FEDERAL COURT OF AUSTRALIA

CWR16 v Minister for Immigration and Border Protection [2018] FCA 859

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to file, read and rely upon the amended notice of appeal dated 11 April 2018.

2.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

ALLSOP CJ:

Introduction

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision by the Administrative Appeals Tribunal that affirmed a decision of a delegate of the Minister to refuse to grant the appellant a Protection Visa.

2    This matter concerns claims for protection, if accepted, of the utmost gravity. The appellant’s claims involve both his religious freedom and his life. The appellant’s claims are not, objectively, implausible. Shorn of unnecessary detail, the essence of the claim is as follows.

3    The appellant is a national of Pakistan who first came to Australia on 23 July 2013 as the holder of a Visitor (Subclass 600) Visa until 2 September 2013. He returned to Australia on 29 January 2014 on a second Visitor Visa, which was valid until 28 February 2014. The appellant is a Christian, and was an employee of, and leader in, his church in Rawalpindi. On 26 February 2014, the appellant made an application for a Protection (Class XA) Visa. He claimed to fear harm in Pakistan on the basis of his Christian faith and aspects of his work with his church. The appellant claimed to have experienced (directly or indirectly) some minor incidents since the early 2000s, but the foundation of his claim for protection arose from events in late 2013 and January 2014.

4    The appellant claimed that on 18 January 2014, he was arrested and detained by police for a few days because of accusations that he was converting Muslim children to Christianity. It appears this may have stemmed from his role in assisting with the relocation and reconversion of Christian families and children in Peshawar, Nowshera and Quetta who had been forced to convert to Islam, or his role within his church in organising a program to assist the victims of a September 2013 bombing of a church in Peshawar. The appellant claimed to have been beaten by a number of extremists during his detention and left with the choice of death or forced conversion to Islam. The appellant agreed to convert, but managed to escape before the conversion took place and travel to Australia with the assistance of his church and friends.

5    The appellant provided a statement in support of his claims dated 24 February 2014, and also participated in an interview with the Minister’s delegate on 8 September 2014. The delegate of the Minister did not consider the appellant’s claims to be credible and refused the application for protection.

6    The appellant applied for review of the delegate’s decision on 10 October 2014. A submission from the appellant was received by the Tribunal on 26 November 2015. The appellant also provided, at this time, two statements from his wife and six statements from friends, neighbours and other witnesses which corroborated various aspects of the appellant’s claims, both in terms of their general context and the January 2014 incident more specifically. It should also be noted that the appellant, supported by a number of the witness statements, claimed that a fatwa had been issued on 5 December 2014 declaring the appellant and his family to be blasphemers and calling for their execution.

7    An initial hearing was held before the Tribunal on 9 December 2015. The Tribunal also made a request for comment on evidence on 4 January 2016, and the appellant responded on 19 January 2016. A second hearing was held before the Tribunal on 16 March 2016 and a further submission was provided by the appellant to the Tribunal dated 16 March 2016.

8    The Tribunal’s decision dated 7 September 2016 did not find the appellant to be a truthful or credible witness and made strong adverse credibility findings against him. It accepted that he was a Christian and had been an employee and leading member of his church from at least 2006, but it rejected his other claims – including the claim about the January 2014 incident – as concocted. The Tribunal concluded that there were a number of inconsistencies in the expression of his claims, and it also rejected a number of these claims as implausible. The Tribunal also rejected the witness statements provided by the appellant, finding that they lacked credibility as they repeated the claims made by him that it had rejected. The Tribunal ultimately affirmed the delegate’s decision.

9    The appellant made an application for judicial review of the Tribunal decision in the Federal Circuit Court, which was dismissed on 2 November 2017. He subsequently appealed to this Court.

10    Whilst I am left with a feeling of unease in respect of the findings and conclusions of the Tribunal, my task is the correction of error in the making of the primary judge’s orders and, indirectly through that process, correcting jurisdictional error by the Tribunal. I cannot identify error of the appropriate character in either the decision of the primary judge or that of the Tribunal.

11    For that reason, and the reasons that follow, the appeal should be dismissed.

The appellant’s claims and their expression

12    The appellant was required to express his claims on a number of different occasions. Given the nature of the findings made by the Tribunal, it is necessary to consider the claims made by the appellant in some detail.

13    The claims as first made by the appellant in his statement dated 24 February 2014 were summarised by the Tribunal from [12] to [20] of its decision. The essence of the claims was as follows:

    The applicant came from a Christian family and described himself as an evangelist.

    From 2012, his employment with the church included visiting seven branches of the church located in different parts of Pakistan. He also volunteered from 2012 with an NGO that worked for women’s rights and on a project where Muslims, Christians and Hindus could all work together.

    As part of his work with the NGO, the appellant would visit areas in Peshawar, Nowshera and Quetta where Christians had been forced to convert to Islam. He would take volunteers from his church to rescue people in these areas and worked to reconvert Christians who had left the faith with the assistance of local pastors.

    In September 2013, a church in Peshawar was bombed. The appellant attended a meeting that condemned the attack. The appellant’s church organised a program to assist the victims. This received media attention which upset local Mullahs and the appellant received telephone calls from people who accused him of taking Muslim children and converting them to Christianity. He was told by church leaders that they were also receiving threatening calls from Mullahs about him.

     On 29 November 2013, the appellant inspected a church in Nowshera. While there, he was attacked by a group of Muslim men, including a Mullah, who accused him of relocating and converting Muslims.

    In January 2014, the appellant was detained by police in Rawalpindi and accused of transporting children and converting Muslims to Christianity against their will. The appellant was told the Mullahs had ordered his arrest and that he would be taken to a Sharia court unless he converted to Islam.

    During his detention, the appellant claimed he was bashed, kicked and starved for four days by a group of five Taliban militants. On the last day he claimed they told him he would be taken to a Sharia court on charges of blasphemy and converting Muslim children to Christianity.

    The following day, two Mullahs entered the room with the four Taliban men and asked if the appellant would convert to Islam. The police told him the Taliban would kill him if he did not agree to convert.

    The appellant was driven from the police station to his home. His Muslim neighbours were told he would convert and were in the street cheering. The appellant managed to slip out the back door of his house and flee to the home of a Christian family who assisted him to flee to Australia. He obtained a visa and fled to Australia.

14    The following matters arise out of the appellant’s interview with the delegate on 8 September 2014, which was discussed from [21] to [37] of the Tribunal’s decision:

    Members of the appellant’s congregation had been trying to build a church in Rawalpindi since 2003, but due to a dispute about development they were unable to proceed. The church held services in a hotel, and was forced to another hotel after someone threatened to blow up the first hotel.

    The appellant stated that some of his Muslim friends had converted to Christianity, but he had not converted them. He had helped prepare them and sent them to a pastor.

    After the bombing of the church in Peshawar in 2013, the appellant’s church organised an event in Peshawar to condemn the attack. The church organised a program to assist victims of the attack.

