FEDERAL COURT OF AUSTRALIA

BDN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 354

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

COLLIER J:

1    This is an appeal from the whole judgment of the Federal Circuit Court given on 25 September 2019 in BDN19 v Minister for Home Affairs & Anor [2019] FCCA 2717. In that decision, the primary Judge dismissed an application by the appellant for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal).

Background

2    The appellant is a citizen of Rwanda. He has been a journalist since 2010 and commenced working with a Rwandan newspaper, Igenzi Newspaper, in [redacted].

3    On 4 April 2018, he arrived in Australia on a Temporary Activity (Subclass 408) Visa which allowed him to attend and report on the Gold Coast Commonwealth Games as a journalist.

4    Upon arriving at Brisbane International Airport, the appellant sought asylum. On 19 April 2018, the appellant lodged an application for a Safe Haven Enterprise Visa.

5    On 28 May 2018, following an interview with a delegate of the Minister, the appellant lodged further material in support of his application. This material included a statutory declaration, along with two items of particular relevance to this appeal:

    A convocation (and English translation thereof) (convocation); and

    Various articles said to have been written by the appellant, including one in relation to a political opposition figure (PSM Article).

6    By letter dated 11 October 2018, the delegate invited the appellant to comment on the proposition that he had not provided evidence of “any political sensitive [sic] articles that identify you as their author”. The letter said an online version of the PSM Article “states that it was written by [redacted]” (Ephrem). The delegate also said he had accessed six articles on the appellant’s website that were “uploaded between 26 October and 10 November 2017” identifying the appellant as the author, which called into question the appellant’s claim that he had been imprisoned during that period.

7    On 17 October 2018, the appellant lodged a response that included the following:

(a) In a statutory declaration, the Appellant explained that Ephrem was his “boss” in Rwanda that he (the Appellant) did in fact write the PSM Article, but it was published under Ephrem’s name. He said this was a common practice.

(b) The Appellant provided material showing he had attempted to obtain evidence directly from Ephrem.

8    On 5 November 2018, the appellant provided the Department with a letter from Ephrem (the Ephrem letter), which stated as follows:

INGENZI NEWSPAPER

www.ingenzinyayo.com

KIGALI-RWANDA

[redacted]

Date: 17th October 2018

REF: TO WHOM IT MAY CONCERN

As a director and owner of Ingenzi Newspaper, a private publication that has its website ingenzinyayo.com and covers arbitrary persecution committed in Rwanda to journalists, I confirm that [redacted] worked with us covering political and legal information since 2015.

Because of the nature of the work of a journalist covering what is not in favour of the government of the country, it has become a culture in Rwanda that journalists are persecuted when doing their jobs. Because of the news they publish, some are arrested, other flee the country and others are even killed. As Director of Ingenzi Newspaper, we decided to publish information under a different name from the original author to ensure journalists’ safety. I also made a decision that political, legal and bribery reports should be under my name or the Newspaper Executive body’s name.

After an investigation conducted by Rwanda Police, they discovered that identities of journalists who were working for Ingenzi Newspaper included [redacted] who was also arrested because of the information he covered, and was published in Ingenzi Newspaper between 31st of August 2017 and 08/09/2017 with the title “[redacted]”, a story that caused him to be put behind bars. This was the trigger for [redacted] fleeing the country.

In conclusion, there is absolutely no freedom of speech in Rwanda especially for journalists working for private Newspapers. Whoever points a finger to what isn’t going well in the government is considered a threat and is to be dealt with. This has led to a huge number of journalists fleeing the country for their own safety.

Thank you,

Ephrem [redacted]

Director

INGENZI NEWSPAPER.

9    On the same day, the delegate of the Minister refused to grant the appellant a protection visa. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the appellant was a person to whom Australia owed protection obligations.

10    The appellant sought review of the delegate’s decision on 7 November 2018.

DECISION OF THE TRIBUNAL

11    On 15 January 2019, the appellant attended a hearing before the Tribunal accompanied by his migration agent and an interpreter. The appellant provided a further submission upon invitation.

12    On 25 February 2019, the Tribunal affirmed the decision of the delegate.

13    In its statement of reasons, the Tribunal relevantly set out the criteria for a protection visa at [3] to [7]. In accordance with Ministerial Direction No. 56, the Tribunal noted that it had taken account of policy guidelines under PAM 3 in respect of both refugee and complimentary protection criteria and relevant country information assessments prepared by the Department of Foreign Affairs and Trade for the purpose of determining protection status.

14    The Tribunal then set out the appellant’s background. The Tribunal noted that the appellant claimed to have married on 29 March 2018 prior to his departure for Australia, that he had two daughters, and claimed to be a Hutu of Christian Religion.

15    After a period of time in a UNHCR refugee camp, the appellant had been living in Rwanda.

16    The Tribunal relevantly set out the appellant’s claims for protection at [15] to [22] of its reasons:

15.     The applicant claims that he is a journalist covering sensitive political and other stories and the government is looking for him as a result. He claims to have been harassed, threatened and detained unlawfully as a result of his stories. He claims to be living in constant fear and is also fearful for the safety of his family who have had to relocate to Burrundi [sic].

16.     The applicant claims to have written an article about controversial Opposition leader, [redacted] in September 2017 and as a result received a convocation (a summons to appear in court) on [redacted]. He was kept in a police cell for 16 days and then taken to court. He claims that he has not been formally charged with anything but understands that a further court date had been set for May 2018. He does not know what happened as a result of failing to appear in court.

17.     The applicant claims that he fears that the Rwandan authorities will kidnap and harm his wife and children and they went to Burundi for safety in around December 2017. He claims it is not possible for him to travel to Burrundi [sic] and did not go to Uganda because it would look suspicious.

18.     In December 2017 the Rwanda Media Commission arrested his boss and suspended him for 3 months.

19.     The applicant claims he stopped writing for the Ingenzi Newspaper in December 2017 and a radio station in February 2018. His wife and children returned from Burrundi [sic] in March and stayed with him for a month. It was during this time that they got married.

20.     The applicant claims he was concerned the authorities would not let him leave the country and so he organised for a cousin who works at the airport to help him through immigration.

21.     The applicant claims that he has been charged falsely and been accused of working with the opposition. He claims that if he is returned he will be detained, tortured and forced to confess to further false charges. The applicant claims that there is no freedom in Rwanda to be a journalist, and that he is being targeted and threatened because he is a journalist.

22.     The applicant claims he has a well-founded fear of persecution for holding or being imputed to hold anti-government political opinions and for being a member of the following particular social groups:

a. a journalist;

b. a journalist that reports on politically sensitive issues;

c. his relatively low profile as a journalist in Rwanda; and

d. being a visa over stayer and failed asylum seeker.

