FEDERAL COURT OF AUSTRALIA

BDO15 v Minister for Immigration and Border Protection [2018] FCA 619

ORDERS

THE COURT ORDERS THAT:

1.    Leave is granted to amend the notice of appeal to include proposed ground 1A.

2.    Leave is refused to raise the new ground of appeal 1A.

3.    The appeal is dismissed.

4.    The appellant pay the first respondent's costs 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

BANKS-SMITH J:

1    The appellant appeals from the decision of the Federal Circuit Court made 18 January 2018 to dismiss an application for judicial review of the decision of the Refugee Review Tribunal (Tribunal) to affirm the decision of the delegate of the first respondent (Minister) to refuse a protection visa: BDO15 v Minister for Immigration and Border Protection [2018] FCCA 72.

2    The issue for consideration on the appeal is the application of the so-called 'what if I am wrong' test.

Background

3    The appellant is a citizen of Afghanistan who arrived in Australia as an irregular maritime arrival in July 2012.

4    The appellant applied for a Protection (Class XA) visa on 14 December 2012. The application was supported by a statutory declaration.

5    On 8 October 2013 a delegate of the Minister interviewed the appellant and submissions were made on his behalf by his representative.

6    On 27 March 2014 the delegate refused to grant the appellant a visa.

7    The appellant applied to the Refugee Review Tribunal (Tribunal) for review of the delegate's decision. The appellant's representative provided submissions in support on his behalf. The appellant attended the Tribunal hearing and gave evidence with the assistance of his migration agent and an interpreter.

8    On 30 May 2015 the Tribunal affirmed the decision of the delegate to refuse the application for a protection visa.

9    The appellant applied to the Federal Circuit Court for judicial review of the Tribunal's decision, but on 18 January 2018 the application was refused.

10    The appellant now appeals to this Court.

The protection claims

11    The appellant's protection claims are accurately summarised in the Minister's submissions to the following effect:

(a)    he is an Afghani citizen of Pasthun ethnicity and a follower of the Sunni Islamic religion, and lived illegally in Pakistan from 1988 until he departed for Australia in 2011;

(b)    his parents married without his mother's family's consent and were killed by his maternal uncles as a result of this and a property dispute;

(c)    following this he went to live with his paternal uncle in Peshawar in Pakistan and stayed there until he travelled to Australia;

(d)    his paternal uncle established a business delivering petrol from Pakistan to American and Coalition forces near Kabul. The appellant's brother helped in this business. The Taliban warned them to stop supplying fuel. In 2009 his paternal uncle and brother went missing on a fuel delivery trip;

(e)    the appellant opened a video shop and billiards hall in partnership with a friend. In October 2011 they received a letter from the Taliban accusing them of un-Islamic activity (selling alcohol, allowing gambling and selling inappropriate videos), following which their shop was burned down and they were taken and detained by the Taliban for 15 days;

(f)    they eventually escaped but his business partner was shot and killed by the Taliban while they were running away;

(g)    the appellant fears returning to Afghanistan because he will be in danger of being killed by his maternal uncles to stop him claiming the land which had belonged to his parents; because he will be killed by the Taliban because of his perceived religious and political views as an enemy of Islam for supporting foreign troops by delivering fuel to them; and because he will be killed by the Taliban because of the allegations that he was selling alcohol, allowing gambling in his billiards business and for distributing 'Islamically inappropriate' videos in his business.

The Taliban letters

12    I note from the record of the appellant's Irregular Maritime Arrival Entry Interview on 7 October 2012 that the appellant referred to having received two letters from the Taliban, on 5 October 2011 and 11 October 2011 respectively.

13    During the appellant's interview before the delegate in October 2013, the appellant indicated he had the original Taliban letters and was asked to produce them.