    The church was also involved in relocating Christians from areas that were poor or who were being harassed.

    In November 2013, the appellant visited a church in Nowshera. While outside the church, a man who lived behind the building came out and accused the appellant and his group of converting Muslims.

    On 18 January 2014, some police and two Muslim clerics came to the appellant’s home. They accused him of converting Muslims, beat him and took him to the police station where he was detained for five days. The appellant was accused of bringing people from other areas and converting them.

    While the appellant was detained, some Muslim clerics came to the police station and accused him of converting Muslims. They told him he would be taken to a Sharia court unless he converted to Islam.

    The appellant was taken home on the Wednesday and paraded in front of people who were calling out. He escaped to a friend’s house and with the assistance of the church arranged to leave Pakistan.

    The appellant held an Australian visa as he had applied for a visitor visa before the January 2014 incident in order to attend an interfaith conference. He was not aware before the incident that the visa had been issued as it had been sent to a church email address.

15    It is apparent from these summaries that the claims made by the appellant were broadly consistent as between his initial statement and his interview with the delegate though, as the Tribunal later noted, his claims in the statement about travelling to remote areas to reconvert former Christians and receiving phone calls around the time of the bombing of the Peshawar church in September 2013 accusing him of converting Muslim children were not repeated at later stages of the application. There were also differences in aspects of his recounting of his time in detention, though the broad claim remained the same.

16    In his submission to the Tribunal that was received on 26 November 2015 (discussed in the Tribunal decision from [40] to [53]), the appellant articulated the following claims:

    The appellant repeated the claim that he had been threatened at the church in Nowshera (while returning from Peshawar on 29 November 2013) by a man with a long beard who accused the church members of transporting children to convert them to Christianity. He threatened to have them tried by Sharia law and a crowd began to gather.

    The appellant repeated the claim that he was arrested on 18 January 2014 by three policemen and two Muslim clerics. He described the manner of his arrest and his five days of detention in detail. The appellant claimed he was interrogated and tortured by police officers and four Imams. He claimed he was beaten and tortured. He was given the choice of converting to Islam or facing punishment for converting Muslims.

    The appellant claimed he was driven home on 22 January and he was publicly humiliated when his impending conversion was announced loudly in the street. The appellant fled his home and went to the home of a friend who drove him to another Christian’s home. The appellant was told he would only be safe if he fled Pakistan as he would be hunted down by the Taliban.

    The appellant stated that he was told he had a ticket and a visa to travel to Australia. He had signed the visa application in November 2013 and left his passport at the church office but he had not been aware that the visa had been issued.

17    In this submission to the Tribunal, the appellant notes that he was fearful during his interview with the delegate as he recognised the accent of the interpreter as being one from a region administered by the Taliban.

18    The Tribunal conducted a hearing on 9 December 2015 where it tested the appellant’s claims, as summarised from [54] to [80] of the Tribunal decision.

19    Following the first hearing before the Tribunal on 9 December 2015, the Tribunal issued a request for comment to the appellant in relation to inconsistencies in the appellant’s claims as between the hearing and his various statements. These inconsistencies related to: whether the appellant was involved in the “reconversion” of Christians; whether the appellant received threatening phone calls from Mullahs after September 2013; the number and identity of people who had arrested, detained and interrogated the appellant; the circumstances in which the appellant lodged his visitor visa application; and the claimed threat to blow up the hotel where the congregation met in 2013.

20    The appellant provided a response to this request for comment in a statutory declaration dated 19 January 2016. In it, the appellant took steps to clarify his claims and the response was summarised by the Tribunal at [81] to [96] of its decision. The appellant’s responses were to the following effect:

    As he had stated at the hearing on 9 December 2015, his claim in the initial statement that he had used his work with the NGO to reconvert Christians was not correct. His travel to remote areas was due to his work with the church. The appellant explained that the agent who prepared his initial application did not speak Urdu and read it back to him rapidly. He had also been fearful of the interpreter used during his interview with the delegate as his accent indicated he came from a Taliban controlled region.

    The claim in his initial statement that Mullahs had called him telling him to stop taking Muslim children and converting them was incorrect, as the appellant had stated during the hearing on 9 December 2015. Telephone calls had been received criticising the church for publicising the bombing of the church in Peshawar. The appellant stated that he believed his agent had mistakenly recorded this as threatening calls related to allegations he had been converting Muslims to Christianity.

    The Tribunal had stated that the appellant appeared to have given conflicting accounts of who interrogated him during his detention. The appellant indicated the he considered the terms Mullah, Imam, Muslim cleric and Taliban as interchangeable. He used the term Taliban to refer to radicalised Muslims, based on the Urdu meaning. He stated that his November 2015 statement was accurate, and that the initial September 2014 statement was inaccurate due to inaccurate paraphrasing done by his representative.

    With respect to the grant of his visa, he also stated that his representative had misunderstood his evidence. He stated that his initial statement was inaccurate on this issue, for this reason.

    Furthermore, he stated that he did not mention the bomb threat to the hotel where the church was meeting at the hearing on 9 December 2015 as he thought he was being asked about threats to him personally.

21    The appellant also claimed in his response to the request for comment that a fatwa had been issued against him declaring him to be a blasphemer because he fled and refused to convert to Islam. He cited the witness statements that referred to this claim in support.

22    A further hearing was conducted before the Tribunal on 16 March 2016, where there was further testing of his claims (as summarised at [97] to [103] of the Tribunal’s decision). He also provided a final submission to the Tribunal dated 16 March 2016, where he repeated the claim that a fatwa had been issued against him declaring him to be a blasphemer, together with the substance of his earlier claims.

The Tribunal decision

Factual findings

23    The Tribunal set out its factual findings from [130] to [151] of its decision. It made strong adverse credibility findings against the appellant, including findings that he had “concocted” a number of claims in order to strengthen his Protection Visa application. The Tribunal expressed the view at [130] of its decision that it did not “find the applicant to be a truthful or credible witness” and did not accept the appellant’s claims “that he was detained, tortured and forced to agree to convert to Islam in January 2014 because the police, the Taliban and other Muslims believed that he had been involved in converting Muslims to Christianity”. The Tribunal based these credibility findings on a number of “inconsistencies” in the appellant’s accounts of his claims together with what it considered to be the implausibility of some of the claims he had made.