17    The Tribunal took into account material provided by the appellant to the delegate, the Department and the Tribunal along with publicly sourced material, including:

•    Emails relating to the appellant’s application for a scholarship dated September 2016;

•    A letter of support from the appellant’s publisher, Ephrem, dated 17 October 2018;

•    A copy of the convocation received by the applicant dated [redacted];

•    Various letters of support; and

•    Emails and information sent to the applicant in relation to the Commonwealth Games accreditation and visa application and grant processes.

18    At the hearing, the Tribunal found that the appellant’s evidence was “evasive, incomplete, lacking in relevant detail and frequently implausible”: see [24] of the Tribunal’s decision. The appellant was given the opportunity to provide further documents and submissions after the hearing, which he did with a capable representative.

19    At [26] to [29] of its reasons, the Tribunal set out relevant considerations for dealing with issues of fact-finding and credibility issues. The Tribunal found that the appellant was “not a credible witness and his accounts of persecution and fear of harm are not well founded”: see [29] of the Tribunal’s decision.

20    The Tribunal observed at [31] of its reasons that human rights abuses continued in Rwanda, and could be motivated against people such as journalists if they wrote articles of support for the opposition or were perceived as anti-government.

21    The Tribunal found at [34] of its reasons that the appellant had considerable knowledge in relation to the Rwandan Commonwealth Games team, consistent with his employment as a sports journalist. However, at [35] the Tribunal noted that it had questioned the appellant about his detention in Rwanda and the contents of the alleged news article praising an opposition politician, and found that the appellant’s account lacked detail and was unpersuasive. Although the appellant claimed to be questioned for 4 days of his 16 day detention, the Tribunal found he was unable to provide a detailed or unrehearsed response to what had occurred during that 16 day period; any questions he had been asked; and charges that were alleged to have been made against him. The appellant also claimed that the people who were interrogating him about what he had written alleged that his articles went against national security. On this basis, the Tribunal found it unlikely that the appellant had been charged or that there were any outstanding charges.

22    In relation to the appellant’s claims that he was abducted in October 2017 for a few hours and assaulted by government officials due to a story he had been investigating, the Tribunal found the appellant’s account lacked relevant detail and plausibility and was unsupported by additional evidence: see [36] of the Tribunal’s reasons. In particular, the Tribunal noted that despite working as a journalist publishing anti-government articles in the “Igenzi Newspaper”, there was no evidence of any reports of alleged detention or assault of the appellant by government officials.

23    At [30] to [50] of the Tribunal’s reasons, there was discussion of the appellant’s claim that he faced persecution because of an imputed anti-government opinion and that he was a member a particular social group being a particular type of journalist.

24    At [38] of its reasons, the Tribunal noted that it had put to the appellant that it had difficulty accepting that he had been able to request and obtain a letter of support from his publisher, but was unable to ask that same publisher for copies of his articles. The appellant responded that his publisher was reluctant to involve himself and draw attention to himself. The appellant claimed that the articles were in the publisher’s name because that was standard practice.

25    The Tribunal observed:

39.     The Tribunal put to the applicant that it found his publisher’s letter of support not particularly strong evidence corroborating his claims. For example, the Tribunal notes that the publisher did not admit to being the author of those articles nor did he disclose that he had been arrested and his publication closed down. The Tribunal put to the applicant that his publisher’s letter stated that journalists generally were persecuted when doing their jobs and some are arrested whilst others flee. The letter continues to state that the applicant was arrested because of information he covered that was published between 31 August 2017 and 8 September 2017 but did not state what that “information” was.

40.     The Tribunal put to the applicant that it found it strange that he was arrested and detained for an article attributed to his publisher whilst his publisher was not. The applicant said that his publisher had been arrested and detained. The Tribunal notes that the applicant claimed in his original submission that his publisher was arrested in December and his publication suspended for three months. The Tribunal reminded the applicant that his publisher was nonetheless not imprisoned and that his newspaper was still publishing and operating a website at the time of the hearing. The Tribunal put to the applicant that this suggested that he had nothing to fear if he returned to Rwanda particularly as his name was not on any of the sensitive articles. The applicant strongly denied this.

41.     The applicant repeated an explanation he has put to the Tribunal and the delegate in that the authorities discovered that he was the author of the articles because they were told by his publisher. The Tribunal does not accept this explanation. It seems unlikely that the publisher would attribute articles written by others to himself in an effort to allegedly protect them and then disclose who they were when questioned.

26    At [43] of the Tribunal’s reasons, it accepted that some journalists have been subject to the adverse attention of the authorities by reason of their political journalism, and that they had been arrested, detained and prosecuted. However the Tribunal did not accept that the appellant had a profile that would cause him to come to the authorities’ attention for any reason, much less for his claimed political writing. The Tribunal did not accept that the appellant had written political articles, but did accept that he may have been a sports reporter in the past, supported by previous applications to cover previous Olympic Games.

27    At [45], the Tribunal discussed the appellant’s “vague account of his detention during October and November 2017” which he claimed to be the result of an article he had written for the Igenzi newspaper about the opposition leader. The Tribunal noted the appellant claimed the article was critical of the government.

28    The Tribunal said:

A copy of a convocation dated [redacted] does not indicate the reason for his summons but invites him to appear in Court on [redacted]. The applicant claims he was detained from that time in a police cell and then taken to court some sixteen (16) days later. He claims that he has not been formally charged with anything but claims that there is was [sic] a date set for May 2018 for him to appear. He has provided no additional evidence of the latter claim.

29    The Tribunal did not accept that the appellant was detained for 16 days or for any length of time and charged with a crime.

30    In his original submission, the appellant had claimed that Ephrem had been arrested and his publication suspended for three months: see [40] of the Tribunal’s decision. In relation to the political articles, the Tribunal said:

46.     … It seems to the Tribunal that if the applicant had written the political article about the opposition that he claims to have, then his punishment would have been more immediate and severe and, logically, he would be quite certain of what law he had broken at the time of his alleged detention.

47.     The Tribunal does not accept that the applicant wrote an anti-government story for the Ingenzi newspaper or that he was of interest for them for any reason. It seems to the Tribunal that the government is not afraid to declare publicly that it has detained persons, particularly journalists, for antigovernment activities. The Tribunal asked the applicant if his publisher had taken up his cause publicly and he said that he had not. The applicant said that it would be dangerous for them both if he published an article about his defection to Australia and his claims for asylum.