14    According to correspondence from his authorised representative to the (then) Department of Immigration and Citizenship, the appellant claimed to have given the original Taliban letters and a copy of his taskera (identity card) to Department officers at Curtin Immigration Detention Centre and was given photocopies, which the representative had sent for translation. The issue of whether the documents were forged arose before the delegate (a case officer apparently had said it is possible to get 'customised threatening letters from the Taliban'), but was denied on behalf of the appellant.

15    Translations of the Taliban letters were provided to the delegate. The relevant parts of those translations read as follows:

[5 October 2011]

We are sending this letter on behalf of Islam Army of Pakistan to [redacted].

Drinking alcohol, snooker and video films which caused distraction made common in our daily life; is against Islam religion and Pashto. This issue is keeping our youth far from Islam and Pashto traditions day by day.

So, hey our Muslim brothers selling alcohol, play variety of gambling games in snooker clubs and screening different films in video centres (indecent films) are clearly against Islam, and destroying our Islamic society.

Therefore, hey my Muslim brothers, as a Muslim brother I am advising you to shut down snooker and video shops as quickly as possible.

We are giving you five days, if you did not fulfil this order in 5 days then, we will have the right to inflict you physical and financial harm and damages.

[11 October 2011]

We are sending this letter on behalf of Islam Army of Pakistan to [redacted].

We have sent you both a letter and advised you to shut down indecent activities and lawlessness which you made common in the society.

It appears that you did not act what we told you, so both of should appear and attend our senior investigation council of Bara Kajoury on Friday after prayers.

In case of refusing your shop could be burnt, and you would be taken away and evacuating from your homes.

[sic]

16    The delegate did not accept that the appellant was threatened or kidnapped by the Taliban in Pakistan. The delegate rejected the appellant's explanation that the original Taliban letters had survived and been brought to Australia but that he had lost all of his other identity documents (including his original taskera and his marriage certificate) en route. The appellant said he kept the Taliban letters in his pocket. The delegate did not consider the explanation plausible, and noted the prevalence of such forged documents.

Before the Tribunal

17    The Tribunal received detailed written submissions in support of the appellant's protection claims from his migration agent prior to the hearing. The appellant attended the hearing and gave evidence. The Tribunal recorded that evidence in detail in its reasons.

18    In particular, the Tribunal noted the appellant's evidence to the following effect:

(a)    the appellant said his brother and uncle were killed as a result of distributing fuel to the Coalition in 2009;

(b)    the appellant had returned to Afghanistan twice, once for his wedding and once to 'sort out a land issue';

(c)    he fears returning to Afghanistan not because of any land dispute but because his maternal uncles might harm him, and that such disputes lasted generations in Afghanistan;

(d)    he claims he is in need of protection because he is perceived as having anti-Taliban views and that his uncle had been assisting foreign troops;

(e)    his uncle and brother were kidnapped and a ransom demanded that the family could not pay. Allegations were then made that the appellant was doing unacceptable things in the shop he operated;

(f)    the appellant denied serving alcohol or that gambling was permitted in his shop or that he distributed pornographic videos but said there was a video game in his shop. A fight over payment by a customer for using the video game led to him being reported to the Taliban;

(g)    as to the petrol distribution business, he said he drove a truck to the border on five or six occasions but his uncle drove it across the border;

(h)    the appellant said the Taliban warned him about alcohol, gambling and pornographic videos (in 2011). He said they sent him two letters. He said the letters containing threats were from a Taliban leader, Haji Mangal Bagh;

(i)    he said that he and his partner were taken and held for 15 days because they refused to report to the Taliban in response to the letters of threat and that the Taliban has its own court and decides who it will detain;

(j)    he then escaped through a window and was on foot while the Taliban members were on motorcycles and that while he was running away his best friend was shot and killed. He said he heard that the friend died from the friend's wife;

(k)    he ran away and someone let him hide in their house and he eventually got a taxi and travelled to Islamabad and then to Australia;