24    The issues the Tribunal identified with respect to the appellant’s claims were as follows. The first related to the claim made in the written statement of 24 February 2014 that, while working for the NGO, the appellant had taken church volunteers to remote areas to reconvert Christians who had been forced to convert to Islam. This claim was not repeated in the interview before the delegate or in later submissions. The Tribunal noted at [131] that the appellant, during the hearing in December 2015, had stated that this claim was not correct. The appellant explained that the person who assisted him with his February 2014 statement did not speak Urdu and that he did not identify the errors until the night before the interview with the delegate. At the interview, he stated that he attempted to correct the errors but was fearful of the interpreter as his accent suggested he was from a Taliban controlled area. The Tribunal rejected this explanation at [133] of its decision for the following reasons:

I do not accept these explanations. At the hearing the applicant confirmed that his representative had read the February 2014 statement to him before he signed it and he had ample opportunity and the language skills to confirm its accuracy well before the delegate’s interview. There is nothing in his interview with the delegate which suggests that he attempted to correct earlier mistakes or that he was not provided with an opportunity to raise any matters he wished. I have noted the applicant’s claim that the interpreter’s accent made him fearful, however he had no apparent problem discussing his central claims and I find the claim that he failed to correct these details out of fear of the interpreter far-fetched and implausible. Furthermore, the applicant had the opportunity to correct errors in his first statement in the lengthy written submissions provided prior to the hearing on 26 November 2015 or to point them out at the beginning of the hearing, but failed to [do] so.

25    The second issue related to the claim also made in that first written statement that sometime after September 2013 the appellant had received phone calls from people who accused him of relocating and converting Muslim children. This claim was also not repeated in the interview or in later submissions. The appellant also informed the Tribunal at the December 2015 hearing that this claim was incorrect. The Tribunal rejected his explanation at [134] of its decision as follows:

With regard to the threatening telephone calls, following the December 2015 hearing the applicant said that he had told his first representative that his church had received calls from Mullahs who objected to their statements about the September 2013 church bombing and that he had probably misunderstood this claim. If the applicant received calls of this kind after September 2013, I believe he would have explained this promptly and clearly when the matter was raised during the hearing. I also reject this explanation.

26    The third significant issue with the appellant’s claims identified by the Tribunal related to the appellant’s claim “that he was detained or abducted by police and extremists on 18 January 2014, accused of converting Muslims to Christianity, tortured and forced to agree to convert to Islam”. The Tribunal did not accept this claim, and gave its reasons as follows:

142. In the first place, I find the claim that police in Rawalpindi cooperated with the Taliban or anyone else to arrest the applicant and force him to publically convert to Islam and that applicant had no choice but to flee Pakistan to avoid this fate far-fetched and implausible. As the applicant agreed at the hearing, Christians generally face fewer problems in Rawalpindi than in other parts of the country. While there are reports of members of the Pakistan police and security forces behaving in a biased manner or failing to provide adequate protection to followers of minority religions, I have been unable to locate any evidence which suggests that the Taliban or other extremists had a level of control or influence in Rawalpindi in early 2014 such that the police would have felt obliged to cooperate with them in the manner claimed by the applicant. Furthermore, while there are reports of poor Christian women and girls being forced to convert to Islam and marry Muslim men in Pakistan, as noted above, the most common reaction to cases where someone is suspected of acting against Islam is mob violence or the use of blasphemy laws. I have been unable to locate any evidence that forced conversion is used to punish Christians for converting or attempting to convert Muslims. Finally, as an educated middle class man who held a senior position in his church and also held a senior position in a secular group of mostly Muslims with a particular interest in establishing good communal relations which had contacts with local officials, the applicant would be a well placed to seek assistance and protection if attempts were made to force him to convert.

143. Secondly, as set out below, there are a number of significant differences in the evidence the applicant has provided regarding his detention. According to his February 2014 statement he was arrested by police and while he was in detention five Taliban militants came to the police station and were permitted to assault him. The following day the Taliban militants returned with two Mullahs who demanded that the applicant convert to Islam. During his interview with the delegate he said that he had been detained and interrogated by police and two Muslim clerics, but made no mention of the Taliban. In the November 2015 statement he said that he had had been detained by two policemen and two Muslim clerics and that while in detention he was interrogated and tortured by police officers and four imams. During the December hearing he said that he had been detained by police and five imams who were from the Taliban, all of whom questioned him while he was in detention. In his 19 January 2016 letter he said a total of 5 police officers and two Muslim clerics were involved in his arrest and interrogation.

144. The applicant has also given differing accounts of the accusations he faced while in detention. In the statement dated 24 February 2014 he said was accused of transporting children to convert them, being an evangelist, converting many Muslims against their will and giving false information about atrocities against Christians to foreigners. During his interview with the delegate and in his November 2015 statement he was accused of transporting and converting Muslim women and children, but made no mention of any other accusations. At the December hearing he again said he had been accused of transporting and converting Muslims and confirmed that he had not been accused of anything else. However, when I pointed out the other accusations mentioned in his February 2014 statement he said that these claims were true and claimed that he had understood that I had been asking him only about the accusations made when he was first detained, not while he was held in detention.

145. I acknowledge that it is not uncommon for honest applicants to provide differing accounts of the same event on different occasions due to confusion or problems with memory. However, I do not to accept that the applicant's failure to recall whether he was detained by police alone or by police and up to five Muslim clerics and whether he was interrogated by five Taliban and two Muslim clerics or by between two and five Muslim clerics who were members of the Taliban, can be explained as the result of poor memory or confusion. Nor do I accept that he referred to the extremists involved in his detention as both Mullahs and Taliban because the men were Mullahs who belonged to the Taliban or because he used the terms interchangeably for all extremists. As noted in the country information section above, the Taliban are one of a number of extremist groups. I believe that an educated man who had worked with international aid groups and organisations such as [the NGO] would be aware of this. Furthermore, in his February 2014 statement the applicant distinguished between the Taliban who he claimed came to the police station after he was detained and the Mullah who accompanied them on the following day.

146. I also reject the applicant's explanation for the discrepancies in his evidence regarding the accusations which were made against him while he was in detention. I do not accept that the applicant was confused when I asked him about the accusations he faced while in detention at the December 2015 hearing. My questions clearly related to his time in detention, not merely to what happened at the time he was arrested. And even if he was confused when I asked him about these events at the hearing, this does not explain why he failed to repeat his original claims to the delegate or in his November statement.

147. Thirdly, I find the applicant's claim that he had no choice but to flee Pakistan immediately because rather than offer him protection from extremists the Pakistani police would have pursued him throughout the country to be far-fetched and implausible. According to the applicant himself, he was not charged with any offence when he was detained in January 2014 and even if a section of the local police had been involved in detaining him (which I do not accept), I am unaware of any evidence which suggests that he would be of continuing interest to other Pakistan police or other Pakistani authorities in Rawalpindi or anywhere else in Pakistan because he had been wrongly accused of converting Muslims or because he had refused to convert to Islam.

(emphasis in original)

27    The appellant’s claims that he had been counselling Muslim women in remote areas and had spoken to them about Christianity while working for the NGO were also said to be implausible. The Tribunal also rejected his claim that he had converted some 22 Muslim families to Christianity as implausible and found that any claim by the appellant to have converted anyone to Christianity was concocted: see [138] to [140] of the Tribunal decision.