48.     In the Tribunal’s mind, if the publication was such that it would come to the adverse attention of the government, it would do so because it was publishing articles which demonstrated that dissidents, especially dissident journalists, would be punished severely. In the Tribunal’s mind, that the publication is still publishing and its editor unmolested for allegedly writing the articles that the applicant claims are the source of his well-founded fear of persecution, the Tribunal is not persuaded that the applicant’s account is either plausible or truthful.

49.     Indeed, even the letter from the applicant’s publisher does not support his claim that he has written particular political articles that have been attributed to the publisher. Equally, the fact that the newspaper continues to publish and have an online presence is at significant odds with the applicant’s claim that the newspaper is opposed to the Government. In the Tribunal’s mind, if this was the case and the government as opposed to political opposition as the applicant claims, the newspaper would have been shut down and its publisher charged and convicted with a crime and imprisoned or, at least, forced to flee.

(Emphasis added.)

31    The Tribunal was not satisfied that the appellant had a well-founded fear of persecution by reason of his actual, or imputed political opinion, or for his membership of a particular social group of journalists, or journalists reporting on politically sensitive issues, or his relatively low profile as a journalist in Rwanda.

32    The Tribunal discussed the appellant’s “well-founded fear of persecution” at [51] to [64] of its decision. At the time of applying for accreditation to cover the games in Brisbane in 2018, the appellant claimed to be working for the Ingenzi newspaper.

33    The Tribunal put to the appellant that despite his claimed period of detention (between 25 October 2017 and 10 November 2017), he was somehow able to lodge his visa application for the Commonwealth Games on 6 November 2017 (it was granted on 16 November 2017). The appellant was unable to explain why this was the case, but suggested that his agent had lodged it on his behalf.

34    The appellant was advised of his visa grant on around 22 December 2017 and received his Games Press Accreditation in February 2018. The Tribunal questioned the appellant about his fear of persecution, and the appellant claimed he was unaware that he could travel to Australia at the time the visa was granted. He insisted that he was made to understand that he could not arrive until mid-March 2018. At [56] of its reasons, the Tribunal stated:

… it seems to the Tribunal that if the applicant indeed had a well-founded fear of persecution he would have, at the very least, tested the proposition that he could go once he had in his possession a valid visa to travel to Australia from 11 December 2017. That he did not do so, but waited until the beginning of April 2018 to travel, strongly suggests to the Tribunal that he had no fear of persecution, well-founded or otherwise.

35    The appellant had also told the Tribunal that he was required to wait before departing Rwanda because he needed to save some money, however he had told the Tribunal that he was fired from his radio job in January 2018 and had not returned to the newspaper after his detention. The appellant claimed that he needed to make sure that his wife and children were safely relocated to Burundi. However, he had told the Tribunal that they travelled to Burundi in December. The appellant had also advised the Tribunal that his wife and their children returned to Rwanda in March 2018 for their wedding. The Tribunal put to the appellant that his fear of persecution could not have been so well founded if he found time to organise a wedding. The appellant explained that by getting married, he could further protect his family. The Tribunal put to him that with his name, they would be more easily identified and located by the persecuting authorities. The appellant explained that that was why he had sent his family to Burundi.

36    The appellant had also claimed to the Tribunal that he did not leave Rwanda early because he was concerned that it would bring him to the attention of the authorities. However, he did not provide this explanation when it was raised at the hearing. The Tribunal noted at [58] that since he claimed to not have considered the possibility of leaving Rwanda early, it was extremely unlikely his alleged fear of alerting the authorities would have arisen.

37    The Tribunal did not accept that the appellant could not travel to Burundi to live with his wife and children. Further, it did not accept that someone in genuine fear of their life would wait 4 months before departing the country in which they feared persecution.

38    In relation to the appellant’s claims that he bribed officials at the airport (namely his cousin who worked at the airport) to depart Rwanda on his passport, the Tribunal did not accept that the appellant had bribed anybody to obtain clearance to depart Rwanda or that he was of interest to the authorities such that they would prevent his departure. The Tribunal found that if the appellant did have a genuine fear of being detained upon his departure he would have sought to obtain a guarantee or at least a sound explanation from his cousin about what measures had been taken on his behalf. On this basis, the Tribunal at [63] found that the appellant had concocted this account in order to support his protection claims.

39    In relation to the appellant’s claim that he would be considered to have committed treason for overstaying in Australia and would be persecuted for that reason, the Tribunal found that there was no reason why the Rwandan authorities would be aware or informed that the appellant had applied for asylum or that he had overstayed unlawfully or been held in detention. The Tribunal noted that the appellant had not been active in his anti-government comments in Australia either directly or through social media. As the Tribunal found that the appellant was of no interest to the authorities in Rwanda, the Tribunal was not satisfied that the appellant would suffer any harm if he returned to Rwanda.

40    The Tribunal gave no probative weight to any of the letters of support on which the appellant relied on, including the Ephrem letter. The Tribunal at [72] of its reasons accepted that the writers were motivated to assist the appellant in his claims to remain in Australia, but none of the writers were witness to, nor could they attest to, the alleged persecution that the appellant faced or would face if he returned to Rwanda.

41    The Tribunal went on to say at [73] of its reasons:

The Tribunal has also considered the cumulative impact of the applicant’s claims such that the combination of his actual or imputed political opinion, membership of a particular social group of various kinds of journalists and/or failed asylum seekers, method of departure and any integers of those indicators would amount to a well-founded fear of persecution or bring the applicant to the attention of the authorities such that his return to Rwanda would result in him suffering significant harm, and is not satisfied that there is a real risk that the applicant will suffer significant harm.

DECISION OF THE FEDERAL CIRCUIT COURT

42    On 18 March 2019, the appellant filed an application for review of the Tribunal’s decision in the Federal Circuit Court. He filed an amended application on 19 August 2019.

43    The grounds of review before the primary Judge were as follows:

Grounds of application

1.     The decision of the Administrative Appeals Tribunal is affected by jurisdictional error because its rejection of the Applicant’s claims was premised on illogical or irrational reasoning or was otherwise made as a result of a failure to take into account material critical to the formation of the requisite state of satisfaction.

PARTICULARS

1.1.     An important part of the Applicant’s claim for protection was his claim that he was a reporter who reported on political issues and, in particular, who authored an article about a Rwandan opposition figure.

1.2.     In support of his claim for protection, the Applicant submitted and relied on a letter Mr Ephrem Nsengumuremyi, described as the Director of Ingenzi Newspaper (“the Director’s Letter”)(Court Book, p184).

1.3.     The Tribunal said that the Director’s Letter was “not particularly strong evidence corroborating” the Applicant’s claims (para 39) and eventually determined to give “no probative weight to” the Director’s Letter (para 72).