(l)    when asked if he had evidence to support the claim that he was in fact detained by the Taliban for 15 days the appellant referred to damage to his teeth that he said was caused by a machine gun and referred to the two letters that he had provided to the delegate;

(m)    when asked to comment on the delegate's finding that the letters could not be given weight as reliable evidence, and that the appellant had claimed to have lost other important documents but retained those letters, the appellant claimed that the letters are genuine;

(n)    when asked to comment on the delegate's finding that his wife and children travelled regularly to his home village, and that this undermined his claim to fear harm there, he said they travelled backwards and forwards because they were persecuted in Peshawar in Pakistan. He said they were deported on three occasions from Pakistan but returned to Peshawar because it was safer.

19    The Tribunal agreed to permit the appellant time to provide post-hearing submissions. The appellant provided a further statutory declaration dealing with the position of his wife and children, declaring that they have been deported but on each occasion returned to Pakistan.

Tribunal's findings

20    The Tribunal first summarised some relevant principles. Importantly in the context of this appeal, it noted (at [67]) the principle that:

… if the Tribunal makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true (See MIMA v Rajalingam (1999) 93 FCR 220).

21    The Tribunal found that the appellant provided credible evidence in certain aspects of his claim, but found that critical parts of his claims and evidence were fabricated or exaggerated, and that aspects of his evidence were vague, lacked detail and appeared rehearsed and confused.

22    As to the appellant's fear of harm for distributing fuel, the Tribunal accepted the appellant's claim that his uncle and his brother were killed as a result of their direct involvement in supplying fuel sourced from outside Afghanistan to Coalition forces in Afghanistan. However, it found that the appellant had an insignificant role and would not be targeted for harm in Pakistan or Afghanistan on this basis. Further, the Tribunal found that no threat had been made by the Taliban towards the appellant regarding his role in the fuel distribution business, taking into account that his uncle and brother disappeared in 2009 and the appellant had on his version of events not been threatened until the events relating to his billiards hall business in 2011.

23    As to the appellant's fear of harm by the Taliban in relation to his business activities and 'un-Islamic activities in Pakistan', the Tribunal found the appellant's account of accusations by the Taliban to lack credibility. The relevant paragraph from the Tribunal's reasons is as follows (references to 'the applicant' being references to the appellant in this appeal):

Harm in Afghanistan for reasons of un-Islamic activities

[75]    The applicant claimed that he opened a video shop and billiards hall in partnership with a Pakistani friend named [redacted]. He claimed that his business partner [redacted] began having problems with a man from the Barewal area in Pakistan, and that on 5 October 2011 he received a letter from the Taliban accusing him and [redacted] of selling alcohol in their business, of allowing gambling in the billiards hall and selling "sexy" or Islamically inappropriate videos in their business. The applicant also claimed that the letter told them to report to Taliban, and having failed to do so, some ten days later a group of people arrived in cars and attacked his ship and destroyed everything and burned down the shop. The applicant claims that he and [redacted] were taken and detained in a room by the Lashkare Islam Taliban for 15 days. The applicant also claims the Taliban in Afghanistan and Pakistan will kill him because of the allegations that he was selling alcohol, allowing gambling in his billiards business for distributing "Islamically inappropriate" videos in his business in Pakistan. The applicant claims there is a close connection between the Taliban in Pakistan and Afghanistan and they are all part of the same organisation and there is nowhere in either Afghanistan or Pakistan where he would live safely because he would be tracked down. The Tribunal found the applicant's account of the accusation by the Taliban of selling alcohol, permitting gambling, and distributing unacceptable videos to lack credibility. It found the applicant's account of his claimed 15-day detention and the claimed escape appeared to be rehearsed and unconvincing. When the Tribunal put to the applicant the delegate's findings over the suspect nature of the letters, and when it put its similar concerns over whether the letters were genuine, the applicant merely replied that the letters are genuine and that the villagers could confirm the risk he faces from the Taliban. The Tribunal is not satisfied that any significant evidentiary weight should be placed on the letters. The Tribunal does not accept the applicant's account of escaping in the circumstances, and being shot at and getting away as credible as his account appeared rehearsed. Having regard to the country information cited in this decision record, in particular the country information from the European Asylum Support Office report of December 2012, and the UNHCR Eligibility Guidelines, dated 6 August 2013, in the treatment of those perceived as contravening the Taliban's interpretation of Islamic principles, the Tribunal finds that if the applicant and his partner had been charged with the un-Islamic activity claimed, they would have been treated more summarily than being held for 15 days without adequate security, which the applicant claims permitted their escape. The Tribunal therefore does not accept the applicant is regarded by the Taliban in Pakistan as un-Islamic, or an infidel, or a person who should be targeted for harm on religious grounds. Furthermore, it is not satisfied he faces a real chance of serious harm on this basis from the Taliban in Afghanistan now, nor in the reasonably foreseeable future, should he return there. (emphasis added)