28     Ultimately, the Tribunal rejected the most serious claims made by the appellant, as a consequence of the credit findings it made. At [148] to [149] it stated:

148. After considering all of the applicant's evidence and I do not find him to be a credible or a truthful witness. I do not accept that he was involved in proselytizing to Muslims formally or informally at any time, or that he converted any of his friends or acquaintances to Christianity, or that spoke to Muslim woman about Christianity while he was working as a volunteer for [the NGO] or that he was threatened by a mob in Nowshera who because they believed he was relocating and converting Muslim children or a fatwa has been issued against him or that he was detained by the police or anyone else in January 2014 because he was suspected of converting Muslims to Christianity or that he was forced to agree to convert to Islam. I find that all of these claims were concocted to form the basis of a claim for protection in Australia.

149. In reaching this conclusion I have considered the statements which he has provided from friends and relatives. However, these statements repeat claims made by the applicant which I have rejected. I find that these statements do not contain credible information and I have given them no weight.

29    The Tribunal made clear at [149] that it rejected the witness statements provided from friends and relatives due to the adverse findings as to credit made against the appellant and gave them “no weight” for this reason.

Consideration by the Tribunal

30    Having made these factual findings, the Tribunal went on to consider whether the appellant met the criteria for the grant of a Protection Visa from [152] to [170] of its decision. Although it accepted that the appellant was a Christian, the Tribunal concluded that it was not satisfied that the appellant faced a real chance of serious harm in Pakistan because of his leading role in his church or because of his Christian religion. It also rejected a claim that there was a real chance of harm to him due to sectarian violence or attacks by extremists. Furthermore, the Tribunal concluded that there was no credible evidence before it that there was a real chance that the appellant was at risk of being charged with blasphemy or that, because of his involvement in the NGO there was a real chance he would face harm for this reason.

31    The Tribunal was thus not satisfied that the appellant was a person to whom Australia owed protection obligations under the refugee or complementary protection criteria on account of his Christian faith and involvement with his church, the Tribunal having already rejected his more serious claims on the basis of its adverse credibility findings.

Proceedings in the Federal Circuit Court

32    The appellant sought judicial review of the decision of the Tribunal in the Federal Circuit Court. His application for review comprised four grounds, which are reflected in grounds 2 to 5 of the amended notice of appeal in this Court.

33    At the hearing of the application on 19 October 2017, the appellant’s legal representative at the time sought to rely upon an amended application that added an additional ground of review. This ground of review is now revived, in a different form, in the amended notice of appeal in this Court. The primary judge refused leave to amend the application and gave oral reasons at the hearing. His Honour also made additional remarks about the application to amend before him in his later written reasons for judgment.

34    The primary judge delivered judgment on 2 November 2017 and made orders dismissing the application for review. Given that the grounds of review relied upon before the primary judge are, in substance, raised again before me as some of the grounds of appeal against his Honour’s decision, I will discuss his Honour’s reasoning in more detail as I address each ground of appeal.

The appeal to this Court

35    On the appeal to this Court, the appellant is represented by new counsel. At the hearing before me on 24 April 2018, counsel for the appellant sought leave to file, read and rely upon an amended notice of appeal dated 11 April 2018 that added an additional sixth ground of appeal. This proposed sixth ground was a re-formulation and further development of the additional ground in respect of which the primary judge refused leave to amend. The Minister neither consented nor objected to the reliance upon the amended notice of appeal, but opposed the addition of ground 6 on the basis that it lacked merit.

36    The grounds of appeal contained in the amended notice of appeal are as follows:

Ground 1: The refusal by the primary judge to grant leave to amend the application to include a new ground was in violation of the principle of procedural fairness

Ground 2: The primary judge erred by finding that the Tribunal did not misapply or misunderstand the correct test for “systematic conduct”

Ground 3: The primary judge erred by finding the Tribunal did not fail to properly consider the applicant’s claims by having regard to an irrelevant consideration and/or misapplying the correct test

Ground 4: The primary judge erred by finding that the Tribunal did not misapply the real chance test or did not fail to consider a relevant consideration when assessing the applicant’s claims

Ground 5: The misapplication of the real chance test regarding the risk of harm from sectarian violence if returned to Pakistan

Ground 6: There was insufficient logical or evidentiary basis for the finding by the Tribunal that the appellant did not face a real risk of harm if refouled to Pakistan

Ground 1 – Refusal to grant leave to amend

37    As noted above, the primary judge refused leave to amend the appellant’s application to include an additional ground of appeal. The proposed ground was similar to that now sought to be run as ground 6 on appeal, though focused solely on the rejection of the witness statements, and was as follows:

5. The tribunal invalidly dismissed all other witness statements on the basis they were not credible.

38    The primary judge gave oral reasons for refusing the amendment. These reasons considered the merits of the proposed ground, and whether there was any reasonable explanation for why the ground had not been raised before the hearing in the Federal Circuit Court. His Honour later, at [4] of the judgment, noted that the application to amend “did not succeed for the reasons I gave at the hearing”. The primary judge went on at [5] to observe that the “application did not get off to a good start when, having failed to file any written submissions as required by the Court orders, the solicitor for the applicant arrived at the hearing more than 10 minutes late carrying a takeaway coffee. It is difficult to imagine a display of greater disrespect to the Court.”

39    On the appeal, counsel for the appellant submitted that the primary judge denied the appellant procedural fairness by failing to identify and engage with the relevant principles regarding the exercise of the discretion to grant leave to amend, and by failing to provide any reasons for the refusal to grant leave to amend. Substantial time was spent on this ground, for reasons that are not obviously apparent. However, even if his Honour erred in exercising the discretion in the manner his Honour did, that is not a basis for concluding that there was a denial of procedural fairness.

40    This argument should be rejected as having no foundation. The primary judge gave reasons for refusing to grant leave to amend, as he was required to do: see COZ16 v Minister for Immigration and Border Protection [2018] FCA 46. There was no obligation to give written reasons in addition to his oral reasons. In his judgment the primary judge referred clearly to the reasons he gave at the hearing. These reasons evinced an engagement with the principles relevant to the exercise of the discretion to grant leave to amend summarised in cases such as SZSRR v Minister for Immigration and Border Protection [2017] FCA 328 at [47]-[54]. Given the nature of the proposed ground 6 raised before me on the appeal, it is unnecessary to engage with his Honour’s actual assessment of the proposed ground independently.

41    The appellant also contended that the comments by the primary judge at [5] of the primary judge’s judgment about the conduct of the appellant’s solicitor led to a reasonable apprehension of bias. It was submitted that the primary judge erred by conflating the conduct of the solicitor with the exercise of the discretion as to whether to grant leave to amend. There is also no foundation for this submission. The reasons delivered orally by the primary judge made no comment about the conduct of the appellant’s then solicitor. These were the reasons for refusing the amendment. When regard is had to these, I am not persuaded that there is any basis for a conclusion that a reasonable and intelligent lay observer would, based on the comments at [5] of the judgment, conclude there was an appearance of bias in the primary judge’s decision. They should be understood as a clear (and deserved) rebuke of a professional for discourtesy to the Court. In any event, the primary judge had already given his Honour’s reasons for refusing the amendment, orally.