1.4.     The Tribunal relied, in part, on its opinion that (in the Director’s Letter) “the publisher did not admit to being the author of those articles” (par 39), but it was no part of the Applicant’s case that the publisher was the “author” of any particular articles and the Director’s Letter stated that the Director “made a decision that political, legal and bribery reports should be under my name or the Newspaper Executive body’s name” (Court Book, p 184).

1.5.     The Tribunal relied, in part, on its opinion that the Director’s Letter stated “that the applicant was arrested because of information he covered that was published between 31 August 2017 and 8 September 2017 but did not state what that ‘information’ was” (para 39), whereas the Director’s Letter expressly identified the “information” as being an article “published in Ingenzi Newspaper” and having the title “PSM Itabaza Muruhando rwa Politike Nyarwanda” (and a copy of that article was before the Tribunal: Court Book, p 101).

1.6.     The Tribunal relied, in part, on its opinion that the Director’s Letter “does not support his [ie, the Applicant’s] claim that he has written particular political articles that have been attributed to the publisher” (para 49), whereas the Director’s Letter expressly stated that the article titled “PSM Itabaza Muruhando rwa Politike Nyarwanda” was “information he [ie, the Applicant] covered” (Court Book, p 184).

1.7.     The Tribunal relied, in part, on its opinion that the author of the Director’s Letter was not “witness to, nor can they attest to, the alleged persecution that the applicant faces or would face if he returns” (para 72), whereas the Director’s Letter expressly attested to the fact that the Applicant “was also arrested because of the information he covered” and that this “was the trigger” for the Applicant fleeing the country (Court Book, p 184).

...

3.     The decision of the Administrative Appeals Tribunal is affected by jurisdictional error in that the Tribunal failed to properly consider an integer of the Applicant’s claims or failed to properly apply the “well-founded fear of persecution” test under section 5J of the Migration Act 1958.

PARTICULARS     

3.1.     An important part of the applicant’s claim for protection was his claim that he was issued a convocation dated [redacted] to attend the [redacted] police station in [redacted], Rwanda on [redacted] and that he was then detained by the Rwandan police between 25 October 2017 and 10 November 2017.

3.2.     The Tribunal failed to make any finding about whether the convocation was genuine, saying that the “document may or may not be genuine” (Court Book, p 390).

3.3.     By failing to make a finding about whether the convocation was genuine, the Tribunal failed to properly consider an important integer of the Applicant’s claim for protection.

3.4.     By failing to make a finding about whether the convocation was genuine, the Tribunal failed to properly assess whether there was a “real chance” of persecution and thereby failed to properly apply the “well-founded fear of persecution” test under section 5J of the Migration Act 1958.

44    The primary Judge dealt with ground 1 between [18] to [23] of his Honour’s reasons, and ground 3 at paragraphs [28] to [30]. Although ground 2 of the application was pressed before the primary Judge, I note that it is not relevant to this appeal.

45    In relation to ground 1 of the amended application for review, the primary Judge referred to the Tribunal’s finding that the Ephrem letter of 17 October 2018 did not support the appellant’s claims. His Honour noted the appellant’s criticism of the following observation of the Tribunal:

“For example, the Tribunal notes that the publisher did not admit to being the author of those articles nor did he disclose that he had been arrested and his publication closed down.”

46    The primary Judge said at [19] of the decision:

Such sentence, when read in context, seems to have omitted the applicant’s name between the words “did not admit to” and “the author of those articles”. The letter, in its entirety, makes no reference to the applicant being the author of the quoted article “The Light in Rwandan Political Arena”. The letter merely stated that the applicant was arrested because of “information he covered, and was published”, whatever that was meant to convey. Similarly, the letter does not state that anything authored by the applicant was ever published under a different name, only that it was decided to publish information under a different name from the original author to “ensure journalists’ safety”. That doesn’t constitute a statement that the applicant ever authored any such article. One would have expected that the letter of support from Ephrem would have specifically referred to the applicant as being the author of an article if he had been.

47    The primary Judge acknowledged that the appellant had told the Tribunal, recorded at [38] of its decision, that his publisher Ephrem “was reluctant to get involved and draw attention to himself”. His Honour contrasted this point with the appellant’s claim that Ephrem, with reference to politically charged journal articles, would “put his name to those articles because that was the practice”. The primary Judge found these assertions to be “contradictory and implausible”. The primary Judge found that the Tribunal was entitled to draw the inferences it did based on the evidence before it, and that the Tribunal’s findings were open on the material before it. At [20] of the decision, his Honour said:

The Tribunal was entitled to be sceptical of the applicant asserting that the publisher was reluctant to get involved and draw attention to himself on the one hand, yet would pen his name to an article critical of the government, or praising of the opposition, on the other hand. Such complaints made by the applicant are without merit.

48    In relation to ground 1.5 of the amended application, namely the Tribunal’s findings that the Ephrem letter did not state what the “information” was which resulted in the appellant’s arrest, the primary Judge observed that “the Tribunal was understandably confused by the wording of the letter”. His Honour went on to say at [21]:

It was correct that the particular story referred to in the letter was that which was said to have caused the applicant to be arrested. It is also correct that the “information he covered” was never identified, as was found by the Tribunal. The Tribunal was trying to interpret a letter which used the words “a story” in one part of the letter and the words “information he covered”, in another part of the letter, in circumstances where the “information” the applicant was said to have covered was not identified. In any event, nothing of moment turns on the findings of the Tribunal at [39] relevant to the applicant’s 1.5 complaint. In the overall context of the findings at [39], the relevant findings were those relating to the contradictory assertions of the applicant as noted in paragraph 19 above. The Ephrem letter lacks the detail which one would have expected had the applicant in fact authored the offending article alleged to have given rise to anger on the part of the government or its supporters.

(Emphasis added.)

49    Ground 1.6 challenged the first sentence of the Tribunal’s findings at [40], namely:

“The Tribunal put to the applicant that it found it strange that he was arrested and detained for an article attributed to his publisher whilst his publisher was not.

50    The primary Judge found this ground to be without merit as being contradictory and implausible in circumstances where:

    The Tribunal had noted the appellant’s claims that his publisher had been arrested and detained.

    The Tribunal had referred to the appellant’s claims in his original submission that his publisher had been arrested in December 2017 and that the publication had been suspended for 3 months.

    The appellant’s publisher had not been imprisoned and the newspaper was still publishing and operating a website at the time of the hearing.

    The Tribunal put to the appellant that he had nothing to fear if he returned to Rwanda, particularly since the appellant’s name had not appeared on any of the sensitive articles, however the appellant denied this.