24    As to the appellant's fear of harm in relation to the family property dispute, the Tribunal found that in light of the appellant's evidence that his wife and children had returned to his home village on three occasions and not been harmed, that he had returned to his village and not been harmed, and that his parents' property had been sold and the proceeds distributed, there was no ongoing property dispute and no risk of serious harm to the appellant for this reason.

25    As to the question of harm upon returning to Afghanistan after a prolonged absence in Pakistan and Australia, the Tribunal took into account country information and accepted that his family face a risk of harm due to generalised violence, but did not consider the appellant or his family had any greater vulnerability than the rest of the Afghan population to the generalised violence in Afghanistan.

26    The Tribunal did not consider that harm from generalised violence amounted to Convention-based persecution. Such generalised violence is not systematic or discriminatory and did not meet the statutory requirement then prescribed by the Act.

27    Even allowing for danger on the roads to his village, it did not accept the appellant faces a real chance of being abducted and killed for his imputed religious beliefs, his imputed political opinions or for any other Convention ground.

28    It did not consider the appellant's fears about returning to Afghanistan and any difficulties in obtaining employment meant he faced a real chance of serious harm.

29    The Tribunal was not satisfied that the appellant is a person in respect of whom Australia has protection obligations under the Refugees Convention, and for the reasons set out with respect to that claim, it was not satisfied that there were substantial grounds for believing that as a result of him being removed to Afghanistan there was a real risk he will suffer significant harm. Therefore, it also found that Australia does not have protection obligations to the appellant.

30    The Tribunal affirmed the decision of the delegate.

Before the Federal Circuit Court

31    The appellant appealed from the decision of the Tribunal to the Federal Circuit Court. The appellant pursued two grounds of appeal, as follows:

1.    The Tribunal failed to properly consider an integer of the applicant's claim.

2.    The Tribunal failed to properly consider a claim which arose squarely on the facts, namely whether the applicant was at risk on account of being a person imputed to either support coalition forces or as a person who gave support to coalition forces.

32    The integer referred to was said to be the failure to consider the appellant's claim that his uncles may report him to the Taliban as a person who gave assistance to foreign forces.

33    Both grounds were dismissed by the primary judge (a third ground was not pursued).

34    Because of the manner in which the appeal proceeded, it is not necessary to consider the primary judge's reasons in any detail.

Leave to raise new ground of appeal

35    The appellant seeks to rely only on a ground not relied upon before the primary judge. The sole ground of appeal is as follows:

(1A) The Federal Circuit Court erred in not finding that the Tribunal's decision was vitiated by jurisdictional error because, in making an equivocal primary finding at [75] that the Tribunal 'was not satisfied that any significant evidentiary weight should be placed' on warning letters said to have been received by the appellant from the Taliban, the Tribunal was required to (but did not) 'take into account the chance that the [appellant] was so [threatened] when determining whether there is a well-founded fear of future persecution', therefore constructively failing to exercise jurisdiction.