42    Thus, ground 1 should be dismissed.

Ground 2 – Misapplication or misunderstanding of the correct test for “systematic conduct”

43    The appellant contended that the primary judge erred at [7] of the judgment by finding that the Tribunal did not misapply or misunderstand the correct test for “systematic conduct” at [154] to [155] of its decision. Paragraphs [154] to [155] of the Tribunal decision were as follows:

154. The only problems which the applicant claims his church has experienced were difficulty obtaining permission to build a church on land they purchased because someone has lodged a case objecting to this and a threat of violence in 2013. It is not clear why the people who brought the case objected to the church, but it is clear from the applicant's evidence that there are numerous churches in Rawalpindi and that his own congregation continues to meet and practice their religion. With regard to the 2013 threat, there is no suggestion it was carried out or that the applicant's church was subjected to repeated threats of this kind.

155. Even if I accept that the dispute which has prevented the applicant's church building on a particular plot of land had a religious element, I do not accept that their inability to build on a particular plot of land means that the applicant has been denied the right to practice their religion or that there is a real chance that his right to practice his religion will be denied or seriously restricted on return to Pakistan. With regard to 2013 violence, this was an isolated incident and in my view it does not suggests [sic] that the applicant's church was of particular interest to Islamic extremists or anyone else in Pakistan or that he faces a real chance of suffering serious harm because of his membership of the church.

44    In the Federal Circuit Court, the appellant referred to the Tribunal’s finding that a threat made to his church was not carried out, was an isolated incident and that the church was not subjected to repeat threats of actual violence. It was argued that the Tribunal erred in considering that regular or repeated conduct was required to establish persecution. The primary judge rejected this ground of review on the basis that the Tribunal did not make the asserted error. In his Honour’s view, at no stage did the Tribunal indicate that regular or repeated conduct was necessary. According to his Honour, what the Tribunal did was use these findings to draw an inference as to what potential harm might occur to the church and its followers in the future. I agree with his Honour’s assessment of the decision in this regard and this ground of appeal should be dismissed.

Ground 3 – Deprivation of land by reason of religion

45    By this ground it was argued that the primary judge erred at [9]-[11] of the judgment by finding that the Tribunal did not fail properly to consider the appellant’s claims as to this matter.

46    At [154] to [155] of the Tribunal decision (set out above at [43]), the Tribunal considered the claim that the appellant’s church had been prevented from building on a particular plot of land and whether this had denied him the right to practice his religion. The appellant argued in the Federal Circuit Court that the Tribunal should have considered whether deprivation of land by reason of religion amounted to persecution. The primary judge expressed the view at [9] of his Honour’s reasons that the claim made by the appellant was about the church being prevented from building on a particular piece of land; it was not a claim that it was deprived of land. His Honour also considered that this submission was outside the ground contained in the application for review: see [11] of the judgment.

47    On the appeal to this Court, the appellant submitted that the primary judge erred by finding the claim to be outside the ground of review and in failing to consider it. As the Minister submitted, however, although the primary judge considered the submission to be outside the scope of the ground of review, the primary judge went on to consider the expanded ground at [11] of his reasons. His Honour noted that each of the matters raised by the appellant as being said to support a claim that deprivation of use of land amounted to persecution had been considered by the Tribunal both individually and cumulatively. I see no error in how the primary judge dealt with this matter. The Tribunal dealt with the matters raised in the Federal Circuit Court. Ground 3 should be dismissed.

Ground 4 – Misapplication of the “real chance” test regarding blasphemy charges

48    This ground relates to the Tribunal’s findings as to blasphemy charges sometimes faced by Christians in Pakistan. The Tribunal accepted at [157] of its decision that Christians sometimes faced blasphemy charges in Pakistan but then went on at [161] to conclude that it was unaware of any evidence which suggested that Christians generally faced a real risk of blasphemy charges and considered that there was no credible evidence which suggested a real chance that the appellant would be accused of, or charged with, blasphemy in the future. Paragraph [161] was as follows:

I have also considered the issue of blasphemy charges. I am unaware of any evidence which suggests that allegations of blasphemy or blasphemy charges are so frequent in Pakistan that Christians in general face a real chance of being accused of or charged with blasphemy. Furthermore, there is no credible evidence before me which suggests that there is a real chance that the applicant will be accused of or charged with blasphemy in Pakistan in the reasonably foreseeable future.

49    On the appeal, the appellant first contended that the primary judge erred in failing to find that the Tribunal required frequent allegations in order to establish a real chance of being accused or charged with blasphemy. The primary judge rejected this argument at [13], for the reason that what the Tribunal was doing at [161] was making a finding of fact based on past evidence. His Honour rejected this ground for the same reasons as his Honour rejected the first ground (ground 2 on appeal). The appellant asserts that the primary judge adopted an overly strict and literal construction of the grounds of review and gave inadequate reasons. These submissions should be rejected. I agree with how the primary judge dealt with this matter.

50    The second matter raised under this ground was a complaint that the primary judge had erred in finding that the Tribunal had considered evidence and country information regarding the risk of blasphemy charges. The primary judge dealt with this submission below as follows from [14][15] of the judgment:

14. The second part of the ground is in para d of the particulars. On its face, the ground asserts that the Tribunal failed to take into consideration two aspects of the evidence. The first, an email sent by the applicant in response to the Tribunal’s letter inviting the applicant to comment on various inconsistencies in his evidence, did not, contrary to the assertion in the ground, state that threats were made against the church; that is what the applicant said: [94] of the Tribunal’s reasons. The email referred to only one threat. The Tribunal accepted that there had been one threat: [154]. Given that the Tribunal expressly referred to the email (at [94]) and accepted the evidence in it (at [154]) the argument that the Tribunal failed to take into account aspects of the evidence must be rejected.

15 Similarly, the evidence concerning the frequency of accusations of blasphemy was not only set out in the Tribunal’s decision (at [113]) but clearly formed the basis of its consideration of the applicant’s claim to be susceptible to such accusations: [161]. In light of that, it cannot be said that the Tribunal failed to consider that information in this ground as it appears in the application. This ground must also be rejected.

51    I agree with his Honour’s treatment of this issue. His Honour identified where the Tribunal identified and considered the relevant matters. This ground should be dismissed.

Ground 5 – Misapplication of the “real chance” test regarding sectarian violence in Pakistan

52    The appellant asserted on appeal that the primary judge erred at [28]-[29] by failing to find that the Tribunal had failed to consider the appellant’s claims or misapplied the real chance test regarding the risk of harm to the appellant from sectarian violence if he were returned to Pakistan.

53    At [159] of its decision, the Tribunal accepted the appellant’s claim that he was attacked and injured during an outbreak of sectarian violence in 2002 but found that he was not the target of that attack and so the involvement in that attack in 2002 did not elevate the chance of him experiencing harm as a result of sectarian violence if returned to Pakistan. Paragraph [159] was as follows:

In reaching this conclusion I have considered the applicant’s claim that he was attacked and injured during an outbreak of sectarian violence in 2002. However, he was not the target of the attack and he did not experience continuing problems because of it. In these circumstances, the fact that he was injured during sectarian violence in 2002 does not alter my finding that he does not face a real chance of experiencing harm as a result of sectarian violence if he returns to Pakistan now.