    The appellant’s claim that his identity as the author of the articles was given to the authorities by his publisher was not accepted as plausible by the Tribunal, because the publisher had put his own name to such articles.

51    Ground 1.7 of the amended application challenged the Tribunal’s finding at [72], namely that the Tribunal gave no probative weight to any of the letters provided by the appellant, noting that “the writers are motivated to assist the applicant in his claims to remain in Australia, but none of the writers were witness to, nor can they attest to, the alleged persecution that the applicant faces or would face if he returns”. The appellant submitted that the Tribunal erred in the way it assessed the evidence before it. The primary Judge noted that, on the face of the Ephrem letter, Ephrem did not attest to having personally observed the appellant during his alleged period of incarceration, nor did the author say what, if any, persecution the appellant would face if he was returned to Rwanda. In these circumstances, the primary Judge found “there can be no criticism of that finding of the Tribunal”.

52    As to ground 3 of the amended application for review, the primary Judge noted that the appellant had asserted that the Tribunal failed to properly address issues related to the well-founded fear of persecution test under section 5J of the Migration Act 1958 (Cth) (Migration Act). In relation to the question of genuineness of the convocation document, the Tribunal said at [68]:

This document may or may not be genuine. It is numbered “01” which seems unlikely that it is the first summons issued in Rwanda at that time. The Convocation states that the applicant is required under article 46 of the law to present himself to the police station. It is dated [redacted]. The document does not state the purpose of the presentation or what law the applicant has breached. Without any supporting evidence it may well be for a parking ticket, for example.

53    The appellant claimed that the Tribunal failed to make a finding concerning whether such document was genuine or not. The primary Judge queried how the Tribunal was to make such a finding, in circumstances where there was no supporting evidence provided by the appellant as to whether the document was in its usual form as used in Rwanda, whether the purported seal on the document was the official seal of a criminal court in Rwanda, or whether the issuer of such convocation was a real person authorised to sign such a document. The primary Judge found the Tribunal engaged with the topic, but expressed its unwillingness to state that the document was valid as opposed to being forced. His Honour said:

In the absence of supporting evidence, the primary Judge held the Tribunal was entitled to refrain from making any such finding as was asserted should have been done by the applicant.

54    His Honour continued at [30]:

The Tribunal closely considered all of the evidence before it. Its findings were consistent with a reasonable understanding of the applicant’s various claims. It did not act in an irrational or erratic manner when arriving at its findings.

55    Ultimately, the primary Judge found that the appellant had failed to establish jurisdictional error on the part of the Tribunal, and dismissed his application.

APPEAL TO the federal court

56    On 10 October 2019, the appellant filed a notice of appeal in which he relied on the following two grounds:

1.    The learned primary Judge erred by failing to find that the decision of the Administrative Appeals Tribunal was affected by jurisdictional error because its rejection of the Appellant’s claims was premised on illogical or irrational reasoning or was otherwise made as a result of a failure to take into account material critical to the formation of the requisite state of satisfaction.

2.    The learned primary Judge erred by failing to find that the decision of the Administrative Appeals Tribunal was affected by jurisdictional error in that the Tribunal failed to properly consider an integer of the Appellant’s claims or failed to properly apply the “well-founded fear of persecution” test under section 5J of the Migration Act 1958.

submissions of the parties

Ground one

57    In relation to the first ground of appeal the appellant submitted in writing that the Tribunal’s treatment of the Ephrem letter revealed error in that:

(a)     First, the Tribunal formed an opinion that Ephrem, in his Letter, “did not admit to being the author of those articles”. However, it was no part of the Appellant’s case that the publisher (Ephrem) was the “author” of any particular articles and Ephrem’s Letter included a statement that he had “made a decision that political, legal and bribery reports should be under my name or the Newspaper Executive body’s name”.

(b)     Second, the Tribunal formed an opinion that Ephrem’s Letter stated “that the applicant was arrested because of information he covered that was published between 31 August 2017 and 8 September 2017 but did not state what that ‘information’ was”. That is, the Tribunal treated Ephrem’s Letter as failing to identify what “information” the Appellant had covered and published. In truth, Ephrem’s Letter expressly identified the “information” as being an article “published in Ingenzi Newspaper” and having the title “[redacted]” (ie, the PSM Article). It described the PSM Article as “a story that caused [the Appellant] to be put behind bars”. During the hearing the Tribunal member said that Ephrem’s Letter “says that you wrote this article”, but the member then misconstrued the Letter when making the decision.

(c)     Third, the Tribunal formed an opinion that Ephrem’s Letter “does not support [the Appellant’s] claim that he has written particular political articles that have been attributed to the publisher”. Again, contrary to the Tribunal’s opinion, Ephrem’s Letter expressly stated that the PSM Article was “information he [ie, the Appellant] covered”.

(d)     Fourth, the Tribunal formed an opinion that Ephrem was not “witness to, nor can they attest to, the alleged persecution that the applicant faces or would face if he returns”. Contrary to that opinion, Ephrem’s Letter expressly attested to the fact that the Appellant “was also arrested because of the information he covered” and that this “was the trigger” for the Appellant fleeing the country. That evidence showed that Ephrem (who was the Director of the relevant newspaper) was at least capable of attesting to the alleged persecution that the Appellant might face.

58    Alternatively, the appellant submitted that the Tribunal misunderstood the Ephrem letter, or that it failed to genuinely consider the content of the letter, revealing jurisdictional error: Minister for Immigration and Citizenship v MZYZA [2013] FCA 572 at [60].

59    Finally, the appellant contended that the Tribunal giving “no probative weight” to the Ephrem letter was material to the review, because if the Tribunal had decided to give some probative weight, there was a real prospect of a different result on review.

60    In relation to the first ground of appeal, the Minister submitted that establishing jurisdictional error on the basis of illogicality or irrationality required a high threshold of satisfaction which was not achieved in circumstances where the appellant’s primary complaint concerned the weight attributed by the Tribunal to the Ephrem letter, and the Tribunal clearly understood that the appellant’s case was that the appellant had written the articles but Ephrem had “put his name on them”.

61    The Minister also submitted that the Tribunal’s reasoning was not illogical because Ephrem said that the appellant “covered” information which ended up as published articles, but did not expressly say that the appellant was the author of such article.

62    To the extent that the appellant took issue with the Tribunal’s reasons at [39], the Minister submitted that this complaint involved a construction of the Tribunal’s reasons with an eye to error.