36    Leave is required as this ground of appeal was not raised before the primary judge.

37    A party may rely on an argument not raised below where it is expedient in the interests of justice for the argument to be raised, notwithstanding that it is generally undesirable that a party leave it to the appellate stage to raise arguments for the first time. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [48]; Hossam v Minister for Immigration and Border Protection [2016] FCA 1161 at [39]-[41].

38    The appellant submits that the Minister would suffer no prejudice and that there is nothing blameworthy in the appellant's conduct of the litigation in the court below. The consequences for the appellant if he were to be repatriated are serious and that to the extent the proposed ground reveals jurisdictional error, it would not be in the interests of justice to expose the appellant to such risk.

39    The Minister says that the appellant has not provided any sufficient explanation for his failure to raise the proposed ground in the Federal Circuit Court. The only explanation given by the appellant in his affidavit affirmed on 6 May 2018 is that 'I relied on the expertise of my legal representative to advise me on any grounds of review'. The appellant was legally represented before the Federal Circuit Court by the same solicitors who act for him in this appeal. There was no reason why the proposed ground could not have been raised before the court below.

40    The Court is aware of what may be at stake for claimants with genuine claims, and so must be properly cautious in refusing applications solely on the basis of the need for finality of litigation: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 at [165]. In this case, I do not consider there is any real prejudice to the Minister (and his counsel properly did not contend otherwise). It is not clear to me why the appellant's solicitors chose to raise the new ground on appeal when they could have raised it before the Federal Circuit Court. However, in the end the question of leave in this matter cannot properly be answered without consideration of the merits of the proposed ground.

Consideration of the ground of appeal

41    The appellant's ground of appeal relies on what has been termed the 'what if I am wrong' analysis.

42    In MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123; (2010) 117 ALD 441 at [95]-[96], Keane CJ, Perram and Yates JJ summarised the principles as follows:

In Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 Sackville J (with whom North J agreed) analysed the question of decision-making in migration cases. His Honour considered Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 and Re Minister for Immigration and Multicultural Affairs, Ex Parte Abebe (1999) 197 CLR 510, for the purpose of addressing the requirement of whether an applicant for a protection visa has a well-founded fear of persecution. His Honour (at [60]-[67]) distilled a number of principles from those decisions, including the following:

(a)    There are circumstances in which the Tribunal must take into account the possibility that alleged past events occurred even though it finds those events probably did not occur. This is because the Tribunal must not foreclose reasonable speculation about the chances of a hypothetical future event occurring.

(b)    In this connection it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. Therefore, if the Tribunal is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering whether the applicant has a well-founded fear of persecution.

(c)    Reasonable speculation may require the decision-maker to take into account the chance that past events might have occurred, even though the decision-maker thinks that they probably did not.

(d)    There is no reason in principle and nothing in the reasoning of the High Court in those cases that the Tribunal must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of convictional confidence that the findings are correct.

(e)    Similarly there is nothing in the reasoning of the High Court which permits a Court exercising powers of judicial review to "impute" to the Tribunal a lack of conviction or confidence in its findings of fact, such as to warrant a holding that the Tribunal should not or could not have relied on those findings to hold that the applicant's fear of persecution was not well-founded. To do so would be to engage in merits review.

(f)    In general, the question whether the Tribunal should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the Tribunal's own reasons. If a fair reading of the reasons as a whole shows that the Tribunal itself had no real doubt that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong.

As to the last of these principles, his Honour said (at [67]):

… Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the [Tribunal's] own findings to be pursued. A "fair reading" of the reasons incorporates the principle that the [Tribunal's] reasons should receive a "beneficial construction" and should not be "construed minutely and finely with an eye keenly attuned to the perception of error": Wu Shan Liang, at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, at 287. Only if a fair reading of the reasons allows the conclusion that the [Tribunal] had a real doubt that its findings on material questions of fact were correct, might error be revealed by the [Tribunal's] failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the [Tribunal] had not undertaken the required speculation about the chances of future persecution.