54    The appellant sought to persuade the primary judge that the Tribunal erred by finding that, for the reason that he was not the target of the sectarian violence, the 2002 incident did not indicate any real chance of the appellant being injured in sectarian violence in future. It was submitted that the Tribunal should instead have considered the totality of the circumstances around sectarian violence. The primary judge at [28]-[29] rejected this ground of review. His Honour noted that the point being made by the Tribunal was that involvement in the sectarian violence in 2002 did not elevate the risk of him being involved in it in the future to a real risk. His Honour found that there was no error with the Tribunal’s treatment of this matter.

55    On the appeal, counsel for the appellant submitted that the primary judge adopted an overly strict and literal construction of the ground of review and did not provide adequate reasons. Furthermore, it was submitted that the Tribunal had erred by failing to consider the totality of the circumstances. The submission essentially rehearsed the submission made before the primary judge. In my view, the primary judge did not take an overly strict approach to the appellant’s ground of review and gave adequate reasons, though they were perhaps brief. The Tribunal considered the issue of sectarian violence and made a finding, based on the events of 2002 and the evidence, that there was no real risk of the appellant being the victim of sectarian violence in the future.

56    Ground 5 should be dismissed as it does not disclose any error by the primary judge.

Ground 6 – Insufficient logical or evidentiary basis for finding that the appellant did not face a real risk of harm if returned to Pakistan

57    This ground was not argued below (as leave to introduce an earlier formulation of the ground was refused) and so leave is required to rely upon it on appeal: see VUAX v Minister for Immigration and Multicultural Affairs [2004] FCAFC 158; 238 FCR 588 at 598 [46]; Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; 250 FCR 510 at 516 [19]-[20] and Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213 at [31]. Such leave should only be granted if it is expedient in the interests of justice to do so: VUAX 238 FCR at 598 [46]. The merit of the proposed ground is an “important consideration” in determining whether to grant leave: Maharjan at [33] per Gilmour and Mortimer JJ. Therefore, it is necessary to consider the substance of the ground in determining whether to grant leave to rely upon it.

58    The appellant submitted that there was insufficient logical or evidentiary foundation for the Tribunal to conclude at [149] that the witness statements provided by friends and relatives did not “contain credible information” or to conclude at [152] that there was “no credible evidence [before the Tribunal] which suggests that [the appellant] has personally faced any harm or been threatened with harm because of his membership of or employment by the church”. The consequence was said to be that these conclusions were legally unreasonable.

59    As articulated by the appellant’s counsel, this ground had two aspects. First, a submission that the Tribunal’s refusal to receive oral evidence from those who provided witness statements was an unreasonable exercise of the Tribunal’s discretion to call witnesses under s 426(3) of the Migration Act 1958 (Cth). Secondly, a broader contention about an insufficient logical or factual basis for the findings just outlined. In reality, the ground turns upon whether it was open for the Tribunal to use the adverse credibility findings that it made based on inconsistency and implausibility to reject (indirectly) the witnesses in the manner in which it did and to reject the appellant’s claims, and those statements, as concoctions. The ground can perhaps also be characterised as a failure by the Tribunal to consider holistically the whole of the evidence before it (through engagement with the witness statements) prior to concluding, as it did, that the claims made by the appellant (and so, necessarily, the witness statements) were concocted.

The making of the credibility findings and the review of them for jurisdictional error

60    In assessing claims for protection, a liberal approach on the part of a decision-maker to the assessment of protection claims is called for: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 535; 52 FCR 437 at 451. Nevertheless, the Tribunal does not have to accept an applicant’s claims uncritically, as the principles recently summarised by Flick J in SZUHJ v Minister for Immigration and Border Protection [2018] FCA 331 at [24] reveal:

… The task of fact finding has long been accepted as a task entrusted to the Tribunal: Osland v Secretary, Department of Justice (No 2) [2010] HCA 24 at [19], (2010) 241 CLR 320 at 332 per French CJ, Gummow and Bell JJ; Repatriation Commission v O’Brien (1985) 155 CLR 423 at 430 per Gibbs CJ, Wilson and Dawson JJ. So, too, has it been long-accepted, that findings as to credibility are the function of the primary decision-maker “par excellence”: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67], (2000) 168 ALR 407 at 423 per McHugh J . To confine the Tribunal to only being permitted to make a finding consistent with the factual account being given by a claimant in the absence of rebutting evidence and not by reference to inconsistencies in that factual account would be inconsistent with the task entrusted to the Tribunal by the legislature to make findings of fact by reference to the evidence before it and would be inconsistent with authority: CQG15 [2016] FCAFC 146, (2016) 70 AAR 413. Although the difficulties of proof which may be encountered by a claimant seeking protection may readily be accepted, the Tribunal is not obliged to accept uncritically a factual account given by, or submissions advanced by, a claimant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 to 452 per Beaumont J.

61    The process of assessment of credibility and evaluation of evidence may contain an element of doubt. Though credit findings are thus generally matters for the Tribunal, they are not immune from review for jurisdictional error: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [37]-[38]. As Robertson J made clear in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99, the Tribunal’s process of fact finding can be reviewed for jurisdictional error. Such findings can be challenged on a number of grounds, including, for example (and I emphasise that these are examples): failure to afford procedural fairness, reaching findings without a logical or probative basis, or legal unreasonableness: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 at 130 [83].

62    The fact that a finding by the Tribunal is on a matter of credit does not “shield its decision-making processes from scrutiny”: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. As Flick J wrote later in that paragraph, credit findings, “like all findings, must be rationally made and based upon facts having logical and probative weight”. Determinations on credibility and weight must “be made rationally and logically, and be articulated properly” and minor inconsistencies and trivial errors in an applicant’s account cannot be used to find that an applicant is not credible: SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 at [25] per Gordon J. Where the Tribunal goes on to use such minor inconsistencies or omissions to make an adverse credibility finding and conclude that an applicant’s claims are concocted, without disclosing a legitimate articulable basis for the finding, then it may become apparent that a decision is based on illogical or irrational findings or inferences: SZLGP at [26].

63    Determining whether credibility findings are so irrational, illogical or unreasonable so as to be infected with jurisdictional error requires an examination of the facts of the case and of the Tribunal decision: SZRKT 212 FCR at 121 [77]; CQG15 at [36]-[44]; ARG15 250 FCR at 130 [83]; and DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 353 ALR 641 at 649-650 [30].

64    The principles relating to the review of credibility findings for jurisdictional error, in the context of whether such findings had been infected with jurisdictional error due to irrationality, illogicality or unreasonableness, were recently summarised by Kenny, Kerr and Perry JJ in DAO16 353 ALR at 649-650 [30]:

…

(1) While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).

(2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:

135. … 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.

(Emphasis added)

(3) By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].

