that the Tribunal’s summary in [20] of its reasons for decision was inaccurate or that there was a misapprehension of her evidence. The Minister submitted that the reference in the revised transcript to the appellant mother saying “He never give…” might provide some support for the Tribunal’s finding in [20] of its reasons for decision that the wife stated “that the dower was deferred and she did not get anything”. Mr Wood properly accepted, however, that given the limitations in the revised transcript, it was not possible to verify from the transcript whether the appellant mother had in fact said what the Tribunal found in [20] of its reasons for decision.

90    The nikahnama (i.e. marriage certificate), which was in evidence before the Tribunal (including a translation), contained the following relevant information (errors in original):

91    The Tribunal must have had [20] in mind when it concluded in [23] that the appellant mother had sought to mislead the Tribunal about the dowry ([23] is set out in [87] above). The Tribunal’s reference in [23] to the appellant mother having stated that the dowry was not paid, when the “nikahnama” stated that she had received a significant payment in gold jewellery, is plainly a reference to the Tribunal’s summary of her evidence as set out in [20] of the Tribunal’s reasons for decision.

92    It goes without saying that the Tribunal member’s finding that the appellant wife had sought to mislead it in her evidence about the dowry, is a very serious finding in its own right. It is also evident from [23] of the Tribunal’s reasons for decision that this finding underpinned the “credibility concern” which then caused the Tribunal to not accept the appellant mother’s claim that her mother had paid for the wedding or that her father-in-law only attended the wedding briefly dressed in casual clothes.

93    Notwithstanding the incomplete nature of the revised transcript which was tendered in evidence without objection, the exchanges recorded there provide no probative evidence to support this serious adverse credibility finding by the Tribunal. In particular, the relevant exchange occurred in the context of the Tribunal putting to the appellant mother that the marriage certificate recorded her having received a dower of one million rupees and she was asked by the Tribunal member who paid that. It is evident from her immediate response that she was saying that the prompt receipt of that amount was only written in the document, i.e. the nikahnama. The revised transcript then records the appellant mother as referring to the dower, it was then an unintelligible and untranslated portion of her evidence, and then she is recorded as saying “He never give”. In context, the reference to “He” is a plain reference to the father-in-law. While acknowledging the incomplete nature of the translation, on a fair reading of the revised transcript it is evident that the appellant mother was denying that the father-in-law had paid her the dower of one million rupees.

94    The revised transcript then records the Tribunal member repeating that the marriage certificate recorded the appellant mother as having “got” one million rupees and 500,000 rupees were deferred. The Tribunal then put it to the appellant mother, relying on what was stated in the nikahnama, that the appellant mother had “got a million paid in gold jewellery”, but she then explained that in fact none of the jewellery she had received had come from the father-in-law. She explained that all she received was a necklace and some bangles and that the necklace had been bought by her mother-in-law with money provided by the appellant mother’s husband and that the bangles had come from her husband’s aunt.

95    The evidence does not disclose the value of the necklace and bangles but the appellant mother is recorded in the revised transcript as saying that her in-laws did not have any property to give to her so, even by reference to the nikahnama, “something was saved”. Read fairly, the appellant mother gave evidence to the effect that, despite what was recorded in the nikahnama, she did not receive what was recorded there and her in-laws had “saved” for themselves the amounts there recorded. Moreover, read fairly, the revised transcript reveals that the appellant mother went to some lengths to explain that the limited amount of jewellery which she did receive came not from her father-in-law, but from other sources.

96    In those circumstances, it should be accepted that there was no probative evidence to support the serious finding made by the Tribunal in [23], which finding was then itself used by the Tribunal to make further adverse findings concerning the appellant mother’s claims that her own mother had paid for the wedding and that the father-in-law had only attended briefly in casual clothes. Alternatively, the finding is irrational or illogical in the sense described in SZMDS (see [44]-[47] above).

97    Equally significantly, the adverse credibility finding in [23] of the Tribunal’s reasons for decision must have formed part of what the Tribunal had in mind when it stated in [31] that, because of the “credibility concerns in the evidence above”, the Tribunal did not accept that there had been no contact with the father-in-law from 2008 until 2011 or that the appellant mother had had limited contact with her in-laws because of animosity. In particular, the Tribunal stated at [31] that, “for the reasons set out above”, it did not accept that there was animosity between the appellant mother and her father-in-law. In other words, the Tribunal’s finding in [51], which rejected the appellant mother’s claims that the father-in-law hated her was based in part upon the credibility concerns the Tribunal had regarding the appellant mother’s evidence relating to the dowry. In circumstances where the Tribunal has made a series of cascading adverse findings relating to the appellant mother’s credibility, which findings rely to some extent on the serious adverse credibility finding recorded in [23] relating to the dowry, the dependent findings are infected by the legal flaws in that initial adverse credibility finding.

98    It necessarily follows that, contrary to the Minster’s submission, the Tribunal’s non-acceptance of the appellant mother’s claim that there was a history of anger or animosity towards her by her father-in-law (see [44] of the Tribunal’s reasons for decision) is also similarly infected in circumstances where the Tribunal came to that conclusion on the express basis of “the reasons above”, which necessarily includes the reasons provided by the Tribunal in [20], [23] and [31].

99    In these circumstances, the relevant legal deficiencies in the Tribunal’s adverse credibility finding relating to the appellant mother’s evidence concerning the dowry cannot be isolated or confined in the manner suggested by the Minister. In view of the Tribunal’s reliance upon that finding to support other parts of its reasons for rejecting the appellants’ claims, the error necessarily affected those other parts. In the particular circumstances here, it should be concluded that the error was so serious and significant to the Tribunal’s rejection of the appellants’ claims as to amount to a jurisdictional error.

Conclusion

100    For these reasons, grounds 2 and 5 have been made out. The amended notice of appeal should be upheld, the orders of the FCCA be set aside and the matter remitted to the Tribunal for redetermination according to law. The Minister should be ordered to pay the appellants’ costs of the appeal, as agreed or assessed and also ordered to pay the appellants’ filing fees and court fees in relation to the proceeding below. Orders will be made accordingly.

101    The Court expresses its gratitude to Ms Costello and Ms Batten who, together with King & Wood Mallesons, agreed to represent the appellants on a pro bono basis.

Associate:

Dated:    9 November 2016