43    At this point I note that the emphasised passage from [75] of the Tribunal's reasons included above is central to the determination of the appeal. The reference in the ground of appeal to the Tribunal's 'equivocal primary finding' that it was 'not satisfied that any significant evidentiary weight should be placed on the letters' is a reference to that statement in the passage.

Submissions

44    The appellant's submissions rest primarily on the contrast between the Tribunal's rejection of the appellant's account of his 15 day detention, and what the appellant says is the Tribunal's finding in the same passage that the Taliban letters must have some probative weight. That finding is said to arise by inference from the fact that the Tribunal did not reject the authenticity or receipt of the Taliban letters outright, but said only that it was not satisfied they had any 'significant evidentiary weight'. It follows, according to the appellant, that the Tribunal must have placed some weight on the letters.

45    The appellant contends that having not dismissed the letters as forgeries, then the Tribunal's finding required it to consider the possibility that the letters were genuine or at least received, and evaluate future risk.

46    The appellant also contends that the Tribunal should have considered the receipt of the letters in isolation and that they arguably provide a sufficient factual finding that there was not a farfetched possibility that the appellant would be targeted in the future.

47    The Minister submits that the delegate's finding that it was not satisfied that any significant weight should be placed on the letters was not 'equivocal'. It was not a finding that it was 'only slightly more probable than not' that the letters were not genuine letters from the Taliban (referring to Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 576). The Minister submits that the Tribunal had no real doubt that its findings both as to the past and the future were correct. As was the case in Guo, the Tribunal appears to have taken the view that the probability of error in its findings was insignificant.

48    The Tribunal also referred to the appellant's focus on the word 'substantial' as used in the reasons, and submitted that it should be recalled that the Tribunal's reasons are not to be construed with an eye keenly attuned to the perception of error or to see if some inadequacy can be gleaned in the way the reasons are expressed (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [30]-[31]).

Does the ground have sufficient merit

49    As stated in MZXSA, if a fair reading of the reasons as a whole shows that the Tribunal itself had no real doubt that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong.

50    The question as to whether the Tribunal ought to have considered the possibility that its findings of fact may not have been correct is to be determined by reference to its own reasons.

51    In my view, the Tribunal appears to have had no real doubt that its finding that the appellant was not a person of adverse interest to the Afghan Taliban for reasons of the claimed un-Islamic activities in Pakistan was correct.

52    I have reached that view having particular regard to the fact that having asked the appellant questions about this aspect of his protection claim, the Tribunal made the following comments in its reasons:

(a)    it was not satisfied as to the truthfulness of the claim that he was detained for 15 days [68];

(b)    it found the appellant's account of the accusation by the Taliban of selling alcohol, permitting gambling, and distributing unacceptable videos lacked credibility [75];

(c)    it found the appellant's account of his claimed 15 day detention and the claimed escape rehearsed and unconvincing [75];

(d)    it referred to the letters (in the terms discussed in the appeal ground);

(e)    it did not accept the appellant's account of escaping in the circumstances and being shot at and getting away is credible as his account appeared rehearsed [75];

(f)    if the appellant and his business partner had been charged with the claimed un-Islamic activity, they would have been treated more summarily [by the Taliban] than being held for 15 days without adequate security to prevent their escape [75];

(g)    it does not accept the appellant is regarded by the Taliban in Pakistan as un-Islamic or an infidel or a person who should be targeted for harm on religious grounds [75];

(h)    it is not satisfied the appellant faces a real chance of serious harm on this basis from the Taliban in Afghanistan nor in the reasonably foreseeable future, should he return there [75];

(i)    it does not accept the appellant has any significant profile, or that he is perceived as having an adverse political opinion or as having anti-Islamic religious beliefs in Afghanistan [81];

(j)    the appellant is not a person of adverse interest to the Afghan Taliban for reasons of the claimed un-Islamic activities in Pakistan [88].