(4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:

56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…

(citations omitted)

(5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “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” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].

(emphasis in original)

65    One must always recognise, in addition, that concepts of jurisdictional error and legal unreasonableness do not “depend on definitional formulae or on one verbal description rather than another” and that “legal unreasonableness is not amenable to minute and rigidly-defined categorisation or a precise textual formulary”: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 3 [2] and 5 [10]. The consideration of whether a decision is legally unreasonable is, as described in Stretton 237 FCR at 5-6 [11]:

… not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.

The credibility findings made in this case

66    The Tribunal found the appellant lacked credibility and that a number of his claims had been concocted to strengthen his Protection Visa application. The Tribunal based its adverse credibility findings on a number of inconsistencies and implausibilities it identified in the appellant’s claims. These were very strong adverse credibility findings made against the appellant.

67    The first two inconsistencies that the Tribunal identified related to claims made in the appellant’s first written statement in February 2014 that were not repeated in his later submissions. The appellant provided explanations for these matters and sought to correct the record. The reasons expressed for disbelieving his explanations are, with respect, rather conclusory statements of disbelief. However, the Tribunal did note and have regard to the explanations provided by the appellant.

68    The third group of inconsistencies relied upon by the Tribunal related to the appellant’s claimed detention, interrogation and forced agreement to convert to Islam. The Tribunal’s findings relating to the appellant’s claimed detention deserve some comment. They are based partially on country information but are concerned principally with inconsistencies in the appellant’s account of his detention on the multiple occasions he expressed his claims. There were inconsistencies between these accounts as to the number and exact identity of his alleged persecutors during the claimed detention. These were characterised as “significant” by the Tribunal. The inconsistencies related to whether he was interrogated by Mullahs, clerics, Imams or members of the Taliban. He seemed to use these terms interchangeably in different expressions of his claims. The appellant indicated to the Tribunal that he considered the terms to be interchangeable and that he used the word Taliban to refer to radicalised Muslims generally, based on the word’s meaning in Urdu, which was referred to by the Tribunal. The other inconsistency relating to the alleged persecutors concerned the number of persecutors present during his detention and interrogation which varied between four imams, five imams or two clerics in various expressions of the claims.

69    It is not necessary for the purposes of this judgment to give any further details of the appellant’s claim. However, one can observe that despite the inconsistencies as to some details of the claim, there was a consistent broad claim relating to the alleged detention and interrogation of the appellant and that some combination of police, clerics and extremists had interrogated and abused him. It would not necessarily be expected that a person in the position of the appellant some years later to be able to consistently and precisely recall the exact identity and number of his alleged persecutors or, indeed, what was said to him, in relation to the accusations made against him. His account is broadly consistent. The same could be said about accusations allegedly made against him by those who detained him, which the Tribunal considered to also be subject to inconsistencies, though these appear to broadly relate to accusations about converting Muslims.

70    The Tribunal noted at [145] of its reasons that confusion or problems with memory recall can lead even honest applicants to provide differing accounts. However, the Tribunal considered that the differences here could not be explained by poor memory or confusion.

71    It could be thought that, to a certain extent, a level of inconsistency is natural where evidence is required to be given on a number of different occasions, in a number of different ways, using different interpreters or translators and where that evidence relates to tramautic events. This is what the principles about fact finding I have discussed at [60]-[65] above reflect, and this should always be appreciated by the Tribunal. One must consider whether the inconsistencies and implausibilites relied upon by the Tribunal (in circumstances where it still accepted some of the appellant’s claims) could rationally be used as a basis for making such strong adverse credibility findings and then, most significantly, using these as a basis for rejecting the witness statements as evidence of perjurers in aid.

The witness statements

72    At this point, it is appropriate to give some greater consideration to the witness statements provided in support of the appellant’s claims. They included statements from his wife, his neighbours, his pastor and other churchgoers. These statements were given no weight by the Tribunal at [149] of its decision (set out at [28] above) on the basis that they contained no credible information as they repeated claims made by the appellant that the Tribunal had rejected.

73    A number of the witnesses claimed to be eyewitnesses to the appellant’s abduction and later return by the police and a number of clerics, as was alleged by the appellant. His neighbours gave evidence of the appellant being beaten in the street by two clerics and police and being accused, during the beating, of forcibly converting Muslims to Christianity. They later give evidence of the appellant being returned to his home by the police and five clerics; the appellant appearing as if he had been tortured; and, of the clerics announcing the appellant’s agreement to convert to Islam in the street. These accounts are consistent with the appellant’s claims. A similar account is provided by the appellant’s wife. The appellant’s pastor, in his statements, also describes the claims made by the appellant about being confronted by a cleric when in Nowshera who threatened to take them to a Sharia court. The pastor also provided evidence about the appellant’s detention and forced agreement to convert to Islam, and how he assisted the appellant to flee Pakistan.

74    It is readily apparent from the statements that these are detailed accounts, supportive of the appellant’s claims, which are also broadly consistent with both the claims and each other. It is this similarity with the appellant’s claims that led the Tribunal to reject the statements, strongly, as concocted. There was no detailed consideration in the Tribunal decision of the content of the statements, and what their truth might mean for the appellant’s claims. The statements were rejected as concocted as they repeated the claims made by the appellant, which the Tribunal had already rejected as lacking credibility.

The Tribunal’s approach to the witness statements

75    The Minister submitted that the approach taken by the Tribunal of giving no weight to the witness statements due to its prior rejection of the appellant’s claims was open to it, based on the decision of Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165. In that case, Gleeson CJ said the following at 77 ALJR 1168-1169 [12]:

… The essence of the complaint is that the Tribunal failed to consider the evidence as a whole, but first considered, and disbelieved, the evidence of the applicant/appellant, without taking account of the corroboration, and then considered and rejected the corroboration because of the rejection of the evidence of the applicant/appellant. I do not accept that this is a fair criticism of the Tribunal's reasons. In my view, all that the member was saying was that, for reasons already given at length, she found the applicant/appellant's story implausible, and in some important respects unbelievable, and that she also rejected the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons that she had already given for rejecting the claim she was considering. The member could have expressed herself more clearly. It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.

76    McHugh and Gummow JJ put the matter in the following way at 77 ALJR 1174 [49]:

In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant’s argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.

77    These passages are well known. Counsel and trial judges can often recall such a situation. As that experience will indicate, those passages contemplate a situation where the credit of an applicant or witnesses has been so damaged as to justify the complete rejection of any corroborative evidence put forward in support. I would question whether in the circumstances of a case where adverse credibility findings are made based on inconsistency or implausibility, the principle described is truly applicable, particularly in the sense of it being appropriate, before an inquisitorial Tribunal, to make an a priori assessment of credibility based on such matters and then reject wholly, without detailed analysis or discussion, corroborative evidence on that basis.