63    In respect of the appellant’s complaint that the finding of the Tribunal at [49] was not open having regard to the content of the Ephrem letter, the Minister submitted that:

    the Ephrem letter did not specifically identify that the articles had been published in Ephrem’s name;

    the Ephrem letter did not expressly state that the appellant had “written” the particular political articles;

    it was open to infer that the appellant was involved in the process of collating the information for the publication but the word “covered” did not mean “written”; and

    there was ambiguity as to whether articles are published in Ephrem’s name or published under the newspaper body’s name.

64    In relation to the Tribunal’s comment that Ephrem “[was not a] witness to, nor can [he] attest to, the alleged persecution the applicant faces or would face if he returns”, the appellant submitted that the Ephrem letter had attested to the fact that the appellant “was… arrested because of the information he covered” and that this was “the trigger for [the appellant] fleeing the country”. The Minister submitted that the Tribunal could be taken to have found that the Ephrem letter did not disclose that the evidence in his letter was based on first-hand knowledge.

65    The Minister submitted that the appellant could not establish that the weight attribution given to the Ephrem letter was critical, because the Tribunal found that the appellant’s claims were affected by numerous and significant issues that were completely (or largely) divorced from the Ephrem letter.

66    The Minister submitted that a fair reading of the Tribunal’s decision showed that the Tribunal considered the appellant to lack credibility, and the letter could not be given such weight as to overcome the significant issues with the appellant’s claims as identified by the Tribunal.

Ground two

67    Materially, in relation to the second ground of appeal the appellant contended that:

    the Tribunal erred in failing to make any finding about whether the convocation relied upon by the appellant was genuine;

    this was in circumstances where the convocation was a key aspect of the appellant’s claim; and

    had the Tribunal accepted that the convocation was genuine, this could have provided significant support for the appellant’s claim.

68    The Minister submitted that:

    all claims and their essential components or integers required consideration, however it was unclear how the convocation document was an “integer” of the appellant’s claims;

    the integers of a claim were the allegations of fact made by an applicant which, if accepted, would lead the decision-maker to be satisfied that the person will be harmed if they return to their country of origin. This must be distinguished from the applicant’s evidence in support of such claims;

    the relevant integer in this case was the factual allegation that police had issued a convocation to the appellant requiring him to attend on them in relation to the PSM article, which was a different question from whether the Tribunal was satisfied that the convocation document was genuine; and

    it was open for a Tribunal to place no or little weight on the document without making a formal finding on the issue.

consideration

Ground one

69    The appellant’s first ground of appeal contends two instances of jurisdictional error:

(1)    That the Tribunal engaged in illogical or irrational reasoning in the course of reaching its state of satisfaction required under s 36 of the Migration Act; and

(2)    That the Tribunal fell into jurisdictional error in its misunderstanding of the Ephrem letter, which caused a failure to properly consider the Ephrem letter.

70    In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (SZMDS) at [123]-[124] Gummow ACJ and Kiefel J (as her Honour then was) explained that a finding is not illogical or irrational if it is one which a logical or rational decision-maker could reach on the material. Further, in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [37]-[38] Gummow and Hayne JJ observed that the critical question was whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.

71    In considering the first ground of appeal, it is not proper for me to be concerned with looseness in the language nor unhappy phrasing in administrative decisions; further it is not appropriate to construe the Tribunal’s reasons minutely and finely with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6. I also note that the reasons of the Tribunal should be viewed as a whole: AON15 v Minister for Immigration and Border Protection [2019] FCAFC 48 at [56], BXK15 v Minister for Immigration and Border Protection (2018) 261 FCR 515; [2018] FCAFC 76 at [12].

72    Fundamentally, in his first ground of appeal the appellant criticised the Tribunal’s analysis and treatment of, and weight attributed to, the Ephrem letter. He claimed that this letter demonstrated as follows:

    that he worked for a newspaper;

    that there was an issue surrounding the identity of journalists who wrote for the newspaper;

    that he had written articles which caused him to be “put behind bars”;

    that although his stories had been published under the by-line “Ephrem” the government authorities in Rwanda had become aware that he was the author; and

    that his fear of persecution had caused him to flee Rwanda.

In this context, the Tribunal at [39] of its reasons said:

The Tribunal put to the applicant that it found his publisher’s letter of support not particularly strong evidence corroborating his claims. For example, the Tribunal notes that the publisher did not admit to being the author of those articles nor did he disclose that he had been arrested and his publication closed down. …

(Emphasis added.)

73    While paragraph [39] of the Tribunal’s reasons is curiously worded – in particular, it is difficult to identify how any admission by the publisher that the publisher was or was not the author of the articles was relevant for the purposes of the appellant’s claims – I am not persuaded that the Tribunal failed to understand the import of the letter, its significance in the context of the appellant’s claim, or the basis on which the appellant was relying on the letter.

74    First, I am satisfied clear that the Tribunal did understand that the appellant claimed he had written politically sensitive articles, that those articles were published under the nom de plume “Ephrem”, that Ephrem was also the actual publisher of the newspaper in which the articles were published, and that the appellant further claimed he was in fear of his life in Rwanda because of repercussions from those articles. That the Tribunal did understand these matters, and took them into account, was evident from observations of the Tribunal throughout its reasons. In particular I note:

    At [38] where the Tribunal stated:

The Tribunal put to the applicant that it found it difficult to accept that he had been able to request and obtain a letter of support from his publisher but was unable to ask that same publisher for copies of his articles. The applicant told the Tribunal that his publisher was reluctant to get involved and draw attention to himself. The applicant claims that his publisher put his name to those articles because that was the practice.

    At [40] where the Tribunal stated:

….The Tribunal put to the applicant that this suggested that he had nothing to fear if he returned to Rwanda particularly as his name was not on any of the sensitive articles. The applicant strongly denied this.

    At [41] where the Tribunal stated:

The applicant repeated an explanation he has put to the Tribunal and the delegate in that the authorities discovered that he was the author of the articles because they were told by his publisher. The Tribunal does not accept this explanation. It seems unlikely that the publisher would attribute articles written by others to himself in an effort to allegedly protect them and then disclose who they were when questioned.

    At [43] where the Tribunal stated:

… The Tribunal does not accept that the applicant has written political articles…

    At [45] where the Tribunal stated:

The applicant gave the Tribunal a vague account of his detention… he claims was the result of an article he had written for the Ingenzi newspaper about the opposition leader. He claims the article was critical of the government…

    At [46] where the Tribunal stated:

… It seems to the Tribunal that if the applicant had written the political article about the opposition that he claims to have, then his punishment would have been more immediate and severe and, logically, he would be quite certain of what law he had broken at the time of his alleged detention.