53    The particular words that I have emphasised indicate the strength of the Tribunal's findings with respect to the alleged un-Islamic activities. The fact that such words were not used for each and every finding or reason does not derogate from the overall strength of the Tribunal's findings. This is not a case where the Tribunal has indicated uncertainty about whether alleged events occurred. The mere fact that the Tribunal said there was a lack of any 'significant' evidentiary weight rather than an absence of 'any' weight as to the letters does not persuade me, in the context of the findings that the claimed events did not occur and that the appellant is not a person of adverse interest for un-Islamic activities, that I should impute to the Tribunal a lack of confidence in its findings such that it was obliged to consider the possibility that its findings were wrong.

54    The appellant contends that regardless of the findings about other matters, it was incumbent on the Tribunal to separately consider that the letters comprised threats and separately consider its finding about the letters and the possibility that it was wrong.

55    Even if it were right that the Tribunal was required to consider the letters divorced from the balance of the claims about the events of October 2011 and the alleged un-Islamic activities, I am not satisfied that the Tribunal expressed sufficient uncertainty about the letters such as to require it to consider the possibility that the appellant had received the letters as alleged.

56    The words of the Tribunal with respect to the letters read in the context of the other findings indicates that the Tribunal did consider the relevance of the letters to the appellant's claim, but in light of its concerns about their veracity was not satisfied that they were of sufficient probative value to be taken into account. It is true that the Tribunal did not make an express finding that the letters were forgeries. It does not seem to me it had evidence of any analysis available to it. However, the Tribunal's view was reached after it considered a list of factors: that the delegate rejected the appellant's claim as to how he continued to be in possession of the letters; that the delegate took into account the widespread incidence of document fraud in Pakistan; that the delegate found the letters were unreliable; that the Tribunal questioned the appellant about those findings and the letters but the appellant 'merely' said they were genuine; and having found that the appellant's account of accusations by the Taliban of selling alcohol, permitting gambling and distributing unacceptable videos (claims referred to in the letters) lacked credibility.

57    I do not think use of the impugned phrase is to be viewed in isolation, and even if it were, the appellant has attempted to ascribe to it a precise weighting or degree of conviction in circumstances where the context suggests the Tribunal intended to convey no more than a justifiable conclusion that doubts about the provenance of the letters were so serious that it was not satisfied they should be taken into account. The reasons are to be given a beneficial construction (Wu Shan Liang at 271-272, as cited in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [67]).

58    Having considered all of those things, it can be inferred that any doubts of the Tribunal were such that it considered the probability of error about whether such letters were given to the appellant was insignificant (as explained in Guo). In my view, it is not apparent that the Tribunal had any real doubts. Accordingly, the Tribunal was not obliged to consider whether its position with respect to the letters might be wrong.

59    In any event, I prefer the Minister's submission that it is artificial to view what is said about the letters divorced from the claim that the Taliban then raided the appellant's shop and took him and his partner into detention. The reasons are to be read fairly and are to be read as a whole: MZXSA at [95]. Read as a whole, it is clear that the Tribunal carefully considered the matters relevant to whether the appellant has a well-founded fear of being persecuted for reasons of his religion as a person who is declared by the Taliban as a non-believer or infidel, based on un-Islamic activities. For the reasons already expressed (at [51]-[53]), I consider that a fair reading of the reasons as a whole shows that the Tribunal had no real doubt that there was no such well-founded fear and had no real doubt about its relevant findings, and so it was not required to consider the possibility that its findings were wrong.

Conclusion

60    It follows that in the circumstances I consider the ground of appeal lacks sufficient merit and therefore leave to raise it on the appeal is refused. Accordingly, the appeal should be dismissed with costs to follow the event.

Associate:

Dated:    12 September 2018