78    This is not to say that a Tribunal cannot have doubts about the veracity of an applicant’s account. The cases make that clear. Inconsistency (or indeed assessments of implausibility derived from country information) may be an important tool for the making of credibility findings where external information about an applicant’s claims is not available. There were no findings made by the Tribunal in this case based on demeanour or the giving of evidence, as would likely be the case where a witness’ credit has been destroyed under cross-examination. The findings here were solely based on inconsistency and implausibility. Additionally, there was no consideration by the Tribunal of the serious consequences for the appellant if its assessment of his claims turned out to be wrong: DAO16 353 ALR at 652 [36]; Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559 at 576. That can only be because it could entertain no doubt as to the untruthfulness of the actual claim. The consequences for the appellant in this case, if the Tribunal is wrong, are severe.

79    It is important also to read the passages from Applicant S20 in the context of some of their subsequent consideration. In SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638; 105 ALD 25 at 31 [23]-[24], Finkelstein J said the following about the proposition put forward by McHugh and Gummow JJ:

23 … That proposition is no doubt true. But the circumstances for its application will be rare indeed. Even experienced advocates can only point to a handful of cases where a witness’ credit has been so badly destroyed in cross-examination that it is possible to make findings of fact based on that evidence alone and simply disregard any corroborative evidence.

24 For example in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 the appellant complained that the tribunal failed to have regard to certain documents because the tribunal was not convinced that the documents could overcome the difficulties that it had with the appellant’s evidence. Lee and Moore JJ said at [27]:

Such a circumstance may arise where an applicant's claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material: see S20/2002 at [49] per McHugh and Gummow JJ. Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied … it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant's claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant's credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1 ; 62 ALD 225 at [82]-[85] per McHugh, Gummow and Hayne JJ.

80    North and Lander JJ in Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; 184 FCR 485 at 492 [38] doubted that Finkelstein J’s comment at [23] of SZDGC was intended to apply to a case where the Tribunal had given no weight to corroborative evidence, but instead was to be taken to have “addressed the situation where the corroborative evidence was disregarded”. Their Honours said the following:

The RRT would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence. Applicant S20/2002 does not sanction a practice of disregarding corroborative evidence. It still requires that the corroborative evidence be assessed and weighed in the balance with all the other evidence. Consequently, the observation concerning the dicta of McHugh and Gummow JJ at [49] in Applicant S20/2002 made in SZDGC at [23] is probably misdirected. Those observations addressed the situation where the corroborative evidence was disregarded.

81    The treatment here by the Tribunal of the witness statements was not to fail to consider them. The Tribunal stated at [149] (see [28] above) that it had considered the witness statements but gave them no weight.

82    The proposition that there was no legal unreasonableness apparent in the Tribunal’s use of inconsistencies and implausibilities as the basis for making the credibility findings that it did and rejecting the witness statements in the way it did is to be supported for two main reasons.

83    First, throughout the decision, the Tribunal draws links between the claims made and the conclusions it came to about those claims. The Tribunal did not approach each minor inconsistency as fatal to the appellant’s case. The Tribunal acknowledged at [135] that “some of these inconsistencies are of a relatively minor nature and considered alone would not have caused me to reject his claims in their entirety” and noted at [145] that honest applicants may indeed have differing accounts of real events. However, it concluded that in the context of all of the inconsistencies within the claim, both internally and when compared to country information, an adverse finding as to the appellant’s credit was warranted.

84    Secondly, although the Tribunal did reject the witness statements outright, it is clear that the Tribunal read the statements and considered their contents: see [149] of the Tribunal decision. It would have been preferable if this assessment of the witness statements came before the Tribunal dismissed the core claim of the appellant, especially considering the corroborative value of the witness statements. It would have been preferable if the Tribunal explained its assessment of the witness statements, and why it believed they were also concoctions, in more detail. It is not, in my opinion, particularly satisfactory to consider part of the evidence provided, come to a conclusion, and then dismiss corroborating evidence on the basis of that prior conclusion. However, whilst this may not be preferable, it does not ground a finding of legal unreasonableness or jurisdictional error in this particular case. This is not to say that it could never justify such a conclusion.

85    The proposition that there was legal unreasonableness in the Tribunal reaching the credit conclusion it did must be reflected in a proposition that although there was no factual error infecting the conclusions, the inconsistencies and so-called implausibilities could not rationally permit such a strong credit finding.

86    Notwithstanding some unease about the matter, I cannot conclude that the foundation for the credit finding was so weak as to make the conclusion as to credit irrational and so legally unreasonable. Notwithstanding the lack of reference to demeanour, there is a clear advantage in the Tribunal in having engaged with the appellant and considered his evidence as whole. The matters to which the Tribunal referred cannot, in my view, be characterised as incapable of persuading it not to accept the appellant’s evidence, in particular in the context of the advantage of seeing the appellant.

Declining to receive oral evidence from those who gave witness statements

87    As part of this ground, the appellant also submitted that the Tribunal had unreasonably exercised its discretion under s 426(3) of the Migration Act by declining to call those who had provided witness statements to give oral evidence. The Tribunal member’s statement at the hearing, outlining the Tribunal’s refusal to take oral evidence, was as follows:

… I also understand that there are a number of people who’ve provided statements that are on the file who you would say be able to give oral evidence. I’m not proposing to take oral evidence from those people at this time so just to let you know that’s not something I will be doing. I have of course read their statements and I will be taking account of all the information that you’ve provided when I make a decision on your case.

88    It can be inferred from the above statement by the Tribunal that the reason for this was because it had determined that the statements themselves contained no credible evidence.

89    A dispute emerged in oral submissions as to whether the appellant had, in actuality, made a request under s 426(2) for the Tribunal to receive oral evidence. The appellant did, however, mention in his response to the first hearing invitation that he was making arrangements to have his witnesses available to give evidence by Skype. For the purposes of dealing with this aspect of the ground of appeal, I will assume that this was sufficient to constitute a request under s 426.

90    It is clear that the discretion provided under s 426(3) must be exercised reasonably. However, it will not generally be unreasonable to decline to take oral evidence where on the face of the material before the Tribunal there is no reason to suppose that the witnesses could ameliorate concerns the Tribunal has about an applicant’s credibility: BTF15 v Minister for Immigration and Border Protection [2016] FCA 647 at [55]. The obligation upon the Tribunal is to give proper consideration to any request to take oral evidence: Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2005] FCAFC 118. In this case, the Tribunal did give that proper consideration to the extent required by law. Based on the findings it had reached, it was not unreasonable to decline to receive oral evidence from the witnesses.

Conclusion

91    I consider that ground 6 has sufficient merit to be argued. No prejudice to the Minister was identified and, therefore, I would grant leave to rely upon ground 6 on the appeal. However, for the reasons I have given, the ground of appeal should be dismissed.

Disposition

92    The six grounds of appeal in the amended notice of appeal do not reveal any jurisdictional error on the part of the Tribunal or error by the primary judge.

93    I would make the following orders:

1.    Leave be granted to file, read and rely upon the amended notice of appeal dated 11 April 2018.

2.    The appeal be dismissed with costs.

Associate:

Dated:    8 June 2018