    At [47] where the Tribunal stated:

The Tribunal does not accept that the applicant wrote an anti-government story for the Ingenzi newspaper or that he was of interest for them for any reason…

    At [48] where the Tribunal stated:

… In the Tribunal’s mind, that the publication is still publishing and its editor unmolested for allegedly writing the articles that the applicant claims are the source of his well-founded fear of persecution, the Tribunal is not persuaded that the applicant’s account is either plausible or truthful

    At [49] where the Tribunal stated:

Indeed, even the letter from the applicant’s publisher does not support his claim that he has written particular political articles that have been attributed to the publisher…

    At [69] and [72] where the Tribunal stated:

69.    The applicant has provided a letter allegedly from his former employer who states that the applicant covered political and legal issues since 2015. Ephrem confirms that the applicant did not publish under his own name for safety reasons. He also states that “an investigation conducted by Rwanda Police discovered the identities of journalists writing for the newspaper including the applicant who was arrested because of the issues he covered.”

…

72.    The Tribunal gives no probative weight to any of these letters. The Tribunal accepts that the writers are motivated to assist the applicant in his claims to remain in Australia….

(Emphasis added.)

75    The Tribunal, however, did not accept this aspect of the appellant’s claim. I see no illogicality or irrationality in this conclusion.

76    Second, the Tribunal’s rejection of the appellant’s claims was bolstered by the Tribunal’s findings concerning his credibility as a whole. In particular I note:

    The Tribunal considered that the appellant’s oral account about his detention and the PSM article was “lack[ing] in relevant detail and was unpersuasive”: see [35] of the Tribunal’s reasons.

    The Tribunal considered that the appellant’s claims about having been abducted in October 2017 “lack[ed] relevant detail and plausibility and [was] unsupported by any additional evidence”: see [36] of the Tribunal’s reasons.

    The appellant was unable to produce the articles that he allegedly wrote as evidence (see [37] of the Tribunal’s reasons), something the Tribunal found to be implausible given that he had been able to obtain other evidence from his publisher (the Ephrem letter): see [38] of the Tribunal’s reasons. .

    The Tribunal considered it to be implausible that the appellant’s publisher had not been imprisoned, and was still publishing at the time of the decision: see [40] and [48] of the Tribunal’s reasons.

    The Tribunal considered the appellant’s assertion that his publisher revealed that the appellant was the author of the articles to the authorities to be implausible in the circumstances of the case: see [41] of the Tribunal’s reasons.

    The Tribunal found the appellant’s account of his detention to be vague: see [45] of the Tribunal’s reasons.

    The appellant had provided no evidence to support his claim that he was required to attend on the Court in Rwanda: see [45] of the Tribunal’s reasons.

    The Tribunal considered that it was implausible that the appellant did not receive a more immediate and severe punishment if he had written an article of the nature he claimed: see [46] of the Tribunal’s reasons.

    The Tribunal considered that it was implausible that the appellant was not quite certain of what law he had broken at the time of his alleged detention: see [46] of the Tribunal’s reasons.

    The Tribunal considered the appellant’s claims that the newspaper continued to publish, was at odds with the appellant’s claims that the newspaper was opposed to the government: see [49] of the Tribunal’s reasons.

    The Tribunal considered it anomalous that the appellant had been able to apply for his visa while detained: see [52] of the Tribunal’s reasons.

    The appellant’s claims that he could not travel to Australia prior to a particular date was unsupported by any documentation before the Tribunal: see [54] of the Tribunal’s reasons.

    The Tribunal considered it unusual that the appellant, despite allegedly having a well-founded fear of persecution, would delay a significant period of time before fleeing to Australia: see [56] of the Tribunal’s reasons.

    The Tribunal considered it to be inconsistent with the appellant having a fear of harm that he delayed coming to Australia to organise a wedding: see [57] of the Tribunal’s reasons.

    The appellant was not able to provide an explanation at the Tribunal hearing as to why he delayed leaving Rwanda: see [58] of the Tribunal’s reasons.

    The explanation that the appellant ultimately provided for why he delayed coming to Australia was considered by the Tribunal to be implausible: see [58] of the Tribunal’s reasons.

    The appellant was unable to provide any intelligible explanation during the Tribunal hearing for why he could not leave Rwanda voluntarily: see [61] of the Tribunal’s reasons.

    The Tribunal considered the subsequent explanation provided by the appellant’s agent for why he could not leave Rwanda voluntarily to be implausible and found that the appellant had concocted this particular aspect of his claims: see [63] of the Tribunal’s reasons.

    The Tribunal found that the evidence the appellant had given at the hearing was “evasive, incomplete, lacking in relevant detail and frequently implausible” despite him being given “every opportunity to put his evidence, clarify and restate remarks and otherwise respond to the Tribunal’s particularised concerns” : see [24] of the Tribunal’s reasons.

    The Tribunal considered that the appellant was not a credible witness: see [29] of the Tribunal’s reasons.

77    All of these findings in respect of the appellant’s credibility were open to the Tribunal.

78    Third, these points were similarly made by the primary Judge in this case. In particular I note the comments of his Honour at [9]-[17] of the primary judgment where his Honour, in detail, examined the appellant’s case before the Tribunal and the Tribunal’s findings.

79    In conclusion, the fact that the Tribunal was meticulous in its examination of the appellant’s claims, and rejected those claims, does not mean that the Tribunal was illogical or irrational in respect of those conclusions. I am also satisfied that there is no merit to the appellant’s claim that the Tribunal failed to properly take into consideration this aspect of his case.

80    In my view ground 1 is not substantiated.

Ground two

81    An applicant for judicial review bears the onus of establishing that a relevant matter was not considered: see BVD17 v Minister for Immigration and Border Protection (2019) 373 ALR 196; [2019] HCA 34 at [38]. Such a finding is not made lightly and it must be supported by clear evidence: see Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 at [48].

82    In the process of “considering” a matter, the Tribunal is obliged to engage in an active and intellectual process with reference to that matter: see Ticker v Chapman (1995) 57 FCR 451 at [462]. This process is a requirement to be mindful, or think about the matter in an active and intellectual manner: He v Minister for Immigration and Border Protection (2017) 255 FCR 41; [2017] FCAFC 206 at [52].

83    In relation to whether the Tribunal has actively considered mandatory relevant considerations – including relevant documentation – it is not necessary for the Tribunal to make an express finding in order for an inference to be drawn that it has been considered by the Tribunal: see Minister for Home Affairs v Buadromo (2018) 362 ALR 48; [2018] FCAFC 151 at [46] and [60]-[61].

84    In the present case the “integer” the appellant claimed was the subject of jurisdictional error (on account of the alleged failure on the part of the Tribunal to give it consideration) concerned an alleged convocation requiring the appellant to present himself at the police station. The appellant submitted further that, had the Tribunal accepted the convocation as genuine, the document could have provided significant support for the appellant’s claims.

85    In relation to the convocation, the Tribunal said at [45] of its decision:

A copy of a convocation dated [redacted] does not indicate the reason for his summons but invites him to appear in Court on [redacted]. The applicant claims he was detained from that time in a police cell and then taken to court some sixteen (16) days later. He claims that he has not been formally charged with anything but claims that there is was [sic] a date set for [redacted] for him to appear. He has provided no additional evidence of the latter claim.

86    Later at [68] of its decision, the Tribunal continued:

This document may or may not be genuine. It is numbered “01” which seems unlikely that it is the first summons issued in Rwanda at that time. The Convocation states that the applicant is required under article 46 of the law to present himself to the police station. It is dated [redacted]. The document does not state the purpose of the presentation or what law the applicant has breached. Without any supporting evidence it may well be for a parking ticket, for example.

87    In considering the appellant’s application insofar as concerns the convocation, the primary Judge observed:

29.    The applicant claims that the Tribunal failed to make a finding about whether such document was genuine or not. The answer to such assertion which most readily comes to mind is how the Tribunal was to make any such finding, in circumstances where there was no supporting evidence given as to whether the document was in the usual form used in Rwanda, whether the purported seal on the document was the actual seal of a criminal court in Rwanda, or whether the purported issuer of the convocation was a real person authorised to sign such a document. The Tribunal did engage on the topic, but expressed its unwillingness to state that the document was valid as opposed to its being a forgery. In the absence of supporting evidence, the Tribunal was entitled to refrain from making any such finding as was asserted should have been done by the applicant.

88    It is evident that the Tribunal actively considered the legitimacy of the convocation on which the appellant relied. Ultimately, the Tribunal’s findings were inconclusive, because the Tribunal was unable on the material before it to conclude whether the convocation was genuine. I agree with the observation of the primary Judge at [29] that, in such circumstances, the Tribunal was entitled to refrain from making any such finding. I respectfully note a similar approach recently adopted by Snaden J in AAG16 v Minister for Immigration and Border Protection [2019] FCA 1214 where a visa applicant claimed that the Tribunal committed jurisdictional error by failing to make any finding as to whether it was satisfied that certain documents were authentic. As Snaden J relevantly observed:

57.     To speak of its obligation to “take account” of the TTP Letters is to do no more than to recognise that the Tribunal was obliged to engage in an “active intellectual process” directed to the issue or question in respect of which the appellants advanced them: Tickner v Chapman (1995) 57 FCR 451, 462 (Black CJ), 476–477 (Burchett J), 495–496 (Kiefel J); Carrascalao v Minister for Immigration & Border Protection (2017) 252 FCR 352, 364 (Griffiths, White and Bromwich JJ); Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1, 7 (Lindgren, Rares and Foster JJ); Telstra Corporation Ltd v ACCC (2008) 176 FCR 153, 181–182 (Rares J). The Tribunal was obliged to recognise that the TTP Letters were advanced in support of the appellants’ contention that the TTP had threatened the first appellant; and then, conscious of that reality, to turn its mind to whether or not the TTP Letters warranted acceptance of that claim.

58.     There is not any real doubt that the Tribunal in this case turned its mind to – that is to say, engaged in an active intellectual process regarding – what should be made of the TTP Letters. Its reasons contained several references to them and exposed a clear consciousness of their significance to the appellants’ Visa Application (namely, that they supported the appellants’ contention that the TTP had mistaken the first appellant for a spy and had threatened him accordingly). The Tribunal evidently did not consider that the TTP Letters, viewed under the light of other considerations, were sufficient to warrant acceptance of that contention. Whether that was because it considered that they were fake was not stated (although it is difficult to envisage any other explanation). But, regardless, the Tribunal was not obliged to form or state a view on that, nor to explain “…the sub-set of reasons why it accepted or rejected individual pieces of evidence…”: Buadromo, 59 [48] (Besanko, Barker and Bromwich JJ); Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, 423 [67] (McHugh J). Subject to the principles governing legal unreasonableness – which, as already identified, are not engaged by this ground of appeal – it was for the Tribunal to determine what weight it gave to the evidence, including the TTP Letters, that informed its conclusion that the first appellant had not been mistaken for a spy or relevantly threatened.

59.     The conclusion expressed in the previous paragraph, it must be conceded, is not easily reconciled with the conclusion that Allsop J reached in NAQG. Although his Honour, clearly enough, was concerned in NAQG about the lack of a “finding” as to the authenticity of the corroborative documentary evidence advanced in that case, other parts of his reasons expressed that concern in different terms. For example, at [17], his Honour observed that “…the issue as to whether the Tribunal completed its jurisdictional tasks arises if it can be seen to have decided a fact without addressing material before it which, on its face, contradicted the conclusions that it was otherwise minded to draw and which it expressed” (emphasis added). At [42], he summarised the Tribunal’s error as having “not dealt with” evidence that was “…not merely corroborative, but [that was] on its face documentary evidence negating of the fact otherwise found”. In those senses, his Honour can be understood to have decided the matter on the basis that the Tribunal had failed to engage in an “active intellectual process” directed to the factual issue in respect of which the documents were advanced, namely whether or not the husband appellant in that case had been falsely charged with offences in Bangladesh.

60.     In any event, subsequent authorities, both in this court (Buadromo) and the High Court (SZJSS), establish that, subject to the principles of legal unreasonableness, the weighing of evidence is a matter for the Tribunal and that it is under no obligation to state why it was minded to accept or reject discrete aspects of the evidence advanced before it.

Conclusion

61.     The Tribunal was not obliged to make (and then state) a finding that the TTP Letters were or were not authentic. Its failure to do so did not bespeak jurisdictional error. The appellants’ second ground of appeal discloses no appellable error.

(Emphasis added.)

89    Finally in respect of this ground of appeal I note that, in written submissions on which the appellant relied, the appellant’s contentions were confined to the issue whether the Tribunal had failed to properly consider an integer of the appellant’s claims. No additional or separate submissions were made by the appellant in respect of whether the Tribunal had properly applied the “well-founded fear of persecution” test under s 5J of the Migration Act, notwithstanding that this issue is framed in the second ground of appeal as an alternative basis of reliance.

90    In my view the second ground of appeal is not substantiated.

Conclusion

91    The appropriate order is that the appeal be dismissed with costs.

Associate:

Dated:    18 March 2020